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EXHIBIT 10.20
YOUCENTRIC, INC.
2000 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS.
1.1 General. The name of the plan is the YOUcentric, Inc. 2000 Non-Employee
Directors Stock Option Plan (the "Plan"). The purpose of the Plan is to
enable YOUcentric, Inc. and its successors and assigns (the "Company")
to attract and retain non-employee directors and further align their
interests with those of the Company's shareholders by providing for or
increasing their equity interests in the Company. It is anticipated
that providing such persons with a direct stake in the Company's
welfare will assure a closer identification of their interests with
those of the Company, thereby stimulating their efforts on the
Company's behalf and strengthening their desire to remain with the
Company.
1.2 Effective Date. This Plan shall become effective and shall be deemed to
have been adopted on June 16, 2000 (the "Effective Date").
1.3 Definitions. The following terms shall be defined as set forth below:
(a) "Act" means the Securities Exchange Act of 1934, as amended.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended,
and any successor Code, and related rules, regulations and
interpretations.
(d) "Fair Market Value" means the fair market value of a share of
Stock, as determined in good faith by the Committee; provided,
however, that
(i) 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
(ii) 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
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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 reported
in The Wall Street Journal or such other source as
the Committee deems reliable; and
(iii) 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.
(iv) Notwithstanding the foregoing, the Fair Market Value
of the Stock on the effective date of the Company's
initial public offering shall be the offering price
to the public of the Stock on such date.
(e) "Non-Employee Director" means each member of the Board who is
not an employee of the Company or any of its Subsidiaries (a
"Non-Employee Director").
(f) "Option" means any option granted pursuant to Section 4 to
purchase shares of Stock.
(g) "Option Agreement" means the written agreement between the
Company and a Non-Employee Director evidencing the grant of an
Option to the Non-Employee Director under this Plan.
(h) "Service Relationship" means a Non-Employee Director's
relationship as a non-employee director of the Company.
(i) "Stock" means the common stock of the Company, subject to
adjustments pursuant to Section 3.
(j) "Subsidiary" means any corporation or other entity (other than
the Company) in any unbroken chain of corporations or other
entities beginning with the Company if each of the
corporations or entities (other than the last corporation or
entity in the unbroken chain) owns stock or other interests
possessing 50 percent or more
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of the economic interest or the total combined voting power of
all classes of stock or other interests in one of the other
corporations or entities in the chain.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE
2.1 Administration of Plan. The Plan shall be administered by the Board, or
at the discretion of the Board, by a committee or committees of the
Board, comprised of not fewer than two directors. All references herein
to the Committee shall be deemed to refer to the group then responsible
for administration of the Plan at the relevant time (i.e., either the
Board or a committee or committees of the Board, as applicable).
2.2 Powers of Committee. The Committee shall have the power and authority
to grant Options consistent with the terms of the Plan, including the
power and authority:
(a) to determine and modify from time to time the terms and
conditions, including restrictions, not inconsistent with the
terms of the Plan, of any Option, which terms and conditions
may differ among individual Options and Non-Employee
Directors, and to approve the Option Agreement evidencing each
Option;
(b) to accelerate at any time the exercisability or vesting of all
or any portion of any Option;
(c) to impose any limitations on Options granted under the Plan,
including limitations on transfers, repurchase provisions and
the like and to exercise repurchase rights or obligations;
(d) to extend at any time the period in which Options may be
exercised; and
(e) at any time to adopt, alter and repeal such rules, guidelines
and practices for administration of the Plan and for its own
acts and proceedings as it shall deem advisable; to interpret
the terms and provisions of the Plan and any Option (including
related Option Agreements); to make all determinations it
deems advisable for the administration of the Plan; to decide
all disputes arising in connection with the Plan; and to
otherwise supervise the administration of the Plan.
All decisions and interpretations of the Committee shall be final,
conclusive and binding on all persons, including the Company and
Non-Employee Directors receiving Options under this Plan.
SECTION 3. STOCK ISSUABLE UNDER PLAN; MERGER; SUBSTITUTION.
3.1 Stock Issuable. Subject to adjustment as provided in Section 3.2, the
aggregate number of shares of Stock which are available for issuance
pursuant to Options granted under the Plan shall be One Hundred Twenty
Thousand (120,000). 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
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purchased, or are reacquired by the Company, for reasons including, but
not limited to, termination, expiration or cancellation of an Option,
such shares of Stock shall not be charged against the aggregate number
of shares of Stock available for issuance pursuant to Options granted
under the Plan and shall again be available for issuance pursuant to
Options granted under the Plan. If the exercise price and/or
withholding obligation under an 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.
3.2 Changes in Stock. 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 shall make equitable adjustments in:
(a) the limitation on the aggregate number of shares of Stock that
may be awarded as set forth in Section 3.1;
(b) the number of shares and class of Stock that may be subject to
an Option, and which have not been issued or transferred under
an outstanding Option;
(c) the purchase price to be paid per share of Stock under
outstanding Options; and
(d) the terms, conditions or restrictions of any Option and Option
Agreement, including the price payable for the acquisition of
Stock;
The Committee may also adjust the number of shares subject to
outstanding Options and the exercise price and the terms of outstanding
Options to take into consideration material changes in accounting
practices or principles, extraordinary dividends, acquisitions or
dispositions of stock or property or any other event if it is
determined by the Committee that such adjustment is appropriate to
avoid distortion in the operation of the Plan.
3.3 Market Stand-Off. 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,
including the Company's initial public offering, a Non-Employee
Director 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
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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.
SECTION 4. OPTIONS.
4.1 General. Any Option granted under the Plan shall be evidenced by a
written Option Agreement, which 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. Each Option granted under the
Plan shall not be intended to constitute an incentive stock option
within the meaning of Code section 422. All grants of Options to
Non-Employee Directors under this Plan shall be automatic and
non-discretionary and shall be made strictly in accordance with this
Section 4. No person shall have any discretion to select which
Non-Employee Directors shall be granted Options (except as provided
herein with respect to the Committee's authority to identify ineligible
Non-Employee Directors) or to determine the number of shares to be
covered by such Options.
4.2 Terms of Options. Options granted under the Plan shall be subject to
the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as
shall be specified in the corresponding Option Agreements.
(a) Initial Grants. Each person who is a Non-Employee Director on
the Effective Date, other than David Scanlan and C. Toms
Newby, III, shall, on the Effective Date, without further
action by the Board, automatically be granted an Option to
purchase Thirty Thousand (30,000) shares of Stock, subject to
adjustment as provided in Section 3.2 hereof. In addition,
each person who first becomes a Non-Employee Director after
the Effective Date, other than a Non-Employee Director who has
been an employee of the Company or any Subsidiary at any time
within the period of twelve (12) months ending on the date
such person becomes a Non-Employee Director and other than a
Non-Employee Director who is affiliated with an entity that
invested in the Company prior to the completion of the initial
public offering of the Stock (as determined by the Committee
in its discretion), shall, on the date such person becomes a
Non-Employee Director, without further action by the Board,
automatically be granted an Option to purchase Thirty Thousand
(30,000) shares of Stock, subject to adjustment as provided in
Section 3.2 hereof.
(b) Annual Grants. On the date on which a Non-Employee Director is
granted his initial grant under subsection (a) above, he shall
also, without further action by the Board, automatically be
granted an Option to purchase Ten Thousand (10,000)
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shares of Stock, subject to adjustment as provided in Section
3.2 hereof. In addition, on the date of the Company's annual
meeting of shareholders, so long as shares remain available
for issuance under the Plan, each person who is reelected as a
Non-Employee Director on such date, other than a Non-Employee
Director who has been an employee of the Company or any
Subsidiary at any time within the period of twelve (12) months
ending on the date such person becomes a Non-Employee Director
and other than a Non-Employee Director who is affiliated with
an entity that invested in the Company prior to the completion
of the initial public offering of the Stock (as determined by
the Committee in its discretion), shall, on such date, without
further action by the Board, automatically be granted an
Option to purchase Ten Thousand (10,000) shares of Stock,
subject to adjustment as provided in Section 3.2 hereof.
(c) Insufficient Shares. Notwithstanding the foregoing, if, on any
date upon which Options are to be granted under Section 4.2(a)
or 4.2(b) hereof, the shares of Stock remaining available for
issuance under this Plan is insufficient for the grant of
Options to purchase the total number of shares of Stock
specified in such Section, then each Non-Employee Director
entitled to receive an Option on such date shall be granted an
Option to purchase a proportionate amount of the available
number of shares of Stock (rounded down to the greatest number
of whole shares). Except for the Options referred to in
Sections 4.2(a) and (b) above, no other Options shall be
granted under this Plan
(d) Exercise Price. The exercise price per share of Stock under
any Option granted after the date on which the Company
completes the initial public offering of the Stock shall be
equal to the Fair Market Value of a share of Stock on the
grant date for the Option.
(e) Exercisability; Rights as a Shareholder. An Option shall
become vested and exercisable as follows:
(i) An Option granted to a Non-Employee Director pursuant
to Section 4.2(a) above shall become vested and
exercisable as to Ten Thousand (10,000) shares of
Stock on each of the first three anniversaries of the
grant date for such Option, provided that the
Non-Employee Director's Service Relationship has not
terminated prior to such date.
(ii) An Option granted to a Non-Employee Director pursuant
to Section 4.2(b) above shall become fully vested and
exercisable on the first anniversary of the grant
date for such Option, provided that the Non-Employee
Director's Service Relationship has not terminated
prior to such date.
The Committee may at any time accelerate the exercisability of
all or any portion of any Option. An Non-Employee Director
shall have the rights of a shareholder only as to shares
acquired upon the exercise of a Option and not as to
unexercised Options.
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(f) Method of Exercise.
(i) Options may be exercised in whole or in part, by
giving written notice of exercise to the Company,
specifying the number of shares to be purchased.
Payment of the aggregate exercise price for the
purchase of Shares of Stock upon exercise of an
Option shall be made 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 good check or by
tendering (either by actual delivery or by
attestation) shares of Stock held by the Non-Employee
Director for the requisite period necessary to avoid
a charge to the Company's earnings for financial
reporting purposes, as determined by the Committee in
its discretion, and having an aggregate Fair Market
Value on the date of such exercise equal to the
amount of cash that would otherwise be required to
pay the full exercise price, subject to any
limitations in this regard that may be set forth in
the corresponding Agreement. In addition, the
Committee may establish a cashless exercise mechanism
by which a Non-Employee Director may pay the exercise
price under an Option by irrevocably authorizing a
third party to sell shares of Stock acquired upon
exercise of the Option and remit to the Company a
portion of the sales proceeds that is sufficient to
pay the entire exercise price and/or any tax
withholding resulting from such exercise. Payment may
also be made by combining the above methods.
(ii) Payment instruments will be received subject to
collection. No certificates for Option Shares so
purchased will be issued to the Non-Employee Director
until the Company has completed all steps required by
law to be taken in connection with the issuance and
sale of the shares, including without limitation (i)
receipt of a representation from the Non-Employee
Director at the time of exercise of the Option that
the Non-Employee Director is purchasing the Option
Shares for the Non-Employee Director's own account
and not with a view to any sale or distribution
thereof, (ii) the legending of any certificate
representing the shares to evidence the foregoing
representations and restrictions, and (iii) obtaining
from the Non-Employee Director payment or provision
for all withholding taxes due as a result of the
exercise of the Option. The delivery of certificates
representing the shares of Stock to be purchased
pursuant to the exercise of a Option will be
contingent upon receipt from the Non-Employee
Director (or a purchaser acting in his or her stead
in accordance with the provisions of the Option) by
the Company of the full purchase price for such
shares and the fulfillment of any other requirements
contained in the Option or applicable provisions of
laws.
4.3 Non-Transferability of Options. Except as provided below, an 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
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the lifetime of the Participant only by him or in the event of his
death or Disability, by his guardian or legal representative. However,
an 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.
4.4 Termination. Unless otherwise provided in the relevant Option Agreement
or determined by the Committee, upon the termination of a Non-Employee
Director's Service Relationship with the Company or its Subsidiaries,
the Non-Employee Director's rights in his or her Options shall
automatically terminate upon the effective date of such termination.
4.5 Listing Requirements. 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
(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.
4.6 Stop-Transfer Instructions. All certificates for shares of Stock
delivered under the Plan shall 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.
SECTION 5. TAX WITHHOLDING.
5.1 Payment by Participant. Each participant shall, no later than the date
as of which the value of an Option or of any Stock or other amounts
received thereunder first becomes includable in the gross income of the
participant for Federal income tax purposes, pay to the Company, or
make arrangements satisfactory to the Board regarding payment of, any
federal, state, or local taxes of any kind the Company or any
Subsidiary is required by law to withhold with respect to such income.
The Company and its Subsidiaries shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
5.2 Payment in Stock. Subject to approval by the Board, a participant may
elect to have the minimum required tax withholding obligation
satisfied, in whole or in part, by (i) authorizing the Company to
withhold from shares of Stock to be issued pursuant to any Option a
number of shares with an aggregate Fair Market Value (as of the date
the withholding is effected) that would satisfy the withholding amount
due, or (ii)
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transferring to the Company shares of Stock owned by the participant
with an aggregate Fair Market Value (as of the date the withholding is
effected) that would satisfy the withholding amount due.
SECTION 6. AMENDMENT AND TERMINATION.
The Board may, at any time, amend or discontinue the Plan and the Board may, at
any time, amend or cancel any outstanding Option, but no such action shall
adversely affect rights under any outstanding Option without the holder's
consent.
SECTION 7. STATUS OF PLAN.
With respect to the portion of any Option that has not been exercised and any
payments in cash, Stock or other consideration not received by a participant, a
participant shall have no rights greater than those of a general creditor of the
Company unless the Board shall otherwise expressly determine in connection with
any Option or Options.
SECTION 8. GENERAL PROVISIONS.
8.1 No Distribution; Compliance with Legal Requirements. The Board may
require each person acquiring Stock pursuant to an Option to represent
to and agree with the Company in writing that such person is acquiring
the shares without a view to distribution thereof. No shares of Stock
shall be issued pursuant to an Option until all applicable securities
law and other legal and stock exchange or similar requirements have
been satisfied. The Board may require the placing of such stop-orders
and restrictive legends on certificates for Stock and Options as it
deems appropriate.
8.2 Delivery of Stock Certificates. Stock certificates to participants
under this Plan shall be deemed delivered for all purposes when the
Company or a stock transfer agent of the Company shall have mailed such
certificates in the United States mail, addressed to the participant,
at the participant's last known address on file with the Company.
8.3 Other Compensation Arrangements. Nothing contained in this Plan shall
prevent the Company from adopting other or additional compensation
arrangements, and such arrangements may be either generally applicable
or applicable only in specific cases.
8.4 Trading Policy Restrictions. Option exercises under the Plan shall be
subject to such Company's insider-trading-policy-related restrictions,
terms and conditions as may be established by the Board, or in
accordance with policies set by the Board, from time to time.
8.5 Applicable Law. The Plan and the grant of Options under the Plan 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.
8.6 Binding. The terms of the Plan shall be binding upon the Company, and
its successors and assigns.
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8.7 Unfunded Plan. The Plan is intended to constitute an "unfunded" plan
for incentive and deferred compensation. With respect to any payments
not yet made to a Non-Employee Director by the Company, nothing
contained herein shall give any such Non-Employee Director 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
Options under the Plan; provided, however, that, unless the Committee
otherwise determines with the consent of the affected Non-Employee
Director, the existence of such trusts or other arrangements is
consistent with the "unfunded" status of the Plan.
8.8 Illegality or Unenforceability. If any provision of this Plan or an
Option Agreement is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction, or would disqualify the Plan or any
Option 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 Option Agreement, it shall be stricken and the remainder of
the Plan or the Option Agreement shall remain in full force and effect.
8.9 Appendices. 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 the ___ day of
___________________, 2000.
YOUCENTRIC, INC.
By:________________________________
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