EXHIBIT 10.49
NETWORK PERIPHERALS INC.
1999 STOCK PLAN
1. Establishment, Purpose and Term of Plan.
---------------------------------------
1.1 Establishment. The Network Peripherals Inc. 1999 Stock Plan (the
"Plan") is hereby established effective as of December 20, 1999 (the "Effective
Date").
1.2 Purpose. The purpose of the Plan is to advance the interests of
the Participating Company Group and its stockholders by providing an incentive
to attract, retain and reward persons performing services for the Participating
Company Group and by motivating such persons to contribute to the growth and
profitability of the Participating Company Group.
1.3 Term of Plan. The Plan shall continue in effect until the
earlier of its termination by the Board or the date on which all of the shares
of Stock available for issuance under the Plan have been issued and all
restrictions on such shares under the terms of the Plan and the agreements
evidencing Options granted under the Plan have lapsed.
2. Definitions and Construction.
----------------------------
2.1 Definitions. Whenever used herein, the following terms shall
have their respective meanings set forth below:
(a) "Award" means an Option or Restricted Stock.
(b) "Board" means the Board of Directors of the Company. If one
or more Committees have been appointed by the Board to administer the Plan,
"Board" also means such Committee(s).
(c) "Code" means the Internal Revenue Code of 1986, as amended,
and any applicable regulations promulgated thereunder.
(d) "Committee" means the Compensation Committee, Stock Option
Committee or other committee of the Board duly appointed to administer the Plan
and having such powers as shall be specified by the Board. Unless the powers of
the Committee have been specifically limited, the Committee shall have all of
the powers of the Board granted herein, including, without limitation, the power
to amend or terminate the Plan at any time, subject to the terms of the Plan and
any applicable limitations imposed by law.
(e) "Company" means Network Peripherals Inc., a Delaware
corporation, or any successor corporation thereto.
1
(f) "Consultant" means a person engaged to provide consulting or
advisory services (other than as an Employee or a Director) to a Participating
Company, provided that the identity of such person, the nature of such services
or the entity to which such services are provided would not preclude the Company
from offering or selling securities to such person pursuant to the Plan in
reliance on a Form S-8 Registration Statement under the Securities Act.
(g) "Director" means a member of the Board or of the board of
directors of any other Participating Company.
(h) "Disability" means the permanent and total disability of the
Optionee within the meaning of Section 22(e)(3) of the Code.
(i) "Employee" means any person treated as an employee
(including an officer or a Director who is also treated as an employee) in the
records of a Participating Company; provided, however, that neither service as a
Director nor payment of a director's fee shall be sufficient to constitute
employment for purposes of the Plan.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Fair Market Value" means, as of any date, the value of a
share of Stock or other property as determined by the Board, in its sole
discretion, or by the Company, in its sole discretion, if such determination is
expressly allocated to the Company herein, subject to the following:
(i) If, on such date, the Stock is listed on a national or
regional securities exchange or market system, the Fair Market Value of a share
of Stock shall be the closing sale price of a share of Stock (or the mean of the
closing bid and asked prices of a share of Stock if the Stock is so quoted
instead) as quoted on the Nasdaq National Market, The Nasdaq SmallCap Market or
such other national or regional securities exchange or market system
constituting the primary market for the Stock, as reported in the Wall Street
-----------
Journal or such other source as the Company deems reliable. If the relevant date
- -------
does not fall on a day on which the Stock has traded on such securities exchange
or market system, the date on which the Fair Market Value shall be established
shall be the last day on which the Stock was so traded prior to the relevant
date, or such other appropriate day as shall be determined by the Board, in its
discretion.
(ii) If, on such date, there is no public market for the
Stock, the Fair Market Value of a share of Stock shall be as determined by the
Board without regard to any restriction other than a restriction which, by its
terms, will never lapse.
(l) "Nonstatutory Stock Option" means an Option not intended to
be an incentive stock option within the meaning of Section 422(b) of the Code.
2
(m) "Option" means a right to purchase Stock (subject to
adjustment as provided in Section 4.2) pursuant to the terms and conditions of
the Plan. All Options shall be Nonstatutory Stock Options.
(n) "Option Agreement" means a written agreement between the
Company and an Optionee setting forth the terms, conditions and restrictions of
the Option granted to the Optionee and any shares acquired upon the exercise
thereof.
(o) "Optionee" means a person who has been granted one or more
Options.
(p) "Parent Corporation" means any present or future "parent
corporation" of the Company, as defined in Section 424(e) of the Code.
(q) "Participant" means a person who has been granted one or
more Awards.
(r) "Participating Company" means the Company or any Parent
Corporation or Subsidiary Corporation.
(s) "Participating Company Group" means, at any point in time,
all corporations collectively which are then Participating Companies.
(t) "Restricted Stock" means Stock (subject to adjustment as
provided in Section 4.2) granted or sold to a Participant pursuant to Section 7
and the terms and conditions of the Plan.
(u) "Restricted Stock Agreement" means a written agreement
between the Company and a Participant setting forth the terms, conditions and
restrictions applying to the Restricted Stock acquired by the Participant.
(v) "Securities Act" means the Securities Act of 1933, as
amended.
(w) "Service" means a Participant's employment or service with
the Participating Company Group, whether in the capacity of an Employee, a
Director or a Consultant. The Participant's Service shall not be deemed to have
terminated merely because of a change in the capacity in which the Participant
renders Service to the Participating Company Group or a change in the
Participating Company for which the Participant renders such Service, provided
that there is no interruption or termination of the Participant's Service.
Furthermore, a Participant's Service with the Participating Company Group shall
not be deemed to have terminated if the Participant takes any military leave,
sick leave, or other bona fide leave of absence approved by the Company;
provided, however, that if any such leave exceeds ninety (90) days, on the
ninety-first (91st) day of such leave the Participant's Service shall be deemed
to have terminated unless the Participant's right to return to Service with the
Participating Company Group is guaranteed by statute or contract.
Notwithstanding the foregoing, unless otherwise designated by the Company or
required by law, a leave of absence shall not be treated as Service
3
for purposes of determining vesting under the Participant's Option Agreement or
Restricted Stock Agreement. The Participant's Service shall be deemed to have
terminated either upon an actual termination of Service or upon the corporation
for which the Participant performs Service ceasing to be a Participating
Company. Subject to the foregoing, the Company, in its sole discretion, shall
determine whether the Participant's Service has terminated and the effective
date of such termination.
(x) "Stock" means the common stock of the Company, as adjusted
from time to time in accordance with Section 4.2.
(y) "Subsidiary Corporation" means any present or future
"subsidiary corporation" of the Company, as defined in Section 424(f) of the
Code.
2.2 Construction. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan. Except when otherwise indicated by the context, the
singular shall include the plural and the plural shall include the singular.
Use of the term "or" is not intended to be exclusive, unless the context clearly
requires otherwise.
3. Administration.
--------------
3.1 Administration by the Board. The Plan shall be administered by
the Board. All questions of interpretation of the Plan or of any Option shall
be determined by the Board, and such determinations shall be final and binding
upon all persons having an interest in the Plan or such Option.
3.2 Authority of Officers. Any officer of a Participating Company
shall have the authority to act on behalf of the Company with respect to any
matter, right, obligation, determination or election which is the responsibility
of or which is allocated to the Company herein, provided the officer has
apparent authority with respect to such matter, right, obligation, determination
or election.
3.3 Powers of the Board. In addition to any other powers set forth
in the Plan and subject to the provisions of the Plan, the Board shall have the
full and final power and authority, in its discretion:
(a) to determine the persons to whom, and the time or times at
which, Awards shall be granted and the number of shares of Stock to be subject
to each Award;
(b) to determine whether an Award will be in the form of a
Nonstatutory Stock Option or in the form of Restricted Stock;
(c) to determine the Fair Market Value of shares of Stock or
other property;
4
(d) to determine the terms, conditions and restrictions
applicable to each Award (which need not be identical) and any shares acquired
pursuant to the Plan, including, without limitation, (i) the exercise or
purchase price, if any, applicable to each Award, (ii) the method of payment for
shares purchased under the Plan, (iii) the method for satisfaction of any tax
withholding obligation arising in connection with the Award or such shares,
including by the withholding or delivery of shares of stock, (iv) the timing,
terms and conditions of the exercisability of each Option or the vesting of any
shares acquired pursuant to the Plan, (v) the time of the expiration of the
Award, (vi) the effect of the Participant's termination of Service with the
Participating Company Group on any of the foregoing, and (vii) all other terms,
conditions and restrictions applicable to the Award or such shares not
inconsistent with the terms of the Plan;
(e) to approve one or more forms of Option Agreement and
Restricted Stock Agreement;
(f) to amend, modify, extend, or renew, or grant a new Award in
substitution for, any Award or to waive any restrictions or conditions
applicable to any Award or any shares acquired under the Plan;
(g) to accelerate, continue, extend or defer the exercisability
of any Option or the vesting of any shares acquired under the Plan, including
with respect to the period following a Participant's termination of Service with
the Participating Company Group;
(h) to delegate to any proper officer of the Company the
authority to grant one or more Awards, without further approval of the Board, to
any person eligible pursuant to Section 5; provided, however, that (i) such
Awards shall not be granted to any one person within any fiscal year of the
Company for more than 50,000 shares in the aggregate, (ii) the exercise or
purchase price per share of Stock shall be equal to the Fair Market Value per
share of the Stock on the effective date of grant, and (iii) each such Award
shall be subject to the terms and conditions of the appropriate standard form of
Option Agreement or Restricted Stock Agreement approved by the Board and shall
conform to the provisions of the Plan and such other guidelines as shall be
established from time to time by the Board;
(i) to prescribe, amend or rescind rules, guidelines and
policies relating to the Plan, or to adopt supplements to, or alternative
versions of, the Plan, including, without limitation, as the Board deems
necessary or desirable to comply with the laws of, or to accommodate the tax
policy or custom of, foreign jurisdictions whose citizens may be granted Awards;
and
(j) to correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Option Agreement or Restricted Stock Agreement
and to make all other determinations and take such other actions with respect to
the Plan or any Award as the Board may deem advisable to the extent consistent
with the Plan and applicable law.
5
4. Shares Subject to Plan.
----------------------
4.1 Maximum Number of Shares Issuable. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of Stock that
may be issued under the Plan shall be five hundred thousand (500,000) and shall
consist of authorized but unissued or reacquired shares of Stock or any
combination thereof. If an outstanding Award for any reason expires or is
terminated or canceled or shares of Stock acquired, subject to repurchase or
forfeiture, pursuant to an Award are repurchased by the Company or forfeited,
the shares of Stock allocable to the unexercised portion of such Award, or such
repurchased or forfeited shares of Stock, shall again be available for issuance
under the Plan.
4.2 Adjustments for Changes in Capital Structure. In the event of any
stock dividend, stock split, reverse stock split, recapitalization, combination,
reclassification or similar change in the capital structure of the Company,
appropriate adjustments shall be made in the number and class of shares subject
to the Plan and to any outstanding Awards, and in the exercise or purchase price
per share of any outstanding but unexercised Awards. If a majority of the
shares which are of the same class as the shares that are subject to outstanding
Awards are exchanged for, converted into, or otherwise become (whether or not
pursuant to an Ownership Change Event, as defined in Section 8.1) shares of
another corporation (the "New Shares"), the Board may unilaterally amend the
outstanding Awards to provide that such Awards are for New Shares. In the event
of any such amendment, the number of shares subject to outstanding Awards and
the exercise or purchase price per share of outstanding but unexercised Awards
shall be adjusted in a fair and equitable manner as determined by the Board, in
its sole discretion. Notwithstanding the foregoing, any fractional share
resulting from an adjustment pursuant to this Section 4.2 shall be rounded up or
down to the nearest whole number, as determined by the Board, and in no event
may the exercise or purchase price of any Award be decreased to an amount less
than the par value, if any, of the stock subject to the Award. The adjustments
determined by the Board pursuant to this Section 4.2 shall be final, binding and
conclusive.
5. Eligibility and Option Limitations.
----------------------------------
5.1 Eligibility. Awards may be granted only to Employees and
Consultants. For purposes of the foregoing sentence, "Employees" and
"Consultants" shall include prospective Employees and prospective Consultants to
whom Awards, other than a Restricted Stock Bonus (as defined in Section 7
below), are granted in connection with written offers of an employment or other
service relationship with the Participating Company Group. However,
notwithstanding any other provision herein to the contrary, no person shall be
eligible to be granted an Award under the Plan whose eligibility would require
approval of the Plan by the stockholders of the Company under any law or
regulation or the rules of any stock exchange or market system upon which the
Stock may then be listed. If not inconsistent with any such law, regulation or
rule, an Award may be granted to a person, not previously employed by a
Participating Company, as an inducement essential to entering into an employment
contract with the Participating Company. Eligible persons may be granted more
than one (1) Award.
6
5.2 Options Authorized. Options granted under the Plan may only be
Nonstatutory Stock Options.
6. Terms and Conditions of Options.
-------------------------------
Options shall be evidenced by Option Agreements specifying the number
of shares of Stock covered thereby, in such form as the Board shall from time to
time establish. No Option or purported Option shall be a valid and binding
obligation of the Company unless evidenced by a fully executed Option Agreement.
Option Agreements may incorporate all or any of the terms of the Plan by
reference and shall comply with and be subject to the following terms and
conditions:
6.1 Exercise Price. The exercise price for each Option shall be
established in the discretion of the Board; provided, however, that the exercise
price per share shall be not less than eighty-five percent (85%) of the Fair
Market Value of a share of Stock on the effective date of grant of the Option.
Notwithstanding the foregoing, an Option may be granted with an exercise price
lower than the minimum exercise price set forth above if such Option is granted
pursuant to an assumption or substitution for another option in the manner
described in Section 424(a) of the Code.
6.2 Exercise Period. Options shall be exercisable at such time or
times, or upon such event or events, and subject to such terms, conditions,
performance criteria, and restrictions as shall be determined by the Board and
set forth in the Option Agreement evidencing such Option; provided, however,
that (a) no Option shall be exercisable after the expiration of ten (10) years
after the effective date of grant of such Option and (b) no Option granted to a
prospective Employee, prospective Director, or prospective Consultant may become
exercisable prior to the date on which such person commences Service with a
Participating Company. Subject to the foregoing, unless otherwise specified by
the Board in the grant of an Option, any Option granted hereunder shall have a
term of ten (10) years from the effective date of grant of the Option.
6.3 Payment of Exercise Price.
(a) Forms of Consideration Authorized. Except as otherwise
provided below, payment of the exercise price for the number of shares of Stock
being purchased pursuant to any Option shall be made (i) in cash, by check or
cash equivalent, (ii) by tender to the Company, of shares of Stock owned by the
Optionee having a Fair Market Value (as determined by the Company without regard
to any restrictions on transferability applicable to such stock by reason of
federal or state securities laws or agreements with an underwriter for the
Company) not less than the exercise price, (iii) by the assignment of the
proceeds of a sale or loan with respect to some or all of the shares being
acquired upon the exercise of the Option (including, without limitation, through
an exercise complying with the provisions of Regulation T as promulgated from
time to time by the Board of Governors of the Federal Reserve System) (a
"Cashless Exercise"), (iv) by such other consideration as may be approved by the
Board from time to time to the extent permitted by applicable law, or (v) by any
combination thereof. The Board may at
7
any time or from time to time, by adoption of or by amendment to the standard
forms of Option Agreement described in Section 6.6, or by other means, grant
Options which do not permit all of the foregoing forms of consideration to be
used in payment of the exercise price or which otherwise restrict one or more
forms of consideration.
(b) Limitations on Forms of Consideration.
(i) Tender of Stock. Notwithstanding the foregoing, an
Option may not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock to the extent such tender or attestation would
constitute a violation of the provisions of any law, regulation or agreement
restricting the redemption of the Company's stock. Unless otherwise provided by
the Board, an Option may not be exercised by tender to the Company, or
attestation to the ownership, of shares of Stock unless such shares either have
been owned by the Optionee for more than six (6) months or were not acquired,
directly or indirectly, from the Company.
(ii) Cashless Exercise. The Company reserves, at any and
all times, the right, in the Company's sole and absolute discretion, to
establish, decline to approve or terminate any program or procedures for the
exercise of Options by means of a Cashless Exercise.
6.4 Tax Withholding. The Company shall have the right, but not the
obligation, to deduct from the shares of Stock issuable upon the exercise of an
Option, or to accept from the Optionee the tender of, a number of whole shares
of Stock having a Fair Market Value, as determined by the Company, equal to all
or any part of the federal, state, local and foreign taxes, if any, required by
law to be withheld by the Participating Company Group with respect to such
Option or the shares acquired upon the exercise thereof. Alternatively or in
addition, in its discretion, the Company shall have the right to require the
Optionee, through payroll withholding, cash payment or otherwise, including by
means of a Cashless Exercise, to make adequate provision for any such tax
withholding obligations of the Participating Company Group arising in connection
with the Option or the shares acquired upon the exercise thereof. The Fair
Market Value of any shares of Stock withheld or tendered to satisfy any such tax
withholding obligations shall not exceed the amount determined by the applicable
minimum statutory withholding rates. The Company shall have no obligation to
deliver shares of Stock until the Participating Company Group's tax withholding
obligations have been satisfied by the Optionee.
6.5 Effect of Termination of Service.
(a) Option Exercisability. Subject to earlier termination of the
Option as otherwise provided herein and unless otherwise provided by the Board
in the grant of an Option and set forth in the Option Agreement, an Option shall
be exercisable after an Optionee's termination of Service as follows:
8
(i) Disability. If the Optionee's Service with the
Participating Company Group is terminated because of the Disability of the
Optionee, the Option, to the extent unexercised and exercisable on the date on
which the Optionee's Service terminated, may be exercised by the Optionee (or
the Optionee's guardian or legal representative) at any time prior to the
expiration of six (6) months (or such longer period of time as determined by the
Board, in its sole discretion) after the date on which the Optionee's Service
terminated, but in any event no later than the date of expiration of the
Option's term as set forth in the Option Agreement evidencing such Option (the
"Option Expiration Date").
(ii) Death. If the Optionee's Service with the
Participating Company Group is terminated because of the death of the Optionee,
the Option, to the extent unexercised and exercisable on the date on which the
Optionee's Service terminated, may be exercised by the Optionee's legal
representative or other person who acquired the right to exercise the Option by
reason of the Optionee's death at any time prior to the expiration of six (6)
months (or such longer period of time as determined by the Board, in its sole
discretion) after the date on which the Optionee's Service terminated, but in
any event no later than the Option Expiration Date. The Optionee's Service shall
be deemed to have terminated on account of death if the Optionee dies within
three (3) months after the Optionee's termination of Service.
(iii) Other Termination of Service. If the Optionee's
Service with the Participating Company Group terminates for any reason, except
Disability or death, the Option, to the extent unexercised and exercisable by
the Optionee on the date on which the Optionee's Service terminated, may be
exercised by the Optionee within thirty (30) days (or such longer period of time
as determined by the Board, in its discretion) after the date on which the
Optionee's Service terminated, but in any event no later than the Option
Expiration Date.
(b) Extension if Exercise Prevented by Law. Notwithstanding the
foregoing, if the exercise of an Option within the applicable time periods set
forth in Section 6.5(a) is prevented by the provisions of Section 10 below, the
Option shall remain exercisable until thirty (30) days (or such longer period of
time as determined by the Board, in its discretion) after the date the Optionee
is notified by the Company that the Option is exercisable, but in any event no
later than the Option Expiration Date.
(c) Extension if Optionee Subject to Section 16(b).
Notwithstanding the foregoing, if a sale within the applicable time periods set
forth in Section 6.5(a) of shares acquired upon the exercise of the Option would
subject the Optionee to suit under Section 16(b) of the Exchange Act, the Option
shall remain exercisable until the earliest to occur of (i) the tenth (10th) day
following the date on which a sale of such shares by the Optionee would no
longer be subject to such suit, (ii) the one hundred and ninetieth (190th) day
after the Optionee's termination of Service, or (iii) the Option Expiration
Date.
6.6 Standard Forms of Option Agreement. Unless otherwise provided by
the Board at the time the Option is granted, an Option shall comply with and be
subject to the terms and conditions set forth in the form of Nonstatutory Stock
Option Agreement adopted by the Board concurrently with its adoption of the Plan
and as amended from time to time. The
9
Board shall have the authority from time to time to vary the terms of the
standard form of Option Agreement described in this Section either in connection
with the grant or amendment of an individual Option or in connection with the
authorization of a new standard form or forms; provided, however, that the terms
and conditions of any such new, revised or amended standard form or forms of
Option Agreement are not inconsistent with the terms of the Plan. Such authority
shall include, but not by way of limitation, the authority to grant Options
which are immediately exercisable subject to the Company's right to repurchase
any unvested shares of Stock acquired by an Optionee upon the exercise of an
Option in the event such Optionee's employment or service with the Participating
Company Group is terminated for any reason, with or without cause.
6.7 Transferability of Options. During the lifetime of the Optionee,
an Option shall be exercisable only by the Optionee or the Optionee's guardian
or legal representative. No Option shall be assignable or transferable by the
Optionee, except by will or by the laws of descent and distribution.
Notwithstanding the foregoing, an Option shall be assignable or transferable to
the extent permitted by the Board and set forth in the Option Agreement
evidencing such Option.
7. Terms and Conditions of Restricted Stock
----------------------------------------
The Board may from time to time grant Restricted Stock Awards which
may be in the form of a stock bonus (a "Restricted Stock Bonus") or a stock
purchase right (a "Restricted Stock Purchase Right"). Restricted Stock Awards
shall be evidenced by Restricted Stock Agreements, specifying the number of
shares of Stock covered there, in such form as the Board shall from time to time
establish. Restricted Stock Agreements may incorporate all or any of the terms
of the Plan by reference and shall comply with and be subject to the following
terms and conditions:
7.1 Purchase Price. The purchase price under each Restricted Stock
Purchase Right shall be established by the Board. No monetary payment (other
than applicable tax withholding) shall be required as a condition of receiving a
Restricted Stock Bonus, the consideration for which shall be services actually
rendered to the Participating Company Group or for its benefit.
7.2 Purchase Period. A Restricted Stock Purchase Right shall be
exercisable within a period established by the Board, which shall in no event
exceed thirty (30) days from the effective date of the grant of the Restricted
Stock Purchase Right; provided, however, that no Restricted Stock Purchase Right
granted to a prospective Employee or prospective Consultant may become
exercisable prior to the date on which such person commences Service with a
Participating Company.
7.3 Payment of Purchase Price. Except as otherwise provided below,
payment of the purchase price for the number of shares of Stock being purchased
pursuant to any Restricted Stock Purchase Right shall be made (i) in cash, by
check, or cash equivalent, (ii) by such other consideration as may be approved
by the Board from time to time to the extent
10
permitted by applicable law, or (iii) by any combination thereof. The Board may
at any time or from time to time, by adoption of or by amendment to the standard
form of Restricted Stock Agreement described in Section 7.8, or by other means,
grant Restricted Stock Purchase Rights which do not permit all of the foregoing
forms of consideration to be used in payment of the purchase price or which
otherwise restrict one or more forms of consideration. Restricted Stock Bonuses
shall be issued in consideration for services actually rendered to the
Participating Company Group or for its benefit.
7.4 Tax Withholding. The Company shall have the right to require the
Participant, through payroll withholding, cash payment or otherwise, to make
adequate provision for the federal, state, local and foreign taxes, if any,
required by law to be withheld by the Participating Company Group in connection
with a Restricted Stock Award or the shares acquired pursuant thereto. The
Company shall have no obligation to deliver shares of Stock or to release shares
of Stock from an escrow established pursuant to the Restricted Stock Agreement
until the Participating Company Group's tax withholding obligations have been
satisfied by the Participant.
7.5 Vesting and Restrictions on Transfer. Shares issued pursuant to
any Restricted Stock Award may be made subject to vesting conditioned upon the
satisfaction of such Service requirements, performance goals, or other
restrictions (the "Vesting Restrictions") as shall be determined by the Board
and set forth in the Restricted Stock Agreement evidencing such Award. During
such period (the "Restriction Period") as shares acquired pursuant to a
Restricted Stock Award remain subject to Vesting Restrictions, such shares may
not be sold, exchanged, transferred, pledged, assigned or otherwise disposed of
other than pursuant to an Ownership Change Event or as provided in Section 7.9.
Upon request by the Company, each Participant shall execute any agreement
evidencing such transfer restrictions prior to the receipt of shares of Stock
hereunder and shall promptly present to the Company any and all certificates
representing shares of Stock acquired hereunder for the placement on such
certificates of appropriate legends evidencing any such transfer restrictions.
7.6 Voting Rights; Dividends. Except as provided in this Section and
Section 7.5, during the Restriction Period applicable to shares of Restricted
Stock held by a Participant, the Participant shall have all of the rights of a
stockholder of the Company holding shares of Stock, including the right to vote
the shares of Restricted Stock and to receive all dividends and other
distributions paid with respect to such shares; provided, however, that if any
such dividends or distributions are paid in shares of Stock, such shares shall
be subject to the same Vesting Restrictions as the shares of Restricted Stock
with respect to which they were paid.
7.7 Effect of Termination of Service. If a Participant's Service
with the Participating Company Group terminates for any reason, whether
voluntary or involuntary (including the Participant's death or disability), (a)
the Company shall have the option to repurchase at the original purchase price
paid by the Participant shares of Restricted Stock acquired by the Participant
pursuant to a Restricted Stock Purchase Right and (b) the Participant shall
forfeit to the Company shares of Restricted Stock acquired by the Participant
pursuant to a Restricted Stock Bonus which, in either case, remain subject to
Vesting Restrictions as of the
11
date of the Participant's termination of Service. The Company shall have the
right to assign at any time any repurchase right it may have, whether or not
such right is then exercisable, to one or more persons as may be selected by the
Company.
7.8 Standard Forms of Restricted Stock Agreement. The Board shall
have the authority from time to time to approve one or more standard forms of
Restricted Stock Agreement and to vary the terms of any such standard forms
either in connection with the grant or amendment of an individual Restricted
Stock Award or in connection with the authorization of a new standard form or
forms; provided, however, that the terms and conditions of any such new, revised
or amended standard form or forms of Restricted Stock Agreement are not
inconsistent with the terms of the Plan.
7.9 Nontransferability of Restricted Stock Award Rights. Rights to
acquire shares of Stock pursuant to a Restricted Stock Award may not be assigned
or transferred in any manner except by will or the laws of descent and
distribution, and, during the lifetime of the Participant, shall be exercisable
only by the Participant.
8. Change in Control.
-----------------
8.1 Definitions.
(a) An "Ownership Change Event" shall be deemed to have occurred
if any of the following occurs with respect to the Company:
(i) the direct or indirect sale or exchange in a single or
series of related transactions by the stockholders of the Company of more than
fifty percent (50%) of the voting stock of the Company;
(ii) a merger or consolidation in which the Company is a
party;
(iii) the sale, exchange, or transfer of all or
substantially all of the assets of the Company; or
(iv) a liquidation or dissolution of the Company.
(b) A "Change in Control" shall mean an Ownership Change Event
or a series of related Ownership Change Events (collectively, the "Transaction")
wherein the stockholders of the Company immediately before the Transaction do
not retain immediately after the Transaction, in substantially the same
proportions as their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting stock of the Company or the corporation or corporations to
which the assets of the Company were transferred (the "Transferee
Corporation(s)"), as the case may be. For purposes of the preceding sentence,
indirect beneficial ownership shall include, without limitation, an interest
resulting from ownership of the voting stock of one or more corporations
12
which, as a result of the Transaction, own the Company or the Transferee
Corporation(s), as the case may be, either directly or through one or more
subsidiary corporations. The Board shall have the right to determine whether
multiple sales or exchanges of the voting stock of the Company or multiple
Ownership Change Events are related, and its determination shall be final,
binding and conclusive.
8.2 Effect of Change in Control on Awards. In the event of a Change
in Control, the Board, in its sole discretion, may provide that any
unexercisable or unvested portion of the outstanding Awards shall be immediately
exercisable and vested in full as of a date determined by the Board and/or may
arrange with the surviving, continuing, successor, or purchasing corporation or
parent corporation thereof, as the case may be (the "Acquiring Corporation"),
for the Acquiring Corporation to either assume the Company's rights and
obligations under outstanding Awards or substitute for outstanding Awards
substantially equivalent awards for the Acquiring Corporation's stock. Any
Awards which are neither assumed or substituted for by the Acquiring Corporation
in connection with the Change in Control nor exercised as of the date of the
Change in Control shall terminate and cease to be outstanding effective as of
the date of the Change in Control. Notwithstanding the foregoing, shares
acquired upon exercise of an Award prior to the Change in Control and any
consideration received pursuant to the Change in Control with respect to such
shares shall continue to be subject to all applicable provisions of the Award
Agreement evidencing such Award except as otherwise provided in such Award
Agreement or by the Board.
9. PROVISION OF INFORMATION.
------------------------
Each Participant shall be given access to information concerning the
Company equivalent to that information generally made available to the Company's
common stockholders.
10. COMPLIANCE WITH SECURITIES LAW.
------------------------------
The grant of Awards and the issuance of shares of Stock pursuant to
Awards shall be subject to compliance with all applicable requirements of
federal, state or foreign law with respect to such securities. No shares may be
issued pursuant an Award if such issuance would constitute a violation of any
applicable federal, state or foreign securities laws or other law or regulations
or the requirements of any stock exchange or market system upon which the Stock
may then be listed. In addition, no Award may be exercised or shares issued
pursuant to an Award unless (a) a registration statement under the Securities
Act shall at the time of such exercise or issuance be in effect with respect to
the shares issuable pursuant to the Award or (b) in the opinion of legal counsel
to the Company, the shares issuable pursuant to the Award may be issued in
accordance with the terms of an applicable exemption from the registration
requirements of the Securities Act. The inability of the Company to obtain from
any regulatory body having jurisdiction the authority, if any, deemed by the
Company's legal counsel to be necessary to the lawful issuance and sale of any
shares hereunder shall relieve the Company of any liability in respect of the
failure to issue or sell such shares as to which such requisite authority shall
not have been obtained. As a condition to the issuance of shares pursuant to
any Award, the Company may require the Participant to satisfy any qualifications
that may be
13
necessary or appropriate, to evidence compliance with any applicable law or
regulation and to make any representation or warranty with respect thereto as
may be requested by the Company.
11. INDEMNIFICATION.
---------------
In addition to such other rights of indemnification as they may have
as members of the Board or officers or employees of the Participating Company
Group, members of the Board and any officers or employees of the Participating
Company Group to whom authority to act for the Board or the Company is delegated
shall be indemnified by the Company against all reasonable expenses, including
attorneys' 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 right
granted hereunder, 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 in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is liable for gross
negligence, bad faith or intentional misconduct in duties; provided, however,
that within sixty (60) days after the institution of such action, suit or
proceeding, such person shall offer to the Company, in writing, the opportunity
at its own expense to handle and defend the same.
12. Termination or Amendment of Plan.
--------------------------------
The Board may terminate or amend the Plan at any time. However, no
termination or amendment of the Plan shall affect any then outstanding Award
unless expressly provided by the Board. In any event, no termination or
amendment of the Plan may adversely affect any then outstanding Award without
the consent of the Participant, unless such termination or amendment is
necessary to comply with any applicable law, regulation or rule.
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that
the foregoing sets forth the Network Peripherals Inc. 1999 Stock Plan as adopted
by the Board on December 17, 1999.
/s/ Wilson Cheung
-----------------------------
14
PLAN HISTORY
------------
December 17, 1999 Board adopts Plan, with an initial reserve of 500,000
shares. (No stockholder approval required because plan
excludes from participation those persons whose
participation would require stockholder approval under
Nasdaq listing requirements).
15