3.3
Delegation by the
Administrator
. The Administrator, in its discretion and on such terms and
conditions as it may provide, may delegate all or any part of its authority and
powers under the Plan to one or more Directors; provided, however, that the
Administrator may not delegate its authority and powers (a) with respect to
Section 16 Persons, or (b) in any way which would jeopardize the Plans
qualification under Section 162(m) of the Code or Rule 16b-3.
3.4
Decisions Binding
. All
determinations and decisions made by the Administrator, the Board, and any
delegate of the Administrator pursuant to the provisions of the Plan shall be
final, conclusive, and binding on all persons, and shall be given the maximum
deference permitted by Applicable Law.
SECTION 4
SHARES SUBJECT TO THE PLAN
4.1
Number of Shares
.
Subject to adjustment as provided in Section 4.3, the total number of Shares
available for grant under the Plan shall be 14,500,000 (i.e., the existing 2003
Plan share reserve plus 3,000,000 shares approved by the stockholders on the 2nd
Amendment Date plus 4,000,000 shares approved by the stockholders on the
3
rd
Amendment Date plus 5,000,000 shares approved by the stockholders
on the 4
th
Amendment Date), plus (i) the 1,004,213 shares available
for grant under the Sybase, Inc. 1996 Stock Plan as of the Plan Effective Date;
plus (ii) the 55,250 shares available for grant under the 1999 Plan as of the
Plan Effective Date, plus (iii) any shares represented by awards granted under
the 1996 Plan, the 1999 Plan, or the 1992 Director Plan or the 2001 Director
Plan (collectively, the Existing Plans) as of the Plan Effective Date that are
forfeited or cancelled or expire without the delivery of Shares. As of the 1st
Amendment Date, there were a total of 17,202,848 options and awards issued but
unexercised under the Existing Plans. After the Plan Effective Date, no further
shares will be issued under any Existing Plan. When any Award made under the
Plan expires, or is forfeited or cancelled without the delivery of Shares, such
Shares will become available for future Awards under the Plan. Shares granted
under the Plan may be authorized but unissued Shares or reacquired
Shares.
4.2
Fungible Limit on
Discounted Awards
. For Awards granted on or after the 4
th
Amendment Date, any Shares subject to Options or SARs shall be counted against
the numerical limits of Section 4.1 as one share for every share subject
thereto. For Awards granted on or after the 4
th
Amendment Date, any
Shares subject to Performance Shares, Restricted Stock, Restricted Stock Units
or Deferred Stock Units with a per share or unit purchase price lower than 100%
of Fair Market Value on the date of grant shall be counted against the numerical
limits of Section 4.1 as two and one-tenth shares for every one share subject
thereto. To the extent that a share that was subject to an Award that counted as
two and one-tenth shares against the Plan reserve pursuant to the preceding
sentence is recycled back into the Plan under Section 4.3, the Plan shall be
credited with two and one-tenth Shares.
4.3
Lapsed Awards
. If an
Award is settled in cash, or is cancelled, terminates, expires, or lapses for
any reason (with the exception of the termination of a Tandem SAR upon exercise
of the related Option, or the termination of a related Option upon exercise of
the corresponding Tandem SAR), any Shares subject to such Award again shall be
available to be the subject of an Award.
4.4
Adjustments in Awards and
Authorized Shares
. Subject to the provisions of Section 11.6, in the event
that any dividend or other distribution (whether in the form of cash, Shares,
other securities, or other property), recapitalization, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, 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 shall proportionately adjust the number and
class of Shares which may be delivered under the Plan and, the number, class,
and price of Shares subject to outstanding Awards, and the numerical limits of
Sections 8.1 and 11.6, in order to prevent dilution or enlargement of the
benefits or potential benefits under the Plan. Notwithstanding the preceding,
the number of Shares subject to any Award always shall be a whole
number.
6
4.5
Legal Compliance
.
Shares shall not be issued pursuant to the making or exercise of an Award unless
the exercise of Options and rights and the issuance and delivery of Shares shall
comply with the Securities Act of 1933, as amended, the 1934 Act and other
Applicable Law, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
4.6
Investment
Representations
. As a condition to the exercise of an Option or other right,
the Company may require the person exercising such Option or right to represent
and warrant at the time of exercise that the Shares are being acquired 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.
SECTION 5
EMPLOYEE AND CONSULTANT STOCK OPTIONS
The provisions of this Section 5 are
applicable only to Options granted to Employees (including Directors who are
also Employees), and Consultants. Such Participants shall also be eligible to
receive other types of Awards as set forth in the Plan.
5.1
Grant of Options
.
Subject to the terms and provisions of the Plan, Options may be granted to
Employees and Consultants at any time and from time to time as determined by the
Administrator in its discretion. The Administrator may grant Incentive Stock
Options, Nonqualified Stock Options, or a combination thereof, and the
Administrator, in its discretion and subject to Section11.6, shall determine the
number of Shares subject to each Option.
5.2
Award Agreement
. Each
Option shall be evidenced by an Award Agreement that shall specify the Exercise
Price, the expiration date of the Option, the number of Shares to which the
Option pertains, any conditions to exercise the Option, and such other terms and
conditions as the Administrator, in its discretion, shall determine. The Award
Agreement shall also specify whether the Option is intended to be an Incentive
Stock Option or a Nonqualified Stock Option.
5.3
Exercise Price
. The
Administrator shall determine the Exercise Price for each Option subject to the
provisions of this Section 5.3.
5.3.1
Nonqualified Stock
Options
. In the case of a Nonqualified Stock Option, the Exercise Price
shall be determined by the Administrator, but in no case shall the per Share
exercise price be less than one hundred percent (100%) of the Fair Market Value
of a Share on the Grant Date.
5.3.2
Incentive Stock
Options
. The grant of Incentive Stock Options shall be subject to the
following limitations:
(a)
The Exercise Price of an Incentive Stock Option shall be not less than one
hundred percent (100%) of the Fair Market Value of a Share on the Grant Date;
provided, however, that if on the Grant Date, the Employee (together with
persons whose stock ownership is attributed to the Employee pursuant to Section
424(d) of the Code) owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any of its Subsidiaries,
the Exercise Price shall be not less than one hundred and ten percent (110%) of
the Fair Market Value of a Share on the Grant Date;
(b)
Incentive Stock Options may be granted only to persons who are, as of the Grant
Date, Employees of the Company or a Subsidiary, and may not be granted to
Nonemployee Directors or Consultants;
(c) 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 $100,000, such Options shall be treated
7
as Nonstatutory Stock Options. For
purposes of this Section 5.3.2(c), Incentive Stock Options shall be taken into
account in the order in which they were granted. The Fair Market Value of the
Shares shall be determined as of the time the Option with respect to such Shares
is granted; and
(d) In
the event of a Participants change of status from Employee to Consultant or
Director, an Incentive Stock Option held by the Participant shall cease to be
treated as an Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option three (3) months and one (1) day following such change
of status.
5.3.3
Substitute Options
.
Notwithstanding the provisions of Sections 5.3.1 and 5.3.2, in the event that
the Company or an Affiliate consummates a transaction described in Section
424(a) of the Code (e.g., the acquisition of property or stock from an unrelated
corporation), persons who become Employees, Directors or Consultants on account
of such transaction may be granted Options in substitution for options granted
by their former employer. If such substitute Options are granted, the
Administrator, in its discretion and consistent with Section 424(a) of the Code,
may determine that such substitute Options shall have an exercise price of no
less than one hundred percent (100%) of the Fair Market Value of the Shares on
the Grant Date.
5.4
Expiration of
Options
5.4.1
Expiration Dates
. Each
Option shall terminate no later than the first to occur of the following
events:
(a)
Date in Award Agreement
. The date for termination of the Option set forth
in the written Award Agreement; or
(b)
Termination of Continuous Status as Employee or Consultant
. The last day
of the three (3)-month period following the date the Participant ceases his/her
Continuous Status as an Employee or Consultant (other than termination for a
reason described in subsections (c), (d), (e), (f) or (g) below); or
(c)
Misconduct
. In the event a Participants Continuous Status as an Employee
or Consultant terminates because the Participant has performed an act of
Misconduct as determined by the Administrator, all unexercised Options held by
such Participant shall expire five (5) business days following written notice
from the Company to the Participant;
(d)
Disability
. In the event that a Participants Continuous Status as an
Employee or Consultant terminates as a result of the Participants Disability,
the Participant may exercise his or her Option at any time within twelve (12)
months from the date of such termination, but only to the extent that the
Participant was entitled to exercise it at the date of such termination (but in
no event later than the expiration of the term of such Option as set forth in
the Award Agreement). If, at the date of termination, the Participant is not
entitled to exercise his or her entire Option, the Shares covered by the
unexercisable portion of the Option shall revert to the Plan. If, after
termination, the Participant does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan; or
(e)
Death
. In the event of the death of a Participant, the Option may be
exercised at any time within twenty-four (24) months following the date of death
(but in no event later than the expiration of the term of such Option as set
forth in the Award Agreement), by the Participants estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Participant was entitled to exercise the Option at the date
of death. If, at the time of death, the Participant was not entitled to exercise
his or her entire Option, the Shares covered by the unexercisable portion of the
Option shall immediately revert to the Plan. If, after death, the Participants
estate or a person who acquired the right to exercise the Option by bequest or
inheritance does not exercise the Option within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall revert to
the Plan; or
8
(f)
Retirement
. In the event that an Participants Continuous Status as an
Employee terminates as a result of the Participants Retirement, the Participant
may exercise his or her Option at any time subject to the limitations in the
Plan and the Award Agreement, but only to the extent that the Participant was
entitled to exercise the Option at the time of such termination, unless
otherwise expressly provided in a written agreement between the Participant and
the Company. However, any Incentive Stock Options not exercised within three (3)
months of the termination of the Participants Continuous Status as an Employee
shall be treated for tax purposes as Nonstatutory Stock Options three (3) months
and one (1) day following such Retirement; or
(g)
Expiration
. Unless otherwise specified above, for Options granted from
the Plan Effective Date until the day preceding the 2nd Amendment Date, an
Option shall expire no more than ten (10) years from the Grant Date, and for
Options granted on or after the 2nd Amendment Date, an Option shall expire no
more than seven (7) years from the Grant Date; provided, however, that if an
Incentive Stock Option is granted to an Employee who, together with persons
whose stock ownership is attributed to the Employee pursuant to Section 424(d)
of the Code, owns stock possessing more than 10% of the total combined voting
power of all classes of the stock of the Company or any of its Subsidiaries,
such Incentive Stock Option may not be exercised after the expiration of five
(5) years from the Grant Date.
(h)
Change in Status
. In the event a Participants status has changed from
Consultant to Employee, or vice versa, a Participants Continuous Status as an
Employee or Consultant shall not automatically terminate solely as a result of
such change in status.
5.4.2
Administrator
Discretion
. Subject to the limits of Section 5.4.1, the Administrator, in
its discretion, (a) shall provide in each Award Agreement when each Option
expires and becomes unexercisable, and (b) may, after an Option is granted,
extend the maximum term of the Option (subject to limitations applicable to
Incentive Stock Options).
5.5
Exercisability of
Options
. Options granted under the Plan shall be exercisable at such times
and be subject to such restrictions and conditions as the Administrator shall
determine in its discretion. After an Option is granted, the Administrator, in
its discretion, may accelerate the exercisability of the Option.
5.6
Exercise and Payment
.
Options shall be exercised by the Participants delivery of a written notice of
exercise to the Secretary of the Company (or its designee), setting forth the
number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares.
5.6.1
Form of Consideration
.
Upon the exercise of any Option, the Exercise Price shall be payable to the
Company in full in cash or its equivalent. The Administrator, in its discretion,
also may permit the same-day exercise and sale of Options and related Shares, or
exercise by tendering previously acquired Shares having an aggregate Fair Market
Value at the time of exercise equal to the total Exercise Price, or by any other
means which the Administrator, in its discretion, determines to provide legal
consideration for the Shares, and to be consistent with the purposes of the
Plan.
5.6.2
Delivery of Shares
. As
soon as practicable after receipt of a written notification of exercise and full
payment for the Shares purchased, the Company shall deliver to the Participant
(or the Participants designated broker), Share certificates (which may be in
book entry form) representing such Shares.
9
SECTION 6
STOCK APPRECIATION RIGHTS
6.1
Grant of SARs
. Subject
to the terms of the Plan, a SAR may be granted to Employees, Directors and
Consultants at any time and from time to time as shall be determined by the
Administrator. The Administrator may grant, Freestanding SARs, Tandem SARs, or
any combination thereof.
6.1.1
Number of Shares
. The
Administrator shall have complete discretion to determine the number of SARs
granted to any Participant, subject to the limitation in Section
11.6.
6.1.2
Exercise Price and Other
Terms
. The Administrator, subject to the provisions of the Plan, shall have
discretion to determine the terms and conditions of SARs granted under the Plan.
However, the exercise price of a Freestanding SAR shall be not less than one
hundred percent (100%) of the Fair Market Value of a Share on the Grant Date.
The exercise price of Tandem SARs shall equal the Exercise Price of the related
Option.
6.2
Exercise of Tandem
SARs
. Tandem SARs may be exercised for all or part of the Shares subject to
the related Option upon the surrender of the right to exercise the equivalent
portion of the related Option. A Tandem SAR may be exercised only with respect
to the Shares for which its related Option is then exercisable. With respect to
a Tandem SAR granted in connection with an Incentive Stock Option: (a) the
Tandem SAR shall expire no later than the expiration of the underlying Incentive
Stock Option; (b) the value of the payout with respect to the Tandem SAR shall
be for no more than one hundred percent (100%) of the difference between the
Exercise Price of the underlying Incentive Stock Option and the Fair Market
Value of the Shares subject to the underlying Incentive Stock Option at the time
the Tandem SAR is exercised; and (c) the Tandem SAR shall be exercisable only
when the Fair Market Value of the Shares subject to the Incentive Stock Option
exceeds the Exercise Price of the Incentive Stock Option.
6.3
Exercise of Freestanding
SARs
. Freestanding SARs shall be exercisable on such terms and conditions as
the Administrator, in its discretion, shall determine.
6.4
SAR Agreement
. Each SAR
grant shall be evidenced by an Award Agreement that shall specify the exercise
price, the term of the SAR, the conditions of exercise, and such other terms and
conditions as the Administrator shall determine.
6.5
Expiration of SARs
. A
SAR granted under the Plan shall expire upon the date determined by the
Administrator in its discretion as set forth in the Award Agreement, or
otherwise pursuant to the provisions relating to the expiration of related
Options as set forth in Sections 5.4.
6.6
Payment of SAR Amount
.
Upon exercise of a SAR, a Participant shall be entitled to receive payment from
the Company in an amount determined by multiplying: (a) the difference between
the Fair Market Value of a Share on the date of exercise over the Option
Exercise Price, times (b) the number of Shares with respect to which the SAR is
exercised. At the discretion of the Administrator, the payment upon SAR exercise
may be in cash, in Shares of equivalent value, or in some combination
thereof.
6.7
Cancellation of Exercised
and Unissued SAR Shares
. Upon exercise of a stock settled SAR, the number of
Shares included in such exercise which are not issued to settle the SAR at the
time of such exercise shall be cancelled and shall not be available for grant
again under the Plan.
10
SECTION 7
RESTRICTED
STOCK
7.1
Grant of Restricted
Stock
. Subject to the terms and provisions of the Plan, the Administrator,
at any time and from time to time, may grant Shares of Restricted Stock to
Employees, Directors and Consultants in such amounts as the Administrator, in
its discretion, shall determine. The Administrator, in its discretion and
subject to Section 11.6, shall determine the number of Shares to be granted to
each Participant.
7.2
Restricted Stock
Agreement
. Each Award of Restricted Stock shall be evidenced by an Award
Agreement that shall specify the Period of Restriction, the number of Shares
granted, and such other terms and conditions as the Administrator, in its
discretion, shall determine. Unless the Administrator determines otherwise,
Shares of Restricted Stock shall be held by the Company as escrow agent until
the restrictions on such Shares have lapsed.
7.3
Transferability
. Except
as provided in this Section 7, Shares of Restricted Stock may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated until
expiration of the applicable Period of Restriction.
7.4
Other Restrictions
. The
Administrator, in its discretion, may impose such other restrictions on Shares
of Restricted Stock as it may deem advisable or appropriate, in accordance with
this Section 7.4.
7.4.1
General Restrictions
.
The Administrator may set restrictions based upon the achievement of specific
performance objectives (Company-wide, business unit, or individual), or any
other basis determined by the Administrator in its discretion.
7.4.2
Section 162(m) Performance
Restrictions
. For purposes of qualifying grants of Restricted Stock as
performance-based compensation under Section 162(m) of the Code, the
Administrator, in its discretion, may set restrictions based upon the
achievement of Performance Goals. The Performance Goals shall be set by the
Administrator on or before the latest date permissible to enable the Restricted
Stock to qualify as performance-based compensation under Section 162(m) of the
Code. In granting Restricted Stock which is intended to qualify under Section
162(m) of the Code, the Administrator shall follow any procedures determined by
it from time to time to be necessary or appropriate to ensure qualification of
the Restricted Stock under Section 162(m) of the Code (e.g., in determining the
Performance Goals).
7.4.3
Legend on Certificates
.
The Administrator, in its discretion, may legend the certificates representing
Restricted Stock to give appropriate notice of such restrictions.
7.5
Removal of
Restrictions
. Except as otherwise provided in this Section 7, Shares of
Restricted Stock covered by each Restricted Stock grant made under the Plan
shall be released from escrow as soon as practicable after expiration of the
Period of Restriction. The Administrator, in its discretion, may accelerate the
time at which any restrictions shall lapse or be removed. After the restrictions
have lapsed, the Participant shall be entitled to have any legend or legends
under Section 7.4.3 removed from his or her Share certificate and the Shares
shall be freely transferable by the Participant, subject to Applicable
Law.
7.6
Voting Rights
. During
the Period of Restriction, Participants holding Shares of Restricted Stock
granted hereunder may exercise full voting rights with respect to those Shares,
unless the Administrator determines otherwise.
7.7
Dividends and Other
Distributions
. During the Period of Restriction, Participants holding Shares
of Restricted Stock shall be entitled to receive all dividends and other
distributions paid with respect to such Shares unless otherwise provided in the
Award Agreement. If any such dividends or distributions are paid in Shares, the
Shares shall be subject to the same restrictions on transferability and
forfeitability as the Shares of Restricted Stock with respect to which they were
paid.
11
7.8
Return of Restricted Stock
to Company
. On the date set forth in the Award Agreement, the Restricted
Stock for which restrictions have not lapsed shall revert to the Company and
again shall become available for grant under the Plan.
SECTION 8
NONEMPLOYEE DIRECTOR AWARDS
The provisions of this Section 8 are
applicable only to Nonemployee Directors. Nonemployee Directors shall be
entitled to receive all types of Awards under this Plan.
8.1
Granting of
Options
8.1.1
Initial Grants
. Each
Nonemployee Director who first becomes a Nonemployee Director on or after the
Plan Amendment Date (excluding each Nonemployee Director whom, at the time he or
she first becomes a Director, holds unvested options to purchase Shares or
securities convertible or exchangeable for Shares as a result of such Outside
Directors service as a director of an Affiliate), shall be entitled to receive,
as of the date that the individual first is appointed or elected as a
Nonemployee Director, an Award having an Imputed Value of up to $800,000 on the
date of grant, or such lesser number of Shares as is allowed pursuant to Section
11.6. Such Award may consist of a single type or any combination of the types of
Awards permissible under this Plan, as determined from time to time by the Board
as a whole.
8.1.2
Ongoing Grants
. On the
last day of the first regularly scheduled Sybase, Inc. Board of Directors
meeting in each calendar year, each Non-Employee Director who has served as a
Nonemployee Director for at least five months on that date shall be granted an
Award having an Imputed Value of up to $400,000 on the date of grant, or such
lesser amount of Shares as is allowed pursuant to Section 11.6, provided that
such Non-Employee Director is a member of the Board. Such Award may consist of a
single type or any combination of the types of Awards permissible under this
Plan, as determined from time to time by the Board as a whole.
8.1.3
Imputed Value
. For
purposes of Sections 8.1.1, 8.1.2 and 8.3 (as such section relates to Options),
the Imputed Value of any Award shall mean the value on the applicable date as
determined in accordance with Financial Accounting Standards Board Statement No.
123 (revised 2004), Accounting for Stock-Based Compensation, as the same may
be amended from time to time.
8.2
Terms of
Options
.
8.2.1
Option Agreement
. A
written Award Agreement between the Participant and the Company shall evidence
each Option granted pursuant to this Section 8.
8.2.2
Exercise Price
. The
Exercise Price for the Shares subject to each Option granted pursuant to this
Section 8 shall be 100% of the Fair Market Value of such Shares on the Grant
Date.
8.2.3
Expiration of Options
.
Each Option granted pursuant to this Section 8 shall terminate upon the first to
occur of the following events:
(a)
The date for termination of the Option set forth in the written Award Agreement;
or
(b)
For Options granted from the Plan Effective Date until the day preceding the 2nd
Amendment Date, an Option shall expire no more than ten (10) years from the
Grant Date, and for Options granted on or after the 2nd Amendment Date, an
Option shall expire no more than seven (7) years from the Grant Date;
or
(c)
The expiration of twelve (12) months from the date the Participant ceases
Continuous Status as a Director for any reason other than the Participants
death or Disability; or
12
(d) In
the event that a Participants Continuous Status as a Director terminates as a
result of the Participants death or Disability, the Participants Option shall
terminate in accordance with the provisions set forth in Section 5.4.1 (d) and
(e), respectively.
8.2.4
Nonqualified Stock Options
Only
. No Incentive Options may be granted pursuant to this Section
8.
8.2.5
Vesting and Other
Terms
. Except as provided in Sections 8.1.4 and 8.2.3, Options granted
pursuant to this Section 8 shall become exercisable on terms and conditions
determined by the Administrator in its sole discretion. All other provisions of
the Plan not inconsistent with this Section 8 shall also apply to Options
granted to Nonemployee Directors. In the event of any inconsistency between
provisions set forth in Section 8 and those set forth elsewhere in the Plan as
they relate to Options, the provisions of Section 8 shall govern with respect to
Options granted to Nonemployee Directors.
8.2.6
Substitute Options
. In
the event that the Company or an Affiliate consummates a transaction described
in section 424(a) of the Code (e.g., the acquisition of property or stock from
an unrelated corporation), an individual who becomes a Nonemployee Director as a
result of such transaction may be granted Options in substitution for options
granted by the unrelated corporation. If such substitute Options are granted,
the Administrator, in its discretion and consistent with section 424(a) of the
Code, shall determine the exercise price of such substitute Options, subject to
Section 4.1.2.
8.2.7
Elections by Nonemployee
Directors
. Pursuant to such procedures as the Administrator (in its
discretion) may adopt from time to time in accordance with Code Section 409A and
Internal Revenue Service rules relating to constructive receipt), each
Nonemployee Director may elect (no later than is required to comply with Code
Section 409A and Internal Revenue Service rules relating to constructive
receipt) to forego receipt of all or a portion of the annual retainer, committee
fees and meeting fees otherwise due to the Nonemployee Director in exchange for
an Award under this Plan. The number of Shares subject to an Award received by
any Nonemployee Director shall equal the amount of foregone compensation divided
by the Fair Market Value of a Share on the date the compensation otherwise would
have been paid to the Nonemployee Director, rounded up to the nearest whole
number of Shares. The number of Options granted shall be determined by dividing
the cash amount foregone by the Imputed Value of the Options (as defined in
Section 8.1.3), rounded up to the nearest whole number of Shares. The procedures
adopted by the Administrator for elections under this Section 8.2.7 shall be
designed to ensure that any such election by a Nonemployee Director will not
disqualify him or her as a non-employee director under Rule 16b-3.
SECTION 9
RESTRICTED STOCK UNITS
9.1
Grant of Restricted Stock
Units
. Subject to the terms and conditions of the Plan, Restricted Stock
Units may be granted to Employees, Directors and Consultants at any time and
from time to time, as shall be determined by the Administrator in its
discretion.
9.2
Number of Restricted Stock
Units
. The Administrator will have complete discretion in determining the
number of Restricted Stock Units granted to any Participant, subject to the
limitations in Section 11.6.
9.3
Performance Objectives and
Other Terms
. The Administrator will set performance objectives or other
vesting provisions, including, without limitation, time-based vesting
provisions, in its discretion which, depending on the extent to which they are
met, will determine the number of Shares that will be paid out to Participants.
The time period during which the performance objectives or other vesting
provisions must be met will be called the Performance Period. Each Award of
Restricted Stock Units will be evidenced by an Award Agreement that will specify
the Performance Period, and such other terms and conditions as the
Administrator, in its discretion, will determine. The Administrator may set
performance objectives based upon the achievement of Company-wide or individual
goals or any other basis determined by the Administrator in its
discretion.
13
9.4
Earning of Restricted Stock
Units
. After the applicable Performance Period has ended, the holder of
Restricted Stock Units will be entitled to receive a payout of the number of
Restricted Stock Units 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. After the grant of a
Restricted Stock Unit, the Administrator, in its discretion, may reduce or waive
any performance objectives or other vesting provisions for such Restricted Stock
Unit.
9.5
Form and Timing of Payment
of Restricted Stock Unit Units
. Payment of earned Restricted Stock Units
will be made as soon as practicable after the expiration of the applicable
Performance Period. The Administrator shall settle earned Restricted Stock Units
in Shares.
9.6
Cancellation of Restricted
Stock Units
. On the date set forth in the Award Agreement, all unearned or
unvested Restricted Stock Units will be forfeited to the Company, and again will
be available for grant under the Plan.
9.7
Section 162(m) Performance
Restrictions
. For purposes of qualifying grants of Restricted Stock Units as
performance-based compensation under Section 162(m) of the Code, the
Administrator, in its discretion, may set restrictions based upon the
achievement of Performance Goals. The Performance Goals shall be set by the
Administrator on or before the latest date permissible to enable the Restricted
Stock Units to qualify as performance-based compensation under Section 162(m)
of the Code. In granting Restricted Stock Units which are intended to qualify
under Section 162(m) of the Code, the Administrator shall follow any procedures
determined by it from time to time to be necessary or appropriate to ensure
qualification of the Restricted Stock Units under Section 162(m) of the Code
(e.g., in determining the Performance Goals).
SECTION 10
PERFORMANCE SHARES AND PERFORMANCE UNITS
10.1
Grant of Performance
Shares/Units
. Subject to the terms and conditions of the Plan, Performance
Shares and Performance Units may be granted to Employees, Directors and
Consultants at any time and from time to time, as shall be determined by the
Administrator in its discretion.
10.1.1
Number of Units or
Shares
. The Administrator will have complete discretion in determining the
number of Performance Shares and Performance Units granted to any Participant,
subject to the limitations in Section 11.6, provided that during any Fiscal
Year, (a) no Participant shall receive Performance Units or Performance Shares
having an initial Imputed Value (defined in Section 8.1.3) greater than
$5,000,000, except that such Participant may receive Performance Units or
Performance Shares in a Fiscal Year in which his or her service as an Employee
first commences with an initial value no greater than $10,000,000.
10.1.2
Value of Performance
Shares/Units
. Each Performance Unit will have an initial Imputed Value that
is established by the Administrator on or before the Grant Date in accordance
with Section 8.1.3. Each Performance Share will have an initial Imputed Value
equal to the Fair Market Value of a Share on the Grant Date.
10.2
Performance Objectives and
Other Terms
. The Administrator will set performance objectives or other
vesting provisions, including, without limitation, time-based vesting
provisions, in its discretion which, depending on the extent to which they are
met, will determine the number or value of Performance Shares/Units that will be
paid out to Participants. 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 Shares/Units will be evidenced
by an Award Agreement that will specify the Performance Period, and such other
terms and conditions as the Administrator, in its discretion, will determine.
The Administrator may set performance objectives based upon the achievement of
Company-wide or individual goals or any other basis determined by the
Administrator in its discretion.
14
10.3
Earning of Performance
Shares/Units
. After the applicable Performance Period has ended, the holder
of Performance Units/Shares will be entitled to receive a payout of the number
of Performance Units/Shares 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. After the
grant of a Performance Unit/Share, the Administrator, in its discretion, may
reduce or waive any performance objectives or other vesting provisions for such
Performance Unit/Share.
10.4
Form and Timing of Payment
of Performance Shares/Units
. Payment of earned Performance Shares/Units will
be made as soon as practicable after the expiration of the applicable
Performance Period. The Administrator, in its discretion, may pay earned
Performance Shares/Units in the form of cash, in Shares (which have an aggregate
Fair Market Value equal to the value of the earned Performance Units/Shares at
the close of the applicable Performance Period) or in a combination
thereof.
10.5
Cancellation of
Performance Shares/Units
. On the date set forth in the Award Agreement, all
unearned or unvested Performance Shares/Units will be forfeited to the Company,
and again will be available for grant under the Plan.
SECTION
11
MISCELLANEOUS
11.1
Change In
Control
11.1.1
Generally
. In the
event of a Change in Control, unless an Award is assumed or substituted by the
successor corporation, then (i) such Awards shall become fully exercisable as of
the date of the Change in Control, whether or not then exercisable; and (ii) all
restrictions and conditions on any Award then outstanding shall lapse as of the
date of the Change in Control.
11.1.2
Options and SARs
. If
the Administrator determines that Options and SARs will be assumed or an
equivalent option or right substituted by the successor corporation or a parent
or Subsidiary of the successor corporation, then
(a) In
the event that the successor corporation refuses to assume or substitute for the
Option or SAR, the Options and SARs held by such Participant shall immediately
become one hundred percent (100%) exercisable. In such event, the Company shall
notify the Participant in writing or electronically that the Options and SARs
are fully exercisable (subject to the consummation of the Change in Control) for
a period of forty-five (45) days from the date of such notice, and the Option or
SAR shall terminate upon the expiration of such period.
(b)
For the purposes of this Section 11.1.2, the Option or SAR shall be considered
assumed if, following the Change in Control, the option or SAR confers the right
to purchase or receive, for each Share subject to the Option or SAR immediately
prior to the Change in Control, the consideration (whether stock, cash, or other
securities or property) received in the Change in Control event by holders of
Shares for each Share held on the closing 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 or the Board
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option or SAR, for each
Share subject to the Option or SAR, 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 Shares in the Change in Control, as
determined on the date of the Change in Control.
15
11.1.3
Restricted Stock
. If
the Administrator determines that any Company repurchase or reacquisition right
with respect to outstanding Shares of Restricted Stock held by the Participant
will be assigned to the successor corporation, then in the event that the
successor corporation refuses to accept the assignment of any such Company
repurchase or reacquisition right, such Company repurchase or reacquisition
right will immediately lapse and the Participant will become one hundred percent
(100%) vested in such Shares of Restricted Stock prior to the closing of the
Change in Control event.
11.1.4
Restricted Stock Units;
Performance Shares/Units
. If the Administrator determines that Restricted
Stock Units or Performance Shares/Units will be assumed or an equivalent option
or right substituted by the successor corporation or a parent or Subsidiary of
the successor corporation, then
(a) in
the event that the successor corporation refuses to assume or substitute for the
Restricted Stock Units or Performance Shares/Units, 100% of all vesting or
performance objectives will be deemed achieved and all other terms and
conditions met immediately prior to the closing of the Change in Control event.
(b)
For the purposes of this Section 11.1.4, the Restricted Stock Unit or
Performance Share/Unit shall be considered assumed if, following the Change in
Control, the Restricted Stock Unit or Performance Share/Unit confers the right
to purchase or receive, for each Share subject to the Restricted Stock Unit or
Performance Share/Unit 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 Shares 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 or the Board may, with the consent of the successor
corporation, provide for the consideration to be received upon the payout of a
Restricted Stock Unit or Performance Share/Unit, for each Share subject to such
Award (or, in the case of Performance Units, the number of implied Shares
determined by dividing the value of the Performance Units by the per share
consideration received by holders of Shares), 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 Shares in the Change in Control, as
determined on the date of the Change in Control. Notwithstanding anything in
this Section 11.1.4 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 Participants consent; provided, however, that a modification to
such performance goals only to reflect the successor corporations post Change
in Control corporate structure will not be deemed to invalidate an otherwise
valid Award assumption.
11.2
Dissolution or
Liquidation
. In the event of the proposed dissolution or liquidation of the
Company, the Administrator shall notify each Participant as soon as practicable
prior to the effective date of such proposed transaction. The Administrator in
its discretion may provide for a Participant to have the right to exercise his
or her Award until ten (10) days prior to such transaction as to all of the
Shares covered thereby, including Shares as to which the Award would not
otherwise be exercisable. In addition, the Administrator may provide that any
Company repurchase rights applicable to any Shares purchased upon exercise of an
Award shall lapse as to all such Shares, provided the proposed dissolution or
liquidation takes place at the time and in the manner contemplated. To the
extent it has not been previously exercised, an Award will terminate immediately
prior to the consummation of such proposed action.
11.3
Deferrals
. The
Administrator, in its 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 in
accordance with Code Section 409A and subject to such rules and procedures as
shall be determined by the Administrator in its discretion.
16
11.4
No Effect on Employment or
Service
. Nothing in the Plan shall interfere with or limit in any way the
right of the Company or an Affiliate to terminate any Participants employment
or service at any time, with or without cause. Unless otherwise provided by
written contract, employment with the Company and its Affiliates is on an
at-will basis only. Additionally, the Plan shall not confer upon any Nonemployee
Director any right with respect to continuation of service as a Director or
nomination to serve as a Director, nor shall it interfere in any way with any
rights which such Nonemployee Director or the Company may have to terminate his
or her directorship at any time.
11.5
Participation
. No
Employee or Consultant shall have the right to be selected to receive an Award
under this Plan, or, having been so selected, to be selected to receive a future
Award.
11.6
Limitations on Awards
.
No Participant shall be granted an Award in any Fiscal Year for Shares
representing more than the lesser of (i) one percent (1%) of the Companys total
number of outstanding Shares immediately prior to the issuance of such Award, or
(ii) two million (2,000,000) Shares; provided, however, that such limitation
shall be adjusted proportionately in connection with any change in the Companys
capitalization as described in Section 4.4.
11.7
Successors
. All
obligations of the Company under the Plan, with respect to Awards granted
hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
or assets of the Company.
11.8
Beneficiary
Designations
. If permitted by the Administrator, a Participant under the
Plan may name a beneficiary or beneficiaries to whom any vested but unpaid Award
shall be paid in the event of the Participants death. Each such designation
shall revoke all prior designations by the Participant and shall be effective
only if given in a form and manner acceptable to the Administrator. In the
absence of any such designation, any vested benefits remaining unpaid at the
Participants death shall be paid to the Participants estate and, subject to
the terms of the Plan and of the applicable Award Agreement, any unexercised
vested Award may be exercised by the administrator or executor of the
Participants estate.
11.9
Limited Transferability of
Awards
. No Award granted under the Plan may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will, by the
laws of descent and distribution. All rights with respect to an Award granted to
a Participant shall be available during his or her lifetime only to the
Participant. Notwithstanding the foregoing, the Participant may, in a manner
specified by the Administrator, (a) transfer a Nonqualified Stock Option to a
Participants spouse, former spouse or dependent pursuant to a court-approved
domestic relations order which relates to the provision of child support,
alimony payments or marital property rights, and (b) transfer a Nonqualified
Stock Option by bona fide gift and not for any consideration, to (i) a member or
members of the Participants immediate family, (ii) a trust established for the
exclusive benefit of the Participant and/or member(s) of the Participants
immediate family, (iii) a partnership, limited liability company of other entity
whose only partners or members are the Participant and/or member(s) of the
Participants immediate family, or (iv) a foundation in which the Participant
an/or member(s) of the Participants immediate family control the management of
the foundations assets. In no event may an Award hereunder be transferred for
value.
11.10
Restrictions on Share
Transferability
. The Administrator may impose such restrictions on any
Shares acquired pursuant to the exercise of an Award as it may deem advisable,
including, but not limited to, restrictions related to applicable federal
securities laws, the requirements of any national securities exchange or system
upon which Shares are then listed or traded, or any blue sky or state securities
laws.
17
11.11
Buyout Provisions
.
The Administrator may at any time offer to buy out for a payment in cash or
Shares, an Award previously granted based on such terms and conditions as the
Administrator shall establish and communicate to the Participant at the time
that such offer is made, provided, however, that no offers may be made to buy
out Awards of Options or SARs which have Exercise Prices which exceed the Fair
Market Value of the Companys Common Stock at the time of such buy out
offer.
11.12
No Rights as
Stockholder
. Except to the limited extent provided in Sections 7.6 and 7.7,
no Participant (nor any beneficiary) shall have any of the rights or privileges
of a stockholder of the Company with respect to any Shares issuable pursuant to
an Award (or exercise thereof), unless and until certificates representing such
Shares shall have been issued, recorded on the records of the Company or its
transfer agents or registrars, and delivered to the Participant (or
beneficiary).
SECTION 12
AMENDMENT, TERMINATION, AND DURATION; RE-PRICING
PROHIBITED
12.1
Amendment, Suspension, or
Termination
. Except as provided in Section 12.2, the Board, in its sole
discretion, may amend, suspend or terminate the Plan, or any part thereof, at
any time and for any reason. The amendment, suspension, or termination of the
Plan shall not, without the consent of the Participant, alter or impair any
rights or obligations under any Award theretofore granted to such Participant.
No Award may be granted during any period of suspension or after termination of
the Plan.
12.2 No
Amendment or Re-Pricing
without Stockholder Approval
. The Company shall obtain stockholder approval
of any material Plan amendment to the extent necessary or desirable to comply
with the rules of the NYSE, the Exchange Act, Section 422 of the Code, or other
Applicable Law. The Company shall not, without prior stockholder approval,
reduce the exercise or purchase price of any outstanding Options, SARs or other
Awards (other than for adjustments made pursuant Section 4.4), or cancel or
re-grant Options, SARs for other Awards with a lower exercise price.
12.3
Plan Effective Date and
Duration of Awards
. The Plan Effective Date shall be May 27, 2004, subject
to Sections 12.1 and 12.2 (regarding the Boards right to amend or terminate the
Plan), and shall remain in effect thereafter. However, without further
stockholder approval, no Award may be granted under the Plan more than ten (10)
years after the Plan Effective Date.
SECTION 13
TAX
WITHHOLDING
13.1
Withholding
Requirements
. Prior to the delivery of any Shares or cash pursuant to an
Award (or exercise thereof), the Company shall have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy federal, state, and local taxes (including the
Participants FICA obligation) required to be withheld with respect to such
Award (or exercise thereof).
13.2
Withholding
Arrangements
. The Administrator, in its discretion and pursuant to such
procedures as it may specify from time to time, may permit a Participant to
satisfy such tax withholding obligation, in whole or in part by (a) electing to
have the Company withhold otherwise deliverable Shares, or (b) delivering to the
Company already-owned Shares having a Fair Market Value equal to the minimum
amount required to be withheld. The amount of the withholding requirement shall
be deemed to include any amount which 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 with respect to the Award on the date that the amount of tax to be
withheld is to be determined. The Fair Market Value of the Shares to be withheld
or delivered shall be determined as of the date taxes are required to be
withheld. The number of Shares withheld to satisfy minimum withholding
requirements shall be cancelled and shall not be available for grant again under
the Plan.
18
SECTION 14
LEGAL
CONSTRUCTION
14.1
Liability of Company
.
The inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Companys counsel to be necessary
to the lawful grant or any Award or the issuance and sale of any Shares
hereunder, shall relieve the Company, its officers, Directors and Employees of
any liability in respect of the failure to grant such Award or to issue or sell
such Shares as to which such requisite authority shall not have been
obtained.
14.2
Grants Exceeding Allotted
Shares
. If the Shares covered by an Award exceed, as of the date of grant,
the number of Shares, which may be issued under the Plan without additional
stockholder approval, such Award shall be void with respect to such excess
Shares, unless stockholder approval of an amendment sufficiently increasing the
number of Shares subject to the Plan is timely obtained.
14.3
Gender and Number
.
Except where otherwise indicated by the context, any masculine term used herein
also shall include the feminine; the plural shall include the singular and the
singular shall include the plural.
14.4
Severability
. In the
event any provision of the Plan shall be held illegal or invalid for any reason,
the illegality or invalidity shall not affect the remaining parts of the Plan,
and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.
14.5
Requirements of Law
.
The granting of Awards and the issuance of Shares under the Plan shall be
subject to all applicable laws, rules, and regulations, and to such approvals by
any governmental agencies or national securities exchanges as may be
required.
14.6
Securities Law
Compliance
. With respect to Section 16 individuals, transactions under this
Plan are intended to comply with all applicable conditions of Rule 16b-3. To the
extent any provision of the Plan, Award Agreement or action by the Administrator
fails to so comply, it shall be deemed null and void, to the extent permitted by
law and deemed advisable by the Administrator.
14.7
Governing Law
. The
Plan and all Award Agreements shall be construed in accordance with and governed
by the laws of the State of California.
14.8
Captions
. Captions are
provided herein for convenience only, and shall not serve as a basis for
interpretation or construction of the Plan.
SECTION 15
EXECUTION
IN WITNESS WHEREOF, the Company, by
its duly authorized officer, has executed this Plan on the date indicated
below.
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SYBASE, INC.
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Dated: April 14, 2009
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By:
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/s/ Daniel R. Carl
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Daniel R. Carl
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Vice President,
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General Counsel and Secretary
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19
FORM OF PROXY
SYBASE, INC.
ANNUAL MEETING OF STOCKHOLDERS
April 14,
2009
THIS PROXY IS SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS
The undersigned acknowledges
receipt of the Notice of Annual Meeting of Stockholders and Proxy Statement
dated March 18, 2009, and hereby appoints Jeff Ross, Amanda Duisman and Daniel
Cohen, or any of them, with full power of substitution, attorneys and proxy
holders to vote, as indicated on the reverse side, all shares of Common Stock of
SYBASE, INC., a Delaware corporation (the Company), which the undersigned is
entitled to vote at the Annual Meeting of Stockholders to be held April 14, 2009
at 10:00 a.m. local time at the offices of the Company, United Nations
Conference Room, One Sybase Drive, Dublin, California 94568, and at any
adjournment thereof, and to vote all shares of Common Stock which the
undersigned would be entitled to vote, if personally present at such meeting, on
the matters set forth on the reverse side.
(CONTINUED AND TO BE SIGNED ON
REVERSE SIDE)
SYBASE,
INC.
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Vote on
Directors
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1.
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Election of
Directors
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For All
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Withhold All
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For All Except:
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To withhold authority to vote,
mark For All Except and write the nominees number on the line
below:
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Nominees
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1) John S. Chen
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o
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2) Richard C.
Alberding
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3) Michael A.
Daniels
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4) Alan B.
Salisbury
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5) Jack E. Sum
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Vote on
Proposals
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2.
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Ratification of Ernst &
Young LLP as independent registered public accounting firm for
2009
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For
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Against
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Abstain
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o
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3.
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Approve amendments to the
Sybase, Inc. Amended and Restated 2003 Stock Plan, that among other
matters, increase the share reserve by 5,000,000 shares and approve its
material terms and performance goals for purposes of Internal Revenue Code
Section 162(m)
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For
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Against
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Abstain
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o
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In their discretion, the proxy
holders are authorized to vote upon such other matters that may properly come
before the meeting or any adjournment or adjournments thereof.
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Signature (Please Sign Within Box)
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Date
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Signature (Joint Owner)
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Date
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