2001 Equity Incentive Plan - Interland Inc.
INTERLAND, INC.
2001 EQUITY INCENTIVE PLAN
An Assumption and Amendment and Restatement of the
HostPro, Inc. 2000 Equity Incentive Plan I and
HostPro, Inc. 2000 Equity Incentive Plan II
1. PURPOSE. The purpose of this Plan is to provide incentives to
attract, retain and motivate eligible persons whose present and potential
contributions are important to the success of Interland, the Company and other
Subsidiaries, by offering them an opportunity to participate in the future
performance of Interland through awards of Options and Restricted Stock.
Capitalized terms not defined in the text are defined in Section 22 hereof. This
Plan, as amended and restated, constitutes the assumption and the amendment and
restatement of the HostPro, Inc. 2000 Equity Incentive Plan I and HostPro, Inc.
2000 Equity Incentive Plan II (the "PRIOR PLANS").
2. SHARES SUBJECT TO THE PLAN.
2.1 Number of Shares Available. Subject to Sections 2.2 and 17
hereof, the total number of Shares reserved for issuance pursuant to this Plan
will be 6,858,000 Shares, which includes shares issued under the Prior Plans.1
Subject to Sections 2.2 and 17 hereof, Shares subject to Awards previously
granted under this Plan or the Prior Plans will again be available for grant and
issuance in connection with future Awards under this Plan to the extent such
Shares: (i) cease to be subject to issuance of Options without being exercised;
(ii) are subject to an Award granted hereunder but the Shares subject to such
Award are forfeited or repurchased by Interland at the original issue price; or
(iii) are subject to an Award that otherwise terminates without Shares being
issued. At all times Interland will reserve and keep available a sufficient
number of Shares as will be required to satisfy the requirements of all Awards
granted and outstanding under this Plan.
2.2 Adjustment of Shares. In the event that the number of outstanding
shares of Interland Common Stock is changed by a stock dividend,
recapitalization, stock split, reverse stock split, subdivision, combination,
reclassification or similar change in the capital structure of Interland without
consideration, then (i) the number of Shares reserved for issuance under this
Plan, (ii) the Exercise Prices of and number of Shares subject to outstanding
Options, (iii) the number of Shares that may be granted pursuant to Section 3,
below, and (iv) the Purchase Prices of and number of Shares subject to other
outstanding Awards will be proportionately adjusted, subject to any required
action by the Board or the stockholders of Interland and compliance with
applicable securities laws; provided, however, that fractions of a Share will
not be issued but will either be paid in cash at the Fair Market Value of such
fraction of a Share or will be rounded down to the nearest whole Share, as
determined by the Committee; and provided, further, that the Exercise Price of
any Option may not be decreased to below the par value of the Shares.
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3. ELIGIBILITY. Options and Restricted Stock Awards may be granted to
employees, officers, directors and consultants of Interland or a Subsidiary;
provided such consultants render bona fide services not in connection with the
offer and sale of securities in a capital-raising transaction. Neither Options
nor Restricted Stock granted to Insiders may exceed in the aggregate fifty
percent (50%) of all awards of Options or Restricted Stock under the Plan and
employees who are not Insiders must receive at least fifty percent (50%) of such
Options and Restricted Stock. A person may be granted more than one Award under
this Plan. No person will be eligible to receive more than 2,000,000 Shares in
any calendar year under this Plan pursuant to the grant of Awards hereunder,
other than new employees of Interland or a Subsidiary (including new employees
who are also officers and directors of Interland or a Subsidiary), who are
eligible to receive up to a maximum of 4,000,000 Shares in the calendar year in
which they commence their employment.
4. ADMINISTRATION.
4.1 Committee Authority. This Plan will be administered by the
Committee or the Board if no Committee is created by the Board or to the extent
required by the Code. Subject to the general purposes, terms and conditions of
this Plan, and to the direction of the Board, the Committee will have full power
to implement and carry out this Plan. Without limitation, the Committee will
have the authority to:
(a) construe and interpret this Plan, any Notice of Grant and any
other agreement or document executed pursuant to this Plan;
(b) prescribe, amend and rescind rules and regulations relating to
this Plan;
(c) approve persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration subject to
Awards;
(f) determine whether Awards will be granted singly, in combination
with, in tandem with, in replacement of, or as alternatives to,
other Awards under this Plan or awards under any other incentive
or compensation plan of Interland or a Subsidiary;
(g) grant waivers of any conditions of this Plan or any Award;
(h) determine the terms of vesting, exercisability and payment of
Awards;
(i) extend the vesting period or exercise period beyond a
Participant's Termination Date;
(j) accelerate the vesting or exercisability of any Award, including
but not limited to acceleration following a Corporate
Transaction;
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(k) correct any defect, supply any omission, or reconcile any
inconsistency in this Plan, any Award, any Notice of Grant, any
Exercise Agreement and any Restricted Stock Purchase Agreement;
(l) determine whether an Award has been earned; and
(m) make all other determinations necessary or advisable for the
administration of this Plan.
4.2 Committee Discretion. Unless in contravention of any express
terms of this Plan or Award, any determination made by the Committee with
respect to any Award will be made in its sole discretion either (i) at the time
of grant of the Award, or (ii) subject to Section 5.8 hereof, at any later time.
Any such determination will be final and binding on Interland, any Subsidiary
and on all persons having an interest in any Award under this Plan. The Board or
the Committee may delegate to one or more officers who are members of the Board
of Interland the authority to grant an Award under this Plan to non-Section 16
officers.
5. OPTIONS. The Committee may grant nonqualified stock options, the
number of Shares subject to the Option, the Exercise Price of the Option, the
period during which the Option may be exercised, and all other terms and
conditions of the Option, subject to the following:
5.1 Form of Option Grant. Each Option granted under this Plan will be
evidenced by a Notice of Grant ("NOTICE OF GRANT"), and will be in such form and
contain such provisions (which need not be the same for each Participant) as the
Committee may from time to time approve, and which will comply with and be
subject to the terms and conditions of this Plan.
5.2 Date of Grant. The date of grant of an Option will be the date on
which the Committee makes the determination to grant such Option, unless a later
date is otherwise specified by the Committee. The Notice of Grant and a copy of
this Plan will be delivered to the Participant within a reasonable time after
the granting of the Option.
5.3 Exercise Period. Options may be exercisable immediately but
subject to repurchase pursuant to Section 11 hereof or may be exercisable within
the times or upon the events determined by the Committee as set forth in the
Notice of Grant governing such Option; provided, however, that no Option will be
exercisable after the expiration of ten (10) years from the date the Option is
granted. The Committee also may provide for Options to become exercisable at one
time or from time to time, periodically or otherwise, in such number of Shares
or percentage of Shares as the Committee determines.
5.4 Exercise Price. The Exercise Price of an Option will be
determined by the Committee when the Option is granted and may have an Exercise
Price that is less than Fair Market Value (but more than par value) on the date
of grant. Payment for the Shares purchased must be made in accordance with
Section 7 hereof.
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5.5 Method of Exercise. Options may be exercised only by delivery to
Interland of a written stock option exercise agreement (the "EXERCISE
AGREEMENT") in a form approved by the Committee (which need not be the same for
each Participant). The Exercise Agreement will state (i) the number of Shares
being purchased, (ii) the restrictions imposed on the Shares purchased under
such Exercise Agreement, if any, and (iii) such representations and agreements
regarding Participant's investment intent and access to information and other
matters, if any, as may be required or desirable by Interland to comply with
applicable securities laws. Participant shall execute and deliver to Interland
the Exercise Agreement together with payment in full of the Exercise Price, and
any applicable taxes, for the number of Shares being purchased.
5.6 Termination. Subject to earlier termination pursuant to Section
17 hereof and notwithstanding the exercise periods set forth in the Notice of
Grant, exercise of an Option will always be subject to the following:
(a) If the Participant is Terminated for any reason other than
death, Disability or for Cause, then the Participant may
exercise such Participant's Options only to the extent that such
Options are exercisable upon the Termination Date or as
otherwise determined by the Committee. Such Options must be
exercised by the Participant, if at all, as to all or some of
the Vested Shares calculated as of the Termination Date or such
other date determined by the Committee, within thirty (30) days
after the Termination Date (or within such longer time period,
not exceeding five (5) years, after the Termination Date as may
be determined by the Committee), but in any event, no later than
the expiration date of the Options.
(b) If the Participant is Terminated because of Participant's death
or Disability (or the Participant dies within thirty (30) days
after a Termination other than for Cause), then Participant's
Options may be exercised only to the extent that such Options
are exercisable by Participant on the Termination Date or as
otherwise determined by the Committee. Such options must be
exercised by Participant (or Participant's legal representative
or authorized assignee), if at all, as to all or some of the
Vested Shares calculated as of the Termination Date or such
other date determined by the Committee, within twelve (12)
months after the Termination Date (or within such shorter time
period, not less than six (6) months, or within such longer time
period, not exceeding five (5) years, after the Termination Date
as may be determined by the Committee), but in any event no
later than the expiration date of the Options.
(c) If the Participant is terminated for Cause, then Participant's
Options shall expire on such Participant's Termination Date, or
at such later time and on such conditions as are determined by
the Committee.
5.7 Limitations on Exercise. The Committee may specify a reasonable
minimum number of Shares that may be purchased on any exercise of an Option,
provided that
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such minimum number will not prevent Participant from exercising the Option for
the full number of Shares for which it is then exercisable.
5.8 Modification, Extension or Renewal. The Committee may modify,
extend or renew outstanding Options and authorize the grant of new Options in
substitution therefor, provided that any such action may not, without the
written consent of a Participant, impair any of such Participant's rights under
any Option previously granted. The Committee may reduce the Exercise Price of
outstanding Options without the consent of Participants by a written notice to
them; provided, however, that the Exercise Price may not be reduced below the
minimum Exercise Price that would be permitted under Section 5.4 hereof for
Options granted on the date the action is taken to reduce the Exercise Price;
provided, further, that the Exercise Price will not be reduced below the par
value of the Shares, if any.
6. RESTRICTED STOCK.
6.1 Restricted Stock. A Restricted Stock Award is an offer by
Interland to sell to an eligible person Shares that are subject to certain
specified restrictions. The Committee will determine to whom an offer will be
made, the number of Shares the person may purchase, the Purchase Price, the
restrictions to which the Shares will be subject, and all other terms and
conditions of the Restricted Stock Award, subject to the following:
(a) Form of Restricted Stock Award. All purchases under a
Restricted Stock Award made pursuant to this Plan will be evidenced by a Notice
of Grant ("RESTRICTED STOCK PURCHASE AGREEMENT") that will be in such form
(which need not be the same for each Participant) as the Committee will from
time to time approve, and will comply with and be subject to the terms and
conditions of this Plan. The Restricted Stock Award will be accepted by the
Participant's execution and delivery of the Restricted Stock Purchase Agreement
and full payment for the Shares to Interland within thirty (30) days from the
date the Restricted Stock Purchase Agreement is delivered to the person. If such
person does not execute and deliver the Restricted Stock Purchase Agreement
along with full payment for the Shares to Interland within such thirty (30)
days, then the offer will terminate, unless otherwise determined by the
Committee.
(b) Purchase Price. The Purchase Price of Shares sold pursuant to
a Restricted Stock Award will be determined by the Committee and may be less
than the Fair Market Value of the Shares on the date the Restricted Stock Award
is granted or at the time the purchase is consummated. Payment of the Purchase
Price must be made in accordance with Section 7 hereof.
(c) Restrictions. Restricted Stock Awards may be subject to the
restrictions set forth in Section 11 hereof.
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7. PAYMENT FOR SHARE PURCHASES.
7.1 Payment. Payment for Shares purchased pursuant to this Plan may
be made in cash (by check) or, where expressly approved for the Participant by
the Committee and where permitted by law:
(a) by cancellation of indebtedness of Interland or a Subsidiary
owed to the Participant;
(b) by surrender of shares that: (i) either (A) have been owned by
Participant for more than six (6) months and have been paid for
within the meaning of SEC Rule 144 (and, if such shares were
purchased from Interland by use of a promissory note, such note
has been fully paid with respect to such shares) or (B) were
obtained by Participant in the public market and (ii) are clear
of all liens, claims, encumbrances or security interests;
(c) by tender of a full recourse promissory note having such terms
as may be approved by the Committee and bearing interest at a
rate sufficient to avoid imputation of income under Sections 483
and 1274 of the Code and any adverse accounting treatments;
provided, however, that Participants who are not employees or
directors of Interland or a Subsidiary will not be entitled to
purchase Shares with a promissory note unless the note is
adequately secured by collateral other than the Shares;
provided, further, that the portion of the Exercise Price or
Purchase Price, as the case may be, equal to the par value of
the Shares must be paid in cash or other legal consideration
permitted by law;
(d) by waiver of compensation due or accrued to the Participant from
Interland or a Subsidiary for services rendered;
(e) with respect only to purchases upon exercise of an Option, and
provided that a public market for Interland's stock exists:
through a "same day sale" commitment from the Participant and a
broker-dealer that is a member of the National Association of
Securities Dealers (an "NASD DEALER") whereby the Participant
irrevocably elects to exercise the Option and to sell a portion
of the Shares so purchased sufficient to pay the total Exercise
Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the total Exercise Price
directly to Interland; or
(f) by any combination of the foregoing.
7.2 Loan Guarantees. The Committee may, in its sole discretion, elect
to assist the Participant in paying for Shares purchased under this Plan by
authorizing a guarantee by Interland of a third-party loan to the Participant.
8. WITHHOLDING TAXES.
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8.1 Withholding Generally. Whenever Shares are to be issued in
satisfaction of Awards granted under this Plan, Interland may require the
Participant to remit to Interland an amount sufficient to satisfy federal, state
and local withholding tax requirements prior to the delivery of any certificate
or certificates for such Shares. Whenever, under this Plan, payments in
satisfaction of Awards are to be made in cash by Interland, such payment will be
net of an amount sufficient to satisfy federal, state, and local income and
employment withholding tax requirements.
8.2 Stock Withholding. When, under applicable tax laws, a Participant
incurs tax liability in connection with the exercise or vesting of any Award
that is subject to tax withholding and the Participant is obligated to pay
Interland the amount required to be withheld, the Committee may in its sole
discretion allow the Participant to satisfy the minimum withholding tax
obligation by electing to have Interland withhold from the Shares to be issued
that minimum number of Shares having a Fair Market Value equal to the minimum
amount required to be withheld, determined on the date that the amount of tax to
be withheld is to be determined; but in no event will Interland withhold Shares
if such withholding would result in adverse accounting consequences to Interland
or a Subsidiary. All elections by a Participant to have Shares withheld for this
purpose will be made in accordance with the requirements established by the
Committee for such elections and be in writing in a form acceptable to the
Committee.
9. PRIVILEGES OF STOCK OWNERSHIP.
9.1 Voting and Dividends. No Participant will have any of the rights
of a stockholder with respect to any Shares until the Shares are issued to the
Participant. After Shares are issued to the Participant, the Participant will be
a stockholder and have all the rights of a stockholder with respect to such
Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; provided, that if such
Shares are Restricted Stock, then any new, additional or different securities
the Participant may become entitled to receive with respect to such Shares by
virtue of a stock dividend, stock split or any other change in the corporate or
capital structure of Interland will be subject to the same restrictions as the
Restricted Stock. The Participant will have no right to retain such stock
dividends or stock distributions with respect to Unvested Shares that are
repurchased pursuant to Section 11 hereof. Interland will comply with any state
blue sky regulations with respect to the voting rights of Common Stock.
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10. TRANSFERABILITY.
10.1 General Rule. Except as otherwise provided in this Section 10,
Awards granted under this Plan, and any interest therein, will not be
transferable or assignable by Participant, and may not be made subject to
execution, attachment or similar process, otherwise than by will or by the laws
of descent and distribution or as determined by the Committee and set forth in
the Notice of Grant.
10.2 NQSOs. Unless otherwise restricted by the Committee, an NQSO
shall be exercisable: (i) during the Participant's lifetime only by (A) the
Participant, (B) the Participant's guardian or legal representative, (C) a
Family Member of the Participant who has acquired the NQSO by "permitted
transfer;" or (ii) after Participant's death, by the legal representative of the
Participant's heirs or legatees. "Permitted transfer" means, as authorized by
this Plan and the Committee in an NQSO, any transfer effected by the Participant
during the Participant's lifetime of an interest in such NQSO but only such
transfers which are by gift or domestic relations order. A permitted transfer
does not include any transfer for value and neither of the following are
transfers for value: (a) a transfer of under a domestic relations order in
settlement of marital property rights or (b) a transfer to an entity in which
more than fifty percent of the voting interests are owned by Family Members or
the Participant in exchange for an interest in that entity.
11. RESTRICTIONS ON SHARES. At the discretion of the Committee,
Interland may reserve to itself and/or its assignee(s) in the Notice of Grant a
right to repurchase Unvested Shares held by a Participant for cash and/or
cancellation of purchase money indebtedness owed to Interland or a Subsidiary by
the Participant following such Participant's Termination at any time within the
later of ninety (90) days after the Participant's Termination Date and the date
the Participant purchases Shares under the Plan at the Participant's Exercise
Price or Purchase Price, as the case may be.
12. CERTIFICATES. All certificates for Shares or other securities
delivered under this Plan will be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or advisable,
including restrictions under any applicable federal, state or foreign securities
law, or any rules, regulations and other requirements of the SEC or any stock
exchange or automated quotation system upon which the Shares may be listed or
quoted.
13. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a
Participant's Shares set forth in Section 11 hereof, the Committee may require
the Participant to deposit all certificates representing Shares, together with
stock powers or other instruments of transfer approved by the Committee,
appropriately endorsed in blank, with Interland or an agent designated by
Interland to hold in escrow until such restrictions have lapsed or terminated.
The Committee may cause a legend or legends referencing such restrictions to be
placed on the certificates. Any Participant who is permitted to execute a
promissory note as partial or full consideration for the purchase of Shares
under this Plan will be required to pledge and deposit with Interland all or
part of the Shares so purchased as collateral to secure the payment of
Participant's obligation to Interland under the promissory note; provided,
however, that the Committee may require or accept other or additional forms of
collateral to secure the payment of
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such obligation and, in any event, Interland will have full recourse against the
Participant under the promissory note notwithstanding any pledge of the
Participant's Shares or other collateral. In connection with any pledge of the
Shares, Participant will be required to execute and deliver a written pledge
agreement in such form as the Committee will from time to time approve.
14. EXCHANGE AND BUYOUT OF AWARDS. The Committee may, at any time or
from time to time, authorize Interland, with the consent of the respective
Participants, to issue new Awards in exchange for the surrender and cancellation
of any or all outstanding Awards. The Committee may at any time buy from a
Participant an Award previously granted with payment in cash, shares of Common
Stock of Interland (including Restricted Stock) or other consideration, based on
such terms and conditions as the Committee and the Participant may agree.
15. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award will not be
effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed or quoted, as they are in effect on the date of grant
of the Award and also on the date of exercise or other issuance. Notwithstanding
any other provision in this Plan, Interland will have no obligation to issue or
deliver certificates for Shares under this Plan prior to (i) obtaining any
approvals from governmental agencies that Interland determines are necessary or
advisable, and/or (ii) compliance with any exemption, completion of any
registration or other qualification of such Shares under any state or federal
law or ruling of any governmental body that Interland determines to be necessary
or advisable. Interland will not be under an obligation to register the Shares
with the SEC or to effect compliance with the exemption, registration,
qualification or listing requirements of any state securities laws, stock
exchange or automated quotation system, and neither Interland nor any Subsidiary
will have any liability for any inability or failure to do so.
16. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Award granted
under this Plan will confer or be deemed to confer on any Participant any right
to continue in the employ of, or to continue any other relationship with
Interland or a Subsidiary or limit in any way the right of Interland or a
Subsidiary to terminate Participant's employment or other relationship at any
time, with or without Cause.
17. CORPORATE TRANSACTIONS.
17.1 Assumption or Replacement of Awards by Successor. In the event
of (i) a dissolution or liquidation of Interland, (ii) a merger or consolidation
in which Interland is not the surviving corporation (other than a merger or
consolidation with a wholly-owned subsidiary, a reincorporation of Interland in
a different jurisdiction, or other transaction in which there is no substantial
change in the stockholders of Interland or their relative stock holdings and the
Awards granted under this Plan are assumed, converted or replaced by the
successor corporation, which assumption will be binding on all Participants), or
(iii) a merger in which Interland is the surviving corporation but after which
the stockholders of Interland immediately prior to such merger (other than any
stockholder that merges, or which owns or controls another corporation
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that merges, with Interland in such merger) cease to own their shares or other
equity interest in Interland, (each, a "CORPORATE TRANSACTION"), any or all
outstanding Awards may be assumed, converted or replaced by the successor or
acquiring corporation (if any), which assumption, conversion or replacement will
be binding on all Participants. In the alternative, the successor or acquiring
corporation may substitute equivalent Awards or provide substantially similar
consideration to Participants as was provided to stockholders (after taking into
account the existing provisions of the Awards). The successor or acquiring
corporation may also issue, in place of outstanding unvested Shares of Interland
held by the Participants, substantially similar shares or other property subject
to repurchase restrictions no less favorable to the Participant.
In the event such successor or acquiring corporation (if any)
refuses to assume or substitute Awards, as provided above, pursuant to a
Corporate Transaction described in this Subsection 17.1, then notwithstanding
any other provision in this Plan to the contrary, the vesting of such Awards
will accelerate and the Options will become exercisable in full prior to the
consummation of such event at such times and on such conditions as the Committee
determines, and if such Options are not exercised prior to the consummation of
the Corporate Transaction, they shall terminate in accordance with the
provisions of this Plan. Notwithstanding anything in this Plan to the contrary,
the Committee may, in its sole discretion, provide that the vesting of any or
all Awards granted pursuant to this Plan will accelerate upon a Corporate
Transaction described in this Section 17. If the Committee exercises such
discretion with respect to Options, such Options will become exercisable in full
prior to the consummation of such event at such time and on such conditions as
the Committee determines, and if such Options are not exercised prior to the
consummation of the Corporate Transaction, they shall terminate at such time as
determined by the Committee.
17.2 Other Treatment of Awards. Subject to any greater rights
granted to Participants under the foregoing provisions of this Section 17, in
the event of the occurrence of any transaction described in Section 17.1 hereof,
any outstanding Awards will be treated as provided in the applicable agreement
or plan of merger, consolidation, dissolution, liquidation or sale of assets.
17.3 Assumption of Awards by Interland. Interland, from time to
time, also may substitute or assume outstanding awards granted by another
company, whether in connection with an acquisition of such other company or
otherwise, by either (i) granting an Award under this Plan in substitution of
such other company's award or (ii) assuming such award as if it had been granted
under this Plan if the terms of such assumed award could be applied to an Award
granted under this Plan. Such substitution or assumption will be permissible if
the holder of the substituted or assumed award would have been eligible to be
granted an Award under this Plan if the other company had applied the rules of
this Plan to such grant. In the event Interland assumes an award granted by
another company, the terms and conditions of such award will remain unchanged
(except that the exercise price and the number and nature of shares issuable
upon exercise of any such option will be adjusted appropriately). In the event
Interland elects to grant a new Option rather than assuming an existing option,
such new Option may be granted with a similarly adjusted Exercise Price.
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18. ADOPTION. This Plan will become effective on the date that it is
adopted by the Board (the "EFFECTIVE DATE").
19. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated as provided
herein, this Plan will terminate ten (10) years from the Effective Date or, if
earlier, the date of stockholder approval. This Plan and all agreements
hereunder shall be governed by and construed in accordance with the laws of the
State of Minnesota.
20. AMENDMENT OR TERMINATION OF PLAN. Subject to Section 5.8 hereof, the
Board may at any time terminate or amend this Plan in any respect, including
without limitation amendment of any form of Notice of Grant or instrument to be
executed pursuant to this Plan
21. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this Plan by the
Board nor any provision of this Plan will be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and other equity awards otherwise than under this
Plan, and such arrangements may be either generally applicable or applicable
only in specific cases.
22. DEFINITIONS. As used in this Plan, the following terms will have the
following meanings:
"AWARD" means any award under this Plan, including any Option or
Restricted Stock Award.
"BOARD" means the Board of Directors of Interland.
"CAUSE" means Termination because of (i) any willful, material
violation by the Participant of any law or regulation applicable to the business
of Interland or a Subsidiary, the Participant's conviction for, or guilty plea
to, a felony or a crime involving moral turpitude, or any willful perpetration
by the Participant of a common law fraud, (ii) the Participant's commission of
an act of personal dishonesty which involves personal profit in connection with
Interland, a Subsidiary or any other entity having a business relationship with
Interland, (iii) any material breach by the Participant of any provision of any
agreement or understanding between Interland or a Subsidiary and the Participant
regarding the terms of the Participant's service as an employee, officer,
director or consultant to Interland or a Subsidiary, including without
limitation, the willful and continued failure or refusal of the Participant to
perform the material duties required of such Participant as an employee,
officer, director or consultant of Interland or a Subsidiary, other than as a
result of having a Disability, or a breach of any applicable invention
assignment and confidentiality agreement or similar agreement between Interland
or a Subsidiary and the Participant, (iv) Participant's disregard of the
policies of Interland or a Subsidiary so as to cause loss, damage or injury to
the property, reputation or employees of Interland or a Subsidiary, or (v) any
other misconduct by the Participant which is materially injurious to the
financial condition or business reputation of, or is otherwise materially
injurious to, Interland or a Subsidiary.
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"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the committee created and appointed by the Board
to administer this Plan, or if no committee is created and appointed, the Board.
"COMPANY" means HostPro, Inc., or any successor corporation.
"DISABILITY" means a disability, whether temporary or permanent,
partial or total, as determined by the Committee.
"EXERCISE PRICE" means the price at which a holder of an Option may
purchase the Shares issuable upon exercise of the Option.
"FAIR MARKET VALUE" means, as of any date, the value of a share of
Interland Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq National
Market, its closing price on the Nasdaq National Market on the
date of determination as reported in The Wall Street Journal;
(b) if such Common Stock is publicly traded and is then listed on a
national securities exchange, its closing price on the date of
determination on the principal national securities exchange on
which the Common Stock is listed or admitted to trading as
reported in The Wall Street Journal;
(c) if such Common Stock is publicly traded but is not quoted on
the Nasdaq National Market nor listed or admitted to trading on
a national securities exchange, the average of the closing bid
and asked prices on the date of determination as reported by
The Wall Street Journal (or, if not so reported, as otherwise
reported by any newspaper or other source as the Board may
determine); or
(d) if none of the foregoing is applicable, by the Committee in
good faith.
"FAMILY MEMBER" includes any of the following:
(a) child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law of the Participant, including any such person
with such relationship to the Participant by adoption;
(b) any person (other than a tenant or employee) sharing the
Participant's household;
(c) a trust in which the persons in (a) and (b) have more than
fifty percent of the beneficial interest;
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(d) a foundation in which the persons in (a) and (b) or the
Participant control the management of assets; or
(e) any other entity in which the persons in (a) and (b) or the
Participant own more than fifty percent of the voting interest.
"INSIDER" means an officer or director of Interland, Inc. or a
Subsidiary or any other person whose transactions in Interland Common Stock are
subject to Section 16 of the Securities Exchange Act of 1934, as amended.
"INTERLAND" means Interland, Inc.
"NOTICE OF GRANT" means, with respect to each Award, the written
agreement between Interland and the Participant setting forth the terms and
conditions of the Award, including the Restricted Stock Purchase Agreement.
"OPTION" means an award of an option to purchase Shares pursuant to
Section 5 hereof.
"PARTICIPANT" means a person who receives an Award under this Plan.
"PLAN" means this Interland, Inc. 2001 Equity Incentive Plan, as
amended from time to time.
"PURCHASE PRICE" means the price at which a Participant may purchase
Restricted Stock.
"RESTRICTED STOCK" means Shares purchased pursuant to a Restricted
Stock Award.
"RESTRICTED STOCK AWARD" means an award of Shares pursuant to
Section 6 hereof.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means shares of the Interland, Inc. Common Stock, $0.01 par
value, reserved for issuance under this Plan, as adjusted pursuant to Sections 2
and 17 hereof, and any successor security.
"SUBSIDIARY" means any corporation (other than Interland), including
the Company, in an unbroken chain of corporations beginning with Interland if
each of the corporations other than the last corporation in the unbroken chain
owns stock representing 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.
"TERMINATION" or "TERMINATED" means, for purposes of this Plan with
respect to a Participant, that the Participant has for any reason ceased to
provide services as an employee, officer, director or consultant to Interland or
a Subsidiary. A Participant will not be deemed to
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have ceased to provide services in the case of (i) sick leave, (ii) military
leave, or (iii) any other leave of absence approved by the Committee, provided
that such leave is for a period of not more than ninety (90) days (a) unless
reinstatement upon the expiration of such leave is guaranteed by contract or
statute, or (b) unless provided otherwise pursuant to formal policy adopted from
time to time by the Board and issued and promulgated in writing. In the case of
any Participant on (i) sick leave, (ii) military leave or (iii) an approved
leave of absence, the Committee may make such provisions respecting suspension
of vesting of the Award while on leave from Interland or a Subsidiary as it may
deem appropriate, except that in no event may an Option be exercised after the
expiration of the term set forth in the Notice of Grant. The Committee will have
sole discretion to determine whether a Participant has ceased to provide
services and the effective date on which the Participant ceased to provide
services (the "TERMINATION DATE").
"UNVESTED SHARES" means "Unvested Shares" as defined in the Notice
of Grant.
"VESTED SHARES" means "Vested Shares" as defined in the Notice of
Grant.
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