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EXHIBIT 10.3
RIGHTNOW TECHNOLOGIES, INC.
2000 STOCK INCENTIVE PLAN
Section 1. Purpose. The purpose of the RightNow Technologies, Inc. 2000
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Stock Incentive Plan (the "Plan") is to promote the interests of RightNow
Technologies, Inc. (the "Company") and its stockholders by aiding the Company in
attracting, retaining and providing incentives to employees, officers, directors
who are not also employees ("Non-Employee Directors"), consultants and
independent contractors.
Section 2. Definitions. As used in the Plan, the following terms shall
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have the meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or indirectly
through one or more intermediaries, is controlled by the Company, and (ii)
any entity in which the Company has a significant equity interest, as
determined by the Committee.
"Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Performance Award or other Stock-Based Award
granted under the Plan.
"Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations promulgated thereunder.
"Committee" shall mean either the Board of Directors of the Company
(the "Board") or a committee of the Board appointed by the Board to
administer the Plan and composed of not less than two directors, each of
whom is a "Non-Employee Director" within the meaning of Rule 16b-3 (which
term "Non-Employee Director" is defined in this paragraph for purposes of
the definition of "Committee" only and is not intended to define such term
as used elsewhere in the Plan) and each of whom is an "outside director"
within the meaning of Section 162(m) of the Code.
"Eligible Person" shall mean any employee, officer, director
(including any Non-Employee Director), consultant or independent contractor
providing services or other benefits to the Company or any Affiliate who
the Committee determines to be an Eligible Person.
"Fair Market Value" shall mean, with respect to any property
(including, without limitation, any Shares or other securities), the fair
market value of such property determined by such methods or procedures as
shall be established from time to time by the Committee. Notwithstanding
the foregoing, unless otherwise determined by the Committee, the Fair
Market Value of Shares on a given date for purposes of the Plan
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shall not be less than: (i) the closing price as reported for composite
transactions, if the Shares are then listed on a national securities
exchange; (ii) the last sale price, if the Shares are then quoted on the
NASDAQ National Market; or (iii) in all other cases, the average of the
closing representative bid and asked prices of the Shares, all on the date
as of which Fair Market Value is being determined. If on a given date the
Shares are not traded in an established securities market, the Committee
shall make a good faith attempt to satisfy the requirements of this clause
and in connection therewith shall take such action as it deems necessary or
advisable.
"Incentive Stock Option" shall mean an option granted under Section
6(a) of the Plan that is intended to meet the requirements of Section 422
of the Code or any successor provision.
"Non-Qualified Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is not intended to be an Incentive Stock
Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option, and shall include Reload Options.
"Other Stock-Based Award" shall mean any right granted under Section
6(e) of the Plan.
"Participant" shall mean an Eligible Person designated to be granted
an Award under the Plan.
"Performance Award" shall mean any right granted under Section 6(d) of
the Plan.
"Person" shall mean any individual, corporation, partnership,
association or trust.
"Reload Option" shall mean any Option granted under Section 6(a)(iv)
of the Plan.
"Restricted Stock" shall mean any Share granted under Section 6(c) of
the Plan.
"Restricted Stock Unit" shall mean any unit granted under Section 6(c)
of the Plan evidencing the right to receive a Share (or a cash payment
equal to the Fair Market Value of a Share) at some future date.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended.
"Shares" shall mean shares of Common Stock, $.001 par value, of the
Company, or such other securities or property as may become subject to
Awards pursuant to an adjustment made under Section 4(c) of the Plan.
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"Stock Appreciation Right" shall mean any right granted under Section
6(b) of the Plan.
Section 3. Administration.
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(a) Power and Authority of the Committee. The Plan shall be
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administered by the Committee. Subject to the terms of the Plan and
applicable law, the Committee shall have full power and authority to: (i)
designate Participants; (ii) determine the type or types of Awards to be
granted to each Participant under the Plan; (iii) determine the number of
Shares to be covered by (or with respect to which payments, rights or other
matters are to be calculated in connection with) each Award; (iv) determine
the terms and conditions of any Award or Award Agreement; (v) amend the
terms and conditions of any Award or Award Agreement and accelerate the
exercisability of any Award or the lapse of restrictions relating to any
Award; (vi) determine whether, to what extent and under what circumstances
Awards may be exercised in cash, Shares, other securities, other Awards or
other property, or canceled, forfeited or suspended; (vii) determine
whether, to what extent and under what circumstances cash, Shares, other
securities, other Awards, other property and other amounts payable with
respect to an Award under the Plan shall be deferred either automatically
or at the election of the holder thereof or the Committee; (viii) interpret
and administer the Plan and any Award made under or instrument or
agreement, including an Award Agreement, relating to the Plan; (ix)
establish, amend, suspend or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of
the Plan; and (x) make any other determination and take any other action
that the Committee deems necessary or desirable for the administration of
the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or
with respect to the Plan or any Award shall be within the sole discretion
of the Committee, may be made at any time and shall be final, conclusive
and binding upon any Participant, any holder or beneficiary of any Award
and any employee of the Company or any Affiliate.
(b) Delegation. The Committee may delegate to one or more officers of
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the Company or any Affiliate or a committee of such officers the authority,
subject to such terms and limitations as the Committee shall determine, to
grant Awards to Eligible Persons who are not officers or directors of the
Company for purposes of Section 16 of the Securities Exchange Act of 1934,
as amended.
Section 4. Shares Available for Awards.
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(a) Shares Available. Subject to adjustment as provided in Section
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4(c), the total number of Shares available for granting Awards under the
Plan shall be 3,500,000, plus an automatic annual increase on the first day
of each of the Company's fiscal years beginning in 2001 and ending in 2005
equal to the lesser of (i) 500,000 shares of Common Stock or (ii) three
percent of the number of shares of Common Stock
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outstanding on the last day of the immediately preceding fiscal year.
Shares to be issued under the Plan may be either authorized but unissued
Shares or Shares acquired in the open market or otherwise. Any Shares that
are used by a Participant as full or partial payment to the Company of the
purchase price relating to an Award, or in connection with the satisfaction
of tax obligations relating to an Award, shall again be available for
granting Awards (other than Incentive Stock Options) under the Plan. If any
Shares covered by an Award or to which an Award relates are not purchased
or are forfeited, or if an Award otherwise terminates without delivery of
any Shares, then the number of Shares counted against the aggregate number
of Shares available under the Plan with respect to such Award, to the
extent of any such forfeiture or termination, shall again be available for
granting Awards under the Plan.
(b) Accounting for Awards. For purposes of this Section 4, if an
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Award entitles the holder thereof to receive or purchase Shares, the number
of Shares covered by such Award or to which such Award relates shall be
counted on the date of grant of such Award against the aggregate number of
Shares available for granting Awards under the Plan. Such Shares may again
become available for granting Awards under the Plan pursuant to the
provisions of Section 4(a) of the Plan, subject to the limitations set
forth in Section 4(c) of the Plan.
(c) Adjustments. In the event that the Committee shall determine that
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any dividend or other distribution (whether in the form of cash, Shares,
other securities or other property), recapitalization, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the
Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and type of Shares (or other securities
or other property) that thereafter may be made the subject of Awards, (ii)
the number and type of Shares (or other securities or other property)
subject to outstanding Awards, and (iii) the purchase or exercise price
with respect to any Award; provided, however, that the number of Shares
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covered by any Award or to which such Award relates shall always be a whole
number.
(d) Award Limitations Under the Plan. No Eligible Person may be
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granted any Award or Awards, the value of which is based solely on an
increase in the value of the Shares after the date of grant of such Awards,
for more than 1,000,000 Shares, subject to adjustment as provided in the
Plan, in the aggregate in any calendar year. The foregoing annual
limitation specifically includes the grant of any "performance-based"
Awards within the meaning of Section 162(m) of the Code.
Section 5. Eligibility. Any Eligible Person of the Company or any
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Affiliate shall be eligible to be designated a Participant. In determining
which Eligible Persons shall receive an
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Award and the terms of any Award, the Committee may take into account the nature
of the services rendered by the respective Eligible Persons, their present and
potential contributions to the success of the Company or such other factors as
the Committee, in its discretion, shall deem relevant. Notwithstanding the
foregoing, an Incentive Stock Option may be granted only to full-time or part-
time employees (which term as used herein includes, without limitation, officers
and directors who are also employees), and an Incentive Stock Option shall not
be granted to an employee of an Affiliate unless such Affiliate is also a
"subsidiary corporation" of the Company within the meaning of Section 424(f) of
the Code or any successor provision.
Section 6. Awards.
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(a) Options. The Committee is hereby authorized to grant Options to
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Participants with the following terms and conditions and with such
additional terms and conditions not inconsistent with the provisions of the
Plan as the Committee shall determine:
(i) Exercise Price. The purchase price per Share purchasable
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under an Option shall be determined by the Committee; provided,
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however, that the purchase price for Shares underlying Incentive Stock
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Options shall not be less than 100% of the Fair Market Value of a
Share on the date of grant of such Incentive Stock Option.
(ii) Option Term. The term of each Option shall be fixed by
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the Committee.
(iii) Time and Method of Exercise. The Committee shall
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determine the time or times at which an Option may be exercised in
whole or in part and the method or methods by which, and the form or
forms (including, without limitation, cash, Shares, other securities,
other Awards or other property, or any combination thereof, having a
Fair Market Value on the exercise date equal to the relevant exercise
price) in which, payment of the exercise price with respect thereto
may be made or deemed to have been made.
(iv) Reload Options. The Committee may grant Reload Options,
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separately or together with another Option, pursuant to which, subject
to the terms and conditions established by the Committee and any
applicable requirements of Rule 16b-3 or any other applicable law, the
Participant would be granted a new Option when the payment of the
exercise price of a previously granted Option is made by the delivery
of Shares owned by the Participant pursuant to Section 6(a)(iii)
hereof or the relevant provisions of another plan of the Company,
and/or when Shares are tendered or forfeited as payment of the amount
to be withheld under applicable tax laws in connection with the
exercise of an Option, which new Option would be an option to purchase
the number of Shares not exceeding the sum of (A) the number of Shares
so provided as consideration upon the exercise of the previously
granted Option to which such Reload Option relates and (B) the
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number of Shares so tendered or forfeited, if any, as payment of the
amount to be withheld under applicable tax laws in connection with the
exercise of the Option to which such Reload Option relates. Reload
Options may be granted with respect to Options previously granted
under this Plan or any other stock option plan of the Company or any
of its Affiliates (which shall explicitly include plans assumed by the
Company in connection with mergers and the like), or may be granted in
connection with any Option granted under this Plan or any other stock
option plan of the Company or any of its Affiliates at the time of
such grant. Reload Options shall have a per share exercise price equal
to the Fair Market Value as of the date of grant of the new Option.
Any Reload Option shall be subject to availability of sufficient
Shares for grant under the Plan.
(b) Stock Appreciation Rights. The Committee is hereby authorized
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to grant Stock Appreciation Rights to Participants subject to the terms of
the Plan and any applicable Award Agreement. A Stock Appreciation Right
granted under the Plan shall confer on the holder thereof a right to
receive upon exercise thereof the excess of (i) the Fair Market Value of
one Share on the date of exercise (or, if the Committee shall so determine,
at any time during a specified period before or after the date of exercise)
over (ii) the grant price of the Stock Appreciation Right as specified by
the Committee, which price shall not be less than 100% of the Fair Market
Value of one Share on the date of grant of the Stock Appreciation Right.
Subject to the terms of the Plan and any applicable Award Agreement, the
grant price, term, methods of exercise, dates of exercise, methods of
settlement and any other terms and conditions of any Stock Appreciation
Right shall be as determined by the Committee. The Committee may impose
such conditions or restrictions on the exercise of any Stock Appreciation
Right as it may deem appropriate.
(c) Restricted Stock and Restricted Stock Units. The Committee is
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hereby authorized to grant Restricted Stock and Restricted Stock Units to
Participants with the following terms and conditions and with such
additional terms and conditions not inconsistent with the provisions of the
Plan as the Committee shall determine:
(i) Restrictions. Shares of Restricted Stock and Restricted
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Stock Units shall be subject to such restrictions as the Committee may
impose (including, without limitation, any limitation on the right to
vote a Share of Restricted Stock or the right to receive any dividend
or other right or property with respect thereto), which restrictions
may lapse separately or in combination at such time or times, in such
installments or otherwise as the Committee may deem appropriate.
(ii) Stock Certificates; Delivery of Shares. Any Restricted
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Stock granted under the Plan shall be evidenced by issuance of a stock
certificate or certificates, which certificate or certificates shall
be held by the Company. Such certificate or certificates shall be
registered in the name of the Participant and shall bear an
appropriate legend referring to the restrictions applicable to such
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Restricted Stock. Promptly upon the lapse or waiver of applicable
restrictions, Shares representing Restricted Stock that is no longer
subject to restrictions shall be delivered to the holder thereof. In
the case of Restricted Stock Units, no Shares shall be issued at the
time such Awards are granted. Upon the lapse or waiver of restrictions
and the restricted period relating to Restricted Stock Units
evidencing the right to receive Shares, such Shares shall be issued
and delivered to the holders of the Restricted Stock Units.
(iii) Forfeiture. Except as otherwise determined by the
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Committee, upon a Participant's termination of employment (as
determined under criteria established by the Committee) during the
applicable restriction period, all Shares of Restricted Stock and all
Restricted Stock Units held by the Participant at such time shall be
forfeited and reacquired by the Company; provided, however, that the
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Committee may, when it finds that a waiver would be in the best
interest of the Company, waive in whole or in part any or all
remaining restrictions with respect to Shares of Restricted Stock or
Restricted Stock Units.
(d) Performance Awards. The Committee is hereby authorized to grant
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Performance Awards to Participants subject to the terms of the Plan and any
applicable Award Agreement. A Performance Award granted under the Plan (i)
may be denominated or payable in cash, Shares (including, without
limitation, Restricted Stock and Restricted Stock Units), other securities,
other Awards or other property and (ii) shall confer on the holder thereof
the right to receive payments, in whole or in part, upon the achievement of
such performance goals during such performance periods as the Committee
shall establish. Subject to the terms of the Plan and any applicable Award
Agreement, the performance goals to be achieved during any performance
period, the length of any performance period, the amount of any Performance
Award granted, the amount of any payment or transfer to be made pursuant to
any Performance Award and any other terms and conditions of any Performance
Award shall be determined by the Committee.
(e) Other Stock-Based Awards. The Committee is hereby authorized to
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grant to Participants such other Awards that are denominated or payable in,
valued in whole or in part by reference to, or otherwise based on or
related to, Shares (including, without limitation, securities convertible
into Shares), as are deemed by the Committee to be consistent with the
purpose of the Plan; provided, however, that such grants must comply with
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applicable law. Subject to the terms of the Plan and any applicable Award
Agreement, the Committee shall determine the terms and conditions of such
Awards. Shares or other securities delivered pursuant to a purchase right
granted under this Section 6(e) shall be purchased for such consideration,
which may be paid by such method or methods and in such form or forms
(including, without limitation, cash, Shares, other securities, other
Awards or other property or any combination thereof), as the Committee
shall determine.
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(f) General.
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(i) No Cash Consideration for Awards. Awards shall be granted for
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no cash consideration or for such minimal cash consideration as may be
required by applicable law.
(ii) Awards May Be Granted Separately or Together. Awards may, in
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the discretion of the Committee, be granted either alone or in addition to,
in tandem with or in substitution for any other Award or any award granted
under any plan of the Company or any Affiliate other than the Plan. Awards
granted in addition to or in tandem with other Awards or in addition to or
in tandem with awards granted under any such other plan of the Company or
any Affiliate may be granted either at the same time as or at a different
time from the grant of such other Awards or awards.
(iii) Forms of Payment under Awards. Subject to the terms of the
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Plan and of any applicable Award Agreement, payments or transfers to be
made by the Company or an Affiliate upon the grant, exercise or payment of
an Award may be made in such form or forms as the Committee shall determine
(including, without limitation, cash, Shares, other securities, other
Awards or other property or any combination thereof), and may be made in a
single payment or transfer, in installments or on a deferred basis, in each
case in accordance with rules and procedures established by the Committee.
Such rules and procedures may include, without limitation, provisions for
the payment or crediting of reasonable interest on installment or deferred
payments.
(iv) Limits on Transfer of Awards. No Award and no right under any
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such Award shall be transferable by a Participant otherwise than by will or
by the laws of descent and distribution; provided, however, that, if so
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determined by the Committee, a Participant may, in the manner established
by the Committee, transfer Options (other than Incentive Stock Options) or
designate a beneficiary or beneficiaries to exercise the rights of the
Participant and receive any property distributable with respect to any
Award upon the death of the Participant. Except as otherwise provided in
any applicable Award or amendment thereto (other than an Award Agreement
relating to an Incentive Stock Option), pursuant to terms determined by the
Committee, each Award or right under any Award shall be exercisable during
the Participant's lifetime only by the Participant or, if permissible under
applicable law, by the Participant's guardian or legal representative.
Except as otherwise provided in any applicable Award Agreement or amendment
thereto (other than an Award Agreement or amendment thereto relating to an
Incentive Stock Option), no Award or right under any such Award may be
pledged, alienated, attached or otherwise encumbered, and any purported
pledge, alienation, attachment or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
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(v) Term of Awards. The term of each Award shall be for such
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period as may be determined by the Committee.
(vi) Restrictions; Securities Exchange Listing. All certificates
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for Shares or other securities delivered under the Plan pursuant to
any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other
requirements of the Securities and Exchange Commission and any
applicable federal or state securities laws, and the Committee may
cause appropriate entries to be made or legend or legends to be
affixed on any such certificates to reflect such restrictions. If the
Shares or other securities are listed on a securities exchange, the
Company shall not be required to deliver any Shares or other
securities covered by an Award unless and until such Shares or other
securities have been listed on such securities exchange.
(g) Directors' Options.
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(i) Annual Grant. Each Non-Employee Director shall receive annually
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on the date of each annual stockholders' meeting Non-Qualified Options
to purchase 5,000 Shares. The exercise price for the Shares shall be
the Fair Market Value of the Shares on the date of the grant. Each
Option shall become exercisable immediately upon grant, shall be
exercisable for 10 years following the date of grant and shall be
generally subject to the terms and conditions set forth in the Plan.
(ii) Options in Lieu of Directors' Fees. Upon appointment or initial
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election to the Board, each Non-Employee Director shall receive an
Option to purchase 20,000 Shares. The exercise price for the Shares
shall be the Fair Market Value of the Shares on the date of grant.
Each Option shall become exercisable in eight installments of 2,500
Shares every three months from the date of grant, shall be exercisable
for 10 years following the date of grant and shall be generally
subject to the terms and conditions set forth in the Plan.
(iii) No Limitation on Other Awards. The provisions of this Section
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6(g) shall not prevent the Committee from granting other and
additional Awards to Non-Employee Directors, subject only to the terms
and conditions set forth in the Plan.
Section 7. Amendment and Termination; Adjustments. Except to the extent
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prohibited by applicable law and unless otherwise expressly provided in an Award
Agreement or in the Plan:
(a) Amendments to the Plan. The Board may amend, alter, suspend,
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discontinue or terminate the Plan; provided, however, that, notwithstanding
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any other provision of the Plan or any Award Agreement, without the
approval of the stockholders
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of the Company, no such amendment, alteration, suspension, discontinuation
or termination shall be made that, absent such stockholder approval:
(i) would cause Rule 16b-3 or Section 162(m) of the Code to become
unavailable with respect to the Plan;
(ii) would violate the rules or regulations of the NASDAQ National
Market, any other securities exchange or the National Association of
Securities Dealers, Inc. that are applicable to the Company; or
(iii) would cause the Company to be unable, under the Code, to
grant Incentive Stock Options under the Plan.
(b) Amendments to Awards. The Committee may waive any conditions of
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or rights of the Company under any outstanding Award, prospectively or
retroactively. The Committee may not amend, alter, suspend, discontinue or
terminate any outstanding Award, prospectively or retroactively, without
the consent of the Participant or holder or beneficiary thereof, except as
otherwise herein provided or in the Award Agreement.
(c) Correction of Defects, Omissions and Inconsistencies. The
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Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it
shall deem desirable to carry the Plan into effect.
Section 8. Income Tax Withholding; Tax Bonuses.
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(a) Withholding. In order to comply with all applicable federal or
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state income tax laws or regulations, the Company may take such action as
it deems appropriate to ensure that all applicable federal or state
payroll, withholding, income or other taxes that are the sole and absolute
responsibility of a Participant are withheld or collected from such
Participant. In order to assist a Participant in paying all or a portion of
the federal and state taxes to be withheld or collected upon exercise or
receipt of (or the lapse of restrictions relating to) an Award, the
Committee, in its discretion and subject to such additional terms and
conditions as it may adopt, may permit the Participant to satisfy such tax
obligation by (i) electing to have the Company withhold a portion of the
Shares otherwise to be delivered upon exercise or receipt of (or the lapse
of restrictions relating to) such Award with a Fair Market Value equal to
the amount of such taxes or (ii) delivering to the Company Shares other
than Shares issuable upon exercise or receipt of (or the lapse of
restrictions relating to) such Award with a Fair Market Value equal to the
amount of such taxes. The election, if any, must be made on or before the
date that the amount of tax to be withheld is determined.
(b) Tax Bonuses. The Committee, in its discretion, shall have the
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authority, at the time of grant of any Award under this Plan or at any time
thereafter, to approve cash bonuses to designated Participants to be paid
upon their exercise or receipt of (or the
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lapse of restrictions relating to) Awards in order to provide funds to pay
all or a portion of federal and state taxes due as a result of such
exercise or receipt (or the lapse of restrictions relating to) Awards in
order to provide funds to pay all or a portion of federal and state taxes
due as a result of such exercise or receipt (or the lapse of such
restrictions). The Committee shall have full authority in its discretion to
determine the amount of any such tax bonus.
Section 9. General Provisions.
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(a) No Rights to Awards. No Eligible Person, Participant or other
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Person shall have any claim to be granted any Award under the Plan, and
there is no obligation for uniformity of treatment of Eligible Persons,
Participants or holders or beneficiaries of Awards under the Plan. The
terms and conditions of Awards need not be the same with respect to
different Participants.
(b) Award Agreements. No Participant will have rights under an Award
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granted to such Participant unless and until an Award Agreement shall have
been duly executed on behalf of the Company.
(c) No Rights of Stockholders. Except with respect to Restricted
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Stock and other grants of Common Stock of the Company, neither a
Participant nor the Participant's legal representative shall be, or shall
have any of the rights and privileges of, a stockholder of the Company in
respect of any Shares issuable upon the exercise or payment of any Award,
in whole or in part, unless and until the Shares have been issued.
(d) No Limit on Other Compensation Arrangements. Nothing contained in
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the Plan shall prevent the Company or any Affiliate from adopting or
continuing in effect other or additional compensation arrangements, and
such arrangements may be either generally applicable or applicable only in
specific cases.
(e) No Right to Employment. The grant of an Award shall not be
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construed as giving a Participant the right to be retained in the employ,
or as giving a Non-Employee Director the right to continue as a director,
of the Company or any Affiliate, nor will it affect in any way the right of
the Company or an Affiliate to terminate such employment or the term of a
Non-Employee Director at any time, with or without cause. In addition, the
Company or an Affiliate may at any time dismiss a Participant from
employment or terminate the term of a Non-Employee Director free from any
liability or any claim under the Plan, unless otherwise expressly provided
in the Plan or in any Award Agreement.
(f) Governing Law. The validity, construction and effect of the
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Plan and any rules and regulations relating to the Plan shall be determined
in accordance with the laws of the State of Delaware.
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(g) Severability. If any provision of the Plan or any Award is or
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becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction or would disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed or deemed
amended to conform to applicable laws, or if it cannot be so construed or
deemed amended without, in the determination of the Committee, materially
altering the purpose or intent of the Plan or the Award, such provision
shall be stricken as to such jurisdiction or Award, and the remainder of
the Plan or any such Award shall remain in full force and effect.
(h) No Trust or Fund Created. Neither the Plan nor any Award shall
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create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a
Participant or any other Person. To the extent that any Person acquires a
right to receive payments from the Company or any Affiliate pursuant to an
Award, such right shall be no greater than the right of any unsecured
general creditor of the Company or any Affiliate.
(i) No Fractional Shares. No fractional Shares shall be issued or
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delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash shall be paid in lieu of any fractional Share or
whether such fractional Share or any rights thereto shall be canceled,
terminated or otherwise eliminated.
(j) Headings. Headings are given to the Sections and subsections
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of the Plan solely as a convenience to facilitate reference. Such headings
shall not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
(k) Section 16 Compliance. The Plan is intended to comply in all
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respects with Rule 16b-3 or any successor provision, as in effect from time
to time, and in all events the Plan shall be construed in accordance with
the requirements of Rule 16b-3. If any Plan provision does not comply with
Rule 16b-3 as hereafter amended or interpreted, the provision shall be
deemed inoperative. The Board, in its absolute discretion, may bifurcate
the Plan so as to restrict, limit or condition the use of any provision of
the Plan with respect to persons who are officers or directors subject to
Section 16 of the Securities and Exchange Act of 1934, as amended, without
so restricting, limiting or conditioning the Plan with respect to other
Participants.
Section 10. Effective Date of the Plan. The Plan shall be effective as of
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the date (the "Effective Date") immediately prior to the date on which the
Company's registration statement relating to its initial public offering of
Common Stock is declared effective by the Securities and Exchange Commission,
subject to approval by the Company's stockholders in accordance with applicable
law.
Section 11. Term of the Plan. Awards shall be granted under the Plan only
----------------
during a 10-year period beginning on the Effective Date of the Plan. However,
unless otherwise expressly provided in the Plan or in an applicable Award
Agreement, any Award theretofore granted may
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extend beyond the end of such 10-year period, and the authority of the Committee
provided for hereunder with respect to the Plan and any Awards, and the
authority of the Board to amend the Plan, shall extend beyond the end of such
period.
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