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EXHIBIT 10.5
@PLAN.INC
SECOND AMENDED AND RESTATED
1996 STOCK OPTION PLAN
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the @Plan.Inc 1996 Stock Option Plan (the "Plan") is to
enable @Plan.Inc, a Tennessee corporation (the "Corporation"), to attract,
retain and reward directors, officers, key employees and consultants of the
Corporation and other persons having a business relationship with the
Corporation by offering such persons performance-based stock incentives and/or
other equity interests in the Corporation. The creation of the Plan shall not
diminish or prejudice other compensation programs approved from time to time by
the Board.
For purposes of the Plan, the following terms shall be defined as set
forth below:
1.1 "Board" means the Board of Directors of the Corporation.
1.2 "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto.
1.3 "Common Stock" means the Corporation's Common Stock, no par value
per share.
1.4 "Disability" means disability as determined under the Corporation's
long-term disability insurance policy or as otherwise determined by the Board
from time to time.
1.5 "Early Retirement" means retirement, for purposes of this Plan with
the express consent of the Corporation at or before the time of such retirement,
from active employment with the Corporation prior to age 65, in accordance with
any applicable early retirement policy of the Corporation then in effect.
1.6 "Fair Market Value" shall be determined by such method as the Board
in good faith deems appropriate without regard to any restriction.
1.7 "Incentive Stock Option" means any Stock Option intended to be and
designated as an "Incentive Stock Option" within the meaning of Section 422 of
the Code.
1.8 "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
1.9 "Normal Retirement" means retirement from active employment with
the Corporation on or after age 65.
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1.10 "Plan" means this @Plan.Inc 1996 Employee Stock Option Plan, as
hereafter amended from time to time.
1.11 "Retirement" means Normal or Early Retirement.
1.12 "Stock Option" or "Option" means any option to purchase shares of
Common Stock granted pursuant to Section 5 below.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board or such committee of the
Board as the Board shall direct. The Board shall have the authority to grant
Stock Options, pursuant to the terms of the Plan, to directors, officers, key
employees, consultants and other persons having a business relationship with the
Corporation eligible under Section 4. In particular, the Board shall have the
authority consistent with the terms of the Plan:
(a) to select the persons to whom Stock Options may from time
to time be granted hereunder;
(b) to determine whether and to what extent Incentive Stock
Options and/or Non-Qualified Stock Options, or any combination thereof,
are to be granted hereunder to one or more eligible persons;
(c) to determine the number of shares to be covered by each
such award granted hereunder;
(d) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder (including,
but not limited to, the share price and any restriction or limitation,
or any vesting acceleration or waiver of forfeiture restrictions
regarding any Stock Option and/or the shares of Common Stock relating
thereto, based in each case on such factors as the Board shall
determine, in its sole discretion);
(e) to determine whether and under what circumstances a Stock
Option may be settled in cash or Common Stock;
(f) to determine whether, to what extent and under what
circumstances Stock Option grants under the Plan are to be made; and
(g) to determine whether, to what extent and under what
circumstances Common Stock and other amounts payable with respect to an
award under this Plan shall be deferred either automatically or at the
election of the participant.
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The Board shall have the authority to adopt, alter and repeal such
rules, guidelines and practices governing the Plan as it shall, from time to
time, deem advisable; to interpret the terms and provisions of the Plan and any
award issued under the Plan (and any agreements relating thereto); and to
otherwise supervise the administration of the Plan.
All decisions made by the Board pursuant to the provisions of the Plan
shall be made in the Board's sole discretion and shall be final and binding on
all persons, including the Corporation and Plan participants.
SECTION 3. SHARES OF STOCK SUBJECT TO PLAN.
The aggregate number of shares of Common Stock reserved and available
for distribution under the Plan shall be 1,100,000 shares. Such shares may
consist, in whole or in part, of authorized and unissued shares. The shares of
Common Stock shall have no preemptive rights. Unless otherwise determined by the
Board, the shares of Common Stock will be represented by certificate.
If any shares of Common Stock subject to an outstanding Stock Option
cease to be subject to such Stock Option, such shares shall again be available
for distribution in connection with future awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, extraordinary cash dividend, stock dividend, stock split or
other change in corporate structure affecting the Common Stock, an appropriate
substitution or adjustment shall be made in the aggregate number of shares
reserved for issuance under the Plan and in the number and option price of
shares subject to outstanding Options granted under the Plan, as may be
determined to be appropriate by the Board, in its sole discretion, provided that
the number of shares subject to any Option shall always be a whole number.
SECTION 4. ELIGIBILITY.
Directors, officers, key employees, consultants and other persons
having a business relationship with the Corporation who are responsible for or
contribute to the management, growth and/or profitability of the business of the
Corporation are eligible to be granted awards under the Plan.
SECTION 5. STOCK OPTIONS.
Any Stock Option granted under the Plan shall be in such form as the
Board may from time to time approve. Stock Options granted under the Plan may be
of two types: (i) Incentive Stock Options and (ii) Non-Qualified Stock Options.
Incentive Options may be granted only to individuals who are employees of the
Corporation.
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The Board shall have the authority to grant to any optionee (subject to
the limitation set forth in the paragraph above) Incentive Stock Options,
Non-Qualified Stock Options, or both types of Stock 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 the Board shall deem desirable.
(a) Option Price. The option price per share of Stock
purchasable under a Stock Option shall be determined by the Board at
the time of grant but shall be not less than 100% (or, in the case of
any employee who owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Corporation or of
any of its subsidiary or parent corporations, not less than 110%) of
the Fair Market Value of the Stock at grant, in the case of Incentive
Stock Options, and not less than 50% of the Fair Market Value of the
Stock at grant, in the case of Non-Qualified Stock Options.
(b) Option Term. The term of each Stock Option shall be fixed
by the Board, but no Incentive Stock Option shall be exercisable more
than ten years (or, in the case of an employee who owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Corporation or any of its subsidiary or parent
corporations, more than five years) after the date the Option is
granted.
(c) Exercisability. Except as set forth in Sections 6 and 7,
Stock Options shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the Board at or
after grant. The Board may provide that a Stock Option shall vest over
a period of future service at a rate specified at the time of grant, or
that the Stock Option is exercisable only in installments. If the Board
provides, in its sole discretion, that any Stock Option is exercisable
only in installments, the Board may waive such installment exercise
provisions at any time at or after grant in whole or in part, based on
such factors as the Board shall determine, in its sole discretion.
(d) Method of Exercise. Subject to whatever exercise
restrictions apply under Section 5(c), Stock Options may be exercised
in whole or in part at any time during the option period, by giving
written notice of exercise to the Corporation specifying the number of
shares to be purchased.
Such notice shall be accompanied by payment in full of the
purchase price, either by check, note or such other instrument as the
Board may accept. As determined by the Board, in its sole discretion,
at or after grant, payment in full or in part also may be made in the
form of shares of Stock already owned by the optionee or shares of
Stock subject to an Option granted hereunder (based in each case, on
the Fair Market Value of such shares of Stock on the date the option is
exercised, as determined by the Board).
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No shares of Common Stock shall be issued until full payment
therefor has been made. An optionee generally shall have the rights to
dividends or other rights of a shareholder with respect to shares
subject to the Option when the optionee has given written notice of
exercise, has paid in full for such shares, and, if requested, has
given the representation described in Section 8(a).
(e) Non-Transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution, and all Stock Options shall be exercisable,
during the optionee's lifetime, only by the optionee.
(f) Termination by Death. Subject to Section 5(j), if an
optionee's employment by the Corporation terminates by reason of death,
any Stock Option held by such optionee may thereafter be exercised, to
the extent such option was exercisable at the time of death or on such
accelerated basis as the Board may determine at or after grant, by the
legal representative of the estate or by the legatee of the optionee
under the will of the optionee, for a period of one year from the date
of such death or until the expiration of the stated term of such Stock
Option, whichever period is the shorter.
(g) Termination by Reason of Disability. Subject to Section
5(j), if an optionee's employment by the Corporation terminates by
reason of Disability, any Stock Option held by such optionee may
thereafter be exercised by the optionee, to the extent it was
exercisable at the time of termination or (except in the case of an
Incentive Stock Option) on such accelerated basis as the Board may
determine at or after grant (or, except in the case of an Incentive
Stock Option, as may be determined in accordance with procedures
established by the Board), for a period of three months from the date
of such termination of employment or until the expiration of the stated
term of such Stock Option, whichever period is the shorter.
(h) Termination by Reason of Retirement. Subject to Section
5(j), if an optionee's employment by the Corporation terminates by
reason of Normal or Early Retirement, any Stock Option held by such
optionee may thereafter be exercised by the optionee, to the extent it
was exercisable at the time of such Retirement or (except in the case
of an Incentive Stock Option) on such accelerated basis as the Board
may determine at or after grant (or, except in the case of an Incentive
Stock Option, as may be determined in accordance with procedures
established by the Board), for a period of three months (or such
shorter period as the Board may specify at grant) from the date of such
termination of employment or the expiration of the stated term of such
Stock Option, whichever period is the shorter.
(i) Other Termination. Unless otherwise determined by the
Board (or pursuant to procedures established by the Board) at or
(except in the case of an Incentive Stock Option) after grant, if an
optionee's employment by the Corporation is involuntarily terminated
for any reason other than death, Disability or Normal or Early
Retirement, the
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Stock Option shall thereupon terminate, except that such Stock Option
may be exercised, to the extent otherwise then exercisable, for the
lesser of three months or the balance of such Stock Option's term. If
an optionee voluntarily terminates employment with the Corporation
(except for Disability, Normal or Early Retirement), the Stock Option
shall thereupon terminate; provided, however, that the Board at grant
or (except in the case of an Incentive Stock Option) thereafter may
extend the exercise period in this situation for the lesser of three
months or the balance of such Stock Option's term.
(j) Incentive Stock Options. Anything in the Plan to the
contrary notwithstanding, no term of this Plan relating to Incentive
Stock Options shall be interpreted, amended or altered, nor shall any
discretion or authority granted under the Plan be so exercised, so as
to disqualify the Plan under Section 422 of the Code, or, without the
consent of the optionee(s) affected, to disqualify any Incentive Stock
Option under such Section 422.
No Incentive Stock Option shall be granted to any participant
under the Plan if such grant would cause the aggregate Fair Market
Value (as of the date the Incentive Stock Option is granted) of the
Stock with respect to which all Incentive Stock Options issued after
December 31, 1986 are exercisable for the first time by such
participant during any calendar year (under all such plans of the
Company and any Subsidiary) to exceed $100,000.
To the extent permitted under Section 422 of the Code or the
applicable regulations thereunder or any applicable Internal Revenue
Service pronouncement if (x) a participant's employment is terminated
by reason of death, Disability or Retirement and (y) the portion of any
Incentive Stock Option that is otherwise exercisable during the
post-termination period specified under Section 5(f), (g) or (h),
applied without regard to the $100,000 limitation contained in Section
422(d) of the Code, is greater than the portion of such option that is
immediately exercisable as an "incentive stock option" during such
post-termination period under Section 422, such excess shall be treated
as a Non-Qualified Stock Option.
SECTION 6. CHANGE IN CONTROL PROVISIONS.
(a) Impact of Event. In the event of a Change in Control as defined in
Section 6(b), any Option awarded under the Plan not previously exercisable and
vested shall become fully exercisable and vested.
(b) Definition of Change in Control. A "Change in Control" means the
happening of any of the following:
(i) any person or entity, other than the Corporation, a
wholly-owned subsidiary thereof, or any employee benefit plan of the
Corporation or any of its Subsidiaries,
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becomes the beneficial owner of the Corporation's securities having
50% or more of the combined voting power of the then outstanding
securities of the Corporation that may be cast for the election of
directors of the Corporation (other than as a result of an issuance of
securities initiated by the Corporation in the ordinary course of
business); or
(ii) as the result of, or in connection with, any cash tender
or exchange offer, merger or other business combination, sale of assets
or contested election, or any combination of the foregoing
transactions, less than a majority of the combined voting power of the
then outstanding securities of the Corporation or any successor
corporation or entity entitled to vote generally in the election of the
directors of the Corporation or such other corporation or entity after
such transaction are held in the aggregate by the holders of the
Corporation's securities entitled to vote generally in the election of
directors of the Corporation immediately prior to such transaction.
SECTION 7. QUALIFIED PUBLIC OFFERING
(a) Impact of Event. In the event of a Qualified Public Offering as
defined in Section 7(b), any Option awarded under the Plan not previously
exercisable and vested shall become fully exercisable and vested.
(b) Definition of Qualified Public Offering. A "Qualified Public
Offering" means the sale by way of a public offering registered under the
Securities Act of 1933 of Common Stock resulting in gross proceeds to the
Corporation of not less than $12 million at a price of at least $6.00 per share
(subject to adjustments for stock-splits and recapitalizations subsequent to the
effective date of the Plan set forth in Section 11 hereof).
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SECTION 8. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration, or discontinuation shall be made which would impair the rights of an
optionee or participant under a Stock Option award theretofore granted, without
the optionee's or participant's consent.
The Board may amend the terms of any Stock Option theretofore granted,
prospectively or retroactively, but, subject to Section 3 above, no such
amendment shall impair the rights of any holder without the holder's consent.
The Board also may substitute new Stock Options for previously granted Stock
Options (on a one for one or other basis), including previously granted Stock
Options having higher option exercise prices.
Subject to the above provisions, the Board shall have broad authority
to amend the Plan to take into account changes in applicable securities and tax
laws and accounting rules, as well as other developments.
SECTION 9. SALES OF COMMON STOCK TO THIRD PARTIES; RIGHT OF FIRST REFUSAL.
Shares of Common Stock purchased by a grantee pursuant to the exercise
of Stock Options granted under the Plan ("Plan Shares") shall not be
transferable, other than by will or the laws of decent and distribution, unless
first offered to the Corporation in accordance with the terms of this Section 9
(the "Right of First Refusal").
(a) Notice of Intent to Sell. If a grantee (a "Selling Shareholder")
wishes to sell any or all of the Plan Shares owned by the Selling Shareholder,
the Selling Shareholder shall give written notice of such fact to the
Corporation (the "Shareholder Notice"), specifying the number of Plan Shares the
Selling Shareholder wishes to sell.
(b) Purchase by the Corporation. Within 60 days following the receipt
of the Shareholder Notice, the Corporation may give written notice to the
Selling Shareholder (the "Corporation Notice") that the Corporation wishes to
purchase some or all of the Plan Shares covered by the Shareholder Notice. The
Corporation Notice shall specify the number of Plan Shares that the Corporation
wishes to purchase. The purchase price for the Plan Shares to be purchased by
the Corporation shall be their Fair Market Value as of the date of the
Shareholder Notice. If the Corporation delivers a Corporation Notice to the
Selling Shareholder within 60 days following the date of receipt of the
Shareholder Notice, the Corporation and the Selling Shareholder shall proceed to
a closing of the purchase of the number of Plan Shares specified in the
Corporation Notice, to take place on a date selected by the Corporation no more
than 120 days following the date of the Corporation Notice.
(c) Purchase by a Third Party. If the Corporation fails to deliver a
Corporation Notice to the Selling Shareholder within 60 days following the date
of receipt of the Shareholder Notice,
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or if the Corporation indicates in the Corporation Notice that it does not wish
to purchase all of the Plan Shares covered by the Shareholder Notice, the
Shareholder may, subject to any other restrictions to which such Shareholder is
bound, within the next succeeding 120 days, sell to a third party (the "Third
Party") any Plan Shares that the Corporation does not wish to purchase. As a
condition of such sale, the Corporation may require the Third Party to deliver
to the Corporation a written representation to the effect that such Third Party
is purchasing the Shares for investment purposes, and not with a view to resale
or distribution thereof. The Corporation in its sole discretion may require any
stock certificates issued in the name of the Third Party to bear any legends
deemed appropriate by the Corporation to reflect any applicable legal
restrictions on transfer.
(d) Termination of Right of First Refusal. The Corporation's Right of
First Refusal shall terminate upon the sale of Common Stock by the Corporation
by way of a public offering registered under the Securities Act of 1933.
SECTION 10. GENERAL PROVISIONS.
(a) Legends; Restrictions on Transfer. The Board may require each
person acquiring shares pursuant to a Stock Option under the Plan to represent
to and agree with the Corporation in writing that the optionee or participant is
acquiring the shares without a view to distribution thereof. The certificates
for such shares may include any legend which the Board deems appropriate to
reflect any restrictions on transfer. All certificates for shares of Common
Stock or other securities delivered under the Plan shall be subject to such
stop-transfer orders and other restrictions as the Board may deem advisable
under the rules, regulations, and other requirements of the Securities and
Exchange Commission and any applicable Federal or state securities law, and the
Board may cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(b) Awards of any securities granted to a person pursuant to the Plan
shall not be transferable by the grantee other than by will or laws of descent
and distribution. No securities purchased by a grantee upon the exercise of
Stock Options shall be transferred, other than by will or laws of desent and
distribution, except in accordance with Section 7.
(c) Other Compensation. Nothing contained in this Plan shall prevent
the Board from adopting other or additional compensation arrangements, subject
to shareholder approval if such approval is required; and such arrangements may
be either generally applicable or applicable only in specific cases.
(d) No Rights to Continued Employment. The adoption of the Plan shall
not confer upon any employee of the Corporation any right to continued
employment with the Corporation nor shall it interfere in any way with the right
of the Corporation to terminate the employment of any of its employees at any
time.
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(e) Withholding. No later than the date as of which an amount first
becomes includable in the gross income of the participant for Federal income tax
purposes with respect to any award under the Plan, the participant shall pay to
the Corporation, or make arrangements satisfactory to the Board regarding the
payment of, any Federal, state, or local taxes of any kind required by law to be
withheld with respect to such amount. Unless otherwise determined by the Board,
withholding obligations may be settled with Common Stock, including Common Stock
that is part of the award that gives rise to the withholding requirement. The
obligations of the Corporation under the Plan shall be conditional on such
payment or arrangements and the Corporation 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.
(f) Governing Law. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of Tennessee.
SECTION 11. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of July 22, 1996.
SECTION 12. TERM OF PLAN.
No Stock Option shall be granted pursuant to the Plan on or after July
22, 2006, but Stock Options granted prior to such tenth anniversary may be
extended beyond that date.
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