1999 Non-Officer Stock Option/Stock Issuance Plan – DoubleClick Inc.
DOUBLECLICK INC
1999 NON-OFFICER STOCK OPTION/STOCK ISSUANCE PLAN
(AS AMENDED AND RESTATED EFFECTIVE AS OF APRIL 9, 1999)
ARTICLE ONE
GENERAL PROVISIONS
I. PURPOSE OF THE PLAN
This 1999 Non-Officer Stock Option/Stock Issuance Plan is
intended to promote the interests of DoubleClick Inc., a Delaware
corporation, by providing eligible persons with the opportunity to acquire a
proprietary interest, or otherwise increase their proprietary interest, in
the Corporation as an incentive for them to remain in the service of the
Corporation.
Capitalized terms shall have the meanings assigned to such
terms in the attached Appendix.
All share numbers in the May 24, 1999 restatement reflect
all splits of the Common Stock effected through May 24, 1999, including the
two (2)-for-one (1) split of the Common Stock effected on March 24, 1999.
II. STRUCTURE OF THE PLAN
A. The Plan shall be divided into two separate equity
programs:
(i) the Discretionary Option Grant Program
under which eligible persons may, at the discretion of the Plan
Administrator, be granted options to purchase shares of Common Stock, and
(ii) the Stock Issuance Program under which
eligible persons may, at the discretion of the Plan Administrator, be issued
shares of Common Stock directly, either through the immediate purchase of
such shares or as a bonus for services rendered the Corporation (or any
Parent or Subsidiary).
B. The provisions of Articles One and Four shall
apply to all equity programs under the Plan and shall govern the interests of
all persons under the Plan.
III. ADMINISTRATION OF THE PLAN
A. Administration of the Plan may, at the Board's
discretion, be vested in a Secondary Committee, or the Board may retain the
power to administer the Plan.
B. Members of the Committee shall serve for such
period of time as the Board may determine and may be removed by the Board at
any time. The Board may also at any time terminate the functions of the
Committee and reassume all powers and authority previously delegated to such
committee.
C. Each Plan Administrator shall, within the scope of
its administrative functions under the Plan, have full power and authority
(subject to the provisions of the Plan) to establish such rules and
regulations as it may deem appropriate for proper administration of the Plan
and to make such determinations under, and issue such interpretations of, the
provisions of such programs and any outstanding options or stock issuances
thereunder as it may deem necessary or advisable. Decisions of the Plan
Administrator within the scope of its administrative functions under the Plan
shall be final and binding on all parties who have an interest in the
Discretionary Option Grant and Stock Issuance Programs under its jurisdiction
or any option grants or stock issuance thereunder.
D. Service on the Committee shall constitute service
as a Board member, and members of the Committee shall accordingly be entitled
to full indemnification and reimbursement as Board members for their service
on the Committee. No member of the Committee shall be liable for any act or
omission made in good faith with respect to the Plan or any option grants or
stock issuances under the Plan.
IV. ELIGIBILITY
A. The persons eligible to participate in the
Discretionary Option Grant and Stock Issuance Programs are as follows:
(i) Employees (other than officers of the
Corporation), and
(ii) consultants and other independent
advisors who provide services to the Corporation (or any Parent or
Subsidiary).
B. The Plan Administrator shall, within the scope of
its administrative jurisdiction under the Plan, have full authority to
determine, (i) with respect to the option grants under the Discretionary
Option Grant Program, which eligible persons are to receive option grants,
the time or times when such option grants are to be made, the number of
shares to be covered by each such grant, the time or times when each option
is to become exercisable, the vesting schedule (if any) applicable to the
option shares and the maximum term for which the option is to remain
outstanding and (ii) with respect to stock issuances under the Stock Issuance
Program, which eligible persons are to receive stock issuances, the time or
times when such issuances are to be made, the number of shares to be issued
to each Participant, the vesting schedule (if any) applicable to the issued
shares and the consideration for such shares.
C. The Plan Administrator shall have the absolute
discretion either to grant options in accordance with the Discretionary
Option Grant Program or to effect stock issuances in accordance with the
Stock Issuance Program.
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares
of authorized but unissued or reacquired Common Stock, including shares
repurchased by the Corporation on the open market. The maximum number of
shares of Common Stock reserved for issuance over the term of the Plan shall
not exceed 375,000 shares.
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B. Shares of Common Stock subject to outstanding
options shall be available for subsequent issuance under the Plan to the
extent (i) those options expire or terminate for any reason prior to exercise
in full or (ii) the options are cancelled in accordance with
cancellation-regrant provisions of Article Two. Unvested shares issued under
the Plan and subsequently cancelled or repurchased by the Corporation, at the
original exercise or issue price paid per share, pursuant to the
Corporation's repurchase rights under the Plan shall be added back to the
number of shares of Common Stock reserved for issuance under the Plan and
shall accordingly be available for reissuance through one or more subsequent
option grants or direct stock issuances under the Plan. However, should the
exercise price of an option under the Plan be paid with shares of Common
Stock, then the number of shares of Common Stock available for issuance under
the Plan shall be reduced by the gross number of shares for which the option
is exercised and not by the net number of shares of Common Stock issued to
the holder of such option.
C. If any change is made to the Common Stock by
reason of any stock split, stock dividend, recapitalization, combination of
shares, exchange of shares or other change affecting the outstanding Common
Stock as a class without the Corporation's receipt of consideration,
appropriate adjustments shall be made to (i) the maximum number and/or class
of securities issuable under the Plan and (ii) the number and/or class of
securities and the exercise price per share in effect under each outstanding
option under the Plan. Such adjustments to the outstanding options are to be
effected in a manner which shall preclude the enlargement or dilution of
rights and benefits under such options. The adjustments determined by the
Plan Administrator shall be final, binding and conclusive.
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ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
I. OPTION TERMS
Each option shall be a Non-Statutory Option and shall be
evidenced by one or more documents in the form approved by the Plan
Administrator; provided, however, that each such document shall comply with
the terms specified below.
A. EXERCISE PRICE.
1. The exercise price per share shall be
fixed by the Plan Administrator but shall not be less than eighty-five
percent (85%) of the Fair Market Value per share of Common Stock on the
option grant date.
2. The exercise price shall become
immediately due upon exercise of the option and shall, subject to the
provisions of Section I of Article Four and the documents evidencing the
option, be payable in one or more of the following:
(i) cash,
(ii) check made payable to the
Corporation,
(iii) in shares of Common Stock held
for the requisite period necessary to avoid a charge to the
Corporation's earnings for financial reporting purposes and valued
at Fair Market Value on the Exercise Date, or
(iv) to the extent the option is
exercised for vested shares, through a special sale and remittance
procedure pursuant to which the Optionee shall concurrently provide
irrevocable instructions (A) to a Corporation-designated brokerage
firm to effect the immediate sale of the purchased shares and remit
to the Corporation, out of the sale proceeds available on the
settlement date, sufficient funds to cover the aggregate exercise
price payable for the purchased shares plus all applicable Federal,
state and local income and employment taxes required to be withheld
by the Corporation by reason of such exercise and (B) to the
Corporation to deliver the certificates for the purchased shares
directly to such brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is
utilized, payment of the exercise price for the purchased shares must be made
on the Exercise Date.
B. EXERCISE AND TERM OF OPTIONS. Each option shall be
exercisable at such time or times, during such period and for such number of
shares as shall be determined by the Plan Administrator and set forth in the
documents evidencing the option. However, no option shall have a term in
excess of ten (10) years measured from the option grant date.
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C. EFFECT OF TERMINATION OF SERVICE.
1. The following provisions shall govern the
exercise of any options held by the Optionee at the time of cessation of
Service or death:
(i) Any option outstanding at the
time of the Optionee's cessation of Service for any reason shall
remain exercisable for such period of time thereafter as shall be
determined by the Plan Administrator and set forth in the documents
evidencing the option, but no such option shall be exercisable after
the expiration of the option term.
(ii) Any option exercisable in whole
or in part by the Optionee at the time of death may be subsequently
exercised by the personal representative of the Optionee's estate or
by the person or persons to whom the option is transferred pursuant
to the Optionee's will or in accordance with the laws of descent and
distribution.
(iii) Should the Optionee's Service be
terminated for Misconduct, then all outstanding options held by the
Optionee shall terminate immediately and cease to be outstanding.
(iv) During the applicable
post-Service exercise period, the option may not be exercised in the
aggregate for more than the number of vested shares for which the
option is exercisable on the date of the Optionee's cessation of
Service. Upon the expiration of the applicable exercise period or
(if earlier) upon the expiration of the option term, the option
shall terminate and cease to be outstanding for any vested shares
for which the option has not been exercised. However, the option
shall, immediately upon the Optionee's cessation of Service,
terminate and cease to be outstanding to the extent the option is
not otherwise at that time exercisable for vested shares.
2. The Plan Administrator shall have
complete discretion, exercisable either at the time an option is granted or
at any time while the option remains outstanding, to:
(i) extend the period of time for
which the option is to remain exercisable following the Optionee's
cessation of Service from the limited exercise period otherwise in
effect for that option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event beyond the
expiration of the option term, and/or
(ii) permit the option to be
exercised, during the applicable post-Service exercise period, not
only with respect to the number of vested shares of Common Stock for
which such option is exercisable at the time of the Optionee's
cessation of Service but also with respect to one or more additional
installments in which the Optionee would have vested had the
Optionee continued in Service.
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D. STOCKHOLDER RIGHTS. The holder of an option shall
have no stockholder rights with respect to the shares subject to the option
until such person shall have exercised the option, paid the exercise price
and become a holder of record of the purchased shares.
E. REPURCHASE RIGHTS. The Plan Administrator shall
have the discretion to grant options which are exercisable for unvested
shares of Common Stock. Should the Optionee cease Service while holding such
unvested shares, the Corporation shall have the right to repurchase, at the
exercise price paid per share, any or all of those unvested shares. The terms
upon which such repurchase right shall be exercisable (including the period
and procedure for exercise and the appropriate vesting schedule for the
purchased shares) shall be established by the Plan Administrator and set
forth in the document evidencing such repurchase right
F. LIMITED TRANSFERABILITY OF OPTIONS. During the
lifetime of the Optionee, an option may, to the extent permitted by the Plan
Administrator and in connection with the Optionee's estate plan, be assigned
in whole or in part during the Optionee's lifetime to one or more members of
the Optionee's immediate family or to a trust established exclusively for one
or more such family members. The assigned portion may only be exercised by
the person or persons who acquire a proprietary interest in the option
pursuant to the assignment. The terms applicable to the assigned portion
shall be the same as those in effect for the option immediately prior to such
assignment and shall be set forth in such documents issued to the assignee as
the Plan Administrator may deem appropriate.
II. CHANGE IN CONTROL
A. Each option outstanding at the time of a Change in
Control but not otherwise fully exercisable shall automatically accelerate so
that each such option shall, immediately prior to the effective date of the
Change in Control, become exercisable for all of the shares of Common Stock
at the time subject to that option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock. However, an outstanding
option shall not become exercisable on such an accelerated if and to the
extent: (i) such option is, in connection with the Change in Control, to be
assumed or otherwise continued in full force or effect by the successor
corporation (or parent thereof) pursuant to the terms of the Change in
Control transaction, (ii) such option is to be replaced with a cash incentive
program of the successor corporation which preserves the spread existing at
the time of the Corporate Transaction on the shares of Common Stock for which
the option is not otherwise at that time exercisable and provides for
subsequent payout in accordance with the same vesting schedule applicable to
those option shares or (iii) the acceleration of such option is subject to
other limitations imposed by the Plan Administrator at the time of the option
grant.
B. All outstanding repurchase rights shall also
terminate automatically, and the shares of Common Stock subject to those
terminated rights shall immediately vest in full, in the event of any Change
in Control, except to the extent: (i) those repurchase rights are to be
assigned to the successor corporation (or parent thereof) or (ii) such
accelerated vesting is precluded by other limitations imposed by the Plan
Administrator at the time the repurchase right is issued.
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C. Immediately following the consummation of the
Change in Control, all outstanding options shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or
parent thereof) or otherwise expressly continued in full force and effect
pursuant to the terms of the Change in Control transaction.
D. Each option which is assumed (or is otherwise to
continue in effect) in connection with a Change in Control shall be
appropriately adjusted, immediately after such Change in Control, to apply to
the number and class of securities which would have been issuable to the
Optionee in consummation of such Change in Control had the option been
exercised immediately prior to such Change in Control. Appropriate
adjustments to reflect such Change in Control shall also be made to (i) the
exercise price payable per share under each outstanding option, provided the
aggregate exercise price payable for such securities shall remain the same
and (ii) the maximum number and/or class of securities available for issuance
over the remaining term of the Plan.
E. The Plan Administrator shall have full power and
authority exercisable, either at the time the option is granted or at any
time while the option remains outstanding, to provide for the accelerated
vesting, in whole or in part, of one or more outstanding options under the
Discretionary Option Grant Program automatically upon the occurrence of a
Change in Control, whether or not those options are to be assumed or
otherwise continued in full force and effect pursuant to the express terms of
the Change in Control transaction. In addition, the Plan Administrator may
structure one or more of the Corporation's repurchase rights under the
Discretionary Option Grant Program so that those rights shall immediately
terminate, in whole or in part, at the time of a Change in Control and shall
not be assignable to the successor corporation (or parent thereof), and the
shares subject to those terminated repurchase rights shall accordingly vest
in full at the time of such Change in Control.
F. The Plan Administrator shall have full power and
authority exercisable, either at the time the option is granted or at any
time while the option remains outstanding, to provide for the accelerated
vesting, in whole or in part, of one or more outstanding options under the
Discretionary Option Grant Program upon the Involuntary Termination of the
Optionee's Service within a designated period (not to exceed twelve (12)
months) following the effective date of any Change in Control in which those
options do not otherwise accelerate. In addition, the Plan Administrator may
structure one or more of the Corporation's repurchase rights under the
Discretionary Option Grant Program so that those rights will immediately
terminate at the time of such Involuntary Termination, and the shares subject
to those terminated repurchase rights shall accordingly vest in full at that
time.
G. The outstanding options shall in no way affect the
right of the Corporation to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
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III. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect,
at any time and from time to time, with the consent of the affected option
holders, the cancellation of any or all outstanding options under the
Discretionary Option Grant Program and to grant in substitution new options
covering the same or different number of shares of Common Stock but with an
exercise price per share based on the Fair Market Value per share of Common
Stock on the new grant date.
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ARTICLE THREE
STOCK ISSUANCE PROGRAM
I. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock
Issuance Program through direct and immediate issuances without any
intervening option grants. Each such stock issuance shall be evidenced by a
Stock Issuance Agreement which complies with the terms specified below.
Shares of Common Stock may also be issued under the Stock Issuance Program
pursuant to share right awards which entitle the recipients to receive those
shares upon the attainment of designated performance goals.
A. PURCHASE PRICE.
1. The purchase price per share of Common
Stock subject to direct issuance shall be fixed by the Plan Administrator,
but shall not be less than one hundred percent (100%) of the Fair Market
Value per share of Common Stock on the issuance date.
2. Shares of Common Stock may be issued
under the Stock Issuance Program for any of the following items of
consideration which the Plan Administrator may deem appropriate in each
individual instance:
(i) cash or check made payable to
the Corporation, or
(ii) past services rendered to the
Corporation (or any Parent or Subsidiary).
B. VESTING/ISSUANCE PROVISIONS.
1. The Plan Administrator may issue shares
of Common Stock under the Stock Issuance Program which are fully and
immediately vested upon issuance or which are to vest in one or more
installments over the Participant's period of Service or upon attainment of
specified performance objectives. Alternatively, the Plan Administrator may
issue share right awards under the Stock Issuance Program which shall entitle
the recipient to receive a specified number of shares of Common Stock upon
the attainment of one or more performance goals established by the Plan
Administrator. Upon the attainment of such performance goals, fully-vested
shares of Common Stock shall be issued in satisfaction of those share right
awards.
2. Any new, substituted or additional
securities or other property (including money paid other than as a regular
cash dividend) which the Participant may have the right to receive with
respect to his or her unvested shares of Common Stock by reason of any stock
dividend, stock split, recapitalization, combination of shares, exchange of
shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration shall be issued subject to
(i) the same vesting requirements applicable to the Participant's unvested
shares of Common Stock and (ii) such escrow arrangements as the Plan
Administrator shall deem appropriate.
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3. The Participant shall have full
stockholder rights with respect to any shares of Common Stock issued to the
Participant under the Stock Issuance Program, whether or not the
Participant's interest in those shares is vested. Accordingly, the
Participant shall have the right to vote such shares and to receive any
regular cash dividends paid on such shares.
4. Should the Participant cease to remain in
Service while holding one or more unvested shares of Common Stock issued
under the Stock Issuance Program or should the performance objectives not be
attained with respect to one or more such unvested shares of Common Stock,
then those shares shall be immediately surrendered to the Corporation for
cancellation, and the Participant shall have no further stockholder rights
with respect to those shares. To the extent the surrendered shares were
previously issued to the Participant for consideration paid in cash or cash
equivalent (including the Participant's purchase-money indebtedness), the
Corporation shall repay to the Participant the cash consideration paid for
the surrendered shares and shall cancel the unpaid principal balance of any
outstanding purchase-money note of the Participant attributable to the
surrendered shares.
5. The Plan Administrator may in its
discretion waive the surrender and cancellation of one or more unvested
shares of Common Stock (or other assets attributable thereto) which would
otherwise occur upon the cessation of the Participant's Service or the
non-attainment of the performance objectives applicable to those shares. Such
waiver shall result in the immediate vesting of the Participant's interest in
the shares of Common Stock as to which the waiver applies. Such waiver may be
effected at any time, whether before or after the Participant's cessation of
Service or the attainment or non-attainment of the applicable performance
objectives.
6. Outstanding share right awards under the
Stock Issuance Program shall automatically terminate, and no shares of Common
Stock shall actually be issued in satisfaction of those awards, if the
performance goals established for such awards are not attained. The Plan
Administrator, however, shall have the discretionary authority to issue
shares of Common Stock in satisfaction of one or more outstanding share right
awards as to which the designated performance goals are not attained.
II. CHANGE IN CONTROL
A. All of the Corporation's outstanding repurchase
rights under the Stock Issuance Program shall terminate automatically, and
all the shares of Common Stock subject to those terminated rights shall
immediately vest in full, in the event of any Change in Control, except to
the extent (i) those repurchase rights are to be assigned to the successor
corporation (or parent thereof) or are otherwise to continue in full force
and effect pursuant to the express terms of the Change in Control transaction
or (ii) such accelerated vesting is precluded by other limitations imposed in
the Stock Issuance Agreement.
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B. The Plan Administrator shall have the
discretionary authority, exercisable either at the time the unvested shares
are issued or any time while the Corporation's repurchase rights remain
outstanding under the Stock Issuance Program, to provide that those rights
shall automatically terminate in whole or in part upon the occurrence of a
Change in Control and shall not be assignable to the successor corporation
(or parent thereof), and the shares of Common Stock subject to those
terminated rights shall immediately vest at the time of such Change in
Control.
C. The Plan Administrator shall have the
discretionary authority, exercisable either at the time the unvested shares
are issued or any time while the Corporation's repurchase rights remain
outstanding under the Stock Issuance Program, to provide that those rights
shall automatically terminate in whole or in part, and the shares of Common
Stock subject to those terminated rights shall immediately vest upon the
Involuntary Termination of the Participant's Service within a designated
period (not to exceed twelve (12) months) following the effective date of any
Change in Control in which those repurchase rights are assigned to the
successor corporation (or parent thereof),
III. SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's
discretion, be held in escrow by the Corporation until the Participant's
interest in such shares vests or may be issued directly to the Participant
with restrictive legends on the certificates evidencing those unvested shares.
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ARTICLE FOUR
MISCELLANEOUS
I. FINANCING
The Plan Administrator may permit any Optionee or
Participant to pay the option exercise price under the Discretionary Option
Grant Program or the purchase price of shares issued under the Stock Issuance
Program by delivering a full-recourse, interest bearing promissory note
payable in one or more installments. The terms of any such promissory note
(including the interest rate and the terms of repayment) shall be established
by the Plan Administrator in its sole discretion. In no event may the maximum
credit available to the Optionee or Participant exceed the sum of (i) the
aggregate option exercise price or purchase price payable for the purchased
shares (less the par value of those shares) plus (ii) any Federal, state and
local income and employment tax liability incurred by the Optionee or the
Participant in connection with the option exercise or share purchase.
II. TAX WITHHOLDING
The Corporation's obligation to deliver shares of Common Stock upon
the exercise of options or the issuance or vesting of such shares under the
Plan shall be subject to the satisfaction of all applicable Federal, state
and local income and employment tax withholding requirements.
III. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Discretionary Option Grant and Stock Issuance
Programs shall become effective immediately upon the Plan Effective Date.
Options may be granted under the Discretionary Option Grant Program at any
time on or after the Plan Effective Date.
B. The Plan shall terminate upon the earliest of (i)
April 8, 2009, (ii) the date on which all shares available for issuance under
the Plan shall have been issued as fully-vested shares or (iii) the
termination of all outstanding options in connection with a Change in
Control. Upon such plan termination, all outstanding option grants and
unvested stock issuances shall thereafter continue to have force and effect
in accordance with the provisions of the documents evidencing such grants or
issuances.
IV. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power
and authority to amend or modify the Plan in any or all respects. However, no
such amendment or modification shall adversely affect the rights and
obligations with respect to stock options or unvested stock issuances at the
time outstanding under the Plan unless the Optionee or the Participant
consents to such amendment or modification. In addition, certain amendments
may require stockholder approval pursuant to applicable laws or regulations.
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V. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale
of shares of Common Stock under the Plan shall be used for general corporate
purposes.
VI. NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or the
Participant any right to continue in Service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Corporation (or any Parent or Subsidiary employing or retaining such person)
or of the Optionee or the Participant, which rights are hereby expressly
reserved by each, to terminate such person's Service at any time for any
reason, with or without cause.
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APPENDIX
The following definitions shall be in effect under the Plan:
A. BOARD shall mean the Corporation's Board of Directors.
B. CHANGE IN CONTROL shall mean any of the following
transactions:
(i) a merger or consolidation approved by the
Corporation's stockholders in which securities possessing more than
fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities
immediately prior to such transaction,
(ii) any stockholder-approved sale, transfer
or other disposition of all or substantially all of the
Corporation's assets in complete liquidation or dissolution of the
Corporation, or
(iii) the acquisition, directly or indirectly
by any person or related group of persons (other than the
Corporation or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Corporation), of
beneficial ownership (within the meaning of Rule 13d-3 of the 1934
Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding
securities pursuant to a tender or exchange offer made directly to
the Corporation's stockholders.
In no event shall any direct issuance of securities by the
Corporation effected primarily for the purpose of raising additional
capital or funding for the business operations of the Corporation or
any Parent or Subsidiary be deemed to constitute a Change in Control.
C. CODE shall mean the Internal Revenue Code of 1986, as
amended.
D. COMMITTEE shall mean a committee of one (1) or more Board
members appointed by the Board to administer the Discretionary Option Grant
and Stock Issuance Programs.
E. COMMON STOCK shall mean the Corporation's common stock.
F. CORPORATION shall mean DoubleClick Inc., a Delaware
corporation, and its successors.
G. DISCRETIONARY OPTION GRANT PROGRAM shall mean the
discretionary option grant program in effect under the Plan.
H. EMPLOYEE shall mean an individual who is in the employ of
the Corporation (or any Parent or Subsidiary), subject to the control and
direction of the employer entity as to both the work to be performed and the
manner and method of performance.
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I. EXERCISE DATE shall mean the date on which the Corporation
shall have received written notice of the option exercise.
J. FAIR MARKET VALUE per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded
on the Nasdaq National Market, then the Fair Market Value shall be
deemed equal to the closing selling price per share of Common Stock
on the date in question, as such price is reported on the Nasdaq
National Market or any successor system. If there is no closing
selling price for the Common Stock on the date in question, then the
Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed
on any Stock Exchange, then the Fair Market Value shall be deemed
equal to the closing selling price per share of Common Stock on the
date in question on the Stock Exchange determined by the Plan
Administrator to be the primary market for the Common Stock, as such
price is officially quoted in the composite tape of transactions on
such exchange. If there is no closing selling price for the Common
Stock on the date in question, then the Fair Market Value shall be
the closing selling price on the last preceding date for which such
quotation exists.
K. INVOLUNTARY TERMINATION shall mean the termination of the
Service of any individual which occurs by reason of:
(i) such individual's involuntary dismissal
or discharge by the Corporation for reasons other than Misconduct, or
(ii) such individual's voluntary resignation
following (A) a change in his or her position with the Corporation
which materially reduces his or her duties and responsibilities or
the level of management to which he or she reports, (B) a reduction
in his or her level of compensation (including base salary, fringe
benefits and target bonus under any performance based bonus or
incentive programs) by more than fifteen percent (15%) or (C) a
relocation of such individual's place of employment by more than
fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Corporation without the individual's
consent.
L. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by the Optionee or Participant, any unauthorized
use or disclosure by such person of confidential information or trade secrets
of the Corporation (or any Parent or Subsidiary), or any other intentional
misconduct by such person adversely affecting the business or affairs of the
Corporation (or any Parent or Subsidiary) in a material manner. The foregoing
definition shall not be deemed to be inclusive of all the acts or omissions
which the Corporation (or any Parent or Subsidiary) may consider as grounds
for the dismissal or discharge of any Optionee, Participant or other person
in the Service of the Corporation (or any Parent or Subsidiary).
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M. 1934 ACT shall mean the Securities Exchange Act of 1934, as
amended.
N. NON-STATUTORY OPTION shall mean an option not intended to
satisfy the requirements of Code Section 422.
O. OPTIONEE shall mean any person to whom an option is granted
under the Discretionary Option Grant.
P. PARENT shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations ending with the
Corporation, provided each corporation in the unbroken chain (other than the
Corporation) owns, at the time of the determination, stock possessing 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.
Q. PARTICIPANT shall mean any person who is issued shares of
Common Stock under the Stock Issuance Program.
R. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the
inability of the Optionee or the Participant to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration of
twelve (12) months or more.
S. PLAN shall mean the Corporation's 1999 Non-Officer Stock
Option/Stock Issuance Plan, as set forth in this document.
T. PLAN ADMINISTRATOR shall mean the particular entity,
whether the Board or the Committee, which is authorized to administer the
Discretionary Option Grant and Stock Issuance Programs.
U. PLAN EFFECTIVE DATE shall mean April 9, 1999 the date on
which the Plan was adopted by the Board.
V. SERVICE shall mean the performance of services for the
Corporation (or any Parent or Subsidiary) by a person in the capacity of an
Employee, a consultant or an independent advisor, except to the extent
otherwise specifically provided in the documents evidencing the option grant
or stock issuance.
W. STOCK EXCHANGE shall mean either the American Stock
Exchange or the New York Stock Exchange.
X. STOCK ISSUANCE AGREEMENT shall mean the agreement entered
into by the Corporation and the Participant at the time of issuance of shares
of Common Stock under the Stock Issuance Program.
Y. STOCK ISSUANCE PROGRAM shall mean the stock issuance
program in effect under the Plan.
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Z. SUBSIDIARY shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the
Corporation, provided each corporation (other than the last corporation) in
the unbroken chain owns, at the time of the determination, stock possessing
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.
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