Exhibit 99.2
AURIPAY, INC.
2000 EQUITY INCENTIVE PLAN
This Plan (this "Plan") of Auripay, Inc. (the "Company") provides that
awards ("Awards") of Options or Restricted Stock (both as hereinafter defined)
for up to 5,400,000 shares (the "Shares") of the Company's Common Stock, $.0002
par value per share (the "Stock"), may be granted to employees of the Company
and its subsidiaries, as defined below, and to others who are in a position to
make significant contributions to the success of the Company and its
subsidiaries ("Participants"). Options granted pursuant to this Plan may be
either incentive stock options ("Incentive Options") as defined in Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"), or options that
are not Incentive Options ("Nonqualified Options"), or both (collectively,
"Options"). "Restricted Stock" means Shares awarded to a Participant under
Section 9 of this Plan pursuant to an Award that entitles the Participant to
acquire Shares for a purchase price (which may be zero if permissible under
applicable law).
1. PURPOSE. The purposes of this Plan are to attract, retain and motivate
employees and others who are in a position to contribute significantly to the
success of the Company, its parent and subsidiaries (if any), to reward such
contributions, and to encourage Participants to advance the long term interests
of the Company and its subsidiaries through ownership of the Company's Stock.
2. ADMINISTRATION.
(a) Board of Directors. The Plan shall be administered by the Board of
Directors of the Company (the "Board"). The Board, subject to the express
provisions of this Plan, shall determine those persons to be granted Awards, the
times when Awards shall be granted, the number of Shares subject to each Award,
and the terms and conditions of each Award, including whether each Award is an
Incentive Option, a Nonqualified Option or Restricted Stock. The terms and
conditions of an Award shall be set forth in a written agreement (an "Award
Agreement") approved by the Board and delivered or made available to the
Participant as soon as practicable following the effective date of such Award as
specified by the Board and set forth in the Award Agreement (the "Grant Date").
An Option granted pursuant to this Plan shall be presumed to be a Nonqualified
Option unless expressly designated an Incentive Option in the applicable Award
Agreement. The Board shall establish the form of agreements or instruments
granting Awards and any other agreements or instruments under this Plan, and the
rules and regulations for the administration of this Plan, and may amend and
rescind such agreements, instruments, rules and regulations. Notwithstanding the
foregoing, the Board may accelerate (i) the vesting or payment of any Award
(including an Incentive Stock Option), (ii) the lapse of restrictions on any
Award (including an Award of Restricted Stock) and (iii) the date on which any
Option first becomes exercisable. The Board shall interpret this Plan and decide
any questions and settle all controversies and disputes that may arise in
connection with this Plan, and such determinations of the Board shall be
conclusive and shall bind all parties. Subject to Section 17, the Board may,
both generally and in particular instances, waive compliance by a
Participant with any obligation to be performed under an Award and waive any
condition or provision of an Award, except that in the case of an Incentive
Option the Board may not (other than in accordance with Section 5) grant any
such waiver if such waiver would cause the Incentive Option to no longer qualify
as an Incentive Option under Section 422 of the Code.
(b) Committee. The Board may, in its discretion, delegate its powers
with respect to this Plan to a committee of the Board (the "Committee"), in
which event all references to the Board hereunder shall be deemed to refer to
the Committee. The Committee shall be appointed by the Board and shall be
composed solely of two or more directors. A majority of the members of the
Committee shall constitute a quorum, and all determinations of the Committee
shall be made by a majority of its members. Any determination of the Committee
under this Plan may be made without notice or meeting of the Committee by a
writing signed by all of the members of the Committee.
(c) Public Company Committee. From and after the date of the first
registration of an equity security of the Company under Section 12 of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), if the
Board shall elect to delegate its powers with respect to this Plan to a
Committee pursuant to the provisions of Subsection (b) above, the Committee
shall be composed solely of two or more directors, each of whom shall be a
"Non-Employee Director", as such term is defined from time to time in Rule 16b-3
promulgated under the Exchange Act, and each of whom shall be an "outside
director" within the meaning of Section 162(m) of the Code.
3. EFFECTIVE DATE AND TERM. This Plan shall become effective upon adoption
by the Board or approval by the stockholders by at least a majority vote at a
duly held meeting (or by written consent as provided by applicable law),
whichever is earlier, but shall not become effective unless stockholder approval
is obtained within twelve (12) months before or after the adoption of this Plan
by the Board. The Board may grant Awards under this Plan prior to such approval,
but any such Award shall become effective as of the date of grant only upon such
approval and, accordingly, no such Award may be exercisable prior to such
approval. This Plan shall terminate ten years after its effective date.
4. SHARES SUBJECT TO THE PLAN. The Shares shall be reserved for issuance
upon the exercise of Options granted, or the issuance Shares of Restricted Stock
awarded, under this Plan. Shares subject to an Option which expires or is
terminated, and Shares of Restricted Stock forfeited by a Participant or
repurchased by the Company, may again be subjected to an Award under this Plan.
Shares delivered under this Plan may be authorized but unissued Stock or
treasury Stock. No fractional Shares shall be issued under this Plan. Any
fractional Shares which, but for this Section, would have been issued shall be
deemed to have been issued and immediately sold to the Company for their Fair
Market Value, and the Participant shall receive from the Company cash in lieu of
such fractional Shares.
5. CHANGES IN CAPITAL STOCK. In the event of a stock dividend, stock split
or combination of shares, recapitalization or other change in the Company's
capital stock, the number and kind of shares of stock or securities of the
Company subject to Awards then outstanding or subsequently granted under this
Plan, the maximum number of shares or securities that may be delivered under
this Plan, the exercise price, and other relevant provisions shall be
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adjusted appropriately in a manner determined by the Board to be equitable,
whose determination shall be binding. The Board may also adjust the number of
Shares subject to outstanding Awards, the exercise price of outstanding Awards
and the terms of outstanding Awards to take into consideration material changes
in accounting practices or principles, consolidations or mergers, acquisitions
or dispositions of stock or property or any other event if it is determined by
the Board that such adjustment is appropriate to avoid distortion in the
operation of this Plan, provided that no such adjustment shall be made in the
case of an Incentive Option if it would constitute a modification, extension or
renewal of the Option within the meaning of Section 424(h) of the Code, unless
the Participant consents. If any person owning Restricted Stock receives new or
additional or different securities in connection with a corporate transaction or
stock dividend described in this Section 5 as a result of owning such Restricted
Stock, such securities shall be subject to all of the conditions and
restrictions applicable to the Restricted Stock with respect to which such
securities were issued. Notwithstanding any provision to the contrary, no
adjustments shall be made pursuant to this Section 5 with respect to Incentive
Options unless the Board, after consulting with counsel for the Company,
determines that (i) such adjustments would not constitute a modification,
"extension" or "renewal" of such Incentive Options as such terms are defined in
Section 424 of the Code, and (ii) either that such adjustments would not cause
any adverse tax consequences for the holders of such Incentive Options or the
holders of such Incentive Options consent to the adjustment. No adjustments to
Incentive Options shall be made for dividends paid in cash or in property other
than securities of the Company.
6. ELIGIBILITY. All employees of the Company and its subsidiaries, as well
as those other persons or entities who, in the opinion of the Board, are in a
position to contribute significantly to the success of the Company, its parent
or subsidiaries (if any), including, without limitation, nonemployee Directors,
consultants, advisers, independent contractors, and other service providers,
shall be eligible to receive Awards under this Plan. A "subsidiary" for purposes
of this Plan shall be a subsidiary corporation as defined in Section 424(f) of
the Code. Incentive Options shall be granted only to "employees" as defined in
the applicable provisions of the Code and regulations thereunder. Receipt of
Awards under this Plan or of awards under any other employee benefit plan of the
Company or any of its subsidiaries shall not preclude an employee from receiving
Awards or additional Awards under this Plan. In granting Awards the Board may
include or exclude previous participants in this Plan as the Board may
determine.
7. PROVISIONS APPLICABLE TO OPTION AWARDS.
(a) Number of Shares. The aggregate fair market value (determined as
of the time of grant) of the Shares with respect to which Incentive Options are
exercisable for the first time by an employee during any calendar year (under
this Plan and all other stock option plans of the Company or its subsidiaries or
any parent corporation) shall not exceed $100,000.
(b) Exercise Price. The exercise price of each Award shall be
determined by the Board but, in the case of an Incentive Option, shall not be
less than 100% (110% in the case of an Incentive Option granted to a ten-percent
stockholder) of the fair market value of the stock subject to the Option on the
date of grant; nor shall the exercise price of any Award be less, in the case of
an original issue of authorized stock, than par value. For this purpose, (i)
"fair market value" shall be determined by the Board in good faith on a basis
consistent with the provisions of
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Section 422 of the Code and the regulations promulgated thereunder, and (ii)
"ten percent stockholder" shall mean any employee who at the time of grant owns
directly, or is deemed to own by reason of the attribution rules set forth in
Section 424(d) of the Code, more than 10% of the total combined voting power of
all classes of stock of the Company or of any of its parent or subsidiary
corporations.
(c) Duration, Vesting and Conditions of Exercise. Each Option shall be
exercisable during such period or periods as the Board may determine, but in no
case after the expiration of ten years (five years in the case of an Incentive
Option granted to a "ten percent stockholder" as defined in (b) above) from the
date of grant. In the discretion of the Board, options may be exercisable (i) in
full upon grant or (ii) over or after a period of time conditioned on
satisfaction of certain Company, division, group, office, individual or other
performance criteria, including the continued performance of services to the
Company or its subsidiaries. In the case of an Option not immediately
exercisable in full, the Board may at any time accelerate the time at which all
or any part of the Option may be exercised.
8. EXERCISE OF OPTIONS. Any exercise of an Option shall be in writing
pursuant to a written instrument in the form prescribed by the Board, signed by
the proper person and delivered to the Company, accompanied by (a) such
documents as may be required by this Plan, by such written instrument, or by the
Board, and (b) payment as required by such written instrument for the number of
Shares for which the Option is exercised. In addition, each exercise of an
Option shall be subject to such additional conditions as may be required by the
Board, including without limitation those described in Section 10 of this Plan.
No exercise of an Option shall be effective, and the Company shall not be
obligated to deliver any Shares, until all requirements and conditions for
exercise have been met to the satisfaction of the Board.
9. PROVISIONS APPLICABLE TO RESTRICTED STOCK AWARDS.
(a) Awards of Restricted Stock. The Board may award Shares of
Restricted Stock, subject to such conditions as the Board may determine to be
appropriate (including a Company right during a specified period or periods (the
"Restricted Period") to repurchase the Shares at their original purchase price
or to require forfeiture of the Shares if the purchase price was zero and if
permissible under applicable law), and in connection therewith may determine the
purchase price, if any, therefor, the length of any Restricted Period, the
conditions under which the Shares may be forfeited to or repurchased by the
Company, and any other terms and conditions of the Awards. The Board may modify
or waive any restrictions, terms and conditions with respect to any Restricted
Stock. Shares of Restricted Stock may be issued for whatever consideration is
determined by the Board, subject to applicable law.
(b) Transferability. Shares of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise encumbered, except as permitted by
the Board, during the Restricted Period.
(c) Evidence of Award. Shares of Restricted Stock shall be evidenced
in such manner as the Board may determine. Any certificates issued in respect of
Shares of Restricted Stock shall be registered in the name of the Participant
and, unless otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the
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Company. At the expiration of the Restricted Period, the Company shall deliver
the certificates and stock power to the Participant.
(d) Shareholder Rights. A Participant shall have all the rights of a
shareholder with respect to Restricted Stock awarded, including voting and
dividend rights, unless otherwise provided in the Award Agreement.
10. CONDITIONS TO ISSUANCE OF SHARES. Except as waived by the Board in a
particular case, all the following conditions shall be complied with as a
condition to the issuance of Shares under this Plan:
(a) Legal and Regulatory Matters. The delivery of Shares shall be
subject to (i) compliance with applicable federal and state laws and
regulations, (ii) if the outstanding Shares are listed at the time on any stock
exchange, compliance with the listing requirements of such exchange and (iii)
the Company's counsel's approval of all other legal matters in connection with
the issuance and delivery of the Shares. If the sale of the Shares has not been
registered under the Securities Act, the Company may require, as a condition to
delivery of the Shares, such representations or agreements as counsel for the
Company may consider appropriate to avoid violation of such Act and may require
that the certificates evidencing the Shares bear an appropriate legend
restricting transfer.
(b) Listing and Registration of Shares. If at any time the Board shall
determine that the listing, registration or qualification of the Shares covered
by any Award upon any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of or in connection with the granting of such Award or
the issuance or purchase of Shares thereunder, such Award may not be exercised
in whole or in part unless and until such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Board.
(c) Tax Undertakings. In the case of an Award that is not an Incentive
Option, the Board may require the Participant to remit to the Company an amount
sufficient to satisfy any federal, state or local withholding tax requirements
(or make other arrangements satisfactory to the Company with regard to such
taxes, including withholding from regular cash compensation, providing other
security to the Company, or remitting or foregoing the receipt of property,
including Stock, having a fair market value (as determined by the Board in good
faith in its discretion) on the date of exercise sufficient to meet such
potential liability) prior to the delivery of any Shares in respect of such
Award. In the case of an Incentive Option, if at the time the Option is
exercised the Board determines that under applicable law and regulations the
Company could be liable for the withholding of any federal or state tax with
respect to a disposition of the Shares received upon exercise, the Board may
require the Participant to agree (i) to inform the Company promptly of any
disposition (within the meaning of Section 424(c) of the Code and the
regulations thereunder) of Shares received upon exercise, and (ii) to give such
security as the Board deems adequate to meet the potential liability of the
Company for the withholding of tax, and to augment such security from time to
time in any amount reasonably deemed necessary by the Board to preserve the
adequacy of such security.
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(d) Evidence of Authority. If an Option is exercised by the legal
representative of a deceased Participant or by a person to whom the Option has
been transferred by the Participant's will or by applicable laws of descent and
distribution, the Company shall not be obligated to deliver Shares until
satisfied as to the authority of the person exercising the Option.
(e) Restrictions on Transfer of Stock. If the sale of Shares has not
been registered under the Securities Act of 1933, as amended, or under
applicable state securities laws, the Company may require, as a condition to
issuance of Shares, such representations or agreements from the Participant as
counsel for the Company may consider appropriate to avoid violation of such Act
or such state securities laws and may require that the certificates evidencing
such Shares bear an appropriate legend restricting transfer. In addition, the
Board may require as conditions to the issuance of any Shares that the
Participant agree in writing to (i) restrictions on the transfer of Shares, (ii)
a right of first refusal of the Company to repurchase Shares in the event the
holder desires to sell such Shares, and (iii) a right of the Company to
repurchase Shares in the event of termination of employment or death or
disability. Such restrictions and rights on the part of the Company shall be
identified in the Award Agreement.
11. PAYMENT FOR SHARES.
(a) Exercise Price. The price for Shares issued in respect of an Award
shall be paid prior to delivery of evidence thereof, and may be paid as follows:
(i) in cash or by certified check, bank draft or money order payable to the
order of the Company; (ii) if permitted by the terms of the Award Agreement, by
the delivery of shares of Stock having a fair market value (as determined by the
Board in good faith in its reasonable discretion) on the date of exercise equal
to the exercise price; or (iii) by a combination of cash and Stock; provided,
however, that payment of the exercise price by delivery of shares of Common
Stock of the Company owned by such Participant may be made only if such payment
does not result in a charge to earnings for financial accounting purposes as
determined by the Board, unless the Board otherwise permits such payment by
delivery of shares of Common Stock.
(b) Promissory Note. To the extent permitted by any applicable margin
regulations of the Board of Governors of the Federal Reserve System and other
provisions of applicable law, an Award Agreement may permit the price for Shares
to be paid by payment of at least the par value by a combination of cash and
Stock as provided above, and delivery to the Company of the Participant's
promissory note for the balance of the price. Unless otherwise specified by the
Board in the Award Agreement, such note (i) shall bear interest at least equal
to the Applicable Federal Rate, as determined under Section 1274(d) of the Code
and published by the Internal Revenue Service on a monthly basis, in effect for
the month of purchase, (ii) shall be a full recourse note, (iii) shall be
secured by a pledge of the Shares so purchased, and (iv) shall be payable in
equal annual installments of principal and interest over a period of not more
than five years after the date of purchase (except that any such note shall be
payable on demand in the event of termination of employment). Any such
promissory note shall be in a form satisfactory to the Company.
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12. NO RIGHTS AS STOCKHOLDER. Participants shall not have the rights of
stockholders with regard to Options granted under this Plan, except as to Shares
actually purchased pursuant to such Options.
13. NONTRANSFERABILITY OF OPTIONS. Each Option granted under this Plan
shall be transferable only by will or the laws of descent and distribution and
shall be exercisable during the lifetime of the person to whom the Option is
granted only by such person. Except as permitted by the preceding sentence, no
Option granted under this Plan or any of the rights and privileges thereby
conferred shall be transferred, assigned, pledged, hypothecated or otherwise
disposed of in any way (by operation of law or otherwise), and no such Option,
right or privilege shall be subject to execution, attachment or similar process.
Upon any attempt to so transfer, assign, pledge, hypothecate or otherwise
dispose of any such Option, right or privilege contrary to the provisions
hereof, or upon the levy of any attachment or similar process upon such Option,
right or privilege, the Option and such rights and privileges shall immediately
become null and void. Notwithstanding the above provisions of this Section 13,
any Option granted under this Plan may be pledged or hypothecated to secure an
obligation to the Company.
14. TERMINATION OF EMPLOYMENT; DEATH OR DISABILITY.
(a) Termination In General. Upon termination of the employment of a
Participant, any unexercised Options shall terminate immediately, except as
provided in Subsections (b), (c) and (d) below. For purposes of this Section 14,
employment shall not be considered terminated (i) in the case of sick leave or
other bona fide leave of absence approved for purposes of this Plan by the
Board, so long as the employee's right to re-employment is guaranteed either by
statute or by contract, or (ii) in the case of a transfer of employment among
the Company and its parent or subsidiaries (if any), or to the employment of a
corporation (or a parent or subsidiary corporation of such corporation) issuing
or assuming an Option, which in the case of an Incentive Option is a transaction
to which Section 424(a) of the Code applies. For all purposes of this Section
14, the term "employment" shall include the continuing relationships of
Participants to the Company as Directors, consultants, advisers, independent
contractors and other service providers; provided, however, that notwithstanding
the foregoing, in the discretion of the Board, the Award Agreement granting
Options to any of the foregoing persons may provide that the Option may remain
in force and effect notwithstanding the termination of the relationship between
any such person and the Company.
(b) Termination Not For Cause. If such termination was not "for cause"
(as hereinafter defined), the Participant may exercise any Option which was
otherwise exercisable on the date of termination for a period ending on the
earlier of (i) the expiration of three months after the date of such
termination, (ii) the expiration date of such Option as fixed pursuant to the
first sentence of Section 7(c), and (iii) the termination of such Option
pursuant to the provisions of Section 15. For purposes hereof, the term "for
cause" shall mean only (i) the willful or reckless failure by the Participant to
perform his duties under, or willful or reckless violation of, any written
employment or consulting agreement (other than a failure resulting from the
Participant's death or disability), which failure or violation shall not have
been cured within the cure period, if any, provided in such agreement; (ii) the
commission by the Participant of an act of fraud or theft against the Company or
any of its subsidiaries; or (iii) the conviction of the Participant of (or the
plea by the Participant of nolo contendere to) any felony.
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(c) Death. If termination of employment results from the Participant's
death, any Option which was otherwise exercisable by such Participant as of the
time immediately before his or her death shall be exercisable by the
Participant's estate or by any person who acquired the Option by bequest or
inheritance for a period ending on the earlier of (i) one year after the death
of the Participant, (ii) the expiration date of such Option as fixed pursuant to
the first sentence of Section 7(c), and (iii) the termination of such Option
pursuant to the provisions of Section 15. The Board may permit any Option to be
exercised for up to the total number of Shares subject to the Option, or grant
an Option which by its terms is exercisable for up to the total number of Shares
subject to the Option, at any time within one year after the death of the
Participant, consistent with the above provisions.
(d) Disability. If the termination of employment results from the
Participant's disability, any Option which was otherwise exercisable by such
Participant immediately prior to the termination of his employment shall be
exercisable by him or her (or his or her legal representative) for a period
ending on the earlier of (i) one year after such termination, (ii) the
expiration date of such Option as fixed pursuant to the first sentence of
Section 7(c), and (iii) the termination of such Option pursuant to the
provisions of Section 15. The Board may permit any Option to be exercised for up
to the total number of Shares subject to the Option, or grant an Option which by
its terms is exercisable for up to the total number of Shares subject to the
Option, at any time within one year after termination of employment, consistent
with the above provisions. The term "disability" shall for this purpose be
defined as such term is defined in Section 22(e)(3) of the Code.
15. REORGANIZATIONS; DISSOLUTION.
(a) Substitute Options. If by reason of a corporate merger,
consolidation, acquisition of property or stock, separation, reorganization, or
liquidation the Board shall authorize the issuance or assumption of a stock
option in a transaction to which Section 424(a) of the Code applies, then,
notwithstanding any other provision of this Plan, the Board may grant an option
upon such terms and conditions as it may deem appropriate for the purpose of
assumption of the old option, or substitution of a new option for the old
option, in conformity with the provisions of said Section 424(a) of the Code and
the Regulations thereunder, and any such option shall not reduce the number of
shares otherwise available for issuance under this Plan.
(b) Termination of Options. In the event of a Change in Control of the
Company (as defined in subsection (c), below), and in anticipation thereof if
required by the circumstances, the Board, in its sole discretion, may (i)
accelerate the exercisability, prior to the effective date of such Change in
Control, of all outstanding Options granted under this Plan (and redesignate as
Nonqualified Options any Options or portions thereof that were originally
designated as Incentive Options but that no longer so qualify under Section 422
of the Code), (ii) arrange, if there is a surviving or acquiring corporation,
subject to the consummation of a Change of Control, to have that corporation or
an affiliate of that corporation grant to employees and other Participants
replacement options with substantially similar or, if not adverse to the
Participants, different provisions with respect to exercisability (upon which
grant the Options granted under this Plan shall immediately terminate and be of
no further force or effect) which, however, in the case of Incentive Options,
satisfy, in the determination of the Board, the requirements of Section 424(a)
of the Code, (iii) cancel all outstanding Options in exchange for
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consideration in cash or in kind in an amount equal to the value of the Shares,
as determined by the Board in good faith, the Participant would have received
had the Option been exercised (to the extent then exercisable or to a greater
extent, including in full, as the Board may determine) less the Option price
therefor (upon which cancellation such Options shall immediately terminate and
be of no further force or effect), (iv) permit the purchaser of the Company's
stock or assets to deliver to the Participants the same kind of consideration
that is delivered to the stockholders of the Company in cancellation of such
Options in an amount equal to the value of the Shares, as determined by the
Board in good faith, the Participant would have received had the Option been
exercised (to the extent then exercisable or to a greater extent, including in
full, as the Board may determine), less the Option price therefor, or (v) take
any combination (or none) of the foregoing actions.
(c) Definition of "Change of Control". For purposes of this Plan, a
"Change in Control" shall mean and include any of the following:
(i) a merger or consolidation of the Company with or into any
other corporation or other business entity in which the Company is the surviving
corporation (except one in which the holders of capital stock of the Company
immediately prior to such merger or consolidation continue to hold at least a
majority of the outstanding securities having the right to vote in an election
of the Board of Directors ("Voting Stock") of the Company); or any such merger
or consolidation in which the Company is not the surviving corporation;
(ii) a sale, lease, exchange or other transfer (in one
transaction or a related series of transactions) of all or substantially all of
the Company's assets;
(iii) the acquisition by any person or any group of persons
(other than the Company, any of its direct or indirect subsidiaries, or any
trustee, fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company or any of its direct or indirect
subsidiaries) acting together in any transaction or related series of
transactions, of such number of shares of the Company's Voting Stock as causes
such person, or group of persons, to own beneficially, directly or indirectly,
as of the time immediately after such transaction or series of transactions, 50%
or more of the combined voting power of the Voting Stock of the Company other
than as a result of an acquisition of securities directly from the Company, or
solely as a result of an acquisition of securities by the Company which by
reducing the number of shares of the Voting Stock outstanding increases the
proportionate voting power represented by the Voting Stock owned by any such
person to 50% or more of the combined voting power of such Voting Stock; and
(iv) a change in the composition of the Company's Board of
Directors following a tender offer or proxy contest, as a result of which
persons who, immediately prior to a tender offer or proxy contest, constituted
the Company's Board of Directors shall cease to constitute at least a majority
of the members of the Board of Directors.
(d) Dissolution or Liquidation. Upon the dissolution or liquidation of
the Company, all outstanding Options granted under this Plan shall terminate,
but each Participant shall have the right, immediately prior to such dissolution
or liquidation, to exercise his or her Options to the extent then exercisable.
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16. EMPLOYMENT RIGHTS AND OTHER BENEFITS. Neither the adoption of this Plan
nor the grant of Awards shall confer upon any employee any right to continued
employment with the Company or any parent or subsidiary or affect in any way the
right of the Company or such parent or subsidiary to terminate the employment of
an employee at any time. Except as specifically provided by the Board in any
particular case, the loss of existing or potential profit in Awards granted
under this Plan shall not constitute an element of damages in the event of
termination of the employment of an employee even if the termination is in
violation of an obligation of the Company to the employee by contract or
otherwise. Nothing in this Plan shall restrict the authority of the Board to
grant stock options or to award bonuses or other benefits to employees or others
otherwise than pursuant to this Plan. For purposes of this Section 16, the term
"employee" shall include those persons granted Awards pursuant to this Plan who
are not employees of the Company, and the term "employment" shall include the
arrangement or relationship between the Company and any such person.
17. DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION. The Board may
at any time abandon this Plan or discontinue granting Awards under this Plan.
With the consent of the Participant, the Board may at any time modify or cancel
an existing Option in whole or in part and grant another Option for such number
of shares as the Board specifies. The Board may at any time amend this Plan for
the purpose of satisfying the requirements of Section 422 of the Code or of any
changes in applicable laws or regulations or for any other purpose which may at
the time be permitted by law, or may at any time terminate this Plan as to any
further grants of Awards, provided that (except to the extent expressly required
or permitted herein above) no such amendment shall, without the approval of the
stockholders of the Company by at least a majority vote at a duly held meeting
(or by written consent as provided by applicable law), (a) increase the maximum
number of shares for which Awards may be granted under this Plan, (b) change the
group of employees eligible to receive Awards under this Plan, (c) reduce the
price at which Incentive Options may be granted, (d) extend the time within
which Awards may be granted, (e) alter this Plan in such a way that Incentive
Options already granted hereunder would not be considered Incentive Options
under Section 422 of the Code, (f) amend the provisions of this Section 17, or
(g) make any other change in this Plan which requires stockholder approval under
applicable law or regulations, including any approval requirement which is a
prerequisite for exemptive relief under Section 16 of the Exchange Act. The
termination or any modification or amendment of this Plan shall not adversely
affect the rights of any Participant under any Award previously granted without
his or her consent.
18. COMPLIANCE WITH RULE 16b-3. It is intended that the provisions of this
Plan and any Option granted hereunder to a person subject to the reporting
requirements of Section 16(a) of the Exchange Act shall comply in all respects
with the terms and conditions of Rule 16b-3 promulgated under the Exchange Act
or any successor provisions thereto. Any Award Agreement granting Options shall
contain such provisions as are necessary or appropriate to assure such
compliance. To the extent that any provision hereof is found not to be in
compliance with such Rule, such provision shall be deemed to be modified so as
to be in compliance with such Rule or, if such modification is not possible,
shall be deemed to be null and void, as it relates to a recipient subject to
Section 16(a) of the Exchange Act.
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ADOPTED by the Board of Directors of Auripay, Inc. as of the 22nd day of
September, 2000.
APPROVED by the stockholders of Auripay, Inc. as of the 11th day of
September, 2000.
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