nvls_Ex_102


		
			Exhibit 10.2
		

		
			NOTICE OF INDUCEMENT STOCK OPTION GRANT
		

		
			 
		

		
			NIVALIS THERAPEUTICS, INC. 
		

		
			 
		

		
			As an inducement to enter employment with Nivalis Therapeutics, Inc. (the “Company”), you (“you” or “Participant”) have been awarded an option to purchase Shares (the “Option”) subject to the terms and conditions of this Notice of Inducement Stock Option Grant (the “Notice of Grant”) and the attached Inducement Stock Option Agreement (the “Option Agreement”), including that you consent to electronic delivery as set forth in the Option Agreement. This Option is intended to serve as an inducement that is material to your decision to enter into employment with the Company and to qualify as an “inducement award” within the meaning of Rule 4350(i)(1)(A)(iv) of the NASDAQ Marketplace Rules. Capitalized terms used in this Notice of Grant that are not otherwise defined herein shall have the meanings given such terms in Exhibit A attached to the Option Agreement.
		

		
			 
		

		
			 
		

			
					
						 

					
					
						 

					
					
						 

				
	
					
						Name:

					
					
						 

					
					
						 David M. Rodman, M.D.

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Grant Number:

					
					
						 

					
					
						 IND2016-01

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Date of Grant:

					
					
						 

					
					
						 April 18, 2016

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Type of Option:

					
					
						 

					
					
						 Nonqualified Stock Option

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Vesting Commencement Date:

					
					
						 

					
					
						 April 18, 2016

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Total Number of Shares:

					
					
						 

					
					
						 108,333

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Exercise Price per Share:

					
					
						 

					
					
						 $4.68

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Expiration Date:

					
					
						 

					
					
						 April 18, 2026

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Vesting Schedule:

					
					
						 

					
					
						Subject to the limitations set forth in this Notice of Grant and the Option Agreement, and so long as your Service continues, the Shares shall vest as follows: No Shares shall vest prior to the one-year anniversary of the Vesting Commencement Date, then twenty-five percent (25%) of the Shares shall vest on the one-year anniversary of the Vesting Commencement Date, and one forty-eighth (1/48th) of the Shares will vest on each one-month anniversary thereafter, such that the Shares shall fully vest on the fourth anniversary of the Vesting Commencement Date. On the vesting dates, the number of Shares vested shall be rounded down to the next whole number of Shares.

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						Additional Terms:

					
					
						 

					
					
						 

				



		
			 
		

		
			
		

		
			


		 


 


By the signatures below, you and the Company agree that this Option is subject to the Option Agreement, including all attached exhibits and documents incorporated by reference therein. You acknowledge receipt of copies of this Notice and the Option Agreement, and you hereby accept this Option subject to all of the terms and conditions of the aforementioned documents.  You acknowledge that the vesting of the Shares pursuant to this Notice of Grant is earned only by continuing Service as an Employee, Consultant or Director of the Company, unless the Committee determines otherwise in its discretion.
		

		
			 
		

		
			 
		

			
					
						PARTICIPANT

					
					
						 

					
					
						NIVALIS THERAPEUTICS, INC.

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						        Jon Congleton

				
	
					
						Print Name:

					
					
						 

					
					
						 David M. Rodman

					
					
						 

					
					
						Its:

					
					
						 Chief Executive Officer

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						Signature:

					
					
						 

					
					
						 /s/ David Rodman

					
					
						 

					
					
						By:

					
					
						 /s/ Jon Congleton

				



		
			 
		

		
			 
		

		
			
		

		
			


		 


 


INDUCEMENT STOCK OPTION AGREEMENT
		

		
			 
		

		
			 
		

		
			David M. Rodman, M.D. (“Participant”) has been granted an option to purchase Shares (the “Option”) by Nivalis Therapeutics, Inc., a Delaware corporation (the “Company”).  The Company and Participant entered into this Inducement Stock Option Agreement (this “Option Agreement”) as of April 18, 2016 as an inducement that is material to Participant’s decision to enter into employment with the Company. This Option is intended to qualify as an “inducement award” within the meaning of Rule 4350(i)(1)(A)(iv) of the NASDAQ Marketplace Rules.  The Option is subject to the terms, restrictions and conditions of the Notice of Inducement Stock Option Grant (“Notice of Grant”) and this Option Agreement. Unless otherwise defined herein, capitalized terms will have the meanings given such terms in Exhibit A attached hereto.
		

		
			 
		

		
			1.Grant of Option. Participant has been granted an Option for the number of Shares set forth in the Notice of Grant at the exercise price per Share set forth in the Notice of Grant (the “Exercise Price”). The Option is a Nonqualified Stock Option (“NSO”).
		

		
			 
		

		
			2.Termination Period.
		

		
			 
		

		
			(a)General Rule. If Participant’s Service terminates for any reason, the unvested portion of the Option shall be forfeited to the Company upon termination, and all rights Participant has to Shares subject to the unvested portion of this Option shall immediately terminate. Except as provided is this Section 2, the Shares subject to the outstanding and vested portion of the Option Award may be exercised for three (3) months after Participant’s termination of Service. Notwithstanding the foregoing, in no event shall this Option be exercised later than the Expiration Date set forth in the Notice of Grant.
		

		
			 
		

		
			(b)Termination by the Company. If the employment agreement between the Company and Participant is terminated by the Company prior to the end of the initial or any renewal term other than (i) as a result of Participant’s death or (ii) for Cause, then the unvested portion of this Option scheduled to vest in the twelve (12) month period following the date of such termination shall immediately vest; provided, however, that this Section 2(b) will not diminish the acceleration of vesting contemplated by Section 2(e) below in connection with a Corporate Transaction.
		

		
			 
		

		
			(c)Death; Disability. If Participant dies before Participant’s Service terminates, any unvested portion of this Option will become vested and exercisable by Participant’s beneficiary until six months after the date of Participant’s death. If Participant’s Service terminates due to Disability, then Participant may exercise the outstanding and vested portion of this Option until six (6) months after Participant’s termination date. Notwithstanding the foregoing, in no event shall this Option be exercised later than the Expiration Date set forth in the Notice of Grant.
		

		
			 
		

		
			(d)Cause.  Notwithstanding Section 2(a), if Participant’s Service terminates for Cause, all Shares subject to this Option shall be forfeited to the Company upon termination, all rights Participant has under this Option shall immediately terminate, and this Option will expire on Participant’s termination date.
		

		
			 
		

		
			(e)Corporate Transaction.  Notwithstanding Section 2(a), any unvested portion of the Option will become vested and exercisable if, within twelve (12) months following a Corporate Transaction, Participant’s employment is either terminated by the Company without Cause or Participant resigns for Good Reason.  “Good Reason” means (i) the definition set for the in any employment agreement between Participant and the Company, or (ii) if there is no such employment agreement, or such agreement does not define Good Reason, (A) a ten percent (10%) or more reduction in Participant’s salary to which Participant has not consented; (B) a material diminution in Participant’s authority, duties or responsibilities without Participant’s consent (which shall not include a change in reporting 
		

		
			
		

		
			


		 


 


obligations resulting from a Corporate Transaction); (C) a requirement by the Company, without Participant’s consent, that Participant’s primary work site be relocated to a site that is more than twenty five (25) miles away from Participant’s work site prior to the Corporate Transaction; or (D) any other action or inaction that constitutes a material breach by the Company of Participant’s employment agreement, if any.  Notwithstanding the foregoing, a termination of Participant for Good Reason shall not have occurred unless (i) Participant gives written notice to the Company, of termination within thirty (30) days after Participant first becomes aware of the occurrence of the circumstances constituting Good Reason, specifying in reasonable detail the circumstances constituting Good Reason, (ii) the Company has failed within thirty (30) days after receipt of such notice to cure the circumstances constituting Good Reason, and (iii) Participant terminates employment within five (5) days after the Company’s cure period ends.
		

		
			 
		

		
			(f)No Notice. Participant is responsible for keeping track of these exercise periods following Participant’s termination of Service for any reason. The Company will not provide further notice of such periods. In no event shall this Option be exercised later than the Expiration Date set forth in the Notice of Grant.
		

		
			 
		

		
			(g)Occurrence of a Termination of Service.  In case of any dispute as to whether Participant’s termination of Service has occurred, the Committee shall have sole discretion to determine whether such termination has occurred and the effective date of such termination.
		

		
			 
		

		
			3.Exercise of Option.
		

		
			 
		

		
			(a)Right to Exercise. This Option is exercisable during its term in accordance with the Vesting Schedule set forth in the Notice of Grant and this Option Agreement. In the event of Participant’s death, Disability, or other cessation of Service, the exercisability of the Option is governed by the applicable provisions of the Notice of Grant and this Option Agreement. This Option may not be exercised for a fraction of a Share.
		

		
			 
		

		
			(b)Method of Exercise. This Option is exercisable by delivery of an exercise notice in a form specified by the Company (the “Exercise Notice”), which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the “Exercised Shares”), and such other representations and agreements as may be required by the Company. The Exercise Notice shall be delivered in person, by mail, via electronic mail or facsimile or by other authorized method to the Secretary of the Company or other person designated by the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of a fully executed Exercise Notice accompanied by the aggregate Exercise Price and any applicable tax withholding due upon exercise of the Option.
		

		
			 
		

		
			(c)Exercise by Another. If another person wants to exercise this Option after it has been transferred to him or her in compliance with this Option Agreement, that person must prove to the Company’s satisfaction that he or she is entitled to exercise this Option. That person must also complete the proper Exercise Notice form (as described above) and pay the Exercise Price (in a payment method described below) and any applicable tax withholding due upon exercise of the Option (as described below).
		

		
			 
		

		
			4.Method of Payment. Payment of the aggregate Exercise Price shall be by any of the following, or a combination thereof, at Participant’s election:
		

		
			 
		

		
			(a)Participant’s personal check, wire transfer, or a cashier’s check;
		

		
			 
		

		
			
		

		
			


		 


 


(b)certificates for shares of Company stock that Participant owns, along with any forms needed to effect a transfer of those shares to the Company; the value of the shares, determined as of the effective date of the Option exercise, will be applied to the aggregate Exercise Price. Instead of surrendering shares of Company stock, Participant may attest to the ownership of those shares on a form provided by the Company and have the same number of shares subtracted from the Option shares issued to Participant. However, Participant may not surrender, or attest to the ownership of, shares of Company stock in payment of the aggregate Exercise Price if Participant’s action would cause the Company to recognize compensation expense (or additional compensation expense) with respect to this Option for financial reporting purposes;
		

		
			 
		

		
			(c)cashless exercise through irrevocable directions to a securities broker approved by the Company to sell all or part of the Shares covered by this Option and to deliver to the Company from the sale proceeds an amount sufficient to pay the aggregate Exercise Price and any withholding taxes. The balance of the sale proceeds, if any, will be delivered to Participant. The directions must be given by signing a special notice of exercise form provided by the Company; or
		

		
			 
		

		
			(d)other method authorized by the Company.
		

		
			 
		

		
			5.Non-Transferability of Option. Participant may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of this Option, except as provided below, and any attempt to do so will immediately render this Option invalid. Participant may designate a beneficiary who will receive the vested and outstanding portion of this Option in the event of Participant’s death.  This Option may be transferred by will or by the laws of descent and distribution or court order and may be exercised during the lifetime of Participant only by Participant, Participant’s guardian, or legal representative.  The Committee may, in its sole discretion, allow Participant to transfer this Option to Participant’s spouse or former spouse pursuant to a domestic relations order in settlement of marital property rights. The Committee will allow Participant to transfer this Option only if both Participant and the transferee(s) execute the forms prescribed by the Committee, which include the consent of the transferee(s) to be bound by this Option Agreement. The terms of this Option Agreement shall be binding upon the executors, administrators, heirs and successors of Participant.
		

		
			 
		

		
			6.Tax Consequences. Participant should consult a tax advisor for tax consequences relating to this Option in the jurisdiction in which Participant is subject to tax. Participant should consult a tax adviser before exercising the Option or disposing of the Shares acquired in exercising the Option. Participant will not be allowed to exercise this Option unless Participant makes arrangements acceptable to the Company to pay any withholding taxes that may be due as a result of the Option exercise.
		

		
			 
		

		
			7.Withholding Taxes and Stock Withholding. Regardless of any action the Company or Participant’s actual employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by Participant is and remains Participant’s responsibility and that the Company and/or the Employer (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Option grant, including the grant, vesting or exercise of the Option, the subsequent sale of Shares acquired pursuant to such exercise and the receipt of any dividends; and (b) do not commit to structure the terms of the grant or any aspect of the Option to reduce or eliminate Participant’s liability for Tax-Related Items.
		

		
			 
		

		
			Prior to exercise of the Option, Participant shall pay or make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the Employer. In this regard, Participant authorizes the Company and/or the Employer to withhold all applicable Tax-Related Items legally payable by Participant from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Employer. With the Company’s consent, these arrangements may also include, if permissible under local law, (i) withholding Shares that otherwise 
		

		
			
		

		
			


		 


 


would be issued to Participant when Participant exercises this Option, provided that the Company only withholds the amount of Shares necessary to satisfy the minimum statutory withholding amount, (ii) having the Company withhold taxes from the proceeds of the sale of the Shares, either through a voluntary sale or through a mandatory sale arranged by the Company (on Participant’s behalf pursuant to this authorization), or (iv) any other arrangement approved by the Company. The Fair Market Value of these Shares, determined as of the effective date of the Option exercise, will be applied as a credit against the withholding taxes. Finally, Participant shall pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold as a result of Participant’s purchase of Shares that cannot be satisfied by the means previously described. The Company may refuse to honor the exercise and refuse to deliver the Shares if Participant fails to comply with Participant’s obligations in connection with the Tax-Related Items as described in this Section.
		

		
			 
		

		
			8.Acknowledgement. The Company and Participant agree that the Option is granted under and governed by the Notice of Grant and this Option Agreement. Participant hereby accepts the Option subject to all of the terms and conditions set forth herein and those set forth in the Notice of Grant and acknowledges receipt of any policy incorporated by reference under Section 15 of this Option Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Notice of Grant and this Option Agreement.
		

		
			 
		

		
			9.Consent to Electronic Delivery of All Documents and Disclosures. By Participant’s acceptance of this Option, Participant consents to the electronic delivery of the Notice of Grant, this Option Agreement, account statements, any prospectuses required by the Securities and Exchange Commission, U.S. financial reports of the Company, and all other documents that the Company is required to deliver to its security holders (including, without limitation, annual reports and proxy statements) or other communications or information related to the Option. Electronic delivery may include the delivery of a link to a Company intranet or the internet site of a third party involved in administering the Option, the delivery of the document via e-mail or such other delivery determined at the Company’s discretion. Participant acknowledges that Participant may receive from the Company a paper copy of any documents delivered electronically at no cost if Participant contacts the Company by telephone, through a postal service or electronic mail at Mike.Carruthers@nivalis.com. Participant further acknowledges that Participant will be provided with a paper copy of any documents delivered electronically if electronic delivery fails; similarly, Participant understands that Participant must provide on request to the Company or any designated third party a paper copy of any documents delivered electronically if electronic delivery fails. Also, Participant understands that Participant’s consent may be revoked or changed, including any change in the electronic mail address to which documents are delivered (if Participant has provided an electronic mail address), at any time by notifying the Company of such revised or revoked consent by telephone, postal service or electronic mail at Mike.Carruthers@nivalis.com. Finally, Participant understands that Participant is not required to consent to electronic delivery.
		

		
			 
		

		
			10.Entire Agreement; Enforcement of Rights. This Option Agreement and the Notice of Grant constitute the entire agreement and understanding of the parties relating to the subject matter herein and supersede all prior discussions between them. Except for applicable terms in a current and outstanding employment agreement by and between Participant and the Employer, any prior agreements, commitments or negotiations concerning the Option are superseded. No modification of or amendment to this Option Agreement, nor any waiver of any rights under this Option Agreement, shall be effective unless in writing and signed by the parties to this Option Agreement. The failure by either party to enforce any rights under this Option Agreement shall not be construed as a waiver of any rights of such party.
		

		
			 
		

		
			11.Compliance with Laws and Regulations. The Company will not permit anyone to exercise this Option if the issuance of shares at that time would violate any law or regulation, including without limitation all applicable state, federal and foreign laws and regulations and all applicable requirements of any stock exchange or automated quotation system on which the Company’s Common Stock may be listed or quoted at 
		

		
			
		

		
			


		 


 


the time of such issuance or transfer. The Shares issued pursuant to this Option Agreement shall be endorsed with appropriate legends, if any, determined by the Company.
		

		
			 
		

		
			12.Governing Law; Severability. This Option Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. For purposes of litigating any dispute that may arise directly or indirectly from the Notice of Grant and this Option Agreement, the parties hereby submit and consent to litigation in the exclusive jurisdiction of the State of Colorado and agree that any such litigation shall be conducted only in the courts of Colorado or the federal courts of the United States for the District of Colorado and no other courts. If one or more provisions of this Option Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Option Agreement, (b) the balance of this Option Agreement shall be interpreted as if such provision were so excluded and (c) the balance of this Option Agreement shall be enforceable in accordance with its terms.
		

		
			 
		

		
			13.No Rights as Employee, Consultant or Director. Subject to applicable law, nothing in this Option Agreement shall affect in any manner whatsoever the right or power of the Company, or a Parent or Subsidiary of the Company, to terminate Participant’s Service, for any reason, with or without Cause.
		

		
			 
		

		
			14.Lock-Up Agreement. Upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, Participant hereby agrees not to sell, make any short sale of, loan, grant any Option for the purchase of, or otherwise dispose of any securities of the Company however and whenever acquired (other than those included in the registration) without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed one hundred eighty (180) days) from the effective date of such registration as may be requested by the Company or such managing underwriters and to execute an agreement reflecting the foregoing as may be requested by the underwriters at the time of the public offering; provided however that, if during the last seventeen (17) days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or prior to the expiration of the restricted period the Company announces that it will release earnings results during the sixteen (16)-day period beginning on the last day of the restricted period, then, upon the request of the managing underwriter, to the extent required by any FINRA rules, the restrictions imposed by this Section shall continue to apply until the end of the third trading day following the expiration of the fifteen (15)-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. In no event will the restricted period extend beyond two hundred sixteen (216) days after the effective date of the registration statement.
		

		
			 
		

		
			15.Award Subject to Company Policies. To the extent permitted by applicable law, the Option and any Shares issued under the Option shall be subject to the following Company policies, which are incorporated herein by reference:  the Company’s Insider Trading Policy and the Company’s Incentive-Based Compensation Recoupment Policy.
		

		
			  
		

		
			16.No Guarantee of Service.  This Option shall not be deemed to give Participant a right to remain an Employee, consultant, director or non-employee director of the Company, a Parent, a Subsidiary or an Affiliate.  The Company and its Parents and Subsidiaries and Affiliates reserve the right to terminate the Service of Participant at any time, and for any reason, subject to applicable laws, the Company’s Articles of Incorporation and Bylaws and a written employment agreement (if any), and such terminated person shall be deemed irrevocably to have waived any claim to damages or specific performance for breach of contract or dismissal, compensation for loss of office, tort or otherwise with respect to the Option that is forfeited and/or is terminated by its terms.
		

		
			 
		

		
			
		

		
			


		 


 


17.Notices.  Any written notice to the Company required by any provisions of this Option Agreement shall be addressed as follows, and shall be effective when received:
		

		
			 
		

		
			Chief Financial Officer
		

		
			c/o Nivalis Therapeutics, Inc.
		

		
			3122 Sterling Circle, Suite 200
		

		
			Boulder, CO 80301.
		

		
			 
		

		
			Any written notice to Participant required by any provision of this Agreement shall be addressed to Participant at the address on record with the Company’s Human Resources department.  Notice shall be sent to either party prepaid by certified or registered mail or overnight courier, or delivered in person.
		

		
			 
		

		
			BY ACCEPTING THE OPTION, PARTICIPANT AGREES TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE.
		

		
			 
		

		
			 
		

		
			
		

		
			


		 


 


EXHIBIT A
		

		
			 
		

		
			Defined Terms
		

		
			 
		

		
			1“Affiliate” means any entity other than a Subsidiary, if the Company has a controlling interest, as defined in Treasury Regulation section 1.409A-1(b)(5)(iii)(E), in the affiliate.
		

		
			2“Board” means the Board of Directors of the Company.
		

		
			3“Cashless Exercise” means, to the extent that a Stock Option Agreement so provides and as permitted by applicable law, a program approved by the Committee in which payment may be made all or in part by delivery (on a form prescribed by the Committee) of an irrevocable direction to a securities broker to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate Exercise Price and, if applicable, the amount necessary to satisfy the Company’s withholding obligations at the minimum statutory withholding rates, including, but not limited to, U.S. federal and state income taxes, payroll taxes, and foreign taxes, if applicable.
		

		
			4“Cause” means, except as may otherwise be provided in a Participant’s employment agreement or Award agreement, a conviction of a Participant for a felony crime or the failure of a Participant to contest prosecution for a felony crime, or a Participant’s misconduct, fraud or dishonesty (as such terms are defined by the Committee in its sole discretion), or any unauthorized use or disclosure of confidential information or trade secrets, in each case as determined by the Committee, and the Committee’s determination shall be conclusive and binding.
		

		
			5“Code” means the Internal Revenue Code of 1986, as amended, and the regulations and interpretations promulgated thereunder.
		

		
			6“Committee” means the Compensation Committee of the Board.
		

		
			7“Common Stock” means the Company’s common stock, par value $0.001 per share.
		

		
			8“Company” means Nivalis Therapeutics, Inc., a Delaware corporation.
		

		
			9“Consultant” means an individual who performs bona fide services to the Company, a Parent, a Subsidiary or an Affiliate, other than as an Employee or Director or Non-Employee Director.
		

		
			10“Corporate Transaction” means the occurrence of any of the following: 
		

		
			(i)A report on Schedule 13D is filed with the SEC pursuant to Section 13(d) of the Exchange Act disclosing that any Person (as hereinafter defined) has acquired the beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the then outstanding securities of the Company; or 
		

		
			(ii)Any Person purchases securities pursuant to a tender offer or exchange offer to acquire securities of the Company (or securities convertible) for cash, securities or any other consideration, provided that after consummation of the offer, the person in question is the beneficial owner (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the then outstanding securities of the Company; or 
		

		
			
		

		
			


		 


 


(iii)The shareholders of the Company approve a reorganization, merger, consolidation, recapitalization, exchange offer, purchase of assets or other transaction, in each case, with respect to which the persons who were the beneficial owners of the Company immediately prior to such a transaction do not, immediately after consummation thereof, own more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged, recapitalized or resulting company’s then outstanding securities; or 
		

		
			(iv)The shareholders of the Company approve a liquidation or dissolution of the Company; or 
		

		
			(v)The Company approves a sale or otherwise transfers (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more related transactions, assets aggregating fifty percent (50%) or more of the book value of the assets of the Company and its Subsidiaries (taken as a whole).    
		

		
			“Person” shall mean and include any individual, corporation, partnership, group, association or other “person”, as such term is used in Sections 13(d) and 14(d) of the Exchange Act, other than the Company, a wholly owned Subsidiary of the Company or any employee benefit plan(s) sponsored by the Company or a Subsidiary.  For purposes of the definition of Company under this definition, the Company shall include any Parent, or company that owns at least fifty percent (50%) of the voting stock, of the Company.
		

		
			11“Director” means a member of the Board who is also an Employee.
		

		
			12“Disability” means that Participant is permanently and totally disabled as defined in Code Section 22(e).    
		

		
			13“Employee” means an individual who is a common-law employee of the Company, a Parent, a Subsidiary or an Affiliate.  The Committee shall have the discretion to determine the effect upon an Award and upon an individual’s status as an Employee in the case of (i) any individual who is classified by the Company or its Subsidiary or an Affiliate as leased from or otherwise employed by a third party or as intermittent or temporary, even if any such classification is changed retroactively as a result of an audit, litigation or otherwise, (ii) any leave of absence approved by the Company, Subsidiary or an Affiliate, (iii) any transfer between locations of employment with the Company, Subsidiary or an Affiliate or between the Company, Subsidiary and/or any Affiliate or between any Subsidiaries or Affiliates, (iv) any change in Participant’s status from an Employee to a Consultant or Non-Employee Director, and (v) at the request of the Company, a Subsidiary or an Affiliate any employee who becomes employed by any partnership, joint venture or corporation not meeting the requirements of a Subsidiary or an Affiliate in which the Company, Subsidiary or an Affiliate is a party.    
		

		
			14“Exchange Act” means the Securities Exchange Act of 1934, as amended.
		

		
			15“Exercise Price” means the amount for which a Share may be purchased upon exercise of such Option, as specified in the applicable Stock Option Agreement.
		

		
			16“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 on the Nasdaq or NYSE, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, 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 Committee deems reliable;
		

		
			
		

		
			


		 


 


(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 of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the day of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable; or
		

		
			(iii)In the absence of an established market for the Common Stock, the Committee shall determine the Fair Market Value by application of a reasonable valuation method.
		

		
			17“Non-Employee Director” means a member of the Board who is not an Employee.
		

		
			18“Parent” means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company, if each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 
		

		
			19“SEC” means the Securities and Exchange Commission.
		

		
			20“Securities Act” means the Securities Act of 1933, as amended.
		

		
			21“Service” means service as an Employee, Director, Non-Employee Director or Consultant.  A Participant’s Service does not terminate when continued service crediting is required by applicable law.  However, for purposes of determining whether an Option is entitled to continuing ISO status, a common-law employee’s Service will be treated as terminating ninety (90) days after such Employee went on leave, unless such Employee’s right to return to active work is guaranteed by law or by a contract.  Service terminates in any event when the approved leave ends, unless such Employee immediately returns to active work.  The Committee determines which leaves count toward Service, and when Service terminates for all purposes.  Further, unless otherwise determined by the Committee, a Participant’s Service shall not be deemed to have terminated merely because of a change in the capacity in which Participant provides service to the Company, a Parent, Subsidiary or Affiliate, or a transfer between entities (the Company or any Parent, Subsidiary, or Affiliate); provided that there is no interruption or other termination of Service.  If an Award is subject to Code Section 409A, then for purposes of determining whether a Participant is providing Service shall comply with Treasury Regulation section 1.409A-1(h) to the extent applicable.
		

		
			22“Share” means one share of Common Stock.
		

		
			23“Subsidiary” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.