2001 Equity Incentive Plan - Micron Electronics Inc.
MICRON ELECTRONICS, 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,
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retain and motivate eligible persons whose present and potential contributions
are important to the success of Micron Electronics, the Company and other
Subsidiaries, by offering them an opportunity to participate in the future
performance of Micron Electronics 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.
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2.1 Number of Shares Available. Subject to Sections 2.2 and 17
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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 Micron Electronics at the original issue
price; or (iii) are subject to an Award that otherwise terminates without Shares
being issued. At all times Micron Electronics 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
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outstanding shares of Micron Electronics 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
Micron Electronics 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 Micron
Electronics 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
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/1/ As of the date of this amendment and restatement to the Prior Plans,
4,027,418 of the reserved Shares had been granted.
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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.
3. ELIGIBILITY. Options and Restricted Stock Awards may be granted to
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employees, officers, directors and consultants of Micron Electronics 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 Micron Electronics
or a Subsidiary (including new employees who are also officers and directors of
Micron Electronics 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.
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4.1 Committee Authority. This Plan will be administered by the
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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 Micron Electronics 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;
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(j) accelerate the vesting or exercisability of any Award, including
but not limited to acceleration following a Corporate
Transaction;
(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
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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 Micron Electronics, 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 Micron Electronics the authority to grant an Award under this
Plan to non-Section 16 officers.
5. OPTIONS. The Committee may grant nonqualified stock options, the
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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
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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
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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
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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
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determined by the Committee when the Option is granted and may have an Exercise
Price that is less than Fair
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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.
5.5 Method of Exercise. Options may be exercised only by delivery to
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Micron Electronics 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 Micron Electronics to comply
with applicable securities laws. Participant shall execute and deliver to
Micron Electronics 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
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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.
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(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
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minimum number of Shares that may be purchased on any exercise of an Option,
provided that 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,
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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.
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6.1 Restricted Stock. A Restricted Stock Award is an offer by Micron
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Electronics 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
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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 Micron Electronics 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 Micron Electronics
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
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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.
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(c) Restrictions. Restricted Stock Awards may be subject to the
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restrictions set forth in Section 11 hereof.
7. PAYMENT FOR SHARE PURCHASES.
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7.1 Payment. Payment for Shares purchased pursuant to this Plan may
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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 Micron Electronics 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 Micron Electronics 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
Micron Electronics 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
Micron Electronics or a Subsidiary for services rendered;
(e) with respect only to purchases upon exercise of an Option, and
provided that a public market for Micron Electronics'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 Micron Electronics; or
(f) by any combination of the foregoing.
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7.2 Loan Guarantees. The Committee may, in its sole discretion,
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elect to assist the Participant in paying for Shares purchased under this Plan
by authorizing a guarantee by Micron Electronics 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
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satisfaction of Awards granted under this Plan, Micron Electronics may require
the Participant to remit to Micron Electronics 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 Micron Electronics,
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
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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 Micron Electronics 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 Micron Electronics 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 Micron
Electronics withhold Shares if such withholding would result in adverse
accounting consequences to Micron Electronics 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.
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9.1 Voting and Dividends. No Participant will have any of the rights
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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 Micron Electronics 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. Micron Electronics will comply with
any state blue sky regulations with respect to the voting rights of Common
Stock.
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10. TRANSFERABILITY.
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10.1 General Rule. Except as otherwise provided in this Section 10,
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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
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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, Micron
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Electronics 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 Micron Electronics 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
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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
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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 Micron Electronics or an agent designated
by Micron Electronics 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 Micron
Electronics all or part of the Shares so purchased as collateral to secure the
payment of Participant's obligation to Micron Electronics under the promissory
note;
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provided, however, that the Committee may require or accept other or additional
forms of collateral to secure the payment of such obligation and, in any event,
Micron Electronics 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
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time to time, authorize Micron Electronics, 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 Micron Electronics (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
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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, Micron Electronics will have no obligation to
issue or deliver certificates for Shares under this Plan prior to (i) obtaining
any approvals from governmental agencies that Micron Electronics 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 Micron Electronics
determines to be necessary or advisable. Micron Electronics 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
Micron Electronics 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
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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 Micron
Electronics or a Subsidiary or limit in any way the right of Micron Electronics
or a Subsidiary to terminate Participant's employment or other relationship at
any time, with or without Cause.
17. CORPORATE TRANSACTIONS.
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17.1 Assumption or Replacement of Awards by Successor. In the event
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of (i) a dissolution or liquidation of Micron Electronics, (ii) a merger or
consolidation in which Micron Electronics is not the surviving corporation
(other than a merger or consolidation with a wholly-owned subsidiary, a
reincorporation of Micron Electronics in a different jurisdiction, or other
transaction in which there is no substantial change in the stockholders of
Micron Electronics or their relative stock holdings and the Awards granted under
this Plan are assumed, converted or
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replaced by the successor corporation, which assumption will be binding on all
Participants), or (iii) a merger in which Micron Electronics is the surviving
corporation but after which the stockholders of Micron Electronics immediately
prior to such merger (other than any stockholder that merges, or which owns or
controls another corporation that merges, with Micron Electronics in such
merger) cease to own their shares or other equity interest in Micron
Electronics, (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 Micron Electronics 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
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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 Micron Electronics. Micron Electronics,
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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 Micron Electronics assumes an award
granted by another company, the terms and conditions of such award will remain
unchanged (except that the exercise price and the
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number and nature of shares issuable upon exercise of any such option will be
adjusted appropriately). In the event Micron Electronics elects to grant a new
Option rather than assuming an existing option, such new Option may be granted
with a similarly adjusted Exercise Price.
18. ADOPTION. This Plan will become effective on the date that it is
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adopted by the Board (the "Effective Date").
19. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated as provided
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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
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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
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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
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following meanings:
"Award" means any award under this Plan, including any Option or
Restricted Stock Award.
"Board" means the Board of Directors of Micron Electronics.
"Cause" means Termination because of (i) any willful, material
violation by the Participant of any law or regulation applicable to the business
of Micron Electronics 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 Micron Electronics, a Subsidiary or any other entity having a
business relationship with Micron Electronics, (iii) any material breach by the
Participant of any provision of any agreement or understanding between Micron
Electronics or a Subsidiary and the Participant regarding the terms of the
Participant's service as an employee, officer, director or consultant to Micron
Electronics 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
Micron Electronics or a Subsidiary, other than as a result of having a
Disability, or a breach of any applicable invention assignment
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and confidentiality agreement or similar agreement between Micron Electronics or
a Subsidiary and the Participant, (iv) Participant's disregard of the policies
of Micron Electronics or a Subsidiary so as to cause loss, damage or injury to
the property, reputation or employees of Micron Electronics 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, Micron Electronics or a Subsidiary.
"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
Micron Electronics 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;
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(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
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Street Journal (or, if not so reported, as otherwise reported by
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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,
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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;
(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 Micron Electronics, Inc. or
a Subsidiary or any other person whose transactions in Micron Electronics Common
Stock are subject to Section 16 of the Securities Exchange Act of 1934, as
amended.
"Micron Electronics" means Micron Electronics, Inc.
"Notice of Grant" means, with respect to each Award, the written
agreement between Micron Electronics 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 Micron Electronics, 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 Micron Electronics, 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.
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<PAGE>
"Subsidiary" means any corporation (other than Micron Electronics),
including the Company, in an unbroken chain of corporations beginning with
Micron Electronics 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 Micron
Electronics or a Subsidiary. A Participant will not be deemed to 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 Micron Electronics 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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