1998 Stock Plan [Amendment] - FastForward Network Inc.
AMENDMENT
TO
FASTFORWARD NETWORK, INC.'S 1998 STOCK PLAN
The FastForward Network, Inc.'s 1998 Stock Plan is hereby amended effective
October 30, 2000 as follows (the "Plan"):
A. Section 12 "Definitions" is amended by adding the following definitions:
"Cause" means (i) any act of personal dishonesty taken by the Optionee in
connection with his responsibilities as an Employee and intended to result in
substantial personal enrichment of the Optionee, (ii) the conviction of a
felony, (iii) a willful act by the Optionee that constitutes gross misconduct
and that is injurious to the Company, (iv) for a period of not less than thirty
(30) days following delivery to the Optionee of a written demand for performance
from the Company that describes the basis for the Company's belief that the
Optionee has not substantially performed his duties, continued violations by the
Optionee of the Optionee's obligations to the Company that are demonstrably
willful and deliberate on the Optionee's part or (v) as otherwise provided in a
Stock Option Agreement.
"Change in Control" means the occurrence of any of the following:
(i) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) becomes the "beneficial owner"
(as defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of the Company representing more than fifty percent (50%) of the total voting
power represented by the Company's then outstanding voting securities entitled
to vote generally in the election of directors;
(ii) Any action or event occurring within a two-year period, as a result
of which fewer than a majority of the directors are Incumbent Directors.
"Incumbent Directors" shall mean directors who either (A) are directors of the
Company as of the date hereof, or (B) are elected, or nominated for election, to
the Board of Directors with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but shall not
include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company);
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(iii) The consummation of a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or the entity that controls such
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company, such surviving entity or
entity that controls such surviving entity outstanding immediately after such
merger or consolidation; or
(iv) The consummation of the sale or disposition by the Company of all
or substantially all of the Company's assets.
B. Section 8 "Adjustment of Shares" is hereby amended by changing the heading to
"Adjustment of Shares, Change in Control and Excise Tax" and by adding the
following new Sections 8(d) and (e):
(d) Change in Control. Notwithstanding the exercise or vesting periods
set forth in the Plan or any Stock Option Agreement or Stock Purchase Agreement
or other related agreement, exercise of an Option or purchase of shares shall be
subject to the following:
If the Company or any successor thereto terminates
the Optionee's or Purchaser's employment without
Cause within twelve (12) months following a Change
in Control, the Optionee's Options or Purchaser's
Shares, as the case may be and any restricted stock
acquired upon exercise of the Optionee's Options or
otherwise granted under the Plan shall become 100%
vested and exercisable, and any rights of
repurchase shall lapse and Purchaser's Shares shall
become vested; provided, however, that no such
acceleration shall occur in the event that it would
preclude accounting for any business combination of
the Company involving a Change in Control as a
"pooling of interests."
(e) Excise Tax.
Notwithstanding any other provisions of the Plan or
any Stock Option Agreement or Stock Purchase
Agreement, or other related agreement, in the event
that any payment or benefit received or to be
received by the Optionee or Purchaser, as
applicable (whether pursuant to the terms of the
Plan or other plan, arrangement or agreement with
the Company, any person whose actions result in a
Change in Control or any person affiliated with the
Company or such person) (all such payments and
benefits being hereinafter called "Total Payments")
would be subject (in whole or part), to any excise
tax imposed under Section 4999 of the Code (the
"Excise Tax"), then, after taking into account any
reduction in the Total Payments provided by reason
of Section 280G of the Code in such other plan,
arrangement or agreement, the payment or benefit
received or to be received by the Optionee or
Purchaser, as the
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case may be (whether pursuant to the terms of the
Plan, any Stock Option Agreement, Stock Purchase
Agreement or other related agreement) shall be
reduced, to the extent necessary so that no portion
of the Total Payments is subject to the Excise Tax
but only if (A) the net amount of such Total
Payments, as so reduced (and after subtracting the
net amount of federal, state and local income taxes
on such reduced Total Payments) is greater than or
equal to (B) the net amount of such Total Payments
without such reduction (but after subtracting the
net amount of federal, state and local income taxes
on such Total Payments and the amount of Excise Tax
to which the Optionee would be subject in respect
of such unreduced Total Payments).
Unless the Company and the Optionee otherwise agree
in writing, any determination required under this
Section shall be made in writing by the Company's
independent public accountants (the "Accountants"),
whose determination shall be conclusive and binding
upon the Optionee or Purchaser, as applicable, and
the Company for all purposes. For purposes of
making the calculations required by this Section,
the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations
concerning the application of Sections 280G and
4999 of the Code. The Company and the Optionee or
Purchaser, as applicable, shall furnish to the
Accountants such information and documents as the
Accountants may reasonably request in order to make
a determination under this Section. The Company
shall bear all costs the Accountants may reasonably
incur in connection with any calculations
contemplated by this Section.