Delaware

35-2554312

(State or Other Jurisdiction of Incorporation or Organization)

(I.R.S. Employer Identification No.)

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2.67

Title of Securities to be
Registered

Amount to be
Registered (1)

Proposed Maximum
Offering Price Per
Share(2)

Proposed Maximum
Aggregate Offering
Price

Amount of
Registration Fee

Class A common stock, $0.001 par value per share

800,000

$22.67

$18,136,000.00

$2,257.93

(1)

This Registration Statement is being filed with the Securities and Exchange Commission (the “SEC”) to register 800,000 shares of Class A common stock that may be issued under the PetIQ, Inc. 2018 Inducement and Retention Stock Plan for CVC Employees (the “Plan”). In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional shares of Class A common stock, $0.001 par value per share, which may be issued pursuant to the Plan to prevent dilution from stock splits, stock dividends or similar transactions.

(2)

Estimated solely for purpose of computing the amount of the registration fee pursuant to Rule 457 under the Securities Act of 1933, as amended, and based on the average of the high and low prices of the registrant’s Common Stock on the NASDAQ Global Select Market on March 9, 2018, which date is within five business days prior to filing this Registration Statement.

(1)

The Registrant’s Annual Report on Form 10-K for its fiscal year ended December 31, 2017, filed with the SEC on March 13, 2018 (Registration No. 001-38163);

(2)

The Registrant’s Current Reports on Form 8-K filed with the SEC on January 8, 2018, January 23, 2018, and March 9, 2018 (Registration No. 001-38163); and

(3)

The description of the Registrant’s Class A common stock, $0.001 par value per share, contained in its Registration Statement on Form 8-A filed with the SEC on July 20, 2017 pursuant to Section 12(b) of the Exchange Act, including any subsequent amendment or report filed for the purpose of updating such description.

·

The Registrant shall indemnify its directors and officers for serving the registrant in those capacities or for serving other business enterprises at the registrant’s request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the  Registrant and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful.

·

The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.

·

The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.

·

The Registrant will not be obligated pursuant to the bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s board of directors or brought to enforce a right to indemnification.

·

The rights conferred in the bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons.

·

The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees and agents.

Exhibit Number

Description

4.1

Amended and Restated Certificate of Incorporation of PetIQ, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-1, file number 333-218955).

4.2

Bylaws of PetIQ, Inc. (incorporated by reference to Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1, file number 333-218955).

4.3

PetIQ, Inc. 2018 Inducement and Retention Stock Plan for CVC Employees (filed herewith).

5.1

Opinion of Winston & Strawn LLP (filed herewith).

23.1

Consent of KPMG LLP (filed herewith).

23.2

Consent of Winston & Strawn LLP (included in Exhibit 5.1 to this Registration Statement).

24.1

Power of Attorney (included on the signature page of this Registration Statement).

PETIQ, INC.

By:

/s/ McCord Christensen

McCord Christensen

Chief Executive Officer

Signature

Title

Date

/s/ McCord Christensen

Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)

March 13, 2018

McCord Christensen

/s/ John Newland 

Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)

March 13, 2018

John Newland

/s/ Mark First

Director

March 13, 2018

Mark First

/s/ Gary Michael 

Director

March 13, 2018

Gary Michael

/s/ James Clarke 

Director

March 13, 2018

James Clarke

/s/ Ronald Kennedy

Director

March 13, 2018

Ronald Kennedy

/s/ Will Santana

Director

March 13, 2018

Will Santana

Section 1.

General.

Section 2.

Definitions.

(a) “Acquisition” means the transactions contemplated under the Purchase Agreement.

(b) “Administrator” means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with ‎Section 3 of the Plan.

(c) “Affiliate” 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. An entity shall be deemed an Affiliate of the Company for purposes of this definition only for such periods as the requisite ownership or control relationship is maintained.

(d) “Automatic Exercise Date” means, with respect to an Option, the last business day of the applicable term of the Option pursuant to ‎Section 7‎(a)a(j).  

(e) “Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.

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

(g) “Cause” shall have the meaning assigned to such term in any Company or Affiliate employment, severance, or similar agreement or Option Agreement with the Participant or, if no such agreement exists or the agreement does not define “Cause,” Cause means (i) any conduct, action or behavior by a Participant, whether or not in connection with the Participant’s employment, including, without limitation, the commission of any felony or a lesser crime involving dishonesty, fraud, misappropriation, theft, wrongful taking of property, embezzlement, bribery, forgery, extortion or other crime of moral turpitude, that has or may reasonably be expected to have a material adverse effect on the reputation or business of the Company, its Subsidiaries and Affiliates or which results in gain or personal enrichment of the Participant to the detriment of the Company, its Subsidiaries and Affiliates; (ii) a governmental authority, including, without limitation, the Environmental Protection Agency or the Food and Drug Administration, has prohibited the Participant from working or being affiliated with the Company, its Subsidiaries and Affiliates or the business conducted thereby; (iii) the commission of any act by the Participant of gross negligence or malfeasance, or any willful violation of law, in each case, in connection with the Participant’s performance of his or her duties with the Company or a Subsidiary or Affiliate thereof; (iv) performance of the Participant’s duties in an unsatisfactory manner after a written warning and a ten (10) day opportunity to cure or failure to observe material policies generally applicable to employees after a written warning and a ten (10) day opportunity to cure; (v) breach of the Participant’s duty of loyalty to the Company Group; (vi) chronic absenteeism; (vii) substance abuse, illegal drug use or habitual insobriety; or (viii) violation of obligations of confidentiality to any third party in the course of providing services to the Company, its Subsidiaries and Affiliates.

(h) “Change in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (ii) extraordinary dividend (whether in the form of cash, Common Stock or other property), stock split or reverse stock split, (iii) combination or exchange of shares, (iv) other change in corporate structure or (v) payment of any other distribution, which, in any such case, the Administrator determines, in its sole discretion, affects the Shares such that an adjustment pursuant to ‎Section 5 of the Plan is appropriate.

(i) “Change in Control” shall be deemed to have occurred if an event set forth in any one of the following paragraphs shall have occurred following the Effective Date:

(i) any Person, other than (A) Eos Partners, L.P. and Eos Capital Partners IV, L.P., and their respective Affiliates and successors, or (B) the Company or a trustee or other fiduciary holding securities under an employee benefit plan of the Company, becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing more than thirty percent (30%) of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (A) of paragraph (iii) below or any acquisition directly from the Company; or

(ii) the following individuals cease for any reason to constitute a majority of the number of Directors then serving on the Board: individuals who, during any period of two (2) consecutive years, constitute the Board and any new Director (other than a Director whose initial assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election of Directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or recommended by a vote of at least two-thirds (2/₃) of the Directors then still in office who either were Directors at the beginning of the two (2) year period or whose appointment, election or nomination for election was previously so approved or recommended; or

(iii) there is consummated a merger or consolidation of the Company or any Subsidiary thereof with any other corporation, other than a merger or consolidation (A) that results in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least fifty percent (50%) of the combined voting power of the voting securities of the Company (or such surviving entity or, if the Company or the entity surviving such merger is then a subsidiary, the ultimate parent thereof) outstanding immediately after such merger or consolidation, and (B) immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the Board of the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger is then a subsidiary, the ultimate parent thereof; or

(iv) the consummation of a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least fifty percent (50%) of the combined voting power of the voting securities of which are owned directly or indirectly by stockholders of the Company following the completion of such transaction in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent thereof.

(j) “Change in Control Price” shall have the meaning set forth in ‎Section 8 of the Plan.

(k) “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto. Any reference in the Plan to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, regulations or guidance.

(l) “Committee” means the Compensation Committee of the Board, the composition of which shall consist of at least two (2) directors who are “independent directors” within the meaning of the NASDAQ marketplace rules and “non-employee directors” within the meaning of Exchange Act Rule 16b-3, or in lieu of the Compensation Committee of the Board, the Independent Directors.

(m) “Common Stock” means the Class A common stock, par value $0.001 per share, of the Company.

(n) “Company” means PetIQ, Inc., a Delaware corporation (or any successor corporation, except as the term “Company” is used in the definition of “Change in Control” above).

(o) “Disability” shall have the meaning assigned to such term in any individual employment, severance or similar agreement or Option Agreement with the Participant or, if no such agreement exists or the agreement does not define “Disability,” Disability means, with respect to any Participant, that such Participant (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering Employees of the Company or an Affiliate thereof.

(p) “Director” means any individual who is a member of the Board on or after the Effective Date.

(q) “Effective Date” means January 5, 2018.

(r) “Employee” shall mean an employee of the Company or an Affiliate thereof, as described in Treasury Regulation Section 1.421-1(h), hired in connection with the Acquisition (including an employee of CVC immediately prior to the Acquisition) to whom the Committee determines to grant an Option in accordance with Section 3 and Section 6 of the Plan.

(s) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

(t) “Exercise Price” means, with respect to any Option under which the holder may purchase Shares, the price per share at which a holder of such Option granted hereunder may purchase Shares issuable upon exercise of such Option.

(u) “Fair Market Value” as of a particular date shall mean: (i) if the Common Stock is admitted to trading on a national securities exchange, the fair market value of a Share on any date shall be the closing sale price reported for such share on such exchange on such date or, if no sale was reported on such date, on the last day preceding such date on which a sale was reported; (ii) if the Shares are not then listed on a national securities exchange, the average of the highest reported bid and lowest reported asked prices for the Shares as reported by the National Association of Securities Dealers, Inc. Automated Quotations System or such other quotation system for the last preceding date on which there was a sale of such stock ; or (iii) if the Shares are not then listed on a national securities exchange or traded in an over-the-counter market or the value of such Shares is not otherwise determinable, such value as determined by the Committee in good faith and in a manner not inconsistent with Code Section 409A.

(v) “Independent Directors” means the “independent directors,” within the meaning of the NASDAQ marketplace rules, of the Board.

(w) “NASDAQ” means The NASDAQ Stock Market.

(x) “Option” means a nonqualified option to purchase Shares granted pursuant to ‎Section 7 of the Plan, which does not meet the requirements of Code Section 422.

(y) “Option Agreement” means any agreement, contract or other instrument or document evidencing an Option. Evidence of an Option may be in written or electronic form, may be limited to notation on the books and records of the Company and, with the approval of the Administrator, need not be signed by a representative of the Company or a Participant. Any Shares that become deliverable to the Participant pursuant to the Plan may be issued in certificate form in the name of the Participant or in book-entry form in the name of the Participant.

(z) “Participant” means an Employee selected by the Administrator to participate in the Plan, pursuant to the Administrator’s authority provided for in ‎Section 3 of the Plan, to receive grants of Options, and, upon his or her death, his or her successors, heirs, executors and administrators, as the case may be, solely with respect to any Options outstanding at the date of the Employee’s death.

(aa) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any Subsidiary thereof, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

(bb) “Purchase Agreement” means the Unit Purchase Agreement by and among the Company, PetIQ Holdings, LLC, PetIQ, LLC, Community Veterinary Clinics, LLC, VIP Petcare Holdings, Inc., Will Santana and Kenneth Pecoraro, dated as of January 5, 2018.

(cc) “Retirement” means a termination of a Participant’s employment, other than for Cause and other than by reason of death or Disability, on or after the attainment of age 65.

(dd) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act.

(ee) “Shares” means shares of Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation or other reorganization) security.

(ff) “Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls, directly or indirectly, more than fifty percent (50%) of the voting shares or other similar interests or a sole general partner interest or managing member or similar interest of such other Person. An entity shall be deemed a Subsidiary of the Company for purposes of this definition only for such periods as the requisite ownership or control relationship is maintained.

Section 3.

Administration.

(a) The Plan shall be administered by the Administrator in accordance with Rule 16b-3.

(b) Pursuant to the terms of the Plan, the Administrator, subject, in the case of the Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority, without limitation:

(i) to select those individuals who shall become Participants in the Plan in connection with the Acquisition;

(ii) to determine whether and to what extent Options are to be granted hereunder to Participants;

(iii) to determine the number of Shares to be covered by each Option granted hereunder;

(iv) to determine the terms and conditions, not inconsistent with the terms of the Plan, of each Option granted hereunder, including, but not limited to, (A) the Exercise Price of each Option, (B) the vesting schedule applicable to each Option, (C) the number of Shares subject to each Option and (D) subject to the requirements of Code Section 409A (to the extent applicable), any amendments to the terms and conditions of outstanding Options, including, but not limited to, extending the exercise period of such Options and accelerating the vesting schedule of such Options;

(v) to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Options granted hereunder;

(vi) to determine the Fair Market Value;

(vii) to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the Participant’s employment for purposes of Options granted under the Plan;

(viii) to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable;

(ix) to reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan, any Option Agreement or other instrument or agreement relating to the Plan or an Option granted under the Plan; and

(x) to construe and interpret the terms and provisions of the Plan and any Option issued under the Plan (and any Option Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan.

(c) All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all persons, including the Company and the Participants. No member of the Board or the Committee, or any officer or employee of the Company or any Subsidiary thereof acting on behalf of the Board or the Committee, shall be personally liable for any action, omission, determination, or interpretation taken or made in good faith with respect to the Plan, and all members of the Board or the Committee and each and any officer or employee of the Company and of any Subsidiary thereof acting on their behalf shall, to the maximum extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, omission, determination or interpretation.

Section 4.

Shares Reserved for Issuance Under the Plan. 

(a) Subject to adjustment as provided in ‎Section 5 of the Plan, the number of Shares that are reserved and available for issuance pursuant to Options granted under the Plan is 800,000.

(b) Shares issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise. Any Shares subject to an Option under the Plan that, after the Effective Date, are forfeited, canceled, settled, withheld to cover taxes or the Exercise Price, or otherwise terminated without a distribution of Shares to a Participant will not thereafter be deemed to be available for issuance under the Plan. 

Section 5.

Equitable Adjustments.

Section 6.

Eligibility.

Section 7.

Options.

(a) General.  The Committee may, in its sole discretion, grant Options to Participants. Each Participant who is granted an Option shall enter into an Option Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, which Option Agreement shall specify that the Option is a nonqualified stock option and shall set forth, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option granted thereunder. The provisions of each Option need not be the same with respect to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under the Plan shall be subject to the terms and conditions set forth in this ‎Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Option Agreement. The prospective recipient of an Option shall not have any rights with respect to such Option, unless and until such recipient has received an Option Agreement and, if required by the Administrator in the Option Agreement, executed and delivered a fully executed copy thereof to the Company, within a period of sixty (60) days (or such other period as the Administrator may specify) after the award date.

(b) Exercise Price.  The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant; provided, however, that in no event shall the Exercise Price of an Option be less than one hundred percent (100%) of the Fair Market Value of the Common Stock on the date of grant.

(c) Option Term.  The maximum term of each Option shall be fixed by the Administrator, but in no event shall an Option be exercisable more than ten (10) years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the Plan and the Option Agreement. Notwithstanding the foregoing, the Administrator shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the Administrator, in its sole discretion, deems appropriate.  Notwithstanding any contrary provision herein, if, on the date an outstanding Option would expire, the exercise of the Option, including by a “net exercise” or “cashless” exercise, would violate applicable securities laws or any insider trading policy maintained by the Company from time to time, the expiration date applicable to the Option will be extended, except to the extent such extension would violate Section 409A, to a date that is thirty (30) calendar days after the date the exercise of the Option would no longer violate applicable securities laws or any such insider trading policy.

(d) Exercisability.  Each Option shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator in the applicable Option Agreement. The Administrator may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion. Notwithstanding anything to the contrary contained herein, an Option may not be exercised for a fraction of a share.

(e) Method of Exercise.  Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator and permitted by applicable law or (iv) any combination of the foregoing. In determining which methods a Participant may utilize to pay the Exercise Price, the Administrator may consider such factors as it determines are appropriate.

(f) Rights as Stockholder.  A Participant shall have no rights to dividends or any other rights of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof, has paid in full for such Shares and has satisfied the requirements of ‎Section 11 of the Plan and the Shares have been issued to the Participant.

(g) Termination of Employment or Service.

(i) Unless the applicable Option Agreement provides otherwise, in the event that the employment or service of a Participant with the Company and all Affiliates thereof shall terminate for any reason other than Cause, Retirement, Disability, or death, (A) Options granted to such Participant, to the extent that they are exercisable at the time of such termination, shall remain exercisable until the date that is ninety (90) days after such termination, on which date they shall expire, and (B) Options granted to such Participant, to the extent that they were not exercisable at the time of such termination, shall expire at the close of business on the date of such termination. The ninety (90) day period described in this ‎Section 7‎(g)‎(i) shall be extended to one (1) year after the date of such termination in the event of the Participant’s death during such ninety (90) day period. Notwithstanding the foregoing, no Option shall be exercisable after the expiration of its term.

(ii) Unless the applicable Option Agreement provides otherwise, in the event that the employment or service of a Participant with the Company and all Affiliates thereof shall terminate on account of Retirement, Disability or the death of the Participant, (A) Options granted to such Participant, to the extent that they were exercisable at the time of such termination, shall remain exercisable until the date that is one (1) year after such termination, on which date they shall expire and (B) Options granted to such Participant, to the extent that they were not exercisable at the time of such termination, shall expire at the close of business on the date of such termination. Notwithstanding the foregoing, no Option shall be exercisable after the expiration of its term.

(iii) In the event of the termination of a Participant’s employment or service for Cause, all outstanding Options granted to such Participant shall expire at the commencement of business on the date of such termination.

(iv) For purposes of this ‎Section 7‎(g), Options that are not exercisable solely due to a blackout period shall be considered exercisable.

(a) Other Change in Employment Status.  An Option may be affected, both with regard to vesting schedule and termination, by leaves of absence, changes from full-time to part-time employment, partial disability or other changes in the employment status or service of a Participant, as evidenced in a Participant’s Option Agreement.

(b) Change in Control.  Notwithstanding anything herein to the contrary, upon a Change in Control, all outstanding Options shall be subject to ‎Section 8 of the Plan.

(c) Automatic Exercise.   Unless otherwise provided by the Administrator in an Option Agreement or otherwise, or as otherwise directed by the Participant in writing to the Company, each vested and exercisable Option outstanding on the Automatic Exercise Date with an Exercise Price per Share that is less than the Fair Market Value per Share as of such date shall automatically and without further action by the Participant or the Company be exercised on the Automatic Exercise Date.  In the sole discretion of the Administrator, payment of the Exercise Price of any such Option shall be made pursuant to ‎Section 7‎(e)(i) or (ii) and the Company or any Affiliate shall deduct or withhold an amount sufficient to satisfy all taxes associated with such exercise in accordance with ‎Section 11.  Unless otherwise determined by the Administrator, this ‎Section 7‎(j) shall not apply to an Option if the Participant’s employment or service has terminated on or before the Automatic Exercise Date.  For the avoidance of doubt, no Option with an Exercise Price per Share that is equal to or greater the Fair Market Value per Share on the Automatic Exercise Date shall be exercised pursuant to this ‎Section 7‎(j).  

Section 8.

Change in Control.

Section 9.

Amendment and Termination.

(a) The Board or the Committee may amend, alter or terminate the Plan, but no amendment, alteration, or termination shall be made that would impair the rights of a Participant under any Option theretofore granted without such Participant’s consent.

(b) Notwithstanding the foregoing, the Board and the Committee will not amend the Plan in any manner that would require approval of the Company’s stockholders pursuant to any rules of the stock exchange on which the Common Stock is traded or other applicable law without the approval thereof. 

(c) Subject to the terms and conditions of the Plan, the Administrator may modify, extend or renew outstanding Options under the Plan, or accept the surrender of outstanding Options (to the extent not already exercised) and grant new Options in substitution of them (to the extent not already exercised).

(d) Notwithstanding the foregoing, no alteration, modification or termination of an Option will, without the prior written consent of the Participant, adversely alter or impair any rights or obligations under any Option already granted under the Plan.

Section 10.

Unfunded Status of Plan.

Section 11.

Withholding Taxes.

Section 12.

Non-United States Employees. 

Section 13.

Transfer of Options.

Section 14.

Continued Employment.

Section 15.

Duration of the Plan.

Section 16.

Code Section 409A.

Section 17.

Erroneously Awarded Compensation.    

Section 18.

Governing Law.

Section 19.

Plan Document Controls.