Exhibit 4.7


 


VISX, INCORPORATED


 


2001 NONSTATUTORY STOCK OPTION PLAN


 


1. Purposes of the Plan. The purposes of this 2001
Nonstatutory Stock Option Plan are:


 


·                  to attract and retain the
best available personnel for positions of substantial responsibility,


 


·                  to provide additional
incentive to Employees and Consultants, and


 


·                  to promote the success of
the Company’s business.


 


Options granted under the Plan will be Nonstatutory Stock
Options.


 


2. Definitions. As used herein, the following
definitions shall apply:


 


(a) “Administrator” means the Board or any of its
Committees as shall be administering the Plan, in accordance with Section 4
of the Plan.


 


(b) “Applicable Laws” means the requirements
relating to the administration of stock option plans under U.S. state corporate
laws, U.S. federal and state securities laws, the Code, any stock exchange or
quotation system on which the Common Stock is listed or quoted and the
applicable laws of any foreign country or jurisdiction where Options are, or
will be, granted under the Plan.


 


(c) “Board” means the Board of Directors of the
Company.


 


(d) “Code” means the Internal Revenue Code of 1986,
as amended.


 


(e) “Committee” means a committee of Directors
appointed by the Board in accordance with Section 4 of the Plan.


 


(f) “Common Stock” means the Common Stock of the
Company.


 


(g) “Company” means VISX, Incorporated, a Delaware
corporation.


 


(h) “Consultant” means any person, including an
advisor, engaged by the Company or a Parent or Subsidiary to render services to
such entity.


 


(i) “Director” means a member of the Board.


 


(j) “Disability” means total and permanent
disability as defined in Section 22(e)(3) of the Code.


 

















 


(k) “Employee” means any person, including
Officers, employed by the Company or any Parent or Subsidiary of the Company. A
Service Provider shall not cease to be an Employee in the case of (i) any
leave of absence approved by the Company or (ii) transfers between
locations of the Company or between the Company, its Parent, any Subsidiary, or
any successor.


 


(l) “Exchange Act” means the Securities Exchange Act of
1934, as amended.


 


(m) “Fair Market Value” means, as of any date, the
value of Common Stock determined as follows:


 


(i) If
the Common Stock is listed on any established stock exchange or a national
market system, including without limitation the Nasdaq National Market or The
Nasdaq SmallCap Market of The Nasdaq Stock Market, 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 Administrator
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 Administrator deems reliable;


 


(iii) In
the absence of an established market for the Common Stock, the Fair Market
Value shall be determined in good faith by the Administrator.


 


(n) “Notice of Grant” means a written or electronic notice
evidencing certain terms and conditions of an individual Option grant. The
Notice of Grant is part of the Option Agreement.


 


(o) “Officer” means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.


 


(p) “Option” means a nonstatutory stock option granted
pursuant to the Plan, that is not intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the regulations
promulgated thereunder.


 


(q) “Option Agreement” means an agreement between the
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of
the Plan.


 


(r) “Optioned Stock” means the Common Stock subject to an
Option.


 


(s) “Optionee” means the holder of an outstanding Option
granted under the Plan.


 


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(t) “Parent” means a “parent corporation,” whether
now or hereafter existing, as defined in Section 424(e) of the Code.


 


(u) “Plan” means this 2001 Nonstatutory Stock
Option Plan.


 


(v) “Service Provider” means an Employee including
an Officer or Consultant.


 


(w) “Share” means a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.


 


(x) “Subsidiary” means a “subsidiary corporation,”
whether now or hereafter existing, as defined in Section 424(f) of
the Code.


 


3. Stock
Subject to the Plan. Subject to the
provisions of Section 12 of the Plan, the maximum aggregate number of
Shares which may be optioned and sold under the Plan is Three Million
(3,000,000) Shares. The Shares may be authorized, but unissued, or reacquired
Common Stock.


 


If an Option expires or becomes unexercisable without
having been exercised in full, the unpurchased Shares which were subject
thereto shall become available for future grant or sale under the Plan (unless
the Plan has terminated); provided, however, that Shares that have actually
been issued under the Plan, upon exercise of an Option, shall not be returned
to the Plan and shall not become available for future distribution under the
Plan.


 


4. Administration of the Plan


 


(a) Administration. The Plan shall be administered by (i) the
Board or (ii) a Committee or Committees, which committee(s) shall be
constituted to satisfy Applicable Laws.


 


(b) Powers of the Administrator. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator shall have the authority, in
its discretion:


 


(i) to determine the Fair Market Value of the
Common Stock in accordance with Section 2(m) of the Plan;


 


(ii) to select the Service Providers to whom
Options may be granted hereunder;


 


(iii)  to determine whether and to what extent Options are
granted hereunder;


 


(iv) to determine the number of shares of Common
Stock to be covered by each Option granted hereunder;


 


(v) to approve forms of agreement for use under the
Plan;


 


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(vi) to
determine the terms and conditions, not inconsistent with the terms of the
Plan, of any Option granted hereunder. Such terms and conditions include, but
are not limited to, the exercise price, the time or times when Options may be
exercised (which may be based on performance criteria), any vesting
acceleration or waiver of forfeiture restrictions, and any restriction or
limitation regarding any Option or the shares of Common Stock relating thereto,
based in each case on such factors as the Administrator, in its sole discretion,
shall determine;


 


(vii) to
construe and interpret the terms of the Plan and Options granted pursuant to
the Plan;


 


(viii) to
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules and regulations relating to sub-plans established for the
purpose of qualifying for preferred tax treatment under foreign tax laws;


 


(ix) to
modify or amend each Option (subject to Section 14(b) of the Plan),
including the discretionary authority to extend the post-termination
exercisability period of Options longer than is otherwise provided for in the
Plan; provided that the Board may not amend any Option to reduce the exercise
price of the option below 100% of the Fair Market Value per Share on the date
of grant;


 


(x) to
authorize any person to execute on behalf of the Company any instrument
required to effect the grant of an Option previously granted by the
Administrator;


 


(xi) to
determine the terms and restrictions applicable to Options; and


 


(xii) to
make all other determinations deemed necessary or advisable for administering
the Plan.


 


(c) Effect of Administrator’s Decision. The
Administrator’s decisions, determinations and interpretations shall be final
and binding on all Optionees and any other holders of Options.


 


5. Eligibility. Options may be granted to Service Providers;
provided, however, that notwithstanding anything to the contrary contained in
the Plan, Options may not be granted to Officers.


 


6. Limitation. Neither the Plan nor any Option shall confer upon
an Optionee any right with respect to continuing the Optionee’s relationship as
a Service Provider with the Company, nor shall they interfere in any way with
the Optionee’s right or the Company’s right to terminate such relationship at
any time, with or without cause.


 


7. Term of Plan. The Plan shall become effective upon its adoption
by the Board. It shall continue in effect for ten (10) years, unless
sooner terminated under Section 14 of the Plan.


 


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8. Term of Option. The term of each Option shall be
stated in the Option Agreement.


 


9. Option Exercise Price and Consideration.


 


(a) Exercise
Price. The per share exercise price for the Shares to be issued pursuant to
exercise of an Option shall be determined by the Administrator; provided,
however, that the per Share exercise price shall be no less than 100% of the
Fair Market Value per Share on the date of grant.


 


(b) Waiting
Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be exercised and
shall determine any conditions that must be satisfied before the Option may be
exercised.


 


(c) Form of
Consideration. The Administrator shall determine the acceptable form of
consideration for exercising an Option, including the method of payment. Such
consideration may consist entirely of:


 


(i) cash;


 


(ii) check;


 


(iii) promissory
note;


 


(iv) other
Shares which (A) in the case of Shares acquired upon exercise of an
Option, have been owned by the Optionee for more than six months on the date of
surrender, and (B) have a Fair Market Value on the date of surrender equal
to the aggregate exercise price of the Shares as to which said Option shall be
exercised;


 


(v) consideration
received by the Company under a cashless exercise program implemented by the
Company in connection with the Plan;


 


(vi) a
reduction in the amount of any Company liability to the Optionee, including any
liability attributable to the Optionee’s participation in any Company-sponsored
deferred compensation program or arrangement;


 


(vii) any
combination of the foregoing methods of payment; or


 


(viii) such
other consideration and method of payment for the issuance of Shares to the
extent permitted by Applicable Laws.


 


10. Exercise of Option.


 


(a) Procedure for
Exercise; Rights as a Stockholder. Any Option granted hereunder shall be
exercisable according to the terms of the Plan and at such times and under such
conditions as determined by the Administrator and set forth in the Option
Agreement. An Option may not be exercised for a fraction of a Share.


 


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An Option shall be deemed exercised when the Company
receives: (i) written or electronic notice of exercise (in accordance with
the Option Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by
the Administrator and permitted by the Option Agreement and the Plan. Shares
issued upon exercise of an Option shall be issued in the name of the Optionee
or, if requested by the Optionee, in the name of the Optionee and his or her
spouse. Until the Shares are issued (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such
Shares promptly after the Option is exercised. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the
Shares are issued, except as provided in Section 12 of the Plan.


 


Exercising an Option in any manner shall decrease the
number of Shares thereafter available, both for purposes of the Plan and for
sale under the Option, by the number of Shares as to which the Option is
exercised.


 


(b) Termination of Relationship as a Service
Provider. If an Optionee ceases to be a Service Provider,
other than upon the Optionee’s death or Disability, the Optionee may exercise
his or her Option, but only within such period of time as is specified in the
Option Agreement, and only to the extent that the Option is vested on the date
of termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). In the absence of a specified
time in the Option Agreement, the Option shall remain exercisable for three (3) months
following the Optionee’s termination. If, on the date of termination, the
Optionee is not vested as to his or her entire Option, the Shares covered by
the unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee 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.


 


(c) Disability of Optionee. If an
Optionee ceases to be a Service Provider as a result of the Optionee’s
Disability, the Optionee may exercise his or her Option, but only within such
period of time as is specified in the Option Agreement, and only to the extent
the Option is vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Option Agreement). In
the absence of a specified time in the Option Agreement, the Option shall
remain exercisable for twelve (12) months following the Optionee’s termination.
If, on the date of termination, the Optionee is not vested as to his or her
entire Option, the Shares covered by the unvested portion of the Option shall
revert to the Plan. If, after termination, the Optionee 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.


 


(d) Death of Optionee. If an
Optionee dies while a Service Provider, the Option may be exercised within such
period of time as is specified in the Option Agreement (but in no event later
than the expiration of the term of such Option as set forth in the Option
Agreement), by the Optionee’s estate or by a person who acquires the right to
exercise the Option by bequest or inheritance, but only to the extent that the
Option is vested on the date of death. In the absence of a specified time in
the Option Agreement, the Option shall remain exercisable for


 


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twelve (12) months following the Optionee’s termination.
If, at the time of death, the Optionee is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option shall revert
to the Plan. The Option may be exercised by the executor or administrator of
the Optionee’s estate or, if none, by the person(s) entitled to exercise
the Option under the Optionee’s will or the laws of descent or distribution. If
the Option is not so exercised within the time specified herein, the Option
shall terminate, and the Shares covered by such Option shall revert to the
Plan.


 


11. Non-Transferability of Options. Unless determined otherwise by the
Administrator, an Option may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee. If the Administrator makes an Option
transferable, such Option shall contain such additional terms and conditions as
the Administrator deems appropriate.


 


12. Adjustments Upon Changes in Capitalization, Dissolution, Merger
or Asset Sale.


 


(a) Changes in Capitalization. Subject
to any required action by the stockholders of the Company, the number of shares
of Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been “effected
without receipt of consideration.” Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an Option.


 


(b) Dissolution or Liquidation. In the
event of the proposed dissolution or liquidation of the Company, the
Administrator shall notify each Optionee as soon as practicable prior to the
effective date of such proposed transaction. The Administrator in its
discretion may provide for an Optionee to have the right to exercise his or her
Option until fifteen (15) days prior to such transaction as to all of the
Optioned Stock covered thereby, including Shares as to which the Option would
not otherwise be exercisable. In addition, the Administrator may provide that
any Company repurchase option applicable to any Shares purchased upon exercise
of an Option 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 Option
will terminate immediately prior to the consummation of such proposed action.


 


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(c) Merger or Asset Sale.
In the event of a merger of the Company with or into another corporation, or
the sale of substantially all of the assets of the Company, each outstanding
Option shall be assumed or an equivalent option substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In the
event that the successor corporation refuses to assume or substitute for the
Option, the Optionee shall fully vest in and have the right to exercise the
Option as to all of the Optioned Stock, including Shares as to which it would
not otherwise be vested or exercisable. If an Option becomes fully vested and
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Administrator shall notify the Optionee in writing or
electronically that the Option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the Option shall
terminate upon the expiration of such period. For the purposes of this
paragraph, the Option shall be considered assumed if, following the merger or
sale of assets, the option confers the right to purchase or receive, for each
Share of Optioned Stock subject to the Option, immediately prior to the merger
or sale of assets, the consideration (whether stock, cash, or other securities
or property) received in the merger or sale of assets by holders of Common
Stock for each Share held on the effective date of the transaction (and if
holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option, for each
Share of Optioned Stock subject to the Option to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale of
assets.


 


13. Date of Grant. The date of grant of an Option
shall be, for all purposes, the date on which the Administrator makes the
determination granting such Option, or such other later date as is determined
by the Administrator. Notice of the determination shall be provided to each
Optionee within a reasonable time after the date of such grant.


 


14. Amendment and Termination of the Plan.


 


(a) Amendment
and Termination. The Board may at any time amend, alter, suspend or
terminate the Plan; provided that the Board may not amend the Plan to permit
the grant of any Option with an exercise price below 100% of the Fair Market
Value of the Shares on the date of grant.


 


(b) Effect
of Amendment or Termination. No amendment, alteration, suspension or
termination of the Plan shall impair the rights of any Optionee, unless
mutually agreed otherwise between the Optionee and the Administrator, which
agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator’s ability to
exercise the powers granted to it hereunder with respect to Options granted
under the Plan prior to the date of such termination.


 


15. Conditions Upon Issuance of Shares.


 


(a) Legal Compliance.
Shares shall not be issued pursuant to the exercise of an Option unless the
exercise of such Option and the issuance and delivery of such


 


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Shares shall comply with Applicable Laws and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.


 


(b) Investment
Representations. As a
condition to the exercise of an Option the Company may require the person
exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without
any present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required.


 


16. Inability to Obtain Authority. The inability of the
Company to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company’s counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.


 


17. Reservation of Shares. The Company, during the
term of this Plan, will at all times reserve and keep available such number of
Shares as shall be sufficient to satisfy the requirements of the Plan.


 


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