|
|
|
|
|
|
|
|
|
<PAGE>
Exhibit 10.9
RDA CORPORATION
2000 EQUITY INCENTIVE PLAN
PURPOSE RDA Corporation, a Delaware corporation (the
"Company"), wishes to recruit, reward, and
retain employees and directors. To further
these objectives, the Company hereby sets
forth the RDA Corporation 2000 Equity
Incentive Plan (the "Plan"), effective as of
August 15, 2000 (the "Effective Date"), to
provide options ("Options") to employees and
directors of the Company and its Related
Companies to purchase shares of the
Company's common stock (the "Common Stock").
PARTICIPANTS All Employees of the Company and of any
Eligible Affiliates are eligible for
Options under this Plan. Eligible
individuals become "optionees" when the
Administrator grants them an option under
this Plan. The Administrator may also grant
options to directors of the Company. The
term optionee also includes, where
appropriate, a person authorized to exercise
an Option in place of the original
recipient. A director serving on behalf of
an investor may, in advance of a grant,
request that the Company grant the option
directly to the investor, provided that the
resulting grant may not qualify for
exemption from registration under Rule 701
or for registration on Form S-8.
Employee means any person employed as a
common law employee of the Company or of a
Related Company.
ADMINISTRATOR The Administrator is the Board of Directors
of the Company (the "Board"), unless the
Board specifies a committee of the Board.
After an initial public offering ("IPO")
covering the Company's stock, the
Administrator will be the Compensation
Committee of the Board, unless the Board
either specifies another committee (which
could be a committee of one) or acts under
the Plan as though it were the Compensation
Committee.
The Administrator is responsible for the
general operation and administration of the
Plan and for carrying out its provisions and
has full discretion in interpreting and
<PAGE>
administering the provisions of the Plan.
Subject to the express provisions of the
Plan, the Administrator may exercise such
powers and authority of the Board as the
Administrator may find necessary or
appropriate to carry out its functions. The
Administrator may delegate its functions
(other than those described in the Granting
of Options section) to officers or other
Employees of the Company.
The Administrator's powers will include, but
not be limited to, the power to amend,
waive, or extend any provision or limitation
of any Option. The Administrator may act
through meetings of a majority of its
members or by unanimous consent.
The Administrator may also make direct
grants of Common Stock (with any or no
restrictions) as a bonus or to grant such
stock or other awards in lieu of Company
obligations to pay cash under other plans or
compensatory arrangements, including the
Company's Senior Bonus Plan or any deferred
compensation plans.
GRANTING OF Subject to the terms of the Plan, the
OPTIONS Administrator will, in its sole discretion,
determine
the persons who receive Options,
the terms of such Options,
the schedule for exercisability
(including any requirements that the
optionee or the Company satisfy
performance criteria),
the time and conditions for
expiration of the Options, and
the form of payment due upon
exercise.
The Administrator's determinations under the
Plan need not be uniform and need not
consider whether possible recipients are
similarly situated.
Options granted to Employees may be
"incentive stock options" ("ISOs") within
the meaning of Section 422 of the Internal
Revenue Code of 1986 (the "Code"), or the
corresponding provision of any subsequently
enacted tax statute, or nonqualified stock
options ("NQSOs"), and the
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 2 of 20
<PAGE>
Administrator will specify which form of
option it is granting. (If the Admini-
strator fails to specify the form of an
option grant to an Employee, it will be an
ISO to the extent the tax laws permit.) Any
options granted to outside directors must
be nonqualified stock options.
Substitutions The Administrator may grant Options in
substitution for options or other equity
interests held by individuals who become
Employees of the Company or of a Related
Company as a result of the Company's or
Related Company's acquiring or merging with
the individual's employer or acquiring its
assets. In addition, the Administrator may
provide for the Plan's assumption of options
granted outside the Plan to persons who
would have been eligible under the terms of
the Plan to receive a grant, including both
persons who provided services to any
acquired company or business and persons who
provided services to the Company or any
Related Company. If appropriate to conform
the Options to the interests for which they
are substitutes, the Administrator may grant
substitute Options under terms and
conditions (including Exercise Price) that
vary from those the Plan otherwise requires.
DATE OF GRANT The Date of Grant will be the date as of
which the Administrator grants an Option to
a person, as specified in the Plan or in the
Administrator's minutes or other written
evidence of action.
EXERCISE PRICE The Exercise Price is the value of the
consideration that an optionee must provide
in exchange for one share of Common Stock.
The Administrator will determine the
Exercise Price under each Option and may set
the Exercise Price without regard to the
Exercise Price of any other Options granted
at the same or any other time. The Company
may use the consideration it receives from
the optionee for general corporate purposes.
The Exercise Price per share for NQSOs may
not be less than 100% of the Fair Market
Value of a share on the Date of Grant. For
ISOs, the Exercise Price per share must be
at least 100% of the Fair Market Value (on
the Date of Grant) of a share of Common
Stock covered by the Option; provided,
however, that if the Administrator decides
to grant an ISO to someone covered by Code
Sections 422(b)(6) and 424(d) (as a
more-than-10%-stockholder),
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 3 of 20
<PAGE>
the Exercise Price must be at least 110% of
the Fair Market Value.
FAIR MARKET Fair Market Value of a share of Common
VALUE Stock for purposes of the Plan will be
determined as follows:
if the Common Stock trades on a
national securities exchange, the
closing sale price on the Date of
Grant;
if the Common Stock does not trade
on any such exchange, the closing
sale price as reported by the
National Association of Securities
Dealers, Inc. Automated Quotation
System ("Nasdaq") for such date;
if no such closing sale price
information is available, the
average of the closing bid and asked
prices that Nasdaq reports for such
date
if there are no such closing bid and
asked prices, the average of the
closing bid and asked prices as
reported by any other commercial
service for such date; or
if the Company has no publicly-
traded stock, the Administrator will
determine the Fair Market Value for
purposes of the Plan using any
measure of value it determines in
good faith to be appropriate.
For any date that is not a trading day, the
Fair Market Value of a share of Common Stock
for such date will be determined by using
the closing sale price or the average of the
closing bid and asked prices, as
appropriate, for the immediately preceding
trading day. The Administrator can
substitute a particular time of day or other
measure of "closing sale price" or "bid and
asked prices" if appropriate because of
changes in exchange or market procedures.
With respect to any Options granted as of
the IPO or conditioned on the IPO, the Fair
Market Value will be treated as equal to the
price established in the IPO for any such
Options if they are granted on or before the
date on which the IPO's underwriters price
the IPO or granted on the following day
before trading opens in the Common Stock.
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 4 of 20
<PAGE>
The Administrator has sole discretion to
determine the Fair Market Value for purposes
of this Plan, and all Options are
conditioned on the optionees' agreement that
the Administrator's determination is
conclusive and binding even though others
might make a different and also reasonable
determination.
EXERCISABILITY The Administrator will determine the times
and conditions for exercise of each Option.
Options will become exercisable at such
times and in such manner as the
Administrator determines and the Option
Agreement indicates; provided, however, that
the Administrator may, on such terms and
conditions as it determines appropriate,
accelerate the time at which the optionee
may exercise any portion of an Option.
If the Administrator does not specify
otherwise, Options will become exercisable
as to 25% per year on each anniversary of
the Date of Grant, so long as the optionee
remains employed or continues his
relationship as a service provider, and will
expire as of the tenth anniversary of the
Date of Grant (unless they expire earlier
under the Plan or the Option Agreement). The
Administrator has the sole discretion to
determine that a change in service-providing
relationship eliminates any further service
credit on the exercise schedule.
No portion of an Option that is
unexercisable at an optionee's termination
of service-providing relationship (for any
reason) will thereafter become exercisable
(and the optionee will immediately forfeit
any unexercisable portions at his
termination of service-providing
relationship), unless the Option Agreement
provides otherwise, either initially or by
amendment.
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 5 of 20
<PAGE>
SUBSTANTIAL Upon a Substantial Corporate Change after
CORPORATE an IPO, the Options will become exercisable
CHANGE* and the Plan and any unexercised Options
will terminate (after the occurrence of one
of the alternatives set forth in the next
full paragraph) unless either (i) such
termination would prevent use of "pooling of
interest" accounting for a reorganization,
merger, or consolidation of the Company that
the Board approves, (ii) an agreement with
an optionee provides otherwise, or (iii)
provision is made in writing in connection
with such transaction for
the assumption or continuation of
outstanding Options, or
the substitution for such options or
grants of any options or grants
covering the stock or securities of
a successor employer entity, or a
parent or subsidiary of such
successor, with appropriate
adjustments as to the number and
kind of shares of stock and prices,
in which event the Options will
continue in the manner and under the
terms so provided.
If an Option would otherwise terminate under
the preceding sentence and the Administrator
considers that the Fair Market Value of the
Common Stock as a result of the Substantial
Corporate Change exceeds or is likely to
exceed the Exercise Price, the Administrator
will either
provide that optionees will have the
right, at such time before the
completion of the transaction
causing such termination as the
Board or the Administrator
reasonably designates, to exercise
any unexercised portions of the
Option, including those portions
that the transaction will make
exercisable or
cause the Company, or agree to allow
the successor, to cancel each Option
after payment to the optionee of an
amount in cash, cash equivalents, or
successor equity interests
substantially equal to the Fair
Market Value under the transaction
minus the Exercise Price for the
shares covered by the Option (and,
where the Board or the Administrator
determines it is appropriate, any
required tax withholdings).
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 6 of 20
<PAGE>
The Administrator may allow conditional
exercises in advance of the completion of a
Substantial Corporate Change that are then
rescinded if no Substantial Corporate Change
occurs.
Even if other tests are met, a Substantal
Corporate Change has not occurred (unless
the Administrator determines otherwise)
under any circumstance in which the Company
files for bankruptcy protection or is
reorganized following a bankruptcy filing.
The Board or other Administrator may take
any actions described in the SUBSTANTIAL
CORPORATE CHANGE section, without any
requirement to seek optionee consent.
A "Substantial Corporate Change" means any
of the following events:
sale of all or substantially all of
the assets of the Company to one or
more individuals, entities, or
groups (other than an Excluded
Owner),
complete or substantially complete
dissolution or liquidation of the
Company,
a person, entity, or group (other
than an Excluded Owner) acquires or
attains ownership of 100% of the
undiluted total voting power of the
Company's then-outstanding
securities eligible to vote to elect
members of the Board ("Company
Voting Securities"),
completion of a merger,
reorganization, or consolidation of
the Company with or into any other
entity (other than an Excluded
Owner) unless (i) the holders of the
Company Voting Securities
outstanding immediately before such
completion, together with any
trustee or other fiduciary holding
securities under a Company benefit
plan, retain control because they
hold securities that represent
immediately after such merger or
consolidation more than 20% of the
combined voting power of the then
outstanding voting securities of
either the Company or the other
surviving entity or its ultimate
parent or (ii) the transaction is
intended primarily to change the
Company's state of incorporation or
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 7 of 20
<PAGE>
any other transaction (including a
merger or reorganization in which
the Company survives) approved by
the Board that results in any person
or entity (other than an Excluded
Owner) owning 100% of Company Voting
Securities.
An "Excluded Owner" consists of the
Company, any Related Company, any
Company benefit plan, any
underwriter temporarily holding
securities for an offering of such
securities, or Don Awalt.
LIMITATION ON An Option granted to an Employee will be an
ISOS ISO only tothe extent that the aggregate
Fair Market Value (determined at the Date of
Grant) of the stock with respect to which
ISOs are exercisable for the first time by
the optionee during any calendar year (under
the Plan and all other plans of the Company
and its subsidiary corporations, within the
meaning of Code Section 422(d)), does not
exceed $100,000. This limitation applies to
Options in the order in which such Options
were granted. If, by design or operation,
the Option exceeds this limit, the excess
will be treated as an NQSO.
METHOD OF To exercise any exercisable portion of an
EXERCISE Option, the optionee must:
Deliver notice of exercise to the
Secretary of the Company (or to
whomever the Administrator
designates), in a form complying
with any rules the Administrator may
issue, signed or otherwise
authenticated by the optionee, and
specifying the number of shares of
Common Stock underlying the portion
of the Option the optionee is
exercising;
Pay the full Exercise Price by cash
or a cashier's or certified check
for the shares of Common Stock with
respect to which the Option is being
exercised, unless the Administrator
consents to another form of payment
(which could include loans from the
Company or the use of Common Stock);
and
Deliver to the Administrator such
representations and documents as the
Administrator, in its sole
discretion, may consider necessary
or advisable.
After an IPO, payment in full of the
Exercise Price need not accompany the
written notice of exercise if the exercise
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 8 of 20
<PAGE>
complies with a previously-approved cashless
exercise method, including, for example,
that the notice directs that the stock
certificates (or other indicia of ownership)
for the shares issued upon the exercise be
delivered to a licensed broker acceptable to
the Company as the agent for the individual
exercising the option and at the time the
stock certificates (or other indicia) are
delivered to the broker, the broker will
tender to the Company cash or cash
equivalents acceptable to the Company and
equal to the Exercise Price and any required
withholding taxes.
If the Administrator agrees to allow an
optionee to pay through tendering shares of
Common Stock to the Company, the individual
can only tender stock he has held for at
least six months at the time of surrender.
Shares of stock offered as payment will be
valued, for purposes of determining the
extent to which the optionee has paid the
Exercise Price, at their Fair Market Value
on the date of exercise. The Administrator
may also, in its discretion, accept
attestation of ownership of Common Stock and
issue a net number of shares upon Option
exercise, or, after an IPO, by having a
broker tender to the Company cash equal to
the exercise price and any withholding
taxes.
The Administrator may also, at the Date of
Grant or such later time as it determines,
permit payment of any Exercise Price with a
full or partially recourse promissory note
containing such terms and conditions as the
Administrator considers appropriate. The
terms or conditions of the note need not
require payment of interest, or may defer
all interest payments until the maturity
date of the note, and the Administrator may
forgive the note in its sole discretion,
including upon satisfaction of such terms
and conditions (which may include continued
employment with the Company) as the
Administrator considers appropriate.
OPTION No one may exercise an Option more than ten
EXPIRATION years after its Date of Grant (or five years
for ISOs granted to 10% owners covered by
Code Sections 422(b)(6) and 424(d)). An
Optionee will immediately forfeit and can
never exercise any portion of an Option that
is unexercisable at his termination of
service-providing relationship (for any
reason), unless the Option Agreement
provides otherwise, either initially or by
amendment. Unless the Option Agreement
provides otherwise, either initially or by
amendment, no one may exercise otherwise
exercisable portions of an Option after the
first to occur of:
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 9 of 20
<PAGE>
EMPLOYMENT The 90th day after the date of
TERMINATION termination of service-providing
relationship (other than for death
or Disability), where termination
of service-providing relationship
means the time when the employer-
employee or other service-providing
relationship between the individual
and the Company (and all Related
Companies) ends for any reason. The
Administrator may provide that
Options terminate immediately upon
termination of employment for
"cause" under an Employee's employ-
ment or consultant's services
agreement or under another
definition specified in the Option
Agreement. Unless the Option
Agreement or the Administrator
provides otherwise, termination of
service-providing relationship does
not include instances in which the
Company immediately rehires a common
law employee as an independent
contractor. The Administrator, in
its sole discretion, will determine
all questions of whether particular
terminations or leaves of absence
are terminations of employment and
may decide to suspend the exercise
schedule during a leave rather than
to terminate the option. Unless the
Option Agreement or the
Administrator provides otherwise,
terminations of employment do not
include situations in which the
optionee's employer ceases to be
related to the Company closely
enough to be a Related Company for
new grants.
GROSS MISCONDUCT For the Company's termination of
the optionee's service-providing
relationship as a result of the
optionee's Gross Misconduct, the
time of such termination. For
purposes of this Plan, "Gross
Misconduct" means the optionee has
committed fraud,
misappropriation, embezzlement,
or willful misconduct that has
resulted or is likely to result
in material harm to the Company
or a Related Company;
committed or been indicted for or
convicted of, or pled guilty or
no contest to, any misdemeanor
(other than for minor infractions
or traffic violations) involving
fraud, breach of trust,
misappropriation, or
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 10 of 20
<PAGE>
other similar activity or
otherwise relating to the
Company, or any felony; or
committed an act of gross
negligence or otherwise acted
with willful disregard for the
Company's or a Related Company's
best interests in a manner that
has resulted or is likely to
result in material harm to the
Company or a Related Company.
If the optionee has a written employment
or other agreement in effect at the time
of his termination that specifies
"cause" for termination, "Gross
Misconduct" for purposes of his
termination will refer to "cause" under
the employment or other agreement,
rather than to the foregoing definition.
DISABILITY For disability, the earlier of (i) the
first anniversary of the optionee's
termination of employment for disability
and (ii) 90 days after the optionee no
longer has a disability, where
"disability" means the inability to
engage in any substantial gainful
activity because of any medically
determinable physical or mental
impairment that can be expected to
result in death or that has lasted or
can be expected to last for a continuous
period of not less than 12 months, or,
if the Company then maintains long-term
disability insurance, the date as of
which the individual is eligible for
benefits under that insurance; or
DEATH The date 12 months after the optionee's
death.
If exercise is permitted after termination
of service-providing relationship, the
Option will nevertheless expire as of the
date that the former service provider
violates any covenant not to compete or
other post-employment covenant in effect
between the Company or a Related Company and
the former employee or other service
provider. In addition, an optionee who
exercises an Option more than 90 days after
termination of employment with the Company
and/or Eligible Affiliates will only receive
ISO treatment to the extent the law permits,
and becoming or remaining an employee of
another related company (that is not an
Eligible Affiliate) or an independent
contractor
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 11 of 20
<PAGE>
will not prevent loss of ISO status because
of the formal termination of employment.
Nothing in this Plan extends the term of an
Option beyond the tenth anniversary of its
Date of Grant, nor does anything in this
Option Expiration section make an Option
exercisable that has not otherwise become
exercisable, unless the Administrator
specifies otherwise.
OPTION Option Agreements (which could be certifi-
AGREEMENT cates) will set forth the terms of each
Option and will include such terms and
conditions, consistent with the Plan, as the
Administrator may determine are necessary or
advisable. To the extent the agreement is
inconsistent with the Plan, the Plan will
govern. The Option Agreements may contain
special rules.
PUT AND CALL The Administrator may provide in Option
RIGHTS; OTHER Agreements or other agreements that the
RESTRICTIONS Company has the right (or obligation) to
purchase outstanding Options, or the shares
received from exercising an Option, under
certain circumstances, including termination
of service-providing relationship for any
reason or death and may provide for rights
of first refusal. The Administrator may
distinguish between unexercisable and
exercisable Options. The Administrator may
provide in Option Agreements that
individuals who receive shares from
exercising an Option may not transfer such
shares without complying with the
agreement's conditions.
STOCK SUBJECT Except as adjusted below under Corporate
TO PLAN Changes,
the aggregate number of shares of
Common Stock that may be issued
under Options may not exceed 30% of
the shares of Common Stock
(including preferred that is
convertible into common as though it
had been converted) issued and
outstanding as of the date on which
the Administrator seeks to make an
additional grant (provided that a
decrease in shares outstanding will
not invalidate any previously issued
Option), plus the number of shares
available for grants as of the
Effective Date under any of the
option plans then in effect for the
Company or its predecessors (the
"Predecessor Plans"), together with
any shares that would have become
available under the Predecessor
Plans upon
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 12 of 20
<PAGE>
forfeiture or other release of
shares under such plans,
the maximum number of shares that
may be granted under Options for a
single individual in a calendar year
may not exceed 1,000,000 shares, and
the aggregate number of shares of
Common Stock that may be issued
under ISOs may not exceed
10,000,000.
The Common Stock will come from either
authorized but unissued shares or from
previously issued shares that the Company
reacquires, including shares it purchases on
the open market or holds as treasury shares.
If any Option expires, is canceled, or
terminates for any other reason, the shares
of Common Stock available under that Option
will again be available for the granting of
new Options (but will be counted against
that calendar year's limit, if any, for a
given individual). Shares used as payment
for the Exercise Price or any required
withholdings will be added back to the
totals available for issuance.
No adjustment will be made for a dividend or
other right (except a stock dividend) for
which the record date precedes the date of
exercise.
The optionee will have no rights of a
stockholder with respect to the shares of
stock subject to an Option except to the
extent that the Company has issued
certificates for, or otherwise confirmed
ownership of, such shares upon the exercise
of the Option.
The Company will not issue fractional shares
pursuant to the exercise of an Option,
unless the Administrator determines
otherwise, but the Administrator may, in its
discretion, direct the Company to make a
cash payment in lieu of fractional shares.
PERSON WHO During the optionee's lifetime and except
MAY EXERCISE as provided under Transfers, Assignments,
and Pledges, only the optionee or his duly
appointed guardian or personal representa-
tive may exercise the Options. After his
death, his personal representative or any
other person authorized under a will or
under the laws of descent and distribution
may exercise any then exercisable portion of
an Option. If someone other than the
original recipient seeks to exercise
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 13 of 20
<PAGE>
any portion of an Option, the Administrator
may request such proof as it may consider
necessary or appropriate of the person's
right to exercise the Option.
ADJUSTMENTS Subject to any required action by the
UPON CHANGES Company (which it agrees to promptly take)
IN CAPITAL or its stockholders, and subject to the
STOCK provisions of applicable corporate law, if,
after the Date of Grant of an Option,
the outstanding shares of Common Stock
increase or decrease or change into or
are exchanged for a different number or
kind of security because of any
recapitalization, reclassification,
stock split, reverse stock split,
combination of shares, exchange of
shares, stock dividend, or other
distribution payable in capital stock,
or
some other increase or decrease in such
Common Stock occurs without the
Company's receiving consideration
(excluding, unless the Administrator
determines otherwise, stock
repurchases),
the Administrator must make a proportionate
and appropriate adjustment in the number of
shares of Common Stock underlying each
Option, so that the proportionate interest
of the optionee immediately following such
event will, to the extent practicable, be
the same as immediately before such event.
(This adjustment does not apply to Common
Stock that the optionee has already
purchased, which is subject to the
adjustments applicable to Common Stock.)
Unless the Administrator determines another
method would be appropriate, any such
adjustment to an Option will not change the
total price with respect to shares of Common
Stock underlying the unexercised portion of
the Option but will include a corresponding
proportionate adjustment in the Option's
Exercise Price. The Board or other
Administrator may take any actions described
in this section without any requirement to
seek optionee consent.
The Administrator will make a commensurate
change to the maximum number and kind of
shares provided in the Stock Subject to Plan
section.
All references to numbers of shares of
Common Stock in the Plan and in any Option
grants made on or before the IPO Effective
Date assume the IPO is or will be completed
and thus relate to post-IPO numbers of
shares.
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 14 of 20
<PAGE>
Any issue by the Company of any class of
preferred stock, or securities convertible
into shares of common or preferred stock of
any class, will not affect, and no
adjustment by reason thereof will be made
with respect to, the number of shares of
Common Stock subject to any Option or the
Exercise Price except as this Adjustments
section specifically provides. The grant of
an Option under the Plan will not affect in
any way the right or power of the Company to
make adjustments, reclassifications,
reorganizations or changes of its capital or
business structure, or to merge or to
consolidate, or to dissolve, liquidate,
sell, or transfer all or any part of its
business or assets.
RELATED Employees of Eligible Affiliates will be
COMPANY entitled to participate in the Plan,
EMPLOYEES except as otherwise designated by
the Board or the Administrator.
"Eligible Affiliate" means each of the
Related Companies, except as the
Administrator otherwise specifies. For ISO
grants, "Related Company" means any
corporation in an unbroken chain of
corporations including the Company if, at
the time an Option is granted to a
Participant under the Plan, each corporation
(other than the last corporation in the
unbroken chain) owns stock possessing 50% or
more of the total combined voting power of
all classes of stock in another corporation
in such chain. Related Company also includes
a single-member limited liability company
included within the chain described in the
preceding sentence. The Board or the
Administrator may use a different definition
of Related Company for NQSOs and may include
other forms of entity at the same level of
equity relationship (or such other level as
the Board or the Administrator specifies).
LEGAL The Company will not issue any shares of
COMPLIANCE Common Stock under an Option until all
applicable requirements imposed by Federal
and state securities and other laws, rules,
and regulations, and by any applicable
regulatory agencies or stock exchanges, have
been fully met. To that end, the Company may
require the optionee to take any reasonable
action to comply with such requirements
before issuing such shares, including
compliance with any Company black-out
periods or trading restrictions. No
provision in the Plan or action taken under
it authorizes any action that Federal or
state laws otherwise prohibit.
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 15 of 20
<PAGE>
The Plan is intended to conform to the
extent necessary with all provisions of the
Securities Act of 1933 ("Securities Act")
and the Securities Exchange Act of 1934 and
all regulations and rules the Securities and
Exchange Commission issues under those laws.
Notwithstanding anything in the Plan to the
contrary, the Administrator must administer
the Plan, and Options may be granted and
exercised, only in a way that conforms to
such laws, rules, and regulations. To the
extent permitted by applicable law, the Plan
and any Options will be treated as amended
to the extent necessary to conform to such
laws, rules, and regulations.
PURCHASE FOR Unless a registration statement under the
INVESTMENT Securities Act covers the shares of Common
AND OTHER Stock an optionee receives upon exercising
RESTRICTIONS his Option, the Administrator may require,
at the time of such exercise, that the
optionee agree in writing to acquire such
shares for investment and not for public
resale or distribution, unless and until the
shares subject to the Option are registered
under the Securities Act. Unless the shares
are registered under the Securities Act, the
optionee must acknowledge:
that the shares purchased on
exercise of the Option are not so
registered,
that the optionee may not sell or
otherwise transfer the shares unless
such sale or transfer complies
with all applicable laws,
rules, and regulations,
including all applicable
Federal and state securities
laws, rules, and regulations,
and either
the shares have been
registered under the
Securities Act in
connection with the sale
or transfer thereof, or
counsel satisfactory to
the Company has issued
an opinion satisfactory
to the Company that the
sale or other transfer
of such shares is exempt
from registration under
the Securities Act.
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 16 of 20
<PAGE>
Additionally, the Common Stock, when issued
upon the exercise of an Option, will be
subject to any other transfer restrictions,
rights of first refusal, rights of
repurchase, and voting agreements set forth
in or incorporated by reference into other
applicable documents, including the Option
Agreements, or the Company's articles or
certificate of incorporation, by-laws, or
generally applicable stockholders'
agreements.
The Administrator may, in its sole
discretion, take whatever additional actions
it deems appropriate to comply with such
restrictions and applicable laws, including
placing legends on certificates and issuing
stop- transfer orders to transfer agents and
registrars.
TAX WITHHOLDING The optionee must satisfy all applicable
Federal, state, and local income and
employment tax withholding requirements
before the Company will deliver stock
certificates or otherwise recognize
ownership upon the exercise of an Option.
The Company may decide to satisfy the
withholding obligations through additional
withholding on salary or wages. If the
Company does not or cannot withhold from
other compensation, the optionee must pay
the Company, with a cashier's check or
certified check, the full amounts, if any,
required for withholding. Payment of
withholding obligations is due before the
Company will issue any shares on exercise
or, if the Administrator so requires, at the
same time as is payment of the Exercise
Price. If the Administrator so determines,
the optionee may instead satisfy the
withholding obligations by directing the
Company to retain shares from the Option
exercise, by tendering previously owned
shares, or by attesting to his ownership of
shares (with the distribution of net
shares), or, after an IPO, by having a
broker tender to the Company cash equal to
the withholding taxes. Without any
requirement to seek an optionee's consent,
the Company may require the optionee to use
one or more specified brokerage firms to
exercise and to hold shares received from
Options until the later of two years after
exercise or one year after the Date of
Grant.
TRANSFERS, Unless the Administrator otherwise approves
ASSIGNMENTS, in advance in writing for estate planning
AND PLEDGES or other purposes, an Option may not be
assigned, pledged, or otherwise transferred
in any way, whether by operation of law or
otherwise or through any legal or equitable
proceedings (including bankruptcy), by the
optionee to any person, except by will
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 17 of 20
<PAGE>
or by operation of applicable laws of
descent and distribution. If necessary to
comply with Rule 16b-3, the optionee may not
transfer or pledge shares of Common Stock
acquired upon exercise of an Option until at
least six months have elapsed from (but
excluding) the Date of Grant, unless the
Administrator approves otherwise in advance
in writing. The Administrator may, in its
discretion, expressly provide that an
optionee may transfer his Option, without
receiving consideration, to (i) members of
his immediate family (children,
grandchildren, or spouse), (ii) trusts for
the benefit of such family members, or (iii)
partnerships whose only partners are such
family members.
AMENDMENT OR The Board may amend, suspend, or terminate
OF PLAN AND the Plan at any time, without the consent
TERMINATION of the optionees or their beneficiaries;
OPTIONS provided, however, that such
actions are consistent with this section.
Except as required by law or by the
SUBSTANTIAL CORPORATE CHANGE section, the
Administrator may not, without the
optionee's or beneficiary's consent, modify
the terms and conditions of an Option so as
to materially adversely affect the optionee.
No amendment, suspension, or termination of
the Plan will, without the optionee's or
beneficiary's consent, terminate or
materially adversely affect any right or
obligations under any outstanding Options,
except as provided in the SUBSTANTIAL
CORPORATE CHANGE Section.
PRIVILEGES OF No optionee and no beneficiary or other
STOCK person claiming under or through such
OWNERSHIP optionee will have any right, title, or
interest in or to any shares of Common Stock
allocated or reserved under the Plan or
subject to any Option except as to such
shares of Common Stock, if any, already
issued to such optionee.
EFFECT ON Whether exercising an Option causes the
OTHER PLANS optionee to accrue or receive additional
benefits under any pension or other plan is
governed solely by the termsof such other
plan.
LIMITATIONS ON Notwithstanding any other provisions of the
LIABILITY Plan, no individual acting as a director,
officer, other employee, or agent of the
Company will beliable to any optionee,
former optionee, spouse, beneficiary, or any
other person for any claim, loss, liability,
or expense incurred in connection with the
Plan, nor will such individual be personally
liable because of any contract or other
instrument he executes in such other
capacity. The Company will indemnify and
hold harmless each director, officer, other
employee, or
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 18 of 20
<PAGE>
agent of the Company to whom any duty or
power relating to the administration or
interpretation of the Plan has been or will
be delegated, against any cost or expense
(including attorneys' fees) or liability
(including any sum paid in settlement of a
claim with the Board's approval) arising out
of any act or omission to act concerning
this Plan unless arising out of such
person's own fraud or bad faith.
NO EMPLOYMENT Nothing contained in this Plan constitutes
CONTRACT an employment contract between the Company
and the optionees. The Plan does not give
any optionee any right to be retained in the
Company's employ, nor does it enlarge or
diminish the Company's right to end the
optionee's employment or other relationship
with the Company.
APPLICABLE LAW The laws of the State of Delaware (other
than its choice of law provisions) govern
this Plan and its interpretation.
DURATION OF Unless the Board extends the Plan's term,
PLAN the Administrator may not grant Options
after [date of Board approval], 2010. The
Plan will then terminate but will continue
to govern unexercised and unexpired Options.
APPROVAL OF The Plan must be submitted to Company stock-
THE PLAN holders for their approval within 12 months
before or after the Board adopts the Plan to
qualify any Options designated as ISOs for
treatment as such. If the stockholders do
not so approve the Plan, the Plan and any
outstanding ISOs will be treated as void and
of no effect.
--------------------------------------------------------------------------------
RDA Corporation
2000 Equity Incentive Plan
Page 19 of 20
|
|