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EXHIBIT 10.1
YOUCENTRIC, INC.
1999 EQUITY COMPENSATION PLAN
ARTICLE I - GENERAL PROVISIONS
1.1 The Plan is designed for the benefit of the Company to secure
and retain the services of Eligible Participants. The Board believes the Plan
will promote and increase personal interests in the welfare of the Company by,
and provide incentive to, those who are primarily responsible not only for its
regular operations but also for shaping and carrying out the long-range plans of
the Company and ordering its continued growth and financial success.
1.2 Awards under the Plan may be made to Participants in the form
of (i) Incentive Stock Options; (ii) Nonqualified Stock Options; and (iii)
Restricted Stock.
1.3 The Plan shall be effective December 23, 1999 (the "Effective
Date"). If any stock option intended to constitute an Incentive Stock Option is
granted prior to the date on which the shareholders of the Company approve the
Plan and such shareholder approval is not obtained within 12 months following
the date on which the Board adopts this Plan, such stock option shall be deemed
a Nonqualified Stock Option.
ARTICLE II - DEFINITIONS
Except where the context otherwise indicates, the following definitions
apply:
2.1 "Act" means the Securities Exchange Act of 1934, as now in
effect or as hereafter amended. All citations to sections of the Act or rules
thereunder are to such sections or rules as they may from time to time be
amended or renumbered.
2.2 "Agreement" means the written agreement between the Company
and the Participant evidencing an Award granted to the Participant.
2.3 "Award" means an award granted to a Participant of a Stock
Option or Restricted Stock or of any combination thereof.
2.4 "Board" means the Board of Directors of YOUcentric, Inc.
2.5 "Code" means the Internal Revenue Code of 1986, as now in
effect or as hereafter amended. All citations to sections of the Code are to
such sections as they may from time to time be amended or renumbered.
2.6 "Committee" means the committee consisting of two or more
members of the Board as may be appointed by the Board to administer this Plan
pursuant to Article III or for such limited
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purposes as may be provided by the Board. In the event the Board does not
appoint such committee, all references to the "Committee" herein shall mean the
Board.
2.7 "Company" means YOUcentric, Inc., a North Carolina
corporation, and its successors and assigns. The term "Company" shall include
any company during any period that it is a "parent corporation" or a "subsidiary
corporation" with respect to the Company within the meaning of Code section
424(d). With respect to all purposes of the Plan, including, but not limited to,
the establishment, amendment, termination, operation and administration of the
Plan, YOUcentric, Inc. shall be authorized to act on behalf of all other
entities included within the definition of "Company."
2.8 "Disability," with respect to any Incentive Stock Option,
means disability as determined under section 22(e)(3) of the Code, and, with
respect to any other Award, means (i) with respect to a Participant who is
eligible to participate in the Company's program of long-term disability
insurance, if any, a condition with respect to which the Participant is entitled
to commence benefits under such program of long-term disability insurance, and
(ii) with respect to any Participant (including a Participant who is eligible to
participate in the Company's program of long-term disability insurance, if any),
a disability as determined under procedures established by the Committee or in
any Award.
2.9 "Eligible Participant" means an employee of the Company
(including an officer), as shall be determined by the Committee, as well as any
other person, including a member of the Board and a consultant who provides
services to the Company, subject to limitations as may be provided by the Code,
the Act or the Committee, as shall be determined by the Committee.
2.10 "Fair Market Value" means the fair market value of a share of
Stock, as determined in good faith by the Committee; provided, however, that
(a) if the Stock is listed on a national securities
exchange, Fair Market Value on a date shall be the closing sale price
reported for the Stock on such exchange on such date if at least 100
shares of Stock were sold on such date or, if fewer than 100 shares of
stock were sold on such date, then Fair Market Value on such date shall
be the closing sale price reported for the Stock on such exchange on
the last prior date on which at least 100 shares were sold, all as
reported in The Wall Street Journal or such other source as the
Committee deems reliable; and
(b) if the Stock is not listed on a national securities
exchange but is admitted to quotation on the National Association of
Securities Dealers Automated Quotation System or other comparable
quotation system, Fair Market Value on a date shall be the last sale
price reported for the Stock on such system on such date if at least
100 shares of Stock were sold on such date or, if fewer than 100 shares
of Stock were sold on such date, then Fair Market Value on such date
shall be the average of the high bid and low asked prices reported for
the Stock on such system on such date or, if no shares of Stock were
sold on such date, then Fair Market Value on such date shall be the
last sale price reported for the Stock on such system on the last date
on which at least 100 shares of Stock were sold, all as
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reported in The Wall Street Journal or such other source as the
Committee deems reliable; and
(c) If the Stock is not traded on a national securities
exchange or reported by a national quotation system, if any
broker-dealer makes a market for the Stock, then the Fair Market Value
of the Stock on a date shall be the average of the highest and lowest
quoted selling prices of the Stock in such market on such date if at
least 100 shares of Stock were sold on such date or, if fewer than 100
shares of Stock were sold on such date, then Fair Market Value on such
date shall be the average of the high bid and low asked prices for the
Stock in such market on such date or, if no prices are quoted on such
date, then Fair Market Value on such date shall be the average of the
highest and lowest quoted selling prices of the Stock in such market on
the last date on which at least 100 shares of Stock were sold.
The Committee shall determine Fair Market Value in connection with an Incentive
Stock Option in accordance with Section 422 of the Code and the rules and
regulations thereunder.
2.11 "Incentive Stock Option" means a Stock Option granted to an
Eligible Participant under Article IV of the Plan.
2.12 "Nonqualified Stock Option" means a Stock Option granted to an
Eligible Participant under Article V of the Plan.
2.13 "Option Grant Date" means, as to any Stock Option, the latest
of:
(a) the date on which the Committee takes action to grant
the Stock Option to the Participant;
(b) the date the Participant receiving the Stock Option
becomes an employee of the Company, to the extent employment status is
a condition of the grant or a requirement of the Code or the Act; or
(c) such other date (later than the dates described in
(a) and (b) above) as the Committee may designate.
2.14 "Participant" means an Eligible Participant to whom an Award
has been granted and who has entered into an Agreement evidencing the Award.
2.15 "Plan" means the YOUcentric, Inc. 1999 Equity Compensation
Plan, as amended from time to time.
2.16 "Restricted Stock" means an Award of Stock under Article VII
of the Plan, which Stock is issued with the restriction that the holder may not
sell, transfer, pledge, or assign such Stock and with such other restrictions as
the Committee, in its sole discretion, may impose, including without limitation,
any restriction on the right to vote such Stock, and the right to receive
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any cash dividends, which restrictions may lapse separately or in combination at
such time or times, in installments or otherwise, as the Committee may deem
appropriate.
2.17 "Restriction Period" means the period commencing on the date
an Award of Restricted Stock is granted and ending on such date as the Committee
shall determine.
2.18 "Retirement" means retirement from active employment with the
Company, as determined by the Committee.
2.19 "Stock" means the common stock of YOUcentric, Inc., as may be
adjusted pursuant to the provisions of Section 3.10.
2.20 "Stock Option" means an Incentive Stock Option or a
Nonqualified Stock Option. Stock Options granted under the Plan shall be
designated as either Incentive Stock Options or Nonqualified Stock Options, and
in the absence of such designation shall be treated as Nonqualified Stock
Options.
2.21 "Termination of Employment" means the discontinuance of
employment of a Participant with the Company for any reason or, if the
Participant is a non-employee member of the Board, the termination of the
Participant's directorship, or, if the Participant is a consultant to the
Company, the termination of the Participant's relationship as a consultant. The
determination of whether a Participant has incurred a Termination of Employment
shall be made by the Committee in its discretion. In determining whether a
Termination of Employment has occurred, the Committee may provide that service
as a consultant or service with a business enterprise in which the Company has a
significant ownership interest shall be treated as employment with the Company.
With respect to any Incentive Stock Option, employment shall be interpreted in a
manner consistent with section 422 of the Code. A Participant shall not be
deemed to have incurred a Termination of Employment if the Participant is on
military leave, sick leave, or other bona fide leave of absence approved by the
Company of 90 days or fewer (or any longer period during which the Participant
is guaranteed reemployment by statute or contract.) In the event a Participant's
leave of absence exceeds this period, he will be deemed to have incurred a
Termination of Employment on the day following the expiration date of such
period.
ARTICLE III - ADMINISTRATION
3.1 This Plan shall be administered by the Committee. The
Committee, in its discretion, may delegate to one or more of its members such of
its powers as it deems appropriate. The Committee also may limit the power of
any member to the extent necessary to comply with rule 16b-3 under the Act, Code
section 162(m) or any other law or for any other purpose. If it so chooses, the
Board may appoint originally, and as vacancies occur, the members of the
Committee who shall serve at the pleasure of the Board. To the extent that a
Committee has not otherwise been appointed, references to the "Committee" herein
shall mean the Board.
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3.2 The Committee shall meet at such times and places as it
determines. A majority of its members shall constitute a quorum, and the
decision of a majority of those present at any meeting at which a quorum is
present shall constitute the decision of the Committee. A memorandum signed by
all of its members shall constitute the decision of the Committee without
necessity, in such event, for holding an actual meeting.
3.3 The Committee shall have the exclusive right to interpret,
construe and administer the Plan, to select the persons who are eligible to
receive an Award, and to act in all matters pertaining to the granting of an
Award and the contents of the Agreement evidencing the Award, including without
limitation, the determination of the number of Stock Options or shares of Stock
subject to an Award and the form, terms, conditions and duration of each Award,
and any amendment thereof consistent with the provisions of the Plan. All acts,
determinations and decisions of the Committee made or taken pursuant to grants
of authority under the Plan or with respect to any questions arising in
connection with the administration and interpretation of the Plan, including the
severability of any and all of the provisions thereof, shall be conclusive,
final and binding upon all Participants, Eligible Participants and their estates
and beneficiaries.
3.4 The Committee may adopt such rules, regulations and procedures
of general application for the administration of this Plan, as it deems
appropriate.
3.5 Subject to adjustment as provided in Plan Section 3.10, the
aggregate number of shares of Stock which are available for issuance pursuant to
Awards granted under the Plan shall be Nine Hundred Thousand (900,000). Such
shares of Stock shall be made available from authorized and unissued shares of
Stock. If, for any reason, any shares of Stock awarded or subject to purchase
under the Plan are not delivered or purchased, or are reacquired by the Company,
for reasons including, but not limited to, a forfeiture of Restricted Stock or
termination, expiration or cancellation of a Stock Option, such shares of Stock
shall not be charged against the aggregate number of shares of Stock available
for issuance pursuant to Awards granted under the Plan and shall again be
available for issuance pursuant to Awards granted under the Plan. If the
exercise price and/or withholding obligation under a Stock Option is satisfied
by tendering shares of Stock to the Company (either by actual delivery or
attestation), only the number of shares of Stock issued net of the share of
Stock so tendered shall be deemed delivered for purposes of determining the
maximum number of shares of Stock available for issuance under the Plan.
3.6 Each Award granted under the Plan shall be evidenced by a
written Award Agreement. Each Award Agreement shall be subject to and
incorporate, by reference or otherwise, the applicable terms and conditions of
the Plan, and any other terms and conditions, not inconsistent with the Plan, as
may be imposed by the Committee.
3.7 The Company shall not be required to issue or deliver any
certificates for shares of Stock prior to:
(a) the listing of such shares on any stock exchange on
which the Stock may then be listed; and
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(b) the completion of any registration or qualification
of such shares of Stock under any federal or state law, or any ruling
or regulation of any government body which the Company shall, in its
discretion, determine to be necessary or advisable.
3.8 All certificates for shares of Stock delivered under the Plan
shall also be subject to such stop-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange or
national quotation system upon which the Stock is then listed and any applicable
federal or state laws, and the Committee may cause a legend or legends to be
placed on any such certificates to make appropriate reference to such
restrictions. In making such determination, the Committee may rely upon an
opinion of counsel for the Company.
3.9 Subject to the restrictions on Restricted Stock, as provided
in Article VII of the Plan and in the Restricted Stock Award Agreement, each
Participant who receives an Award of Restricted Stock shall have all of the
rights of a shareholder with respect to such shares of Stock, including the
right to vote the shares to the extent, if any, such shares possess voting
rights and receive dividends and other distributions. Except as provided
otherwise in the Plan or in an Award Agreement, no Participant awarded a Stock
Option shall have any right as a shareholder with respect to any shares of Stock
covered by his or her Stock Option prior to the date of issuance to him or her
of a certificate or certificates for such shares of Stock.
3.10 If any reorganization, recapitalization, reclassification,
stock split, stock dividend, or consolidation of shares of Stock, merger or
consolidation or separation, including a spin-off, of the Company or sale or
other disposition by the Company of all or a portion of its assets, any other
change in the Company's corporate structure, or any distribution to shareholders
other than a cash dividend results in the outstanding shares of Stock, or any
securities exchanged therefor or received in their place, being exchanged for a
different number or class of shares of Stock or other securities of the Company,
or for shares of Stock or other securities of any other corporation; or new,
different or additional shares or other securities of the Company or of any
other corporation being received by the holders of outstanding shares of Stock,
then the Committee may make equitable adjustments in:
(a) the limitation on the aggregate number of shares of
Stock that may be awarded as set forth in Plan Section 3.5;
(b) the number of shares and class of Stock that may be
subject to an Award, and which have not been issued or transferred
under an outstanding Award;
(c) the purchase price to be paid per share of Stock
under outstanding Stock Options; and
(d) the terms, conditions or restrictions of any Award
and Award Agreement, including the price payable for the acquisition of
Stock;
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provided, however, that all adjustments made as the result of the foregoing in
respect of each Incentive Stock Option shall be made so that such Stock Option
shall continue to be an incentive stock option within the meaning of Code
section 422, unless the Committee takes affirmative action to treat such Stock
Option instead as a Nonqualified Stock Option.
3.11 In addition to such other rights of indemnification as they
may have as directors or as members of the Committee, the members of the
Committee shall be indemnified by the Company against reasonable expenses,
including attorney's fees, actually and necessarily incurred in connection with
the defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any Award
granted thereunder, and against all amounts paid by them in settlement thereof,
provided such settlement is approved by independent legal counsel selected by
the Company, or paid by them in satisfaction of a judgment or settlement in any
such action, suit or proceeding, except as to matters as to which the Committee
member has been negligent or engaged in misconduct in the performance of his
duties; provided, that within 60 days after institution of any such action, suit
or proceeding, a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
3.12 The Committee may require each person purchasing shares of
Stock pursuant to a Stock Option or other Award under the Plan to represent to
and agree with the Company in writing that he is acquiring the shares of Stock
without a view to distribution thereof. The certificates for such shares of
Stock may include any legend which the Committee deems appropriate to reflect
any restrictions on transfer.
3.13 The Committee shall be authorized to make adjustments in
performance based criteria or in the terms and conditions of other Awards in
recognition of unusual or nonrecurring events affecting the Company or its
financial statements or changes in applicable laws, regulations or accounting
principles. The Committee may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Award Agreement in the manner and
to the extent it shall deem desirable to carry it into effect. In the event the
Company shall assume outstanding employee benefit awards or the right or
obligation to make future such awards in connection with the acquisition of
another corporation or business entity, the Committee may, in its discretion,
make such adjustments in the terms of Awards under the Plan as it shall deem
appropriate to assume the outstanding awards, rights and obligations.
3.14 All outstanding Awards to any Participant may be canceled if
(a) the Participant, without the consent of the Committee, while employed by the
Company or after termination of such employment, becomes associated with,
employed by, renders services to, or owns any interest in, other than any
insubstantial interest, as determined by the Committee, any business that is in
competition with the Company or with any business in which the Company has a
substantial interest as determined by the Committee; or (b) is terminated for
cause as determined by the Committee.
3.15 In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective registration statement
filed under the Securities Act of 1933,
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including the Company's initial public offering, a Participant shall not sell,
make any short sale of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or otherwise agree to
engage in any of the foregoing transactions with respect to, any Stock acquired
under the Plan without the prior written consent of the Company or its
underwriters. Such restriction (the "Market Stand-Off") shall be in effect for
such period of time from and after the effective date of the final prospectus
for the offering as may be requested by the Company or such underwriters. In no
event, however, shall such period exceed one hundred eighty (180) days. Any new,
substituted or additional securities that are by reason of any recapitalization
or reorganization distributed with respect to Stock acquired under the Plan
shall be immediately subject to the Market Stand-Off, to the same extent the
Stock acquired under the Plan is at such time covered by such provisions. In
order to enforce the Market Stand-Off, the Company may impose stop-transfer
restrictions with respect to the Stock acquired under the Plan until the end of
the applicable stand-off period.
ARTICLE IV - INCENTIVE STOCK OPTIONS
4.1 Each provision of this Article IV and of each Incentive Stock
Option granted under the Plan shall be construed in accordance with the
provisions of Code section 422, and any provision hereof that cannot be so
construed shall be disregarded.
4.2 Incentive Stock Options shall be granted only to Eligible
Participants who are in the active employment of the Company, and to individuals
to whom grants are conditioned upon active employment, each of whom may be
granted one or more such Incentive Stock Options for a reason related to his
employment at such time or times determined by the Committee following the
Effective Date through the date which is ten (10) years following the Effective
Date, subject to the following conditions:
(a) The Incentive Stock Option exercise price per share
of Stock shall be set in the Agreement, but shall not be less than 100%
of the Fair Market Value of the Stock on the Option Grant Date. If the
Eligible Participant owns more than 10% of the outstanding Stock (as
determined pursuant to Code section 424(d)) on the Option Grant Date,
the Incentive Stock Option exercise price per share shall not be less
than 110% of the Fair Market Value of the Stock on the Option Grant
Date; provided, however, that if an Incentive Stock Option is granted
to such an Eligible Participant at an exercise price per share that is
less than 110% of Fair Market Value of the stock on the Option Grant
Date, such Option shall be deemed a Nonqualified Stock Option.
(b) The Incentive Stock Option may be exercised in whole
or in part from time to time within ten (10) years from the Option
Grant Date (five (5) years if the Eligible Participant owns more than
10% of the Stock on the Option Grant Date), or such shorter period as
may be specified by the Committee in the Award; provided, that in any
event, the Incentive Stock Option shall lapse and cease to be
exercisable upon a Termination of Employment or within such period
following a Termination of Employment as shall have been specified in
the Incentive Stock Option Award Agreement, which period shall in no
event exceed three months unless:
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(i) employment shall have terminated as a result
of death or Disability, in which event such period shall not
exceed one year after the date of death or Disability; or
(ii) death shall have occurred following a
Termination of Employment and while the Incentive Stock Option
was still exercisable, in which event such period shall not
exceed one year after the date of death; provided, further,
that such period following a Termination of Employment shall
in no event extend the original exercise period of the
Incentive Stock Option.
(c) To the extent the aggregate Fair Market Value,
determined as of the Option Grant Date, of the shares of Stock with
respect to which incentive stock options (determined without regard to
this subsection) are first exercisable during any calendar year (under
this Plan or any other plan of the Company and its parent and
subsidiary corporations (within the meaning of Code sections 424(e) and
424(f), respectively)), by Participant exceeds $100,000, such Incentive
Stock Options granted under the Plan shall be treated as Nonqualified
Stock Options granted under Article V to the extent of such excess.
(d) The Committee may adopt any other terms and
conditions which it determines should be imposed for the Incentive
Stock Option to qualify under Code section 422, as well as any other
terms and conditions not inconsistent with this Article IV as
determined by the Committee.
(e) The maximum number of shares of Stock authorized for
issuance pursuant to Incentive Stock Option Awards shall be the total
number authorized for issuance pursuant to Awards under the Plan
pursuant to Section 3.5 above.
4.3 The Committee may at any time offer to buy out for a payment
in cash, Stock, or Restricted Stock an Incentive Stock Option previously
granted, based on such terms and conditions as the Committee shall establish and
communicate to the Participant at the time that such offer is made.
4.4 If the Incentive Stock Option Award Agreement so provides, the
Committee may require that all or part of the shares of Stock to be issued upon
the exercise of an Incentive Stock Option shall take the form of Deferred or
Restricted Stock, which shall be valued on the date of exercise, as determined
by the Committee, on the basis of the Fair Market Value of such Restricted Stock
determined without regard to the deferral limitations and/or forfeiture
restrictions involved.
4.5 Any Incentive Stock Option that fails to qualify under section
422 of the Code shall be treated as a Nonqualified Stock Option.
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ARTICLE V - NONQUALIFIED STOCK OPTIONS
5.1 Nonqualified Stock Options may be granted to Eligible
Participants to purchase shares of Stock at such time or times determined by the
Committee, subject to the terms and conditions set forth in this Article V.
5.2 The Nonqualified Stock Option exercise price per share of
Stock shall be established in the Agreement and may be more than, equal to or
less than 100% of the Fair Market Value at the time of the grant, but may not be
less than par value of the Stock.
5.3 A Nonqualified Stock Option may be exercised in full or in
part from time to time within such period as may be specified by the Committee
in the Agreement; provided, that in any event, the Nonqualified Stock Option
shall lapse and cease to be exercisable upon a Termination of Employment or
within such period following a Termination of Employment as shall have been
specified in the Nonqualified Stock Option Award Agreement; provided, that such
period following a Termination of Employment shall in no event extend the
original exercise period of the Nonqualified Stock Option.
5.4 The Nonqualified Stock Option Award Agreement may include any
other terms and conditions not inconsistent with this Article V or Article VI,
as determined by the Committee.
ARTICLE VI - INCIDENTS OF STOCK OPTIONS
6.1 Each Stock Option shall be granted subject to such terms and
conditions, if any, not inconsistent with this Plan, as shall be determined by
the Committee, including any provisions as to continued employment as
consideration for the grant or exercise of such Stock Option and any provisions
that may be advisable to comply with applicable laws, regulations or rulings of
any governmental authority.
6.2 Except as provided below, a Stock Option generally shall not
be transferable by the Participant other than by will or by the laws of descent
and distribution, or, to the extent otherwise allowed by applicable law,
pursuant to a qualified domestic relations order as defined by the Code or the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder, and shall be exercisable during the lifetime of the Participant only
by him or in the event of his death or Disability, by his guardian or legal
representative. However, a Nonqualified Stock Option may be transferred and
exercised by the transferee to the extent determined by the Committee to be
consistent with securities and other applicable laws, rules and regulations and
with Company policy. Notwithstanding any language herein or in any Agreement to
the contrary, any restrictions on transfer of a Stock Option in the Plan or an
Agreement shall be void and of no effect if the Committee determines that a
transfer can be made consistent with securities and other applicable laws, rules
and regulations.
6.3 Shares of Stock purchased upon exercise of a Stock Option
shall be paid for at the time of exercise (or, in case of an exercise pursuant
to a cashless exercise mechanism described below, as soon as practicable after
such exercise) in cash or by tendering (either by actual delivery
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or by attestation) shares of Stock acceptable to the Committee and valued as of
the exercise date or in any combination thereof in such amounts, at such times
and upon such terms as shall be determined by the Committee, subject to
limitations set forth in the corresponding Stock Option Award Agreement. The
Committee may establish a cashless exercise mechanism by which a Participant may
pay the exercise price under a Stock Option by irrevocably authorizing a third
party to sell shares of Stock (or a sufficient portion of the shares) acquired
upon exercise of the Stock Option and remit to the Company a sufficient portion
of the sales proceeds to pay the entire exercise price and/or any tax
withholding resulting from such exercise. Without limiting the foregoing, the
Committee may establish payment terms for the exercise of Stock Options which
permit the Participant to deliver shares of Stock, or other evidence of
ownership of Stock satisfactory to the Company, with a Fair Market Value equal
to the Stock Option price as payment.
6.4 No cash dividends shall be paid on shares of Stock subject to
unexercised Stock Options. The Committee may provide, however, that a
Participant to whom a Stock Option has been granted which is exercisable in
whole or in part at a future time for shares of Stock shall be entitled to
receive an amount per share equal in value to the cash dividends, if any, paid
per share on issued and outstanding Stock, as of the dividend record dates
occurring during the period between the date of the grant and the time each such
share of Stock is delivered pursuant to exercise of such Stock Option. Such
amounts (herein called "dividend equivalents") may, in the discretion of the
Committee, be:
(a) paid in cash or Stock either from time to time prior
to, or at the time of the delivery of, such Stock, or upon expiration
of the Stock Option if it shall not have been fully exercised; or
(b) converted into contingently credited shares of Stock,
with respect to which dividend equivalents may accrue, in such manner,
at such value, and deliverable at such time or times, as may be
determined by the Committee.
Such Stock, whether delivered or contingently credited, shall be
charged against the limitations set forth in Plan Section 3.5.
6.5 The Committee, in its sole discretion, may authorize payment
of interest equivalents on dividend equivalents which are payable in cash at a
future time.
6.6 In the event of Disability or death, the Committee, with the
consent of the Participant or his legal representative, may authorize payment,
in cash or in Stock, or partly in cash and partly in Stock, as the Committee may
direct, of an amount equal to the difference at the time between the Fair Market
Value of the Stock subject to a Stock Option and the option price in
consideration of the surrender of the Stock Option.
6.7 If a Participant is required to pay to the Company an amount
with respect to income and employment tax withholding obligations in connection
with exercise of a Nonqualified Stock Option, and/or with respect to certain
dispositions of Stock acquired upon the exercise of an Incentive Stock Option,
the Committee, in its discretion and subject to such rules as it may adopt,
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may permit the Participant to satisfy the obligation, in whole or in part, by
surrendering shares of Stock which the Participant already owns or by making an
irrevocable election that, in lieu of the issuance of Stock, a portion of the
total Fair Market Value of the shares of Stock subject to the Nonqualified Stock
Option and/or with respect to certain dispositions of Stock acquired upon the
exercise of an Incentive Stock Option, be surrendered for cash and that such
cash payment be applied to the satisfaction of the withholding obligations. The
amount to be withheld shall not exceed the statutory minimum federal and state
income and employment tax liability arising from the Stock Option exercise
transaction.
6.8 The Committee may permit the voluntary surrender of all or a
portion of any Stock Option granted under the Plan to be conditioned upon the
granting to the Participant of a new Stock Option for the same or a different
number of shares of Stock as the Stock Option surrendered, or may require such
surrender as a condition precedent to a grant of a new Stock Option to such
Participant. Subject to the provisions of the Plan, such new Stock Option shall
be exercisable at such price, during such period and on such other terms and
conditions as are specified by the Committee at the time the new Stock Option is
granted. Upon surrender, the Stock Options surrendered shall be canceled and the
shares of Stock previously subject to them shall be available for the grant of
other Stock Options.
6.9 The Committee may provide in any Stock Option Agreement
entered into pursuant to the Plan, or by separate agreement, that if a
Participant makes payment upon the exercise of any Stock Option granted under
this Plan in whole or in part through the surrender of shares of Stock, such
Participant shall automatically receive a new Stock Option for the number of
shares of Stock so surrendered by him at a price equal to the Fair Market Value
of the shares of Stock at the time of surrender, exercisable on the same basis
and having the same terms as the underlying Stock Option or on such other basis
as the Committee shall determine and provide in the Stock Option Agreement.
ARTICLE VII - RESTRICTED STOCK
7.1 Restricted Stock Awards may be made to Participants as an
incentive for the performance of future services that will contribute materially
to the successful operation of the Company. Awards of Restricted Stock may be
made either alone or in addition to or in tandem with other Awards granted under
the Plan.
7.2 With respect to Awards of Restricted Stock, the Committee
shall:
(a) determine the purchase price, if any, to be paid for
such Restricted Stock, which may be more than, equal to, or less than
par value and may be zero, subject to such minimum consideration as may
be required by applicable law;
(b) determine the length of the Restriction Period;
(c) determine any restrictions applicable to the
Restricted Stock such as service or performance;
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(d) determine if the restrictions shall lapse as to all
shares of Restricted Stock at the end of the Restriction Period or as
to a portion of the shares of Restricted Stock in installments during
the Restriction Period; and
(e) determine if dividends and other distributions on the
Restricted Stock are to be paid currently to the Participant or paid to
the Company for the account of the Participant.
7.3 Awards of Restricted Stock must be accepted within a period of
60 days, or such shorter period as the Committee may specify, by executing a
Restricted Stock Award Agreement and paying whatever price, if any, is required.
The prospective recipient of a Restricted Stock Award shall not have any rights
with respect to such Award, unless such recipient has executed a Restricted
Stock Award Agreement and has delivered a fully executed copy thereof to the
Committee, and has otherwise complied with the applicable terms and conditions
of such Award.
7.4 Except when the Committee determines otherwise, or as
otherwise provided in the Restricted Stock Agreement, if a Participant
terminates employment with the Company for any reason before the expiration of
the Restriction Period, all shares of Restricted Stock still subject to
restriction shall be forfeited by the Participant and shall be reacquired by the
Company.
7.5 Except as otherwise provided in this Article VII, or as
otherwise provided in the Restricted Stock Agreement, no shares of Restricted
Stock received by a Participant shall be sold, exchanged, transferred, pledged,
hypothecated or otherwise disposed of during the Restriction Period.
7.6 To the extent not otherwise provided in a Restricted Stock
Agreement, in cases of death, Disability or Retirement or in cases of special
circumstances, the Committee may in its discretion elect to waive any or all
remaining restrictions with respect to such Participant's Restricted Stock.
7.7 In the event of hardship or other special circumstances of a
Participant whose employment with the Company is involuntarily terminated, the
Committee may in its discretion elect to waive in whole or in part any or all
remaining restrictions with respect to any or all of the Participant's
Restricted Stock, based on such factors and criteria as the Committee may deem
appropriate.
7.8 Upon an Award of Restricted Stock to a Participant, one or
more stock certificates representing the shares of Restricted Stock shall be
registered in the Participant's name. Such certificates may either:
(a) be held in custody by the Company until the
Restriction Period expires or until restrictions thereon otherwise
lapse, and the Participant shall deliver to the Company one or more
stock powers endorsed in blank relating to the Restricted Stock; and/or
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(b) be issued to the Participant and registered in the
name of the Participant, and shall bear an appropriate restrictive
legend and shall be subject to appropriate stop-transfer orders.
7.9 Except as provided in this Article VII, a Participant
receiving a Restricted Stock Award shall have, with respect to such Restricted
Stock Award, all of the rights of a shareholder of the Company, including the
right to vote the shares to the extent, if any, such shares possess voting
rights and the right to receive any dividends; provided, however, the Committee
may require that any dividends on such shares of Restricted Stock shall be
automatically deferred and reinvested in additional Restricted Stock subject to
the same restrictions as the underlying Award, or may require that dividends and
other distributions on Restricted Stock shall be paid to the Company for the
account of the Participant. The Committee shall determine whether interest shall
be paid on such amounts, the rate of any such interest, and the other terms
applicable to such amounts.
7.10 If and when the Restriction Period expires without a prior
forfeiture of the Restricted Stock subject to such Restriction Period,
unrestricted certificates for such shares shall be delivered to the Participant;
provided, however, that the Committee may cause such legend or legends to be
placed on any such certificates as it may deem advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission and
any applicable federal or state law.
7.11 In order to better ensure that Award payments actually reflect
the performance of the Company and the service of the Participant, the Committee
may provide, in its sole discretion, for a tandem performance-based or other
Award designed to guarantee a minimum value, payable in cash or Stock to the
recipient of a Restricted Stock Award, subject to such performance, future
service, deferral and other terms and conditions as may be specified by the
Committee.
ARTICLE VIII - AMENDMENT AND TERMINATION
8.1 The Board at any time and from time to time, may amend or
terminate the Plan. To the extent required by Code section 422 and/or the rules
of the exchange upon which the Stock is traded, no amendment, without approval
by the Company's shareholders, shall:
(a) alter the group of persons eligible to participate in
the Plan;
(b) except as provided in Plan Section 3.10, increase the
maximum number of shares of Stock which are available for issuance
pursuant to Awards granted under the Plan;
(c) extend the period during which Incentive Stock
Options may be granted beyond the date which is ten (10) years
following the Effective Date.
(d) limit or restrict the powers of the Committee with
respect to the administration of this Plan;
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(e) change the definition of an Eligible Participant for
the purpose of Incentive Stock Options or increase the limit or the
value of shares of Stock for which an Eligible Participant may be
granted an Incentive Stock Option;
(f) materially increase the benefits accruing to
Participants under this Plan;
(g) materially modify the requirements as to eligibility
for participation in this Plan; or
(h) change any of the provisions of this Article VIII.
8.2 No amendment to or discontinuance of this Plan or any
provision thereof by the Board or the shareholders of the Company shall, without
the written consent of the Participant, adversely affect, as shall be determined
by the Committee, any Award previously granted to such Participant under this
Plan; provided, however, the Committee retains the right and power to treat any
outstanding Incentive Stock Option as a Nonqualified Stock Option in accordance
with Plan Section 4.3.
8.3 Notwithstanding anything herein to the contrary, if the right
to receive or benefit from any Award, either alone or together with payments
that a Participant has the right to receive from the Company, would constitute a
"parachute payment" under Code section 280G, all such payments may be reduced,
in the discretion of the Committee, to the largest amount that will avoid an
excise tax to the Participant under Code section 280G.
ARTICLE IX - MISCELLANEOUS PROVISIONS
9.1 Nothing in the Plan or any Award granted under the Plan shall
confer upon any Participant any right to continue in the employ of the Company,
or to serve as a director thereof, or interfere in any way with the right of the
Company to terminate his or her employment at any time. Unless agreed by the
Board, no Award granted under the Plan shall be deemed salary or compensation
for the purpose of computing benefits under any employee benefit plan or other
arrangement of the Company for the benefit of its employees. No Participant
shall have any claim to an Award until it is actually granted under the Plan. To
the extent that any person acquires a right to receive payments from the Company
under the Plan, such right shall, except as otherwise provided by the Committee,
be no greater than the right of an unsecured general creditor of the Company.
All payments to be made under the Plan shall be paid from the general funds of
the company, and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of such amounts, except as
provided in Article VII with respect to Restricted Stock and except as otherwise
provided by the Committee.
9.2 The Committee may make such provisions and take such steps as
it may deem necessary or appropriate for the withholding of any taxes which the
Company is required by any law or regulation of any governmental authority,
whether federal, state or local, domestic or foreign, to withhold in connection
with any Award or the exercise thereof, including, but not limited to,
withholding the payment of all or any portion of such Award or another Award
under
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this Plan until the Participant reimburses the Company for the amount the
Company is required to withhold with respect to such taxes, or canceling any
portion of such Award or another Award under this Plan in an amount sufficient
to reimburse itself for the amount it is required to so withhold, or selling any
property contingently credited by the Company for the purpose of paying such
Award or another Award under this Plan in order to withhold or reimburse itself
for the amount it is required to so withhold. The amount to be withheld shall
not exceed the statutory minimum federal and state income and employment tax
liability arising from the exercise transaction.
9.3 The Plan and the grant of Awards shall be subject to all
applicable federal and state laws, rules, and regulations and to such approvals
by any United States government or regulatory agency as may be required.
9.4 The terms of the Plan shall be binding upon the Company, and
its successors and assigns.
9.5 The Plan is intended to constitute an "unfunded" plan for
incentive and deferred compensation. With respect to any payments not yet made
to a Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor of the
Company. In its sole discretion, the Committee may authorize the creation of
trusts or other arrangements to meet the obligations created under the Plan to
deliver shares of Stock or payments in lieu of or with respect to Awards under
the Plan; provided, however, that, unless the Committee otherwise determines
with the consent of the affected Participant, the existence of such trusts or
other arrangements is consistent with the "unfunded" status of the Plan.
9.6 Each Participant exercising an Award under the Plan agrees to
give the Committee prompt written notice of any election made by such
Participant under Code section 83(b) or any similar provision thereof.
9.7 If any provision of this Plan or an Award Agreement is or
becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, or
would disqualify the Plan or any Award Agreement under any law deemed applicable
by the Committee, such provision shall be construed or deemed amended to conform
to applicable laws or if it cannot be construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan
or the Award Agreement, it shall be stricken and the remainder of the Plan or
the Award Agreement shall remain in full force and effect.
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9.8 The Committee may incorporate additional or alternative
provisions for this Plan with respect to residents of one or more individual
states to the extent necessary or desirable under state securities laws. Such
provisions shall be set out in one or more appendices hereto which may be
amended or deleted by the Committee from time to time.
IN WITNESS WHEREOF, this Plan is executed this the 23rd day of
December, 1999.
YOUCENTRIC, INC.
By: /s/ Tom Fedell
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Tom Fedell, Chief Executive Officer
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AMENDMENT TO THE YOUCENTRIC, INC.
1999 EQUITY COMPENSATION PLAN
THIS AMENDMENT is made and entered into this 22nd day of March, 2000
by YOUcentric, Inc., a North Carolina corporation (the "Corporation").
W I T N E S S E T H:
WHEREAS, the Corporation has previously established and adopted the
YOUcentric, Inc. 1999 Equity Compensation Plan (the "Plan") effective December
23, 1999;
WHEREAS, section 8.1 of the Plan provides, in part, that the Board of
Directors of the Corporation ("the "Board") at any time and from time to time
may amend the Plan, provided that to the extent required by section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and except as provided
in Section 3.10 of the Plan, no amendment may, without shareholder approval,
increase the maximum number of shares of common stock of the Corporation which
are available for issuance pursuant to awards granted under the Plan;
WHEREAS, section 3.10 of the Plan provides, in part, that in the event
of a stock dividend with respect to the common stock of the Corporation, the
committee under the Plan may make equitable adjustments in the limitation on the
aggregate number of shares of common stock of the Corporation authorized for
issuance pursuant to grants under the Plan, the number of shares of common stock
of the Corporation subject to outstanding awards under the Plan and the exercise
price per share of common stock of the Corporation under outstanding awards
under the Plan;
WHEREAS, the Board effected a three-for-one share split of its Common
Stock by way of a 200% share dividend February 22, 2000;
WHEREAS, the Board acting as the committee under the Plan took action
pursuant to section 3.10 of the Plan, effective at such time as such share split
was effected, to make equitable adjustments in the aggregate number of shares of
common stock of the Corporation authorized for issuance pursuant to grants under
the Plan, the number of shares of common stock of the Corporation subject to
outstanding awards under the Plan and the exercise price per share of common
stock of the Corporation under outstanding awards under the Plan;
WHEREAS, as a result of such Board action there were 2,700,000 shares
of common stock of the Corporation authorized for issuance under the Plan; and
WHEREAS, pursuant to section 8.1 of the Plan the Board subsequently
amended the Plan to increase the number of shares of common stock authorized for
issuance under the Plan by an additional 850,000 shares such that there are now
3,550,000 shares of common stock of the Corporation authorized for issuance
under the Plan.
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NOW, THEREFORE, IT IS HEREBY RESOLVED, in consideration of the premises
herein contained, the Corporation hereby amends the Plan as follows:
1. The first sentence of section 3.5 of the Plan is hereby
amended to read as follows effective as of the date hereof:
"3.5 Subject to adjustment as provided in Section 3.10 of
the Plan, the aggregate number of shares of Stock which are available
for issuance pursuant to Awards granted under the Plan shall be Three
Million Five Hundred Fifty-five Thousand (3,550,000)."
2. This Amendment does not supersede the terms and conditions of
the Plan, except to the extent expressly described herein.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
executed by its duly authorized officer, all as of the day and year first above
written.
YOUCENTRIC, INC.
By:/s/ Tom Fedell
----------------------------------------
Tom Fedell, Chief Executive Officer
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