EX-10.3.1



 





EXHIBIT
10.3.1


Synacor, Inc.




2000 STOCK PLAN




     1. Purposes of the Plan. The purposes of this 2000 Stock Plan are to attract and
retain the best available personnel for positions of substantial responsibility, to provide
additional incentive to Employees and Consultants and to promote the success of the Company’s
business. Options granted under the Plan may be Incentive Stock Options or Nonstatutory Stock
Options, as determined by the Administrator at the time of grant of an option and subject to the
applicable provisions of Section 422 of the Code and the regulations promulgated thereunder. Stock
Purchase Rights may also be granted under the Plan.



     2. Definitions. As used herein, the following definitions shall apply:



          (a) “Administrator” means the Board or its Committee appointed pursuant to Section 4
of the Plan.




          (b) “Affiliate” means an entity other than a Subsidiary (as defined below) which,
together with the Company, is under common control of a third person or entity.




          (c) “Applicable Laws” means the legal requirements relating to the administration of
stock option and restricted stock purchase plans under applicable U.S. New York corporate laws,
U.S. federal and applicable state securities laws, the Code, any Stock Exchange rules or
regulations and the applicable laws of any other country or jurisdiction where Options or Stock
Purchase Rights are granted under the Plan, as such laws, rules, regulations and requirements shall
be in place from time to time.




          (d) “Board” means the Board of Directors of the Company.




          (e) “Cause” for termination of a Participant’s Continuous Service Status will exist if
the Participant is terminated for any of the following reasons: (i) Participant’s willful failure
substantially to perform his or her duties and responsibilities to the Company or deliberate
violation of a Company policy; (ii) Participant’s commission of any act of fraud, embezzlement,
dishonesty or any other willful misconduct that has caused or is reasonably expected to result in
material injury to the Company; (iii) unauthorized use or disclosure by Participant of any
proprietary information or trade secrets of the Company or any other party to whom the Participant
owes an obligation of nondisclosure as a result of his or her relationship with the Company; or
(iv) Participant’s willful breach of any of his or her obligations under any written agreement or
covenant with the Company. The determination as to whether a Participant is being terminated for
Cause shall be made in good faith by the Company and shall be final and binding on the Participant.
The foregoing definition does not in any way limit the Company’s ability to terminate a
Participant’s employment or consulting relationship at any time as provided in Section 5(d) below,
and the term “Company” will be interpreted to include any Subsidiary, Parent, Affiliate or
successor thereto, if appropriate.




 









 








          (f) “Change of Control” means a sale of all or substantially all of the Company’s
assets, or any merger or consolidation of the Company with or into another corporation other than a
merger or consolidation in which the holders of more than 50% of the shares of capital stock of the
Company outstanding immediately prior to such transaction continue to hold (either by the voting
securities remaining outstanding or by their being converted into voting securities of the
surviving entity) more than 50% of the total voting power represented by the voting securities of
the Company, or such surviving entity, outstanding immediately after such transaction.




          (g) “Code” means the Internal Revenue Code of 1986, as amended.




          (h) “Committee” means one or more committees or subcommittees of the Board appointed
by the Board to administer the Plan in accordance with Section 4 below.




          (i) “Common Stock” means the Common Stock of the Company.




          (j) “Company” means Synacor, Inc. a New York corporation.




          (k) “Consultant” means any person, including an advisor, who is engaged by the Company
or any Parent, Subsidiary or Affiliate to render services and is compensated for such services, and
any director of the Company whether compensated for such services or not.




          (l) “Continuous Service Status” means the absence of any interruption or termination
of service as an Employee or Consultant. Continuous Service Status as an Employee or Consultant
shall not be considered interrupted in the case of: (i) sick leave; (ii) military leave; (iii) any
other leave of absence approved by the Administrator, provided that such leave is for a period of
not more than ninety (90) days, unless reemployment upon the expiration of such leave is guaranteed
by contract or statute, or unless provided otherwise pursuant to Company policy adopted from time
to time; or (iv) in the case of transfers between locations of the Company or between the Company,
its Parents, Subsidiaries, Affiliates or their respective successors. A change in status from an
Employee to a Consultant or from a Consultant to an Employee will not constitute an interruption of
Continuous Service Status.




          (m) “Corporate Transaction” means a sale of all or substantially all of the Company’s
assets, or a merger, consolidation or other capital reorganization of the Company with or into
another corporation and includes a Change of Control.




          (n) “Director” means a member of the Board.




          (o) “Employee” means any person employed by the Company or any Parent, Subsidiary or
Affiliate, with the status of employment determined based upon such factors as are deemed
appropriate by the Administrator in its discretion, subject to any requirements of the Code or the
Applicable Laws. The payment by the Company of a director’s fee to a Director shall not be
sufficient to constitute “employment” of such Director by the Company.




          (p) “Exchange Act” means the Securities Exchange Act of 1934, as amended.




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          (q) “Fair Market Value” means, as of any date, the fair market value of the Common
Stock, as determined by the Administrator in good faith on such basis as it deems appropriate and
applied consistently with respect to Participants. Whenever possible, the determination of Fair
Market Value shall be based upon the closing price for the Shares as reported in the Wall
Street Journal for the applicable date.




          (r) “Incentive Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code, as designated in the applicable Option
Agreement.




          (s) “Involuntary Termination” means termination of a Participant’s Continuous Service
Status under the following circumstances: (i) termination without Cause by the Company or a
Subsidiary, Parent, Affiliate or successor thereto, as appropriate; or (ii) voluntary termination
by the Participant within 30 days following (A) a material reduction in the Participant’s job
responsibilities, provided that neither a mere change in title alone nor reassignment following a
Change of Control to a position that is substantially similar to the position held prior to the
Change of Control shall constitute a material reduction in job responsibilities; (B) relocation by
the Company or a Subsidiary, Parent, Affiliate or successor thereto, as appropriate, of the
Participant’s work site to a facility or location more than 50 miles from the Participant’s
principal work site for the Company at the time of the Change of Control; or (C) a reduction in
Participant’s then-current base salary by at least 10%, provided that an across-the-board reduction
in the salary level of all other employees or consultants in positions similar to the Participant’s
by the same percentage amount as part of a general salary level reduction shall not constitute such
a salary reduction.




          (t) “Listed Security” means any security of the Company that is listed or approved for
listing on a national securities exchange or designated or approved for designation as a national
market system security on an interdealer quotation system by the National Association of Securities
Dealers, Inc.




          (u) “Named Executive” means any individual who, on the last day of the Company’s
fiscal year, is the chief executive officer of the Company (or is acting in such capacity) or among
the four most highly compensated officers of the Company (other than the chief executive officer).
Such officer status shall be determined pursuant to the executive compensation disclosure rules
under the Exchange Act.




          (v) “Nonstatutory Stock Option” means an Option not intended to qualify as an
Incentive Stock Option, as designated in the applicable Option Agreement.




          (w) “Option” means a stock option granted pursuant to the Plan.




          (x) “Option Agreement” means a written document, the form(s) of which shall be
approved from time to time by the Administrator, reflecting the terms of an Option granted under
the Plan and includes any documents attached to or incorporated into such Option Agreement,
including, but not limited to, a notice of stock option grant and a form of exercise notice.




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          (y) “Option Exchange Program” means a program approved by the Administrator whereby
outstanding Options are exchanged for Options with a lower exercise price or are amended to
decrease the exercise price as a result of a decline in the Fair Market Value of the Common Stock.




          (z) “Optioned Stock” means the Common Stock subject to an Option.




          (aa) “Optionee” means an Employee or Consultant who receives an Option.




          (bb) “Parent” means a “parent corporation,” whether now or hereafter existing, as
defined in Section 424(e) of the Code, or any successor provision.




          (cc) “Participant” means any holder of one or more Options or Stock Purchase Rights,
or the Shares issuable or issued upon exercise of such awards, under the Plan.




          (dd) “Plan” means this 2000 Stock Plan.




          (ee) “Reporting Person” means an officer, Director, or greater than ten percent
stockholder of the Company within the meaning of Rule 16a-2 under the Exchange Act, who is required
to file reports pursuant to Rule 16a-3 under the Exchange Act.




          (ff) “Restricted Stock” means Shares of Common Stock acquired pursuant to a grant of a
Stock Purchase Right under Section 11 below.




          (gg) “Restricted Stock Purchase Agreement” means a written document, the form(s) of
which shall be approved from time to time by the Administrator, reflecting the terms of a Stock
Purchase Right granted under the Plan and includes any documents attached to such agreement.




          (hh) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act, as amended from
time to time, or any successor provision.




          (ii) “Share” means a share of the Common Stock, as adjusted in accordance with Section
14 of the Plan.




          (jj) “Stock Exchange” means any stock exchange or consolidated stock price reporting
system on which prices for the Common Stock are quoted at any given time.




          (kk) “Stock Purchase Right” means the right to purchase Common Stock pursuant to
Section 11 below.




          (ll) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing,
as defined in Section 424(f) of the Code, or any successor provision.




          (mm) “Ten Percent Holder” means a person who owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any Parent or
Subsidiary.




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     3. Stock Subject to the Plan. Subject to the provisions of Section 14 of the Plan,
the maximum aggregate number of Shares that may be sold under the Plan is 5,515,757 Shares of
Common Stock. The Shares may be authorized, but unissued, or reacquired Common Stock. If an award
should expire or become unexercisable for any reason without having been exercised in full, or is
surrendered pursuant to an Option Exchange Program, the unpurchased Shares that were subject
thereto shall, unless the Plan shall have been terminated, become available for future grant under
the Plan. In addition, any Shares of Common Stock which are retained by the Company upon exercise
of an award in order to satisfy the exercise or purchase price for such award or any withholding
taxes due with respect to such exercise or purchase shall be treated as not issued and shall
continue to be available under the Plan. Shares issued under the Plan and later repurchased by the
Company pursuant to any repurchase right which the Company may have shall not be available for
future grant under the Plan.



     4. Administration of the Plan.



          (a) General. The Plan shall be administered by the Board or a Committee, or a
combination thereof, as determined by the Board. The Plan may be administered by different
administrative bodies with respect to different classes of Participants and, if permitted by the
Applicable Laws, the Board may authorize one or more officers to make awards under the Plan.




          (b) Committee Composition. If a Committee has been appointed pursuant to this Section
4, such Committee shall continue to serve in its designated capacity until otherwise directed by
the Board. From time to time the Board may increase the size of any Committee and appoint
additional members thereof, remove members (with or without cause) and appoint new members in
substitution therefor, fill vacancies (however caused) and remove all members of a Committee and
thereafter directly administer the Plan, all to the extent permitted by the Applicable Laws and, in
the case of a Committee administering the Plan in accordance with the requirements of Rule 16b-3 or
Section 162(m) of the Code, to the extent permitted or required by such provisions.




          (c) Powers of the Administrator. Subject to the provisions of the Plan and in the
case of a Committee, the specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion:




               (i) to determine the Fair Market Value of the Common Stock, in accordance with Section 2[(q)]
of the Plan, provided that such determination shall be applied consistently with respect to
Participants under the Plan;



               (ii) to select the Employees and Consultants to whom Options and Stock Purchase Rights may
from time to time be granted;



               (iii) to determine whether and to what extent Options and Stock Purchase Rights are granted;



               (iv) to determine the number of Shares of Common Stock to be covered by each award granted;



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               (v) to approve the form(s) of agreement(s) used under the Plan;



               (vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of
any award granted hereunder, which terms and conditions include but are not limited to the exercise
or purchase price, the time or times when awards may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Option, Optioned Stock, Stock Purchase Right or Restricted
Stock, based in each case on such factors as the Administrator, in its sole discretion, shall
determine;



               (vii) to determine whether and under what circumstances an Option may be settled in cash under
Section 10(c) instead of Common Stock;



               (viii) to reduce the exercise price of any Option to the then current Fair Market Value if the
Fair Market Value of the Common Stock covered by such Option has declined since the date the Option
was granted.



               (ix) to implement an Option Exchange Program on such terms and conditions as the Administrator
in its discretion deems appropriate, provided that no amendment or adjustment to an Option that
would materially and adversely affect the rights of any Optionee shall be made without the prior
written consent of the Optionee;



               (x) to adjust the vesting of an Option held by an Employee or Consultant as a result of a
change in the terms or conditions under which such person is providing services to the Company;



               (xi) to construe and interpret the terms of the Plan and awards granted under the Plan, which
constructions, interpretations and decisions shall be final and binding on all Participants; and



               (xii) in order to fulfill the purposes of the Plan and without amending the Plan, to modify
grants of Options or Stock Purchase Rights to Participants who are foreign nationals or employed
outside of the United States in order to recognize differences in local law, tax policies or
customs.



     5. Eligibility.



          (a) Recipients of Grants. Nonstatutory Stock Options and Stock Purchase Rights may be
granted to Employees and Consultants. Incentive Stock Options may be granted only to Employees,
provided that Employees of Affiliates shall not be eligible to receive Incentive Stock Options.




          (b) Type of Option. Each Option shall be designated in the Option Agreement as either
an Incentive Stock Option or a Nonstatutory Stock Option.




          (c) ISO $100,000 Limitation. Notwithstanding any designation under Section 5(b), to
the extent that the aggregate Fair Market Value of Shares with respect to which





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Options designated as Incentive Stock Options are exercisable for the first time by any
Optionee during any calendar year (under all plans of the Company or any Parent or Subsidiary)
exceeds $100,000, such excess Options shall be treated as Nonstatutory Stock Options. For purposes
of this Section 5(c), Incentive Stock Options shall be taken into account in the order in which
they were granted, and the Fair Market Value of the Shares subject to an Incentive Stock Option
shall be determined as of the date of the grant of such Option.




          (d) No Employment Rights. The Plan shall not confer upon any Participant any right
with respect to continuation of an employment or consulting relationship with the Company, nor
shall it interfere in any way with such Participant’s right or the Company’s right to terminate his
or her employment or consulting relationship at any time, with or without Cause.




     6. Term of Plan. The Plan shall become effective upon its adoption by the Board of
Directors. It shall continue in effect for a term of ten (10) years unless sooner terminated under
Section 16 of the Plan.



     7. Term of Option. The term of each Option shall be the term stated in the Option
Agreement; provided that the term shall be no more than ten years from the date of grant thereof or
such shorter term as may be provided in the Option Agreement and provided further that, in the case
of an Incentive Stock Option granted to a person who at the time of such grant is a Ten Percent
Holder, the term of the Option shall be five years from the date of grant thereof or such shorter
term as may be provided in the Option Agreement.



     8. Limitation on Grants to Employees. Subject to adjustment as provided in Section 14
below, the maximum number of Shares that may be subject to Options and Stock Purchase Rights
granted to any one Employee under this Plan for any fiscal year of the Company shall be 700,000
shares, provided that this Section 8 shall apply only after such time, if any, as the Common Stock
becomes a Listed Security.



     9. Option Exercise Price and Consideration.



          (a) Exercise Price. The per Share exercise price for the Shares to be issued pursuant
to exercise of an Option shall be such price as is determined by the Administrator and set forth in
the Option Agreement, but shall be subject to the following:




               (i) In the case of an Incentive Stock Option



                    (A) granted to an Employee who at the time of grant is a Ten Percent Holder, the per Share
exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant;
or



                    (B) granted to any other Employee, the per Share exercise price shall be no less than 100% of
the Fair Market Value per Share on the date of grant.



               (ii) In the case of a Nonstatutory Stock Option



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                    (A) granted prior to the date, if any, on which the Common Stock becomes a Listed Security to
a person who is at the time of grant is a Ten Percent Holder, the per Share exercise price shall be
no less than 110% of the Fair Market Value per Share on the date of grant if required by the
Applicable Laws and, if not so required, shall be such price as is determined by the Administrator;



                    (B) granted prior to the date, if any, on which the Common Stock becomes a Listed Security to
any other eligible person, the per Share exercise price shall be no less than 85% of the Fair
Market Value per Share on the date of grant if required by the Applicable Laws and, if not so
required, shall be such price as is determined by the Administrator; or



                    (C) granted on or after the date, if any, on which the Common Stock becomes a Listed Security
to any eligible person, the per share Exercise Price shall be such price as determined by the
Administrator provided that if such eligible person is, at the time of the grant of such Option, a
Named Executive of the Company, the per share Exercise Price shall be no less than 100% of the Fair
Market Value on the date of grant if such Option is intended to qualify as performance-based
compensation under Section 162(m) of the Code.



               (iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price
other than as required above pursuant to a merger or other corporate transaction.



          (b) Permissible Consideration. The consideration to be paid for the Shares to be
issued upon exercise of an Option, including the method of payment, shall be determined by the
Administrator (and, in the case of an Incentive Stock Option, shall be determined at the time of
grant) and may consist entirely of (1) cash; (2) check; (3) delivery of Optionee’s promissory note
with such recourse, interest, security and redemption provisions as the Administrator determines to
be appropriate (subject to the provisions of Section 505(e) and (f) of the New York Business
Corporation Law); (4) cancellation of indebtedness; (5) other Shares that have a Fair Market Value
on the date of surrender equal to the aggregate exercise price of the Shares as to which the Option
is exercised, provided that in the case of Shares acquired, directly or indirectly, from the
Company, such Shares must have been owned by the Optionee for more than six months on the date of
surrender (or such other period as may be required to avoid the Company’s incurring an adverse
accounting charge); (6) delivery of a properly executed exercise notice together with such other
documentation as the Administrator and a securities broker approved by the Company shall require to
effect exercise of the Option and prompt delivery to the Company of the sale or loan proceeds
required to pay the exercise price and any applicable withholding taxes; or (7) any combination of
the foregoing methods of payment. In making its determination as to the type of consideration to
accept, the Administrator shall consider if acceptance of such consideration may be reasonably
expected to benefit the Company and the Administrator may, in its sole discretion, refuse to accept
a particular form of consideration at the time of any Option exercise.




     10. Exercise of Option.



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          (a) General.




               (i) Exercisability. Any Option granted hereunder shall be exercisable at such times
and under such conditions as determined by the Administrator, consistent with the term of the Plan
and reflected in the Option Agreement, including vesting requirements and/or performance criteria
with respect to the Company and/or the Optionee; provided however that, if required by the
Applicable Laws, any Option granted prior to the date, if any, upon which the Common Stock becomes
a Listed Security shall become exercisable at the rate of at least 20% per year over five years
from the date the Option is granted. In the event that any of the Shares issued upon exercise of
an Option (which exercise occurs prior to the date, if any, upon which the Common Stock becomes a
Listed Security) should be subject to a right of repurchase in the Company’s favor, such repurchase
right shall, if required by the Applicable Laws, lapse at the rate of at least 20% per year over
five years from the date the Option is granted. Notwithstanding the above, in the case of an
Option granted to an officer, Director or Consultant of the Company or any Parent, Subsidiary or
Affiliate of the Company, the Option may become fully exercisable, or a repurchase right, if any,
in favor of the Company shall lapse, at any time or during any period established by the
Administrator. The Administrator shall have the discretion to determine whether and to what extent
the vesting of Options shall be tolled during any unpaid leave of absence; provided, however, that
in the absence of such determination, vesting of Options shall be tolled during any such leave.



               (ii) Minimum Exercise Requirements. An Option may not be exercised for a fraction of
a Share. The Administrator may require that an Option be exercised as to a minimum number of
Shares, provided that such requirement shall not prevent an Optionee from exercising the full
number of Shares as to which the Option is then exercisable.



               (iii) Procedures for and Results of Exercise. An Option shall be deemed exercised
when written notice of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and the Company has received full payment
for the Shares with respect to which the Option is exercised. Full payment may, as authorized by
the Administrator, consist of any consideration and method of payment allowable under Section 9(b)
of the Plan, provided that the Administrator may, in its sole discretion, refuse to accept any form
of consideration at the time of any Option exercise.



     Exercise of an Option in any manner shall result in a decrease in the number of Shares that
thereafter may be available, both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.



               (iv) Rights as Stockholder. Until the issuance of the Shares (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option. No adjustment will
be made for a dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 14 of the Plan.



          (b) Termination of Employment or Consulting Relationship. Except as otherwise set
forth in this Section 10(b), the Administrator shall establish and set forth in the applicable
Option Agreement the terms and conditions upon which an Option shall remain




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exercisable, if at all,
following termination of an Optionee’s Continuous Service Status, which provisions may be waived or
modified by the Administrator at any time. To the extent that the Optionee is not entitled to
exercise an Option at the date of his or her termination of Continuous Service Status, or if the
Optionee (or other person entitled to exercise the Option) does not exercise the Option to the
extent so entitled within the time specified in the Option Agreement or below (as applicable), the
Option shall terminate and the Optioned Stock underlying the unexercised portion of the Option
shall revert to the Plan. In no event may any Option be exercised after the expiration of the
Option term as set forth in the Option Agreement (and subject to Section 7).




          The following provisions (1) shall apply to the extent an Option Agreement does not specify
the terms and conditions upon which an Option shall terminate upon termination of an Optionee’s
Continuous Service Status, and (2) establish the minimum post-termination exercise periods that may
be set forth in an Option Agreement:




               (i) Termination other than Upon Disability or Death. In the event of termination of
an Optionee’s Continuous Service Status, such Optionee may exercise an Option for 30 days following
such termination to the extent the Optionee was entitled to exercise it at the date of such
termination. No termination shall be deemed to occur and this Section 10(b)(i) shall not apply if
(i) the Optionee is a Consultant who becomes an Employee, or (ii) the Optionee is an Employee who
becomes a Consultant.



               (ii) Disability of Optionee. In the event of termination of an Optionee’s Continuous
Service Status as a result of his or her disability (including a disability within the meaning of
Section 22(e)(3) of the Code), such Optionee may exercise an Option at any time within twelve
months following such termination to the extent the Optionee was entitled to exercise it at the
date of such termination.



               (iii) Death of Optionee. In the event of the death of an Optionee during the period
of Continuous Service Status since the date of grant of the Option, or within thirty days following
termination of Optionee’s Continuous Service Status, the Option may be exercised by Optionee’s
estate or by a person who acquired the right to exercise the Option by bequest or inheritance at
any time within six months following the date of death, but only to the extent of the right to
exercise that had accrued at the date of death or, if earlier, the date the Optionee’s Continuous
Service Status terminated.



          (c) Buyout Provisions. The Administrator may at any time offer to buy out for a
payment in cash or Shares an Option previously granted under the Plan based on such terms and
conditions as the Administrator shall establish and communicate to the Optionee at the time that
such offer is made.




     11. Stock Purchase Rights.



          (a) Rights to Purchase. When the Administrator determines that it will offer Stock
Purchase Rights under the Plan, it shall advise the offeree in writing of the terms, conditions and
restrictions related to the offer, including the number of Shares that such person shall be
entitled to purchase, the price to be paid, and the time within which such person must




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accept such
offer. In the case of a Stock Purchase Right granted prior to the date, if any, on which the
Common Stock becomes a Listed Security and if required by the Applicable Laws at that time, the
purchase price of Shares subject to such Stock Purchase Rights shall not be less than 85% of the
Fair Market Value of the Shares as of the date of the offer, or, in the case of a Ten Percent
Holder, the price shall not be less than 100% of the Fair Market Value of the Shares as of the date
of the offer. If the Applicable Laws do not impose the requirements set forth in the preceding
sentence and with respect to any Stock Purchase Rights granted after the date, if any, on which the
Common Stock becomes a Listed Security, the purchase price of Shares subject to Stock Purchase
Rights shall be as determined by the Administrator. The offer to purchase Shares subject to Stock
Purchase Rights shall be accepted by execution of a Restricted Stock Purchase Agreement in the form
determined by the Administrator.




          (b) Repurchase Option.




               (i) General. Unless the Administrator determines otherwise, the Restricted Stock
Purchase Agreement shall grant the Company a repurchase option exercisable upon the voluntary or
involuntary termination of the purchaser’s employment with the Company for any reason (including
death or disability). The purchase price for Shares repurchased pursuant to the Restricted Stock
Purchase Agreement shall be the original purchase price paid by the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The repurchase option shall lapse
at such rate as the Administrator may determine, provided that with respect to a Stock Purchase
Right granted prior to the date, if any, on which the Common Stock becomes a Listed Security to a
purchaser who is not an officer, Director or Consultant of the Company or of any Parent or
Subsidiary of the Company, it shall lapse at a minimum rate of 20% per year if required by the
Applicable Laws.



               (ii) Termination. In the event of termination of a Participant’s Continuous Service
Status, the Company shall have the right to repurchase from the Participant vested Shares issued
upon exercise of a Stock Purchase Right granted to any person prior to the date, if any, upon which
the Common stock becomes a Listed Security upon the following terms: (A) the repurchase must be
made within 90 days of termination of the Participant’s Continuous Service Status at the Fair
Market Value of the Shares as of the date of termination, (B) consideration for the repurchase
consists of cash or cancellation of purchase money indebtedness, and (C) the repurchase right
terminates upon the effective date of the Company’s initial public offering of its Common Stock.
Nothing in this Section 11(b)(ii) shall in any way limit the Company’s right to purchase unvested
Shares as set forth in the applicable Restricted Stock Purchase Agreement.



          (c) Other Provisions. The Restricted Stock Purchase Agreement shall contain such
other terms, provisions and conditions not inconsistent with the Plan as may be
determined by the Administrator in its sole discretion. In addition, the provisions of
Restricted Stock Purchase Agreements need not be the same with respect to each purchaser.




          (d) Rights as a Stockholder. Once the Stock Purchase Right is exercised, the
purchaser shall have the rights equivalent to those of a stockholder, and shall be a stockholder
when his or her purchase is entered upon the records of the duly authorized transfer agent of the




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Company. No adjustment will be made for a dividend or other right for which the record date is
prior to the date the Stock Purchase Right is exercised, except as provided in Section 14 of the
Plan.




     12. Taxes.



          (a) As a condition of the exercise of an Option or Stock Purchase Right granted under the
Plan, the Participant (or in the case of the Participant’s death, the person exercising the Option
or Stock Purchase Right) shall make such arrangements as the Administrator may require for the
satisfaction of any applicable federal, state, local or foreign withholding tax obligations that
may arise in connection with the exercise of the Option or Stock Purchase Right and the issuance of
Shares. The Company shall not be required to issue any Shares under the Plan until such
obligations are satisfied. If the Administrator allows the withholding or surrender of Shares to
satisfy a Participant’s tax withholding obligations under this Section 12 (whether pursuant to
Section 12(c), (d) or (e), or otherwise), the Administrator shall not allow Shares to be withheld
in an amount that exceeds the minimum statutory withholding rates for federal and state tax
purposes, including payroll taxes.




          (b) In the case of an Employee and in the absence of any other arrangement, the Employee shall
be deemed to have directed the Company to withhold or collect from his or her compensation an
amount sufficient to satisfy such tax obligations from the next payroll payment otherwise payable
after the date of an exercise of the Option or Stock Purchase Right.




          (c) This Section 12(c) shall apply only after the date, if any, upon which the Common Stock
becomes a Listed Security. In the case of Participant other than an Employee (or in the case of an
Employee where the next payroll payment is not sufficient to satisfy such tax obligations, with
respect to any remaining tax obligations), in the absence of any other arrangement and to the
extent permitted under the Applicable Laws, the Participant shall be deemed to have elected to have
the Company withhold from the Shares to be issued upon exercise of the Option or Stock Purchase
Right that number of Shares having a Fair Market Value determined as of the applicable Tax Date (as
defined below) equal to the amount required to be withheld. For purposes of this Section 12, the
Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of
tax to be withheld is to be determined under the Applicable Laws (the “Tax Date”).




          (d) If permitted by the Administrator, in its discretion, a Participant may satisfy his or her
tax withholding obligations upon exercise of an Option or Stock Purchase Right by surrendering to
the Company Shares that have a Fair Market Value determined as of the applicable Tax Date equal to
the amount required to be withheld. In the case of shares previously acquired from the Company
that are surrendered under this Section 12(d), such Shares must have
been owned by the Participant for more than six (6) months on the date of surrender (or such
other period of time as is required for the Company to avoid adverse accounting charges).




          (e) Any election or deemed election by a Participant to have Shares withheld to satisfy tax
withholding obligations under Section 12(c) or (d) above shall be irrevocable as to the particular
Shares as to which the election is made and shall be subject to the consent or




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disapproval of the
Administrator. Any election by a Participant under Section 12(d) above must be made on or prior to
the applicable Tax Date.




          (f) In the event an election to have Shares withheld is made by a Participant and the Tax Date
is deferred under Section 83 of the Code because no election is filed under Section 83(b) of the
Code, the Participant shall receive the full number of Shares with respect to which the Option or
Stock Purchase Right is exercised but such Participant shall be unconditionally obligated to tender
back to the Company the proper number of Shares on the Tax Date.




     13. Non-Transferability of Options and Stock Purchase Rights.



          (a) General. Except as set forth in this Section 13, Options and Stock Purchase
Rights may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent or distribution. The designation of a beneficiary by
an Optionee will not constitute a transfer. An Option or Stock Purchase Right may be exercised,
during the lifetime of the holder of an Option or Stock Purchase Right, only by such holder or a
transferee permitted by this Section 13.




          (b) Limited Transferability Rights. Notwithstanding anything else in this Section 13,
prior to the date, if any, on which the Common Stock becomes a Listed Security, the Administrator
may in its discretion grant Nonstatutory Stock Options that may be transferred by instrument to an
inter vivos or testamentary trust in which the Options are to be passed to beneficiaries upon the
death of the trustor (settlor) or by gift to “Immediate Family” (as defined below), on such terms
and conditions as the Administrator deems appropriate. Following the date, if any, on which the
Common Stock becomes a Listed Security, the Administrator may in its discretion grant transferable
Nonstatutory Stock Options pursuant to Option Agreements specifying the manner in which such
Nonstatutory Stock Options are transferable. “Immediate Family” means any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include
adoptive relationships.




     14. Adjustments Upon Changes in Capitalization, Merger or Certain Other Transactions.



          (a) Changes in Capitalization. Subject to any required action by the stockholders of
the Company, the number of Shares of Common Stock covered by each outstanding Option or Stock
Purchase Right, the numbers of Shares set forth in Sections 3(a) and 8 above, and the number of
Shares of Common Stock that have been authorized for issuance under the Plan but as to which no
Options or Stock Purchase Rights have yet been granted or that
have been returned to the Plan upon cancellation or expiration of an Option or Stock Purchase
Right, as well as the price per Share of Common Stock covered by each such outstanding Option or
Stock Purchase Right, shall be proportionately adjusted for any increase or decrease in the number
of issued Shares of Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination, recapitalization or reclassification of the Common Stock, or any other increase or
decrease in the number of issued Shares of Common Stock effected without receipt of consideration
by the Company; provided, however, that conversion of any convertible




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securities of the Company
shall not be deemed to have been “effected without receipt of consideration.” Such adjustment
shall be made by the Administrator, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price of Shares of Common
Stock subject to an Option or Stock Purchase Right.




          (b) Dissolution or Liquidation. In the event of the dissolution or liquidation of the
Company, each Option and Stock Purchase Right will terminate immediately prior to the consummation
of such action, unless otherwise determined by the Administrator.




          (c) Corporate Transaction. In the event of a Corporate Transaction, each outstanding
Option or Stock Purchase Right shall be assumed or an equivalent option or right shall be
substituted by such successor corporation or a parent or subsidiary of such successor corporation
(the “Successor Corporation”), unless the Successor Corporation does not agree to assume
the award or to substitute an equivalent option or right, in which case such Option or Stock
Purchase Right shall terminate upon the consummation of the transaction.




          Notwithstanding the above, in the event (i) of a Change of Control following the date, if any,
on which the Common Stock becomes a Listed Security, and (ii) a Participant holding an Option or
Stock Purchase Right assumed or substituted by the Successor Corporation in the Change of Control,
or holding Restricted Stock issued upon exercise of an Option or Stock Purchase Right with respect
to which the Successor Corporation has succeeded to a repurchase right as a result of the Change of
Control, is Involuntarily Terminated by the Successor Corporation without Cause in connection with,
or within 24 months following consummation of, the transaction, then any assumed or substituted
Option or Stock Purchase Right held by the terminated Participant at the time of termination shall
accelerate and become exercisable as to the number of Shares that would otherwise have vested and
been exercisable as of the date 24 months following from the date of termination, and any
repurchase right applicable to any Shares shall lapse as to the number of Shares as to which the
repurchase right would otherwise have lapsed as of the date 24 months following from the date of
termination, in each case assuming the Participant remained in Continuous Service Status for such
24 month period. The acceleration of vesting and lapse of repurchase rights provided for in the
previous sentence shall occur immediately prior to the effective date of the Participant’s
termination.




          For purposes of this Section 14(c), an Option or a Stock Purchase Right shall be considered
assumed, without limitation, if, at the time of issuance of the stock or other consideration upon a
Corporate Transaction or a Change of Control, as the case may be, each holder of an Option or Stock
Purchase Right would be entitled to receive upon exercise of the
award the same number and kind of shares of stock or the same amount of property, cash or
securities as such holder would have been entitled to receive upon the occurrence of the
transaction if the holder had been, immediately prior to such transaction, the holder of the number
of Shares of Common Stock covered by the award at such time (after giving effect to any adjustments
in the number of Shares covered by the Option or Stock Purchase Right as provided for in this
Section 14); provided that if such consideration received in the transaction is




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not solely common
stock of the Successor Corporation, the Administrator may, with the consent of the Successor
Corporation, provide for the consideration to be received upon exercise of the award to be solely
common stock of the Successor Corporation equal to the Fair Market Value of the per Share
consideration received by holders of Common Stock in the transaction.




          (d) Limitation on Payments. In the event that the vesting acceleration or lapse of a
repurchase right provided for in Section 14(c) above (x) constitutes “parachute payments” within
the meaning of Section 280G of the Code, and (y) but for this Section 14(d) would be subject to the
excise tax imposed by Section 4999 of the Code (or any corresponding provisions of state income tax
law), then such vesting acceleration or lapse of a repurchase right shall be either




               (A) delivered in full, or



               (B) delivered as to such lesser extent which would result in no portion of such severance
benefits being subject to excise tax under Code Section 4999, whichever amount, taking into account
the applicable federal, state and local income taxes and the excise tax imposed by Code Section
4999, results in the receipt by the Participant on an after-tax basis of the greater amount of
acceleration or lapse of repurchase rights benefits, notwithstanding that all or some portion of
such benefits may be taxable under Code Section 4999. Any determination required under this
Section 14(d) shall be made in writing by the Company’s independent accountants, whose
determination shall be conclusive and binding for all purposes on the Company and any affected
Participant. In the event that (A) above applies, then the Participant shall be responsible for
any excise taxes imposed with respect to such benefits. In the event that (B) above applies, then
each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid
imposition of such excise taxes.



          (e) Certain Distributions. In the event of any distribution to the Company’s
stockholders of securities of any other entity or other assets (other than dividends payable in
cash or stock of the Company) without receipt of consideration by the Company, the Administrator
may, in its discretion, appropriately adjust the price per Share of Common Stock covered by each
outstanding Option or Stock Purchase Right to reflect the effect of such distribution.




     15. Time of Granting Options and Stock Purchase Rights. The date of grant of an
Option or Stock Purchase Right shall, for all purposes, be the date on which the Administrator
makes the determination granting such Option or Stock Purchase Right, or such other date as is
determined by the Administrator, provided that in the case of any Incentive Stock Option, the grant
date shall be the later of the date on which the Administrator makes the determination granting
such Incentive Stock Option or the date of commencement of the Optionee’s employment relationship
with the Company. Notice of the determination shall be given to each
Employee or Consultant to whom an Option or Stock Purchase Right is so granted within a
reasonable time after the date of such grant.



     16. Amendment and Termination of the Plan.



          (a) Authority to Amend or Terminate. The Board may at any time amend, alter, suspend
or discontinue the Plan, but no amendment, alteration, suspension or




15









 







discontinuation (other than an
adjustment pursuant to Section 14 above) shall be made that would materially and adversely affect
the rights of any Optionee or holder of Stock Purchase Rights under any outstanding grant, without
his or her consent. In addition, to the extent necessary and desirable to comply with the
Applicable Laws, the Company shall obtain stockholder approval of any Plan amendment in such a
manner and to such a degree as required.




          (b) Effect of Amendment or Termination. No amendment or termination of the Plan shall
materially and adversely affect Options or Stock Purchase Rights already granted, unless mutually
agreed otherwise between the Optionee or holder of the Stock Purchase Rights and the Administrator,
which agreement must be in writing and signed by the Optionee or holder and the Company.




     17. Conditions Upon Issuance of Shares. Notwithstanding any other provision of the
Plan or any agreement entered into by the Company pursuant to the Plan, the Company shall not be
obligated, and shall have no liability for failure, to issue or deliver any Shares under the Plan
unless such issuance or delivery would comply with the Applicable Laws, with such compliance
determined by the Company in consultation with its legal counsel. As a condition to the exercise
of an Option or Stock Purchase Right, the Company may require the person exercising the award to
represent and warrant at the time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares if, in the opinion
of counsel for the Company, such a representation is required by law.



     18. Reservation of Shares. The Company, during the term of this Plan, will at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.



     19. Agreements. Options and Stock Purchase Rights shall be evidenced by Option
Agreements and Restricted Stock Purchase Agreements, respectively, in such form(s) as the
Administrator shall from time to time approve.



     20. Stockholder Approval. If required by the Applicable Laws, continuance of the Plan
shall be subject to approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such stockholder approval shall be obtained in the manner and
to the degree required under the Applicable Laws.



     21. Information and Documents to Optionees and Purchasers. Prior to the date, if any,
upon which the Common Stock becomes a Listed Security and if required by the Applicable Laws, the
Company shall provide financial statements at least annually to each Optionee and to each
individual who acquired Shares pursuant to the Plan, during the period such Optionee or
purchaser has one or more Options or Stock Purchase Rights outstanding, and in the case of an
individual who acquired Shares pursuant to the Plan, during the period such individual owns such
Shares. The Company shall not be required to provide such information if the issuance of Options
or Stock Purchase Rights under the Plan is limited to key employees whose duties in connection with
the Company assure their access to equivalent information.






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