Form S-8 SALESFORCE COM INC
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E-mailAs filed with the Securities and Exchange Commission on September 1, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________________
salesforce.com, inc.
(Exact Name of Registrant as Specified in Its Charter)
____________________________
Delaware | The Landmark @ One Market, Suite 300 San Francisco, California 94105 | 94-3320693 |
(State or Other Jurisdiction of Incorporation or Organization) | (Address of Principal Executive Offices Including Zip Code) | (I.R.S. Employer Identification No.) |
BEYONDCORE, INC. 2007 STOCK INCENTIVE PLAN
BEYONDCORE, INC. 2016 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
____________________________
Burke F. Norton, Esq. Chief Legal Officer & Chief of Corporate and Government Affairs salesforce.com, inc. The Landmark @ One Market, Suite 300 San Francisco, California 94105 | Copies to: Ronald O. Mueller, Esq. Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 |
(Name and Address of Agent For Service)
____________________________
(415) 901-7000
(Telephone Number, Including Area Code, of Agent For Service)
____________________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b2 of the Exchange Act.
Large accelerated filer | x | Accelerated filer | ¨ |
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
Common Stock, $0.001 par value per share: | ||||
-Outstanding options under the BeyondCore, Inc. 2007 Stock Incentive Plan | 113,779(2) | $5.786(3) | $658,325(3) | $66(3) |
-Outstanding restricted stock units under the BeyondCore, Inc. 2016 Equity Incentive Plan | 8,021(2) | $80.08(4) | $642,322(4) | $65(4) |
TOTAL | 121,800 | $1,300,647 | $131 | |
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the BeyondCore, Inc. 2007 Stock Incentive Plan (the “BeyondCore 2007 Plan”) and the BeyondCore, Inc. 2016 Equity Incentive Plan ( the “BeyondCore 2016 Plan”) by reason of an event such as any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock. |
(2) | Represents 113,779 and 8,021 shares of the Registrant’s Common Stock issuable in connection with stock options and restricted stock units awarded under the BeyondCore 2007 Plan and the BeyondCore 2016 Plan, respectively, that were assumed by the Registrant on September 1, 2016 (collectively, the “Assumed Awards”). |
(3) | Estimated in accordance with Rule 457(h) based on $5.786, the weighted average exercise price per share of the outstanding options under the BeyondCore 2007 Plan. |
(4) | Estimated in accordance with Rule 457(h) based on the average of the high and low prices of the Registrant’s Common Stock as reported on the New York Stock Exchange on August 26, 2016, of $80.08. |
SALESFORCE.COM, INC.
REGISTRATION STATEMENT ON FORM S-8
This Registration Statement on Form S-8 is being filed by salesforce.com, inc. (the “Company” or the “Registrant”) to register 121,800 shares of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), pursuant to the Company’s assumption of the BeyondCore 2007 Plan and the BeyondCore 2016 Plan and outstanding awards thereunder.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. | Plan Information. |
The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2. Registration Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. Such documents, together with the documents incorporated by reference herein pursuant to Item 3 of Part II of this Registration Statement on Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act, and are available upon written request to: Corporate Secretary, The Landmark @ One Market, Suite 300, San Francisco, California 94105, (415) 901-7000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference. |
The Company incorporates by reference the documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold (such documents, and the documents listed below, being hereinafter referred to as “Incorporated Documents”):
1. | The Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2016, filed with the Commission on March 7, 2016, as revised by the Current Report on Form 8-K filed on September 1, 2016; |
2. | The information specifically incorporated by reference into the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2016 from the Company’s definitive proxy statement on Schedule 14A, filed with the Commission on April 21, 2016; |
3. | The Company’s Quarterly Reports on Form 10-Q for the quarters ended April 30, 2016 and July 31, 2016, filed with the Commission on May 20, 2016 and September 1, 2016, respectively; |
4. | The Company’s Current Reports on Form 8-K filed with the Commission on February 2, 2016, March 21, 2016, March 22, 2016, April 20, 2016, June 1, 2016, June 3, 2016, July 11, 2016, as amended on September 1, 2016, and August 1, 2016; and |
5. | The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed with the Commission on June 21, 2004, including any amendment or report filed for the purpose of updating such description (No. 001-32224). |
The Company is only incorporating certain portions of its annual proxy statement for its 2016 annual meeting of stockholders as described above and is not incorporating by reference (i) any information furnished under items 2.02 or 7.01 (or
corresponding information furnished under item 9.01 or included as an exhibit) in any past or future current report on Form 8-K or (ii) any Form S-D, that, in either case, the Company may file or furnish with the SEC, unless otherwise specified in such current report or in such form. The documents listed above or subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the offering made by this Registration Statement is in effect prior to the filing with the Commission of the Company’s Annual Report on Form 10-K covering such year shall cease to be Incorporated Documents or be incorporated by reference in this Registration Statement from and after the filing of such Annual Reports.
Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed Incorporated Document modifies or supersedes such statement. Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. | Description of Securities. |
Not applicable.
Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
Item 6. | Indemnification of Directors and Officers. |
Section 102(b) of the Delaware General Corporation Law authorizes a corporation to provide in its Certificate of Incorporation that a director of the corporation shall not be personally liable to a corporation or its stockholders for monetary damages for breach or alleged breach of the director’s “duty of care.” While this statute does not change the directors’ duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. The statute has no effect on a director’s duty of loyalty or liability for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, illegal payment of dividends or stock redemptions or repurchases, or for any transaction from which the director derives an improper personal benefit. As permitted by the statute, the Company has adopted provisions in its Certificate of Incorporation which eliminate to the fullest extent permissible under Delaware law the personal liability of its directors to the Company and its stockholders for monetary damages for breach or alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of Delaware allows for the indemnification of officers, directors, employees and agents of a corporation. The Bylaws of the Company provide for indemnification of its directors, officers, employees and agents to the full extent permitted by Delaware law, including those circumstances in which indemnification would otherwise be discretionary under Delaware law. The Company’s Bylaws also empower the Company to enter into indemnification agreements with its directors and officers and require it to purchase insurance to the extent reasonably available on behalf of any person whom it is required or permitted to indemnify. The Company has entered into agreements with its directors and its executive officers that require the Company to indemnify such persons to the fullest extent permitted under Delaware law against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or an executive officer of the Company or any of its affiliated enterprises. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. The Company intends to enter into indemnification agreements with any new directors and executive officers in the future.
Section 145 of the General Corporation Law of the State of Delaware provides for indemnification in terms sufficiently broad to indemnify such individuals, under certain circumstances, for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. | Exemption from Registration Claimed. |
Not applicable.
Item 8. | Exhibits. |
See exhibits listed under the Exhibit Index below which are hereby incorporated by reference.
Item 9. | Undertakings. |
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
(b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on this 1st day of September, 2016.
salesforce.com, inc. | |
By: | /s/ Burke F. Norton |
Name: | Burke F. Norton |
Title: | Chief Legal Officer & Chief of Corporate and Government Affairs |
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated below. Each of the directors and/or officers of the Registrant whose signature appears below hereby appoints Marc Benioff, Mark Hawkins, Joe Allanson, Burke Norton and Amy Weaver, and each of them severally as his or her attorney-in-fact to date and file with the Securities and Exchange Commission this Registration Statement on Form S-8, and to sign, date and file any and all amendments and post-effective amendments to this Registration Statement, in each case on his or her behalf, in any and all capacities stated below, as appropriate, in such forms as they or any one of them may approve, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done to the end that such Registration Statement or Registration Statements shall comply with the Securities Act of 1933, as amended, and the applicable Rules and Regulations adopted or issued pursuant thereto, as fully and to all intents and purposes as he or she might or could do in person, and generally to do all such things on their behalf in their capacities as officers and directors to enable the Registrant to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities and Exchange Commission.
Signature | Title | Date |
/s/ Marc Benioff | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | September 1, 2016 |
Marc Benioff | ||
/s/ Mark Hawkins | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | September 1, 2016 |
Mark Hawkins | ||
/s/ Joe Allanson | Executive Vice President, Chief Accounting Officer and Corporate Controller (Principal Accounting Officer) | September 1, 2016 |
Joe Allanson | ||
/s/ Keith Block | Director, Vice Chairman, President and Chief Operating Officer | September 1, 2016 |
Keith Block | ||
/s/ Craig Conway | Director | September 1, 2016 |
Craig Conway | ||
/s/ Alan Hassenfeld | Director | September 1, 2016 |
Alan Hassenfeld | ||
/s/ Neelie Kroes | Director | September 1, 2016 |
Neelie Kroes | ||
/s/ Colin Powell | Director | September 1, 2016 |
Colin Powell | ||
/s/ Sanford R. Robertson | Director | September 1, 2016 |
Sanford R. Robertson | ||
/s/ John V. Roos | Director | September 1, 2016 |
John V. Roos | ||
/s/ Lawrence Tomlinson | Director | September 1, 2016 |
Lawrence Tomlinson | ||
/s/ Robin Washington | Director | September 1, 2016 |
Robin Washington | ||
/s/ Maynard Webb | Director | September 1, 2016 |
Maynard Webb | ||
/s/ Susan Wojcicki | Director | September 1, 2016 |
Susan Wojcicki | ||
EXHIBIT INDEX
Exhibit No. | Description |
4.1 | Amended and Restated Certificate of Incorporation of salesforce.com, inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 3, 2016). |
4.2 | Amended and Restated Bylaws of salesforce.com, inc. (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on March 21, 2016). |
4.3 | BeyondCore, Inc. 2007 Stock Incentive Plan. |
4.4 | BeyondCore, Inc. 2016 Equity Incentive Plan. |
5.1 | Opinion of Gibson, Dunn & Crutcher LLP. |
23.1 | Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1). |
23.2 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
23.3 | Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. |
24.1 | Power of Attorney (contained on signature page). |
Exhibit 4.3
BEYONDCORE, INC.
2007 STOCK INCENTIVE PLAN
Adopted by the Board on April 25, 2007
Approved by the Stockholders on April 25, 2007
As Amended on February 11, 2014
As Amended on June 17, 2016
As Amended on August 12, 2016
As Amended on August 12, 2016
TABLE OF CONTENTS
Page | |||
SECTION 1. | PURPOSE. | 1 | |
SECTION 2. | DEFINITIONS. | 1 | |
2.1 | “Board” | 1 | |
2.2 | “Change in Control” | 1 | |
2.3 | “Code” | 2 | |
2.4 | “Committee” | 2 | |
2.5 | “Company” | 2 | |
2.6 | “Consultant” | 2 | |
2.7 | “Disability” | 2 | |
2.8 | “Employee” | 2 | |
2.9 | “Exchange Act” | 2 | |
2.1 | “Exercise Price” | 2 | |
2.1 | “Fair Market Value” | 2 | |
2.1 | “ISO” | 2 | |
2.1 | “NSO” | 2 | |
2.1 | “Option” | 2 | |
2.2 | “Optionee” | 3 | |
2.2 | “Outside Director” | 3 | |
2.2 | “Parent” | 3 | |
2.2 | “Plan” | 3 | |
2.2 | “Purchase Price” | 3 | |
2.2 | “Purchaser” | 3 | |
2.2 | “Restricted Share Agreement” | 3 | |
2.2 | “Securities Act” | 3 | |
2.2 | “Service” | 3 | |
2.2 | “Share” | 3 | |
2.3 | “Stock” | 3 | |
2.3 | “Stock Option Agreement” | 3 | |
2.3 | “Subsidiary” | 4 | |
2.3 | “Ten-Percent Stockholder” | 4 | |
SECTION 3. | ADMINISTRATION. | 4 | |
3.1 | General Rule | 4 | |
3.2 | Board Authority and Responsibility | 4 | |
SECTION 4. | ELIGIBILITY. | 4 | |
4.1 | General Rule | 4 | |
SECTION 5. | STOCK SUBJECT TO PLAN. | 4 | |
5.1 | Share Limit | 4 | |
5.2 | Additional Shares | 5 | |
SECTION 6. | RESTRICTED SHARES. | 5 | |
6.1 | Restricted Share Agreement | 5 | |
6.2 | Duration of Offers and Nontransferability of Purchase Rights | 5 | |
6.3 | Purchase Price | 5 | |
6.4 | Repurchase Rights and Transfer Restrictions | 5 | |
SECTION 7. | STOCK OPTIONS. | 5 | |
7.1 | Stock Option Agreement | 5 | |
7.2 | Number of Shares; Kind of Option | 6 | |
7.3 | Exercise Price | 6 | |
7.4 | Term | 6 | |
7.5 | Exercisability | 6 | |
7.6 | Repurchase Rights and Transfer Restrictions | 7 | |
7.7 | Transferability of Options | 7 | |
7.8 | Exercise of Options on Termination of Service | 7 | |
7.9 | No Rights as a Stockholder | 7 | |
7.1 | Modification, Extension and Renewal of Options | 8 | |
SECTION 8. | PAYMENT FOR SHARES. | 8 | |
8.1 | General | 8 | |
8.2 | Surrender of Stock | 8 | |
8.3 | Services Rendered | 8 | |
8.4 | Promissory Notes | 8 | |
8.5 | Exercise/Sale | 8 | |
8.6 | Exercise/Pledge | 8 | |
8.7 | Other Forms of Payment | 9 | |
SECTION 9. | ADJUSTMENT OF SHARES. | 9 | |
9.1 | General | 9 | |
9.2 | Dissolution or Liquidation | 9 | |
9.3 | Mergers and Consolidations | 9 | |
9.4 | Reservation of Rights | 9 | |
SECTION 10. | REPURCHASE RIGHTS. | 10 | |
10.1 | Company’s Right To Repurchase Shares | 10 | |
SECTION 11. | WITHHOLDING TAXES. | 10 | |
11.1 | General | 10 | |
11.2 | Share Withholding | 10 | |
11.3 | Cashless Exercise/Pledge | 11 | |
11.4 | Other Forms of Payment | 11 | |
SECTION 12. | SECURITIES LAW REQUIREMENTS. | 11 | |
12.1 | General | 11 | |
12.2 | Voting and Dividend Rights | 11 | |
12.3 | Financial Reports | 11 | |
SECTION 13. | NO RETENTION RIGHTS. | 11 | |
SECTION 14. | DURATION AND AMENDMENTS. | 11 | |
14.1 | Term of the Plan | 11 | |
14.2 | Right to Amend or Terminate the Plan | 12 | |
14.3 | Effect of Amendment or Termination | 12 | |
BEYONDCORE, INC.
2007 STOCK INCENTIVE PLAN
SECTION 1. PURPOSE
The Plan was adopted by the Board of Directors effective as set forth on the cover page hereof. The purpose of the Plan is to offer selected service providers the opportunity to acquire equity in the Company through awards of Options (which may constitute incentive stock options or nonstatutory stock options) and the award or sale of Shares.
The award of Options and the award or sale of Shares under the Plan is intended to be exempt from the securities qualification requirements of the California Corporations Code by satisfying the exemption under section 25102(o) of the California Corporations Code. However, awards of Options and the award or sale of Shares may be made in reliance upon other state securities law exemptions. To the extent that such other exemptions are relied upon, the terms of this Plan which are included only to comply with section 25102(o) shall be disregarded to the extent provided in the Stock Option Agreement or Restricted Share Agreement.
SECTION 2. DEFINITIONS.
2.1 | “Board” shall mean the Board of Directors of the Company, as constituted from time to time. |
2.2 | “Change in Control” shall mean the occurrence of any of the following events: |
(a) | The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization fifty percent (50%) or more of the voting power of the outstanding securities of each of (A) the continuing or surviving entity and (B) any direct or indirect parent corporation of such continuing or surviving entity; |
(b) | The consummation of the sale, transfer or other disposition of all or substantially all of the Company’s assets or the stockholders of the Company approve a plan of complete liquidation of the Company; or |
(c) | Any “person” (as defined below) who, by the acquisition or aggregation of securities, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company |
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representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities ordinarily (and apart from rights accruing under special circumstances) having the right to vote at elections of directors (the “Base Capital Stock”); except that any change in the relative beneficial ownership of the Company’s securities by any person resulting solely from a reduction in the aggregate number of outstanding shares of Base Capital Stock, and any decrease thereafter in such person’s ownership of securities, shall be disregarded until such person increases in any manner, directly or indirectly, such person’s beneficial ownership of any securities of the Company.
For purposes of Section 2.2(c), the term “person” shall have the same meaning as when used in sections 13(d) and 14(d) of the Exchange Act but shall exclude (1) a trustee or other fiduciary holding securities under an employee benefit plan maintained by the Company or a Parent or Subsidiary and (2) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the Stock.
Notwithstanding the foregoing, the term “Change in Control” shall not include a transaction the sole purpose of which is (a) to change the state of the Company’s incorporation, (b) to form a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction; or (c) to make an initial public offering of the Company’s Stock.
2.3 | “Code” shall mean the Internal Revenue Code of 1986, as amended. |
2.4 | “Committee” shall mean the committee designated by the Board, which is authorized to administer the Plan, as described in Section 3 hereof. |
2.5
“Company” shall mean BeyondCore, Inc., a Delaware corporation.
“Company” shall mean BeyondCore, Inc., a Delaware corporation.
2.6 | “Consultant” shall mean a consultant or advisor who is not an Employee or Outside Director and who performs bona fide services for the Company, a Parent or Subsidiary. |
2.7 | “Disability” shall mean a condition that renders an individual unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment. |
2.8 | “Employee” shall mean any individual who is a common-law employee of the Company, a Parent or a Subsidiary and who is an “employee” within the meaning of section 3401(c) of the Code and regulations issued thereunder. |
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2.9 | “Exchange Act” shall mean the U.S. Securities and Exchange Act of 1934, as amended. |
2.10 | “Exercise Price” shall mean the amount for which one Share may be purchased upon the exercise of an Option, as specified in a Stock Option Agreement. |
2.11 | “Fair Market Value” means, with respect to a Share, the market price of one Share of Stock, determined by the Board in good faith. Such determination shall be conclusive and binding on all persons. |
2.12 | “ISO” shall mean an incentive stock option described in section 422(b) of the Code. |
2.13 | “NSO” shall mean a stock option that is not an ISO. |
2.14 | “Option” shall mean an ISO or NSO granted under the Plan and entitling the holder to purchase Shares. |
2.15 | “Optionee” shall mean an individual or estate that holds an Option. |
2.16 | “Outside Director” shall mean a member of the Board of the Company, a Parent or a Subsidiary who is not an Employee. |
2.17 | “Parent” shall mean 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 fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date. |
2.18 | “Plan” shall mean the BeyondCore, Inc. 2007 Stock Incentive Plan. |
2.19 | “Purchase Price” shall mean the consideration for which one Share may be acquired under the Plan (other than upon exercise of an Option). |
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2.20 | “Purchaser” shall mean a person to whom the Board has offered the right to acquire Shares under the Plan (other than upon exercise of an Option). |
2.21 | “Restricted Share Agreement” shall mean the agreement between the Company and a Purchaser who acquires Shares under the Plan that contains the terms, conditions and restrictions pertaining to the acquisition of such Shares. |
2.22 | “Securities Act” shall mean the U.S. Securities Act of 1933, as amended. |
2.23 | “Service” shall mean service as an Employee, a Consultant or an Outside Director, subject to such further limitations as may be set forth in the applicable Stock Option Agreement or Restricted Share Agreement. Service shall be deemed to continue during a bona fide leave of absence approved by the Company in writing if and to the extent that continued crediting of Service for purposes of the Plan is expressly required by the terms of such leave or by applicable law, as determined by the Company. However, for purposes of determining whether an Option is entitled to ISO status, and to the extent required under the Code, an Employee’s employment 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 or such Employee immediately returns to active work. The Company determines which leaves count toward Service, and when Service terminates for all purposes under the Plan. |
2.24 | “Share” shall mean one share of Stock, as adjusted in accordance with Section 9 (if applicable). |
2.25 | “Stock” shall mean the common stock of the Company. |
2.26 | “Stock Option Agreement” shall mean the agreement between the Company and an Optionee which contains the terms, conditions and restrictions pertaining to the Optionee’s Option. |
2.27 | “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 fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date. |
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2.28 | “Ten-Percent Stockholder” means an individual who owns more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company, its Parent or any of its Subsidiaries. In determining stock ownership for purposes of this Section 2.28, the attribution rules of section 424(d) of the Code shall be applied. |
SECTION 3. ADMINISTRATION.
3.1 | General Rule. The Plan shall be administered by the Board. However, the Board may delegate any or all administrative functions under the Plan otherwise exercisable by the Board to one or more Committees. Each Committee shall consist of at least one member of the Board who has been appointed by the Board. Each Committee shall have the authority and be responsible for such functions as the Board has assigned to it. If a Committee has been appointed, any reference to the Board in the Plan shall be construed as a reference to the Committee to whom the Board has assigned a particular function. The Board may also authorize one or more officers of the Company to designate Employees, other than such authorized officer or officers, to receive Awards and/or to determine the number of such Awards to be received by such persons; provided, however, that the Board shall specify the total number of Awards that such officer or officers may so award. |
3.2 | Board Authority and Responsibility. Subject to the provisions of the Plan, the Board shall have full authority and discretion to take any actions it deems necessary or advisable for the administration of the Plan. All decisions, interpretations and any other actions of the Board with respect to the Plan shall be final and binding on all persons deriving rights under the Plan. |
SECTION 4. ELIGIBILITY.
4.1 | General Rule. Only Employees shall be eligible for the grant of ISOs. Only Employees, Consultants and Outside Directors shall be eligible for the grant of NSOs or the award or sale of Shares. |
SECTION 5. STOCK SUBJECT TO PLAN.
5.1 | Share Limit. Subject to Sections 5.2 and 9, the aggregate number of Shares which may be issued under the Plan shall not exceed 5,909,911 Shares. The number of Shares which are subject to Options or other rights outstanding at any time shall not exceed the number of Shares which then remain available for issuance under the Plan. The Company, during the term of the Plan, shall at all times reserve and keep available |
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sufficient Shares to satisfy the requirements of the Plan. Shares offered under the Plan may be authorized but unissued Shares or treasury Shares.
5.2 | Additional Shares. In the event that any outstanding Option or other right expires or is canceled for any reason, the Shares allocable to the unexercised portion of such Option or other right shall remain available for issuance pursuant to the Plan. If a Share previously issued under the Plan is reacquired by the Company pursuant to a forfeiture provision, right of repurchase or right of first refusal, then such Share shall again become available for issuance under the Plan. |
SECTION 6. RESTRICTED SHARES.
6.1 | Restricted Share Agreement. Each award or sale of Shares under the Plan (other than upon exercise of an Option) shall be evidenced by a Restricted Share Agreement between the Purchaser and the Company. Such award or sale shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions imposed by the Board, as set forth in the Restricted Share Agreement, that are not inconsistent with the Plan. The provisions of the various Restricted Share Agreements entered into under the Plan need not be identical. |
6.2 | Duration of Offers and Nontransferability of Purchase Rights. Any right to acquire Shares (other than an Option) shall automatically expire if not exercised by the Purchaser within thirty (30) days after the Company communicates the grant of such right to the Purchaser. Such right shall be nontransferable and shall be exercisable only by the Purchaser to whom the right was granted. |
6.3 | Purchase Price. The Purchase Price of Shares offered under the Plan shall not be less than eighty-five percent (85%) of the Fair Market Value of such Shares; provided, however, if the Purchaser is a Ten-Percent Stockholder, the Purchase Price shall not be less than one hundred percent (100%) of the Fair Market Value of such Shares. Subject to the foregoing in this Section 63, the Board shall determine the amount of the Purchase Price in its sole discretion. The Purchase Price shall be payable in a form described in Section 8. |
6.4 | Repurchase Rights and Transfer Restrictions. Each award or sale of Shares shall be subject to such forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Board may determine, subject to the requirements of Section 10. Such restrictions shall be set forth in the applicable Restricted Share Agreement and shall apply in addition to any restrictions otherwise applicable to holders of Shares generally. |
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SECTION 7. STOCK OPTIONS.
7.1 | Stock Option Agreement. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. The Option shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions imposed by the Board, as set forth in the Stock Option Agreement, which are not inconsistent with the Plan. The provisions of the various Stock Option Agreements entered into under the Plan need not be identical. |
7.2 | Number of Shares; Kind of Option. Each Stock Option Agreement shall specify the number of Shares that are subject to the Option and shall provide for the adjustment of such number in accordance with Section 9. The Stock Option Agreement shall also specify whether the Option is intended to be an ISO or an NSO. |
7.3 | Exercise Price. Each Stock Option Agreement shall set forth the Exercise Price, which shall be payable in a form described in Section 8. Subject to the following requirements, the Exercise Price under any Option shall be determined by the Board in its sole discretion: |
(a) | Minimum Exercise Price for ISOs. The Exercise Price per Share of an ISO shall not be less than one hundred percent (100%) of the Fair Market Value of a Share on the date of grant; provided, however, that the Exercise Price per Share of an ISO granted to a Ten-Percent Stockholder shall not be less than one hundred ten percent (110%) of the Fair Market Value of a Share on the date of grant. |
(b) | Exercise Price for NSOs. The Exercise Price per Share of an NSO shall be determined by the Board in its sole discretion. |
7.4 | Term. Each Stock Option Agreement shall specify the term of the Option. The term of an Option shall in no event exceed ten (10) years from the date of grant. The term of an ISO granted to a Ten-Percent Stockholder shall not exceed five (5) years from the date of grant. Subject to the foregoing, the Board in its sole discretion shall determine when an Option shall expire. |
7.5 | Exercisability. Each Stock Option Agreement shall specify the date when all or any installment of the Option is to become exercisable; provided, however, that no Option shall be exercisable unless the Optionee has delivered to the Company an executed copy of the Stock Option Agreement. Subject to the following restrictions, the |
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Board in its sole discretion shall determine when all or any installment of an Option is to become exercisable and may, in its discretion, provide for accelerated exercisability in the event of a Change in Control or other events:
(a) | Options Granted to Employees. An Option granted to an Optionee who is not a Consultant or an officer or director of the Company, a Parent or a Subsidiary shall be exercisable at the minimum rate of twenty percent (20%) per year for each of the first five (5) years starting from the date of grant, subject to reasonable conditions such as continued Service. |
(b) | Options Granted to Outside Directors, Consultants or Officers. An Option granted to an Optionee who is a Consultant or an officer or director of the Company, a Parent or a Subsidiary shall be exercisable at any time or during any period established by the Board, subject to reasonable conditions such as continued Service; provided, however, that the exercisability of an Option granted to an Optionee for service as an Outside. Director shall be automatically accelerated in full in the event of a Change in Control. |
(c) | Early Exercise. A Stock Option Agreement may permit the Optionee to exercise the Option as to Shares that are subject to a right of repurchase by the Company in accordance with the requirements of Section 10.1. |
7.6 | Repurchase Rights and Transfer Restrictions. Shares purchased on exercise of Options shall be subject to such forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Board may determine, subject to the requirements of Section 10. Such restrictions shall be set forth in the applicable Stock Option Agreement and shall apply in addition to any restrictions otherwise applicable to holders of Shares generally. |
7.7 | Transferability of Options. During an Optionee’s lifetime, his or her Options shall be exercisable only by the Optionee or by the Optionee’s guardian or legal representatives, and shall not be transferable other than by beneficiary designation, will or the laws of descent and distribution. Notwithstanding the foregoing, however, to the extent permitted by the Board in its sole discretion, an NSO may be transferred by the Optionee to one or more family members or a trust established for the benefit of the Optionee and/or one or more family members to the extent permitted by section 260.140.41(d) of Title 10 of the California Code of Regulations and Rule 701 of the Securities Act. |
7.8 | Exercise of Options on Termination of Service. Each Option shall set forth the |
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extent to which the Optionee shall have the right to exercise the Option following termination of the Optionee’s Service. Each Stock Option Agreement shall provide the Optionee with the right to exercise the Option following the Optionee’s termination of Service during the Option term, to the extent the Option was exercisable for vested Shares upon termination of Service, for at least thirty (30) days if termination of Service is due to any reason other than cause, death or Disability, and for at least six (6) months after termination of Service if due to death or Disability (but in no event later than the expiration of the Option term). If the Optionee’s Service is terminated for cause, the Stock Option Agreement may provide that the Optionee’s right to exercise the Option terminates immediately on the effective date of the Optionee’s termination. To the extent the Option was not exercisable for vested Shares upon termination of Service, the Option shall terminate when the Optionee’s Service terminates. Subject to the foregoing, such provisions shall be determined in the sole discretion of the Board, need not be uniform among all Options issued pursuant to the Plan, and may reflect distinctions based on the reasons for termination of Service.
7.9 | No Rights as a Stockholder. An Optionee, or a transferee of an Optionee, shall have no rights as a stockholder with respect to any Shares covered by the Option until such person becomes entitled to receive such Shares by filing a notice of exercise and paying the Exercise Price pursuant to the terms of the Option. No adjustments shall be made, except as provided in Section 9. |
7.10 | Modification, Extension and Renewal of Options. Within the limitations of the Plan, the Board may modify, extend or renew outstanding Options or may accept the cancellation of outstanding Options (to the extent not previously exercised), whether or not granted hereunder, in return for the grant of new Options for the same or a different number of Shares and at the same or a different Exercise Price. The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, impair his or her rights or increase the Optionee’s obligations under such Option. |
SECTION 8. PAYMENT FOR SHARES.
8.1 | General. The entire Purchase Price or Exercise Price of Shares issued under the Plan shall be payable in cash, cash equivalents or one of the other forms provided in this Section 8. |
8.2 | Surrender of Stock. To the extent permitted by the Board in its sole discretion, payment may be made in whole or in part by surrendering, or attesting to ownership of, Shares which have already been owned by the Optionee; provided, however, that payment may not be made in such form if such action would cause the Company to recognize any (or additional) compensation expense with respect to the Option for financial reporting purposes. Such Shares shall be surrendered to the Company in good |
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form for transfer and shall be valued at their Fair Market Value on the date of Option exercise.
8.3 | Services Rendered. As determined by the Board in its discretion, Shares may be awarded under the Plan in consideration of past services rendered to the Company, a Parent or Subsidiary. |
8.4 | Promissory Notes. To the extent permitted by the Board in its sole discretion, payment may be made in whole or in part with a full-recourse promissory note executed by the Optionee or Purchaser. The interest rate payable under the promissory note shall not be less than the minimum rate required to avoid the imputation of income for U.S. federal income tax purposes. Shares shall be pledged as security for payment of the principal amount of the promissory note, and interest thereon; provided that if the Optionee or Purchaser is a Consultant, such note must be collateralized with such additional security to the extent required by applicable laws. In no event shall the stock certificate(s) representing such Shares be released to the Optionee or Purchaser until such note is paid in full. Subject to the foregoing, the Board shall determine the term, interest rate and other provisions of the note. |
8.5 | Exercise/Sale. To the extent permitted by the Board in its sole discretion, and if a public market for the Shares exists, payment may be made in whole or in part by delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker approved by the Company to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of all or part of the Exercise Price and any withholding taxes. |
8.6 | Exercise/Pledge. To the extent permitted by the Board in its sole discretion, and if a public market for the Shares exists, payment may be made in whole or in part by delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker or lender approved by the Company to pledge Shares, as security for a loan, and to deliver all or part of the loan proceeds to the Company in payment of all or part of the Exercise Price and any withholding taxes. |
8.7 | Other Forms of Payment. To the extent permitted by the Board in its sole discretion, payment may be made in any other form that is consistent with applicable laws, regulations and rules. |
SECTION 9. ADJUSTMENT OF SHARES.
9.1 | General. In the event of a subdivision of the outstanding Stock, a declaration of a dividend payable in Shares, a declaration of an extraordinary dividend payable in a form |
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other than Shares in an amount that has a material effect on the Fair Market Value of the Stock, a combination or consolidation of the outstanding Stock into a lesser number of Shares, a recapitalization, a spin-off, a reclassification, or a similar occurrence, the Board shall make appropriate adjustments to one or more of the following: (i) the number of Shares available for future awards under Section 5; (ii) the number of Shares covered by each outstanding Option; (iii) the Exercise Price under each outstanding Option; or (iv) the price of Shares subject to the Company’s right of repurchase.
9.2 | Dissolution or Liquidation. To the extent not previously exercised or settled, Options shall terminate immediately prior to the dissolution or liquidation of the Company. |
9.3 | Mergers and Consolidations. In the event that the Company is a party to a merger or other consolidation, or in the event of a transaction providing for the sale of all or substantially all of the Company’s stock or assets, outstanding Options shall be subject to the agreement of merger, consolidation or sale. Such agreement may provide for one or more of the following: (i) the continuation of the outstanding Options by the Company, if the Company is a surviving corporation; (ii) the assumption of the Plan and outstanding Options by the surviving corporation or its parent; (iii) the substitution by the surviving corporation or its parent of options with substantially the same terms for such outstanding Options; (iv) immediate exercisability of such outstanding Options followed by the cancellation of such Options; or (v) settlement of the full value of the outstanding Options (whether or not then exercisable) in cash or cash equivalents followed by the cancellation of such Options; in each case without the Optionee’s consent. |
9.4 | Reservation of Rights. Except as provided in this Section 9, an Optionee or offeree shall have no rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend or any other increase or decrease in the number of shares of stock of any class. Any issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or Exercise Price of Shares subject to an Option. The grant of an Option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets. |
SECTION 10. REPURCHASE RIGHTS.
10.1 | Company’s Right To Repurchase Shares. The Company shall have the right to repurchase Shares that have been acquired through an award or sale of Shares or exercise of an Option upon termination of the Purchaser’s or Optionee’s Service if provided in the |
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applicable Restricted Share Agreement or Stock Option Agreement. Subject to the following restrictions, the Board in its sole discretion shall determine when the right to repurchase shall lapse as to all or any portion of the Shares, and may, in its discretion, provide for accelerated vesting in the event of a Change in Control or other events; provided, however, that the right to repurchase shall lapse as to all of the Shares issued to an Outside Director for service as an Outside Director in the event of a Change in Control. The following restrictions shall apply in the case of a Purchaser or Optionee who is not a Consultant or an officer or director of the Company, a Parent or Subsidiary:
(a) | Repurchase Price. If the Company retains a right to repurchase the Shares at not less than the Fair Market Value of the Shares on the date that the Purchaser’s Service terminates, then such repurchase right shall terminate when the Company’s Stock becomes publicly traded. If the Company retains a right to repurchase the Shares at the original Purchase Price or Exercise Price, then such repurchase right shall lapse at the minimum rate of twenty percent (20%) per year over the five (5) year period starting on the date of the award or sale of Shares or grant of the Option. |
(b) | Exercise of Repurchase Right. The Company’s right of repurchase under this Section 10.1 may be exercised only within ninety (90) days of the date on which the Purchaser’s or Optionee’s Service terminates or, if the Optionee acquired the Shares upon exercise of an Option after the date of termination, within ninety (90) days from the date of exercise. |
(c) | Payment of Repurchase Price. The Company shall pay the repurchase price in cash, cash equivalents or for cancellation of indebtedness incurred in purchasing the Shares. |
SECTION 11. WITHHOLDING TAXES.
11.1 | General. An Optionee or Purchaser or his or her successor shall pay, or make arrangements satisfactory to the Board for the satisfaction of, any federal, state, local or foreign withholding tax obligations that may arise in connection with the Plan. The Company shall not be required to issue any Shares or make any cash payment under the Plan until such obligations are satisfied. |
11.2 | Share Withholding. The Board may permit an Optionee or Purchaser to satisfy all or part of his or her withholding or income tax obligations by having the Company withhold all or a portion of any Shares that otherwise would be issued to him or her or by surrendering all or a portion of any Shares that he or she previously acquired; provided, however, that in no event may an Optionee or Purchaser surrender Shares in excess of the |
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legally required withholding amount. Such Shares shall be valued at their Fair Market Value on the date when taxes otherwise would be withheld in cash. Any payment of taxes by assigning Shares to the Company may be subject to restrictions, including any restrictions required by rules of any federal or state regulatory body or other authority.
11.3 | Cashless Exercise/Pledge. The Board may provide that if Company Shares are publicly traded at the time of exercise, arrangements may be made to meet the Optionee’s or Purchaser’s withholding obligation by cashless exercise or pledge. |
11.4 | Other Forms of Payment. The Board may permit such other means of tax withholding as it deems appropriate. |
SECTION 12. SECURITIES LAW REQUIREMENTS.
12.1 | General. Shares shall not be issued under the Plan unless the issuance and delivery of such Shares complies with (or is exempt from) all applicable requirements of law, including (without limitation) the Securities Act, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be listed. |
12.2 | Voting and Dividend Rights. The holders of Shares acquired under the Plan shall have the same voting, dividend and other rights as the Company’s other stockholders. A Restricted Share Agreement, however, may require that the holders of Shares invest any cash dividends received in additional Shares. Such additional Shares shall be subject to the same conditions and restrictions as the award with respect to which the dividends were paid. |
12.3 | Financial Reports. At least annually, the Company shall furnish its financial statements, including a balance sheet regarding the Company’s financial condition and results of operations, to Optionees, Purchasers and stockholders who have received Shares under the Plan, unless such persons are key employees whose duties at the Company assure them access to equivalent information. Financial statements need not be audited. |
SECTION 13. NO RETENTION RIGHTS.
No provision of the Plan, or any right or Option granted under the Plan, shall be construed to give any Optionee or Purchaser any right to become an Employee, to be treated as an Employee, or to continue in Service for any period of time, or restrict in any way the rights of the Company (or Parent or subsidiary to whom the Optionee or Purchaser provides Service),
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which rights are expressly reserved, to terminate the Service of such person at any time and for any reason, with or without cause, without thereby incurring any liability to him or her.
SECTION 14. DURATION AND AMENDMENTS.
14.1 | Term of the Plan. The Plan, as set forth herein, shall become effective on the date of its adoption by the Board, subject to the approval of the Company’s stockholders. In the event that the stockholders fail to approve the Plan within twelve (12) months after its adoption by the Board, any grants, exercises or sales that have already occurred under the Plan shall be rescinded, and no additional grants, exercises or sales shall be made under the Plan after such date. The Plan shall terminate automatically ten (10) years after its adoption by the Board. The Plan may be terminated on any earlier date pursuant to Section 14.2 below. |
14.2 | Right to Amend or Terminate the Plan. The Board may amend, suspend, or terminate the Plan at any time and for any reason. An amendment of the Plan shall not be subject to the approval of the Company’s stockholders unless it (i) increases the number of Shares available for issuance under the Plan (except as provided in Section 9) or (ii) materially changes the class of persons who are eligible for the grant of Options or the award or sale of Shares. At least two-thirds (2/3) of the Company’s Shares entitled to vote must affirmatively approve an increase in the number of Shares available for issuance if the total number of Shares that may be issued upon the exercise of all outstanding Options and the total number of Shares provided under any stock bonus or similar plan of the Company exceed thirty percent (30%) of all outstanding Shares of the Company. |
14.3 | Effect of Amendment or Termination. No Shares shall be issued or sold under the Plan after the termination thereof, except upon exercise of an Option granted prior to such termination. The termination of the Plan, or any amendment thereof, shall not adversely affect any Shares previously issued or any Option previously granted under the Plan without the holder’s consent. |
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Exhibit 4.4
BEYONDCORE, INC.
2016 EQUITY INCENTIVE PLAN
As Adopted on August 12, 2016
1.PURPOSE. The purpose of this Plan is to provide incentives to attract, retain and motivate eligible persons whose present and potential contributions are important to the success of the Company, its Parent and Subsidiaries by offering eligible persons an opportunity to participate in the Company’s future performance through the grant of RSUs covering Shares. Capitalized terms not defined in the text are defined in Section 11 hereof. Although this Plan is intended to be a written compensatory benefit plan within the meaning of Rule 701, grants may be made pursuant to this Plan that do not qualify for exemption under Rule 701 or Section 25102(o). Any requirement of this Plan that is required in law only because of Section 25102(o) need not apply if the Committee so provides.
2. SHARES SUBJECT TO THE PLAN.
2.1 Number of Shares Available. Subject to Sections 2.2 and 8 hereof, the total number of Shares reserved and available for grant and issuance pursuant to this Plan will be 250,000 Shares. Subject to Sections 2.2 and 8 hereof, Shares subject to RSUs that are cancelled, forfeited, settled in cash, used to pay withholding obligations or that expire by their terms at any time will again be available for grant and issuance in connection with other RSUs. In the event that Shares previously issued under the Plan are reacquired by the Company pursuant to a forfeiture provision or right of first refusal, such Shares shall be added to the number of Shares then available for issuance under the Plan. At all times the Company will reserve and keep available a sufficient number of Shares as will be required to satisfy the requirements of all RSUs granted and outstanding under this Plan.
2.2 Adjustment of Shares. In the event that the number of outstanding shares of the capital stock is changed by a stock dividend, recapitalization, stock split, reverse stock split, subdivision, combination, reclassification or other change in the capital structure of the Company affecting Shares without consideration, then in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan (a) the number of Shares reserved for issuance under this Plan and (b) the number of Shares subject to other outstanding RSUs will (to the extent appropriate) be proportionately adjusted, subject to any required action by the Board or the stockholders of the Company and compliance with applicable securities laws; provided, however, that fractions of a Share will not be issued but will either be paid in cash at the Fair Market Value of such fraction of a Share or will be rounded down to the nearest whole Share, as determined by the Committee.
3. PLAN FOR BENEFIT OF SERVICE PROVIDERS.
3.1 Eligibility. The Committee will have the authority to select persons to receive RSUs. RSUs may be granted to employees, officers, directors and consultants of the Company or any Subsidiary or Parent of the Company; provided such consultants render bona fide services not in connection with the offer and sale of securities in a capital-raising transaction when Rule 701 is to apply to the RSU granted for such services. A person may be granted more than one RSU under this Plan.
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3.2 No Obligation to Employ. Nothing in this Plan or any RSU granted under this Plan will confer or be deemed to confer on any Participant any right to continue in the employ of, or to continue any other relationship with, the Company or any Subsidiary or Parent of the Company or limit in any way the right of the Company or any Subsidiary or Parent of the Company to terminate Participant’s employment or other relationship at any time, with or without Cause.
4. RESTRICTED STOCK UNITS.
4.1 RSUs of Restricted Stock Units. A Restricted Stock Unit (“RSU”) is an RSU covering a number of Shares that may be settled in cash, or by issuance of those Shares at a date in the future. No Purchase Price shall apply to an RSU settled in Shares. All grants of Restricted Stock Units will be evidenced by an RSU Agreement that will be in such form (which need not be the same for each Participant) as the Committee will from time to time approve, and will comply with and be subject to the terms and conditions of this Plan. No RSU will have a term longer than seven (7) years from the date the RSU is granted.
4.2 Form and Timing of Settlement. To the extent permissible under applicable law, the Committee may permit a Participant to defer payment under a RSU to a date or dates after the RSU is earned, provided that the terms of the RSU and any deferral satisfy the requirements of Section 409A of the Code (or any successor) and any regulations or rulings promulgated thereunder. Payment may be made in the form of cash or whole Shares or a combination thereof, all as the Committee determines.
4.3 Dividend Equivalent Payments. The Board may permit Participants holding RSUs to receive dividend equivalent payments on outstanding RSUs if and when dividends are paid to stockholders on Shares. In the discretion of the Board, such dividend equivalent payments may be paid in cash or Shares and they may either be paid at the same time as dividend payments are made to stockholders or delayed until when Shares are issued pursuant to the RSU grants and may be subject to the same vesting requirements as the RSUs. If the Board permits dividend equivalent payments to be made on RSUs, the terms and conditions for such payments will be set forth in the RSU Agreement.
5. WITHHOLDING TAXES.
5.1 Withholding Generally. Whenever Shares are to be issued in satisfaction of RSUs granted under this Plan, the Company may require the Participant to remit to the Company an amount sufficient to satisfy applicable tax withholding requirements prior to the delivery of any certificate or certificates for such Shares. Whenever, under this Plan, payments in satisfaction of RSUs are to be made in cash by the Company, such payment will be net of an amount sufficient to satisfy applicable tax withholding requirements.
5.2 Stock Withholding. When, under applicable tax laws, a Participant incurs tax liability in connection with the vesting of any RSU that is subject to tax withholding and the Participant is obligated to pay the Company the amount required to be withheld, the Committee may in its sole discretion allow the Participant to satisfy the minimum tax withholding obligation by electing to have the Company withhold from the Shares to be issued up to the minimum number of Shares having a Fair Market Value on the date that the amount of tax to be withheld is to be determined that is not more than the minimum amount to be withheld; or to arrange a mandatory “sell to cover” on Participant’s behalf (without further authorization) but in no event will the Company withhold Shares or “sell to cover” if such withholding would result in adverse accounting consequences to the Company. Any elections to
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have Shares withheld or sold for this purpose will be made in accordance with the requirements established by the Committee for such elections and be in writing in a form acceptable to the Committee.
6. RESTRICTIONS ON AWARDS.
6.1 Transferability. Except as permitted by the Committee, RSUs granted under this Plan, and any interest therein, will not be transferable or assignable by Participant, other than by will or by the laws of descent and distribution. For the avoidance of doubt, the prohibition against assignment and transfer applies to the shares to be issued on settlement of an RSU, and pursuant to the foregoing sentence shall be understood to include, without limitation, a prohibition against any pledge, hypothecation, or other transfer, including any short position, any “put equivalent position” or any “call equivalent position” (in each case, as defined in Rule 16a-1 promulgated under the Exchange Act). Unless an RSU is transferred pursuant to the terms of this Section 6, any elections with respect to an RSU may be made only by the Participant or Participant’s legal representative. The terms of an RSU shall be binding upon the executor, administrator, successors and assigns of the Participant who is a party thereto.
6.2 Securities Law and Other Regulatory Compliance. Although this Plan is intended to be a written compensatory benefit plan within the meaning of Rule 701 promulgated under the Securities Act, grants may be made pursuant to this Plan that do not qualify for exemption under Rule 701 or Section 25102(o). Any requirement of this Plan which is required in law only because of Section 25102(o) need not apply with respect to a particular RSU to which Section 25102(o) will not apply. An RSU will not be effective unless such RSU is in compliance with all applicable federal, state and foreign securities laws, rules and regulations of any governmental body, and the requirements of any stock exchange or automated quotation system upon which the Shares may then be listed or quoted, as they are in effect on the date of grant of the RSU and also on the date of issuance. Notwithstanding any other provision in this Plan, the Company will have no obligation to issue or deliver certificates for Shares under this Plan prior to (a) obtaining any approvals from governmental agencies that the Company determines are necessary or advisable, and/or (b) compliance with any exemption, completion of any registration or other qualification of such Shares under any state, federal or foreign law or ruling of any governmental body that the Company determines to be necessary or advisable. The Company will be under no obligation to register the Shares with the SEC or to effect compliance with the exemption, registration, qualification or listing requirements of any state or foreign securities laws, stock exchange or automated quotation system, and the Company will have no liability for any inability or failure so do.
6.3 Exchange and Buyout of RSUs. The Committee may, at any time or from time to time, authorize the Company, with the consent of the respective Participants, to issue new RSUs in exchange for the surrender and cancellation of any or all outstanding RSUs. The Committee may at any time buy from a Participant an RSU previously granted with payment in cash, Shares or other consideration, based on such terms and conditions as the Committee and the Participant may agree.
7. RESTRICTIONS ON SHARES.
7.1 Privileges of Stock Ownership. No Participant will have any of the rights of a stockholder with respect to any Shares until such Shares are issued to the Participant. After Shares are issued to the Participant, the Participant will be a stockholder and have all the rights of a stockholder with respect to such Shares, including the right to vote and receive all dividends or other distributions made or paid with respect to such Shares.
7.2 Right of First Refusal. At the discretion of the Committee, the Company may reserve to itself and/or its assignee(s) in the RSU Agreement a right of first refusal to purchase all Shares
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that a Participant (or a subsequent transferee) may propose to transfer to a third party, provided that such right of first refusal terminates upon the Company’s initial public offering of its capital stock pursuant to an effective registration statement filed under the Securities Act.
7.3 Escrow; Pledge of Shares. To enforce any restrictions on a Participant’s Shares, the Committee may require the Participant to deposit all certificates representing Shares, together with stock powers or other instruments of transfer approved by the Committee, appropriately endorsed in blank, with the Company or an agent designated by the Company to hold in escrow until such restrictions have lapsed or terminated. The Committee may cause a legend or legends referencing such restrictions to be placed on the certificate.
7.4 Securities Law Restrictions. All certificates for Shares or other securities delivered under this Plan will be subject to such stock transfer orders, legends and other restrictions as the Committee may deem necessary or advisable, including restrictions under any applicable federal, state or foreign securities law, or any rules, regulations and other requirements of the SEC or any stock exchange or automated quotation system upon which the Shares may be listed or quoted.
8. CORPORATE TRANSACTIONS.
8.1 Acquisitions or Other Combinations. In the event that the Company is subject to an Acquisition or Other Combination, outstanding RSUs acquired under the Plan shall be subject to the agreement evidencing the Acquisition or Other Combination, which need not treat all outstanding RSUs in an identical manner (unless required by applicable law). Such agreement, without the Participant’s consent, shall provide for one or more of the following with respect to all outstanding RSUs as of the effective date of such Acquisition or Other Combination:
(a) The continuation of such outstanding RSUs by the Company (if the Company is the successor entity).
(b) The assumption of outstanding RSUs by the successor or acquiring entity (if any) in such Acquisition or Other Combination (or by any of its Parents, if any), which assumption, will be binding on all Participants, provided that any RSU that is subject to Section 409A of the Code will be adjusted appropriately pursuant to Section 409A of the Code. For the purposes of this Section 8, an RSU will be considered assumed if, following the Acquisition or Other Combination, the RSU confers the right to purchase or receive, for each Share subject to the RSU immediately prior to the Acquisition or Other Combination, the consideration (whether stock, cash, or other securities or property) received in the Acquisition or Other Combination by holders of Shares for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares).
(c) The substitution by the successor or acquiring entity in such Acquisition or Other Combination (or by any of its Parents, if any) of equivalent awards with substantially the same terms for such outstanding RSUs (except that an RSU that is subject to Section 409A of the Code will be adjusted appropriately pursuant to Section 409A of the Code).
(d) The full or partial vesting and accelerated expiration of outstanding RSUs.
(e) The settlement of the full value of such outstanding RSU (whether or not then vested) in cash, cash equivalents, or securities of the successor entity (or its Parent, if any) with a Fair Market Value equal to the required amount, followed by the cancellation of such RSUs; provided
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however, that such RSU may be cancelled without consideration if such RSU has no value, as determined by the Committee, in its discretion. For purposes of this Section 8.1(e), the Fair Market Value of any security shall be determined without regard to any vesting conditions that may apply to such security.
Immediately following an Acquisition or Other Combination, outstanding RSUs shall terminate and cease to be outstanding, except to the extent such RSUs, have been continued, assumed or substituted, as described in Sections 8.1(a), (b) and/or (c). In the event the successor or acquiring corporation (if any) does not continue, assume or substitute the RSUs, as provided above, pursuant to an Acquisition or Other Combination, then notwithstanding any other provision in this Plan to the contrary, the vesting of such RSUs will accelerate in full.
8.2 Substitution or Assumption of RSUs by the Company. The Company, from time to time, also may substitute or assume outstanding awards granted by another entity, whether in connection with an acquisition of such other entity or otherwise, by either (a) granting an RSU under this Plan in substitution of such other entity’s award or (b) assuming and/or converting such award as if it had been granted under this Plan if the terms of such assumed award could be applied to an RSU granted under this Plan. Such substitution or assumption will be permissible if the holder of the substituted or assumed award would have been eligible to be granted an RSU under this Plan if the other entity had applied the rules of this Plan to such grant. In the event the Company assumes an award granted by another entity, the terms and conditions of such award will remain unchanged (except that any award that is subject to Section 409A of the Code will be adjusted appropriately pursuant to Section 409A of the Code).
9. ADMINISTRATION.
9.1 Committee Authority. This Plan will be administered by the Committee or the Board if no Committee is created by the Board. Subject to the general purposes, terms and conditions of this Plan, and to the direction of the Board, the Committee will have full power to implement and carry out this Plan. Without limitation, the Committee will have the authority to:
(a) construe and interpret this Plan, any RSU Agreement and any other agreement or document executed pursuant to this Plan;
(b) prescribe, amend, expand, modify and rescind or terminate rules and regulations relating to this Plan;
(c) approve persons to receive RSUs;
(d) determine the form and terms of RSUs;
(e) determine the number of Shares or other consideration subject to RSUs granted under this Plan;
(f) determine the Fair Market Value in good faith and interpret the applicable provisions of this Plan and the definition of Fair Market Value in connection with circumstances that impact the Fair Market Value, if necessary;
(g) determine whether RSUs will be granted singly, in combination with, in tandem with, in replacement of, or as alternatives to, other RSUs under this Plan or awards under any other incentive or compensation plan of the Company or any Subsidiary or Parent of the Company;
5
(h) grant waivers of any conditions of this Plan or any RSU;
(i) determine the terms of vesting and payment of RSUs to be granted pursuant to this Plan;
(j) correct any defect, supply any omission, or reconcile any inconsistency in this Plan, any RSU and any RSU Agreement;
(k) determine whether an RSU has been earned;
(l) extend the vesting period beyond a Participant’s Termination Date;
(m) adopt rules and/or procedures (including the adoption of any subplan under this Plan or any annex or addendum to an RSU Agreement) relating to the operation and administration of the Plan to accommodate requirements of local law and procedures outside of the United States;
(n) delegate any of the foregoing to a subcommittee consisting of one or more executive officers pursuant to a specific delegation as may otherwise be permitted by applicable law;
(o) change the vesting schedule of RSUs under the Plan prospectively in the event that the Participant’s service status changes between full and part time status in accordance with Company policies relating to work schedules and vesting of awards; and
(p) make all other determinations necessary or advisable in connection with the administration of this Plan.
9.2 Committee Composition and Discretion. The Board may delegate full administrative authority over the Plan and RSUs to a Committee consisting of at least one member of the Board (or such greater number as may then be required by applicable law). Unless in contravention of any express terms of this Plan or RSU, any determination made by the Committee with respect to any RSU will be made in its sole discretion either (a) at the time of grant of the RSU, or (b) at any later time. Any such determination will be final and binding on the Company and on all persons having an interest in any RSU under this Plan. To the extent permitted by applicable law, the Committee may delegate to one or more officers of the Company the authority to grant an RSU under this Plan, provided that each such officer is a member of the Board.
9.3 Nonexclusivity of the Plan. Neither the adoption of this Plan by the Board, the submission of this Plan to the stockholders of the Company for approval, nor any provision of this Plan will be construed as creating any limitations on the power of the Board to adopt such additional compensation arrangements as it may deem desirable, including, without limitation, the granting of equity awards otherwise than under this Plan, and such arrangements may be either generally applicable or applicable only in specific cases.
9.4 Governing Law. This Plan and all agreements hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws.
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10. EFFECTIVENESS, AMENDMENT AND TERMINATION OF THE PLAN.
10.1 Adoption and Stockholder Approval. This Plan will become effective on the date that it is adopted by the Board (the “Effective Date”). This Plan will be approved by the stockholders of the Company (excluding Shares issued pursuant to this Plan), consistent with applicable laws, within twelve (12) months before or after the Effective Date. Upon the Effective Date, the Board may grant RSUs pursuant to this Plan; provided, however, that: (a) in the event that initial stockholder approval is not obtained within the time period provided herein, all RSUs for which only the exemption from California’s securities qualification requirements provided by Section 25102(o) can apply shall be canceled, any Shares issued pursuant to any such RSU shall be canceled and any purchase of such Shares issued hereunder shall be rescinded; and (b) RSUs (to which only the exemption from California’s securities qualification requirements provided by Section 25102(o) can apply) granted pursuant to an increase in the number of Shares approved by the Board which increase is not approved by stockholders within the time then required under Section 25102(o) shall be canceled, any Shares issued pursuant to any such RSUs shall be canceled, and any purchase of Shares subject to any such RSU shall be rescinded.
10.2 Term of Plan. Unless earlier terminated as provided herein, this Plan will automatically terminate ten (10) years after the later of (a) the Effective Date, or (b) the most recent increase in the number of Shares reserved under Section 2 that was approved by the Company’s stockholders.
10.3 Amendment or Termination of Plan. The Board may at any time (a) terminate or amend this Plan in any respect, including without limitation amendment of any form of RSU Agreement or instrument to be executed pursuant to this Plan and (b) terminate any and all outstanding RSUs upon a dissolution or liquidation of the Company, followed by the payment of creditors and the distribution of any remaining funds to the Company’s stockholders; provided, however, that the Board will not, without the approval of the stockholders of the Company, amend this Plan in any manner that requires such stockholder approval pursuant to Section 25102(o). The termination of the Plan, or any amendment thereof, shall not affect any Share previously issued or any RSU previously granted under the Plan.
11. DEFINITIONS. For all purposes of this Plan, the following terms will have the following meanings.
“Acquisition,” for purposes of Section 8, means:
(a) any consolidation or merger in which the Company is a constituent entity or is a party in which the voting stock and other voting securities of the Company that are outstanding immediately prior to the consummation of such consolidation or merger represent, or are converted into, securities of the surviving entity of such consolidation or merger (or of any Parent of such surviving entity) that, immediately after the consummation of such consolidation or merger, together possess less than fifty percent (50%) of the total voting power of all voting securities of such surviving entity (or of any of its Parents, if any) that are outstanding immediately after the consummation of such consolidation or merger;
(b) a sale or other transfer by the holders thereof of outstanding voting stock and/or other voting securities of the Company possessing more than fifty percent (50%) of the total voting power of all outstanding voting securities of the Company, whether in one transaction or in a series of related transactions, pursuant to an agreement or agreements to which the Company is a party and that has been approved by the Board, and pursuant to which such outstanding voting securities are sold or transferred to
7
a single person or entity, to one or more persons or entities who are Affiliates of each other, or to one or more persons or entities acting in concert; or
(c) the sale, lease, transfer or other disposition, in a single transaction or series of related transactions, by the Company and/or any Subsidiary or Subsidiaries of the Company, of all or substantially all the assets of the Company and its Subsidiaries taken as a whole, (or, if substantially all of the assets of the Company and its Subsidiaries taken as a whole are held by one or more Subsidiaries, the sale or disposition (whether by consolidation, merger, conversion or otherwise) of such Subsidiaries of the Company), except where such sale, lease, transfer or other disposition is made to the Company or one or more wholly owned Subsidiaries of the Company (an “Acquisition by Sale of Assets”).
Notwithstanding anything to the contrary, a transaction that does not constitute a “change in control event” under Sections 1.409A-3(i)(5)(v) or 1.409A-3(i)(5)(vii) of the Treasury Regulations under Section 409A of the Code will not constitute an Acquisition.
“Affiliate” of a specified person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified (where, for purposes of this definition, the term “control” (including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
“Board” means the Board of Directors of the Company.
“Cause” means, except as may otherwise be defined in a written agreement governing a given Participant’s employment with the Company or a Subsidiary or Parent of the Company, Termination because of (a) Participant’s unauthorized misuse of the Company or a Parent or Subsidiary of the Company’s trade secrets or proprietary information, (b) Participant’s conviction of or plea of nolo contendere to a felony or a crime involving moral turpitude, (c) Participant’s committing an act of fraud against the Company or a Subsidiary or Parent of the Company or (d) Participant’s gross negligence or willful misconduct in the performance of his or her duties that has had or will have a material adverse effect on the Company or Subsidiary or Parent of the Company’ reputation or business.
“Code” means the Internal Revenue Code of 1986, as amended.
“Committee” means the committee created and appointed by the Board to administer this Plan, or if no committee is created and appointed, the Board.
“Company” means BeyondCore, Inc. a Delaware corporation, or any successor corporation.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Market Value” means, as of any date, the value of a share of the Company’s Common Stock determined as follows:
(a)
if such Common Stock is then publicly traded on a national securities exchange, its closing price on the date of determination on the principal national securities exchange on which the Common Stock is listed or admitted to trading as reported in The Wall Street Journal;
if such Common Stock is then publicly traded on a national securities exchange, its closing price on the date of determination on the principal national securities exchange on which the Common Stock is listed or admitted to trading as reported in The Wall Street Journal;
8
(b) if such Common Stock is publicly traded but is not listed or admitted to trading on a national securities exchange, the average of the closing bid and asked prices on the date of determination as reported by The Wall Street Journal (or, if not so reported, as otherwise reported by any newspaper or other source as the Committee may determine); or
(c) if none of the foregoing is applicable to the valuation in question, by the Committee in good faith.
“Other Combination” for purposes of Section 8 means any (a) consolidation or merger in which the Company is a constituent entity and is not the surviving entity of such consolidation or merger or (b) any conversion of the Company into another form of entity; provided that such consolidation, merger or conversion does not constitute an Acquisition. Notwithstanding anything to the contrary, a transaction that does not constitute a “change in control event” under Sections 1.409A-3(i)(5)(v) or 1.409A-3(i)(5)(vii) of the Treasury Regulations under Section 409A of the Code will not constitute an Other Combination.
“Parent” of a specified entity means, any entity that, either directly or indirectly, owns or controls such specified entity, where for this purpose, “control” means the ownership of stock, securities or other interests that possess at least a majority of the voting power of such specified entity (including indirect ownership or control of such stock, securities or other interests).
“Participant” means a person who receives an RSU under this Plan.
“Plan” means this 2016 Equity Incentive Plan, as amended from time to time.
“Restricted Stock Unit” or “RSU” means an award made pursuant to Section 4 hereof.
“RSU Agreement” means, with respect to each RSU, the signed written or electronic agreement between the Company and the Participant setting forth the terms and conditions of the RSU as approved by the Committee. For purposes of the Plan, the RSU Agreement may be executed via written or electronic means.
“Rule 701” means Rule 701 et seq. promulgated by the SEC under the Securities Act.
“SEC” means the Securities and Exchange Commission.
“Section 25102(o)” means Section 25102(o) of the California Corporations Code.
“Securities Act” means the Securities Act of 1933, as amended.
“Shares” means shares of the Company’s Common Stock reserved for issuance under this Plan, as adjusted pursuant to Sections 2.2 and 8 hereof, and any successor security.
“Subsidiary” means any entity (other than the Company) in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain owns stock or other equity securities representing fifty percent (50%) or more of the total combined voting power of all classes of stock or other equity securities in one of the other entities in such chain.
“Termination” or “Terminated” means, for purposes of this Plan with respect to a Participant, that the Participant has for any reason ceased to provide services as an employee, officer,
9
director or consultant to the Company or a Subsidiary or Parent of the Company. A Participant will not be deemed to have ceased to provide services while the Participant is on a bona fide leave of absence, if such leave was approved by the Company in writing. In the case of an approved leave of absence, the Committee may make such provisions respecting crediting of service, including suspension of vesting of the RSU (including pursuant to a formal policy adopted from time to time by the Company) it may deem appropriate, except that in no event may an RSU be settled after the expiration of the term set forth in the RSU Agreement. The Committee will have sole discretion to determine whether a Participant has ceased to provide services and the effective date on which the Participant ceased to provide services (the “Termination Date”).
* * * * * * * * * * *
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Exhibit 5.1
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Tel 202.955.8500
www.gibsondunn.com
September 1, 2016
salesforce.com, inc.
The Landmark @ One Market, Suite 300
San Francisco, California 94105
Re: | BeyondCore, Inc. 2007 Stock Incentive Plan and BeyondCore, Inc. 2016 Equity Incentive Plan |
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8, (the “Registration Statement”) of salesforce.com, inc., a Delaware corporation (the “Company”), to be filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of 121,800 shares of the Company’s Common Stock, par value $0.001 per share (the “Shares”). The Shares subject to the Registration Statement are to be issued pursuant to the assumption of outstanding awards granted under the BeyondCore, Inc. 2007 Stock Incentive Plan and the BeyondCore, Inc. 2016 Equity Incentive Plan (collectively, the “Plans”).
We have examined the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinions set forth below. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. We have also assumed that there are no agreements or understandings between or among the Company and any participants in the Plans that would expand, modify or otherwise affect the terms of the Plans or the respective rights or obligations of the participants thereunder. Finally, we have assumed the accuracy of all other information provided to us by the Company during the course of our investigations, on which we have relied in issuing the opinion expressed below.
Based upon the foregoing examination and in reliance thereon, and subject to the qualifications, assumptions and limitations stated herein and in reliance on the statements of fact contained in the documents that we have examined, we are of the opinion that the Shares, when issued and sold in accordance with the terms set forth in the Plans and against payment therefor, and when the Registration Statement has become effective under the Securities Act, will be validly issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current
state of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours, |
/s/ Gibson, Dunn & Crutcher LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the BeyondCore, Inc. 2007 Stock Incentive Plan and BeyondCore, Inc. 2016 Equity Incentive Plan of salesforce.com, inc. of our report dated March 4, 2016 (except for the effects of the retrospective adoption of the updated accounting standards discussed in Notes 2, 6, 7 and 9 to the consolidated financial statements, as to which the date is September 1, 2016), with respect to the consolidated financial statements of salesforce.com, inc. and our report dated March 4, 2016, with respect to the effectiveness of internal control over financial reporting of salesforce.com, inc., included in salesforce.com, inc.’s Current Report on Form 8-K dated September 1, 2016, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP |
Redwood City, California
September 1, 2016
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of salesforce.com, inc. of our report dated February 26, 2016, relating to the consolidated financial statements of Demandware, Inc. and subsidiaries as of December 31, 2015 and 2014 and for the three years in the period ended December 31, 2015, appearing in the Current Report on Form 8-K/A of salesforce.com, inc. dated September 1, 2016.
/s/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
September 1, 2016
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