TENDEX, INC.
2000 SENIOR EXECUTIVE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of this Plan is to promote the interest of the
Corporation and its stockholders by strengthening the reasonability of the
Corporation and its Parent and Subsidiaries to attract, motivate and retain
senior executives, consultants and advisors with valued training, experience
and ability, and to provide a means to encourage stock ownership and a
proprietary interest in the Corporation to valued senior executives,
consultants and advisors. This Plan, and offers and sales of securities
pursuant hereto, is intended to meet the requirements of, and qualify under,
Rule 506 promulgated under the Securities Act, as such rule may be amended
from time to time, and offers and sales of securities pursuant hereto are
therefore intended to be exempt from the registration requirements of the
Securities Act if and for so long as the Corporation is not subject to the
reporting requirements of Sections 13 or 15(d) of the Exchange Act.
2. DEFINITIONS
2.1 "Administrator" shall mean the administrator of this Plan,
which may be, at the sole discretion of the Board of Directors, either the
Board of Directors as a whole or the Committee.
2.2 "Award" shall mean an Option or other award granted to a
Participant under this Plan.
2.3 "Board of Directors" shall mean the Board of Directors of the
Corporation.
2.4 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
2.5 "Committee" shall mean such committee, if any, designated by
the Board of Directors to administrator this Plan.
2.6 "Corporation" shall mean Tendex, Inc., a Delaware corporation.
2.7 "Corporations Code" shall mean the Corporations Code of the
State of California.
2.8 "Employee" shall mean any executive officer or employee of the
Corporation, or any Parent or Subsidiary.
2.9 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
2.10 "Fair Market Value" shall meant the fair market value of a
share of Stock as determined pursuant to Section 6.6.
2.11 "Parent or Subsidiary" shall mean any "parent" or "subsidiary"
of the Corporation, as such terms are defined in Section 424 of the Code, and
shall include any parent of the Corporation, any majority-owned subsidiary
of any parent of the Corporation as contemplated by Rule 701 promolgated
under the Securities Act.
2.12. "Participant" shall mean any Employee of, or consultant or
advisor to, the Corporation, or any Parent or Subsidiary, who has been
determined by the Administrator to be eligible to receive Award under this
Plan.
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2.13 "Participant" shall mean any Employee of, or consultant or
advisor to, the Corporation, or any Parent or Subsidiary, who has been
determined by the Administrator by the Administrator to be eligible to receive
Awards under this Plan.
2.14. "Plan" shall mean the Tendex 2000 Senior Executive Stock
Purchase Plan, as it may be amended from time to time.
2.15. "Purchase Rights" shall mean the right to buy shares of
Stock at a designated price granted by the Administrator to a Participant
under this Plan.
2.16. "Securities Act" shall mean the Securities Act of 1933, as
amended.
2.17. "Subscription Agreement" shall mean an agreement, in such
form as the Administrator shall determine pursuant to which a Participant
elects to purchase Stock and which sets Forth the terms and conditions of
such purchase.
3. ADMINISTRATION
3.1 ADMINISTRATOR. This Plan shall be administered by the
Administrator.
3.2 COMMITTEE
3.21 Members. The Committee, if any, shall select one of
its members as Chairman and shall appoint a Secretary, who need not be a
member of the Committee. The Committee shall hold meetings at such times and
places as it may determine and minutes of such meetings shall be recorded.
Acts by a majority of the COmmittee in a meeting at which a quorum is present
and acts approved in writing by all of the members of the Committee shall be
valid acts of the Committee. No member of the Committee shall vote on any
matter concerning his or her own participation in this Plan. Employees of a
Parent or Subsidiary may serve on the Committee.
3.22 TERM. The members of the COmmittee, if any, shall
serve on the Committee for the period of time determined by the Board of
Directors and shall be subject to removal by the Board of Directors at any
time. The Board of Directors may terminate the function of the Committee at
any time and resume all powers and authority previously delegated to the
Committee.
3.3 AUTHORITY. The Board of Directors shall have sole discretion
and authority to grant Purchase Rights under this Plan to Participants at
such times, under such terms, under such terms and in such amounts as it may
decide. Subject to the express provisions of this Plan, the Administrator
shall have complete authority to interpret this Plan, to prescribe, amend and
rescind the rules and regulations relating to this Plan, to determine the
details and provisions of any Subscription Agreement and to make all other
determinations necessary or advisable for the administration of this Plan.
3.4 INTERPRETATION. The interpretation and construction by the
Administrator of any provisions of this Plan or of any Purchase Right granted
under this Plan shall be final and binding on all parties having an interest
in this Plan or any Purchase Right granted hereunder. The Administrator shall
not be liable for any action or determination made in good faith with respect
to this Plan or any Purchase Right granted under this Plan.
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4. ELIGIBILITY. All members of the Corporation's or any Parent's
or Subsidiary's, senior management who hold the title "Senior Vice PResident"
or above or other employees, consultants and advisors who otherwise qualify
as an "accredited investor," as such term in defined in Rule 501 under the
Securities Act shall be eligible to receive Purchase Rights under this Plan.
The selection of Participants shall be within the sole and absolute
discretion of the Administrator. No Participant shall be allowed to purchase
shares of Stock under this Plan unless such Participation has executed a
Subscription Agreement and an Accredited Investor Certification Form.
5. SHARES OF STOCK SUBJECT TO THIS PLAN. The aggregate number of
shares subject to outstanding Purchase Rights shall not exceed 4,225,000
shares of Stock (subject to adjustment as provided in Section 7). If any
Purchase Right granted hereunder shall expire or terminate for any reason
without having been exercised in full the unpurchased shares subject thereto
shall again be available for purposes of this Plan.
6. TERMS AND CONDITIONS OF PURCHASE RIGHTS. Any shares of Stock
purchased pursuant to this Plan shall be evidenced by a Subscription
Agreement which agreement shall comply with and be subject to he following
terms and conditions:
6.1 NUMBER OF SHARES. Each Subscription Agreement shall state the
number of shares of Stock to which it pertains.
6.2 PURCHASE PRICE. Each Subscription Agreement shall state the
purchase price, which shall be no less than Fair Market Value of the Stock,
as determined in the manner set forth in Section 6.6
6.3 TERM OF PURCHASE RIGHT. The term of a Purchase Right granted
hereunder shall be determined by the Administrator at the time of grant, but
shall not exceed thirty (30) days from the date of grant. In no event shall
any Purchase Right be exercisable after the expiration of its term.
6.4 Method of Exercise. A Participant shall exercise a Pruchase
Right by delivering an executed Subscription Agreement to the Administrator.
SUch Subscription Agreement shall state the number of shares to be purchased.
Upon delivery o fan executed Subscription Agreement and receipt of the
purchase price of the shares of Stock being purchased the Administrator
shall deliver as soon as practicable to such Participant at the principal
office of the Corporation, or such other appropriate place as may be
determined by the Administrator, a certificate for such shares.
Notwithstanding the foregoing, the Administrator may postpone delivery of any
certificate or certificates after notice of exercise for such reasonable
period as may be required to comply with any applicable listing requirements
of any securities exchange.
6.5 Method and Time of Payment. The purchase price shall be
payable in full on or before the Purchase Date by check or money order.
6.6 Fair Market Value. Except as otherwise may be provide in the
subscription Agreement governing a grant of Purchase Rights, the Fair Market
Value of a share of Stock on any relevant date shall be determined in
accordance with the following provisions:
6.6.1 If the Stock at the time is neither listed nor admitted
to tradingon any stock exchange nor traded in the over-the-counter market,
then the Fair Market Value shall be determined in good faith by the
Administrator based on an independent third party valuation or such other
means as the Administrator shall deem appropriate.
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6.6.2 If the Stock at the time initiated or admitted to trading
on any stock exchange, then the Fair Market Value shall be the closing sales
price of one share of Stock on the date in question on the stock exchange
determined by the Administrator to be the primary market for the Stock, as
such price is officially quoted in the composite tape of transactions on such
exchange. If there is no reported sale of Stock on such exchange on the date
in question, then the Fair Market Value shall be the closing sales price on
the exchange on the last preceding date for which such quotation exists.
6.6.3 If the Stock at the time is neither listed nor admitted
to trading on any stock exchange but is traded in the over-the-counter
market, then the Fair Market Value shall be the mean between the highest bid
and lowest ask prices (or, if such information is available, the closing
sales price) of one share of Stock on the date in question in the
over-the-counter market, as such prices are reported by the National
Association of Securities Dealers through its NASDAQ system or any successor
system. If there are no reported bid and ask prices (or closing sales price)
for the Stock on the date in questions, then the Fair Market Value shall be
the mean between the highest bid and lowest ask price (or the closing sales
price) on the last preceding date for which such quotations exist.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
7.1 SUBDIVISION OR CONSOLIDATION. Subject to any required action by
the stockholders of the Corporation, if the outstanding shares of Stock are
increased, decreased or exchanged for a different number or kind of shares or
other securities, or if additional shares or new or different shares or other
securities are distributed with respect to such shares of Stock or other
securities, through merger, consolidation, spin off, sale of all or
substantially all the property of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse
stock split or other distribution with respect to such shares of Stock or
other securities, an appropriate and proportionate adjustment shall be made
in (a) the maximum number and kind of shares provided in Section 5, (b) the
number and kind of shares, units or other securities subject to the
then-outstanding Awards and (x) the price for each share or other unit of any
other securities subject to then-outstanding Awards without change in the
aggregate purchase price or value as to which such Awards remain exercisable
or subject to restrictions. No fractional interest shall be issued under this
Plan on account of any such adjustments.
7.2 ADJUSTMENTS. To the extent that the foregoing adjustments relate
to capital stock or securities of the Corporation, such adjustments shall be
made by the Administrator, whose determination in that respect shall be
final, binding and conclusive.
7.3 ABILITY TO ADJUST. The grant of a Purchase Right pursuant to
this Plan shall not affect in any way the right or power of the Corporation
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge, consolidate, dissolve, liquidate,
sell or transfer all or any part of its business assets.
7.4 NOTICE OF ADJUSTMENT. Whenever the Corporation shall take any
action resulting in any adjustment provided for in this Section 7, the
Corporation shall forthwith deliver notice of such action to each
Participant, which notice shall set forth the number of shares subject to the
Purchase Right and the purchase price thereto resulting from such adjustment.
8. NONASSIGNABILITY; RIGHT OF FIRST REFUSAL.
8.1 Purchase Rights granted under this Plan may not be sold,
pledged, assigned or transferred in any manner other than by will or by the
laws of ?????? succession, and may be exercised during the lifetime of a
Participant only by such Participant. Any transfer by a Participant of any
Purchase Right granted under this Plan in violation of this Section 8 shall
void such Purchase Right, and
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any Subscription Agreement entered into by such Participant and the
Corporation regarding such transferred Purchase Right shall be void and have
no further force or effect. No Purchase Right shall be pledged or
hypothecated in any way, nor shall any Purchase Right be subject to
execution, attachment or similar process.
8.2 Except as provided below, any shares of Stock issued pursuant to
any Purchase Right, together with any rights, securities or additional stock
that has been received pursuant to Section 7, shall be subject to a right of
first refusal by the Corporation in the event the holder of such shares
proposes to sell, pledge or otherwise transfer such shares or any interest in
such shares to any person or entity. Any holder of shares of Stock or other
securities acquired under any Purchase Right desiring to transfer such shares
Stock or other securities or any interest therein shall give written notice
to the Corporation describing the proposed transfer, including the number of
shares proposed to be transferred, the proposed transfer price and terms and
the name and address of the proposed transferee. Unless otherwise agreed to
by the Corporation and the holder of such shares, the Corporation shall have
a right of first refusal to repurchase the shares at the price at which the
shares were to be sold; provided, however, that if the Administrator
determines that such price is in excess of the Fair Market Value of such
shares, Tendex shall have the right, (but not the obligation) to purchase
such shares for their Fair Market Value.
8.3 If the Corporation fails to exercise its right of first refusal
within 10 days from the date upon which the Corporation received the
stockholders written notice, the stockholder may, within the next 90 days,
conclude a transfer of the exact number of shares covered by said notice on
terms not more favorable to the transferee than those described in the
notice. Except as provided below, any subsequent proposed transfer by such
transferee shall again be subject to the Corporation's right of first
refusal. If the Corporation exercises its right of first refusal, the
stockholder shall endorse and deliver to the Corporation the stock
certificates representing the shares being repurchased, and the Corporation
shall promptly pay the stockholder the total repurchase price. The holders of
shares being repurchased pursuant to the Corporation's right of first refusal
shall cease to have any rights with respect to such shares immediately upon
repurchase.
8.4 No written notice of a proposed transfer shall be required under
this Plan and no right of first refusal shall exist with respect to transfers
by will or the laws of ???????? succession.
8.5 Any attempted transfer of any shares of Stock or securities
subject to this right of first refusal that is not made in compliance with
this Plan shall be null and void.
8.6 The Administrator may assist the Corporation's right of first
refusal under this Plan to any person selected by the Administrator,
including one or more or the stockholders of the Corporation.
8.7 The right of first refusal set forth in this Plan shall
terminate upon the consummation of a firmly underwritten offering of the
Company's Stock.
9. TERM OF PLAN. This Plan is effective on the date this Plan is
adopted by the Board of Directors. This Plan shall terminate ten (10) years
after the date of adoption. Termination of this Plan shall not affect any
Purchase Right theretofore granted.
10. AMENDMENT AND TERMINATION.
10.1 The Administrator shall have the power, in its discretion, to
amend, suspend or terminate this Plan at any time. The Administrator may
amend this Plan to address administrative matters but may not, however, amend
this Plan in any material respect, including, without limitation, to increase
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the number of shares of Stock that may be issued, transferred or exercised
pursuant to Purchase Rights granted under this Plan or change the types or
terms of Purchase Rights that may be granted under this Plan, without the
approval of the stockholders of the Corporation.
10.2 The Administrator may, with the consent of a Participant, make
such modifications in the terms and conditions of a Subscription Agreement as
it deems advisable.
10.3 No amendment, suspension or termination of this Plan shall,
without the consent of a Participant, alter, terminate, impair or adversely
affect any right or obligation under any Purchase Right previously granted to
such Participant under this Plan.
11. GENERAL PROVISIONS.
11.1 APPROVAL OF BOARD OF DIRECTORS AND STOCKHOLDERS. This Plan
shall not take effect until approved by the Board of Directors. This Plan
shall be approved by a vote of the stockholders of the Corporation within
twelve (12) months from the date of approval by the Board of Directors. No
Purchase Right may be exercisable prior to the time this Plan is approved by
the stockholders of the Corporation. In the event such stockholder vote is
not obtained, all Purchase Rights granted hereunder, whether vested or
unvested, shall be null and void.
11.2 SECURITIES LAWS COMPLIANCE. Notwithstanding anything contained
herein, the Corporation shall not be obligated to grant any Purchase Rights
under this Plan or to sell, issue or effect any transfer of shares of Stock
unless such grant, sale, issuance or transfer is at such time effectively (i)
registered or exempt from registration under the Securities Act and (ii)
qualified or exempt from qualification under the California Corporate
Securities Law of 1968 and any other applicable state securities laws. As a
condition to the exercise of any Purchase Right, a Participant shall make
such representations as may be deemed appropriate by counsel to the
Corporation for the Corporation to use any available exemption from
registration under the Securities Act or any applicable state securities law.
11.3 RESTRICTIVE LEGENDS. The certificates representing the shares
of Stock issued pursuant to a Purchase Right will bear the following legends
giving notice of restrictions on transfer of such shares under the Act and
this Plan, as follows:
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
OR TRANSFERRED IN A TRANSACTION THAT WAS NOT REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), IN RELIANCE UPON AN EXEMPTION AFFORDED
BY SUCH ACT. NO SALE, TRANSFER, HYPOTHECATION OR ENCUMBRANCE OF THESE SHARES
SHALL BE MADE, NO ATTEMPTED SALE, TRANSFER, HYPOTHECATION OR ENCUMBRANCE
SHALL BE VALID AND THE ISSUER SHALL NOT BE REQUIRED TO GIVE ANY EFFECT TO ANY
SUCH TRANSACTION UNLESS (A) SUCH TRANSACTION SHALL HAVE BEEN DULY REGISTERED
UNDER THE ACT OR (B) THE ISSUER SHALL HAVE FIRST RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) SALE, TRANSFER, HYPOTHECATION OR ENCUMBRANCE OF THE SHARES
REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE PROVISIONS OF A
SUBSCRIPTION AGREEMENT DATED _______ AND A STOCK PURCHASE PLAN DATED JANUARY
11, 2000, AS MAY BE AMENDED FROM TIME TO TIME, COPIES OF WHICH MAY BE
INSPECTED AT THE CORPORATIONS PRINCIPAL OFFICE.
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(c) Any other legends required by applicable state securities
laws as determined by the Committee.
11.4. WITHHOLDING TAXES. Notwithstanding anything else to the
contrary in this Plan or any Subscription Agreement, the exercise of any
Purchase Right shall be conditioned upon payment by a Participant in cash or
other provisions satisfactory to the Administrator, including shares of
Stock, of all local, state, federal or other withholding taxes applicable, in
the Administrator's judgement, to the exercise of a Purchase Right or to the
subsequent disposition of shares acquired upon such exercise (including any
repurchase of a Purchase Right or shares of Stock).
11.5. RESERVATION OF SHARES. The Corporation, during the terms of
this Plan, shall at all times reserve and keep available such number of
shares of Stock as shall be sufficient to satisfy the requirements of this
Plan.
11.6. MANDATORY ARBITRATION. In the event of any dispute between the
Corporation and a Participant regarding this Plan, the dispute and any issue
as to the arbittability of such dispute shall be settled to the exclusion of
a court of law, by arbitration in Santa Clara County, by a panel of three
arbitrators (each party shall choose one arbitrator and the third shall be
chosen by the two arbitrators so selected) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect. The
decision of a majority of the arbitrators shall be final and binding upon the
parties. All costs of the arbitration and the fees of the arbitrators shall
be allocated between the parties as determined by a majority of the
arbitrators, it being the intention of the parties that the prevailing party
in such a proceeding be made whole with respect to its expenses.
11.7. PARACHUTE PAYMENTS. No outstanding Purchase Right or shares of
Stock acquired upon the exercise of a Purchase Right granted under this Plan
shall have any restrictions thereon accelerated or removed to the extent any
such acceleration or removal would, when added to the present value of other
payments in the nature of compensation that becomes due and payable to a
Participant, result in the payment to such Participant of an excess parachute
payment as determined under Section 280G of the Code. The existence of any
such excess parachute payment shall be determined in the sole and absolute
discretion of the Administrator.
11.8. NOTICES. Any notice to be given under the terms of this Plan
shall be addressed to the Corporation at its principal office in care of its
Secretary, and any notice to be given to a Participant shall be addressed to
such Participant at the address maintained by the Corporation for such
Participant or at such other address as such Participant may specify in
writing to the Corporation.
11.9. INFORMATION. The Corporation shall provide financial
statements at least annually to all Participants.
11.10. NO RIGHT TO EMPLOYMENT. Neither the grant nor exercise of a
Purchase Right nor anything in this Plan or any Subscription Agreement shall
impose upon the Corporation, or any Parent or Subsidiary, any obligation to
employ or continue to employ a Participant. The right of the Corporation, or
any Parent or Subsidiary, to terminate a Participant's employment shall not
be diminished or affected because a Purchase Right has been granted a
Participant.
11.11. NO RIGHTS AS A STOCKHOLDER. A Participant or his or her
successor shall have no rights as a stockholder of the Corporation with
respect to any shares of Stock underlying any Purchase Right until the date
of the issuance to such Participant of a certificate for such shares of
Stock. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other
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rights for which the record date is prior to the date such certificate is
issued, except as provided in Section 7.
11.12. APPLICATION OF FUNDS. The proceeds received by the Corporation
from the sale of shares of Stock pursuant to the exercise of Purchase Rights
may be used for general corporate purposes.
11.13. NO OBLIGATION TO EXERCISE PURCHASE RIGHT. The grant of a
Purchase Right shall not impose any obligation upon a Participant to exercise
such Purchase Right.
11.14. GOVERNING LAW. This plan and any Purchase Rights granted
hereunder shall be governed by the laws of the State of Delaware and
applicable federal law.
11.15. OTHER PROVISIONS. A subscription Agreement may contain such
other provisions, including, without limitation, provisions regarding the
timing of purchases, restrictions or conditions upon purchases, repurchase
rights applicable to shares and restrictions on the transfer of shares, as
the Administrator shall deem advisable.
As adopted by the Board of Directors as of January 11, 2000.
TENDEX, INC., a Delaware corporation
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