MAY 2000
SWWT, INC.
2000 STOCK INCENTIVE PLAN
SECTION 1. PURPOSE OF PLAN
The name of this plan is the SWWT, Inc. 2000 Stock Incentive
Plan (the "Plan"). The Plan was adopted by the Board (as hereinafter
defined) on May 9, 2000 and approved by the stockholders of the Company (as
hereinafter defined) on June 16, 2000. The purpose of the Plan is to
provide additional incentive to those officers, employees, nonemployee
directors and consultants of the Company and its Subsidiaries (as
hereinafter defined) whose contributions are essential to the growth and
success of the Company's business, in order to strengthen the commitment of
such persons to the Company and its Subsidiaries, motivate such persons to
faithfully and diligently perform their responsibilities and attract and
retain competent and dedicated persons whose efforts will result in the
long-term growth and profitability of the Company. To accomplish such
purposes, the Plan provides that the Company may grant Incentive Stock
Options, Nonqualified Stock Options, Restricted Stock and Restricted Stock
Units and Other Awards (each as hereinafter defined). The Plan is intended,
to the extent applicable, to satisfy the requirements of section 162(m) of
the Code (as hereinafter defined) and shall be interpreted in a manner
consistent with the requirements thereof.
SECTION 2. DEFINITIONS.
For purposes of the Plan, the following terms shall be defined
as set forth below:
(a) "Administrator" means the Board, or if and to the extent
the Board does not administer the Plan, the Committee in accordance with
Section 3 hereof.
(b) "Award" means an award of Incentive Stock Options, Nonqualified
Stock Options, Restricted Stock, Restricted Stock Units or Other Awards under
the Plan.
(c) "Award Agreement" means, with respect to each Award, the
written agreement between the Company and the Participant setting forth the
terms and conditions of the Award.
(d) "Board" means the Board of Directors of the Company.
(e) "Cause" means (1) the continued failure by the Participant
substantially to perform his or her duties and obligations to the Company,
including without limitation repeated refusal to follow the reasonable
directions of the employer, knowing violation of law in the course of
performance of the duties of Participant's employment with the Company,
repeated absences from work without a reasonable excuse, and intoxication
with alcohol or illegal drugs while on the Company's premises during
regular business hours (other than any such failure resulting from his or
her incapacity due to physical or mental illness); (2) fraud or material
dishonesty against the Company; (3) a conviction or plea of guilty or nolo
contendre for the commission of a felony or a crime involving material
dishonesty; or (4) the failure to meet reasonable, preestablished
performance goals. Determination of Cause shall be made by the
Administrator in its sole discretion.
(f) "Change in Capitalization" means any increase, reduction,
or change or exchange of Shares for a different number or kind of shares or
other securities or property by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, issuance of
warrants or rights, stock dividend, stock split or reverse stock split,
combination or exchange of shares, repurchase of shares, change in
corporate structure or otherwise; or any other corporate action, such as
declaration of a special dividend, that affects the capitalization of the
Company.
(g) "Change in Control" means the first to occur of any one of
the events set forth in the following paragraphs:
(i) any Person (other than one or more Excluded Persons) is
or becomes the "Beneficial Owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company (not including in the
securities Beneficially Owned by such Person any
securities acquired directly from the Company)
representing 30% or more of the Company's then
outstanding securities, excluding any Person who becomes
such a Beneficial Owner in connection with a transaction
described in clause (A) of paragraph (iii) hereof; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then
serving: individuals who, on August 31, 2000, constitute
the Board of Directors and any new director (other than a
director whose initial assumption of office is in
connection with an actual or threatened election contest,
including but not limited to a consent solicitation,
relating to the election of directors of the Company)
whose appointment or election by the Board of Directors
or nomination for election by the Company's stockholders
was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office
who either were directors on August 31, 2000 or whose
appointment, election or nomination for election was
previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of the
Company with any other corporation other than (A) a
merger or consolidation which results in the directors of
the Company immediately prior to such merger or
consolidation continuing to constitute at least a
majority of the board of directors of the Company, the
surviving entity or any parent thereof, or (B) a merger
or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no
Person (other than one or more Excluded Persons) is or
becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the
securities Beneficially Owned by such Person any
securities acquired directly from the Company)
representing 30% or more of the combined voting power of
the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or
there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of
the Company's assets, other than a sale or disposition by
the Company of all or substantially all of the Company's
assets to an entity at least a majority of the board of
directors of which comprises individuals who were
directors of the Company immediately prior to such sale
or disposition.
(h) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor thereto.
(i) "Committee" means any committee or subcommittee the Board
may appoint to administer the Plan. If at any time or to any extent the
Board shall not administer the Plan, then the functions of the
Administrator specified in the Plan shall be exercised by the Committee.
The composition of the Committee shall at all times consist solely of
persons who are (i) "Nonemployee Directors" as defined in Rule 16b-3 issued
under the Exchange Act, and (ii) unless otherwise determined by the Board,
"outside directors" as defined in section 162(m) of the Code.
(j) "Common Stock" means the common stock, par value $.001 per
share, of the Company.
(k) "Company" means SWWT, Inc., a Delaware corporation (or any
successor corporation).
(l) "Disability" means (1) any physical or mental condition
that would qualify a Participant for a disability benefit under any
long-term disability plan maintained by the Company; (2) when used in
connection with the exercise of an Incentive Stock Option following
termination of employment, disability within the meaning of section
22(e)(3) of the Code; or (3) such other condition as may be determined in
the sole discretion of the Administrator to constitute Disability.
(m) "Eligible Recipient" means an officer, director, employee,
consultant or advisor of the Company or of any Parent or Subsidiary.
(n) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(o) "Excluded Person" shall mean any stockholder of the Company
who is the Beneficial Owner of more than 5% of the Common Stock (including
Common Stock issuable upon the conversion or exercise of any other equity
security of the Company) as of the Effective Date and any of their
respective affiliates.
(p) "Exercise Price" means the per share price at which a
holder of an Option may purchase the Shares issuable upon exercise of the
Option.
(q) "Fair Market Value" as of a particular date shall mean the
fair market value of a share of Common Stock as determined by the
Administrator in its sole discretion; provided that (i) if the Common Stock
is admitted to trading on a national securities exchange, fair market value
of a share of Common Stock on any date shall be the closing sale price
reported for such share on such exchange on the last day preceding such
date on which a sale was reported, (ii) if the Common Stock is admitted to
quotation on the National Association of Securities Dealers Automated
Quotation ("Nasdaq") System or other comparable quotation system and has
been designated as a National Market System ("NMS") security, fair market
value of a share of Common Stock on any date shall be the closing sale
price reported for such share on such system on the last date preceding
such date on which a sale was reported, or (iii) if the Common Stock is
admitted to quotation on the Nasdaq System but has not been designated as
an NMS security, fair market value of a share of Common Stock on any date
shall be the average of the highest bid and lowest asked prices of such
share on such system on the last date preceding such date on which both bid
and ask prices were reported.
(r) "Immediate Family" means any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law or
sister-in-law, including adoptive relationships of the Participant; trusts
for the benefit of such immediate family members; or partnerships in which
such immediate family members are the only partners.
(s) "Incentive Stock Option" shall mean an Option that is an
"incentive stock option" within the meaning of section 422 of the Code, or
any successor provision, and that is designated by the Committee as an
Incentive Stock Option.
(t) "Nonqualified Stock Option" means any Option that is not an
Incentive Stock Option, including any Option that provides (as of the time
such Option is granted) that it will not be treated as an Incentive Stock
Option.
(u) "Option" means an Incentive Stock Option, a Nonqualified
Stock Option, or either or both of them, as the context requires.
(v) "Other Award" means an Award granted pursuant to Section 13
hereof.
(w) "Parent" means any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company, if each of the
corporations in the chain (other than the Company) owns stock possessing
50% or more of the combined voting power of all classes of stock in one of
the other corporations in the chain.
(x) "Participant" means any Eligible Recipient selected by the
Administrator, pursuant to the Administrator's authority in Section 3
hereof, to receive grants of Options or awards of Restricted Stock,
Restricted Stock Units or Other Awards. A Participant who receives the
grant of an Option is sometimes referred to herein as "Optionee."
(y) "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(z) "Restricted Stock" means Shares subject to certain
restrictions granted pursuant to Section 7 hereof.
(aa) "Restricted Stock Units" means the right to receive in
cash or Shares the Fair Market Value of a Share of Company Stock granted
pursuant to Section 7 hereof.
(bb) "Shares" means shares of Common Stock and any successor
security.
(cc) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company,
if each of the corporations (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 one of the other corporations in
the chain.
SECTION 2. ADMINISTRATION.
(a) The Plan shall be administered by the Board or, at the
Board's sole discretion, by the Committee, which shall serve at the
pleasure of the Board. Pursuant to the terms of the Plan, the Administrator
shall have the power and authority, without limitation:
(i) to select those Eligible Recipients who shall be
Participants;
(ii) to determine whether and to what extent Options or
awards of Restricted Stock, Restricted Stock Units or Other Awards
are to be granted hereunder to Participants;
(iii) to determine the number of Shares to be covered by
each Award granted hereunder;
(iv) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of each Award granted hereunder;
(v) to determine the terms and conditions, not
inconsistent with the terms of the Plan, which shall govern all
written instruments evidencing Options or awards of Restricted Stock,
Restricted Stock Units or Other Awards granted hereunder;
(vi) to adopt, alter and repeal such administrative
rules, guidelines and practices governing the Plan as it shall from
time to time deem advisable; and
(vii) to interpret the terms and provisions of the Plan
and any Award issued under the Plan (and any Award Agreement relating
thereto), and to otherwise supervise the administration of the Plan.
(b) The Administrator may, in its absolute discretion, without
amendment to the Plan, (i) accelerate the date on which any Option granted
under the Plan becomes exercisable, waive or amend the operation of Plan
provisions respecting exercise after termination of employment or otherwise
adjust any of the terms of such Option, and (ii) accelerate the lapse of
restrictions, or waive any condition imposed hereunder, with respect to any
share of Restricted Stock or Restricted Stock Unit or otherwise adjust any
of the terms applicable to any such Award; provided that no action under
this Section 2(b) shall adversely affect any outstanding Award without the
consent of the holder thereof.
(c) All decisions made by the Administrator pursuant to the
provisions of the Plan shall be final, conclusive and binding on all
persons, including the Company and the Participants. No member of the Board
or the Committee, nor any officer or employee of the Company acting on
behalf of the Board or the Committee, shall be personally liable for any
action, determination, or interpretation taken or made in good faith with
respect to the Plan, and all members of the Board or the Committee and each
and any officer or employee of the Company acting on their behalf shall, to
the extent permitted by law, be fully indemnified and protected by the
Company in respect of any such action, determination or interpretation.
SECTION 3. SHARES RESERVED FOR ISSUANCE UNDER THE PLAN.
(a) The total number of shares of Common Stock reserved and
available for issuance under the Plan shall be 16,800,000 Shares. Such
Shares may consist, in whole or in part, of authorized and unissued Shares
or treasury shares.
(b) To the extent that (i) an Option expires or is otherwise
cancelled or terminated without being exercised, or (ii) any Shares subject
to any award of Restricted Stock, Restricted Stock Units or Other Awards
are forfeited, such Shares shall again be available for issuance in
connection with future Awards granted under the Plan. If any Shares have
been pledged as collateral for indebtedness incurred by a Participant in
connection with the exercise of an Option and such Shares are returned to
the Company in satisfaction of such indebtedness, such Shares shall again
be available for issuance in connection with future Awards granted under
the Plan.
(c) From and after the date that the Plan is intended to comply
with the requirements of Section 162(m) of the Code, the aggregate number
of Shares with respect to which Awards may be granted to any individual
Optionee during any fiscal year shall not exceed 8,300,000.
SECTION 4. EQUITABLE ADJUSTMENTS
(a) In the event of any Change in Capitalization, an equitable
substitution or proportionate adjustment shall be made in (i) the aggregate
number and/or kind of shares of common stock reserved for issuance under
the Plan, (ii) the kind, number and/or option price of shares of stock or
other property subject to outstanding Options granted under the Plan, and
(iii) the kind, number and/or purchase price of shares of stock or other
property subject to outstanding awards of Restricted Stock, Restricted
Stock Units and Other Awards granted under the Plan, in each case as may be
determined by the Administrator, in its sole discretion. Such other
equitable substitutions or adjustments shall be made as may be determined
by the Administrator, in its sole discretion. Without limiting the
generality of the foregoing, in connection with a Change in Capitalization,
the Administrator may provide, in its sole discretion, for the cancellation
of any outstanding Awards in exchange for payment in cash or other property
of the Fair Market Value of the Shares covered by such Awards reduced, in
the case of Options, by the exercised price thereof.
SECTION 5. ELIGIBILITY.
The Participants under the Plan shall be selected from time to
time by the Administrator, in its sole discretion, from among Eligible
Recipients. The Administrator shall have the authority to grant to any
Eligible Recipient Incentive Stock Options, Nonqualified Stock Options,
Restricted Stock, Restricted Stock Units or Other Awards, provided that
directors of the Company or any Parent or Subsidiary who are not also
employees of the Company or of any Parent or Subsidiary, and consultants or
advisors to the Company or to any Parent or Subsidiary may not be granted
Incentive Stock Options.
SECTION 6. OPTIONS.
(a) General. Options may be granted alone or in addition to
other Awards granted under the Plan. Any Option granted under the Plan
shall be evidenced by an Award Agreement in such form as the Administrator
may from time to time approve. The provisions of each Option need not be
the same with respect to each Participant. Participants who are granted
Options shall enter into an Award Agreement with the Company, in such form
as the Administrator shall determine, which Award Agreement shall set
forth, among other things, the Exercise Price of the Option, the term of
the Option and provisions regarding exercisability of the Option granted
thereunder. The Options granted under the Plan may be of two types: (i)
Incentive Stock Options and (ii) Nonqualified Stock Options. To the extent
that any Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Nonqualified Stock Option. More than one Option may
be granted to the same Participant and be outstanding concurrently
hereunder. Options granted under the Plan shall be subject to the terms and
conditions set forth in paragraphs (b)-(l) of this Section 6 and shall
contain such additional terms and conditions, not inconsistent with the
terms of the Plan, as the Administrator shall deem desirable.
(b) Exercise Price. The per share Exercise Price of Shares
purchasable under an Option shall be determined by the Administrator in its
sole discretion at the time of grant but shall not, in the case of
Incentive Stock Options, be less than 100% of the Fair Market Value per
Share on such date (110% of the Fair Market Value per Share on such date
if, on such date, the Eligible Recipient owns (or is deemed to own under
the Code) stock possessing more than ten percent (a "Ten Percent Owner") of
the total combined voting power of all classes of Common Stock).
(c) Option Term. The term of each Option shall be fixed by the
Administrator, but no Option shall be exercisable more than ten years after
the date such Option is granted. If, the Eligible Participant is a Ten
Percent Owner, an Incentive Stock Option may not be exercisable after the
expiration of five years from the date such Incentive Stock Option is
granted.
(d) Exercisability. Options shall be exercisable at such time
or times and subject to such terms and conditions, including the attainment
of preestablished corporate performance goals, as shall be determined by
the Administrator in the Award Agreement or after the time of grant,
provided that no action under this Section 6(d) following the time of grant
shall adversely affect any outstanding Option without the consent of the
holder thereof. The Administrator may also provide that any Option shall be
exercisable only in installments, and the Administrator may waive such
installment exercise provisions at any time, in whole or in part, based on
such factors as the Administrator may determine in its sole discretion.
(e) Early Exercise. The Administrator may provide at the time
of grant or any time thereafter, in its sole discretion, that any Option
shall be exercisable with respect to Shares that otherwise would not then
be exercisable, provided that, in connection with such exercise, the
Optionee enters into a form of Restricted Stock Award Agreement approved by
the Administrator.
(f) Method of Exercise. Options may be exercised in whole or in
part by giving written notice of exercise to the Company specifying the
number of Shares to be purchased, accompanied by payment in full of the
aggregate Exercise Price of the Shares so purchased in cash or its
equivalent, as determined by the Administrator. As determined by the
Administrator, in its sole discretion, payment in whole or in part may also
be made (i) by means of any cashless exercise procedure approved by the
Administrator, (ii) in the form of unrestricted Shares or Restricted Stock
already owned by the Optionee which, (x) in the case of unrestricted Shares
acquired upon exercise of an option, have been owned by the Optionee for
more than six months on the date of surrender, and (y) has a Fair Market
Value on the date of surrender equal to the aggregate option price of the
Shares as to which such Option shall be exercised, provided that, in the
case of an Incentive Stock Option, the right to make payment in the form of
already owned Shares or Restricted Stock may be authorized only at the time
of grant, (iii) loans pursuant to paragraph (i) of this Section 6, (iv) any
other form of consideration approved by the Administrator and permitted by
applicable law or (v) any combination of the foregoing. If payment of the
Exercise Price is made in whole or in part in the form of Restricted Stock,
the Shares received upon the exercise of such Option shall be restricted in
accordance with the original terms of the Restricted Stock award in
question, except that the Administrator may direct that such restrictions
shall apply only to that number of Shares equal to the number of Shares
surrendered upon the exercise of such Option.
(g) Rights as Stockholder. An Optionee shall have no rights to
dividends or any other rights of a stockholder with respect to the Shares
subject to the Option until the Optionee has given written notice of
exercise, has paid in full for such Shares, has satisfied the requirements
of Section 11 hereof and, if requested, has given the representation
described in paragraph (b) of Section 12 hereof.
(h) Loans. The Company or any Parent or Subsidiary may make
loans available to Optionees in connection with the exercise of outstanding
Options. Such loans shall (i) be evidenced by promissory notes entered into
by the Optionees in favor of the Company or any Parent or Subsidiary, (ii)
bear interest at the applicable federal interest rate or such other rate as
the Administrator shall determine, (iii) be subject to such other terms and
conditions, not inconsistent with the Plan, as the Administrator shall
determine, and (iv) be subject to Board approval (or to approval by the
Administrator to the extent the Board may delegate such authority). In no
event may the principal amount of any such loan exceed the aggregate
Exercise Price less the par value (if any) of the Shares covered by the
Option, or portion thereof, exercised by the holder. Unless the
Administrator determines otherwise, when a loan is made, Shares having an
aggregate Fair Market Value at least equal to the principal amount of the
loan shall be pledged by the Optionee to the Company as security for
payment of the unpaid balance of the loan, and such pledge shall be
evidenced by a pledge agreement, the terms of which shall be determined by
the Administrator, in its sole discretion; provided that each loan shall
comply with all applicable laws, regulations and rules of the Board of
Governors of the Federal Reserve System and any other governmental agency
having jurisdiction.
(i) Nontransferability of Options. The Optionee shall not be
permitted to sell, transfer, pledge or assign any Option other than by will
and the laws of descent and distribution and all Options shall be
exercisable during the Participant's lifetime only by the Participant, in
each case, except as set forth in the following two sentences. During an
Optionee's lifetime, the Administrator may, in its discretion, permit the
transfer, assignment or other encumbrance of an outstanding Option if such
Option is a Nonqualified Stock Option or an Incentive Stock Option that the
Administrator and the Participant intend to change to a Nonqualified Stock
Option. Subject to the approval of the Administrator and to any conditions
that the Administrator may prescribe, an Optionee may, upon providing
written notice to the Company, elect to transfer any or all Options
described in the preceding sentence (i) to members of his or her Immediate
Family, provided that no such transfer by any Participant may be made in
exchange for consideration, or (ii) by instrument to an inter vivos or
testamentary trust in which the Options are to be passed to beneficiaries
upon the death of the Participant.
(j) Termination of Employment or Service. If an Optionee's
employment with or service as a director, consultant or advisor to the
Company or to any Parent or Subsidiary terminates for any other reason than
Cause, (i) Options granted to such Participant, to the extent that they are
exercisable at the time of such termination, shall remain exercisable until
the date set forth in the Award Agreement, or such later date as is
otherwise determined by the Administrator, but in no event shall such
exercise period be less than 30 days after such termination (six months in
the case of termination by reason of death or Disability), on which date
they shall expire, and (ii) Options granted to such Optionee, to the extent
that they were not exercisable at the time of such termination, shall
expire on the date of such termination. Notwithstanding the foregoing, no
Option shall be exercisable after the expiration of its term. In the event
of the termination of an Optionee's employment for Cause, all outstanding
Options granted to such Participant shall expire on the date of such
termination.
(k) Acceleration of Exercise Date Upon Change in Control. Upon
the occurrence of a Change in Control, each Option granted under the Plan
and outstanding at such time shall become fully and immediately
exercisable.
(l) Limitation on Incentive Stock Options. To the extent that
the aggregate Fair Market Value of Shares with respect to which Incentive
Stock Options are exercisable for the first time by an Optionee during any
calendar year under the Plan and any other stock option plan of the Company
shall exceed $100,000, such Options shall be treated as Nonqualified Stock
Options. Such Fair Market Value shall be determined as of the date on which
each such Incentive Stock Option is granted.
SECTION 7. RESTRICTED STOCK AND RESTRICTED STOCK UNITS.
(a) General. Awards of Restricted Stock and Restricted Stock
Units may be issued either alone or in addition to other Awards granted
under the Plan and shall be evidenced by an Award Agreement. The
Administrator shall determine the Eligible Recipients to whom, and the time
or times at which, Awards of Restricted Stock and Restricted Stock Units
shall be made; the number of Shares and/or Units to be awarded; the price,
if any, to be paid by the Participant for the acquisition of Restricted
Stock; and the Restricted Period (as defined in Section 7(d)) applicable to
awards of Restricted Stock and Restricted Stock Units. The provisions of
the awards of Restricted Stock or Restricted Stock Units need not be the
same with respect to each Participant.
(b) Purchase Price. The price per Share, if any, that a
Recipient must pay for Shares purchasable under an award of Restricted
Stock shall be determined by the Administrator in its sole discretion at
the time of grant.
(c) Awards and Certificates. The prospective recipient of an
Award of Restricted Stock shall not have any rights with respect to any
such Award, unless and until such recipient has executed an Award Agreement
evidencing the Award and delivered a fully executed copy thereof to the
Company, within such period as the Administrator may specify after the
award date. Each Participant who is granted an award of Restricted Stock
shall be issued a stock certificate in respect of such shares of Restricted
Stock, which certificate shall be registered in the name of the Participant
and shall bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to any such Award; provided that the Company
may require that the stock certificates evidencing Restricted Stock granted
hereunder be held in the custody of the Company until the restrictions
thereon shall have lapsed, and that, as a condition of any award of
Restricted Stock, the Participant shall have delivered a stock power,
endorsed in blank, relating to the Shares covered by such Award.
(d) Nontransferability. The Awards of Restricted Stock and
Restricted Stock Units granted pursuant to this Section 7 shall be subject
to the restrictions on transferability set forth in this paragraph (d).
During such period as may be set by the Administrator in the Award
Agreement (the "Restricted Period"), the Participant shall not be permitted
to sell, transfer, pledge, hypothecate or assign shares of Restricted Stock
or Restricted Stock Units awarded under the Plan except by will or the laws
of descent and distribution; provided that the Administrator may, in its
sole discretion, provide for the lapse of such restrictions in installments
and may accelerate or waive such restrictions in whole or in part based on
such factors and such circumstances as the Administrator may determine in
its sole discretion. The Administrator may also impose such other
restrictions and conditions, including the achievement of preestablished
corporate performance goals, on awarded Restricted Stock and Restricted
Stock Units as it deems appropriate. In no event shall the Restricted
Period end with respect to a Restricted Stock Award or Restricted Stock
Unit Award prior to the satisfaction by the Participant of any liability
arising under Section 11 hereof. Any attempt to dispose of any Restricted
Shares in contravention of any such restrictions shall be null and void and
without effect.
(e) Rights as a Stockholder. Except as provided in Section
7(c), the Participant shall possess all incidents of ownership with respect
to Shares of Restricted Stock during the Restricted Period, including the
right to receive or reinvest dividends with respect to such Shares and to
vote such Shares. Certificates for unrestricted Shares shall be delivered
to the Participant promptly after, and only after, the Restricted Period
shall expire without forfeiture in respect of such awards of Restricted
Stock except as the Administrator, in its sole discretion, shall otherwise
determine. A Participant who is awarded Restricted Stock Units shall posses
no incidents of ownership with respect to the Units, provided that the
Award Agreement may provide for payments in lieu of dividends to such
Participant.
(f) Termination of Employment. The rights of Participants
granted Awards of Restricted Stock or Restricted Stock Units upon
termination of employment or service as a director, consultant or advisor
to the Company or to any Parent or Subsidiary for any reason during the
Restricted Period shall be set forth in the Award Agreement governing such
Awards. The purchase price for Shares repurchased pursuant to the Award
Agreement shall be no less than price paid by the Participant and may be
paid by cancellation of any indebtedness of the Participant to the Company.
The repurchase option shall lapse at a rate determined by the
Administrator.
(g) Early Exercise Options. The Administrator shall award
Restricted Stock to a Participant upon the Participant's early exercise of
an Option under Section 6(c) hereof. Unless otherwise determined by the
Administrator, the lapse of restrictions with respect to such Restricted
Stock shall occur on the same schedule as the Option for which the
Restricted Stock was exercised.
(h) Loans. In the sole discretion of the Administrator, loans
may be made to Participants in connection with the purchase of Restricted
Stock under substantially the same terms and conditions as provided in
Section 7(i) of the Plan with respect to the exercise of Options.
(i) Effect of Change in Control. Upon the occurrence of a
Change in Control, all outstanding Shares of Restricted Stock and all
Restricted Stock Units which have not theretofore vested shall immediately
vest and all restrictions on such Shares shall immediately lapse.
SECTION 8. OTHER AWARDS.
Other forms of Awards ("Other Awards") valued in whole or in part by
reference to, or otherwise based on, Common Stock may be granted either
alone or in addition to other Awards under the Plan. Subject to the
provisions of the Plan, the Administrator shall have sole and complete
authority to determine the persons to whom and the time or times at which
such Other Awards shall be granted, the number of Shares to be granted
pursuant to such Other Awards and all other conditions of such Other
Awards.
SECTION 9. AMENDMENT AND TERMINATION.
The Board may amend, alter or discontinue the Plan, but no
amendment, alteration, or discontinuation shall be made that would impair
the rights of a Participant under any Award theretofore granted without
such Participant's consent. Unless the Board determines otherwise, the
Board shall obtain approval of the Company's stockholders for any amendment
that would require such approval in order to satisfy the requirements of
section 162(m), section 422 of the Code, stock exchange rules or other
applicable law. The Administrator may amend the terms of any Award
theretofore granted, prospectively or retroactively, but, subject to
Section 4 of Plan, no such amendment shall impair the rights of any
Participant without his or her consent.
SECTION 10. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for
incentive compensation. With respect to any payments not yet made to a
Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor of
the Company.
SECTION 11. WITHHOLDING TAXES.
Whenever cash is to be paid pursuant to an Award, the Company
shall have the right to deduct therefrom an amount sufficient to satisfy
any federal, state and local withholding tax requirements related thereto.
Whenever Shares are to be delivered pursuant to an Award, the Company shall
have the right to require the Participant to remit to the Company in cash
an amount sufficient to satisfy any federal, state and local withholding
tax requirements related thereto. With the approval of the Administrator, a
Participant may satisfy the foregoing requirement by electing to have the
Company withhold from delivery Shares or by delivering already owned
Shares, in each case, having a value equal to the minimum amount of tax
required to be withheld. Such shares shall be valued at their Fair Market
Value on the date of which the amount of tax to be withheld is determined.
Fractional share amounts shall be settled in cash. Such a election may be
made with respect to all or any portion of the shares to be delivered
pursuant to an Award.
SECTION 12. GENERAL PROVISIONS.
(a) Shares shall not be issued pursuant to the exercise of any
Award granted hereunder unless the exercise of such Award and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act and the requirements of any stock
exchange upon which the Common Stock may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to
such compliance.
(b) The Administrator may require each person acquiring Shares
to represent to and agree with the Company in writing that such person is
acquiring the Shares without a view to distribution thereof. The
certificates for such Shares may include any legend that the Administrator
deems appropriate to reflect any restrictions on transfer.
(c) All certificates for Shares delivered under the Plan shall
be subject to such stock-transfer orders and other restrictions as the
Administrator may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange
upon which the Common Stock may then be listed, and any applicable federal
or state securities law, and the Administrator may cause a legend or
legends to be placed on any such certificates to make appropriate reference
to such restrictions.
(d) Nothing contained in the Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to
stockholder approval, if such approval is required; and such arrangements
may be either generally applicable or applicable only in specific cases.
The adoption of the Plan shall not confer upon any Eligible Recipient any
right to continued employment or service with the Company or any Parent or
Subsidiary, as the case may be, nor shall it interfere in any way with the
right of the Company or any Parent or Subsidiary to terminate the
employment or service of any of its Eligible Recipients at any time.
SECTION 13. STOCKHOLDER APPROVAL; EFFECTIVE DATE OF PLAN.
(a) The grant of any Award hereunder shall be contingent upon
stockholder approval of the Plan being obtained within 12 months before or
after the date the Board adopts the Plan.
(b) Subject to the approval of the Plan by the stockholders of
the Company within twelve (12) months before or after the date the Plan is
adopted by the Board, the Plan shall be effective as of May 9, 2000 (the
"Effective Date").
SECTION 14. TERM OF PLAN.
No Award shall be granted pursuant to the Plan on or after the
tenth anniversary of the Effective Date, but Awards theretofore granted may
extend beyond that date.
