Stock Option Plan [Amendment] - Ultraseek Corp.
AMENDMENT
TO
ULTRASEEK CORPORATION STOCK OPTION PLAN
The Ultraseek Corporation Stock Option Plan is hereby amended effective July 19,
2000 as follows (the "Plan"):
A. Article II "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 an
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 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. Article VII "Termination of Service" is amended by deleting the previous
Section 7.3 and replacing it in its entirety as follows:
7.3 Termination for Cause. Unless otherwise provided by the Board and
set forth in the Option Agreement, if the Optionee's employment shall be
terminated for Cause, the Optionee's right to exercise any unexercised portion
of an Option shall immediately terminate and all rights thereunder shall cease.
C. Article VII "Termination of Service" is amended by adding the following new
Sections 7.6 and 7.7:
7.6 Change in Control. Notwithstanding the exercise or vesting periods
set forth in the Plan or the Option Agreement, exercise of an Option shall
always be subject to the following:
If the Company or any successor thereto terminates
the Optionee's employment without Cause within
twelve (12) months following a Change in Control,
the Optionee's Options, and restricted stock
acquired upon exercise of the Optionee's Options or
otherwise granted under the Plan shall become 100%
vested and exercisable; 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."
7.7 Excise Tax.
Notwithstanding any other provisions of the Plan or
any Option Agreement, or other related agreement,
in the event that any payment or benefit received
or to be received by the Optionee (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
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280G of the Code in such other plan, arrangement or
agreement, the payment or benefit received or to be
received by the Optionee (whether pursuant to the
terms of the Plan, any Option 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 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 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.