- (a) The total number of securities issuable upon exercise of all outstanding options [exclusive of rights described in Section 260.140.40 and warrants described in Sections 260.140.43 and 260.140.44 of these rules, and any purchase plan or agreement as described in Section 260.140.42 of these rules (provided that the purchase plan or agreement provides that all securities will have a purchase price of 100% of the fair value (Section 260.140.50) of the security either at the time the person is granted the right to purchase securities under the plan or agreement or at the time the purchase is consummated)], and the total number of securities called for under any bonus or similar plan or agreement shall not exceed a number of securities which is equal to 30% of the then outstanding securities of the issuer (convertible preferred or convertible senior common shares of stock will be counted on an as if converted basis), exclusive of securities subject to promotional waivers under Section 260.141, unless a percentage higher than 30% is approved by at least two-thirds of the outstanding securities entitled to vote.
- (b) The 30% limitation set forth in this Rule, or such other percentage limitation as may be approved pursuant to this Rule, shall be deemed satisfied if the plan or agreement provides that at no time shall the total number of securities issuable upon exercise of all outstanding options and the total number of shares provided for under any stock bonus or similar plan or agreement of the issuer exceed the applicable percentage as calculated in accordance with the conditions and exclusions of this Rule, based on the securities of the issuer which are outstanding at the time the calculation is made.
- (c) This section shall not apply to any plan or agreement that complies with all conditions of Rule 701 of the Securities Act of 1933, as amended (17 C.F.R. 230.701); provided that for purposes of determining such compliance, any registered domestic partner shall be considered a “family member” as that term is defined in Rule 701.
Note: Authority cited: Section 25610, Corporations Code. Reference: Sections 25102, 25110, 25140, 25610 and 25612.5, Corporations Code.
History
1. Renumbering and amendment of former section 260.140.44 to section 260.140.45 filed 5-3-83; effective thirtieth day thereafter (Register 83, No. 19).
2. Amendment filed 12-5-91; operative 1-6-92 (Register 92, No. 9).
3. Amendment filed 1-15-97; operative 1-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 3).
4. Amendment filed 12-28-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
5. Amendment refiled 5-2-2001 as an emergency; operative 5-2-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-30-2001 or emergency language will be repealed by operation of law on the following day.
6. Amendment refiled 8-30-2001 as an emergency; operative 8-30-2001 (Register 2001, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-28-2001 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 8-30-2001 order, including further amendment of section heading and section, transmitted to OAL 12-27-2001 and filed 2-7-2002 (Register 2002, No. 6).
8. New subsection (c) and amendment of Note filed 7-9-2007; operative 7-9-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 28).