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Exhibit 10.70
HOSTPRO, INC.
2000 EQUITY INCENTIVE PLAN I
1. PURPOSE. The purpose of this Plan is to provide incentives to attract,
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retain and motivate eligible persons whose present and potential contributions
are important to the success of the Company, its Parent and Subsidiaries, by
offering them an opportunity to participate in the Company's future performance
through awards of Options, Restricted Stock and Stock Appreciation Rights.
Capitalized terms not defined in the text are defined in Section 22 hereof.
2. SHARES SUBJECT TO THE PLAN.
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2.1 Number of Shares Available. Subject to Sections 2.2 and 17
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hereof, the total number of Shares reserved and available for grant and issuance
pursuant to this Plan will be 4,000,000 Shares. Subject to Sections 2.2, 5.10
and 17 hereof, Shares subject to Awards previously granted will again be
available for grant and issuance in connection with future Awards under this
Plan to the extent such Shares: (i) cease to be subject to issuance upon
exercise of an Option, other than due to exercise of such Option; (ii) are
subject to an Award granted hereunder but the Shares subject to such Award are
forfeited or repurchased by the Company at the original issue price; or (iii)
are subject to an Award that otherwise terminates without Shares being issued.
At all times the Company will reserve and keep available a sufficient number of
Shares as will be required to satisfy the requirements of all Awards granted and
outstanding under this Plan.
2.2 Adjustment of Shares. In the event that the number of
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outstanding shares of the Company's Common Stock is changed by a stock dividend,
recapitalization, stock split, reverse stock split, subdivision, combination,
reclassification or similar change in the capital structure of the Company
without consideration, then (i) the number of Shares reserved for issuance under
this Plan, (ii) the Exercise Prices of and number of Shares subject to
outstanding Options and (iii) the Purchase Prices of and number of Shares
subject to other outstanding Awards will be proportionately adjusted, subject to
any required action by the Board or the stockholders of the Company and
compliance with applicable securities laws; provided, however, that fractions of
a Share will not be issued but will either be paid in cash at the Fair Market
Value of such fraction of a Share or will be rounded down to the nearest whole
Share, as determined by the Committee; and provided, further, that the Exercise
Price of any Option may not be decreased to below the par value of the Shares.
3. ELIGIBILITY. ISOs (as defined in Section 5 hereof) may be granted only
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to employees (including officers and directors who are also employees) of the
Company or of a Parent or Subsidiary of the Company. NQSOs (as defined in
Section 5 hereof), Restricted Stock Awards and Stock Appreciation Rights may be
granted to employees, officers, directors and
2000 Equity Incentive Plan I
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consultants of the Company or any Parent or Subsidiary of the Company; provided
such consultants render bona fide services not in connection with the offer and
sale of securities in a capital-raising transaction. A person may be granted
more than one Award under this Plan. No person will be eligible to receive more
than 2,000,000 Shares in any calendar year under this Plan pursuant to the grant
of Awards hereunder, other than new employees of the Company or of a Parent or
Subsidiary of the Company (including new employees who are also officers and
directors of the Company or any Parent or Subsidiary of the Company), who are
eligible to receive up to a maximum of 4,000,000 Shares in the calendar year in
which they commence their employment.
4. ADMINISTRATION.
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4.1 Committee Authority. This Plan will be administered by the
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Committee or the Board if no Committee is created by the Board or to the extent
required by the Code, by the Board of the Parent. Subject to the general
purposes, terms and conditions of this Plan, and to the direction of the Board,
the Committee will have full power to implement and carry out this Plan. Without
limitation, the Committee will have the authority to:
(a) construe and interpret this Plan, any Notice of Grant and any
other agreement or document executed pursuant to this Plan;
(b) prescribe, amend and rescind rules and regulations relating to
this Plan;
(c) approve persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration subject to
Awards;
(f) determine whether Awards will be granted singly, in combination
with, in tandem with, in replacement of, or as alternatives to,
other Awards under this Plan or awards under any other incentive
or compensation plan of the Company or any Parent or Subsidiary
of the Company;
(g) grant waivers of any conditions of this Plan or any Award;
(h) determine the terms of vesting, exercisability and payment of
Awards;
(i) extend the vesting period or exercise period beyond a
Participant's Termination Date;
(j) accelerate the vesting or exercisability of any Award, including
but not limited to acceleration following a Corporate
Transaction, Change in Control of Micron Electronics or Spinoff
or the sale of substantially all of the assets of Micron
Electronics;
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(k) correct any defect, supply any omission, or reconcile any
inconsistency in this Plan, any Award, any Notice of Grant, any
Exercise Agreement, any Restricted Stock Purchase Agreement or
any Stock Appreciation Rights Agreement;
(l) determine whether an Award has been earned; and
(m) make all other determinations necessary or advisable for the
administration of this Plan.
4.2 Committee Discretion. Unless in contravention of any express
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terms of this Plan or Award, any determination made by the Committee with
respect to any Award will be made in its sole discretion either (i) at the time
of grant of the Award, or (ii) subject to Section 5.9 hereof, at any later time.
Any such determination will be final and binding on the Company and on all
persons having an interest in any Award under this Plan. The Committee may
delegate to one or more officers of the Company the authority to grant an Award
under this Plan, provided such officer or officers are members of the Board.
5. OPTIONS. The Committee may grant Options to eligible persons described
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in Section 3 hereof and will determine whether such Options will be Incentive
Stock Options within the meaning of the Code ("ISOs") or Nonqualified Stock
Options ("NQSOs"), the number of Shares subject to the Option, the Exercise
Price of the Option, the period during which the Option may be exercised, and
all other terms and conditions of the Option, subject to the following:
5.1 Form of Option Grant. Each Option granted under this Plan will
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be evidenced by a Notice of Grant which will expressly identify the Option as an
ISO or an NQSO ("Notice of Grant"), and will be in such form and contain such
provisions (which need not be the same for each Participant) as the Committee
may from time to time approve, and which will comply with and be subject to the
terms and conditions of this Plan.
5.2 Date of Grant. The date of grant of an Option will be the date
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on which the Committee makes the determination to grant such Option, unless a
later date is otherwise specified by the Committee. The Notice of Grant and a
copy of this Plan will be delivered to the Participant within a reasonable time
after the granting of the Option.
5.3 Exercise Period. Options may be exercisable immediately but
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subject to repurchase pursuant to Section 11 hereof or may be exercisable within
the times or upon the events determined by the Committee as set forth in the
Notice of Grant governing such Option; provided, however, that no Option will be
exercisable after the expiration of ten (10) years from the date the Option is
granted; and provided further that no ISO granted to a person who directly or by
attribution owns more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of any Parent or Subsidiary of the
Company ("Ten Percent Shareholder") will be exercisable after the expiration of
five (5) years from the date the ISO is granted. The Committee also may provide
for Options to become exercisable at one time or from time to time, periodically
or otherwise, in such number of Shares or percentage of Shares as
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the Committee determines. Subject to earlier termination of the Option as
provided herein, no Option may be exercised prior to the earlier of (i) issue to
the public of shares of Common Stock pursuant to a Form S-1 Registration
Statement under the Securities Act of 1933, as amended ("IPO") or (ii) five (5)
years from the date such Option is granted; provided that any Option granted to
a resident of California who is not an officer or director of the Company shall
become exercisable at the rate of no less than twenty percent (20%) per year
over five (5) years from the date such Option is granted.
5.4 Exercise Price. The Exercise Price of an Option will be
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determined by the Committee when the Option is granted and may have an Exercise
Price that is less than Fair Market Value (but more than par value) on the date
of grant; provided that (i) the Exercise Price of an ISO will not be less than
one hundred percent (100%) of the Fair Market Value of the Shares on the date of
grant and (ii) the Exercise Price of any Option granted to a Ten Percent
Shareholder will not be less than one hundred ten percent (110%) of such Fair
Market Value; and provided further that any Option granted to a resident of
California may not have an Exercise Price that is less than eighty-five percent
(85%) of such Fair Market Value unless such person is an officer or director.
Payment for the Shares purchased must be made in accordance with Section 7
hereof.
5.5 Method of Exercise. Options may be exercised only by delivery to
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the Company of a written stock option exercise agreement (the "Exercise
Agreement") in a form approved by the Committee (which need not be the same for
each Participant). The Exercise Agreement will state (i) the number of Shares
being purchased, (ii) the restrictions imposed on the Shares purchased under
such Exercise Agreement, if any, and (iii) such representations and agreements
regarding Participant's investment intent and access to information and other
matters, if any, as may be required or desirable by the Company to comply with
applicable securities laws. Participant shall execute and deliver to the
Company the Exercise Agreement together with payment in full of the Exercise
Price, and any applicable taxes, for the number of Shares being purchased.
5.6 Termination. Subject to earlier termination pursuant to Sections
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17 and 18 hereof and notwithstanding the exercise periods set forth in the
Notice of Grant, exercise of an Option will always be subject to the following:
(a) If the Participant is Terminated for any reason other than death,
Disability or for Cause, then the Participant may exercise such
Participant's Options only to the extent that such Options are
exercisable upon the Termination Date or as otherwise determined
by the Committee. Such Options must be exercised by the
Participant, if at all, as to all or some of the Vested Shares
calculated as of the Termination Date or such other date
determined by the Committee, within thirty (30) days after the
Termination Date (or within such longer time period, not
exceeding five (5) years, after the Termination Date as may be
determined by the Committee, with any exercise beyond three (3)
months after the Termination Date deemed to be
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an NQSO) but in any event, no later than the expiration date of
the Options.
(b) If the Participant is Terminated because of Participant's death
or Disability (or the Participant dies within thirty (30) days
after a Termination other than for Cause), then Participant's
Options may be exercised only to the extent that such Options are
exercisable by Participant on the Termination Date or as
otherwise determined by the Committee. Such options must be
exercised by Participant (or Participant's legal representative
or authorized assignee), if at all, as to all or some of the
Vested Shares calculated as of the Termination Date or such other
date determined by the Committee, within twelve (12) months after
the Termination Date (or within such shorter time period, not
less than six (6) months, or within such longer time period, not
exceeding five (5) years, after the Termination Date as may be
determined by the Committee, with any exercise beyond (i) three
(3) months after the Termination Date when the Termination is for
any reason other than the Participant's death or disability,
within the meaning of Section 22(e)(3) of the Code, or (ii)
twelve (12) months after the Termination Date when the
Termination is for Participant's disability, within the meaning
of Section 22(e)(3) of the Code, deemed to be an NQSO) but in any
event no later than the expiration date of the Options.
(c) If the Participant is terminated for Cause, then Participant's
Options shall expire on such Participant's Termination Date, or
at such later time and on such conditions as are determined by
the Committee.
(d) Notwithstanding anything in this Section 5.6 to the contrary, if
a Participant is employed by Micron Electronics immediately
preceding a Spinoff or if a Participant's Options accelerate
pursuant to Section 17.1 hereof, then such Options may be
exercised within one year following such Spinoff or acceleration.
5.7 Limitations on Exercise. The Committee may specify a reasonable
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minimum number of Shares that may be purchased on any exercise of an Option,
provided that such minimum number will not prevent Participant from exercising
the Option for the full number of Shares for which it is then exercisable.
5.8 Limitations on ISOs. The aggregate Fair Market Value (determined
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as of the date of grant) of Shares with respect to which ISOs are exercisable
for the first time by a Participant during any calendar year (under this Plan or
under any other incentive stock option plan of the Company or any Parent or
Subsidiary of the Company) will not exceed One Hundred Thousand Dollars
($100,000). If the Fair Market Value of Shares on the date of grant with
respect to which ISOs are exercisable for the first time by a Participant during
any calendar year exceeds One Hundred Thousand Dollars ($100,000), then the
Options for the first One Hundred Thousand Dollars ($100,000) worth of Shares to
become exercisable in such calendar year will
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be ISOs and the Options for the amount in excess of One Hundred Thousand Dollars
($100,000) that become exercisable in that calendar year will be NQSOs. In the
event that the Code or the regulations promulgated thereunder are amended after
the Effective Date (as defined in Section 18 hereof) to provide for a different
limit on the Fair Market Value of Shares permitted to be subject to ISOs, then
such different limit will be automatically incorporated herein and will apply to
any Options granted after the effective date of such amendment.
5.9 Modification, Extension or Renewal. The Committee may modify,
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extend or renew outstanding Options and authorize the grant of new Options in
substitution therefor, provided that any such action may not, without the
written consent of a Participant, impair any of such Participant's rights under
any Option previously granted. Any outstanding ISO that is modified, extended,
renewed or otherwise altered will be treated in accordance with Section 424(h)
of the Code. Subject to Section 5.10 hereof, the Committee may reduce the
Exercise Price of outstanding Options without the consent of Participants by a
written notice to them; provided, however, that the Exercise Price may not be
reduced below the minimum Exercise Price that would be permitted under Section
5.4 hereof for Options granted on the date the action is taken to reduce the
Exercise Price; provided, further, that the Exercise Price will not be reduced
below the par value of the Shares, if any.
5.10 No Disqualification. Notwithstanding any other provision in
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this Plan, no term of this Plan relating to ISOs will be interpreted, amended or
altered, nor will any discretion or authority granted under this Plan be
exercised, so as to disqualify this Plan under Section 422 of the Code or,
without the consent of the Participant, to disqualify any Participant's ISO
under Section 422 of the Code. In no event shall the total number of Shares
issued (counting each reissuance of a Share that was previously issued and then
forfeited or repurchased by the Company as a separate issuance) under the Plan
upon exercise of ISOs exceed 20,000,000 Shares (adjusted in proportion to any
adjustments under Section 2.2. hereof) over the term of the Plan.
6. RESTRICTED STOCK AND STOCK APPRECIATION RIGHTS.
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6.1 Restricted Stock. A Restricted Stock Award is an offer by the
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Company to sell to an eligible person Shares that are subject to certain
specified restrictions. The Committee will determine to whom an offer will be
made, the number of Shares the person may purchase, the Purchase Price, the
restrictions to which the Shares will be subject, and all other terms and
conditions of the Restricted Stock Award, subject to the following:
(a) Form of Restricted Stock Award. All purchases under a Restricted
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Stock Award made pursuant to this Plan will be evidenced by a Notice of Grant
("Restricted Stock Purchase Agreement") that will be in such form (which need
not be the same for each Participant) as the Committee will from time to time
approve, and will comply with and be subject to the terms and conditions of this
Plan. The Restricted Stock Award will be accepted by the Participant's execution
and delivery of the Restricted Stock Purchase Agreement and full payment for the
Shares to the Company within thirty (30) days from the date the Restricted Stock
Purchase Agreement is delivered to the person. If such person does not execute
and deliver the Restricted Stock Purchase Agreement along with full payment for
the Shares to the Company
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within such thirty (30) days, then the offer will terminate, unless otherwise
determined by the Committee.
(b) Purchase Price. The Purchase Price of Shares sold pursuant
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to a Restricted Stock Award will be determined by the Committee and may be less
than the Fair Market Value of the Shares on the date the Restricted Stock Award
is granted or at the time the purchase is consummated, except in the case of a
sale to a Ten Percent Stockholder, in which case the Purchase Price will be one
hundred percent (100%) of such Fair Market Value or an individual who is a
resident of California, in which case the Purchase Price may not be less than
eighty-five percent (85%) of such Fair Market Value. Payment of the Purchase
Price must be made in accordance with Section 7 hereof.
(c) Restrictions. Restricted Stock Awards may be subject to the
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restrictions set forth in Section 11 hereof.
6.2 Stock Appreciation Rights. The Committee may, in its discretion,
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grant a right to receive the appreciation in the Fair Market Value of shares of
Common Stock ("Stock Appreciation Right") either singly or in combination with
an underlying Option granted hereunder. The Committee will determine to whom
Stock Appreciation Rights will be granted, the number of shares subject to such
Stock Appreciation Rights, the restrictions to which such Stock Appreciation
Rights will be subject and all other terms and conditions of the Stock
Appreciate Rights.
(a) Time and Period of Grant. If a Stock Appreciation Right is
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granted with respect to an underlying Option, it may be granted at the time of
the Option grant or at any time thereafter but prior to the expiration of such
Option. If a Stock Appreciation Right is granted with respect to an underlying
Option, at the time the Stock Appreciation Right is granted the Committee may
limit the exercise period for such Stock Appreciation Right, before and after
which period no Stock Appreciation Right shall attach to such underlying Option.
In no event shall the exercise period for a Stock Appreciation Right granted
with respect to an underlying Option exceed the exercise period for such Option.
If a Stock Appreciation Right is granted without an underlying Option, the
period for exercise of the Stock Appreciation Right shall be set by the
Committee.
(b) Value of Stock Appreciation Rights. If a Stock Appreciation
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Right is granted with respect to an underlying Option, the grantee will be
entitled to surrender the Option which is then exercisable and receive in
exchange therefore an amount equal to the excess of the Fair Market Value of the
Common Stock on the date the election to surrender is received by the Company
over the Option price multiplied by the number of shares covered by the Option
which are surrendered. If a Stock Appreciation Right is granted without an
underlying Option, the grantee will receive upon exercise of the Stock
Appreciation Right an amount equal to the excess of the Fair Market Value of the
Common Stock on the date the election to surrender such Stock Appreciation Right
is received by the Company over the Fair Market Value of the Common Stock on the
date of grant multiplied by the number of shares covered by the grant of the
Stock Appreciation Right.
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(c) Payment. Payment of a Stock Appreciation Right shall be in
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the form of cash.
7. PAYMENT FOR SHARE PURCHASES.
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7.1 Payment. Payment for Shares purchased pursuant to this Plan may
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be made in cash (by check) or, where expressly approved for the Participant by
the Committee and where permitted by law:
(a) by cancellation of indebtedness of the Company owed to the
Participant;
(b) by surrender of shares that: (i) either (A) have been owned by
Participant for more than six (6) months and have been paid for
within the meaning of SEC Rule 144 (and, if such shares were
purchased from the Company by use of a promissory note, such note
has been fully paid with respect to such shares) or (B) were
obtained by Participant in the public market and (ii) are clear
of all liens, claims, encumbrances or security interests;
(c) by tender of a full recourse promissory note having such terms as
may be approved by the Committee and bearing interest at a rate
sufficient to avoid imputation of income under Sections 483 and
1274 of the Code; provided, however, that Participants who are
not employees or directors of the Company will not be entitled to
purchase Shares with a promissory note unless the note is
adequately secured by collateral other than the Shares; provided,
further, that the portion of the Exercise Price or Purchase
Price, as the case may be, equal to the par value of the Shares
must be paid in cash or other legal consideration permitted by
Delaware General Corporation Law;
(d) by waiver of compensation due or accrued to the Participant from
the Company for services rendered;
(e) with respect only to purchases upon exercise of an Option, and
provided that a public market for the Company's stock exists:
(i) through a "same day sale" commitment from the Participant
and a broker-dealer that is a member of the National
Association of Securities Dealers (an "NASD Dealer") whereby
the Participant irrevocably elects to exercise the Option
and to sell a portion of the Shares so purchased sufficient
to pay the total Exercise Price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward
the total Exercise Price directly to the Company; or
(ii) through a "margin" commitment from the Participant and an
NASD Dealer whereby the Participant irrevocably elects to
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exercise the Option and to pledge the Shares so purchased to
the NASD Dealer in a margin account as security for a loan
from the NASD Dealer in the amount of the total Exercise
Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the total Exercise Price
directly to the Company; or
(f) by any combination of the foregoing.
7.2 Loan Guarantees. The Committee may, in its sole discretion,
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elect to assist the Participant in paying for Shares purchased under this Plan
by authorizing a guarantee by the Company of a third-party loan to the
Participant.
8. WITHHOLDING TAXES.
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8.1 Withholding Generally. Whenever Shares are to be issued in
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satisfaction of Awards granted under this Plan, the Company may require the
Participant to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. Whenever, under this Plan,
payments in satisfaction of Awards are to be made in cash by the Company, such
payment will be net of an amount sufficient to satisfy federal, state, and local
income and employment withholding tax requirements.
8.2 Stock Withholding. When, under applicable tax laws, a Participant
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incurs tax liability in connection with the exercise or vesting of any Award
that is subject to tax withholding and the Participant is obligated to pay the
Company the amount required to be withheld, the Committee may in its sole
discretion allow the Participant to satisfy the minimum withholding tax
obligation by electing to have the Company withhold from the Shares to be issued
that minimum number of Shares having a Fair Market Value equal to the minimum
amount required to be withheld, determined on the date that the amount of tax to
be withheld is to be determined; but in no event will the Company withhold
Shares if such withholding would result in adverse accounting consequences to
the Company. All elections by a Participant to have Shares withheld for this
purpose will be made in accordance with the requirements established by the
Committee for such elections and be in writing in a form acceptable to the
Committee.
9. PRIVILEGES OF STOCK OWNERSHIP.
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9.1 Voting and Dividends. No Participant will have any of the rights
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of a stockholder with respect to any Shares until the Shares are issued to the
Participant. After Shares are issued to the Participant, the Participant will
be a stockholder and have all the rights of a stockholder with respect to such
Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; provided, that if such
Shares are Restricted Stock, then any new, additional or different securities
the Participant may become entitled to receive with respect to such Shares by
virtue of a stock dividend, stock split or any other change in the corporate or
capital structure of the Company will be subject to the same
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restrictions as the Restricted Stock. The Participant will have no right to
retain such stock dividends or stock distributions with respect to Unvested
Shares that are repurchased pursuant to Section 11 hereof. The Company will
comply with any state blue sky regulations with respect to the voting rights of
Common Stock. In no event shall Stock Appreciation Rights have any right to vote
or receive dividends.
9.2 Financial Statements. The Company will provide financial
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statements to each Participant annually during the period such Participant has
Awards outstanding, or as otherwise required by state blue sky regulations.
Notwithstanding the foregoing, the Company will not be required to provide such
financial statements to Participants when issuance is limited to key employees
whose services in connection with the Company assure them access to equivalent
information.
10. TRANSFERABILITY.
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10.1 General Rule. Except as otherwise provided in this Section 10,
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Awards granted under this Plan, and any interest therein, will not be
transferable or assignable by Participant, and may not be made subject to
execution, attachment or similar process, otherwise than by will or by the laws
of descent and distribution or as determined by the Committee and set forth in
the Notice of Grant with respect to Awards that are not ISOs.
10.2 All Awards Other Than NQSO's. All Awards other than NQSO's shall
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be exercisable: (i) during the Participant's lifetime, only by (A) the
Participant, or (B) the Participant's guardian or legal representative; or (ii)
after Participant's death, by the legal representative of the Participant's
heirs or legatees.
10.3 NQSOs. Unless otherwise restricted by the Committee, an NQSO
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shall be exercisable: (i) during the Participant's lifetime only by (A) the
Participant, (B) the Participant's guardian or legal representative, (C) a
Family Member of the Participant who has acquired the NQSO by "permitted
transfer;" or (ii) after Participant's death, by the legal representative of the
Participant's heirs or legatees. "Permitted transfer" means, as authorized by
this Plan and the Committee in an NQSO, any transfer effected by the Participant
during the Participant's lifetime of an interest in such NQSO but only such
transfers which are by gift or domestic relations order. A permitted transfer
does not include any transfer for value and neither of the following are
transfers for value: (a) a transfer of under a domestic relations order in
settlement of marital property rights or (b) a transfer to an entity in which
more than fifty percent of the voting interests are owned by Family Members or
the Participant in exchange for an interest in that entity.
11. RESTRICTIONS ON SHARES.
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11.1 Right of First Refusal. At the discretion of the Committee, the
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Company may reserve to itself and/or its assignee(s) in the Notice of Grant a
right of first refusal to purchase all Shares that a Participant (or a
subsequent transferee) may propose to transfer to a third party; provided that
such right of first refusal terminates upon the Company's initial public
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offering of Common Stock pursuant to an effective registration statement filed
under the Securities Act.
11.2 Right of Repurchase. At the discretion of the Committee, the
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Company may reserve to itself and/or its assignee(s) in the Notice of Grant a
right to repurchase Unvested Shares held by a Participant for cash and/or
cancellation of purchase money indebtedness owed to the Company by the
Participant following such Participant's Termination at any time within the
later of ninety (90) days after the Participant's Termination Date and the date
the Participant purchases Shares under the Plan at the Participant's Exercise
Price or Purchase Price, as the case may be.
12. CERTIFICATES. All certificates for Shares or other securities
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delivered under this Plan will be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or advisable,
including restrictions under any applicable federal, state or foreign securities
law, or any rules, regulations and other requirements of the SEC or any stock
exchange or automated quotation system upon which the Shares may be listed or
quoted.
13. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a
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Participant's Shares set forth in Section 11 hereof, the Committee may require
the Participant to deposit all certificates representing Shares, together with
stock powers or other instruments of transfer approved by the Committee,
appropriately endorsed in blank, with the Company or an agent designated by the
Company to hold in escrow until such restrictions have lapsed or terminated. The
Committee may cause a legend or legends referencing such restrictions to be
placed on the certificates. Any Participant who is permitted to execute a
promissory note as partial or full consideration for the purchase of Shares
under this Plan will be required to pledge and deposit with the Company all or
part of the Shares so purchased as collateral to secure the payment of
Participant's obligation to the Company under the promissory note; provided,
however, that the Committee may require or accept other or additional forms of
collateral to secure the payment of such obligation and, in any event, the
Company will have full recourse against the Participant under the promissory
note notwithstanding any pledge of the Participant's Shares or other collateral.
In connection with any pledge of the Shares, Participant will be required to
execute and deliver a written pledge agreement in such form as the Committee
will from time to time approve.
14. EXCHANGE AND BUYOUT OF AWARDS. The Committee may, at any time or from
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time to time, authorize the Company, with the consent of the respective
Participants, to issue new Awards in exchange for the surrender and cancellation
of any or all outstanding Awards. The Committee may at any time buy from a
Participant an Award previously granted with payment in cash, shares of Common
Stock of the Company (including Restricted Stock) or other consideration, based
on such terms and conditions as the Committee and the Participant may agree.
15. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award will not be
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effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of
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any stock exchange or automated quotation system upon which the Shares may then
be listed or quoted, as they are in effect on the date of grant of the Award and
also on the date of exercise or other issuance. Notwithstanding any other
provision in this Plan, the Company will have no obligation to issue or deliver
certificates for Shares under this Plan prior to (i) obtaining any approvals
from governmental agencies that the Company determines are necessary or
advisable, and/or (ii) compliance with any exemption, completion of any
registration or other qualification of such Shares under any state or federal
law or ruling of any governmental body that the Company determines to be
necessary or advisable. The Company will be under no obligation to register the
Shares with the SEC or to effect compliance with the exemption, registration,
qualification or listing requirements of any state securities laws, stock
exchange or automated quotation system, and the Company will have no liability
for any inability or failure to do so.
16. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Award granted
-----------------------
under this Plan will confer or be deemed to confer on any Participant any right
to continue in the employ of, or to continue any other relationship with, the
Company or any Parent or Subsidiary of the Company or limit in any way the right
of the Company or any Parent or Subsidiary of the Company to terminate
Participant's employment or other relationship at any time, with or without
Cause.
17. CORPORATE TRANSACTIONS.
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17.1 Assumption or Replacement of Awards by Successor. In the event
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of (i) a dissolution or liquidation of the Company, (ii) a merger or
consolidation in which the Company is not the surviving corporation (other than
a merger or consolidation with a wholly-owned subsidiary, a reincorporation of
the Company in a different jurisdiction, or other transaction in which there is
no substantial change in the stockholders of the Company or their relative stock
holdings and the Awards granted under this Plan are assumed, converted or
replaced by the successor corporation, which assumption will be binding on all
Participants), (iii) a merger in which the Company is the surviving corporation
but after which the stockholders of the Company immediately prior to such merger
(other than any stockholder that merges, or which owns or controls another
corporation that merges, with the Company in such merger) cease to own their
shares or other equity interest in the Company, or (iv) the sale of
substantially all of the assets of the Company (each, a "Corporate
Transaction"), any or all outstanding Awards may be assumed, converted or
replaced by the successor or acquiring corporation (if any), which assumption,
conversion or replacement will be binding on all Participants. In the
alternative, the successor or acquiring corporation may substitute equivalent
Awards or provide substantially similar consideration to Participants as was
provided to shareholders (after taking into account the existing provisions of
the Awards). The successor or acquiring corporation may also issue, in place of
outstanding unvested Shares of the Company held by the Participants,
substantially similar shares or other property subject to repurchase
restrictions no less favorable to the Participant.
In the event such successor or acquiring corporation (if any) refuses
to assume or substitute Awards, as provided above, pursuant to a Corporate
Transaction described in this Subsection 17.1, then notwithstanding any other
provision in this Plan to the contrary, the
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vesting of such Awards will accelerate and the Options will become exercisable
in full prior to the consummation of such event at such times and on such
conditions as the Committee determines, and if such Options are not exercised
prior to the consummation of the Corporate Transaction, they shall terminate in
accordance with the provisions of this Plan. Notwithstanding anything in this
Plan to the contrary, the Committee may, in its sole discretion, provide that
the vesting of any or all Awards granted pursuant to this Plan will accelerate
upon a Corporate Transaction described in this Section 17. If the Committee
exercises such discretion with respect to Options, such Options will become
exercisable in full prior to the consummation of such event at such time and on
such conditions as the Committee determines, and if such Options are not
exercised prior to the consummation of the Corporate Transaction, they shall
terminate at such time as determined by the Committee.
17.2 Other Treatment of Awards. Subject to any greater rights
-------------------------
granted to Participants under the foregoing provisions of this Section 17, in
the event of the occurrence of any transaction described in Section 17.1 hereof,
any outstanding Awards will be treated as provided in the applicable agreement
or plan of merger, consolidation, dissolution, liquidation or sale of assets.
17.3 Assumption of Awards by the Company. The Company, from time to
-----------------------------------
time, also may substitute or assume outstanding awards granted by another
company, whether in connection with an acquisition of such other company or
otherwise, by either (i) granting an Award under this Plan in substitution of
such other company's award or (ii) assuming such award as if it had been granted
under this Plan if the terms of such assumed award could be applied to an Award
granted under this Plan. Such substitution or assumption will be permissible if
the holder of the substituted or assumed award would have been eligible to be
granted an Award under this Plan if the other company had applied the rules of
this Plan to such grant. In the event the Company assumes an award granted by
another company, the terms and conditions of such award will remain unchanged
(except that the exercise price and the number and nature of shares issuable
upon exercise of any such option will be adjusted appropriately pursuant to
Section 424(a) of the Code). In the event the Company elects to grant a new
Option rather than assuming an existing option, such new Option may be granted
with a similarly adjusted Exercise Price.
18. ADOPTION AND STOCKHOLDER APPROVAL. This Plan will become effective on
---------------------------------
the date that it is adopted by the Board (the "Effective Date"). This Plan will
be approved by the stockholders of the Company (excluding Shares issued pursuant
to this Plan), consistent with applicable laws, within twelve (12) months before
or after the Effective Date. Upon the Effective Date, the Board may grant
Awards pursuant to this Plan; provided, however, that: (i) no Option may be
exercised prior to initial stockholder approval of this Plan; (ii) no Option
granted pursuant to an increase in the number of Shares approved by the Board
shall be exercised prior to the time such increase has been approved by the
stockholders of the Company; (iii) in the event that initial stockholder
approval is not obtained within the time period provided herein, all Awards
granted hereunder shall be canceled, any Shares issued pursuant to any Award
shall be canceled and any purchase of Shares issued hereunder shall be
rescinded; and (iv) Awards granted pursuant to an increase in the number of
Shares approved by the Board which
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increase is not timely approved by stockholders shall be canceled, any Shares
issued pursuant to any such Awards shall be canceled, and any purchase of Shares
subject to any such Award shall be rescinded.
19. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated as provided
--------------------------
herein, this Plan will terminate ten (10) years from the Effective Date or, if
earlier, the date of stockholder approval. This Plan and all agreements
hereunder shall be governed by and construed in accordance with the laws of the
State of Delaware.
20. AMENDMENT OR TERMINATION OF PLAN. Subject to Section 5.9 hereof, the
---------------------------------
Board may at any time terminate or amend this Plan in any respect, including
without limitation amendment of any form of Notice of Grant or instrument to be
executed pursuant to this Plan; provided, however, that the Board will not,
without the approval of the stockholders of the Company, amend this Plan in any
manner that requires such stockholder approval pursuant to the Code or the
regulations promulgated thereunder as such provisions apply to ISO plans.
21. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this Plan by the
--------------------------
Board, the submission of this Plan to the stockholders of the Company for
approval, nor any provision of this Plan will be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and other equity awards otherwise than under this
Plan, and such arrangements may be either generally applicable or applicable
only in specific cases.
22. DEFINITIONS. As used in this Plan, the following terms will have the
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following meanings:
"Award" means any award under this Plan, including any Option,
Restricted Stock Award or Stock Appreciation Rights.
"Board" means the Board of Directors of the Company.
"Cause" means Termination because of (i) any willful, material
violation by the Participant of any law or regulation applicable to the business
of the Company or a Parent or Subsidiary of the Company, the Participant's
conviction for, or guilty plea to, a felony or a crime involving moral
turpitude, or any willful perpetration by the Participant of a common law fraud,
(ii) the Participant's commission of an act of personal dishonesty which
involves personal profit in connection with the Company or any other entity
having a business relationship with the Company, (iii) any material breach by
the Participant of any provision of any agreement or understanding between the
Company or any Parent or Subsidiary of the Company and the Participant regarding
the terms of the Participant's service as an employee, officer, director or
consultant to the Company or a Parent or Subsidiary of the Company, including
without limitation, the willful and continued failure or refusal of the
Participant to perform the material duties required of such Participant as an
employee, officer, director or consultant of the Company or a Parent or
Subsidiary of the Company, other than as a result of having a Disability, or a
breach of any applicable invention assignment and confidentiality agreement or
similar agreement between the Company or a Parent or Subsidiary of the Company
and the Participant,
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(iv) Participant's disregard of the policies of the Company or any Parent or
Subsidiary of the Company so as to cause loss, damage or injury to the property,
reputation or employees of the Company or a Parent or Subsidiary of the Company,
or (v) any other misconduct by the Participant which is materially injurious to
the financial condition or business reputation of, or is otherwise materially
injurious to, the Company or a Parent or Subsidiary of the Company.
"Change in Control of Micron Electronics" means the acquisition by any
person or entity of securities of Micron Electronics where Micron Electronics is
the Parent of the Company, and where such person or entity, directly, indirectly
or beneficially, acting alone or in concert, (i) owns or controls more of the
combined voting power of all classes of voting securities of Micron Electronics
than does Micron Technology and (ii) owns or controls more than twenty percent
(20%) of the combined voting power of all classes of voting securities of Micron
Electronics.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee created and appointed by the Board to
administer this Plan, or if no committee is created and appointed, the Board.
"Company" means HostPro, Inc., or any successor corporation.
"Disability" means a disability, whether temporary or permanent,
partial or total, as determined by the Committee.
"Exercise Price" means the price at which a holder of an Option may
purchase the Shares issuable upon exercise of the Option.
"Fair Market Value" means, as of any date, the value of a share of the
Company's Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq National
Market, its closing price on the Nasdaq National Market on the
date of determination as reported in The Wall Street Journal;
-----------------------
(b) if such Common Stock is publicly traded and is then listed on a
national securities exchange, its closing price on the date of
determination on the principal national securities exchange on
which the Common Stock is listed or admitted to trading as
reported in The Wall Street Journal;
-----------------------
(c) if such Common Stock is publicly traded but is not quoted on the
Nasdaq National Market nor listed or admitted to trading on a
national securities exchange, the average of the closing bid and
asked prices on the date of determination as reported by The Wall
--------
Street Journal (or, if not so reported, as otherwise reported by
--------------
any newspaper or other source as the Board may determine); or
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(d) if none of the foregoing is applicable, by the Committee in good
faith.
"Family Member" includes any of the following:
(a) child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law of the Participant, including any such person with
such relationship to the Participant by adoption;
(b) any person (other than a tenant or employee) sharing the
Participant's household;
(c) a trust in which the persons in (a) and (b) have more than fifty
percent of the beneficial interest;
(d) a foundation in which the persons in (a) and (b) or the
Participant control the management of assets; or
(e) any other entity in which the persons in (a) and (b) or the
Participant own more than fifty percent of the voting interest.
"Micron Electronics" means Micron Electronics, Inc. and any Subsidiary
of Micron Electronics, Inc. other than the Company or a Subsidiary of the
Company.
"Micron Technology" means Micron Technology, Inc. and any Subsidiary
of Micron Technology, Inc. other than the Company or any Subsidiary of the
Company, but only for so long as Micron Technology, Inc. owns fifty percent
(50%) or more of the total combined voting power of Micron Electronics and
Micron Electronics is the Parent of the Company.
"Notice of Grant" means, with respect to each Award, the written
agreement between the Company and the Participant setting forth the terms and
conditions of the Award, including the Restricted Stock Purchase Agreement or
Stock Appreciation Rights Agreement.
"Option" means an award of an option to purchase Shares pursuant to
Section 5 hereof.
"Parent" means any corporation (other than Micron Technology) in an
unbroken chain of corporations ending with the employer corporation if each of
such corporations other than the last corporation in the unbroken chain owns
stock representing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
"Participant" means a person who receives an Award under this Plan.
"Plan" means this HostPro, Inc. 2000 Equity Incentive Plan I, as
amended from time to time.
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"Purchase Price" means the price at which a Participant may purchase
Restricted Stock.
"Restricted Stock" means Shares purchased pursuant to a Restricted
Stock Award.
"Restricted Stock Award" means an award of Shares pursuant to Section
6 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of the Company's Common Stock, .01 par value,
reserved for issuance under this Plan, as adjusted pursuant to Sections 2 and 17
hereof, and any successor security.
"Spinoff" means (i) a tax-free spinoff of the Company as defined in
Section 355 of the Code or (ii) a distribution or dividend by the Parent to its
shareholders of all or substantially all of the Shares.
"Stock Appreciation Rights" means an award of Shares pursuant to
Section 6 hereof.
"Subsidiary" means any corporation (other than the employer
corporation) in an unbroken chain of corporations beginning with the employer
corporation if each of the corporations other than the last corporation in the
unbroken chain owns stock representing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
"Termination" or "Terminated" means, for purposes of this Plan with
respect to a Participant, that the Participant has for any reason ceased to
provide services as an employee, officer, director or consultant to the Company,
or any Subsidiary or Parent of the Company or Micron Technology. A Participant
will not be deemed to have ceased to provide services in the case of (i) sick
leave, (ii) military leave, or (iii) any other leave of absence approved by the
Committee, provided that such leave is for a period of not more than ninety (90)
days (a) unless reinstatement (or, in the case of an employee with an ISO,
reemployment) upon the expiration of such leave is guaranteed by contract or
statute, or (b) unless provided otherwise pursuant to formal policy adopted from
time to time by the Company's Board and issued and promulgated in writing. In
the case of any Participant on (i) sick leave, (ii) military leave or (iii) an
approved leave of absence, the Committee may make such provisions respecting
suspension of vesting of the Award while on leave from the Company or any Parent
or Subsidiary of the Company as it may deem appropriate, except that in no event
may an Option be exercised after the expiration of the term set forth in the
Notice of Grant. The Committee will have sole discretion to determine whether a
Participant has ceased to provide services and the effective date on which the
Participant ceased to provide services (the "Termination Date").
"Unvested Shares" means "Unvested Shares" as defined in the Notice of
Grant.
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"Vested Shares" means "Vested Shares" as defined in the Notice of
Grant.
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