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EXHIBIT 10.12
INTERLAND, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - INTRODUCTION
1.1 STATEMENT OF PURPOSE. The purpose of the Interland, Inc.
Employee Stock Purchase Plan is to provide eligible employees of the Company
and its Subsidiaries, who wish to become stockholders, an opportunity to
purchase Common Stock of the Company. The Board of Directors of the Company
believes that employee participation in ownership will be to the mutual benefit
of both the employees and the Company.
1.2 INTERNAL REVENUE CODE CONSIDERATIONS. The Plan is
intended to constitute an "employee stock purchase plan" within the meaning of
section 423 of the Internal Revenue Code of 1986, as amended.
ARTICLE II - CERTAIN DEFINITIONS
2.1 "ADMINISTRATOR" means the individual or committee (which
may be a committee of the Board) appointed by the Board to administer the Plan,
as provided in Section 6.5 hereof. In the absence of any such appointment, the
Board shall be the Administrator.
2.2 "BOARD" means the Board of Directors of the Company.
2.3 "CODE" means the Internal Revenue Code of 1986, as
amended.
2.4 "COMPANY" means Interland, Inc., a Georgia corporation.
2.5 "COMPENSATION" means the total remuneration paid, during
the period of reference, to an Employee by the Company, including regular
salary or wages, overtime payments, commissions and vacation pay, to which has
been added (a) any elective deferral amounts by which the Employee has had his
current remuneration reduced for the purposes of funding a contribution to any
plan sponsored by the Company and satisfying the requirements of section 401(k)
of the Code, and (b) any amounts by which the Employee's compensation has been
reduced pursuant to a compensation reduction agreement between the Employee and
the Company for the purpose of funding benefits through any cafeteria plan
sponsored by the Company meeting the requirements of section 125 of the Code.
There shall be excluded from "Compensation" for the purposes of the Plan,
whether or not reportable as income by the Employee, bonuses, expense
reimbursements of all types, payments in lieu of expenses, the Company
contributions to any qualified retirement plan or other program of deferred
compensation (except as provided above), the Company contributions to Social
Security or worker's compensation, the costs paid by the Company in connection
with fringe benefits and relocation, including gross-ups, compensation
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from the exercise or disposition of stock options and any amounts accrued for
the benefit of Employee, but not paid, during the period of reference.
2.6 "EFFECTIVE DATE" shall mean October 1, 2000, or as soon
thereafter as the Administrator determines that participation in the Plan can
be offered to Eligible Employees.
2.7 "ELIGIBLE EMPLOYEE" means each Employee other than:
(a) an Employee whose customary employment is for 20 hours
or less per week,
(b) an Employee whose customary employment is for not more
than five months in any calendar year,
(c) an Employee who is deemed for purposes of Section
423(b)(3) of the Code to own stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Company,
and
(d) any Employee subject to the laws of a country which
would prohibit the Employee's participation in the Plan.
2.8 "EMPLOYEE" means each person employed by the Company or
a Subsidiary.
2.9 "EXCUSED ABSENCE" means absence pursuant to a leave of
absence granted by the Company or any other entity constituting the Company,
absence due to disability or illness, absence by reason of a layoff, or absence
by reason of active duty in the armed forces of the United States. In no event
may an Excused Absence exceed six (6) months in length (or, if longer and if
applicable, the period of the individual's active duty in the armed forces of
the United States and such period thereafter as such individual's right to
reemployment by the Company is protected by law), and any absence shall cease
to be an Excused Absence upon the earlier of (a) the last day of the calendar
month in which the duration of the absence reaches six (6) months or (b) the
last day of the calendar month in which the leave expires by its terms, the
layoff ends by recall or permanent separation from service, or recovery from
illness or disability occurs.
2.10 "FAIR MARKET VALUE" means, with respect to Stock, the
fair market value of such stock, as determined in good faith by the
Administrator; provided, however, that
(a) if the Stock is admitted to trading on a national
securities exchange, Fair Market Value on any date shall be the last sale price
reported for the Stock on such exchange on such date or, if no sale was
reported on such date, on the last date preceding such date on which a sale was
reported,
(b) if the Stock is admitted to quotation on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") or
other comparable quotation system and has been designated as a National Market
System ("NMS") security, Fair Market
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Value on any date shall be the last sale price reported for the Stock on such
system on such date or on the last day preceding such date on which a sale was
reported, or
(c) if the Stock is admitted to Quotation on NASDAQ and has
not been designated a NMS Security, Fair Market Value on any date shall be the
average of the highest bid and lowest asked prices of the Shares on such system
on such date.
2.11 "OFFERING" means the offering of shares of Stock under
the Plan.
2.12 "OFFERING DATE" means the first business day of each
Purchase Period during which the Plan is in effect. The first Offering Date
shall be October 1, 2000, or as soon thereafter as the Administrator determines
that participation in the Plan can be offered to Eligible Employees.
2.13 "PARTICIPANT" means each Eligible Employee who elects to
participate in the Plan.
2.14 "PLAN" means the Interland, Inc. Employee Stock Purchase
Plan, as the same is set forth herein and as the same may hereafter be amended.
2.15 "PURCHASE AGREEMENT" means the document prescribed by
the Administrator pursuant to which an Eligible Employee has enrolled to be a
Participant.
2.16 "PURCHASE DATE" means the last business day of each
Purchase Period.
2.17 "PURCHASE PERIOD" means the six (6) month period
beginning each January 1 and July 1; provided, however, the initial Purchase
Period may be a short period beginning on the Effective Date and ending on the
last day of the semi-annual period in which the Effective Date falls.
2.18 "PURCHASE PRICE" means such term as it is defined in
Section 4.3 hereof.
2.19 "STOCK" means the Common Stock, no par value per share,
of the Company.
2.20 "STOCK PURCHASE ACCOUNT" means an account consisting of
all amounts withheld from an Employee's Compensation or otherwise paid into the
Plan for the purpose of purchasing shares of Stock for such Employee under the
Plan, reduced by all amounts applied to the purchase of Stock for such Employee
under the Plan.
2.21 "SUBSIDIARY" shall mean a corporation described in
section 424(f) of the Code that has, with the permission of the Administrator,
adopted the Plan. The participating Subsidiaries on the Effective Date are
listed on Schedule A attached hereto.
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ARTICLE III - ADMISSION TO PARTICIPATION
3.1 INITIAL PARTICIPATION. Only Eligible Employees may
participate in the Plan. Any Eligible Employee may elect to be a Participant
and may become a Participant by executing and filing with the Administrator a
Purchase Agreement at such time in advance and on such forms as prescribed by
the Administrator. The effective date of an Eligible Employee's participation
shall be the Offering Date next following the date on which the Administrator
receives from the Eligible Employee a properly executed and timely filed
Purchase Agreement. Participation in the Plan will continue automatically from
one Purchase Period to another unless notice is given pursuant to Section 3.2.
3.2 VOLUNTARY DISCONTINUANCE OF PARTICIPATION. Any
Participant may voluntarily withdraw from the Plan by filing a Notice of
Withdrawal with the Administrator at such time in advance as the Administrator
may specify. Upon such withdrawal, there shall be paid to the Participant the
amount, if any, standing to his credit in his Stock Purchase Account. The
delivery of certificates representing the shares of Stock held for such
Participant under the Plan shall be handled in the manner provided in Section
4.6.
3.3 INVOLUNTARY DISCONTINUANCE OF PARTICIPATION. If a
Participant ceases to be an Eligible Employee other than by death, the entire
amount, if any, standing to the Participant's credit in his Stock Purchase
Account shall be refunded to him. Notwithstanding the foregoing, should a
Participant cease to be an Eligible Employee (as a result of the restrictions
in Section 2.8(c)) by reason of being granted an option to purchase Stock under
a stock option plan maintained by the Company, such Participant may continue to
participate only through the end of the Purchase Period during which such
option was granted. The delivery of certificates representing the shares of
Stock held for such Participant under the Plan shall be handled in the manner
provided in Section 4.6.
3.4 READMISSION TO PARTICIPATION. Any Eligible Employee who
has previously been a Participant, who has discontinued participation, and who
wishes to be reinstated as a Participant may again become a Participant for any
subsequent Purchase Period by executing and filing with the Administrator, at
such time in advance as the Administrator shall determine, a new Purchase
Agreement on forms provided by the Administrator. Reinstatement to Participant
status shall be effective as of the Offering Date next following the date on
which the Administrator receives from the Eligible Employee the properly
executed and timely filed Purchase Agreement.
ARTICLE IV - STOCK PURCHASE
4.1 RESERVATION OF SHARES. Except as provided in the
antidilution provisions of Section 5.2 hereof, the aggregate number of shares
of Stock that may be purchased under the Plan shall not exceed five hundred
thousand (500,000) shares. Shares of Stock issued pursuant to the Plan may be
either unissued shares of Stock, Stock held in treasury, or shares of Stock
acquired in the market or directly from shareholders.
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4.2 LIMITATION ON SHARES AVAILABLE. Subject to the other
limitations set forth in the Plan, the maximum number of shares of Stock that
may be purchased for each Participant on a Purchase Date is the lesser of (a)
the number of whole and fractional shares of Stock that can be purchased by
applying the full balance of his Stock Purchase Account to such purchase of
shares at the Purchase Price (as hereinafter determined), (b) the number of
shares of Stock that would not cause the Participant to exceed the limit of
Section 2.8(c), or (c) an amount equal to 20% of the Participant's expected
Purchase Period Compensation divided by 85% of the Fair Market Value of the
Stock on the Offering Date. A Participant's expected Purchase Period
Compensation shall be determined by multiplying his normal hourly or weekly
rate of Compensation (as in effect on the last day prior to such Offering Date)
by the number of regularly scheduled hours or weeks of work for such
Participant during the Purchase Period. Any portion of a Participant's Stock
Purchase Account that cannot be applied by reason of the foregoing limitation
shall remain in the Participant's Stock Purchase Account for application to the
purchase of Stock on the next Offering Date (unless withdrawn before such next
Offering Date).
4.3 PURCHASE PRICE OF SHARES. The Purchase Price per share
of Stock purchased for Participants pursuant to any Offering shall be
eighty-five percent (85%) of the Fair Market Value of such share on the
Offering Date on which such Offering commences or on the Purchase Date on which
such Offering expires, whichever is lower. If the Purchase Date with respect to
the purchase of Stock is a day on which the stock is selling ex-dividend but is
on or before the record date for such dividend, then for Plan purposes the
Purchase Price per share will be increased by an amount equal to the dividend
per share. In no event shall the Purchase Price be less than the par value of
the Stock.
4.4 ESTABLISHMENT OF STOCK PURCHASE ACCOUNT. Each
Participant shall authorize payroll deductions from Compensation for the
purposes of funding his Stock Purchase Account. In the Purchase Agreement, each
Participant shall authorize a deduction from each payment of his Compensation
during a Purchase Period, which deduction shall be not less than $5.00 nor more
than fifteen percent (15%) of the gross amount of such payment, subject to
Section 4.5(c). The Administrator or its designee may require that any payroll
deduction must be made in whole percentages (i.e., 1%, 2%, 3%, etc.) and not in
any fraction of a percentage. In addition, the Administrator may allow, in its
sole discretion and subject to such terms and procedural requirements as it may
establish, for the delivery of payments by Participants directly to the
Administrator or its designee, provided, however, that the total payroll
deductions and direct cash payments may not exceed, in the aggregate for any
calendar year, fifteen percent (15%) of the total Compensation paid such
Participant for the respective calendar year. Subject to Section 3.2, a
Participant may not reduce his payroll deduction rate during any Purchase
Period. A Participant may increase his payroll deduction rate during a Purchase
Period to be effective as of the next payroll date following the
Administrator's timely receipt of a properly completed and timely filed
Purchase Agreement. A Participant may change the deduction to any permissible
level for any subsequent Purchase Period by filing notice thereof at such time
preceding the Offering Date on which such subsequent Purchase Period commences
as the Administrator shall determine.
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4.5 EXERCISE OF PURCHASE PRIVILEGE.
(a) Subject to the provisions of Section 4.2 above, on each
Purchase Date there shall be purchased for the Participant at the Purchase
Price the largest number of shares of Stock that can be purchased with the
entire amount standing to the Participant's credit in his Stock Purchase
Account.
(b) Notwithstanding anything contained herein to the
contrary, (i) a Participant may not during any calendar year purchase shares of
Stock having an aggregate Fair Market Value, determined at the time of each
Offering Date during such calendar year, of more than $25,000, and (ii) all
rights to purchase Stock offered on an Offering Date must be exercised within
twenty-seven (27) months of such Offering Date.
4.6 SHARE OWNERSHIP; ISSUANCE OF CERTIFICATES.
(a) The shares purchased for a Participant on a Purchase
Date shall, for all purposes, be deemed to have been issued and/or sold at the
close of business on such Purchase Date. Prior to that time, none of the rights
or privileges of a stockholder of the Company shall inure to the Participant
with respect to such shares. All the shares of Stock purchased under the Plan
shall be delivered by the Company in a manner as determined by the
Administrator in accordance with Section 4.6(b).
(b) The Administrator, in its sole discretion, may determine
the method for delivering shares of Stock by the Company including, but not
limited to, (i) by issuing and delivering a certificate or certificates for the
number of shares of Stock purchased for all Participants on a Purchase Date or
during a calendar year to a member firm of the New York Stock Exchange which is
also a member of the National Association of Securities Dealers, Inc., as
selected by the Administrator from time to time, which shares shall be
maintained by such member firm in separate accounts for each Participant, or
(ii) by issuing and delivering a certificate or certificates for the number of
shares of Stock purchased for all Participants on a Purchase Date or during the
calendar year to a bank or trust company or affiliate thereof, as selected by
the Administrator from time to time, which shares shall be maintained by such
bank or trust company or affiliate in separate accounts for each Participant.
In addition, the Administrator may periodically issue and deliver to the
Participant a certificate for the number of whole shares of Stock purchased for
such Participant on a Purchase Date or during such other time period as the
Administrator may determine. Each Participant shall have full shareholder
rights with respect to all shares of Stock purchased under the Plan, including,
but not limited to, voting, dividend and liquidation rights. Shares which are
held in the name of the Company or its agent as the nominee for the Participant
will be covered by proxies provided to such Participant by the Company or its
agent. Unless provided otherwise, cash dividends paid on Stock issued under the
Plan will be automatically reinvested. A Participant may withdraw certificates
for his shares of Stock credited to his account at any time by a written
request for such withdrawal delivered to the Administrator or its designee, and
upon any such request, the Company will promptly distribute such certificates
to the requesting Participant. Distributions of stock certificates will be made
promptly after the
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death, disability, retirement or other termination of employment of a
Participant. In the event of a Participant's death, such stock certificates
will be distributed to the Participant's estate.
ARTICLE V - SPECIAL ADJUSTMENTS
5.1 SHARES UNAVAILABLE. If, on any Exercise Date, the
aggregate funds available for the purchase of Stock would purchase a number of
shares in excess of the number of shares then available for purchase under the
Plan, the following events shall occur:
(a) The number of shares that would otherwise be purchased
for each Participant shall be proportionately reduced on the Purchase Date in
order to eliminate such excess;
(b) The Plan shall automatically terminate immediately after
the Purchase Date as of which the supply of available shares is exhausted; and
(c) Any amounts remaining in the respective Stock Purchase
Accounts of the Participants shall be repaid to such Participants.
5.2 ANTIDILUTION PROVISIONS. The aggregate number of shares
of Stock reserved for purchase under the Plan, as hereinabove provided, and the
calculation of the Purchase Price per share may be appropriately adjusted to
reflect any increase or decrease in the number of issued shares of Stock
resulting from a recapitalization, reclassification, stock split-up, stock
dividend, combination of shares, or transaction having similar effect. Any such
adjustment shall be made by the Administrator acting with the consent of, and
subject to the approval of, the Board.
5.3 EFFECT OF CERTAIN TRANSACTIONS. Subject to any required
action by the stockholders, if the Company shall be the surviving or resulting
corporation in any merger or consolidation, or if the Company shall be merged
for the purpose of changing the jurisdiction of its incorporation, any Offering
hereunder shall pertain to and apply to the shares of stock of the Company or
the survivor. However, in the event of a dissolution or liquidation of the
Company, or of a merger or consolidation in which the Company is not the
surviving or resulting corporation, the Plan and any Offering hereunder shall
terminate upon the effective date of such dissolution, liquidation, merger, or
consolidation, and the balance then standing to the credit of each Participant
in his Stock Purchase Account shall be returned to him.
ARTICLE VI - MISCELLANEOUS
6.1 NONALIENATION. The right to purchase shares of Stock
under the Plan is personal to the Participant, is exercisable only by the
Participant during his lifetime except as hereinafter set forth, and may not be
assigned or otherwise transferred by the Participant.
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6.2 DEATH OF THE PARTICIPANT. Upon the death of the
Participant, the entire amount then standing to the credit of the Participant
in his Stock Purchase Account shall be distributed to the Participant's estate.
6.3 ADMINISTRATIVE COSTS. In general, the Company or a
Subsidiary shall pay all administrative expenses associated with the
administration of the Plan. The Participant will pay any transaction fees or
commissions on the sale of the Shares and may also be charged the reasonable
costs associated with issuing a stock certificate.
6.4 COLLECTION OF TAXES. The Company shall be entitled to
require any Participant to remit, through payroll withholding or otherwise, any
tax that it determines it is so obligated to collect with respect to the
issuance of Stock hereunder, or the subsequent sale or disposition of such
Stock, and the Administrator shall institute such mechanisms as shall insure
the collection of such taxes.
6.5 ADMINISTRATOR. The Board shall appoint an Administrator,
which shall have the authority and power to administer the Plan and to make,
adopt, construe, and enforce rules and regulations not inconsistent with the
provisions of the Plan. The Administrator shall adopt and prescribe the
contents of all forms required in connection with the administration of the
Plan, including, but not limited to, the Purchase Agreement, payroll
withholding authorizations, withdrawal documents, and all other notices
required hereunder. The Administrator shall have the fullest discretion
permissible under law in the discharge of its duties. The Administrator's
interpretations and decisions in respect of the Plan, the rules and regulations
pursuant to which it is operated, and the rights of Participants hereunder
shall be final and conclusive.
6.6 AMENDMENT OF THE PLAN. The Board may amend the Plan
without the consent of stockholders or Participants, except that any such
action shall be subject to the approval of the Company's stockholders at or
before the next annual meeting of stockholders for which the record date is set
after such Board action if such stockholder approval is required by any federal
or state law or regulation or the rules of any stock exchange or automated
quotation system on which the Stock may then be listed or quoted, and the Board
may otherwise in its discretion determine to submit other such changes to the
Plan to stockholders for approval; provided, however, that no such action may
(i) without the consent of an affected Participant, materially impair the
rights of such Participant with respect to any shares of Stock previously
purchased for him under the Plan, or (ii) disqualify the Plan under section 423
of the Code.
6.7 TERMINATION OF THE PLAN. Subject to Section 5.1, the
Plan shall continue in effect unless terminated pursuant to action by the
Board, which shall have the right to terminate the Plan at any time without
prior notice to any Participant and without liability to any Participant. Upon
the termination of the Plan, the balance, if any, then standing to the credit
of each Participant in his Stock Purchase Account shall be refunded to him and
the certificates representing the shares of Stock previously purchased shall be
handled in the manner provided in Section 4.6.
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6.8 REPURCHASE OF STOCK. The Company shall not be required
to purchase or repurchase from any Participant any of the shares of Stock that
the Participant acquired under the Plan.
6.9 NOTICE. A Purchase Agreement and any notice that a
Participant files pursuant to the Plan shall be on the form prescribed by the
Administrator and shall be effective only when received by the Administrator or
its designee. Delivery of such forms may be made by hand or by certified mail,
sent postage prepaid, to Interland, Inc. 101 Marietta Street, Suite 200,
Atlanta, Georgia 30303, Attention: Administrator: Employee Stock Purchase Plan,
or such other address as may be specified from time to time. Delivery by any
other mechanism shall be deemed effective at the discretion of the
Administrator.
6.10 GOVERNMENT REGULATION. The Company's obligation to sell
and to deliver the Stock under the Plan is at all times subject to all
approvals of any governmental authority required in connection with the
authorization, issuance, sale, or delivery of such Stock.
6.11 HEADINGS, CAPTIONS, GENDER. The headings and captions
herein are for convenience of reference only and shall not be considered as
part of the text. The masculine shall include the feminine, and vice versa.
6.12 SEVERABILITY OF PROVISIONS; PREVAILING LAW. The
provisions of the Plan shall be deemed severable. If any such provision is
determined to be unlawful or unenforceable by a court of competent jurisdiction
or by reason of a change in an applicable statute, the Plan shall continue to
exist as though such provision had never been included therein (or, in the case
of a change in an applicable statute, had been deleted as of the date of such
change). The Plan shall be governed by the laws of the State of Georgia, to the
extent such laws are not in conflict with, or superseded by, federal law.
AS ADOPTED BY THE BOARD OF DIRECTORS OF INTERLAND, INC. ON
March 15, 2000.
INTERLAND, INC.
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By:
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Title:
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SCHEDULE A
PARTICIPATING SUBSIDIARIES
None.
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