AMENDED AND RESTATED BYLAWS OF SALESFORCE.COM, INC.
(effective as of June
7
, 2019)
Article I
STOCKHOLDERS
1.1
Place of Meetings
.
All meetings of stockholders of salesforce.com, inc. (the “Corporation”) shall be held at such place within or without the State of Delaware as may be designated from time to time by the board of directors of the Corporation (the “Board of Directors”) or the Chief Executive Officer.
1
.2
Annual Meeting
. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date to be fixed by the Board of Directors at the time and place to be fixed by the Board of Directors and stated in the notice of the meeting.
1
.3
Special Meetings
.
(a)
A special meeting of stockholders may be called at any time by the Chairman of the Board or the Secretary of the Corporation at the direction of either the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President of the Corporation, for any purpose or purposes prescribed in the notice of the meeting and shall be held at such place, on such date and at such time as the Board may fix. Business transacted at any special meeting of stockholders shall be confined to the purpose or purposes stated in the notice of meeting.
(
b
)
A special meeting of stockholders shall be called by the Chairman of the Board or the Secretary of the Corporation upon the written request (a “special meeting request”) of one or more stockholders of record that at the time a request is delivered (1) own, or are acting on behalf of persons who own, shares representing 15% (the “Requisite Percent”) or more of the voting power of the then-outstanding capital stock of the Corporation entitled to vote on the matter or matters to be brought before the proposed special meeting, and (2) comply with the notice procedures set forth in this Section 1.3 with respect to any matter that is a proper subject for the meeting pursuant to Section 1.3(f). Except as otherwise required by law, and except as otherwise provided for or fixed pursuant to the Certificate of Incorporation (including any preferred stock designation), special meetings of stockholders may not be called by any other person or persons. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting by or at the direction of the Board of Directors. For purposes of satisfying the Requisite Percent under this Section 1.3, “own” and “owned” shall have the meaning set forth in Section 2.16(f) below.
(
c
)
Any stockholder seeking to request a special meeting shall first request that the Board of Directors fix a record date to determine the stockholders entitled to request the special meeting (the “Ownership Record Date”) by delivering notice in writing to the Secretary of the Corporation at the principal executive offices of the Corporation (the “Record Date Request Notice”) setting forth (1) the name of the stockholder as set forth on the Corporation’s stock register and, if the Record Date Request Notice is being delivered on behalf of one or more beneficial owners, the name, address and telephone number of such beneficial owner(s), and (2) the business proposed to be acted on at the special meeting. Upon receiving a Record Date Request Notice, the Board of Directors may set an Ownership Record Date. Notwithstanding any other provision of these Bylaws, the Ownership Record Date shall not precede the date upon which the resolution fixing the Ownership Record Date is adopted by the Board of Directors, and shall not be more than ten business days after the close of business on the date upon which the resolution fixing the Ownership Record Date is adopted by the Board of Directors. If the Board of Directors, within ten business days after the date upon which a valid Record Date Request Notice is received by the Secretary of the Corporation, does not adopt a resolution fixing the Ownership Record
Date, the Ownership Record Date shall be the close of business on the twentieth business day after the date upon which a valid Record Date Request Notice is received by the Secretary.
(
d
)
In order for a special meeting requested by the stockholders to be called by the Chairman of the Board or the Secretary of the Corporation, one or more special meeting requests signed and dated by stockholders (or their duly authorized agents) who own or who are acting on behalf of persons who own, as of the Ownership Record Date, at least the Requisite Percent of the voting power of the then-outstanding capital stock of the Corporation entitled to vote on the matter or matters to be brought before the proposed special meeting (or their duly authorized agents), must be delivered to the Secretary at the principle executive offices of the Corporation and must be accompanied by:
(i)
in the case of any special meeting requested by stockholders at which director nominations are proposed to be presented, the information required by Section 2.15(a)(ii) and (iii) below, including as to the person(s) seeking to propose such nominations at such meeting, the information required under Section 2.15(a)(ii)(2), which notice shall be further updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct, as provided in the last paragraph of Section 2.16(g) (and for such purposes, Eligible Stockholder shall refer to the stockholder requesting the meeting and “annual meeting of stockholders” shall refer to the special meeting of stockholders being requested); and
(
ii
)
in the case of any special meeting requested by stockholders at which any business other than nominations of persons for election to the Board of Directors is proposed to be presented, the information required by Section 1.10(a)(ii) below (which shall be in addition to the information required by Section 1.3(d)(i) if director nominations also are proposed to be considered), including as to the person(s) seeking to propose such business at such meeting, the information required under Section 1.10(a)(ii)(2)-(5), which notice shall be further updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct, as provided in the last paragraph of Section 2.16(g) below (and for such purposes, Eligible Stockholder shall refer to the stockholder requesting the meeting and “annual meeting of stockholders” shall refer to the special meeting of stockholders being requested); and
(
iii
)
as to each stockholder of the Corporation signing such request, or if such stockholder is a nominee or custodian, the beneficial owner(s) on whose behalf such request is signed, (1) an affidavit by each such person stating the number of shares of the capital stock of the Corporation that it owns (as defined in Section 2.16(f) below) as of the date such request was signed and an agreement by such person to update and supplement such affidavit, if necessary, so that the information provided in such affidavit regarding the number of shares of the capital stock of the Corporation that such person owns shall be true and correct as of the record date for the special meeting requested by stockholders and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than eight (8) business days prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof; provided that in the event of any decrease in the number of shares of the capital stock of the Corporation owned by such person at any time before the special meeting requested by stockholders, such person’s special meeting request shall be deemed to have been revoked with respect to such shares of the capital stock of the Corporation comprising such reduction and shall not be counted towards the calculation of the Requisite Percent, (2) as to the stockholder seeking to call the special meeting (or the person on whose behalf the stockholder is acting, as applicable) or any stockholder or beneficial owner who has solicited other stockholders to request the special meeting, an agreement to continue to own such number of shares of the capital stock of the Corporation in its affidavit through the date of the special meeting requested by stockholders, and (3) as to the stockholder seeking to
call the special meeting (or the person on whose behalf the stockholder is acting, as applicable) or any stockholder or beneficial owner who has solicited other stockholders to request the special meeting, the information as to such stockholder or beneficial owner required under Section 2.15(a)(ii)(2) below.
One or more special meeting requests delivered to the Secretary by one, or a group of more than one, stockholders requesting the special meeting shall constitute a valid special meeting request only if each such written request satisfies the requirements set forth in this Section 1.3(d) and has been dated and delivered to the Secretary within sixty days of the earliest dated of such requests. If the record holder is not the signatory to the special meeting request, such special meeting request will not be valid unless documentary evidence from the record holder is supplied to the Secretary of the Corporation at the time of delivery of such special meeting request (or within ten business days thereafter) of such signatory’s authority to execute the special meeting request on behalf of the record holder.
(
e
)
After receiving a special meeting request, the Board of Directors shall determine in good faith whether the stockholders requesting the special meeting have satisfied the requirements for calling a special meeting of stockholders, which determination shall be conclusive and binding on the Corporation, and the Corporation shall notify the requesting stockholder of the Board’s determination about whether the special meeting request is valid. The date, time and place of the special meeting shall be fixed by the Board of Directors in accordance with these Bylaws; provided, however, that the date of the special meeting shall not be more than ninety days after the date on which the Board of Directors fixes the date of the special meeting. The record date for the special meeting shall be fixed by the Board of Directors as set forth in Section 4.5 below.
(
f
)
A special meeting request shall not be valid, and the Corporation shall not call a special meeting if: (i) the special meeting request relates to an item of business that is not a proper subject for stockholder action under, or that involves a violation of, applicable law; (ii) an item of business that is the same or substantially similar (as determined in good faith by the Board of Directors) was presented at a meeting of stockholders occurring within ninety days preceding the earliest date of signature on the special meeting request; (iii) the special meeting request is delivered during the period commencing ninety days prior to the first anniversary of the preceding year’s annual meeting and ending on the date of the next annual meeting of stockholders; or (iv) the special meeting request does not comply with the requirements of this Section 1.3.
(
g
)
The stockholder seeking to call the special meeting may revoke a special meeting request by written revocation delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation at any time prior to the stockholder-requested special meeting, and any stockholder signing a special meeting request may revoke such request as to the shares of capital stock of the Corporation that such person owns (or owned by that person on whose behalf the stockholder is acting, as applicable) and shall be deemed to revoke a special meeting request as and to the extent provided in Section 1.3(d)(iii); provided that if, as a result of such revocation(s), there no longer are valid unrevoked special meeting requests from stockholders who own the Requisite Percent of the voting power of the then-outstanding capital stock of the Corporation entitled to vote on the matter or matters to be brought before the proposed special meeting, there shall be no requirement to call a special meeting or to hold a special meeting regardless of whether notice of such special meeting has been sent and/or proxies solicited for such special meeting. Further, in the event that the stockholder requesting the stockholder-requested special meeting withdraws such special meeting request, there shall be no requirement to call or hold such special meeting.
(
h
)
Business transacted at a stockholder-requested special meeting shall be limited to: (i) the business stated in the valid special meeting request received from the Requisite Percent; and (ii) any additional business that the Board of Directors determines to include in the Corporation’s notice of meeting. If none of the stockholders who submitted the special meeting request appears at the special meeting to present the matter or matters to be brought before the special meeting that were specified in the special meeting request, the Corporation need not present the matter or matters for a vote at the
meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation. The Board of Directors may postpone, reschedule or cancel any special meeting of stockholders previously scheduled pursuant to this Section 1.3.
1
.4
Notice of Meetings
. Written notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or as required by law (meaning here and hereafter, as required from time to time by the Delaware General Corporation Law) or the Certificate of Incorporation. The notices of all meetings shall state the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his or her address as it appears on the records of the Corporation.
1
.5
Voting List
. The officer who has charge of the stock ledger of the Corporation shall prepare, at least 10 days before each meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, the Corporation’s principal place of business. The list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be inspected by any stockholder who is present. This list shall determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
1
.6
Quorum
. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the holders of a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business. If a quorum shall fail to attend any meeting, the Chairman of the meeting or the holders of a majority of the shares of capital stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place, if any, date or time, or with another means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting.
If a notice of any adjourned special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present at such adjourned meeting constituting a quorum, then except as otherwise required by law or the Certificate of Incorporation, those present at such adjourned meeting shall constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
1
.7
Adjournments
. Any meeting of stockholders may be adjourned to any other place, if any, date or time at which a meeting of stockholders may be held under these Bylaws, or with any other means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, by the Chairman of the meeting or, in the absence of such person, by any officer entitled to preside at or to act as Secretary of such meeting, or by the holders of a majority of the shares of stock present or represented at the meeting and entitled to vote, although less than a quorum. When a meeting is adjourned to another place, if any, date or time, or with another means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, written notice need not be given of the adjourned meeting if the place, if any, date and time thereof and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, if any, date and time of the adjourned
meeting, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting, shall be given in conformity herewith. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.
1
.8
Voting and Proxies
. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided by law or the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders may vote in person or may authorize any other person or persons to vote or act for him by written proxy executed by the stockholder or his or her authorized agent or by a transmission permitted by law or the Certificate of Incorporation and delivered to the Secretary of the Corporation. No stockholder may authorize more than one proxy for his or her shares. Any copy, facsimile or other electronic transmission or other reliable reproduction of the writing or transmission created pursuant to this Section may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile or other electronic transmission or other reproduction shall be a complete reproduction of the entire original
writing
or transmission.
1.
9
Action at Meeting
. When a quorum is present at any meeting, all matters shall be determined by a majority of the votes cast affirmatively or negatively on the matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, a majority of each such class present or represented and voting affirmatively or negatively on the matter shall decide such matter), except when a different vote is required by express provision of law, the Certificate of Incorporation or these Bylaws.
All
voting, including on the election of directors, but excepting where otherwise required by law or the Certificate of Incorporation, may be by a voice vote; provided, however, that upon demand therefor by a stockholder entitled to vote or his or her proxy, a stock vote shall be taken. Every stock vote shall be taken by ballot, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. Every vote taken by ballot shall be counted by an inspector or inspectors appointed by the Chairman of the meeting. The Corporation may, and to the extent required by law or the Certificate of Incorporation, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as an alternate inspector to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law or the Certificate of Incorporation, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of his or her ability.
1.
10
Advance Notice of Stockholder Business
.
(a)
A
t an annual meeting of the stockholders or special meeting requested by the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be brought: (1) pursuant to the Corporation’s proxy materials with respect to such meeting, (2) by or at the direction of the Board of Directors, or (3) by a stockholder of the Corporation who (A) is a stockholder of record at the time of the giving of the notice required by this 1.10(a) and on the record date for the determination of stockholders entitled to vote at the annual meeting and (B) has timely complied in proper written form with the notice procedures set forth in this Section 1.10(a). In addition, for business to be properly brought before an annual meeting by a stockholder, such business must be a proper matter for stockholder action pursuant to these Bylaws, the Certificate of Incorporation or applicable laws. For the avoidance of doubt, clause (3) of the second sentence of this paragraph shall be the exclusive means for a stockholder to propose business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under
the 1934 Act) at an annual meeting of stockholders, and this Section 1.10 shall not apply to any nomination of director candidates except to the extent set forth in Section 2.15 and Section 2.16. To be properly brought before a special meeting requested by the stockholders, business must be: (a) specified in the Corporation’s notice of meeting given by or at the direction of the Board of Directors delivered pursuant to Section 1.4 above, (b) otherwise properly made at the special meeting requested by stockholders, by or at the direction of the Board of Directors or the Chairman of the Board, or (c) otherwise have been properly requested to be brought before the stockholder-requested special meeting by the stockholder in accordance with this Section 1.10(a).
(i)
To comply with clause (3)(B) of Section 1.10(a) above, a stockholder’s notice must set forth all information required under this Section 1.10(a) and must be timely received by the Secretary of the Corporation. To be timely, a stockholder’s notice must be received by the Secretary at the principal executive offices of the Corporation not later than the 45th day nor earlier than the 75th day before the one-year anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or if the date of the annual meeting is advanced by more than 30 days prior to or delayed by more than 60 days after the one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received by the Secretary not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (x) the 90th day prior to such annual meeting, or (y) the 10th day following the day on which Public Announcement (as defined below) of the date of such annual meeting is first made. In no event shall an adjournment of an annual meeting of stockholders, or postponement of any previously scheduled annual meeting of stockholders for which notice has been given (or with respect to which there has been a Public Announcement of the date of the meeting), commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 1.10(a)(i). “Public Announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or any successor thereto (the “1934 Act”).
(ii)
To be in proper written form, a stockholder’s notice to the Secretary of the Corporation must set forth
as
to each matter of business the stockholder intends to bring before the annual meeting: (1) a brief description of the business intended to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (2) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business and any Stockholder Associated Person (as defined below), (3) the class and number of shares of the Corporation which are held of record or are beneficially owned by the stockholder or any Stockholder Associated Person and any derivative positions held or beneficially held by the stockholder or any Stockholder Associated Person, (4) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of such stockholder or any Stockholder Associated Person with respect to any securities of the corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with respect to any securities of the Corporation, (5) any material interest of the stockholder or a Stockholder Associated Person in such business, and (6) a statement whether either such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s voting shares required under applicable law to carry the proposal (such information provided and statements made as required by clauses (1) through (6), a “Business Solicitation Statement”). In addition, to be in proper written form, a stockholder’s notice to the Secretary must be supplemented not later than 10 days following the record date to disclose the information contained in clauses (3) and (4) above as of
the record date. A “Stockholder Associated Person” of any stockholder shall mean (A) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (B) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder and on whose behalf the proposal or nomination, as the case may be, is being made, or (C) any person controlling, controlled by or under common control with such person referred to in the preceding clauses (A) and (B).
(iii)
Without exception, no business shall be conducted at any annual meeting except in accordance with the provisions set forth in this Section 1.10(a) and, if applicable, Section 2.15(a) and 2.16(a) below. In
addition
, business proposed to be brought by a stockholder may not be brought before the annual meeting if such stockholder or a Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Business Solicitation Statement applicable to such business or if the Business Solicitation Statement applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The Chairman of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that any proposed item of business was not properly brought before the annual meeting and in accordance with the provisions of this Section 1.10(a), and, if he or she should so determine, he or she shall so declare at the annual meeting that any such business not properly brought before the annual meeting shall not be transacted.
(b)
In addition to the foregoing provisions of this Section 1.10, a stockholder must also comply with all applicable requirements of law and of the 1934 Act and the rules and regulations thereunder with respect to
the
matters set forth in this Section 1.10, including, with respect to business such stockholder intends to bring before the annual meeting that involves a proposal that such stockholder requests to be included in the Corporation’s proxy statement, the requirements of Rule 14a-8 (or any successor provision) under the 1934 Act. Nothing in this Section 1.10 shall be deemed to affect any right of the Corporation to omit a proposal from the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act.
1.
11
Conduct of Business
. At every meeting of the stockholders, the Chairman of the Board, or, in his or her absence, the Chief Executive Officer, or, in his or her absence, such other person as may be appointed by the Board of Directors, shall act as Chairman of the meeting. The Secretary of the Corporation or a person designated by the Chairman of the meeting shall act as Secretary of the meeting. Unless otherwise approved by the Chairman of the meeting, attendance at the stockholders’ meeting is restricted to stockholders of record, persons authorized in accordance with Section 1.8 of these Bylaws to act by proxy, and officers of the Corporation.
The
Chairman of the meeting shall call the meeting to order, establish the agenda, and conduct the business of the meeting in accordance therewith or, at the Chairman’s discretion, it may be conducted otherwise in accordance with the wishes of the stockholders in attendance. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
The
Chairman shall also conduct the meeting in an orderly manner, rule on the precedence of, and procedure on, motions and other procedural matters, and exercise discretion with respect to such procedural matters with fairness and good faith toward all those entitled to take part. The Chairman may impose reasonable limits on the amount of time taken up at the meeting on discussion in general or on remarks by any one stockholder. Should any person in attendance become unruly or obstruct the meeting proceedings, the Chairman shall have the power to have such person removed from participation. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at a meeting except in accordance with the procedures set forth in this Section 1.11 and Section 1.10 above. The Chairman of a meeting shall, if the facts warrant, determine and declare at the meeting that any proposed item of business was not properly brought before the meeting and in accordance with the provisions of this Section 1.11 and Section 1.10, and if he or she should so determine, he or she shall so declare at the meeting that any such business not properly brought before the meeting shall not be transacted.
1
.
12
Stockholder Action Without Meeting
. Subject to the rights of the holders of the shares of any series of preferred stock or any other class of stock or series thereof having a preference over the common stock as to dividends or upon liquidation, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.
1.
13
Meetings by Remote Communication
. If authorized by the Board of Directors, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication, participate in the meeting and be deemed present in person and vote at the meeting, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication, the Corporation shall maintain a record of such vote.
Article II
BOARD OF DIRECTORS
2
.1
General Powers
. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the Corporation except as otherwise provided by law or the Certificate of Incorporation. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law or the Certificate of Incorporation, may exercise the powers of the full Board until the vacancy is filled.
2.
2
Number and Term of Office
. Subject to the rights of the holders of the shares of any series of preferred stock or any other class of stock or series thereof having a preference over the common stock as to dividends or upon liquidation, the number of directors shall be fixed from time to time exclusively by the Board of Directors. All directors shall be elected to hold office for a term expiring at the first annual meeting of stockholders held following their election and until their respective successors are duly elected and qualified or until their earlier death, resignation or removal.
A nominee for director shall be elected to the Board of Directors if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election; provided, however, that directors shall be elected by a plurality of the votes cast by the holders of the shares present in person or represented by proxy and entitled to vote on the election of directors at any meeting of stockholders for which, as of the date that is 10 days in advance of the date the Corporation files its definitive proxy statement (regardless of whether thereafter revised or supplemented) for such meeting with the Securities and Exchange Commission, the number of nominees exceeds the number of directors to be elected at the meeting.
If a nominee for director fails to receive the required number of votes for reelection, the Nominating and Corporate Governance Committee shall then make a recommendation to the Board of Directors as to whether to accept or reject such director’s resignation as previously tendered pursuant to the Corporation’s Corporate Governance Guidelines or whether other action should be taken. Thereafter, the Board of Directors will act on the Nominating and Corporate Governance Committee’s recommendation. Within 90 days from the date the election results are certified, the Corporation will publicly disclose the Board of Directors’ decision and the rationale behind such decision.
2.
3
Vacancies and Newly Created Directorships
. Subject to the rights of the holders of the shares of any series of preferred stock or any other class of stock or series thereof having a preference over the common stock as to dividends or upon liquidation, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting
from death, resignation or other cause (including removal from office by a vote of the stockholders) may be filled only by the affirmative vote of a majority of the directors then in office, though less than a quorum, or by the sole remaining director, and directors so chosen shall hold office for a term expiring at the first annual meeting of stockholders held following their election and until their respective successors are duly elected and qualified or until their earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
2
.4
Resignation
. Any director may resign by delivering notice in writing or by electronic transmission to the Chairman of the Board, the Chief Executive Officer or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some other event. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, when one or more directors resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.
2
.5
Removal
. Subject to the rights of the holders of the shares of any series of preferred stock or any other class of stock or series thereof having a preference over the common stock as to dividends or upon liquidation, any directors, or the entire Board of Directors, may be removed from office at any time but only by the affirmative vote of the holders of at least a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class.
2
.6
Regular Meetings
. Regular meetings of the Board of Directors may be held without notice at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders.
2.
7
Special Meetings
. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer or two or more directors and may be held at any time and place, within or without the State of Delaware.
2
.8
Notice of Special Meetings
. Notice of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director by (i) giving notice to such director in person or by telephone, electronic transmission or voice message system at least 24 hours in advance of the meeting, (ii) sending a facsimile, or delivering written notice by hand, to his or her last known business or home address at least 24 hours in advance of the meeting, or (iii) mailing written notice to his or her last known business or home address at least three days in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
2
.9
Participation in Meetings by Telephone Conference Calls or Other Methods of Communication
. Directors or any members of any committee designated by the directors may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.
2.
10
Quorum
. A majority of the total number of authorized directors shall constitute a quorum at any meeting of the Board of Directors. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting. In the absence of a quorum at any such meeting,
a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or at a meeting of a committee which authorizes a particular contract or transaction.
2.
11
Action at Meeting
. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation or these Bylaws.
2.
12
Action by Written Consent
. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without a meeting if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
2.
1
3
Committees
. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation, with such lawfully delegated powers and duties as it therefor confers, to serve at the pleasure of the Board. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of the Delaware General Corporation Law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of Directors.
2.
14
Compensation of Directors
. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from serving the Corporation or any of its parent or subsidiary corporations in any other capacity and receiving compensation for such service.
2.
15
Nomination of Director Candidates
.
(a
)
Advance Notice of Director Nominations at Annual Meetings
. Notwithstanding anything in these Bylaws to the contrary, only persons who are nominated in accordance with the procedures set forth in this Section 2.15(a) shall be eligible for election or re-election as directors at an annual meeting of stockholders. Subject to the rights of the holders of the shares of any series of preferred stock or any other class of stock or series thereof having a preference over the common stock as to dividends or upon liquidation, nominations of persons for election or re-election as directors at an annual meeting may be made only (1) by or at the direction of the Board of Directors, (2) by a stockholder of the Corporation who (A) was a stockholder of record at the time of the giving of the notice required by this Section 2.15(a) and on the record date for the determination of stockholders entitled to vote at the annual meeting and (B) has timely complied in proper written form with the notice procedures set forth in this Section 2.15(a) or (3) by any stockholder of record of the Corporation who has complied with the requirements and procedures set forth in Section 2.16 and whose nominees are included in the Corporation’s proxy materials with respect to such meeting.
(i)
To comply with clause (2)(B) of Section 2.15(a) above, a nomination to be made by a stockholder must set forth all information required under this Section 2.15(a) and must be received by the Secretary of the Corporation at the principal executive offices of the Corporation at the time set forth in, and in accordance with, the final three sentences of Section 1.10(a)(i) above.
(ii)
To
be
in proper written form, such stockholder’s notice to the Secretary must set forth:
(1)
as to each person (a “nominee”) whom the stockholder proposes to nominate for election or re-election as a director: (A) the name, age, business address and residence address of the nominee, (B) the principal occupation or employment of the nominee, (C) the class and number of shares of the Corporation that are held of record or are beneficially owned by the nominee and any derivative positions held or beneficially held by the nominee, (D) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of the nominee with respect to any securities of the Corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee, (E) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder, (F) a written statement executed by the nominee acknowledging that as a director of the Corporation, the nominee will owe a fiduciary duty under Delaware law with respect to the Corporation and its stockholders, and (G) any other information relating to the nominee that would be required to be disclosed about such nominee if proxies were being solicited for the election of the nominee as a director, or that is otherwise required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation the nominee’s written consent to being named in the proxy statement, if any, as a nominee and to serving as a director if elected); and
(2)
as
to
such stockholder giving notice, (A) the information required to be provided pursuant to clauses (2) through (5) of Section 1.10(a)(ii) above, and the supplement referenced in the second sentence of Section 1.10(a)(ii) above (except that the references to “business” in such clauses shall instead refer to nominations of directors for purposes of this paragraph), and (B) a statement whether either such stockholder or Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of a number of the Corporation’s voting shares reasonably believed by such stockholder or Stockholder Associated Person to be necessary to elect such nominee(s) (such information provided and statements made as required by clauses (A) and (B) above, a “Nominee Solicitation Statement”).
(iii)
At
the request of the Board of Directors, any person nominated by a stockholder for election as a director must furnish to the Secretary of the Corporation (1) that information required to be set forth in the stockholder’s notice of nomination of such person as a director as of a date subsequent to the date on which the notice of such person’s nomination was given and (2) such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee; in the absence of the furnishing of such information if requested, such stockholder’s nomination shall not be considered in proper form pursuant to this Section 2.15(a).
(iv)
Without
exception, no person shall be eligible for election or re-election as a director of the Corporation at an annual meeting of stockholders unless nominated in accordance with the provisions set forth in this Section 2.15(a) or Section 2.16. In addition, a nominee shall not be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nominee contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements therein not misleading. The Chairman of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that a nomination was not made in accordance with the provisions of this Section 2.15(a), and if he or she should so determine, he or she shall so declare at the annual meeting, and the defective nomination shall be disregarded.
(b)
Advance
Notice of Director Nominations for Special Meetings
. For a special meeting of stockholders at which directors are to be elected pursuant to Section 1.3 above, nominations of persons for election to the Board of Directors shall be made only (1) by or at the direction of the Board of Directors, (2) by any stockholder of the corporation who (A) is a stockholder of record at the time of the giving of the notice required by this Section 2.15(b) and on the record date for the determination of stockholders entitled to vote at the special meeting and (B) delivers a timely written notice of the nomination to the Secretary of the Corporation that includes the information set forth in Sections 2.15(a)(ii) and (a)(iii) above, or (3) in the case of a stockholder-requested special meeting, by any stockholder of the Corporation pursuant to Section 1.3 above. To be timely, such notice must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the later of the 90th day prior to such special meeting or the tenth day following the day on which Public Announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall an adjournment of a special meeting of stockholders, or postponement of any previously scheduled special meeting of stockholders for which notice has been given (or with respect to which there has been a Public Announcement of the date of the meeting), commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 2.15(b). A person shall not be eligible for election or re-election as a director at a special meeting unless the person is nominated (i) by or at the direction of the Board of Directors, (ii) by a stockholder in accordance with the notice procedures set forth in this Section 2.15(b), or (iii) in the case of a stockholder-requested special meeting, by any stockholder of the Corporation pursuant to Section 1.3 above. In addition, a nominee shall not be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nominee contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The Chairman of the special meeting shall, if the facts warrant, determine and declare at the special meeting that a nomination was not made in accordance with the provisions of this Section 2.15(b), and if he or she should so determine, he or she shall so declare at the annual meeting, and the defective nomination shall be disregarded. Notwithstanding any other provision of these Bylaws, in the case of a stockholder-requested special meeting, no stockholder may nominate a person for election to the Board of Directors or propose any other business to be considered at the meeting, except pursuant to the written request(s) delivered for such special meeting pursuant to Section 1.3 above.
(c)
In
addition
to the foregoing provisions of this Section 2.15, a stockholder must also comply with all applicable requirements of state law and of the 1934 Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.15. Nothing in this Section 2.15 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act.
(d)
Only
persons nominated in accordance with the procedures set forth in this Section 2.15 or Section 2.16 shall be eligible to serve as directors. Except as otherwise provided by law or the Certificate of Incorporation, the Chairman of the meeting shall have the power and duty (a) to determine whether a nomination was made in accordance with the procedures set forth in this Section 2.15 and (b) if any proposed nomination was not made in compliance with this Section 2.15, to declare that such nomination shall be disregarded.
2.
16
Inclusion of Director Candidates in Proxy Materials
.
(a)
Proxy
Access
. Subject to compliance with the terms and conditions set forth in these Bylaws, in connection with an annual meeting of stockholders, the Corporation shall include (i) in its proxy statement and form of proxy, in addition to the persons nominated for election by the Board of Directors or any committee thereof, the name of any person nominated for election to the Board of Directors by a record stockholder who is, or is acting on behalf of, an Eligible Stockholder (as defined below) pursuant to this Section 2.16 (such nominated person, the “Stockholder Nominee”) and (ii) in its proxy statement the Required Information (as defined below) relating to any Stockholder Nominee.
(b)
Timeliness
of Notice
. To nominate a Stockholder Nominee, a record stockholder who is, or is acting on behalf of, an Eligible Stockholder must provide a timely notice that expressly elects to have the Eligible Stockholder’s Stockholder Nominee included in the Corporation’s proxy materials pursuant to this Section 2.16 (the “Notice of Proxy Access Nomination”). To be timely, a Notice of Proxy Access Nomination must be received by the Secretary of the Corporation at the principal executive offices of the Corporation not later than the 120th day nor earlier than the 150th day before the one-year anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or if the date of the annual meeting is advanced by more than 30 days prior to or delayed by more than 60 days after the one-year anniversary of the date of the previous year’s annual meeting, then, for a Notice of Proxy Access Nomination by the stockholder to be timely, it must be so received by the Secretary not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (x) the 90th day prior to such annual meeting, or (y) the tenth day following the day on which Public Announcement of the date of such annual meeting is first made (the last day on which a Notice of Proxy Access Nomination may be delivered, the “Final Proxy Access Nomination Date”). In no event shall an adjournment of an annual meeting of stockholders, or postponement of any previously scheduled annual meeting of stockholders for which notice has been given (or with respect to which there has been a Public Announcement of the date of the meeting), commence a new time period (or extend any time period) for the giving of a Notice of Proxy Access Nomination under this Section 2.16.
(c)
Information Included in Proxy Materials
. The Eligible Stockholder may provide to the Secretary
of
the Corporation a written statement for inclusion in the Corporation’s proxy statement for the applicable annual meeting of stockholders, not to exceed 500 words, in support of the Eligible Stockholder’s Stockholder Nominee (the “Statement”). In order to have a Statement included in the proxy statement an Eligible Stockholder must submit the Statement to the Secretary of the Corporation at the same time that such Eligible Stockholder’s Notice of Proxy Access Nomination is submitted to the Secretary of the Corporation. For purposes of this Section 2.16, the “Required Information” that the Corporation will include in its proxy statement is (i) the information concerning the Stockholder Nominee and the Eligible Stockholder that the Corporation determines is required to be disclosed in the Corporation’s proxy statement by the regulations promulgated under the 1934 Act and (ii) if the Eligible Stockholder so elects, a Statement. Notwithstanding anything to the contrary contained in this Section 2.
16
, the Corporation may omit from its proxy materials any information or Statement (or portion thereof) that it believes would violate any applicable law or regulation. Nothing in this Section 2.16 shall limit the Corporation’s ability to solicit against and include in its proxy materials its own statements relating to any Stockholder Nominee.
(d)
Number of Stockholder Nominees
. The number of Stockholder Nominees appearing in the
Corporation
’s proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (i) two or (ii) 20% of the number of directors in office and subject to election by the holders of common stock as of the Final Proxy Access Nomination Date, or if such number is not a whole number, the closest whole number below 20% (the number determined pursuant to clause (i) or clause (ii) of this sentence, as applicable, the “Permitted Number”); provided, that in the event that one or more vacancies for any reason occurs on the Board of Directors at any time after the Final Proxy Access Nomination Date and before the date of the applicable annual meeting of stockholders and the Board of
Directors resolves to reduce the size of the Board of Directors in connection therewith such that the number of directors subject to election by the holders of common stock is reduced, the Permitted Number shall be calculated based on the number of directors in office as so reduced. The Permitted Number shall also be reduced by (i) the number of director candidates for which the Corporation shall have received one or more notices that a stockholder intends to nominate director candidates at such applicable annual meeting of stockholders pursuant to Section 2.15, provided that the Permitted Number after such reduction with respect to this clause (i) will in no event be less than one, (ii) the number of director candidates that will be included in the Corporation’s proxy materials with respect to such annual meeting of stockholders as an unopposed (by the Corporation) nominee pursuant to any agreement, arrangement or other understanding with any stockholder or group of stockholders (other than any such agreement, arrangement or understanding entered into in connection with an acquisition of shares by such stockholder or group of stockholders from the Corporation), other than any such director candidate referred to in this clause (ii) who was elected, as a nominee of the Board of Directors, at both of the two annual meetings of stockholders immediately preceding the applicable annual meeting of stockholders, provided that the Permitted Number after such reduction with respect to this clause (ii) will in no event be less than one, (iii) the number of incumbent director candidates who previously were Stockholder Nominees at either of the two annual meetings of stockholders immediately preceding the applicable annual meeting and whose re-election at the upcoming annual meeting is being recommended by the Board of Directors and (iv) the number of director candidates whose names were submitted for inclusion in the Corporation’s proxy materials pursuant to this Section 2.16, but who were thereafter nominated by the Board of Directors. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 2.16 exceeds the Permitted Number, each Eligible Stockholder (or group thereof constituting an Eligible Stockholder) will select one Stockholder Nominee for inclusion in the Corporation’s proxy materials until the Permitted Number is reached, going in order of the amount (largest to smallest) of shares of common stock of the Corporation each Eligible Stockholder (or group thereof) disclosed as owned in its respective Notice of Proxy Access Nomination submitted to the Corporation. If the Permitted Number is not reached after each Eligible Stockholder (or group thereof) has selected one Stockholder Nominee, this selection process will continue as many times as necessary, following the same order each time, until the Permitted Number is reached. After reaching the Permitted Number of Stockholder Nominees, if any Stockholder Nominee who satisfies the eligibility requirements in this Section 2.16 (i) thereafter withdraws from the election (or his or her nomination is withdrawn by the applicable Eligible Stockholder) or (ii) is thereafter not submitted for director election for any reason (including the failure to comply with this Section 2.16) other than due to a failure by the Corporation to include such Stockholder Nominee in the proxy materials in violation of this Section 2.16, no other nominee or nominees shall be substituted for such Stockholder Nominee and included in the Corporation’s proxy materials or otherwise submitted for director election pursuant to this Section 2.16.
(e)
Group Provisions to Determine Eligible Stockholder
. An “Eligible Stockholder” is one or more persons who own and have owned, or are acting on behalf of one or more beneficial owners who
own
and have owned (in each case as defined in Section 2.16(f)), for at least three years as of the date the Notice of Proxy Access Nomination is received by the Corporation, shares representing at least 3% of the shares of common stock outstanding as of the date of such Notice of Proxy Access Nomination (the “Required Shares”), and who continue to own the Required Shares at all times between the date the Notice of Proxy Access Nomination is received by the Corporation and the date of the applicable annual meeting of stockholders; provided that the aggregate number of record stockholders and beneficial owners whose stock ownership is counted for the purposes of satisfying the foregoing ownership requirement shall not exceed 20. Two or more collective investment funds that are (i) under common management and investment control, (ii) under common management and funded primarily by a single employer or (iii) a “group of investment companies,” as such term is defined in Section 12(d) (1)(G)(ii) of the Investment Company Act of 1940 (as amended from time to time the “Investment Company Act”) (such funds together under each of (i), (ii) or (iii) comprising a “Qualifying Fund”) shall be treated
as one record stockholder or beneficial owner for the purpose of determining the aggregate number of record stockholders and beneficial owners in this paragraph, and treated as one person for the purpose of determining “ownership” as defined in this Section 2.16, provided that each fund comprising a Qualifying Fund otherwise meets the requirements set forth in this Section 2.16. No record stockholder (other than a Custodian Holder (as defined below)) or beneficial owner may be a member of more than one group constituting an Eligible Stockholder under this Section 2.16, and no shares may be attributed to more than one Eligible Stockholder or group constituting an Eligible Stockholder under this Section 2.16. For the avoidance of doubt, the Required Shares will qualify as such if and only if the beneficial owner of such shares has itself beneficially owned such shares continuously for the three-year period ending on the date the Notice of Proxy Access Nomination is received by the Corporation and through other applicable dates referred to above (in addition to the other applicable requirements being met).
(f)
Definition of “Own” and “Ownership
.” For purposes of calculating the Required Shares under this
Section
2.16 and for purposes of calculating the “Requisite Percent” under Section 1.3 of these Bylaws, “ownership,” “own” and “owned” respectively, shall be deemed to consist of and include only the outstanding shares as to which a person possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (A) sold by such person or any of its affiliates in any transaction that has not been settled or closed, including any short sale, (B) borrowed by such person or any of its affiliates for any purposes or purchased by such person or any of its affiliates pursuant to an agreement to resell, or (C) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by such person or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of common stock, in any such case which instrument or agreement has, or is intended to have, or if exercised would have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such person’s or its affiliates’ full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting, or altering to any degree any gain or loss arising from the full economic ownership of such shares by such person or its affiliate. “Ownership” shall include shares held in the name of a nominee (including a Custodian Holder) or other intermediary so long as the person claiming ownership of such shares retains the right to instruct how the shares are voted with respect to the election of directors and the right to direct disposition thereof and possesses the full economic interest in the shares; provided that this provision shall not alter the obligations of a record stockholder to provide the Notice of Proxy Access Nomination. Ownership of shares shall be deemed to continue during any period (x) in which shares have been loaned if the person claiming ownership may recall such loaned shares on no more than five business days’ notice or (y) in which any voting power has been delegated by means of a proxy, power of attorney or other instrument or arrangement which is revocable at any time without condition. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings.
(g)
Contents of Notice of Proxy Access Nomination
. The Notice of Proxy Access Nomination shall set
forth
or be submitted with the following information and materials in writing (including, as applicable, with respect to each Eligible Stockholder, every member of any group that is together such Eligible Stockholder other than a Custodian Holder):
(i)
with
respect
to each of the Stockholder Nominee(s) and each Eligible Stockholder, the information identified in Section 2.15(a)(ii)(1) and Section 2.15(a)(ii)(2)(A), as applicable;
(ii)
the
written
consent of each Stockholder Nominee to being named in the Corporation’s proxy materials as a nominee and to serving as a director if elected;
(iii)
a
copy
of the Schedule 14N that has been, or concurrently is, filed with the Securities and Exchange Commission as required by Rule 14a-18 under the 1934 Act;
(iv)
with
respect to each Eligible Stockholder and its affiliates or associates or others acting in concert therewith and each Stockholder Nominee, all information as would be required to be disclosed in a solicitation of proxies for the election of such Stockholder Nominee as a director in a contested election pursuant to Section 14 of the 1934 Act and the rules and regulations promulgated thereunder;
(v)
a
description
of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among the Eligible Stockholder and its or their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each of such Eligible Stockholder’s Stockholder Nominee(s), and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Eligible Stockholder, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the Stockholder Nominee were a director or executive officer of such registrant; and
(vi)
a
completed
director questionnaire signed by the Stockholder Nominee(s) (a form of which shall be provided by the Secretary of the Corporation promptly following a request therefor).
In
addition
, the Notice of Proxy Access Nomination must be submitted with a signed and written agreement of the Eligible Stockholder (and each member of any group that together is an Eligible Stockholder other than a Custodian Holder) setting forth:
(i)
a
representation
that the Eligible Stockholder (1) acquired ownership of the Required Shares in the ordinary course of business and not with the intent to change or influence control of the Corporation, and does not presently have such intent, (2) has not nominated and will not nominate for election to the Board of Directors at the applicable annual meeting of stockholders any person other than its Stockholder Nominee(s), (3) has not engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the 1934 Act in support of the election of any individual as a director at the applicable annual meeting of stockholders other than its Stockholder Nominee(s) or a nominee of the Board of Directors, (4) will not distribute to any person any form of proxy for the applicable annual meeting of stockholders other than the forms distributed by the Corporation and (5) will provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading and otherwise will comply with all applicable laws, rules and regulations in connection with any actions taken pursuant to this Section 2.16;
(ii)
a
representation
that (1) within five business days after the date that the Notice of Proxy Access Nomination is sent to the Corporation, the Eligible Stockholder will provide one or more written statements from the record holder of the Required Shares (and from each intermediary through which the Required Shares are or have been held during the requisite three-year holding period) that, as of a date within seven days prior to the date that the Notice of Proxy Access Nomination was received by the Corporation, the Eligible Stockholder owns, and has owned continuously for the preceding three years, the Required Shares, (2) within five business days after the record date for determining stockholders entitled to vote at the annual meeting, the Eligible Stockholder will provide one or more written statements from the record holder (and from each intermediary through which the Required Shares are held) verifying the Eligible Stockholder’s continuous ownership of the Required Shares through such record date and (3) the Eligible Stockholder will provide immediate written notice to the Corporation if the Eligible Stockholder ceases to own any of the Required Shares prior to the applicable annual meeting of stockholders;
(iii
)
in
the
case of a nomination by a group of persons that together is such an Eligible Stockholder, the designation by all group members of one group member that is authorized to act on behalf of all members of the Eligible Stockholder group with respect to the nomination and matters related thereto, including withdrawal of the nomination; and
(iv)
an
undertaking
that the Eligible Stockholder agrees to (1) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders of the Corporation or out of the information that the Eligible Stockholder provides to the Corporation, (2) indemnify and hold harmless the Corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of any nomination, solicitation or other activity by the Eligible Stockholder in connection with its efforts to elect the Stockholder Nominee(s) pursuant to this Section 2.16, (3) file with the Securities and Exchange Commission any solicitation or other communication with the Corporation’s stockholders relating to the meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the 1934 Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the 1934 Act, (4) comply with all laws and regulations applicable to any solicitation in connection with the annual meeting and (5) provide the Corporation prior to the annual meeting of stockholders such additional information as necessary or reasonably requested by the Corporation. In addition, no later than the Final Proxy Access Nomination Date, a Qualifying Fund whose stock ownership is counted for purposes of qualifying as an Eligible Stockholder must provide to the Secretary of the Corporation documentation satisfactory to the Corporation that demonstrates that the funds comprising the Qualifying Fund are (x) under common management and investment control, (y) under common management and funded primarily by a single employer or (z) a “group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act.
Any information required by this Section 2.16 to be provided to the Corporation must be updated and supplemented by the Eligible Stockholder or Stockholder Nominee, as applicable, by delivery to the Secretary of the Corporation (1) no later than 10 days after the record date for determining the stockholders entitled to vote at the annual meeting of stockholders, of such information as of such record date and (2) no later than five days before the annual meeting of stockholders, of such information as of the date that is 10 days before the annual meeting of stockholders. Further, in the event that any information or communications provided (pursuant to this Section 2.16 or otherwise) by the Eligible Stockholder or the Stockholder Nominee to the Corporation or its stockholders ceases to be true and correct in any respect or omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary of the Corporation of any such inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication true and correct. For the avoidance of doubt, the requirement to update, supplement and correct such information shall not permit any Eligible Stockholder or other person to change or add any proposed Stockholder Nominee or be deemed to cure any defects or limit the remedies (including without limitation under these Bylaws) available to the Corporation relating to any defect (including any inaccuracy or omission).
(h)
Information and Agreements from Nominees
. At the request of the Corporation, each
Stockholder
Nominee must: (i) provide an executed agreement, in a form satisfactory to the Corporation, that (1) the Stockholder Nominee has read and agrees, if elected, to serve as a member of the Board of Directors, to adhere to the Corporation’s Corporate Governance Guidelines and Code of Conduct and any other policies and guidelines of the Corporation applicable to directors (which will be provided by the Corporation following a request therefor), (2) the Stockholder Nominee is not and will not become a party to any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with his or her nomination, service or action as a Stockholder Nominee or
as a director of the Corporation, in each case that has not been disclosed to the Corporation and (3) the Stockholder Nominee is not and will not become a party to any agreement, arrangement or understanding with any person or entity as to how the Stockholder Nominee would vote or act on any issue or question as a director and (ii) provide within five business days of the Corporation’s request such additional information as the Corporation determines may be necessary to permit the Board of Directors to determine (1) if such Stockholder Nominee is independent under the rules and listing standards of the principal U.S. exchange upon which the common stock of the Corporation is listed, any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the Corporation’s directors, (2) if such Stockholder Nominee has any direct or indirect relationship with the Corporation other than those relationships that have been deemed categorically immaterial pursuant to the standards used by the Corporation for determining director independence, (3) if such Stockholder Nominee would, by serving on the Board of Directors, violate or cause the Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the rules or listing standards of the principal U.S. exchange upon which the common stock of the Corporation is listed or any applicable law, rule or regulation and (4) if such Stockholder Nominee is or has been subject to any event specified in Item 401(f) of Regulation S-K (or successor rule) of the Securities and Exchange Commission.
(i)
Ineligibility of Certain Stockholder Nominees
. Any Stockholder Nominee who is
included
in the
Corporation
’s proxy materials for a particular annual meeting of stockholders but either (i) withdraws from or becomes ineligible or unavailable for election at that annual meeting or (ii) does not receive a number of votes cast in favor of his or her election at least equal to 25% of the votes present in person or represented by proxy and entitled to vote in the election of directors, will be ineligible to be a Stockholder Nominee pursuant to this Section 2.16 for the next two annual meetings of stockholders. Any Stockholder Nominee who is included in the Corporation’s proxy materials for a particular annual meeting of stockholders, but subsequently is determined not to satisfy the eligibility requirements of this Section 2.16 or any other provision of these Bylaws, the Certificate of Incorporation, the Corporation’s Corporate Governance Guidelines or applicable law or regulation at any time before the applicable annual meeting of stockholders, will not be eligible or qualified for election at such annual meeting of stockholders and no other nominee may be substituted by the Eligible Stockholder that nominated such Stockholder Nominee.
(j)
Exclusion of Stockholder Nominees from Proxy Materials
. The Corporation shall not be
required
to include, pursuant to this Section 2.16, a Stockholder Nominee in its proxy materials for any annual meeting of stockholders, or, if the proxy statement already has been filed, to allow the nomination of a Stockholder Nominee, notwithstanding that proxies in respect of such vote may have been received by the Board of Directors:
(i)
who is not independent under (a) the rules or listing standards of the principal U.S.
exchange
upon
which the common stock of the Corporation is listed, (b) any applicable rules of the Securities and Exchange Commission or any other regulatory body with jurisdiction over the Corporation or (c) any publicly disclosed standards used by the Board of Directors in determining and disclosing independence of the Corporation’s directors, in each case as determined by the Board of Directors;
(ii)
whose
election as a member of the Board of Directors would cause the Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the rules or listing standards of the principal U.S. exchange upon which the common stock of the Corporation is listed or any applicable law, rule or regulation;
(iii)
who
is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past 10 years;
(iv)
who
is subject to an order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended;
(v)
who
is or has been, within the past 3 years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended;
(vi)
if
such
Stockholder Nominee or the applicable Eligible Stockholder (or any member of any group of persons that together is such Eligible Stockholder) shall have provided information to the Corporation in connection with such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make any statement made, in light of the circumstances under which it was made, not misleading, as determined by the Corporation;
(vii)
if
the
Eligible Stockholder (or any member of any group of persons that together is such Eligible Stockholder) or applicable Stockholder Nominee otherwise breaches or fails to comply with its representations, undertakings or obligations pursuant to these Bylaws, including, without limitation, this Section 2.16;
(viii)
if the
Eligible
Stockholder ceases to be an Eligible Stockholder for any reason, including but not limited to not owning the Required Shares through the date of the applicable annual meeting of stockholders; or
(ix)
if
the
Stockholder Nominee is determined not to satisfy the eligibility requirements provided in the Corporate Governance Guidelines.
For the purpose of this subsection (j), the occurrence of clauses (i) through (v) and (ix) and, to the extent related to a breach or failure by the Stockholder Nominee, clauses (vi) and (vii) will result in the exclusion from the proxy materials pursuant to this Section 2.16 of the specific Stockholder Nominee to whom the ineligibility applies or, if the proxy statement for the applicable annual meeting of stockholders already has been filed, the ineligibility of such Stockholder Nominee to stand for election. The occurrence of clause (viii) and, to the extent related to a breach or failure by an Eligible Stockholder (or any member of any group of persons that together is such Eligible Stockholder), clauses (vi) or (vii) will result in the shares owned by such Eligible Stockholder (or any member of any group of persons that together is such Eligible Stockholder) being excluded from the Required Shares (and, if as a result the persons who together nominated the Stockholder Nominee shall no longer constitute an Eligible Stockholder, the exclusion from the proxy materials pursuant to this Section 2.16 of all of the applicable stockholder’s Stockholder Nominees from the applicable annual meeting of stockholders or, if the proxy statement for the applicable annual meeting has already been filed, the ineligibility of all of such stockholder’s Stockholder Nominees to stand for election).
(k)
Interpretation; Attendance of Eligible Stockholder at Annual Meeting
. The Board of Directors (and
any
other person or body authorized by the Board of Directors) shall have the power and authority to interpret this Section 2.16 and to make any determinations necessary or advisable to apply this Section 2.16 to any persons, facts or circumstances, in each case, acting in good faith. Notwithstanding the foregoing provisions of this Section 2.16, unless otherwise required by law or otherwise determined by the Chairman of the meeting, if none of: (i) the Eligible Stockholder, (ii) a Qualified Representative (as defined below) of the Eligible Stockholder or (iii) if the Eligible Stockholder is comprised of a group, a member of such group, appears at the annual meeting of stockholders of the Corporation to present such Eligible Stockholder’s Stockholder Nominee(s), such nomination or nominations shall be disregarded and conclusively deemed withdrawn, notwithstanding that proxies in respect of the election of the Stockholder Nominee(s) may have been received by the Corporation.
(l)
Exclusive Method of Proxy Access
. This Section 2.16 shall be the exclusive method for stockholders
to
include nominees for director election in the Corporation’s proxy materials.
(m)
Definitions
. As used in these Bylaws, the following terms shall have the meanings set forth
below
:
(i)
“Custodian Holder”, with respect to any Eligible Stockholder, means any broker, bank or custodian (or similar nominee) who (i) is acting solely as a nominee on behalf of a beneficial owner and (ii) does not “
own
” (as defined in Section 2.16) any of the shares comprising the Required Shares of the Eligible Stockholder.
(ii)
“person” means, as applicable, any individual, corporation, general or limited partnership, limited
liability
company, joint venture, estate, association, trust or other entity or organization.
(iii)
A “Qualified Representative” of an Eligible Stockholder means a person that is a duly authorized officer, manager or partner of such Eligible Stockholder or is authorized by a writing (i) executed
by
such Eligible Stockholder, (ii) delivered (or a reliable reproduction or electronic transmission of the writing is delivered) by such Eligible Stockholder to the Corporation prior to the taking of the action taken by such person on behalf of such Eligible Stockholder and (iii) stating that such person is authorized to act for such Eligible Stockholder with respect to the action to be taken.
Article III
OFFICERS
3.
1
Enumeration
.
The officers of the Corporation shall consist of one or more Chief Executive Officers, a Secretary, a Chief Financial Officer, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including, at the discretion of the Board of Directors, a Chairman of the Board, and one or more Presidents, Vice Presidents and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate.
3.
2
Election
. Officers shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Officers may be appointed by the Board of Directors at any other meeting.
3.
3
Qualification
. No officer need be a stockholder. Any two or more offices may be held by the same person.
3
.4
Tenure
. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, each officer shall hold office until his or her successor is elected and qualified, unless a different term is specified in the vote appointing him, or until his or her earlier death, resignation or removal.
3.
5
Resignation and Removal
. Any officer may resign by delivering his or her written resignation to the Corporation at its principal office or to the Chief Executive Officer or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any officer elected by the Board of Directors may be removed at any time, with or without cause, by the Board of Directors.
3.
6
Chairman of the Board
. The Board of Directors may appoint a Chairman of the Board. If the Board of Directors appoints a Chairman of the Board, he or she shall perform such duties and possess such powers as are assigned to him or her by the Board of Directors. Unless otherwise provided by the Board of Directors, he or she shall preside at all meetings of the stockholders, and, if he or she is a director, at all meetings of the Board of Directors.
3
.7
Chief Executive Officer
. The Chief Executive Officer shall, subject to the direction of the Board of Directors, have responsibility for the general management and control of the business and affairs of the Corporation and shall perform all duties and have all powers which are commonly incident to the office of Chief Executive Officer or which the Board of Directors may from time to time prescribe. The Chief Executive Officer shall, in the Chairman of the Board’s absence or because of the Chairman of the Board’s inability to act, perform all duties of the Chairman of the Board and preside at all meetings of the Board of Directors and of stockholders. The Chief Executive Officer shall have the power to act as the President of the Corporation for any action that is required to be performed by a president of a corporation
under the Delaware General Corporation Law, the Certificate of Incorporation or other applicable law. The Chief Executive Officer shall have power to sign stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and direction of all of the other officers, employees and agents of the Corporation, other than the Chairman of the Board. If the Board of Directors appoints more than one Chief Executive Officer, the Board may prescribe such duties, responsibilities, and powers to each Chief Executive Officer as it determines appropriate. In the absence of a prescription by the Board otherwise, each reference to the Chief Executive Officer in these Bylaws or in any other corporate authorization shall mean each and either such person, acting individually.
3
.8
Presidents
. Any President shall perform such duties and possess such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer, the President (or if there shall be more than one, the Presidents in the order determined by the Board of Directors), or any other person as determined by the Board of Directors, shall perform the duties of the Chief Executive Officer and when so performing shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.
3.
9
Vice Presidents
. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In the event of the absence, inability or refusal to act of the President, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors.
3.
10
Secretary and Assistant Secretaries
. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the Secretary, including, without limitation, the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to keep a record of the proceedings of all meetings of stockholders and the Board of Directors, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
Any
Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer, the President or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.
In
the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting.
3.
11
Chief Financial Officer
. Unless otherwise designated by the Board of Directors, the Chief Financial Officer shall be the Treasurer. The Chief Financial Officer shall perform such duties and shall have such powers as may from time to time be assigned to him by the Board of Directors or the Chief Executive Officer. In addition, the Chief Financial Officer shall perform such duties and have such powers as are incident to the office of chief financial officer, including without limitation, the duty and power to keep and be responsible for all funds and securities of the Corporation, to maintain the financial records of the Corporation, to deposit funds of the Corporation in depositories as authorized, to disburse such funds as authorized, to make proper accounts of such funds, and to render as required by the Board of Directors accounts of all such transactions and of the financial condition of the Corporation.
3.
12
Salaries
. Officers of the Corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors.
3.
13
Delegation of Authority
. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof. Any officer also may from time to time delegate his or her powers or duties to any other officers, agents, or employees, except as otherwise prescribed by the Board of Directors.
Article IV
CAPITAL STOCK
4.
1
Issuance of Stock
. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the Corporation or the whole or any part of any unissued balance of the authorized capital stock of the Corporation held in its treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors may determine.
4
.2
Certificates of Stock
. The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock of the Corporation represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law, by the Certificate of Incorporation and by the Board of Directors, certifying the number and class of shares owned by him or her in the Corporation. Each such certificate shall be signed by, or in the name of the Corporation by, the Chairman or Vice Chairman, if any, of the Board of Directors, or a President or a Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation. Any or all of the signatures on the certificate may be a facsimile.
Shares
of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws, applicable securities laws or any agreement among any number of shareholders or among such holders and the Corporation shall (i) in the case of stock that is certificated, have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction, and (ii) in the case that stock that is uncertificated, have such restrictions on transfer implemented in accordance with applicable law, rules and regulations.
4.
3
Transfers
. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of stock may be transferred on the books of the Corporation by the record holder of such stock or by his or her attorney lawfully constituted in writing and, if such stock is certificated, upon the surrender to the Corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or authenticity of signature as the Corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, the Certificate of Incorporation or these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
4
.4
Lost, Stolen or Destroyed Certificates
. The Corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the Board of Directors may require for the protection of the Corporation or any transfer agent or registrar.
4
.5
Record Date
. The Board of Directors may fix in advance a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders, or entitled to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, concession or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action to which such record date relates.
If
no
record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Article V
GENERAL PROVISIONS
5.
1
Fiscal Year
. The fiscal year of the Corporation shall be as fixed by the Board of Directors.
5
.2
Corporate Seal
. The corporate seal shall be in such form as shall be approved by the Board of Directors.
5
.3
Waiver of Notice
. Whenever any notice whatsoever is required to be given by law, the Certificate of Incorporation or these Bylaws, a waiver of such notice either in writing signed by the person entitled to such notice or such person’s duly authorized attorney, or by electronic transmission or any other method permitted under the Delaware General Corporation Law, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such notice.
5.
4
Actions with Respect to Securities of Other Corporations
. Except as the Board of Directors may otherwise designate, the Chief Executive Officer or President or any officer of the Corporation authorized by the Chief Executive Officer or President shall have the power to vote and otherwise act on behalf of the Corporation, in person or proxy, and may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact to this Corporation (with or without power of substitution) at any meeting of stockholders or shareholders (or with respect to any action of stockholders) of any other corporation or organization, the securities of which may be held by this Corporation and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of this Corporation’s ownership of securities in such other corporation or other organization.
5.
5
Evidence of Authority
. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
5.
6
Certificate of Incorporation
. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.
5.
7
Severability
. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.
5.
8
Pronouns
. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
5.
9
Notices
. Except as otherwise specifically provided herein or required by law or the Certificate of Incorporation, all notices required to be given to any stockholder, director, officer, employee or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, or by sending such notice by facsimile or other electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law, or by commercial courier service. Any such notice shall be addressed to such stockholder, director, officer, employee or agent at his or her last known address as the same appears on the books of the Corporation. The time when such notice shall be deemed to be given shall be the time such notice is received by such stockholder, director, officer, employee or agent, or by any person accepting such notice on behalf of such person, if delivered by hand, facsimile, other electronic transmission or commercial courier service, or the time such notice is dispatched, if delivered through the mails.
5.
10
Reliance Upon Books, Reports and Records
. Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation, including reports made to the Corporation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care.
5.
11
Time Periods
. In applying any provision of these Bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
5.
12
Facsimile Signatures
. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Article VI
AMENDMENTS
6.
1
By the Board of Directors
. Except as is otherwise set forth in these Bylaws, these Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present.
6.
2
By the Stockholders
. Except as otherwise set forth in these Bylaws, these Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the affirmative vote of the holders of at least a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, provided that if such action is taken at a special meeting of stockholders, such notice of such alteration, amendment, repeal or adoption of new Bylaws shall have been stated in the notice of such special meeting.
Article VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
7.
1
Right to Indemnification
. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (“proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, or as a controlling person of a partnership,
joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director or officer, or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said Law permitted the Corporation to provide prior to such amendment) against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in Section 7.2 of this Article VII, the Corporation shall indemnify any such person seeking indemnity in connection with a proceeding (or part thereof) initiated by such person only if (a) such indemnification is expressly required to be made by law or the Certificate of Incorporation, (b) the proceeding (or part thereof) was authorized by the Board of Directors of the Corporation, (c) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Delaware General Corporation Law, or (d) the proceeding (or part thereof) is brought to establish or enforce a right to indemnification under an indemnity agreement or any other statute or law or otherwise as required under Section 145 of the Delaware General Corporation Law. The rights hereunder shall be contract rights and shall include the right to be paid expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, unless the Delaware General Corporation Law then so prohibits, the payment of such expenses incurred by a director or officer of the Corporation in his or her capacity as a director or officer (and not in any other capacity in which service was or is tendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it should be determined ultimately that such director or officer is not entitled to be indemnified under this Section or otherwise.
7.
2
Right of Claimant to Bring Suit
. If a claim under Section 7.1 is not paid in full by the Corporation within 90 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if such suit is not frivolous or brought in bad faith, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to this Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct.
7
.3
Indemnification of Employees and Agents
. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and to the advancement of related expenses, to any employee or agent of the Corporation to the fullest extent of the provisions of this Article with respect to the indemnification of and advancement of expenses to directors and officers of the Corporation.
7.
4
Non-Exclusivity of Rights
. The rights conferred on any person in Sections 7.1 and 7.2 shall not be exclusive of any other right which such persons may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
7
.5
Indemnification Contracts
. The Board of Directors is authorized to enter into a contract with any director, officer, employee or agent of the Corporation, or any person serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing for indemnification rights equivalent to or, if the Board of Directors so determines, greater than, those provided for in this Article VII.
7.
6
Insurance
. The Corporation shall maintain insurance to the extent reasonably available, at its expense, to protect itself and any such director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
7
.7
Effect of Amendment
. Any amendment, repeal or modification of any provision of this Article VII by the stockholders and the directors of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such amendment, repeal or modification.
SALESFORCE.COM, INC.
AMENDED AND RESTATED 2013 EQUITY INCENTIVE PLAN
1.
Purposes of the Plan
. The purposes of this Plan
are:
•
to attract and retain the best available personnel for positions of substantial
responsibility,
•
to provide incentive to Employees, Directors and Consultants,
and
•
to promote the success of the Company’s
business.
The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Bonus Awards, Performance Units and Performance Shares.
2.
Definitions
. As used herein, the following definitions will
apply:
(a)
“
Administrator
”
means
the
Board
or
any
of
its
Committees
as
will
be
administering
the
Plan,
in
accordance
with
Section
4
of
the
Plan.
(b)
“
Affiliate
”
means
any
corporation
or
any
other
entity
(including,
but
not
limited
to,
partnerships
and
joint
ventures)
controlling,
controlled by, or under common control with the
Company
(c)
“
Applicable Laws
”
means
the
requirements
relating
to
the
administration
of
equity-based
awards
under
U.S.
state
corporate
laws,
U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable
laws
of
any
foreign
country
or
jurisdiction
where
Awards
are,
or
will
be,
granted
under
the
Plan.
(d)
“
Award
”
means,
individually
or
collectively,
a
grant
under
the
Plan
of
Options,
Stock
Appreciation
Rights,
Restricted
Stock,
Restricted Stock Units, Performance Bonus Awards, Performance Units or Performance
Shares.
(e)
“
Award Agreemen
t”
means
the
written
or
electronic
agreement
setting
forth
the
terms
and
provisions
applicable
to
each
Award
granted under the Plan. The Award Agreement is subject to the terms and conditions of the
Plan.
(f)
“
Award Transfer Program
” means any program instituted by the Administrator that would permit Participants the opportunity to transfer for value any outstanding Awards to a financial institution or other person or entity approved by the Administrator. A transfer for “value” shall not be deemed to occur under this Plan where an Award is transferred by a Participant for bona fide estate planning purposes to a trust or other testamentary vehicle approved by the
Administrator.
(g)
“
Board
” means the Board of Directors of the
Company.
(h)
“
Cause
” means, unless otherwise defined by the Participant’s Award Agreement or contract of employment or service, any of the following:
(i)
the
Participant’s
theft,
dishonesty,
or
falsification
of
any
Participating
Company
documents
or
records;
(ii)
the
Participant’s
improper use or disclosure of a Participating Company’s confidential or proprietary information; (iii) any action by the Participant which has a detrimental effect
on
a
Participating
Company’s
reputation
or
business;
(iv)
the
Participant’s
failure
or
inability
to
perform
any
reasonable
assigned
duties
after written notice from a Participating Company of, and a reasonable opportunity to cure, such failure or inability; (v) any material breach by the Participant of any employment or service agreement between the Participant and a Participating Company, which breach is not cured pursuant to the
terms
of
such
agreement;
or
(vi)
the
Participant’s
conviction
(including
any
plea
of
guilty
or
nolo
contendere)
of
any
criminal
act
which
impairs the Participant’s ability to perform his or her duties with a Participating
Company.
(i)
“
Change in Contro
l” means the occurrence of any of the following
events:
(i)
A change in the ownership of the Company which occurs on the date that any one person, or more than one person acting as a group (“
Person
”), acquires ownership of the stock of the Company that, together with the stock held by such Person, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that for purposes of this clause (i), (1) the acquisition of beneficial ownership of additional stock by any one Person who is considered to beneficially own more than fifty percent (50%) of the total voting power
of
the
stock
of
the
Company
will
not
be
considered
a
Change
in
Control;
and
(2)
if
the
stockholders
of
the
Company
immediately
before
such change in ownership continue to retain immediately after the change in ownership, in substantially the same proportions as their ownership of shares
of
the
Company’s
voting
stock
immediately
prior
to
the
change
in
ownership,
direct
or
indirect
beneficial
ownership
of
fifty
percent
(50%)
or more of the total voting power of the stock of the Company, such event shall not be considered a Change in Control under this clause (i). For this purpose,
indirect
beneficial
ownership
shall
include,
without
limitation,
an
interest
resulting
from
ownership
of
the
voting
securities
of
one
or
more corporations or other business entities which own the Company, as the case may be, either directly or through one or more subsidiary corporations or other business entities;
or
(ii)
A change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during
any
twelve
(12)
month
period
by
Directors
whose
appointment
or
election
is
not
endorsed
by
a
majority
of
the
members
of
the
Board
prior
to the date of the appointment or election. For purposes of this subsection (ii), if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change in Control;
or
(iii)
A change in the ownership of a substantial portion of the Company’s assets which occurs on the date that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Company
that
have
a
total
gross
fair
market
value
equal
to
or
more
than
fifty
percent
(50%)
of
the
total
gross
fair
market
value
of
all
of
the
assets
of the Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this subsection (iii), the following will not constitute a change in the ownership of a substantial portion of the Company’s assets: (A) a transfer to an entity that is controlled by the Company’s stockholders immediately after the transfer, or (B) a transfer of assets by the Company to: (1) a stockholder of the Company (immediately
before
the
asset
transfer)
in
exchange
for
or
with
respect
to
the
Company’s
stock,
(2)
an
entity,
fifty
percent
(50%)
or
more
of
the
total value
or
voting
power
of
which
is
owned,
directly
or
indirectly,
by
the
Company,
(3)
a
Person,
that
owns,
directly
or
indirectly,
fifty
percent
(50%)
or more
of
the
total
value
or
voting
power
of
all
the
outstanding
stock
of
the
Company,
or
(4)
an
entity,
at
least
fifty
percent
(50%)
of
the
total
value
or voting power of which is owned, directly or indirectly, by a Person described in this subsection (iii)(B)(3).
For purposes of this subsection (iii), gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such
assets.
For purposes of t
his definition, Persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.
Notwithstanding the foregoing, a transaction will not be deemed a Change in Control unless the transaction qualifies as a change in control event within the meaning of Section 409A.
Further and for the avoidance of doubt, a transaction will not constitute a Change in Control if: (i) its sole purpose is to change the jurisdiction of the Company’s incorporation, or (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(
j
)
“
Code
” means the Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or regulation thereunder shall include such section or regulation, any valid regulation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or
regulation.
(
k
)
“
Committee
” means
a
committee
of
Directors
or
of
other
individuals
satisfying
Applicable
Laws
appointed
by
the
Board,
or
a
duly authorized committee of the Board, in accordance with Section 4
hereof.
(
l
)
“
Common Stock
” means the common stock of the
Company.
(
m
)
“
Company
” means salesforce.com, inc., a Delaware corporation, or any successor
thereto.
(
n
)
“
Consultan
t” means
any
natural
person,
including
an
advisor,
engaged
by
the
Company
or
a
Parent
or
Subsidiary
or
other
Affiliate
to render services to such
entity.
(
o
)
“
Director
” means a member of the
Board.
(
p
)
“
Disability
” means total and permanent disability as defined in Section 22(e)(3) of the Code, provided that in the case of Awards other than
Incentive
Stock
Options,
the
Administrator
in
its
discretion
may
determine
whether
a
permanent
and
total
disability
exists
in
accordance
with uniform and non-discriminatory standards adopted by the Administrator from time to
time.
(
q
)
“
Dividend
Equivalen
t”
means
a
credit,
made
at
the
discretion
of
the
Administrator
or
as
otherwise
provided
by
the
Plan,
to
the
account
of a Participant in an amount equal to the cash dividends paid on one Share for each Share represented by an Award held by such
Participant.
(
r
)
“
Employee
” means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary or other Affiliate of
the
Company.
Neither
service
as
a
Director
nor
payment
of
a
director’s
fee
by
the
Company
will
be
sufficient
to
constitute
“employment”
by
the Company or an Affiliate. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee and the effective date of such individual’s employment or termination of employment, as the case may be. For purposes of
an
individual’s
rights,
if
any,
under
the
Plan
as
of
the
time
of
the
Company’s
determination,
all
such
determinations
by
the
Company
shall
be
final, binding and conclusive, notwithstanding that the Company or any court of law or governmental agency subsequently makes a contrary determination.
(
s
)
“
Exchange Ac
t” means the Securities Exchange Act of 1934, as
amended.
(
t
)
“
Exchange Program
”
means
a
program
under
which
(i)
outstanding
awards
are
surrendered
or
cancelled
in
exchange
for
awards
of
the
same type
(which
may
have
higher
or
lower
exercise
prices
and
different
terms),
awards
of
a
different
type,
and/or
cash,
(ii)
Participants would have the opportunity to participate in an Award Transfer Program,
and/or
(iii)
the
exercise
price
of
an
outstanding
Award
is
reduced.
The
Administrator
will
determine
the
terms
and
conditions
of
any
Exchange Program in its sole
discretion.
(
u
)
“
Fair
Market Value
” means, as of any date, the value of Common Stock determined as
follows:
(i)
If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the New York Stock Exchange, NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market of The NASDAQ Stock Market,
its
Fair
Market
Value
will
be
the
closing
sales
price
for
such
stock
(or
the
mean
of
the
closing
bid
and
asked
prices
for
the
Common
Stock,
if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable. If the relevant date does not fall on a day on which the Common Stock has traded on such securities exchange
or
market
system,
the
date
on
which
the
Fair
Market
Value
shall
be
established
shall
be
the
last
day
on
which
the
Common
Stock
was
so traded prior to the relevant date, or such other appropriate day as shall be determined by the Administrator, in its
discretion;
(ii)
If
the
Common
Stock
is
regularly
quoted
by
a
recognized
securities
dealer
but
selling
prices
are
not
reported,
the
Fair
Market
Value
of a
Share
will
be
the
mean
between
the
high
bid
and
low
asked
prices
for
the
Common
Stock
on
the
day
of
determination
(or,
if
no
bids
and
asks
were reported on that date, as applicable, on the last trading date such bids and asks were reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
or
(iii)
In
the
absence
of
an
established
market
for
the
Common
Stock,
the
Fair
Market
Value
will
be
determined
in
good
faith
by
the Administrator.
(
v
)
“
Fiscal Year
” means the fiscal year of the
Company.
(
w
)
“
Fiscal Quarter
”
means
a
fiscal
quarter
within
a
Fiscal
Year
of
the
Company.
(
x
)
“
Incentive Stock Option
”
means
an
Option
that
by
its
terms
qualifies
and
is
otherwise
intended
to
qualify
as
an
incentive
stock
option within the meaning of Section 422 of the Code and the regulations promulgated
thereunder.
(
y
)
“
Inside Director
” means a Director who is an
Employee.
(
z
)
“
Nonstatutory Stock Option
” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.
(aa) “
Officer
” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
(bb) “
Option
” means a stock option granted pursuant to the Plan.
(cc) “
Outside Director
” means a Director who is not an Employee.
(dd) “
Paren
t” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.
(ee) “
Participan
t” means the holder of an outstanding Award.
(ff) “
Participating Company
” means the Company or any Affiliate.
(gg) “
Performance Bonus Award
” means a cash award set forth in Section 12.
(hh) “
Performance Goals
” means the goal(s) (or combined goal(s)) determined by the Administrator (in its discretion) to be applicable to a Participant with respect to an Award. As determined by the Administrator, the Performance Goals applicable to an Award may provide for a targeted level or levels of achievement using one or more of the following measures:
(i)
revenue;
(ii)
gross
margin;
(iii)
operating
margin;
(iv)
operating
income;
(v)
operating profit or net operating
profit;
(vi)
pre-tax
profit;
(vii)
earnings
(which
may
include
earnings
before
interest,
taxes
and
depreciation,
earnings
before
taxes
and
net
earnings);
(viii)
net
income;
(ix)
cash flow (including operating cash flow or free cash
flow);
(x)
expenses;
(xi)
the market price of the Common
Stock;
(xii)
earnings per
share;
(xiii)
return on stockholder
equity;
(xiv)
return on
capital;
(xv)
return on assets or net
assets;
(xvi)
return on
equity;
(xvii)
return on
investment;
(xviii)
economic value
added;
(xix)
number of
customers;
(xx)
stock
price;
(xxi)
growth
in
stockholder
value
relative
to
the
moving
average
on
the
S&P
500
Index
or
another
index;
(xxii)
market share;
(xxiii)
contract awards or
backlog;
(xxiv)
overhead or other expense
reduction;
(xxv)
credit
rating;
(xxvi)
objective customer
indicators;
(xxvii)
new product invention or
innovation;
(xxviii)
attainment of research and development
milestones;
(xxix)
improvements in productivity;
and
(xxx)
any other measure or metric the Administrator deems
appropriate.
The Performance Goals may differ from Participant to Participant and from Award to Award. Any criteria used may be measured, as applicable,
(i)
in
absolute
terms,
(ii)
in
combination
with
another
Performance
Goal
or
Goals
(for
example,
but
not
by
way
of
limitation,
as
a
ratio
or
matrix),
(iii)
in relative terms (including, but not limited to, results for other periods, passage of time and/or against another company or companies or an index or indices), (iv) on a per-share or per-capita basis, (v) against the performance of the Company as a whole or a segment of the Company (including, but
not
limited
to,
any
combination
of
the
Company
and
any
subsidiary,
division,
joint
venture,
Affiliate
and/or
other
segment)
and/or
(vi)
on
a
pre-
tax
or after-tax basis. The Administrator shall determine whether any significant element(s) or item(s) shall be included in or excluded from the calculation of any Performance Goal with respect to any Participants (for example, but not by way of limitation, the effect of mergers and acquisitions).
As
determined
in
the
discretion
of
the
Administrator,
achievement
of
Performance
Goals
for
a
particular
Award
may
be
calculated
in accordance with the Company’s financial statements, prepared in accordance with generally accepted accounting principles (“GAAP”), or on a basis other than GAAP, including as adjusted for certain costs, expenses, gains and losses to provide non-GAAP measures of operating
results.
(ii)
“
Performance Period
”
means
the
time
period
determined
by
the
Administrator
in
its
sole
discretion
during
which
the
performance objectives must be
met.
(jj) “
Performance Share
” means an Award denominated in Shares which may be earned in whole or in part upon attainment of performance goals or other vesting criteria as the Administrator may determine pursuant to Section 11.
(kk) “
Performance Uni
t” means an Award which may be earned in whole or in part upon attainment of performance goals or other vesting criteria as the Administrator may determine and which may be settled for cash, Shares or other securities or a combination of the foregoing pursuant to Section 11.
(ll) “
Plan
” means this Amended and Restated 2013 Equity Incentive Plan.
(mm) “
Restricted Stock
” means Shares issued pursuant to a Restricted Stock award under Section 8 of the Plan, or issued pursuant to the early exercise of an Option.
(nn) “
Restricted Stock Uni
t” means a bookkeeping entry representing an amount equal to the Fair Market Value of one Share, granted pursuant to Section 9. Each Restricted Stock Unit represents an unfunded and unsecured obligation of the Company.
(oo) “
Rule 16b-3
” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan.
(pp) “
Section 16(b)
” means Section 16(b) of the Exchange Act.
(qq) “
Section 409A
” means Section 409A of the Code, and any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder, as each may be amended from time to time.
(rr) “
Securities Ac
t” means the Securities Act of 1933, as amended.
(ss) “
Service Provider
” means an Employee, Director or Consultant. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be a Service Provider and the effective date of such individual’s status as, or cessation of status as, a Service Provider. For purposes of an individual’s rights, if any, under the Plan as of the time of the Company’s determination, all such determinations by the Company shall be final, binding and conclusive, notwithstanding that the Company or any court of law or governmental agency subsequently makes a contrary determination.
(tt) “
Share
” means a share of the Common Stock, as adjusted in accordance with Section 15 of the Plan.
(uu) “
Stock Appreciation Righ
t” or “
SAR
” means an Award, granted alone or in connection with an Option, that pursuant to Section 10 is designated as a Stock Appreciation Right.
(vv) “
Subsidiary
” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.
(ww) “
Tax Obligations
” means tax and social insurance liability obligations and requirements in connection with the Awards, including, without limitation, (a) all federal, state, and local taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation) that are required to be withheld by the Company or the employing Affiliate, (b) the Participant’s and, to the extent required by the Company (or Affiliate), the Company’s (or Affiliate’s) fringe benefit tax liability, if any, associated with the grant, vesting, or exercise of an Award or sale of Shares, and (c) any other Company (or Affiliate) taxes the responsibility for which the Participant has, or has agreed to bear, with respect to such Award (or exercise thereof or issuance of Shares thereunder).
3
.
Stock Subject to the
Plan
.
(a)
Stock
Subject
to
the
Plan
.
Subject
to
the
provisions
of
Section
15
of
the
Plan,
the
maximum
aggregate
number
of
Shares
that
may
be
issued under the Plan is 197,500,000 plus (i) any Shares that, as of the date stockholders initially approve the Plan, have been reserved but not issued pursuant
to
any
awards
granted
under
the
2004
Equity
Incentive
Plan
(the
“
2004 Plan
”)
and/or
the
2004
Outside
Directors
Stock
Plan
(the
“
Director Plan
” and, together with the 2004 Plan, the “
Prior Plans
” and each, a “
Prior Plan
”) and are not subject to any awards granted thereunder, with the Shares subject to the awards referenced in this clause (i) credited to the aggregate number of Shares that may be awarded under the Plan as one (1) Share for every one (1) Share subject thereto, and (ii) any Shares subject to
stock options or other awards granted under the Prior Plans that, after the date stockholders initially approve the Plan, expire or otherwise terminate without having been vested or exercised in full, Shares issued pursuant to awards granted under the Prior Plans that, after the date stockholders initially
approve
the
Plan,
are
forfeited
to
or
repurchased
by
the
Company
due
to
failure
to
vest,
and
Shares
subject
to
awards
granted
under
a
Prior Plan that, after the date stockholders initially approve the Plan, would have, but for the termination of the applicable Prior Plan, again become available
for
future
use
under
the
terms
of
such
Prior
Plan
(as
applicable),
with
the
Shares
subject
to
those
of
the
awards
referenced
in
this
clause (ii)
that
are
stock
options
and/or
stock
appreciation
rights
credited
to
the
aggregate
number
of
Shares
that
may
be
awarded
under
the
Plan
as
one (1) Share for every one (1) Share subject thereto, and the Shares subject to those of the awards referenced in this clause (ii) that are awards other than stock options or stock appreciation rights credited to the aggregate number of Shares that may be awarded under the Plan as two and fifteen-
one
hundredths
(2.15)
Shares
for
every
one
(1)
Share
subject
thereto.
Notwithstanding
the
foregoing,
the
maximum
number
of
Shares
to
be
added
to the
Plan
pursuant
to
clause
(i)
of
the
prior
sentence
shall
be
equal
to
23,800,000
Shares
and
the
maximum
number
of
Shares
to
be
added
to
the
Plan pursuant
to
clause
(ii)
of
the
prior
sentence
shall
be
equal
to
54,332,000
Shares.
The
Shares
may
be
authorized,
but
unissued,
or
reacquired
Common Stock.
Any
Shares
subject
to
Awards
of
Options
or
Stock
Appreciation
Rights
shall
be
counted
against
the
numerical
limits
of
this
Section
3
as
one (1) Share for every one (1) Share subject thereto. Any Shares subject to Awards granted under the Plan other than Options or Stock Appreciation Rights shall be counted against the numerical limits of this Section 3 as two and fifteen-one hundredths (2.15) Shares for every one (1) Share subject thereto and shall be counted as two and fifteen-one hundredths (2.15) Shares for every one (1) Share returned to or deemed not issued from the Plan pursuant to this Section 3. The Shares may be authorized, but unissued, or reacquired Common Stock.
(b)
Lapsed Awards
. If an Award expires or becomes unexercisable without having been exercised in full, is surrendered pursuant to an Exchange Program, or, with respect to Restricted Stock, Restricted Stock Units, Performance Units or Performance Shares, is forfeited to or repurchased by the Company due to failure to vest, the unpurchased Shares (or for Awards other than Options or Stock Appreciation Rights the forfeited or repurchased Shares), which were subject thereto will become available for future grant or sale under the Plan (unless the Plan has terminated). Upon exercise of a Stock Appreciation Right settled in Shares, the gross number of Shares covered by the portion of the Award so exercised, whether or not actually issued pursuant to such exercise will cease to be available under the Plan. Shares that have actually been issued under the Plan under any Award will not be returned to the Plan and will not become available for future distribution under the Plan; provided, however, that if Shares issued pursuant to Awards of Restricted Stock, Restricted Stock Units, Performance Shares or Performance Units are repurchased by the Company or are forfeited to the Company due to failure to vest, such Shares will become available for future grant under the Plan. Notwithstanding the foregoing, Shares used to pay the exercise price or purchase of an Award other than an Option or SAR or to satisfy the tax withholding obligations related to an Award other than an Option or SAR will become available for future grant and/or sale under the Plan; Shares
used
to
pay
the
exercise
price
or
purchase
of
an
Option
or
SAR
or
to
satisfy
the
tax
withholding
obligations
related
to
an
Option
or
SAR
will not become available for future grant or sale under the Plan. To the extent an Award under the Plan is paid out in cash rather than Shares, whether pursuant
to
a
Performance
Bonus
Award
or
other
Award,
such
cash
payment
will
not
result
in
reducing
the
number
of
Shares
available
for
issuance under the Plan. Notwithstanding anything in the Plan or any Award Agreement to the contrary, Shares actually issued pursuant to Awards transferred under any Award Transfer Program will not be again available for grant under the Plan. Notwithstanding the foregoing and, subject to adjustment
as
provided
in
Section
15,
the
maximum
number
of
Shares
that
may
be
issued
upon
the
exercise
of
Incentive
Stock
Options
will
equal
the aggregate Share number stated in Section 3(a), plus, to the extent allowable under Section 422 of the Code and the Treasury Regulations promulgated thereunder, any Shares that become available for issuance under the Plan pursuant to this Section
3(b).
(
c
)
Share
Reserve
.
The
Company,
during
the
term
of
this
Plan,
will
at
all
times
reserve
and
keep
available
such
number
of
Shares
as
will
be sufficient to satisfy the requirements of the
Plan.
4
.
Administration of the
Plan
.
(a)
Procedure
.
(i)
Multiple
Administrative
Bodies
.
Different
Committees
with
respect
to
different
groups
of
Service
Providers
may
administer
the
Plan.
(ii)
Rule 16b-3
. To
the
extent
desirable
to
qualify
transactions
hereunder
as
exempt
under
Rule
16b-3,
the
transactions
contemplated
hereunder will be structured
to satisfy the requirements for exemption under Rule
16b-3.
(iii)
Other Administration
. Other than as provided above, the Plan will be administered by (A) the Board or (B) a Committee, which committee
will
be
constituted
to
satisfy
Applicable
Laws.
The
Administrator
may,
in
its
discretion
and
to
the
extent
permitted
by
Applicable
Laws, delegate
to
a
Committee,
including
but
not
limited
to,
comprised
of
one
or
more
Officers,
the
authority
to
grant
one
or
more
Awards,
without
further approval of the Administrator, on such terms and conditions as the Administrator, in its discretion, deems appropriate. To the extent of any delegation
by
the
Administrator,
references
to
the
Administrator
in
the
Plan
and
any
Award
Agreement
shall
be
deemed
also
to
include
reference
to the applicable
delegate(s).
(iv)
Delegation
of
Authority
for
Day-to-Day
Administration;
Authority
of
Officers
.
Except
to
the
extent
prohibited
by
Applicable
Law, the Administrator may delegate to one or more individuals the
day-to-day
administration of the Plan and any of the functions assigned to it in this Plan.
Such
delegation
may
be
revoked
at
any
time.
Any
Officer
shall
have
the
authority
to
act
on
behalf
of
the
Company
with
respect
to
any
matter, right, obligation, determination or election which is the responsibility of or which is allocated to the Company herein, provided the Officer has apparent authority with respect to such matter, right, obligation, determination or
election.
(b)
Powers
of
the
Administrator
.
Subject
to
the
provisions
of
the
Plan,
and
in
the
case
of
a
Committee,
subject
to
the
specific
duties
delegated by the Board to such Committee, the Administrator will have the authority, in its
discretion
:
(i)
to determine the Fair Market
Value;
(ii)
to select the Service Providers to whom Awards may be granted
hereunder;
(iii)
to determine the number of Shares to be covered by each Award granted
hereunder;
(iv)
to approve forms of Award Agreements for use under the
Plan;
(v)
to
determine
the
terms
and
conditions,
not
inconsistent
with
the
terms
of
the
Plan,
of
any
Award
granted
hereunder.
Such
terms
and conditions include, but are not limited to, the exercise price, the method of payment for Shares purchased under any Award, the method for satisfaction
of
any
tax
withholding
obligation
arising
in
connection
with
an
Award,
the
time
or
times
when
Awards
may
be
exercised
(which
may
be based on performance criteria), subject to any minimum vesting requirements set forth in the Plan, any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Award or the Shares relating thereto, based in each case on such factors as the Administrator will
determine;
(vi)
to determine the terms and conditions of any Exchange Program and/or Award Transfer Program and with the consent of the Company’s
stockholders,
to
institute
an
Exchange
Program
and/or
Award
Transfer
Program
(provided
that
the
Administrator
may
not
institute
an Exchange
Program
and/or
Award
Transfer
Program
without
first
receiving
the
consent
of
the
Company’s
stockholders);
(vii)
to construe and interpret the terms of the Plan and Awards granted pursuant to the
Plan;
(viii)
to
prescribe,
amend
and
rescind
rules
and
regulations
relating
to
the
Plan,
including
rules
and
regulations
relating
to
sub-plans
established
for
the
purpose
of
satisfying
applicable
foreign
laws
and/or
for
qualifying
for
favorable
tax
treatment
under
applicable
foreign
laws;
(ix)
to
modify
or
amend
each
Award
(subject
to
Section
21
of
the
Plan),
including
but
not
limited
to
the
discretionary
authority
to
extend the post-termination exercisability period of Awards and to extend the maximum term of an Option (subject to Section 7(b) of the Plan regarding Incentive Stock
Options
(x)
to
allow
Participants
to
satisfy
withholding
tax
obligations
in
such
manner
as
prescribed
in
Section
17
of
the
Plan;
(xi)
to
authorize
any
person
to
execute
on
behalf
of
the
Company
any
instrument
required
to
effect
the
grant
of
an
Award
previously granted by the Administrator pursuant to such procedures as the Administrator may
determine;
(xii)
to
allow
a
Participant,
in
compliance
with
all
Applicable
Laws
including,
but
not
limited
to,
Section
409A,
to
defer
the
receipt
of
the payment of cash or the delivery of Shares that would otherwise be due to such Participant under an
Award;
(xiii)
to
determine
whether
Awards
will
be
settled
in
Shares,
cash
or
in
any
combination
thereof;
(xiv)
to impose such restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any resales by a Participant
or
other
subsequent
transfers
by
the
Participant
of
any
Shares
issued
as
a
result
of
or
under
an
Award,
including
without
limitation,
(A) restrictions
under
an
insider
trading
policy,
and
(B)
restrictions
as
to
the
use
of
a
specified
brokerage
firm
for
such
resales
or
other
transfers;
(xv)
to require that the Participant’s rights, payments and benefits with respect to an Award (including amounts received upon the settlement or exercise of an Award) shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain specified events,
in
addition
to
any
otherwise
applicable
vesting
or
performance
conditions
of
an
Award,
as
may
be
specified
in
an
Award
Agreement
at
the time of the Award, or later if (A) Applicable Laws require the Company to adopt a policy requiring such reduction, cancellation, forfeiture or recoupment, or (B) pursuant to an amendment of an outstanding Award;
and
(xvi)
to correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award Agreement and to make all other
determinations
and
take
such
other
actions
with
respect
to
the
Plan
or
any
Award
deemed
necessary
or
advisable
for
administering
the
Plan.
(c)
Effect
of
Administrator’s
Decision
.
The
Administrator’s
decisions,
determinations
and
interpretations
will
be
final
and
binding
on
all Participants
and
any
other
holders
of
Awards
and
shall
be
given
the
maximum
deference
permitted
by
law.
5
.
Eligibility
. Nonstatutory Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares and Performance
Units
may
be
granted
to
Service
Providers.
Performance
Bonus
Awards
may
be
granted
only
to
Employees.
Incentive
Stock
Options may be granted only to Employees of the Company or Parent or Subsidiary of the
Company.
6
.
Limitations
.
(a)
Incentive Stock Options
. Each Option will be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive
Stock
Options
are
exercisable
for
the
first
time
by
the
Participant
during
any
calendar
year
(under
all
plans
of
the
Company
and
any
Parent or Subsidiary) exceeds one hundred thousand dollars ($100,000), such Options will be treated as Nonstatutory Stock Options. If the Code is amended to provide for a different limitation from that set forth in this Section, such different limitation shall be deemed incorporated herein effective as of the date and with respect to such Options as required or permitted by such amendment to the Code. Further, if for any reason an Option (or portion thereof) designated as an Incentive Stock Option shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option (or portion thereof) shall be regarded as a Nonstatutory Stock Option granted under the Plan. For purposes of this Section
6(a),
Incentive
Stock
Options
will
be
taken
into
account
in
the
order
in
which
they
were
granted.
The
Fair
Market
Value
of
the
Shares
will
be determined as of the time the Option with respect to such Shares is
granted.
(b)
Employee
Award
Limitations
.
The
following
limitations
shall
apply
to
Awards
under
the
Plan:
subject
to
adjustment
as
provided
in
Section 15,
during
any
Fiscal
Year,
no
Employee
will
be
granted:
(i)
Options and/or SARs covering more than a total of 20,000,000 Shares; provided, however, that in connection with his or her initial employment,
an
Employee
may
be
granted
Options
and/or
SARs
covering
up
to
a
total
of
8,000,000
additional
Shares
in
the
Fiscal
Year
in
which
his or her service as an Employee first
commences;
(ii)
Restricted
Stock
and/or
Restricted
Stock
Units
and/or
Performance
Shares
covering
more
than
10,000,000
Shares;
provided,
however, that in connection with his or her initial employment, an Employee may be granted Restricted Stock, Restricted Stock Units and/or Performance Shares
covering
up
to
a
total
of
4,000,000
additional
Shares
in
the
Fiscal
Year
in
which
his
or
her
service
as
an
Employee
first
commences;
(iii)
Performance
Units
having
an
initial
value
greater
than
$15,000,000;
provided,
however,
that
in
connection
with
his
or
her
initial employment, an Employee may be granted additional Performance Units in the Fiscal Year in which his or her service as an Employee first commences having an initial value no greater than $5,000,000;
and
(iv)
Performance
Bonus
Awards
that
could
result
in
such
Employee
receiving
more
than
$10,000,000
in
any
one
Fiscal
Year.
If
an
Award
is
cancelled
in
the
same
Fiscal
Year
in
which
it
was
granted
(other
than
in
connection
with
a
transaction
described
in Section 15(c)), the cancelled Award will be counted against the limits set forth in this subsection
(b).
(c)
Outside
Director
Award
Limitations
.
Subject
to
adjustment
as
provided
in
Section
15,
no
Outside
Director
may
be
granted,
in
any
Fiscal Year,
Awards
covering
more
than
60,000
Shares.
Any
Awards
granted
to
an
individual
while
he
or
she
was
an
Employee,
or
while
he
or
she
was
a Consultant but not an Outside Director, shall not count for purposes of this
limitation.
(d)
Minimum Vesting
. Notwithstanding anything in the Plan to the contrary, equity-based Awards granted under the Plan may not become exercisable,
vest
or
be
settled,
in
whole
or
in
part,
prior
to
the
one-year
anniversary
of
the
date
of
grant,
except
that
the
Administrator
may
provide that
Awards
become
exercisable,
vest
or
settle
prior
to
such
date
in
the
event
of
the
Participant’s
death
or
Disability
or
in
the
event
of
a
transaction described in Section 15(c). Notwithstanding the foregoing, up to 5% of the sum of (a) the number of Shares available for future grants on the date the Board approved this amended and restated version of the Plan, plus (b) the increase in the number of Shares available for grant under the Plan (as described in Section 3(a)) approved by the Company’s stockholders at the 2019 annual meeting, may be issued pursuant to Awards subject to any, or no, vesting conditions, as the Administrator determines
appropriate.
7
.
Stock
Options
.
(a)
Grant
of
Option
.
Subject
to
the
terms
and
conditions
of
the
Plan,
Option
may
be
granted
to
Service
Providers
at
any
time
and
from
time
to time as will be determined by the Administrator, in its sole discretion. Subject to Section 6 and the other terms and conditions of the Plan, the Administrator
will
have
complete
discretion
to
determine
the
number
of
Shares
granted
to
any
Service
Provider.
Each
Option
shall
be
evidenced
by an
Award
Agreement
(which
may
be
in
electronic
form)
that
shall
specify
the
exercise
price,
the
expiration
date
of
the
Option,
the
number
of
Shares covered by the Option, any conditions to exercise the Option, and such other terms and conditions as the Administrator, in its discretion, shall determine.
(b)
Term of Option
. The term of each Option will be stated in the Award Agreement; provided, however, that the term will be no more than seven (7) years from the date of grant hereof. In the case of an Incentive Stock Option, the term will be seven (7) years from the date of grant or such
shorter
term
as
may
be
provided
in
the
Award
Agreement.
Moreover,
in
the
case
of
an
Incentive
Stock
Option
granted
to
a
Participant
who,
at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the total combined voting power of all classes
of
stock
of
the
Company
or
any
Parent
or
Subsidiary,
the
term
of
the
Incentive
Stock
Option
will
be
five
(5)
years
from
the
date
of
grant
or such shorter term as may be provided in the Award
Agreement
.
(c)
Option Exercise Price and
Consideration.
(i)
Exercise Price
.
The
per
share
exercise
price
for
the
Shares
to
be
issued
pursuant
to
exercise
of
an
Option
will
be
determined
by
the Administrator, subject to the
following:
(1)
In the case of an Incentive Stock
Option
(A)
granted
to
an
Employee
who,
at
the
time
the
Incentive
Stock
Option
is
granted,
owns
stock
representing
more
than
ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of
grant.
(B)
granted
to
any
Employee
other
than
an
Employee
described
in
paragraph
(A)
immediately
above,
the
per
Share
exercise price
will
be
no
less
than
one
hundred
percent
(100%)
of
the
Fair
Market
Value
per
Share
on
the
date
of
grant.
(2)
In
the
case
of
a
Nonstatutory
Stock
Option,
the
per
Share
exercise
price
will
be
no
less
than
one
hundred
percent
(100%)
of the Fair Market Value per Share on the date of
grant.
(3)
Notwithstanding
the
foregoing,
Options
may
be
granted
with
a
per
Share
exercise
price
of
less
than
one
hundred
percent (100%)
of
the
Fair
Market
Value
per
Share
on
the
date
of
grant
pursuant
to
a
transaction
described
in,
and
in
a
manner
consistent
with,
Section 424(a) of the
Code.
(ii)
Waiting
Period
and
Exercise
Dates
.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
at
the
time
an
Option
is granted,
the
Administrator
will
fix
the
period
within
which
the
Option
may
be
exercised
and
will
determine
any
conditions
that
must
be
satisfied before the Option may be
exercised.
(iii)
Form of Consideration
. The Administrator will determine the acceptable form of consideration for exercising an Option, including the
method
of
payment.
In
the
case
of
an
Incentive
Stock
Option,
the
Administrator
will
determine
the
acceptable
form
of
consideration
at
the
time of grant. Such consideration may consist entirely of, without limitation: (1) cash; (2) check; (3) promissory note, to the extent permitted by Applicable Laws, (4) other Shares, provided that such Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option will be exercised and provided that accepting such Shares will not result in any adverse accounting consequences to the Company, as the Administrator determines in its sole discretion; (5) consideration received by the Company under a cashless exercise program (whether through a broker, net exercise program or otherwise) implemented by the Company in connection with the Plan; (6) by reduction
in
the
amount
of
any
Company
liability
to
the
Participant,
(7)
by
net
exercise;
(8)
such
other
consideration
and
method
of
payment
for
the issuance of Shares to the extent permitted by Applicable Laws; or (9) any combination of the foregoing methods of
payment.
(
d
)
Exercise of
Option
.
(i)
Procedure
for
Exercise;
Rights
as
a
Stockholder
.
Any
Option
granted
hereunder
will
be
exercisable
according
to
the
terms
of
the
Plan and at such times and under such conditions as determined by the Administrator and set forth in the Award Agreement. An Option may not be exercised for a fraction of a
Share.
An Option will be deemed exercised when the Company receives: (i) a notice of exercise (in such form as the Administrator may specify from time to time) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised (together with applicable withholding taxes). Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends, Dividend Equivalents or any other rights as a stockholder will exist with respect to the Shares subject to an Option, notwithstanding the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend, Dividend Equivalent or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 15 of the Plan.
E
xercising an Option in any manner will decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.
(ii)
Termination
of
Relationship
as
a
Service
Provider
.
If
a
Participant
ceases
to
be
a
Service
Provider,
other
than
upon
the
Participant’s termination as the result of the Participant’s death or Disability or as a result of a termination for Cause, the Participant may exercise his or her Option
within
such
period
of
time
as
is
specified
in
the
Award
Agreement
to
the
extent
that
the
Option
is
vested
on
the
date
of
termination
(but
in no
event
later
than
the
expiration
of
the
term
of
such
Option
as
set
forth
in
the
Award
Agreement).
In
the
absence
of
a
specified
time
in
the
Award Agreement, the Option will remain exercisable for ninety (90) days following the Participant’s termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert to the
Plan.
(iii)
Disability
of
Participan
t.
If
a
Participant
ceases
to
be
a
Service
Provider
as
a
result
of
the
Participant’s
Disability,
the
Participant
may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent the Option is vested on the date of termination
(but
in
no
event
later
than
the
expiration
of
the
term
of
such
Option
as
set
forth
in
the
Award
Agreement).
In
the
absence
of
a
specified time
in
the
Award
Agreement,
the
Option
will
remain
exercisable
for
twelve
(12)
months
following
the
Participant’s
termination.
Unless
otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the
Plan.
(iv)
Death of Participan
t. If a Participant dies while a Service Provider, the Option may be exercised following the Participant’s death within such period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of death (but in no event may the option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement), by the personal representative of the Participant’s estate or by the person(s) to whom the Option is transferred pursuant to the Participant’s will or in accordance with the laws of descent and distribution. In the absence of a specified time in the Award Agreement, the Option will remain exercisable for twelve (12) months following
Participant’s
death.
Unless
otherwise
provided
by
the
Administrator,
if
at
the
time
of
death
Participant
is
not
vested
as
to
his
or
her
entire Option, the Shares covered by the unvested portion of the Option will immediately revert to the Plan. If the Option is not so exercised within the time
specified
herein,
the
Option
will
terminate,
and
the
Shares
covered
by
such
Option
will
revert
to
the
Plan.
The
Participant’s
status
as
a
Service Provider shall be deemed to have terminated on account of death if the Participant dies within ninety (90) days (or such longer period of time as determined
by
the
Administrator,
in
its
discretion)
after
the
Participant’s
termination
as
a
Service
Provider.
(v)
Termination for Cause
. Notwithstanding any other provision of the Plan to the contrary, if the Participant’s status as a Service Provider
is
terminated
for
Cause,
the
Option
shall
terminate
and
cease
to
be
exercisable
immediately
upon
such
termination
as
a
Service
Provider.
(b)
Extension
if
Exercise
Prevented
by
Law
.
Notwithstanding
the
foregoing,
other
than
termination
of
Service
for
Cause,
if
the
exercise
of
an Option within the
applicable time periods set forth in Section 7(d) is prevented by the provisions of Section 26
7
below, the Option shall remain exercisable
until
ninety
(90)
days
(or
such
longer
period
of
time
as
determined
by
the
Administrator,
in
its
discretion)
after
the
date
the
Participant
is notified
by
the
Company
that
the
Option
is
exercisable,
but
in
no
event
later
than
the
expiration
of
the
term
of
such
Option
as
set
forth
in
the
Award Agreement.
(c)
Extension if Participant Subject to Section
16(b)
. Notwithstanding the foregoing, other than termination of Service for Cause, if a sale within
the
applicable
time
periods
set
forth
in
Section
7(d)
of
shares
acquired
upon
the
exercise
of
the
Option
would
subject
the
Participant
to
suit under
Section
16(b)
of
the
Exchange
Act,
the
Option
shall
remain
exercisable
until
the
earliest
to
occur
of
(i)
the
tenth
(10th)
day
following
the
date on
which
a
sale
of
such
shares
by
the
Participant
would
no
longer
be
subject
to
such
suit,
(ii)
the
expiration
of
the
term
of
such
Option
as
set
forth in the Award
Agreement.
8
.
Restricted Stock
.
(a)
Grant
of
Restricted
Stock
.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
the
Administrator,
at
any
time
and
from
time to
time,
may
grant
Shares
of
Restricted
Stock
to
Service
Providers
in
such
amounts
as
the
Administrator,
in
its
sole
discretion,
will
determine.
(b)
Restricted
Stock
Agreemen
t.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
each
Award
of
Restricted
Stock
will
be evidenced
by
an
Award
Agreement
(which
may
be
in
electronic
form)
that
will
specify
any
vesting
conditions,
the
number
of
Shares
granted,
and such other terms and conditions as the Administrator, in its sole discretion, will determine. Unless the Administrator determines otherwise, the Company as escrow agent will hold Shares of Restricted Stock until the restrictions on such Shares, if any, have
lapsed.
(c)
Transferability
.
Except
as
provided
in
this
Section
8,
Section
14
or
the
Award
Agreement,
Shares
of
Restricted
Stock
may
not
be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable vesting period (if
any).
(d)
Other
Restrictions
.
The
Administrator,
in
its
sole
discretion,
may
impose
such
other
restrictions
on
Shares
of
Restricted
Stock
as
it
may deem advisable or
appropriate.
(i)
General Restrictions
. Subject to Section 6 and the other terms and conditions of the Plan, the Administrator may set restrictions based
upon
continued
employment
or
service,
the
achievement
of
Performance
Goals
or
other
specific
performance
objectives
(Company-wide, departmental, divisional, business unit, or individual goals), applicable federal or state securities laws, or any other basis determined by the Administrator in its discretion.
(e)
Removal
of
Restrictions
.
Except
as
otherwise
provided
in
this
Section
8,
Shares
of
Restricted
Stock
covered
by
each
Restricted
Stock
grant made under the Plan will be released from escrow as soon as practicable after the last day of the vesting period or at such other time as the Administrator may determine. The Administrator, in its discretion, may establish procedures regarding the release of Shares from escrow and/or removal of legends, as necessary or appropriate to minimize administrative burdens on the
Company.
(f)
Legend
on
Certificates
.
The
Administrator,
in
its
discretion,
may
require
that
one
or
more
legends
be
placed
on
the
certificates
representing Restricted Stock to give appropriate notice of the applicable
restrictions.
(g)
Voting
Rights
.
During
the
vesting
period,
Service
Providers
holding
Shares
of
Restricted
Stock
granted
hereunder
may
exercise
full
voting rights with respect to those Shares, unless the Administrator determines
otherwise.
(h)
Dividends
and
Other
Distributions
.
During
the
vesting
period,
Participants
holding
Shares
of
Restricted
Stock
will
be
entitled
to
receive
all dividends and other distributions paid with respect to such Shares, unless the Administrator provides otherwise. Notwithstanding anything
herein
to the contrary, dividends or other distributions credited/payable in connection with Shares of Restricted Stock that are not yet vested will be subject to the same restrictions and risk of forfeiture as the underlying Award and will not be paid until the underlying Award
vests.
(i)
Return
of
Restricted
Stock
to
Company
.
On
the
date
set
forth
in
the
Award
Agreement,
the
Restricted
Stock
for
which
restrictions
have
not lapsed
will
revert
to
the
Company
and,
subject
to
Section
3,
again
will
become
available
for
grant
under
the
Plan.
9
.
Restricted Stock
Units
.
(a)
Gran
t.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
the
Administrator,
at
any
time
and
from
time
to
time,
may
grant Restricted
Stock
Units
to
Service
Providers
in
such
amounts
as
the
Administrator,
in
its
sole
discretion,
will
determine.
(b)
Award Agreemen
t. Subject to Section 6 and the other terms and conditions of the Plan, each Award of Restricted Stock Units will be evidenced
by
an
Award
Agreement
(which
may
be
in
electronic
form)
that
will
specify
any
vesting
conditions,
the
number
of
Restricted
Stock
Units granted, and such other terms and conditions as the Administrator, in its sole discretion, will
determine.
(c)
Vesting
Criteria
and
Other
Terms
.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
the
Administrator
will
set
vesting criteria
(if
any)
in
its
discretion,
which,
depending
on
the
extent
to
which
the
criteria
are
met,
will
determine
the
number
of
Restricted
Stock
Units that will be paid out to the
Participant.
(i)
General
Restrictions
.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
the
Administrator
may
set
vesting
criteria based upon continued employment or service, the achievement of Performance Goals or other specific performance objectives (Company-wide, departmental, divisional, business unit, or individual goals), applicable federal or state securities laws or any other basis determined by the Administrator in its discretion.
(d)
Earning
Restricted
Stock
Units
.
Upon
meeting
the
applicable
vesting
criteria,
the
Participant
will
be
entitled
to
receive
a
payout
as determined by the
Administrator.
(e)
Form
and
Timing
of
Paymen
t.
Payment
of
earned
Restricted
Stock
Units
will
be
made
as
soon
as
practicable
after
the
date(s)
determined
by the
Administrator
and
set
forth
in
the
Award
Agreement;
provided,
however,
that
the
timing
of
payment
shall
in
all
cases
comply
with
Section
409A to the extent applicable to the Award. The Administrator, in its sole discretion, may settle earned Restricted Stock Units in cash, Shares, or a combination of
both.
(f)
Cancellation
.
On
the
date
set
forth
in
the
Award
Agreement,
all
unearned
Restricted
Stock
Units
will
be
forfeited
to
the
Company
and, subject to Section 3, again will become available for grant under the
Plan.
(g)
Voting Rights, Dividend Equivalents and Distributions
. Participants shall have no voting rights with respect to Shares represented by Restricted Stock Units until the date of the issuance of such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly
authorized
transfer
agent
of
the
Company).
However,
the
Administrator,
in
its
discretion,
may
provide
in
the
Award
Agreement
evidencing
any Restricted Stock Unit Award that the Participant shall be entitled to
receive dividend Equivalents with respect to the payment of cash dividends on Shares having a record date prior to the date on which the Restricted Stock Units held by such Participant are settled or forfeited. Such Dividend Equivalents, if any, shall be accrued by crediting the Participant with additional whole Restricted Stock Units as of the date of payment of such cash dividends on Shares. The number of additional Restricted Stock Units (rounded to the nearest whole number) to be so credited shall be determined by dividing (a) the amount of cash dividends paid on such date with respect to the number of Shares represented by the Restricted Stock Units previously credited to the Participant by (b) the Fair Market Value per Share on such date. Such additional Restricted Stock Units shall be subject to the same terms and conditions, including but not limited to vesting conditions, and shall be settled in the same manner and at the same time as the Restricted Stock Units originally subject to the Restricted Stock Unit Award. For the avoidance of doubt, such additional Restricted Stock Units will not be paid prior to the time that the original Award vests. Settlement of Dividend Equivalents may be made in cash, Shares, or a combination thereof as determined by the Administrator. In the event of a dividend or distribution paid in Shares or any other adjustment made upon a change in the capital structure of the Company as described in Section 15 appropriate adjustments shall be made in the Participant’s Restricted Stock Unit Award so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than normal cash dividends) to which the Participant would be entitled by reason of the Shares issuable upon settlement of the Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same vesting conditions as are applicable to the Award.
10
.
Stock Appreciation
Rights
.
(a)
Grant
of
Stock
Appreciation
Rights
.
Subject
to
the
terms
and
conditions
of
the
Plan,
a
Stock
Appreciation
Right
may
be
granted
to
Service Providers
at
any
time
and
from
time
to
time
as
will
be
determined
by
the
Administrator,
in
its
sole
discretion.
(b)
Number
of
Shares
.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
the
Administrator
will
have
complete
discretion
to determine the number of Stock Appreciation Rights granted to any Service
Provider.
(c)
Exercise
Price
and
Other
Terms
.
The
per
share
exercise
price
for
the
Shares
to
be
issued
pursuant
to
exercise
of
a
Stock
Appreciation
Right will be determined by the Administrator and will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. Notwithstanding the foregoing, Stock Appreciation Rights may be granted with a per Share exercise price of less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code. Otherwise, the Administrator, subject to the provisions of the Plan, will have complete discretion to determine the terms and conditions of Stock Appreciation Rights granted under the Plan. Until Shares are issued in respect of a Stock Appreciation Right (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends, Dividend Equivalents or any other rights as a stockholder will exist with respect to the Shares subject to a Stock Appreciation
Right.
(d)
Stock
Appreciation
Right
Agreemen
t.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
each
Stock
Appreciation
Right grant will be evidenced by an Award Agreement (which may be in electronic form) that will specify the exercise price, the term of the Stock Appreciation
Right,
the
conditions
of
exercise,
and
such
other
terms
and
conditions
as
the
Administrator,
in
its
sole
discretion,
will
determine.
(e)
Expiration
of
Stock
Appreciation
Rights
.
A
Stock
Appreciation
Right
granted
under
the
Plan
will
expire
upon
the
date
determined
by
the Administrator,
in
its
sole
discretion,
and
set
forth
in
the
Award
Agreement.
Notwithstanding
the
foregoing,
the
rules
of
Section
7(b)
relating
to
the maximum
term
and
Sections
7(d),
7(e)
and
7(f)
relating
to
exercise
also
will
apply
to
Stock
Appreciation
Rights.
(f)
Payment
of
Stock
Appreciation
Right
Amoun
t.
Upon
exercise
of
a
Stock
Appreciation
Right,
a
Participant
will
be
entitled
to
receive payment from the Company in an amount determined by
multiplying:
(i)
The
difference
between
the
Fair
Market
Value
of
a
Share
on
the
date
of
exercise
over
the
exercise
price;
times
(ii)
The number of Shares with respect to which the Stock Appreciation Right is
exercised.
At the discretion of the Administrator, the payment upon Stock Appreciation Right exercise may be in cash, in Shares of equivalent value, or in some combination thereof.
11
.
Performance Units and Performance
Shares
.
(a)
Grant of Performance Units/Shares
. Subject to the terms and conditions of the Plan, Performance Units and Performance Shares may be granted
to
Service
Providers
at
any
time
and
from
time
to
time,
as
will
be
determined
by
the
Administrator,
in
its
sole
discretion.
Subject
to
Section
6 and the other terms and conditions of the Plan, the Administrator will have complete discretion in determining the number of Performance Units and/or Performance Shares granted to each
Participant.
(b)
Award Agreemen
t. Subject to Section 6 and the other terms and conditions of the Plan, each Award of Performance Shares and Performance
Units
will
be
evidenced
by
an
Award
Agreement
(which
may
be
in
electronic
form)
that
will
specify
any
vesting
conditions,
the
number of
Performance
Shares
or
Performance
Units,
as
applicable,
granted,
and
such
other
terms
and
conditions
as
the
Administrator,
in
its
sole
discretion,
will determine.
(c)
Value
of
Performance
Units/Shares
.
Each
Performance
Unit
will
have
an
initial
value
that
is
established
by
the
Administrator
on
or
before the
date
of
grant.
Each
Performance
Share
will
have
an
initial
value
equal
to
the
Fair
Market
Value
of
a
Share
on
the
date
of
grant.
(d)
Performance Objectives and Other Terms
. Subject to Section 6 and the other terms and conditions of the Plan, the Administrator will set performance objectives or other vesting provisions (including, without limitation, continued status as a Service Provider) (if any) in its discretion which, depending on the extent to which they are met, will determine the number or value of Performance Units or Performance Shares, as applicable,
that
will
be
paid
out
to
the
Service
Providers.
The
time
period
during
which
the
performance
objectives
or
other
vesting
provisions
must be met will be called the “Performance Period.” Each Award of Performance Units and Performance Shares will be evidenced by an Award Agreement
that
will
specify
the
Performance
Period,
and
such
other
terms
and
conditions
as
the
Administrator,
in
its
sole
discretion,
will
determine.
(i)
General
Restrictions
.
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
the
Administrator
may
set
vesting
criteria based upon continued employment or service, the achievement of specific Performance Goals or other performance objectives (Company-wide, departmental, divisional, business unit, or individual goals), applicable federal or state securities laws or any other basis determined by the Administrator in its discretion.
(e)
Earning
of
Performance
Units/Shares
.
After
the
applicable
Performance
Period
has
ended,
the
holder
of
Performance
Units
or
Performance Shares, as applicable, will be entitled to receive a payout of the number of Performance Units or Performance Shares, as applicable, earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding performance objectives or other
vesting provisions have been
achieved.
(f)
Form
and
Timing
of
Payment
of
Performance
Units/Shares
.
Payment
of
earned
Performance
Units
and
Performance
Shares
will
be
made
as soon
as
practicable
after
the
expiration
of
the
applicable
Performance
Period
or
as
otherwise
determined
by
the
Administrator;
provided,
however, that the timing of payment shall in all cases comply with Section 409A to the extent applicable to the Award. The Administrator, in its sole discretion,
may
pay
earned
Performance
Units
and
Performance
Shares
in
the
form
of
cash,
in
Shares
or
in
a
combination
thereof.
(g)
Cancellation
of
Performance
Units/Shares
.
On
the
date
set
forth
in
the
Award
Agreement,
all
unearned
or
unvested
Performance
Units
or Performance
Shares,
as
applicable,
will
be
forfeited
to
the
Company,
and,
subject
to
Section
3,
again
will
be
available
for
grant
under
the
Plan.
(h)
Voting Rights, Dividend Equivalents and Distributions
. Participants shall have no voting rights with respect to Shares represented by Performance Units and/or Performance Shares until the date of the issuance of such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). However, the Administrator, in its discretion, may provide in the Award Agreement evidencing any Award of Performance Shares that the Participant shall be entitled to receive Dividend Equivalents with respect to the payment of cash dividends on Shares having a record date prior to the date on which the Performance Shares are settled or forfeited. Such Dividend Equivalents, if any, shall be accrued by crediting the Participant with additional whole Performance Shares as of the date of payment of such cash dividends on Shares. The number of additional Performance Units or Performance Shares, as applicable, (rounded to the nearest whole number) to be so credited shall be determined by dividing (a) the amount of cash dividends paid on such date with respect to the number of Shares represented by the Performance Shares previously credited to the Participant by (b) the Fair Market Value per Share on such date. Such additional Performance Shares shall be subject to the same terms and conditions, including but not limited to vesting conditions, and shall be settled in the same manner and at the same time (or as soon thereafter as practicable) as the Performance Units or Performance Shares, as applicable, originally subject to the Award of Performance Units or Performance Shares, as applicable. For the avoidance of doubt, such additional Performance Shares will
not
be
paid
prior
to
the
time
that
the
original
Award
vests.
Settlement
of
Dividend
Equivalents
may
be
made
in
cash,
Shares,
or
a
combination thereof as determined by the Administrator, and may be paid on the same basis as settlement of the related Performance Share. Dividend Equivalents shall not be paid with respect to Performance Units. In the event of a dividend or distribution paid in Shares or any other adjustment made upon a change in the capital structure of the Company as described in Section 15 appropriate adjustments shall be made in the Participant’s Award of Performance Shares so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than normal cash dividends) to which the Participant would be entitled by reason of the Shares issuable upon settlement of the Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same vesting conditions as are applicable to the
Award.
1
2
.
Performance Bonus
Awards
.
(a)
Grant of Performance Bonus Awards
. Subject to the terms and conditions of the Plan, Performance Bonus Awards may be granted to Employees
at
any
time
and
from
time
to
time,
as
will
be
determined
by
the
Administrator,
in
its
sole
discretion,
in
the
form
of
a
cash
bonus
payable upon the attainment of Performance Goals and/or other performance objectives that are established by the Administrator, in each case on a specified date or dates or over any period or periods determined by the
Administrator.
(b)
Subject
to
Section
6
and
the
other
terms
and
conditions
of
the
Plan,
the
Administrator
will
have
complete
discretion
to
determine
the amount of the cash bonus that could be earned under a Performance Bonus
Award.
13
.
Leaves of Absence/Transfer Between Locations
. Unless the Administrator provides otherwise or as otherwise required by Applicable Law, vesting of Awards granted hereunder will be suspended during any unpaid personal leave of absence other than a Company-approved sabbatical, such that vesting shall cease on the first day of any such unpaid personal leave of absence and shall only recommence upon return to
active
service. A Participant will not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, or any Subsidiary. For purposes of Incentive Stock Options, no such leave may exceed
three
(3)
months,
unless
reemployment
upon
expiration
of
such
leave
is
guaranteed
by
statute
or
contract.
If
reemployment
upon
expiration of a leave of absence approved by the Company is not so guaranteed, then six (6) months following the first (1st) day of such leave any Incentive Stock Option held by the Participant will cease to be treated as an Incentive Stock Option and will be treated for tax purposes as a Nonstatutory Stock
Option.
14
.
Transferability of
Awards
.
(a) Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant (or the Participant’s guardian or legal representative). If the Administrator makes an Award transferable, such Award will contain such additional terms and conditions as the Administrator deems appropriate. Notwithstanding anything to the contrary in the Plan, in no event will the Administrator have the right to determine and implement the terms and conditions of any Award Transfer Program without stockholder approval.
15
.
Adjustments; Dissolution or Liquidation; Merger or Change in
Contro
l.
(a)
Adjustments
. In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property, but excepting normal cash dividends), recapitalization, stock split, reverse stock split, reorganization, reincorporation, reclassification, merger, consolidation, split-up, split-off, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the
corporate
structure
of
the
Company
affecting
the
Shares
occurs,
the
Administrator,
in
order
to
prevent
diminution
or
enlargement
of
the
benefits or potential benefits intended to be made available under the Plan, will adjust the number and class of shares of stock that may be delivered under the Plan and/or the number, class, and price of shares of stock covered by each outstanding Award, the numerical Share limits in Section 3 of the Plan and the per person numerical Share limits in Section 6. Notwithstanding the preceding, the number of Shares subject to any Award always shall be a whole number. Any fractional share resulting from an adjustment pursuant to this Section 15(a) shall be rounded down to the nearest whole
number,
and
in
no
event
may
the
exercise
or
purchase
price
under
any
Award
be
decreased
to
an
amount
less
than
the
par
value,
if
any,
of
the stock subject to such
Award.
(b)
Dissolution or Liquidation
. In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised (with respect
to
an
Option
or
SAR)
or
vested
(with
respect
to
an
Award
other
than
an
Option
or
SAR),
an
Award
will
terminate
immediately
prior
to
the consummation of such proposed
action.
(c)
Change
in
Contro
l.
In
the
event
of
a
merger
of
the
Company
with
or
into
another
corporation
or
other
entity
or
a
Change
in
Control,
each outstanding Award will be treated as the Administrator determines (subject to the provisions of the following paragraph), including, without limitation, that each Award be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor
corporation.
The
Administrator
will
not
be
required
to
treat
all
Awards
similarly
in
the
transaction.
In the event that the successor corporation does not assume or substitute for the Award, the Participant will fully vest in and have the right to exercise all of his or her outstanding Options and Stock Appreciation Rights, including Shares as to which such Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will lapse, and, with respect to Awards with performance-based vesting, unless determined otherwise by the Administrator, all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all other terms and conditions met. In addition, if an Option or Stock Appreciation Right is not assumed or substituted in the event of a Change in Control, the Administrator will notify the Participant in writing or electronically that the Option or Stock Appreciation Right will be exercisable for a period of time determined by the Administrator in its sole discretion, and the Option or Stock Appreciation Right will terminate upon the expiration of such period.
For the purposes of this subsection (c), an Award will be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration (whether stock, cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Unit, Performance Unit or Performance Share, for each Share subject to such Award, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the Change in Control.
Notwithstanding anything in this Section 15(c) to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals will not be considered assumed if the Company or its successor modifies any of such performance goals without the Participant’s consent; provided,
however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption.
(d)
Outside Director Awards
. With respect to Awards granted to an Outside Director that are assumed or substituted for, if on the date of or following such assumption or substitution the Participant’s status as a Director or a director of the successor or acquiring corporation, as applicable, is terminated other than upon a voluntary resignation by the Participant (unless such resignation is at the request of the acquirer), then the Participant will fully vest in and have the right to exercise Options and/or Stock Appreciation Rights as to all of the Shares underlying such Award, including those Shares which would not otherwise be vested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will
lapse,
and,
with
respect
to
Awards
with
performance-based
vesting,
unless
determined
otherwise
by
the
Administrator,
all
performance
goals
or other
vesting
criteria
will
be
deemed
achieved
at
one
hundred
percent
(100%)
of
target
levels
and
all
other
terms
and
conditions
met.
1
6
.
Deferrals
.
The
Administrator,
in
its
sole
discretion,
may
permit
a
Participant
to
defer
receipt
of
the
payment
of
cash
or
the
delivery
of
Shares
that would otherwise be due to such Participant under an Award. Any such deferral elections shall be subject to such rules and procedures as shall be determined by the Administrator in its sole discretion and, unless otherwise expressly determined by the Administrator, shall comply with the requirements of Section
409A.
17
.
Tax
.
(a)
Withholding Requirements
. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof) or such earlier time as any
Tax
Obligations
are
due,
the
Company
will
have
the
power
and
the
right
to
deduct
or
withhold,
or
require
a
Participant
to
remit
to
the
Company, an amount sufficient to satisfy all Tax
Obligations.
(b)
Withholding Arrangements
. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may designate the method or methods by which a Participant may satisfy such Tax Obligations. As determined by the Administrator in its discretion
from
time
to
time,
these
methods
may
include
one
or
more
of
the
following
(a)
paying
cash,
(b)
having
the
Company
withhold
otherwise deliverable
cash
or
Shares
having
a
Fair
Market
Value
equal
to
the
minimum
statutory
amount
required
to
be
withheld
or
remitted,
(c)
delivering
to the Company already-owned Shares having a Fair Market Value equal to the minimum statutory amount required to be withheld or remitted, (d) selling a sufficient number of Shares otherwise deliverable to the Participant through such means as the Administrator may determine in its sole discretion
(whether
through
a
broker
or
otherwise)
equal
to
the
Tax
Obligations
required
to
be
withheld
or
remitted,
(e)
retaining
from
salary
or
other amounts payable to the Participant cash having a sufficient value to satisfy the Tax Obligations, or (f) any other means which the Administrator, in its sole discretion, determines to both comply with Applicable Laws, and to be consistent with the purposes of the Plan. The amount of Tax Obligations
will
be
deemed
to
include
any
amount
that
the
Administrator
agrees
may
be
withheld
at
the
time
the
election
is
made,
not
to
exceed
the amount determined by using the maximum federal, state or local marginal income tax rates applicable to the Participant or the Company, as applicable, with respect to the Award on the date that the amount of tax or social insurance liability to be withheld or remitted is to be determined. The Fair Market Value of the Shares to be withheld or delivered shall be determined as of the date that the Tax Obligations are required to be withheld.
(c)
Compliance With Section
409A
. Awards will be designed and operated in such a manner that they are either exempt from the application of,
or
comply
with,
the
requirements
of
Section
409A
such
that
the
grant,
payment,
settlement
or
deferral
will
not
be
subject
to
the
additional
tax
or interest applicable under Section 409A, except as otherwise determined in the sole discretion of the Administrator. Each payment or benefit under this Plan and under each Award Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
The
Plan,
each
Award
and
each
Award
Agreement
under
the
Plan
is
intended
to
be
exempt
from
or
otherwise
meet
the
requirements
of Section 409A and will be construed and interpreted, including but not limited with respect to ambiguities and/or ambiguous terms, in accordance with
such
intent,
except
as
otherwise
specifically
determined
in
the
sole
discretion
of
the
Administrator.
To
the
extent
that
an
Award
or
payment,
or the settlement or deferral thereof, is subject to Section 409A the Award will be granted, paid, settled or deferred in a manner that will meet the requirements of Section 409A, such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Section
409A.
18
.
No
Effect
on
Employment
or
Service
.
Neither
the
Plan
nor
any
Award
will
confer
upon
a
Participant
any
right
with
respect
to
continuing
the Participant’s
relationship
as
a
Service
Provider
with
the
Company,
nor
will
they
interfere
in
any
way
with
the
Participant’s
right
or
the
Company’s right
to
terminate
such
relationship
at
any
time,
with
or
without
cause,
to
the
extent
permitted
by
Applicable
Laws.
1
9
.
Date of Gran
t. The date of grant of an Award will be, for all purposes, the date on which the Administrator makes the determination granting such
Award,
or
such
other
later
date
as
is
determined
by
the
Administrator.
Notice
of
the
determination
will
be
provided
to
each
Participant
within
a reasonable time after the date of such
grant.
20
.
Term of
Plan
.
Subject
to
Section
29
of
the
Plan,
the
Plan
will
become
effective
upon
its
approval
by
the
Company’s
stockholders.
It
will
continue in
effect
for
a
term
of
ten
(10)
years
from
the
date
of
the
initial
Board
action
to
adopt
the
Plan
unless
terminated
earlier
under
Section
21
of
the
Plan. For the avoidance of doubt, neither the amendment and restatement of the Plan in 2018, nor any subsequent amendment and/or restatement is intended to, and shall not be interpreted to, modify any Awards granted prior to approval
of
the
amendment
and
restatement
of
this
Plan
by
the
Company’s
stockholders
at
its
2018
annual
meeting
to
the
extent
such
modification would result in a loss of deductibility under Code Section
162(m).
21
.
Amendment and Termination of the
Plan
.
(a)
Amendment
and
Termination
.
The
Administrator
may
at
any
time
amend,
alter,
suspend
or
terminate
the
Plan.
(b)
Stockholder
Approva
l.
The
Company
will
obtain
stockholder
approval
of
any
Plan
amendment
to
the
extent
necessary
and
desirable
to comply with Applicable
Laws.
(c)
Effect of Amendment or Termination
. No amendment, alteration, suspension or termination of the Plan will impair the rights of any Participant,
unless
mutually
agreed
otherwise
between
the
Participant
and
the
Administrator,
which
agreement
must
be
in
writing
and
signed
by
the Participant
and
the
Company.
Termination
of
the
Plan
will
not
affect
the
Administrator’s
ability
to
exercise
the
powers
granted
to
it
hereunder
with respect to Awards granted under the Plan prior to the date of such
termination.
22
.
Construction
. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of
the
Plan.
Except
when
otherwise
indicated
by
the
context,
the
singular
shall
include
the
plural
and
the
plural
shall
include
the
singular.
Use
of
the term “or” is not intended to be exclusive, unless the context clearly requires
otherwise.
23
.
Severability
.
If
any
one
or
more
of
the
provisions
(or
any
part
thereof)
of
this
Plan
shall
be
held
invalid,
illegal
or
unenforceable
in
any
respect, such provision shall be modified so as to make it valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions (or any part thereof) of the Plan shall not in any way be affected or impaired
thereby.
24
.
Fractional Shares
. The Company shall not be required to issue fractional shares upon the exercise or settlement of any
Award.
25
.
Unfunded Obligation
. Participants shall have the status of general unsecured creditors of the Company. Any amounts payable to Participants pursuant
to
the
Plan
shall
be
unfunded
and
unsecured
obligations
for
all
purposes,
including,
without
limitation,
Title
I
of
the
Employee
Retirement Income
Security
Act
of
1974.
No
Participating
Company
shall
be
required
to
segregate
any
monies
from
its general funds, or to create any trusts, or establish any special accounts with respect to such obligations. The Company shall retain at all times beneficial ownership of any investments, including trust investments, which the Company may make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any Participant account shall not create or constitute a trust or fiduciary relationship
between
the
Administrator
or
any
Participating
Company
and
a
Participant,
or
otherwise
create
any
vested
or
beneficial
interest
in
any Participant
or
the
Participant’s
creditors
in
any
assets
of
any
Participating
Company.
The
Participants
shall
have
no
claim
against
any
Participating Company for any changes in the value of any assets which may be invested or reinvested by the Company with respect to the
Plan.
26
.
Conditions Upon Issuance of
Shares
.
(a)
Legal
Compliance
.
The
granting
of
Awards
and
the
issuance
and
delivery
of
Shares
under
the
Plan
shall
be
subject
to
all
Applicable
Laws, rule and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. Shares will not be issued pursuant to the exercise or vesting of an Award unless the exercise or vesting of such Award and the issuance and delivery of such
Shares
will
comply
with
Applicable
Laws,
rules
and
regulations
and
will
be
further
subject
to
the
approval
of
counsel
for
the
Company
with
respect
to
such compliance.
(b)
Investment Representations
. As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.
2
7
.
Inability
to
Obtain
Authority
.
The
inability
of
the
Company
to
obtain
authority
from
any
regulatory
body
having
jurisdiction
or
to
complete
or comply
with
the
requirements
of
any
registration
or
other
qualification
of
the
Shares
under
any
state,
federal
or
foreign
law
or
under
the
rules
and regulations of the Securities and Exchange Commission, the stock exchange on which Shares of the same class are then listed, or any other governmental or regulatory body, which authority, registration, qualification or rule compliance is deemed by the Company’s counsel to be necessary
or
advisable
for
the
issuance
and
sale
of
any
Shares
hereunder,
will
relieve
the
Company
of
any
liability
in
respect
of
the
failure
to
issue or sell such Shares as to which such requisite authority, registration, qualification or rule compliance will not have been
obtained.
28
.
Forfeiture Events
. To the extent applicable, Awards shall be subject to any recovery, recoupment, clawback and/or other forfeiture policy maintained
by
the
Company
from
time
to
time.
The
Administrator
may
specify
in
an
Award
Agreement
that
the
Participant’s
rights,
payments,
and benefits with respect to an Award shall be subject to reduction, cancellation, forfeiture, or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include, but shall not be limited to,
fraud,
breach
of
a
fiduciary
duty,
restatement
of
financial
statements
as
a
result
of
fraud
or
willful
errors
or
omissions,
termination
of
employment for cause, violation of material Company and/or Subsidiary policies, breach of non-competition, confidentiality, or other restrictive covenants that may apply to the Participant, or other conduct by the Participant that is detrimental to the business or reputation of the Company and/or its Subsidiaries.
The
Administrator
may
also
require
the
application
of
this
Section
with
respect
to
any
Award
previously
granted
to
a
Participant
even without
any
specified
terms
being
included
in
any
applicable
Award
Agreement
to
the
extent
required
under
Applicable
Laws.
29
.
Stockholder
Approva
l.
The
Plan
will
be
subject
to
approval
by
the
stockholders
of
the
Company
within
twelve
(12)
months
after
the
date
the Plan
is
adopted
by
the
Board.
Such
stockholder
approval
will
be
obtained
in
the
manner
and
to
the
degree
required
under
Applicable
Laws.