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EXHIBIT 10C
REALLEGACY.COM, INC.
2000 KEY EMPLOYEE STOCK AWARD PLAN
1. PURPOSE. The purpose of this 2000 Key Employee Stock Award Plan (the
"Plan") is to motivate key personnel to produce a superior return to the
shareholders of RealLegacy.com, Inc. by offering such personnel an opportunity
to realize Stock appreciation, by facilitating Stock ownership, and by rewarding
them for achieving a high level of corporate performance. This Plan is also
intended to facilitate recruiting and retaining key personnel of outstanding
ability by providing an attractive capital accumulation opportunity.
2. DEFINITIONS.
2.1 The terms defined in this section are used (and capitalized) elsewhere
in this Plan.
(a) "AFFILIATE" means any corporation that is a "parent corporation" or
"subsidiary corporation" of the Company, as those terms are defined in Section
424(e) and (f) of the Code, or any successor provision.
(b) "AGREEMENT" means a written contract entered into between the Company
or an Affiliate and a Participant containing the terms and conditions of an
Award in such form (not inconsistent with this Plan) as the Committee approves
from time to time, together with all amendments thereto, which amendments may be
unilaterally made by the Company (with the approval of the Committee) unless
such amendments are deemed by the Committee to be materially adverse to the
Participant and are not required as a matter of law.
(c) "AWARD" means a grant made under this Plan in the form of Options,
Restricted Stock, Stock, Performance Units or any other Stock-based Award.
(d) "BOARD" means the Board of Directors of the Company.
(e) "CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
(f) "COMMITTEE" means two or more Directors designated by the Board to
administer this Plan under Section 3 hereof. If required for grants to an
Employee referred to in the last sentence of the definition of "Employee", the
Committee shall be comprised of nonemployee directors (as defined in Rule 16b-3
of the Securities and Exchange Commission).
(g) "COMPANY" means RealLegacy.com, Inc., a Minnesota corporation, or any
successor to substantially all of its businesses.
(h) "DIRECTOR" means a member of the Board of Directors of the Company or
a member of the Board of Directors of Computer Technology Corporation.
(i) "EFFECTIVE DATE" means the date specified in Section 8.1 hereof.
(j) "EMPLOYEE" means any employee (other than executive officers or
Directors who are employees of the Company or an Affiliate). "Employee" shall
also include other individuals and entities who are not "employees" of the
Company or an Affiliate but who provide valuable advisory or consulting services
to the Company or an Affiliate in a capacity other than as a Director. Employee
shall also include any other person not previously employed by the Company or an
Affiliate who is issued an Award as an inducement essential to the person's
entering into an employment contract with the Company (including employment as
an officer), but only if issuance of the Award would not require shareholder
approval of the Plan or the Award under the rules of the NASDAQ National Market
System (or other system on which the Company's or Computer Network Technology
Corporations stock is then listed).
(k) "EVENT" means any of the following:
(i) The acquisition by an individual, entity, or group (within the
meaning of Section 13(d)(3) or l4(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Exchange Act Rule 13d-3) of
40% or more of either (A) the then outstanding shares of common stock
of the Company (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of the Board (the
"Outstanding Company Voting Securities"); provided, however, that the
following acquisitions shall not constitute an Event:
(1) any acquisition of voting securities of the
Company directly from the Company,
(2) any acquisition of voting securities of
the Company by the Company or any of
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its wholly owned Subsidiaries,
(3) any acquisition of voting securities of the Company
by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Subsidiaries, or
(4) any acquisition by any corporation with respect to
which, immediately following such acquisition, more than 60%
of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such acquisition in substantially the
same proportions as was their ownership, immediately prior to
such acquisition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be;
(ii) Individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the Effective Date whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest which was (or, if threatened, would have been) subject
to Exchange Act Rule 14a-ll;
(iii) Approval by the shareholders of the Company of a
reorganization, merger, consolidation, or statutory exchange of
Outstanding Company Voting Securities, unless immediately following
such reorganization, merger, consolidation, or exchange, all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such reorganization, merger, consolidation, owned, directly or
indirectly, more than 60% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
reorganization, merger, consolidation, or exchange in substantially the
same proportions as was their ownership, immediately prior to such
reorganization, merger, consolidation, or exchange, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the
case may be; or
(iv) Approval by the shareholders of the Company of (A) a complete
liquidation or dissolution of the Company or (B) the sale or other
disposition of all or substantially all of the assets of the Company,
other than to a corporation with respect to which, immediately
following such sale or other disposition, more than 60% of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such sale or other disposition in substantially
the same proportion as was their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be.
(v) Notwithstanding the above, an Event shall not be deemed to
occur with respect to an employee if the acquisition of the 40% or
greater interest referred to in subsection (i) is by a group, acting in
concert, that includes that recipient or if at least 40% of the then
outstanding common stock or combined voting power of the then
outstanding voting securities (or voting equity interests) of the
surviving corporation or of any corporation (or other entity) acquiring
all or substantially all of the assets of the Company shall be
beneficially owned, directly or indirectly, immediately after a
reorganization, merger, consolidation, statutory share exchange or
disposition of assets referred to in subsections (iii) or (iv) by a
group, acting in concert, that includes that Participant.
(vi) Notwithstanding the above, an Event shall not be deemed to
occur upon a Spin-off.
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(m) "FAIR MARKET VALUE" as of any date means, unless otherwise
expressly provided in this Plan:
(i) the closing sale price of a Share on the date immediately
preceding that date or, if no sale of Shares shall have occurred on
that date, on the next preceding day on which a sale occurred of Shares
on the National Association of Securities Dealers, Inc. Automated
Quotations National Market System ("NMS"), or
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(ii)if the Shares are not quoted on the NMS, what the Committee
determines in good faith to be 100% of the fair market value of a Share
on that date.
Provided, however, if the NMS has closed for the day at the time the event
occurs that triggers a determination of Fair Market Value, whether the grant of
an Award, the exercise of an Option or otherwise, all references in this Section
2.1(m) to the "date immediately preceding that date" shall be deemed to be
references to "that date." In the case of an Incentive Stock Option, if such
determination of Fair Market Value is not consistent with the then current
regulations of the Secretary of the Treasury, Fair Market Value shall be
determined in accordance with said regulations. The determination of Fair Market
Value shall be subject to adjustment as provided in Section 12 hereof.
(n) "FUNDAMENTAL CHANGE" means a dissolution or liquidation of the Company,
a sale of substantially all of the assets of the Company, a merger or
consolidation of the Company with or into any other corporation, regardless of
whether the Company is the surviving corporation, or a statutory share exchange
involving capital stock of the Company.
(o) "INCENTIVE STOCK OPTION" means any Option designated as such and
granted in accordance with the requirements of Code Section 422 or any successor
to said section.
(p) "NON-QUALIFIED STOCK OPTION" means an Option other than an Incentive
Stock Option.
(q) "OPTION" means a right to purchase Stock, including both
Non-Qualified Stock Options and Incentive Stock Options.
(r) "PERFORMANCE CYCLE" means the period of time as specified in an
Agreement over which Performance Units are to be earned.
(s) "PERFORMANCE UNITS" means an Award made under Section 7.2 hereof.
(t) "PLAN" means this 2000 Key Employee Stock Award Plan, as amended from
time to time.
(u) "RESTRICTED STOCK" means Stock granted under Plan Section 7.3 so long
as such Stock remains subject to one or more restrictions.
(v) "RETIREMENT" of an Employee means termination of employment with the
Company or an Affiliate on or after the date the Employee attains age 55.
(w) "SHARE" means a share of Stock.
(x) "SPIN-OFF" means a spin-off of 80% or more of the common equity of the
Company to shareholders of Computer Network Technology Corporation (or any
successor thereof) in a transaction under Section 355 of the Code.
(y) "STOCK" means the common stock, $.01 par value per share (as such
par value may be adjusted from time to time), of the Company.
(z) "SUBSIDIARY" means a "subsidiary corporation," as that term is defined
in Section 424(f) of the Code, or any successor provision.
(aa) "SUCCESSOR" means the legal representative of the estate of a deceased
Participant or the person or persons who may, by bequest or inheritance, or
under the terms of an Award or of forms submitted by the Participant to the
Committee under Section 16 hereof, acquire the right to exercise an Option or
receive cash or Shares issuable in satisfaction of an Award in the event of an
employee's death.
(bb) "TERM" means the period during which an Option may be exercised or the
period during which the restrictions or terms and conditions placed on
Restricted Stock are in effect.
(cc ) "TRANSFEREE" means any member of the Participant's immediate family
(i.e., his or her children, step-children, grandchildren and spouse) or one or
more trusts for the benefit of such family members or partnerships in which such
family members are the only partners.
2.2 NUMBER. Except when otherwise indicated by context, any term used in
the singular shall also include the plural.
3. ADMINISTRATION.
3.1 AUTHORITY OF COMMITTEE The Committee shall administer this Plan
(unless action by the Board of Directors of Computer Network technology
Corporation or of the Company is necessary to comply with Rule 16b-3 of the
Securities and Exchange Commission). The Committee may delegate all or any
portion of its authority under this Plan to the chief executive officer of the
Company or persons who are not Directors solely for purposes of determining and
administering Awards to Employees who are not then
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subject to the reporting requirements of Section 16 of the Exchange Act. The
Committee shall have exclusive power to make Awards, to determine when and to
whom Awards will be granted, the form of each Award, the amount of each Award,
and any other terms or conditions of each Award. Each Award shall be subject to
an Agreement authorized by the Committee. The Committee's interpretation of this
Plan and of any Awards made under this Plan shall be final and binding on all
persons. The Committee shall have the power to establish regulations to
administer this Plan and to change such regulations.
3.2 INDEMNIFICATION. To the full extent permitted by law, (a) no member of
the Board or of the Committee or any person to whom the Committee delegates
authority under this Plan shall be liable for any action or determination taken
or made in good faith with respect to this Plan or any Award made under this
Plan and (b) the members of the Board and of the Committee and each person to
whom the Committee delegates authority under this Plan shall be entitled to
indemnification by the Company with regard to such actions and determinations.
4. SHARES AVAILABLE UNDER THIS PLAN. The number of Shares available for
distribution under this Plan shall not exceed 3,500,000 (subject to adjustment
as provided in this Section 4 and under Section 12 hereof). Any Shares subject
to the terms and conditions of an Award under this Plan that are not used
because the terms and conditions of the Award are not met may again be used for
an Award under this Plan. In addition, if, in accordance with this Plan, an
employee uses shares of Common Stock of the Company to (i) pay a purchase or
exercise price, including an Option exercise price, or (ii) satisfy tax
withholdings, only the number of shares issued net of the shares tendered in
payment of such purchase or exercise price and tax withholdings shall be deemed
to be issued for purposes of determining the maximum number of Shares available
under the Plan. Further, the maximum number of Shares available for distribution
under this Plan shall be increased to take into account any Awards granted under
Section 18 of this Plan.
5. ELIGIBILITY. Awards may be granted under this Plan to Employees, and
such Awards shall have the terms and conditions specified in Sections 6 and 7
hereof and elsewhere in this Plan. The granting of Awards to Employees is solely
at the discretion of the Committee. Employees receiving Awards under the Plan
are referred to herein as "Participants".
6. GENERAL TERMS OF AWARDS.
6.1 AMOUNT OF AWARD. Each Agreement with an Employee shall set forth the
number of Shares to which the Option subject to such Agreement applies or the
number of Shares of Restricted Stock, Stock, Performance Units subject to such
Agreement, as the case may be.
6.2 TERM. Each Agreement, other than those relating solely to Awards of
Shares without restrictions, shall set forth the Term of the Option or
Restricted Stock or the Performance Cycle for the Performance Units, as the case
may be. An Agreement may permit an acceleration of the expiration of the
applicable Term upon such terms and conditions as shall be set forth in the
Agreement, which may, but need not, include without limitation acceleration
resulting from the occurrence of an Event or in the event of the Employee's
death or Retirement. Acceleration of the Performance Cycle of Performance Units
shall be subject to Section 7.2(b) hereof.
6.3 AGREEMENTS. Each Award under this Plan shall be evidenced by an
Agreement setting forth the terms and conditions, as determined by the
Committee, which shall apply to such Award, in addition to the terms and
conditions specified in this Plan.
6.4 TRANSFERABILITY. Except as provided in this Section 6.4, during the
lifetime of an employee to whom an Award is granted, only that Participant (or
that Participant's legal representative) may exercise an Option or receive
payment with respect to Performance Units or any other Award. No Award of
Restricted Stock (prior to the expiration of the restrictions), Options or
Performance Units or other Award may be sold, assigned, transferred, exchanged
or otherwise encumbered other than pursuant to a domestic relations order as
defined in the Code or Title 1 of the Employee Retirement Income Security Act
("ERISA") or the rules thereunder; any attempted transfer in violation of this
Section 6.4 shall be of no effect. Notwithstanding the immediately preceding
sentence, the Committee, in an Agreement or otherwise at its discretion,
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may provide (i) that the Award subject to the Agreement shall be transferable to
a Successor in the event of an employee's death, or (ii) that the Award (other
than Incentive Stock Options) may be transferable to a Transferee if the
Participant receives no consideration for the transfer. Any Award held by a
Transferee shall continue to be subject to the same terms and conditions that
were applicable to such Award immediately prior to its transfer. By way of
example and not limitation, (i) an Option may be exercised by a Transferee as
and to the extent that such Option has become exercisable and has not terminated
in accordance with the provisions of the Plan and the applicable Agreement and
(ii) for purposes of any provision of this Plan relating to notice to an
optionee or to vesting or termination of an Option upon the death, disability or
termination of employment of an optionee, the references to "optionee" shall
mean the original grantee of an option and not any Transferee. All transfers
shall also comply with Section 22 hereof.
7. TERMS AND CONDITIONS OF SPECIFIC AWARDS.
7.1 STOCK OPTIONS.
(a) TERMS OF ALL OPTIONS. Each Option shall be granted as either an
Incentive Stock Option or a Non-Qualified Stock Option. Only Non-Qualified Stock
Options may be granted to Employees who are not employees of the Company or an
Affiliate but who provide services to the Company or an Affiliate in the
capacity of an advisor or consultant. The purchase price of each Share subject
to an Option shall be determined by the Committee and set forth in the
Agreement, but shall not be less than 100% of the Fair Market Value of a Share
as of the date the Option is granted (110% of the Fair Market Value, in the case
of an Incentive Stock Option granted to any 10% shareholder of the Company). The
purchase price of the Shares with respect to which an Option is exercised shall
be payable in full at the time of exercise, provided that to the extent
permitted by law, the Agreement may permit some or all Participants
simultaneously to exercise Options and sell the Shares thereby acquired pursuant
to a brokerage or similar relationship and use the proceeds from such sale as
payment of the purchase price of such Shares. The purchase price may be payable
in cash, in Stock having a Fair Market Value as of the date the Option is
exercised equal to the purchase price of the Stock being purchased pursuant to
the Option, or a combination thereof as determined by the Committee and provided
in the Agreement. Each Option shall be exercisable in whole or in part on the
terms provided in the Agreement. In no event shall any Option be exercisable at
any time after its expiration date. When an Option is no longer exercisable, it
shall be deemed to have lapsed or terminated. The number of Shares for which any
Employee may be granted Options in any one calendar year shall not exceed
500,000. The Committee may provide, in an Agreement or otherwise, that an
employee who exercises an Option and pays the Option price in whole or in part
with Shares then owned by the Participant will be entitled to receive another
Option covering the same number of shares tendered and with a price of no less
than Fair Market Value on the date of grant of such additional Option ("Reload
Option").
(b) INCENTIVE STOCK OPTIONS. In addition to the other terms and
conditions applicable to all Options:
(i) the maximum number of shares that may be covered with respect to
incentive stock options is 3,500,000.
(ii) the aggregate Fair Market Value (determined as of the date the
Option is granted) of the Shares with respect to which Incentive Stock
Options held by an individual first become exercisable in any calendar
year (under this Plan and all other incentive stock option plans of the
Company and its Affiliates) shall not exceed $100,000 (or such other
limit as may be required by the Code) if such limitation is necessary
to qualify the Option as an Incentive Stock Option;
(iii) an Incentive Stock Option shall not be exercisable more than
10 years after the date of grant (or such other limit as may be
required by the Code) if such limitation is necessary to qualify the
Option as an Incentive Stock Option; and
(iv) the Agreement covering an Incentive Stock Option shall contain
such other terms and provisions which the Committee determines
necessary to qualify such Option as an Incentive Stock Option.
7.2 PERFORMANCE UNITS.
(a) INITIAL AWARD. An Award of Performance Units shall entitle such
Participant (or a Successor) to future payments of cash, Stock, or a combination
of cash and Stock, as determined by the Committee and provided in the Agreement,
based upon the achievement of performance targets established by the Committee.
Such performance targets may, but need not, include without limitation targets
relating to one or more of corporate, group, unit, Affiliate, or individual
performance. The Agreement may establish that a portion of a full or maximum
amount of an employee's Award will be paid for performance which exceeds the
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minimum target but falls below the maximum target applicable to such Award. The
Agreement shall also provide for the timing of such payment. Following the
conclusion or acceleration of each Performance Cycle, the Committee shall
determine the extent to which (i) performance targets have been attained, (ii)
any other terms and conditions with respect to an Award relating to such
Performance Cycle have been satisfied, and (iii) payment is due with respect to
an Award of Performance Units. The maximum payment that can be made for awards
granted to any one individual shall be $1,000,000 for any single or combined
performance goals established for a specified performance period.
(b) ACCELERATION AND ADJUSTMENT. The Agreement may permit an acceleration
of the Performance Cycle and an adjustment of performance targets and payments
with respect to some or all of the Performance Units awarded to an employee upon
such terms and conditions as shall be set forth in the Agreement, upon the
occurrence of certain events, which may, but need not include without limitation
an Event, a Fundamental Change, the Participant's death or Retirement or, with
respect to payments in Stock with respect to Performance Units, a
reclassification, stock dividend, stock split, or stock combination as provided
in Section 12 hereof.
7.3 RESTRICTED STOCK AWARDS
(a) The Committee is authorized to grant, either alone or in conjunction
with other Awards, stock and stock-based Awards. The Committee shall determine
the persons to whom such Awards are made, the timing and amount of such Awards,
and all other terms and conditions. Company Common Stock granted to recipients
may be unrestricted or may contain such restrictions, including provisions
requiring forfeiture and imposing restrictions upon stock transfer, as the
Committee may determine. Unless forfeited, the recipient of restricted Common
Stock will have all other rights of a shareholder, including without limitation,
voting and dividend rights. No more than 500,000 shares in the form of
restricted stock and stock shall be issued under the Stock Award Plan.
(b) An Award of Restricted Stock under the Plan shall consist of Shares
subject to restrictions on transfer and conditions of forfeiture, which
restrictions and conditions shall be included in the applicable Agreement. The
Committee may provide for the lapse or waiver of any such restriction or
condition based on such factors or criteria as the Committee, in its sole
discretion, may determine.
(c) Except as otherwise provided in the applicable Agreement, each Stock
certificate issued with respect to an Award of Restricted Stock shall either be
deposited with the Company or its designee, together with an assignment separate
from the certificate, in blank, signed by the Participant, or bear such legends
with respect to the restricted nature of the Restricted Stock evidenced thereby
as shall be provided for in the applicable Agreement.
(d) The Agreement shall describe the terms and conditions by which the
restrictions and conditions of forfeiture upon awarded Restricted Stock shall
lapse. Upon the lapse of the restrictions and conditions, Shares free of
restrictive legends, if any, relating to such restrictions shall be issued to
the Participant or a Successor or Transferee.
(e) An employee or a Successor or Transferee with a Restricted Stock Award
shall have all the other rights of a shareholder including, but not limited to,
the right to receive dividends and the right to vote the Shares of Restricted
Stock.
7.4 OTHER AWARDS. The Committee may from time to time grant Stock and
other Awards under the Plan including without limitations those Awards pursuant
to which Shares are or may in the future be acquired, Awards denominated in
Stock units, securities convertible into Stock and Phantom securities. The
Committee, in its sole discretion, shall determine the terms and conditions of
such Awards provided that such Awards shall not be inconsistent with the terms
and purposes of this Plan. The Committee may, at its sole discretion, direct the
Company to issue Shares subject to restrictive legends and/or stop transfer
instructions that are consistent with the terms and conditions of the Award to
which the Shares relate. Furthermore, the Committee may use stock available
under this Plan as payment for compensation, grants or rights and earned or due
under any other compensation plans or arrangements of the Company. No more than
500,000 shares in the form of restricted stock and stock shall be issued under
the Stock Award Plan.
8. EFFECTIVE DATE OF THIS PLAN.
8.1 EFFECTIVE DATE. This Plan shall become effective as of February 1,
2000, the effective date of adoption of this Plan by the Board.
8.2 DURATION OF THIS PLAN. This Plan shall remain in effect until all
Stock subject to it shall be distributed or all Awards have expired or lapsed,
whichever is latest to occur, or this Plan is terminated pursuant to Section 11
hereof. No Award of an Incentive Stock Option shall be made more than 10 years
after the effective date (or such other limit as may be required by the Code) if
such limitation is necessary to qualify the Option as an Incentive Stock Option.
The date and time
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of approval by the Committee of the granting of an Award (or such other time as
the Committee shall designate) shall be considered the date and time at which
such Award is made or granted, notwithstanding the date of any Agreement with
respect to such Award.
9. RIGHT TO TERMINATE EMPLOYMENT. Nothing in this Plan or in any Agreement
shall confer upon any Employee the right to continue in the employment of the
Company or any Affiliate or affect any right which the Company or any Affiliate
may have to terminate the employment of the Employee with or without cause.
10. TAX WITHHOLDING. The Company may withhold from any cash payment under
this Plan to an employee or other person (including a Successor or a Transferee)
an amount sufficient to cover any required withholding taxes. The Company shall
have the right to require an employee or other person receiving Stock under this
Plan to pay to the Company a cash amount sufficient to cover any required
withholding taxes. In lieu of all or any part of such a cash payment from a
person receiving Stock under this Plan, the Committee may permit the individual
to elect to cover all or any part of the required withholdings, and to cover any
additional withholdings up to the amount needed to cover the individual's full
FICA and federal, state, and local income tax with respect to income arising
from payment of the Award, through a reduction of the number of Shares delivered
to such individual or a subsequent return to the Company of Shares held by the
Employee or other person, in each case valued in the same manner as used in
computing the withholding taxes under the applicable laws.
11. AMENDMENT, MODIFICATION AND TERMINATION OF THIS PLAN.
(a) The Board may at any time and from time to time terminate, suspend or
modify the Plan. Except as limited in (b) below, the Committee may at any time
alter or amend any or all Agreements under the Plan to the extent permitted by
law. However, no such action may, without further approval of the shareholders
of the Company, be effective if such approval is required in order that the Plan
conform to the requirements of Code Section 422.
(b) No termination, suspension, or modification of the Plan will materially
and adversely affect any right acquired by any Participant or Successor or
Transferee under an Award granted before the date of termination, suspension, or
modification, unless otherwise agreed to by the Participant in the Agreement or
otherwise, or required as a matter of law; but it will be conclusively presumed
that any adjustment for changes in capitalization provided for in Plan Sections
7.2 or 12 does not adversely affect these rights.
12. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. Appropriate adjustments in
the aggregate number and type of Shares available for Awards under this Plan and
in the number and type of Shares and amount of cash subject to Awards then
outstanding, in the Option price as to any outstanding Options and, subject to
Section 7.2(b) hereof, in outstanding Performance Units and payments with
respect to outstanding Performance Units may be made by the Committee in its
sole discretion to give effect to adjustments made in the number or type of
Shares of the Company through a Fundamental Change (subject to Section 13
hereof), recapitalization, reclassification, stock dividend, stock split, stock
combination, or other relevant change, provided that fractional Shares shall be
rounded to the nearest whole share.
13. FUNDAMENTAL CHANGE. In the event of a proposed Fundamental Change which
occurs after a Spin-off: (a) involving a merger, consolidation, or statutory
share exchange, unless appropriate provision shall be made for the protection of
the outstanding Options by the substitution of options and appropriate voting
common stock of the corporation surviving any such merger or consolidation or,
if appropriate, the parent corporation of the Company or such surviving
corporation, to be issuable upon the exercise of options in lieu of Options and
capital stock of the Company, or (b) involving the dissolution or liquidation of
the Company, the Committee shall declare, at least 20 days prior to the
occurrence of the Fundamental Change, and provide written notice to each holder
of an Option of the declaration, that each outstanding Option, whether or not
then exercisable, shall be canceled at the time of, or immediately prior to the
occurrence of the Fundamental Change in exchange for payment to each holder of
an Option, within ten days after the Fundamental Change, of cash equal to the
amount, if any, for each Share covered by the canceled Option, by which the Fair
Market Value (as defined in this Section) per
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Share exceeds the exercise price per Share covered by such Option. At the time
of the declaration provided for in the immediately preceding sentence, each
Option shall immediately become exercisable in full and each person holding an
Option shall have the right, during the period preceding the time of
cancellation of the Option, to exercise the Option as to all or any part of the
Shares covered thereby; provided, however, that if such Fundamental Change does
not become effective, then the declaration pursuant to this Section 13(b) shall
be rescinded, the acceleration of the exercisability of the Option pursuant to
this Section 13(b) shall be void, and the Option shall be exercisable in
accordance with its terms. In the event of a declaration pursuant to this
Section 13, each outstanding Option that shall not have been exercised prior to
the Fundamental Change shall be canceled at the time of, or immediately prior
to, the Fundamental Change, as provided in the declaration. Notwithstanding the
foregoing, no person holding an Option shall be entitled to the payment provided
for in this Section 13 if such Option shall have expired pursuant to an
Agreement. For purposes of this Section only, "Fair Market Value" per Share
means the cash plus the fair market value, as determined in good faith by the
Committee, of the non-cash consideration to be received per Share by the
shareholders of the Company upon the occurrence of the Fundamental Change,
notwithstanding anything to the contrary provided in this Plan.
14. UNFUNDED PLAN. This Plan shall be unfunded and the Company shall not be
required to segregate any assets that may at any time be represented by Awards
under this Plan.
15. OTHER BENEFIT AND COMPENSATION PROGRAMS. Payments and other benefits
received by an employee under an Award shall not be deemed a part of an
employee's regular, recurring compensation for purposes of any termination,
indemnity, or severance pay laws and shall not be included in, nor have any
effect on, the determination of benefits under any other employee benefit plan,
contract, or similar arrangement provided by the Company or an Affiliate, unless
expressly so provided by such other plan, contract, or arrangement or the
Committee determines that an Award or portion of an Award should be included to
reflect competitive compensation practices or to recognize that an Award has
been made in lieu of a portion of competitive cash compensation.
16. BENEFICIARY UPON EMPLOYEE'S DEATH. To the extent that the transfer of
an employee's Award at death is permitted under an Agreement, (a) an employee's
Award shall be transferable to the beneficiary, if any, designated on forms
prescribed by and filed with the Committee and (b) upon the death of the
Employee, such beneficiary shall succeed to the rights of the Employee to the
extent permitted by law and this Plan. If no such designation of a beneficiary
has been made, the Participant's legal representative shall succeed to the
Awards, which shall be transferable by will or pursuant to laws of descent and
distribution to the extent permitted under an Agreement.
17. CORPORATE MERGERS, ACQUISITIONS, ETC. The Committee may also grant
Options, Restricted Stock or other Awards under the Plan having terms,
conditions and provisions that vary from those specified in this Plan provided
that any such awards are granted in substitution for, or in connection with the
assumption of, existing options, stock appreciation rights, restricted stock or
other awards granted, awarded or issued by another corporation and assumed or
otherwise agreed to be provided for by the Company pursuant to or by reason of a
transaction involving a corporate merger, consolidation, acquisition of property
or stock, separation, reorganization or liquidation to which the Company or a
subsidiary is a party.
18. DEFERRALS AND SETTLEMENTS. The Committee may require or permit
Employees to elect to defer the issuance of Shares or the settlement of Awards
in cash under such rules and procedures as it may establish under the Plan. It
may also provide that deferred settlements include the payment or crediting of
interest on the deferral amounts.
19. GOVERNING LAW. To the extent that federal laws do not otherwise
control, this Plan and all determinations made and actions taken pursuant to
this Plan shall be governed by the laws of Minnesota and construed accordingly.
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20. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award will not be
effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
shares may then be listed or quoted, as they are in effect on the date of grant
of the Award and also on the date of exercise or other issuance. Notwithstanding
any other provision in this Plan, the Company will have no obligation to issue
or deliver certificates for Shares under this Plan prior to (a) obtaining any
approvals from governmental agencies that the Company determines are necessary
or advisable and/or (b) completion of any registration or other qualification of
such Shares under any state or federal law or ruling of any governmental body
that the company determines to be necessary or advisable. The Company will be
under no obligation to register the Shares with the SEC or to effect compliance
with the registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and the Company
will have no liability for any inability or failure to do so.
21. RIGHT OF FIRST REFUSAL.
(a) If at any time prior to the consummation of a Spin-off by the Company,
the Participant proposes to sell, transfer, assign, pledge, hypothecate, gift or
otherwise dispose of any shares or other securities acquired upon the exercise
of an Option or upon the vesting of Restricted Stock (the "Transfer Shares") to
any person or entity (other than a member of Participant's immediate family or a
trust or other estate planning vehicle for the benefit of Participant or a
member of Participant's immediate family), the Company shall have the right to
repurchase the Transfer Shares under the terms and subject to the conditions set
forth in this paragraph (the "Right of First Refusal").
(b) Prior to any proposed transfer of the Transfer Shares, the Participant
shall give a written notice (the "Transfer Notice") to the Company describing
fully the proposed transfer, including the number of Transfer Shares, the name
and address of the proposed transferee (the "Proposed Transferee") and, if the
transfer is voluntary, the proposed transfer price and containing such
information necessary to show the bona fide nature of the proposed transfer. In
the event of a bona fide gift or involuntary transfer, the proposed transfer
price shall be deemed to be the Fair Market Value of the Transfer Shares as
determined by the Company in good faith. In the event the Participant proposes
to transfer any shares acquired upon the exercise of the Option to more than one
Proposed Transferee, the Participant shall provide a separate Transfer Notice
for the proposed transfer to each Proposed Transferee. The Transfer Notice shall
be signed by both the Participant and the Proposed Transferee and shall
constitute a binding commitment of the Participant and the Proposed Transferee
for the transfer of the Transfer Shares to the Proposed Transferee subject only
to the Company's Right of First Refusal.
(c) In the event that the Company shall determine that the information
provided by the Participant in the Transfer Notice is insufficient to establish
the bona fide nature of a proposed voluntary transfer, the Company shall give
the Participant written notice of the Participant's failure to comply with the
procedure described in this paragraph and the Participant shall have no right to
transfer the Transfer Shares without first complying with the procedures
described in this paragraph. The Participant shall not be permitted to transfer
the Transfer Shares if the proposed transfer is not bona fide.
(c) In the event the proposed transfer is deemed to be bona fide, the
Company shall have the right to purchase a1l or a portion of the
Transfer Shares at the lower of purchase price set forth in the
Transfer Notice or Fair Market Value by delivery to the Participant
of a notice of exercise of the Right of First Refusal within thirty
(30) days after the date the Transfer Notice is delivered to the
Company. The Company's exercise or failure to exercise the Right of
First Refusal with respect to any proposed transfer described in a
Transfer Notice shall not affect the Company's ability to exercise
the Right of First Refusal with respect to any proposed transfer
described in any other Transfer Notice, whether or not such other
Transfer Notice is issued by the Participant or issued by a person
other than the Participant with respect to a proposed transfer to
the same Proposed Transferee. If the Company exercises the Right of
First Refusal, the Company and the Participant shall thereupon
consummate the sale of the Transfer Shares to the Company payable in
the manner within sixty (60) days after the date of the Transfer
Notice is delivered to the Company (unless a longer period is
offered by the Proposed Transferee). The purchase price for the
Transfer Shares shall be payable by the Company at its discretion in
full at the closing or through a promissory note payable in 24 equal
monthly installments bearing interest at the mid-term Applicable
Federal Rate, or a
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combination thereof In the event the Transfer Notice provides for
the payment for the Transfer Shares other than in cash, the value of
such consideration shall be its cash equivalent as reasonably
determined by the Company. For purposes of the foregoing,
cancellation of any indebtedness of the Participant shall be treated
as payment to the Participant in cash to the extent of the unpaid
principal and any accrued interest canceled.
(e) If the Company falls to exercise the Right of First Refusal in full
within the period specified above, the Participant may consummate a transfer to
the Proposed Transferee of the Transfer Shares on the terms and conditions
described in the Transfer Notice, provided such transfer occurs not later than
one hundred twenty (120) days following delivery to the Company of the Transfer
Notice. The Company shall have the right to demand further assurances from the
Participant and the Proposed Transferee (in a form satisfactory to the Company)
that the transfer of the Transfer Shares was actually carried out on the terms
and conditions described in the Transfer Notice, No Transfer Shares shall be
transferred on the books of the Company until the Company has received such
assurances, if so demanded, and has approved the proposed transfer as bona fide.
Any proposed transfer on terms and conditions different from those described in
the Transfer Notice, as well as any subsequent proposed transfer by the
Participant, shall again be subject to the Right of First Refusal and shall
require compliance by the Participant with the procedure described in this
paragraph.
(f) All transferees of the Transfer Shares or any interest therein, other
than the Company, shall be required as a condition of such transfer to agree in
writing (in a form satisfactory to the Company) that such transferee shall
receive and hold such Transfer Shares or interests subject to the provisions of
this paragraph providing for the Right of First Refusal with respect to any
subsequent transfer. Any sale or transfer of any shares acquired upon exercise
of the Option or upon the vesting of Restricted Stock shall be void unless the
provisions of this paragraph are met.
(g) The Company shall have the right to assign the Right of First Refusal
at any time, whether or not the Participant has attempted a transfer, to one or
more persons as may be selected by the Company.
22. Legends. The Company may at any time place legends referencing the
Right of First Refusal and any applicable federal or state securities law
restrictions on all certificates representing shares of Stock underlying an
Award. Participants shall, at the request of the Company, promptly present to
the Company any and all certificates representing shares acquired pursuant to
Award in the possession of the Participant in order to effectuate the provisions
of this Section. Unless otherwise specified by the Company, legends placed on
such certificates may include, but shall not be limited to, the following:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE 144, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES, REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
FIRST REFUSAL IN FAVOR OF THE ISSUER OR ITS ASSIGNEE SET FORTH IN AN
AGREEMENT BETWEEN THE ISSUER AND THE REGISTERED HOLDER, OR SUCH HOLDER'S
PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE
OF THE ISSUER.
23. LOCK-UP AGREEMENT IN CONNECTION WITH PUBLIC OFFERING. Unless
otherwise determined by the Committee or any person administering the Plan
pursuant to Section 3.1, at or after the grant of an Award, the holder of shares
of Stock issued pursuant to the Plan may not sell, make short sale of, loan,
grant any options for the purchase of or otherwise dispose of any such shares
without the prior written consent of the Company or the underwriters managing
any public offering of the Company's Stock for a period of 180 days from the
effective date of the registration statement covering any public offering.
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24. PARTICIPATION BY FOREIGN NATIONALS. The Committee or any person
administering the Plan pursuant to Section 3.1, in order to fulfill the purposes
of the Plan and without amending the Plan, may modify grants to foreign national
or United States citizens employed abroad in order to recognize differences in
local law, tax policy or custom.
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