Stock Option Plan - NetStart Inc.
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NETSTART, Inc.
STOCK OPTION PLAN
The NetStart Company (the "Employer") sets forth herein the terms of this
Stock Option Plan (the "Plan") as follows:
1. PURPOSE
The Plan is intended to advance the interests of the Employer by
providing eligible individuals (as designated pursuant to Section 4 below) with
an opportunity to acquire or increase a proprietary interest in the Employer,
which thereby will create a stronger incentive to expend maximum effort for the
growth and success of the Employer, and will encourage such eligible individuals
to remain in the employ or deliver outstanding services to the Employer. Each
stock option granted under the Plan (an "Option") is intended to be an
"incentive stock option" within the meaning of Section 422A of the Internal
Revenue Code of 1986, or the corresponding provision of any subsequently-enacted
tax statute, as amended from time to time (the "Code") ("Incentive Stock
Option"), except to the extent that any such Option would exceed the limitations
set forth in Section 7 below, and except for Options specifically designated at
the time of grant as not being "incentive stock options". Options granted to
non-employees of the Employer are not Incentive Stock Options.
2. ADMINISTRATION
(a) Board. The Plan shall be administered by the Board of Directors
of the Employer (the "Board"), which shall have the full power and authority to
take all actions, and to make all determinations required or provided for under
the Plan or any Option granted or Option Agreement (as defined in Section 8
below) entered into hereunder and all such other actions and determinations not
inconsistent with the specific terms and provisions of the Plan deemed by the
Board to be necessary or appropriate to the administration of the Plan or any
Option granted or Option Agreement entered into hereunder. All such actions and
determinations shall be by the affirmative vote of a majority of the members of
the Board present at a meeting at which any issue relating to the Plan is
properly raised for consideration or by unanimous consent of the Board executed
in writing in accordance with the Employer's Certificate of Incorporation and
bylaws, and with applicable law. The interpretation and construction by the
Board of any provision of the Plan or of any Option granted or Option Agreement
entered into hereunder shall be final and conclusive.
(b) Committee. The Board may from time to time appoint a Stock Option
Committee (the "Committee") consisting of not less than two members of the
Board. The Board, in its sole discretion, may provide that the role of the
Committee shall be limited to making recommendations to the Board concerning any
determinations to be made and actions to be taken by the Board pursuant to or
with respect to the Plan, or the Board may delegate to the Committee such powers
and authorities related to the administration of the Plan, as set forth in
Section 2(a) above, as the Board shall determine, consistent with the
Certificate of Incorporation and bylaws of the Employer and applicable law. The
Board may remove members, add members, and fill vacancies on the Committee from
time to time, all in accordance with the Employer's Certificate of Incorporation
and bylaws, and with applicable law. The majority vote of the Committee, or acts
reduced to or approved in writing by a majority of the members of the Committee,
shall be the valid acts of the Committee.
(c) No Liability. No member of the Board or of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option granted or Option Agreement entered into hereunder.
(d) Delegation to the Committee. In the event that the Plan or any
Option granted or Option Agreement entered into hereunder provides for any
action to be taken by or determination to be made by the Board, such action may
be taken by or such determination may be made by the Committee if the power and
authority to do so has been delegated to the Committee by the Board as provided
for in Section 2(b) above. Unless otherwise expressly determined by the Board,
any such action or determination by the Committee shall be final and conclusive.
3. STOCK
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The stock that may be issued pursuant to Options granted under the
Plan shall be shares of Common Stock, par value $.01 per share, of the Employer
(the "Stock"), which shares may be: (i) treasury shares; (ii) authorized but
unissued shares (such treasury shares and authorized but unissued shares being
hereinafter sometimes referred to collectively as, the "Employer Stock"); or
(iii) the 375,000 shares allocated by Robert J. McGovern (hereafter referred to
as "Employer's Stock") at the time the Company was founded. The number of shares
of Stock that may be issued pursuant to Options granted under the Plan shall not
exceed in the aggregate 375,000 shares, which number of shares is subject to
adjustment as hereinafter provided in Section 18 below. The Board of Directors
of the Employer shall have sole discretion in determining whether the stock that
may be issued or transferred pursuant to the exercise of Options granted under
the Plan shall be obtained from the Employer Stock or newly issued Stock. If any
Option expires, terminates, or is terminated for any reason prior to exercise in
full, the shares of Stock that were subject to the unexercised portion of such
Option, or if any Option (or portion thereof) is forfeited for any reason, the
shares of stock subject to such forfeited Option (or portion), shall be
available for future Options granted under the Plan.
4. ELIGIBILITY
Options may be granted under the Plan to any key employee of the
Employer (including any such key employee who is an officer or director of the
Employer), any Board Member, vendor, consultant or service provider as the Board
shall determine and designate from time to time prior to expiration or
termination of the Plan.
An individual may hold more than one Option, subject to such
restrictions as are provided herein.
5. EFFECTIVE DATE AND TERM OF THE PLAN
(a) Effective Date. The Plan shall be effective as of the date of
adoption by the Board, which date is set forth below, subject to approval of the
Plan within one year of such effective date by an affirmative vote of
stockholders who hold at least a majority of the outstanding shares of stock of
the Employer entitled to vote thereon, in person or by proxy, at a duly called
meeting of the stockholders; provided, however, that upon approval of the Plan
by the stockholders of the Employer as set forth above, all Options granted
under the Plan on or after the effective date shall be fully effective as if the
stockholders of the Employer had approved the Plan on the effective date.
(b) Term. The Plan shall terminate on the date ten years from the
effective date.
6. GRANT OF OPTIONS
Subject to the terms and conditions of the Plan, the Board may, at
any time and from time to time, prior to the date of termination of the Plan,
grant to such eligible individuals as the Board may determine ("Optionees"),
Options to purchase such number of shares of the Stock on such terms and
conditions as the Board may determine, including any terms or conditions which
may be necessary to qualify such Options as "incentive stock options" under
Section 422A of the Code. The date on which the Board approves the grant of an
Option shall be considered the date on which such Option is granted.
7. LIMITATION ON INCENTIVE STOCK OPTIONS
An Option shall constitute an Incentive Stock Option only to the
extent that the aggregate fair market value (determined at the time the Option
is granted) of the stock with respect to which Incentive Stock Options are
exercisable for the first time by any Optionee during any calendar year (under
the Plan and all other plans of the Optionee's employer corporation and its
parent and subsidiary corporations within the meaning of Section 422A(b)(7) of
the Code) does not exceed $100,000.
8. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by
written agreements ("Option Agreements"), to be executed by the Employer and by
the Optionee, in such form or forms as the Board shall from time to time
determine. Option Agreements covering Options granted from time to time or at
the same time need not contain similar provisions; provided, however, that all
such Option Agreements shall comply with all terms of the Plan.
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9. OPTION PRICE
The purchase price of each share of the Stock subject to an Option
(the "Option Price") shall be fixed by the Board and stated in each Option
Agreement, and, in the case of an Incentive Stock Option, shall be not less than
the greater of par value or one hundred percent (100%) of the fair market value
of a share of the Stock on the date the Option is granted (as determined in good
faith by the Board); provided, however, that in the event the Optionee would
otherwise be ineligible to receive an Incentive Stock Option by reason of the
provisions of Sections 422A(b)(6) and 425(d) of the Code (relating to stock
ownership of more than ten percent), the Option Price of an Option which is
intended to be an Incentive Stock Option shall be not less than the greater of
par value or one hundred and ten percent (110%) of the fair market value of a
share of Stock at the time such Option is granted. In the event that the Stock
is listed on an established national or regional stock exchange, is admitted to
quotation on the National Association of Securities Dealers Automated Quotation
System, or is publicly traded in an established securities market, in
determining the fair market value of the Stock, the Board shall use the closing
price of the Stock on such exchange or System or in such market (the highest
such closing price if there is more than one such exchange or market) on the
trading date immediately before the Option is granted (or, if there is no such
closing price, then the Board shall use the mean between the highest bid and
lowest asked price or between the high or low prices on such date), or, if no
sale of the Stock has been made on such day, on the next preceding day in which
any such sale shall have been made.
10. TERM AND EXERCISE OF OPTIONS
(a) Term. Each Option granted under the Plan shall terminate and all
rights to purchase shares thereunder shall cease upon the expiration of ten
years from the date such Option is granted, or on such date prior thereto as may
be fixed by the Board and stated in the Option Agreement relating to such
Option; provided, however, that in the event the Optionee would otherwise be
ineligible to receive an Incentive Stock Option by reason of the provisions of
Sections 422A(b)(6) and 425(d) of the Code (relating to stock ownership of more
than ten percent), an Option granted to such Optionee which is intended to be an
Incentive Stock Option shall in no event be exercisable after the expiration of
five years from the date it is granted.
(b) Option Period and Limitations on Exercise. Each Option granted
under the Plan shall be exercisable, in whole or in part, at any time and from
time to time, over a period commencing on or after the date of grant and ending
upon the expiration or termination of the Option, as the Board shall determine
and set forth in the Option Agreement relating to such Option. Without limiting
the foregoing, the Board, subject to the terms and conditions of the Plan, may
in its sole discretion provide that an Option shall become exercisable in whole
or in part only upon the satisfaction of certain conditions specified in the
Option Agreement relating to the Optionee's continued employment during any
period or periods of time, the attainment of performance goals or objectives
established or to be established by the Board or such other factors as the Board
may deem appropriate, and that failure to satisfy such conditions shall result
in forfeiture of the Options or a portion thereof; provided, however, that any
such limitation or condition on the exercise of an Option, or portion thereof,
contained in any Option Agreement may be rescinded, modified or waived by the
Board, in its sole discretion, at any time and from time to time after the date
of grant of such Option (but prior to the forfeiture of the Option, or portion
thereof, as a result of failure to satisfy such limitation or condition) so as
to accelerate the time at which the Option may be exercised. Notwithstanding any
other provision of the Plan, no Option granted to an Optionee under the Plan
shall be exercisable in whole or in part prior to the date the Plan is approved
by the stockholders of the Employer as provided in Section 5 above.
(c) Method of Exercise. An Option that is exercisable hereunder may
be exercised by delivery to the Employer on any business day, at its principal
office, addressed to the attention of the Committee, of written notice of
exercise, which notice shall specify the number of shares with respect to which
the Option is being exercised, and shall be accompanied by payment in full of
the Option Price of the shares for which the Option is being exercised. The
minimum number of shares of Stock with respect to which an Option may be
exercised, in whole or in part, at any time shall be the lesser of 100 shares or
the maximum number of shares available for purchase under the Option at the time
of exercise. Payment of the Option Price for the shares of Stock purchased
pursuant to the exercise of an Option shall be made, as determined by the Board
and set forth in the Option Agreement pertaining to an Option, either (i) in
cash or in cash equivalents; (ii) through the tender to the Employer of shares
of Stock, which shares shall be valued, for purposes of determining the extent
to which the Option Price has been paid thereby, at their fair market value
(determined in the manner described in Section 9 above) on the date of exercise;
or (iii) by a combination of the methods described in (i) and (ii); provided,
however, that the Board may in its discretion impose and set forth in the Option
Agreement pertaining
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to an Option such limitations or prohibitions on the use of shares of Stock to
exercise Options as it deems appropriate. An attempt to exercise any Option
granted hereunder other than as set forth above shall be invalid and of no force
and effect. Promptly after the exercise of an Option and the payment in full of
the Option Price of the shares of Stock covered thereby, the individual
exercising the Option shall be entitled to the issuance of a Stock certificate
or certificates evidencing his ownership of such shares. A separate Stock
certificate or certificates shall be issued for any shares purchased pursuant to
the exercise of an Option which is an Incentive Stock Option, which certificate
or certificates shall not include any shares which were purchased pursuant to
the exercise of an Option which is not an Incentive Stock Option. An individual
holding or exercising an Option shall have none of the rights of a stockholder
until the shares of Stock covered thereby are fully paid and issued to him and,
except as provided in Section 18 below, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date of such
issuance.
11. THIS SECTION INTENTIONALLY LEFT BLANK.
12. RESTRICTIONS ON TRANSFER AND REPURCHASE RIGHTS
(a) Transferability of Options. During the lifetime of an Optionee to
whom an Option is granted, only such Optionee (or, in the event of legal
incapacity or incompetency, the Optionee's guardian or legal representative) may
exercise the Option. No Option shall be assignable or transferable by the
Optionee to whom it is granted, other than by will or the laws of descent and
distribution.
(b) Repurchase Rights of Employer. Except as otherwise provided in an
Option Agreement, (1) upon the termination of an Optionee's employment with the
Employer or a "subsidiary corporation" within the meaning of Section 425(f) of
the Code (a "Subsidiary") for any reason, the Employer shall have the right, for
a period of 90 days following such termination of employment to repurchase any
or all of the shares purchased by the optionee pursuant to an Option granted
under this Plan, including shares purchased during any period following such
termination of employment in which the Option remains exercisable pursuant to
Section 13, below (but excluding shares that were previously transferred by the
Optionee pursuant to Subsection 12(c) below) at a price equal to the fair market
value of such shares on the date of termination; and (2) upon the exercise,
pursuant to Section 14 below, of an Option following the Optionee's termination
of employment due to the death or "permanent and total disability" (within the
meaning of Section 22(e)(3) of the Code) of the Optionee, the Employer shall
have the right, for a period of 90 days following such exercise, to repurchase
any or all such shares at a price equal to the fair market value of such shares
on the date of exercise. "Fair market value," for purposes of this Subsection
12(b), shall be determined by the Board in the same manner used by it in good
faith to determine fair market value for purposes of determining the Option
Price pursuant to Section 9 above.
(c) Transferability of Shares. An Optionee (or such other individual
who is entitled, pursuant to Section 14 below, to exercise an Option following
the death of the Optionee) shall not transfer any shares purchased pursuant to
an Option to anyone without first offering them to the Employer for purchase on
the same terms and conditions as those offered the proposed transferee. Any
individual who proposes such a transfer shall notify the Employer, in writing,
of the identity of the transferee and the terms and conditions of such transfer.
The Employer may exercise this right of first refusal within 45 days after
receiving such notice of the proposed transfer. If the Employer fails to
exercise such right of first refusal during this 45 day period, the stockholder
may proceed with the proposed transfer free of any further restrictions (except
as provided in Subsection (b) above) at any time within the next 45 days, and if
he does not do so, the restrictions of this Subsection shall re-apply.
13. TERMINATION OF EMPLOYMENT
Upon the termination of the employment of an Optionee with the
Employer or any Subsidiary, other than by reason of the death or "permanent and
total disability" (within the meaning of Section 22(e)(3) of the Code) of such
Optionee, any Option granted to an Optionee pursuant to the Plan shall terminate
and such Optionee shall have no further right to purchase shares of Stock
pursuant to such Option; provided, however, that by inclusion of appropriate
language in an Option Agreement, the Board may, in its discretion, provide that
an Option shall be exercisable for up to 30 days following such termination of
employment, unless earlier terminated pursuant to Section 10(a) above. Whether a
leave of absence or leave on military or government service shall constitute a
termination of employment for purposes of the Plan shall be determined by the
Board, which determination shall be final and conclusive. For purposes of the
Plan, a
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termination of employment with the Employer or a Subsidiary shall not be deemed
to occur if the Optionee is immediately thereafter employed with the Employer or
any other Subsidiary.
14. RIGHTS IN THE EVENT OF DEATH OR DISABILITY
(a) Death. If an Optionee dies while employed by the Employer or a
Subsidiary or within the period following the termination of employment during
which the Option is exercisable under Section 14(b) below, the executors or
administrators or legatees or distributees of such Optionee's estate shall have
the right (subject to the general limitations on exercise set forth in Section
10(b) and Section 11(f) above), at any time within one year after the date of
such Optionee's death and prior to termination of the Option pursuant to Section
10(a) above, to exercise any Option held by such Optionee at the date of such
Optionee's death to the extent the Option was exercisable immediately prior to
the Optionee's death, except as is otherwise provided in the Option Agreement
relating to such Option.
(b) Disability. If an Optionee terminates employment with the
Employer or a Subsidiary by reason of the "permanent and total disability"
(within the meaning of Section 22(e)(3) of the Code) of such Optionee, then such
Optionee shall have the right (subject to the general limitations on exercise
set forth in Section 10(b) and Section 11(f) above), at any time within one year
after such termination of employment and prior to termination of the Option
pursuant to Section 10(a) above, to exercise, in whole or in part, any Option
held by such Optionee at the date of such termination of employment to the
extent the Option was exercisable immediately prior to the Optionee's
termination of employment, except as is otherwise provided in the Option
Agreement relating to such Option. Whether a termination of employment is to be
considered by reason of "permanent and total disability" for purposes of this
Plan shall be determined by the Board, which determination shall be final and
conclusive.
15. USE OF PROCEEDS
The proceeds received by the Employer from the sale of Employer Stock
pursuant to Options granted under the Plan shall constitute general funds of the
Employer.
16. REQUIREMENTS OF LAW
Violations of Law. The Employer shall not be required to sell, issue
or transfer any shares of Stock under any Option if the sale, issuance or
transfer of such shares would constitute a violation by the individual
exercising the Option, by the Employer of any provisions of any law or
regulation of any governmental authority, including without limitation any
federal or state securities laws or regulations. Specifically, in connection
with the Securities Act of 1933, as amended (the "Act"), upon exercise of any
Option, unless a registration statement under such Act is in effect with respect
to the shares of Stock covered by such Option, the Employer shall not be
required to sell, issue or transfer such shares unless the Board has received
evidence satisfactory to it that the holder of such Option may acquire such
shares pursuant to an exemption from registration under such Act. Any
determination in this connection by the Board shall be final, binding, and
conclusive. The Employer shall not be obligated to take any affirmative action
in order to cause the exercise of an Option or the issuance or the transfer of
shares pursuant thereto to comply with any law or regulation of any governmental
authority. As to any jurisdiction that expressly imposes the requirement that an
Option shall not be exercisable unless and until the shares of Stock covered by
such Option are registered or are subject to an available exemption from
registration, the exercise of such Option (under circumstances in which the laws
of such jurisdiction apply) shall be deemed conditioned upon the effectiveness
of such registration or the availability of such an exemption.
17. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend or
terminate the Plan as to any shares of Stock as to which Options have not been
granted; provided, however, that no amendment by the Board shall, without
approval by the affirmative vote of stockholders who hold at least a majority of
outstanding shares of stock of the Employer entitled to vote thereon and who
vote in person or by proxy at a duly constituted stockholders' meeting, (a)
materially change the requirements as to eligibility to receive Options; (b)
increase the maximum number of shares of Stock in the aggregate that may be sold
pursuant to Options granted under the Plan (except as permitted under Section 18
hereof); (c) change the minimum Option Price set forth in Section 9 hereof
(except as permitted under Section 18 hereof); (d) increase the maximum period
during which Options may be exercised; (e) extend the term of the Plan; or
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(f) materially increase the benefits accruing to eligible individuals under the
Plan. Except as permitted under Section 18 hereof, no amendment, suspension or
termination of the Plan shall, without the consent of the holder of the Option,
alter or impair rights or obligations under any Option theretofore granted under
the Plan.
18. EFFECT OF CHANGES IN CAPITALIZATION
(a) Changes in Stock. If the outstanding shares of Stock are
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Employer by reason of any
recapitalization, reclassification, stock split-up, combination of shares,
exchange of shares, stock dividend or other distribution payable in capital
stock, or other increase or decrease in such shares effected without receipt of
consideration by the Employer, occurring after the effective date of the Plan,
the number and kinds of shares for the purchase of which Options may be granted
under the Plan shall be adjusted proportionately and accordingly by the
Employer. In addition, the number and kind of shares for which Options are
outstanding shall be adjusted proportionately and accordingly so that the
proportionate interest of the holder of the Option immediately following such
event shall, to the extent practicable, be the same as immediately prior to such
event. Any such adjustment in outstanding Options shall not change the aggregate
Option Price payable with respect to shares subject to the unexercised portion
of the Option outstanding but shall include a corresponding proportionate
adjustment in the Option Price per share.
(b) Reorganization in Which the Employer Is the Surviving
Corporation. Subject to Subsection (c) hereof, if the Employer shall be the
surviving corporation in any reorganization, merger, or consolidation of the
Employer with one or more other corporations, any Option theretofore granted
pursuant to the Plan shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to such Option would have been
entitled immediately following such reorganization, merger, or consolidation,
with a corresponding proportionate adjustment of the Option Price per share so
that the aggregate Option Price thereafter shall be the same as the aggregate
Option Price of the shares remaining subject to the Option immediately prior to
such reorganization, merger, or consolidation.
(c) Reorganization in Which the Employer Is Not the Surviving
Corporation or Sale of Assets or Stock. Upon the dissolution or liquidation of
the Employer, or upon a merger, consolidation or reorganization of the Employer
with one or more other corporations in which the Employer is not the surviving
corporation, or upon a sale of substantially all of the assets of the Employer
to another corporation, or upon any transaction (including, without limitation,
a merger or reorganization in which the Employer is the surviving corporation)
approved by the Board which results in any person or entity owning eighty
percent (80%) or more of the combined voting power of all classes of stock of
the Employer, except to the extent provision is made in writing in connection
with such transaction for the continuation of the Plan and/or the assumption of
the Options theretofore granted, or for the substitution for such Options of new
options covering the stock of a successor corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares and
exercise prices, in which event the Plan and Options theretofore granted shall
continue in the manner and under the terms so provided. Not withstanding the
immediately preceding sentence, the Board of Directors shall have the right in
its sole discretion to terminate the Option Plan herein. In the event of any
such termination of the Plan, each individual holding an Option shall have the
right (subject to the general limitations on exercise set forth in Section 10(b)
and Section 11(f) above), immediately prior to the occurrence of such
termination and during such period occurring prior to such termination as the
Board in its sole discretion shall determine and designate, to exercise such
Option in whole or in part, whether or not such Option was otherwise exercisable
at the time such termination occurs. The Board shall send written notice of an
event that will result in such a termination to all individuals who hold Options
not later than the time at which the Employer gives notice thereof to its
stockholders.
(d) Adjustments. Adjustments under this Section 18 related to stock
or securities of the Employer shall be made by the Board, whose determination in
that respect shall be final, binding, and conclusive. No fractional shares of
Stock or units of other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such adjustment shall be
eliminated in each case by rounding downward to the nearest whole share or unit.
(e) No Limitations on Employer. The grant of an Option pursuant to
the Plan shall not affect or limit in any way the right or power of the Employer
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge, consolidate, dissolve or liquidate,
or to sell or transfer all or any part of its business or assets.
19. DISCLAIMER OF RIGHTS
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No provision in the Plan or in any Option granted or Option Agreement
entered into pursuant to the Plan shall be construed to confer upon any
individual the right to remain in the employ of the Employer, or to interfere in
any way with the right and authority of the Employer either to increase or
decrease the compensation of any individual at any time, or to terminate any
employment or other relationship between any individual and the Employer.
20. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the Plan to
the stockholders of the Employer for approval shall be construed as creating any
limitations upon the right and authority of the Board to adopt such other
incentive compensation arrangements (which arrangements may be applicable either
generally to a class or classes of individuals or specifically to a particular
individual or individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of stock options or stock
appreciation rights otherwise then under the Plan.
* * *
This Plan was duly adopted and approved by the Board of Directors of the
Employer by resolution at a meeting held on the______________ day of
_____________, 1995.
Secretary of the Employer
This Plan was duly approved by the stockholders of the Employer by
resolutions set forth in a unanimous consent dated on the____________day
of___________,_________
Secretary of the Employer