EXHIBIT 4.1
AMENDED AND RESTATED
CYBEROPTICS CORPORATION
1998 STOCK INCENTIVE PLAN
Section 1. Purpose.
The purpose of the Plan is to aid in attracting and retaining
management personnel and other persons providing valuable services to the
CyberOptics Corporation (the "Company") capable of assuring the future success
of the Company, to offer such personnel incentives to put forth maximum efforts
for the success of the Company's business and to afford such personnel an
opportunity to acquire a proprietary interest in the Company.
Section 2. Definitions.
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Affiliate" shall mean (i) any entity that, directly or
indirectly through one or more intermediaries, is controlled
by the Company and (ii) any entity in which the Company has a
significant equity interest, in each case as determined by the
Committee.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock, Restricted Stock Unit, Performance Award,
Dividend Equivalent or Other Stock-Based Award granted under
the Plan.
(c) "Award Agreement" shall mean any written agreement, contract
or other instrument or document evidencing any Award granted
under the Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any regulations promulgated
thereunder.
(e) "Committee" shall mean a committee of the Board of Directors
of the Company designated by such Board to administer the
Plan, which shall consist of members appointed from time to
time by the Board of Directors. Each member of the Committee
shall be an "outside director" as defined in Section 162(m) of
the Code.
(f) "Company" shall mean CyberOptics Corporation, a Minnesota
corporation, and any successor corporation.
(g) "Dividend Equivalent" shall mean any right granted under
Section 6(e) of the Plan.
(h) "Eligible Person" shall mean any employee, officer, consultant
or independent contractor providing services to the Company or
any Affiliate who the Committee determines to be an Eligible
Person.
(i) "Fair Market Value" shall mean, with respect to any property
(including, without limitation, any Shares or other
securities), the fair market value of such property
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determined by such methods or procedures as shall be
established from time to time by the Committee.
(j) "Incentive Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is intended to meet the
requirements of Section 422 of the Code or any successor
provision.
(k) "Non-Qualified Stock Option" shall mean an option granted
under Section 6(a) of the Plan that is not intended to be an
Incentive Stock Option.
(l) "Option" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option, and shall include Restoration
Options.
(m) "Other Stock-Based Award" shall mean any right granted under
Section 6(f) of the Plan.
(n) "Participant" shall mean an Eligible Person designated to be
granted an Award under the Plan.
(o) "Performance Award" shall mean any right granted under Section
6(d) of the Plan.
(p) "Person" shall mean any individual, corporation, partnership,
association or trust.
(q) "Plan" shall mean this 1998 Stock Incentive Plan, as amended
from time to time.
(r) "Reload Option" shall mean any Option granted under Section
6(a)(iv) of the Plan.
(s) "Restricted Stock" shall mean any Share granted under Section
6(c) of the Plan.
(t) "Restricted Stock Unit" shall mean any unit granted under
Section 6(c) of the Plan evidencing the right to receive a
Share (or a cash payment equal to the Fair Market Value of a
Share) at some future date.
(u) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, or any successor rule or
regulation.
(v) "Shares" shall mean shares of Common Stock, no par value, of
the Company or such other securities or property as may become
subject to Awards pursuant to an adjustment made under Section
4(c) of the Plan.
(w) "Stock Appreciation Right" shall mean any right granted under
Section 6(b) of the Plan.
Section 3. Administration.
(a) Power and Authority of the Committee. The Plan shall be
administered by the Committee. Subject to the express
provisions of the Plan and to applicable law, the Committee
shall have full power and authority to: (i) designate
Participants;
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(ii) determine the type or types of Awards to be granted to
each Participant under the Plan; (iii) determine the number of
Shares to be covered by (or with respect to which payments,
rights or other matters are to be calculated in connection
with) each Award; (iv) determine the terms and conditions of
any Award or Award Agreement; (v)amend the terms and
conditions of any Award or Award Agreement and accelerate the
exercisability of Options or the lapse of restrictions
relating to Restricted Stock, Restricted Stock Units or other
Awards; (vi)determine whether, to what extent and under what
circumstances Awards may be exercised in cash, Shares, other
securities, other Awards or other property, or canceled,
forfeited or suspended; (vii) determine whether, to what
extent and under what circumstances cash, Shares, other
securities, other Awards, other property and other amounts
payable with respect to an Award under the Plan shall be
deferred either automatically or at the election of the holder
thereof or the Committee; (viii)interpret and administer the
Plan and any instrument or agreement relating to, or Award
made under, the Plan; (ix) establish, amend, suspend or waive
such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan;
and (x) make any other determination and take any other action
that the Committee deems necessary or desirable for the
administration of the Plan.
Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be
made at any time and shall be final, conclusive and binding upon any
Participant, any holder or beneficiary of any Award and any employee of the
Company or any Affiliate.
(b) Delegation. The Committee may delegate its powers and duties
under the Plan to one or more officers of the Company or any
Affiliate or a committee of such officers, subject to such
terms, conditions and limitations as the Committee may
establish in its sole discretion.
Section 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section
4(c), the number of Shares available for granting Awards under
the Plan shall be 750,000. If any Shares covered by an Award
or to which an Award relates are not purchased or are
forfeited, or if an Award otherwise terminates without
delivery of any Shares, then the number of Shares counted
against the aggregate number of Shares available under the
Plan with respect to such Award, to the extent of any such
forfeiture or termination, shall again be available for
granting Awards under the Plan.
(b) Accounting for Awards. For purposes of this Section 4, if an
Award entitles the holder thereof to receive or purchase
Shares, the number of Shares covered by such Award or to which
such Award relates shall be counted on the date of grant of
such Award against the aggregate number of Shares available
for granting Awards under the Plan.
(c) Adjustments. In the event that the Committee shall determine
that any dividend or other distribution (whether in the form
of cash, Shares, other securities or other
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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, issuance of warrants or other
rights to purchase Shares or other securities of the Company
or other similar corporate transaction or event affects the
Shares such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement
of the benefits or potential benefits intended to be made
available under the Plan, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of (i) the
number and type of Shares (or other securities or other
property) which thereafter may be made the subject of Awards,
(ii) the number and type of Shares (or other securities or
other property) subject to outstanding Awards and (iii) the
purchase or exercise price with respect to any Award;
provided, however, that the number of Shares covered by any
Award or to which such Award relates shall always be a whole
number.
(d) Limitation on Annual Awards to Individuals. Notwithstanding
any other provision in this Plan, no Participant may be
granted an Award or Awards under the Plan, the value of which
is based solely on an increase in the value of the Shares
after the date of grant of such Award or Awards, for more than
100,000 Shares in the aggregate in any one calendar year
period. The foregoing annual limitation specifically includes
the grant of any "performance-based" awards within the meaning
of Section 162(m) of the Code.
Section 5. Eligibility.
Any Eligible Person, including any Eligible Person who is an officer or
director of the Company or any Affiliate, shall be eligible to be designated a
Participant. In determining which Eligible Persons shall receive an Award and
the terms of any Award, the Committee may take into account the nature of the
services rendered by the respective Eligible Persons, their present and
potential contributions to the success of the Company or such other factors as
the Committee, in its discretion, shall deem relevant. Notwithstanding the
foregoing, an Incentive Stock Option may only be granted to full or part-time
employees (which term as used herein includes, without limitation, officers and
directors who are also employees) and an Incentive Stock Option shall not be
granted to an employee of an Affiliate unless such Affiliate is also a
"subsidiary corporation" of the Company within the meaning of Section 424(f) of
the Code or any successor provision.
Section 6. Awards.
Options. The Committee is hereby authorized to grant Options to Participants
with the following terms and conditions and with such additional terms and
conditions not inconsistent with the provisions of the Plan as the Committee
shall determine:
(a) Exercise Price. The purchase price per Share purchasable under
an Option shall be determined by the Committee; provided,
however, that such purchase price shall not be less than 100%
of the Fair Market Value of a Share on the date of grant of
such Option.
(i) Option Term. The term of each Option shall be fixed
by the Committee.
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(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be
exercised in whole or in part and the method or
methods by which, and the form or forms (including,
without limitation, cash, Shares, promissory notes,
other securities, other Awards or other property, or
any combination thereof, having a Fair Market Value
on the exercise date equal to the relevant exercise
price) in which, payment of the exercise price with
respect thereto may be made or deemed to have been
made.
(iii) Reload Options. The Committee may grant Reload
Options, separately or together with another Option,
pursuant to which, subject to the terms and
conditions established by the Committee and any
applicable requirements of Rule 16b-3 or any other
applicable law, the Participant would be granted a
new Option when the payment of the exercise price of
the option to which such Reload Option relates is
made by the delivery of Shares owned by the
Participant pursuant to the relevant provisions of
the plan or agreement relating to such option, which
new Option would be an Option to purchase the number
of Shares not exceeding the sum of (A) the number of
Shares so provided as consideration upon the exercise
of the previously granted option to which such Reload
Option relates and (B) the number of Shares, if any,
tendered or withheld as payment of the amount to be
withheld under applicable tax laws in connection with
the exercise of the option to which such Reload
Option relates pursuant to the relevant provisions of
the plan or agreement relating to such option. Reload
Options may be granted with respect to options
previously granted under the Plan or any other stock
option plan of the Company, and may be granted in
connection with any option granted under the Plan or
any other stock option plan of the Company at the
time of such grant.
(b) Stock Appreciation Rights. The Committee is hereby authorized
to grant Stock Appreciation Rights to Participants subject to
the terms of the Plan and any applicable Award Agreement. A
Stock Appreciation Right granted under the Plan shall confer
on the holder thereof a right to receive upon exercise thereof
the excess of (i) the Fair Market Value of one Share on the
date of exercise (or, if the Committee shall so determine, at
any time during a specified period before or after the date of
exercise) over (ii) the grant price of the Stock Appreciation
Right as specified by the Committee, which price shall not be
less than 100% of the Fair Market Value of one Share on the
date of grant of the Stock Appreciation Right. Subject to the
terms of the Plan and any applicable Award Agreement, the
grant price, term, methods of exercise, dates of exercise,
methods of settlement and any other terms and conditions of
any Stock Appreciation Right shall be as determined by the
Committee. The Committee may impose such conditions or
restrictions on the exercise of any Stock Appreciation Right
as it may deem appropriate.
(c) Restricted Stock and Restricted Stock Units. The Committee is
hereby authorized to grant Awards of Restricted Stock and
Restricted Stock Units to Participants with the following
terms and conditions and with such additional terms and
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conditions not inconsistent with the provisions of the Plan as
the Committee shall determine:
(i) Restrictions. Shares of Restricted Stock and
Restricted Stock Units shall be subject to such
restrictions as the Committee may impose (including,
without limitation, any limitation on the right to
vote a Share of Restricted Stock or the right to
receive any dividend or other right or property with
respect thereto), which restrictions may lapse
separately or in combination at such time or times,
in such installments or otherwise as the Committee
may deem appropriate.
(ii) Stock Certificates. Any Restricted Stock granted
under the Plan shall be evidenced by issuance of a
stock certificate or certificates, which certificate
or certificates shall be held by the Company. Such
certificate or certificates shall be registered in
the name of the Participant and shall bear an
appropriate legend referring to the terms, conditions
and restrictions applicable to such Restricted Stock.
In the case of Restricted Stock Units, no Shares
shall be issued at the time such Awards are granted.
(iii) Forfeiture; Delivery of Shares. Except as otherwise
determined by the Committee, upon termination of
employment (as determined under criteria established
by the Committee) during the applicable restriction
period, all Shares of Restricted Stock and all
Restricted Stock Units at such time subject to
restriction shall be forfeited and reacquired by the
Company; provided, however, that the Committee may,
when it finds that a waiver would be in the best
interest of the Company, waive in whole or in part
any or all remaining restrictions with respect to
Shares of Restricted Stock or Restricted Stock Units.
Any Share representing Restricted Stock that is no
longer subject to restrictions shall be delivered to
the holder thereof promptly after the applicable
restrictions lapse or are waived. Upon the lapse or
waiver of restrictions and the restricted period
relating to Restricted Stock Units evidencing the
right to receive Shares, such Shares shall be issued
and delivered to the holders of the Restricted Stock
Units.
(d) Performance Awards. The Committee is hereby authorized to
grant Performance Awards to Participants subject to the terms
of the Plan and any applicable Award Agreement. A Performance
Award granted under the Plan (i) may be denominated or payable
in cash, Shares (including, without limitation, Restricted
Stock), other securities, other Awards or other property and
(ii) shall confer on the holder thereof the right to receive
payments, in whole or in part, upon the achievement of such
performance goals during such performance periods as the
Committee shall establish. Subject to the terms of the Plan
and any applicable Award Agreement, the performance goals to
be achieved during any performance period, the length of any
performance period, the amount of any Performance Award
granted, the amount of any payment or transfer to be made
pursuant to any Performance Award and any other terms and
conditions of any Performance Award shall be determined by the
Committee.
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(e) Dividend Equivalents. The Committee is hereby authorized to
grant to Participants Dividend Equivalents under which such
Participants shall be entitled to receive payments (in cash,
Shares, other securities, other Awards or other property as
determined in the discretion of the Committee) equivalent to
the amount of cash dividends paid by the Company to holders of
Shares with respect to a number of Shares determined by the
Committee. Subject to the terms of the Plan and any applicable
Award Agreement, such Dividend Equivalents may have such terms
and conditions as the Committee shall determine.
(f) Other Stock-Based Awards. The Committee is hereby authorized
to grant to Participants such other Awards that are
denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible into
Shares), as are deemed by the Committee to be consistent with
the purpose of the Plan; provided, however, that such grants
must comply with Rule 16b-3 and applicable law. Subject to the
terms of the Plan and any applicable Award Agreement, the
Committee shall determine the terms and conditions of such
Awards. Shares or other securities delivered pursuant to a
purchase right granted under this Section 6(f) shall be
purchased for such consideration, which may be paid by such
method or methods and in such form or forms (including without
limitation, cash, Shares, promissory notes, other securities,
other Awards or other property or any combination thereof), as
the Committee shall determine, the value of which
consideration, as established by the Committee, shall not be
less than 100% of the Fair Market Value of such Shares or
other securities as of the date such purchase right is
granted.
(g) General.
(i) No Cash Consideration for Awards. Awards shall be
granted for no cash consideration or for such minimal
cash consideration as may required by applicable law.
(ii) Awards May Be Granted Separately or Together. Awards
may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with or in
substitution for any other Award or any award granted
under any plan of the Company or any Affiliate other
than the Plan. Awards granted in addition to or in
tandem with other Awards or in addition to or in
tandem with awards granted under any such other plan
of the Company or any Affiliate may be granted either
at the same time as or at a different time from the
grant of such other Awards or awards.
(iii) Forms of Payment under Awards. Subject to the terms
of the Plan and of any applicable Award Agreement,
payments or transfers to be made by the Company or an
Affiliate upon the grant, exercise or payment of an
Award may be made in such form or forms as the
Committee shall determine (including, without
limitation, cash, Shares, promissory notes, other
securities, other Awards or other property or any
combination thereof), and may be made in a single
payment or transfer, in installments or on a deferred
basis, in each case in accordance with rules and
procedures
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established by the Committee. Such rules and
procedures may include, without limitation,
provisions for the payment or crediting of reasonable
interest on installment or deferred payments or the
grant or crediting of Dividend Equivalents with
respect to installment or deferred payments.
(iv) Limits on Transfer of Awards. No Award and no right
under any such Award shall be transferable by a
Participant otherwise than by will or by the laws of
descent and distribution; provided, however, that, if
so determined by the Committee, a Participant may, in
the manner established by the Committee, designate a
beneficiary or beneficiaries to exercise the rights
of the Participant and receive any property
distributable with respect to any Award upon the
death of the Participant. Each Award or right under
any Award shall be exercisable during the
Participant's lifetime only by the Participant or, if
permissible under applicable law, by the
Participant's guardian or legal representative. No
Award or right under any such Award may be pledged,
alienated, attached or otherwise encumbered, and any
purported pledge, alienation, attachment or
encumbrance thereof shall be void and unenforceable
against the Company or any Affiliate.
(v) Term of Awards. The term of each Award shall be for
such period as may be determined by the Committee.
(vi) Restrictions; Securities Exchange Listing. All
certificates for Shares or other securities delivered
under the Plan pursuant to any Award or the exercise
thereof shall be subject to such stop transfer orders
and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations
and other requirements of the Securities and Exchange
Commission and any applicable federal or state
securities laws, and the Committee may cause a legend
or legends to be placed on any such certificates to
make appropriate reference to such restrictions. If
the Shares or other securities are traded on a
securities exchange, the Company shall not be
required to deliver any Shares or other securities
covered by an Award unless and until such Shares or
other securities have been admitted for trading on
such securities exchange.
Section 7. Amendment and Termination; Adjustments.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board of Directors of the Company
may amend, alter, suspend, discontinue or terminate the Plan;
provided, however, that, notwithstanding any other provision
of the Plan or any Award Agreement, without the approval of
the stockholders of the Company, no such amendment,
alteration, suspension, discontinuation or termination shall
be made that, absent such approval:
(i) would cause Rule 16b-3 to become unavailable with
respect to the Plan;
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(ii) would violate the rules or regulations of the New
York Stock Exchange, any other securities exchange or
the National Association of Securities Dealers, Inc.
that are applicable to the Company; or
(iii) would cause the Company to be unable, under the Code,
to grant Incentive Stock Options under the Plan.
(b) Amendments to Awards. The Committee may waive any conditions
of or rights of the Company under any outstanding Award,
prospectively or retroactively. The Committee may not amend,
alter, suspend, discontinue or terminate any outstanding
Award, prospectively or retroactively, without the consent of
the Participant or holder or beneficiary thereof, except as
otherwise herein provided.
(c) Correction of Defects, Omissions and Inconsistencies. The
Committee may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Award in the
manner and to the extent it shall deem desirable to carry the
Plan into effect.
Section 8. Income Tax Withholding; Tax Bonuses.
(d) Withholding. In order to comply with all applicable federal or
state income tax laws or regulations, the Company may take
such action as it deems appropriate to ensure that all
applicable federal or state payroll, withholding, income or
other taxes, which are the sole and absolute responsibility of
a Participant, are withheld or collected from such
Participant. In order to assist a Participant in paying all or
a portion of the federal and state taxes to be withheld or
collected upon exercise or receipt of (or the lapse of
restrictions relating to) an Award, the Committee, in its
discretion and subject to such additional terms and conditions
as it may adopt, may permit the Participant to satisfy such
tax obligation by (i) electing to have the Company withhold a
portion of the Shares otherwise to be delivered upon exercise
or receipt of (or the lapse of restrictions relating to) such
Award with a Fair Market Value equal to the amount of such
taxes or (ii) delivering to the Company Shares other than
Shares issuable upon exercise or receipt of (or the lapse of
restrictions relating to) such Award with a Fair Market Value
equal to the amount of such taxes. The election, if any, must
be made on or before the date that the amount of tax to be
withheld is determined.
(e) Tax Bonuses. The Committee, in its discretion, shall have the
authority, at the time of grant of any Award under this Plan
or at any time thereafter, to approve cash bonuses to
designated Participants to be paid upon their exercise or
receipt of (or the lapse of restrictions relating to) Awards
in order to provide funds to pay all or a portion of federal
and state taxes due as a result of such exercise or receipt
(or the lapse of such restrictions). The Committee shall have
full authority in its discretion to determine the amount of
any such tax bonus.
Section 9. General Provisions.
(a) No Rights to Awards. Participant or other Person shall have
any claim to be granted any Award under the Plan, and there is
no obligation for uniformity of treatment of Eligible Persons,
Participants or holders or beneficiaries of Awards
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under the Plan. The terms and conditions of Awards need not be
the same with respect to any Participant or with respect to
different Participants.
(b) Award Agreements. No Participant will have rights under an
Award granted to such Participant unless and until an Award
Agreement shall have been duly executed on behalf of the
Company.
(c) No Limit on Other Compensation Arrangements. Nothing contained
in the Plan shall prevent the Company or any Affiliate from
adopting or continuing in effect other or additional
compensation arrangements, and such arrangements may be either
generally applicable or applicable only in specific cases.
(d) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in
the employ of the Company or any Affiliate, nor will it affect
in any way the right of the Company or an Affiliate to
terminate such employment at any time, with or without cause.
In addition, the Company or an Affiliate may at any time
dismiss a Participant from employment free from any liability
or any claim under the Plan, unless otherwise expressly
provided in the Plan or in any Award Agreement.
(e) Governing Law. The validity, construction and effect of the
Plan or any Award, and any rules and regulations relating to
the Plan or any Award, shall be determined in accordance with
the laws of the State of Minnesota.
(f) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal or unenforceable
in any jurisdiction or would disqualify the Plan or any Award
under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed
amended without, in the determination of the Committee,
materially altering the purpose or intent of the Plan or the
Award, such provision shall be stricken as to such
jurisdiction or Award, and the remainder of the Plan or any
such Award shall remain in full force and effect.
(g) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or
any Affiliate and a Participant or any other Person. To the
extent that any Person acquires a right to receive payments
from the Company or any Affiliate pursuant to an Award, such
right shall be no greater than the right of any unsecured
general creditor of the Company or any Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee
shall determine whether cash shall be paid in lieu of any
fractional Shares or whether such fractional Shares or any
rights thereto shall be canceled, terminated or otherwise
eliminated.
(i) Headings. Headings are given to the Sections and subsections
of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or
any provision thereof.
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Section 10. Effective Date of the Plan.
The Plan shall be effective as of the date on which it is approved by
the shareholders of the Company.
Section 11. Term of the Plan.
Unless the Plan shall have been discontinued or terminated as provided
in Section 7(a), the Plan shall terminate on the date which is ten years after
the date on which the Plan receives shareholder approval. No Award shall be
granted after the termination of the Plan. However, unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award theretofore
granted may extend beyond the termination of the Plan, and the authority of the
Committee provided for hereunder with respect to the Plan and any Awards, and
the authority of the Board of Directors of the Company to amend the Plan, shall
extend beyond the termination of the Plan.
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