EXHIBIT 10.1
RIGHTNOW TECHNOLOGIES, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
INTRODUCTION
Section 1.01 Purpose. The purpose of the Plan is to provide employees of
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the Company and certain related corporations with an opportunity to share in the
ownership of the Company by providing them with a convenient means for regular
and systematic purchases of Common Stock and, thus, to develop a stronger
incentive to work for the continued success of the Company.
Section 1.02 Rules of Interpretation. It is intended that the Plan be an
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"employee stock purchase plan" as defined in Section 423(b) of the Code and
Treasury Regulations promulgated thereunder. Accordingly, the Plan shall be
interpreted and administered in a manner consistent therewith if so approved.
All Participants in the Plan will have the same rights and privileges consistent
with the provisions of the Plan.
Section 1.03 Definitions. For purposes of the Plan, the following terms
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will have the meanings set forth below:
"Acceleration Date" means the earlier of the date of stockholder
approval or approval by the Company's Board of Directors of (i) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of Company
Common Stock would be converted into cash, securities or other property,
other than a merger of the Company in which stockholders of the Company
immediately prior to the merger have substantially the same proportionate
ownership of stock in the surviving corporation immediately after the
merger; (ii) any sale, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the assets
of the Company; or (iii) any plan of liquidation or dissolution of the
Company.
"Affiliate" means any subsidiary corporation of the Company, as
defined in Section 424(f) of the Code, whether now or hereafter acquired or
established.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee described in Section 10.01 of the
Plan.
"Common Stock" means the Company's Common Stock, $.001 par value per
share, as such stock may be adjusted for changes in the stock or the
Company as contemplated by Article XI of the Plan.
"Company" means RightNow Technologies, Inc. and its successors by
merger or consolidation as contemplated by Section 11.02 of the Plan.
"Current Compensation" means all regular wage, salary and commission
payments paid by the Company to a Participant in accordance with the terms
of his or her employment, but excluding annual bonus payments and all other
forms of special compensation.
"Effective Date" means the date immediately prior to the date on which
the Company's registration statement relating to its initial public
offering of Common Stock is declared effective by the Securities and
Exchange Commission.
"Fair Market Value" as of a given date means the fair market value of
the Common Stock determined by such methods or procedures as shall be
established from time to time by the Committee, but shall not be less than
(i) the closing price of the Common Stock as reported for composite
transactions if the Common Stock is then traded on a national securities
exchange, (ii) the last sale price if the Common Stock is then quoted on
the NASDAQ National Market System, or (iii) the average of the high and low
sales price of the Common Stock as reported on the NASDAQ National Market
System on the date as of which fair market value is being determined or,
if the NASDAQ National Market System is not open for trading on such date,
on the most recent preceding date when it is open for trading; provided,
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however, that the Fair Market Value on the Effective Date shall be the
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initial public offering price set forth on the cover of the final
prospectus used in connection with the Company's initial public offering of
Common Stock. If on a given date the Common Stock is not traded on an
established securities market, the Committee shall make a good faith
attempt to satisfy the requirements of this Section 1.03 and in connection
therewith shall take such action as it deems necessary or advisable.
"Participant" means a Regular Employee who is eligible to participate
in the Plan under Section 2.01 of the Plan and who has elected to
participate in the Plan.
"Participating Affiliate" means an Affiliate that has been designated
by the Committee in advance of the Purchase Period in question as a
corporation whose eligible Regular Employees may participate in the Plan.
"Plan" means the RightNow Technologies, Inc. 2000 Employee Stock
Purchase Plan, as it may be amended, the provisions of which are set forth
herein.
"Purchase Period" means any of the approximate six-month periods
beginning on the first business day in January and July, as appropriate,
and ending on the last business day in June and December, respectively;
provided, however, that the initial Purchase Period will commence on the
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Effective Date and will terminate on June 30, 2001, and that the then
current Purchase Period will end upon the occurrence of an Acceleration
Date.
"Regular Employee" means an employee of the Company or a Participating
Affiliate as of the first day of a Purchase Period, including an officer or
director who is also an employee, but excluding an employee whose customary
employment is less than
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20 hours per week and less than five months per calendar year.
"Stock Purchase Account" means the account maintained on the books and
records of the Company recording the amount received from each Participant
through payroll deductions made under the Plan.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
Section 2.01 Eligible Employees. All Regular Employees shall be eligible
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to participate in the Plan beginning on the first day of the first Purchase
Period to commence after such person becomes a Regular Employee. Subject to the
provisions of Article VI of the Plan, each such employee will continue to be
eligible to participate in the Plan so long as he or she remains a Regular
Employee.
Section 2.02 Election to Participate. An eligible Regular Employee may
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elect to participate in the Plan for a given Purchase Period by filing with the
Company, in advance of that Purchase Period and in accordance with such terms
and conditions as the Committee in its sole discretion may impose, a form
provided by the Company for such purpose (which authorizes regular payroll
deductions from Current Compensation beginning with the first payday in that
Purchase Period and continuing until the employee withdraws from the Plan or
ceases to be eligible to participate in the Plan).
Section 2.03 Limits on Stock Purchase. No employee shall be granted any
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right to purchase Common Stock hereunder if such employee, immediately after
such a right to purchase is granted, would own, directly or indirectly, within
the meaning of Section 423(b)(3) and Section 424(d) of the Code, Common Stock
possessing 5% or more of the total combined voting power or value of all the
classes of the capital stock of the Company or of all Affiliates.
Section 2.04 Voluntary Participation. Participation in the Plan on the
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part of a Participant is voluntary and such participation is not a condition of
employment nor does participation in the Plan entitle a Participant to be
retained as an employee.
ARTICLE III
PAYROLL DEDUCTIONS AND STOCK PURCHASE ACCOUNT
Section 3.01 Deduction from Pay. The form described in Section 2.02 of
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the Plan will permit a Participant to elect payroll deductions of any multiple
of 1% but not less than 1% or more than 15% of such Participant's Current
Compensation for each pay period during such Purchase Period, subject to such
other limitations as the Committee in its sole discretion may impose. A
Participant may cease making payroll deductions at any time, subject to such
limitations as the Committee in its sole discretion may impose. In the event
that during a Purchase Period the entire credit balance in a Participant's Stock
Purchase Account exceeds the product of (a) 85% of the Fair Market Value of the
Common Stock on the first business day of that Purchase Period and (b) 5,000,
then payroll deductions for such Participant automatically shall cease, and
payroll deductions shall resume on the first pay period of the next Purchase
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Period.
Section 3.02 Credit to Account. Payroll deductions will be credited to
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the Participant's Stock Purchase Account on each payday.
Section 3.03 Interest. No interest will be paid on payroll deductions or
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on any other amount credited to, or on deposit in, a Participant's Stock
Purchase Account.
Section 3.04 Nature of Account. The Stock Purchase Account is established
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solely for accounting purposes, and all amounts credited to the Stock Purchase
Account will remain part of the general assets of the Company or the
Participating Affiliate (as the case may be).
Section 3.05 No Additional Contributions. A Participant may not make any
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payment into the Stock Purchase Account other than the payroll deductions made
pursuant to the Plan.
ARTICLE IV
RIGHT TO PURCHASE SHARES
Section 4.01 Number of Shares. Each Participant will have the right to
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purchase on the last business day of the Purchase Period all, but not less than
all, of the number of whole shares of Common Stock that can be purchased at the
price specified in Section 4.02 of the Plan with the entire credit balance in
the Participant's Stock Purchase Account, subject to the limitations that (a) no
more than 5,000 shares of Common Stock may be purchased under the Plan by any
one Participant for a given Purchase Period, and (b) in accordance with Section
423(b)(8) of the Code, no more than $25,000 in Fair Market Value (determined at
the beginning of each Purchase Period) of Common Stock and other stock may be
purchased under the Plan and all other employee stock purchase plans (if any) of
the Company and the Affiliates by any one Participant for any calendar year. If
the purchases for all Participants for any Purchase Period would otherwise cause
the aggregate number of shares of Common Stock to be sold under the Plan to
exceed the number specified in Section 10.04 of the Plan, each Participant shall
be allocated a pro rata portion of the Common Stock to be sold for such Purchase
Period.
Section 4.02 Purchase Price. The purchase price for any Purchase Period
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shall be the lesser of (a) 85% of the Fair Market Value of the Common Stock on
the first business day of that Purchase Period and (b) 85% of the Fair Market
Value of the Common Stock on the last business day of that Purchase Period, in
each case rounded up to the next higher full cent.
ARTICLE V
EXERCISE OF RIGHT
Section 5.01 Purchase of Stock. On the last business day of a Purchase
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Period, the entire credit balance in each Participant's Stock Purchase Account
will be used to purchase the number of whole shares (for this purpose any
fractional share as calculated under this Section 5.01 will be rounded down to
the next lower whole share) of Common Stock purchasable with such amount
(subject to the limitations of Section 4.01 of the Plan), unless the Participant
has filed with the Company, in advance of that date and subject to such terms
and conditions as the
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Committee in its sole discretion may impose, a form provided by the Company
which requests the distribution of the entire credit balance in cash.
Section 5.02 Cash Distributions. Any amount remaining in a Participant's
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Stock Purchase Account after the last business day of a Purchase Period will be
paid to the Participant in cash within 30 days after the end of that Purchase
Period.
Section 5.03 Notice of Acceleration Date. The Company shall use its best
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efforts to notify each Participant in writing at least 10 days prior to any
Acceleration Date that the then current Purchase Period will end on such
Acceleration Date.
ARTICLE VI
WITHDRAWAL FROM PLAN; SALE OF STOCK
Section 6.01 Voluntary Withdrawal. A Participant may, in accordance with
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such terms and conditions as the Committee in its sole discretion may impose,
withdraw from the Plan and cease making payroll deductions by filing with the
Company a form provided for this purpose. In such event, the entire credit
balance in the Participant's Stock Purchase Account will be paid to the
Participant in cash within 30 days. A Participant who withdraws from the Plan
will not be eligible to reenter the Plan until the beginning of the next
Purchase Period following the date of such withdrawal.
Section 6.02 Death. Subject to such terms and conditions as the Committee
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in its sole discretion may impose, upon the death of a Participant, no further
amounts shall be credited to the Participant's Stock Purchase Account.
Thereafter, on the last business day of the Purchase Period during which such
Participant's death occurred and in accordance with Section 5.01 of the Plan,
the entire credit balance in such Participant's Stock Purchase Account will be
used to purchase Common Stock, unless such Participant's estate has filed with
the Company, in advance of that day and subject to such terms and conditions as
the Committee in its sole discretion may impose, a form provided by the Company
which elects to have the entire credit balance in such Participant's Stock
Account distributed in cash within 30 days after the end of that Purchase Period
or at such earlier time as the Committee in its sole discretion may decide.
Each Participant, however, may designate one or more beneficiaries who, upon the
Participant's death, are to receive the Common Stock or the amount that
otherwise would have been distributed or paid to the Participant's estate and
may change or revoke any such designation from time to time. No such
designation, change or revocation will be effective unless made by the
Participant in writing and filed with the Company during the Participant's
lifetime. Unless the Participant has otherwise specified the beneficiary
designation, the beneficiary or beneficiaries so designated will become fixed as
of the date of the death of the Participant so that, if a beneficiary survives
the Participant but dies before the receipt of the payment due such beneficiary,
the payment will be made to such beneficiary's estate.
Section 6.03 Termination of Employment. Subject to such terms and
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conditions as the Committee in its sole discretion may impose, upon a
Participant's normal or early retirement with the consent of the Company under
any pension or retirement plan of the Company or Participating Affiliate, no
further amounts shall be credited to the Participant's Stock Purchase
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Account. Thereafter, on the last business day of the Purchase Period during
which such Participant's approved retirement occurred and in accordance with
Section 5.01 of the Plan, the entire credit balance in such Participant's Stock
Purchase Account will be used to purchase Common Stock, unless such Participant
has filed with the Company, in advance of that day and subject to such terms and
conditions as the Committee in its sole discretion may impose, a form provided
by the Company which elects to receive the entire credit balance in such
Participant's Stock Purchase Account in cash within 30 days after the end of
that Purchase Period, provided that such Participant shall have no right to
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purchase Common Stock in the event that the last day of such a Purchase Period
occurs more than three months following the termination of such Participant's
employment with the Company by reason of such an approved retirement. In the
event of any other termination of employment (other than death) with the Company
or a Participating Affiliate, participation in the Plan will cease on the date
the Participant ceases to be a Regular Employee for any reason. In such event,
the entire credit balance in such Participant's Stock Purchase Account will be
paid to the Participant in cash within 30 days. For purposes of this Section
6.03, a transfer of employment to any Affiliate, or a leave of absence that has
been approved by the Committee, will not be deemed a termination of employment
as a Regular Employee.
ARTICLE VII
NONTRANSFERABILITY
Section 7.01 Nontransferable Right to Purchase. The right to purchase
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Common Stock hereunder may not be assigned, transferred, pledged or hypothecated
(whether by operation of law or otherwise), except as provided in Section 6.02
of the Plan, and will not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation or other
disposition or levy of attachment or similar process upon the right to purchase
will be null and void and without effect.
Section 7.02 Nontransferable Account. Except as provided in Section 6.02
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of the Plan, the amounts credited to a Stock Purchase Account may not be
assigned, transferred, pledged or hypothecated in any way, and any attempted
assignment, transfer, pledge, hypothecation or other disposition of such amounts
will be null and void and without effect.
ARTICLE VIII
STOCK CERTIFICATES
Section 8.01 Issuance of Purchased Shares. Promptly after the last day of
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each Purchase Period and subject to such terms and conditions as the Committee
in its sole discretion may impose, the Company will cause the Common Stock then
purchased pursuant to Section 5.01 of the Plan to be issued for the benefit of
the Participant and held in the Plan pursuant to Section 8.03 of the Plan.
Section 8.02 Completion of Issuance. A Participant shall have no interest
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in the Common Stock purchased pursuant to Section 5.01 of the Plan until such
Common Stock is issued for the benefit of the Participant pursuant to Section
8.03 of the Plan.
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Section 8.03 Form of Ownership. The Common Stock issued under Section
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8.01 of the Plan will be held in the Plan (including being held for each
Participant's benefit by a broker designated by the Company) in the name of the
Participant or jointly in the name of the Participant and another person, as the
Participant may direct on a form provided by the Company, until such time as
certificates for such shares of Common Stock are delivered to or for the benefit
of the Participant pursuant to Section 8.04 of the Plan.
Section 8.04 Delivery. Subject to such terms and conditions as the
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Committee in its sole discretion may impose, by filing with the Company a form
provided by the Company for such purpose, the Participant may elect to have the
Company cause to be delivered to or for the benefit of the Participant a
certificate for the number of whole shares and cash for the number of fractional
shares representing the Common Stock purchased pursuant to Section 5.01 of the
Plan. The election notice will be processed as soon as practicable after
receipt. A certificate for whole shares normally will be mailed to the
Participant within five business days after receipt of the election notice. Any
fractional shares normally will be sold on the first trading day of each month
and a check for the fractional shares sent to the Participant promptly
thereafter.
ARTICLE IX
EFFECTIVE DATE, AMENDMENT AND TERMINATION OF PLAN
Section 9.01 Effective Date. The Plan was approved by the Board of
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Directors on May 18, 2000, and shall be approved by the stockholders of the
Company prior to the Effective Date.
Section 9.02 Plan Commencement. The initial Purchase Period under the
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Plan will commence on the Effective Date. Thereafter, each succeeding Purchase
Period will commence and terminate as described under "Purchase Period" in
Section 1.03 of the Plan.
Section 9.03 Powers of Board. The Board of Directors may amend or
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discontinue the Plan at any time. No amendment or discontinuation of the Plan,
however, shall be made without stockholder approval that (i) absent such
stockholder approval would cause Rule 16b-3 under the Securities Exchange Act of
1934, as amended (the "Act"), to become unavailable with respect to the Plan,
(ii) requires stockholder approval under any rules or regulations of the NASDAQ
National Market System or any securities exchange that are applicable to the
Company, or (iii) permit the issuance of the Common Stock before payment
therefor in full.
Section 9.04 Automatic Termination. The Plan shall terminate
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automatically when all of the shares of Common Stock provided for in Section
10.04 of the Plan have been sold, provided that such termination shall in no way
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affect the terms of the Plan pertaining to any Common Stock then held under the
Plan.
ARTICLE X
ADMINISTRATION
Section 10.01 The Committee. The Plan shall be administered by a
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committee established by the Board of Directors (the "Committee"). The members
of the Committee need
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not be directors of the Company and shall be appointed by and serve at the
pleasure of the Board of Directors.
Section 10.02 Powers of Committee. Subject to the provisions of the Plan,
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the Committee shall have full authority to administer the Plan, including
authority to interpret and construe any provision of the Plan, to establish
deadlines by which the various administrative forms must be received in order to
be effective, and to adopt such other rules and regulations for administering
the Plan as it may deem appropriate. The Committee shall have full and complete
authority to determine whether all or any part of the Common Stock acquired
pursuant to the Plan shall be subject to restrictions on the transferability
thereof or any other restrictions affecting in any manner a Participant's rights
with respect thereto but any such restrictions shall be contained in the form by
which a Participant elects to participate in the Plan pursuant to Section 2.02
of the Plan. Decisions of the Committee will be final and binding on all
parties who have an interest in the Plan.
Section 10.03 Power and Authority of the Board of Directors.
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Notwithstanding anything to the contrary contained herein, the Board of
Directors may, at any time and from time to time, without any further action of
the Committee, exercise the powers and duties of the Committee under the Plan.
Section 10.04 Stock to be Sold. The Common Stock to be issued and sold
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under the Plan may be authorized but unissued shares or shares acquired in the
open market or otherwise. Except as provided in Section 11.01 of the Plan, the
aggregate number of shares of Common Stock to be sold under the Plan will not
exceed 600,000 shares.
Section 10.05 Notices. Notices to the Committee should be addressed as
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follows:
RightNow Technologies, Inc.
45 Discovery Drive
Bozeman, MT 59718
Attention: Secretary
ARTICLE XI
ADJUSTMENT FOR CHANGES IN STOCK OR COMPANY
Section 11.01 Stock Dividend or Reclassification. If the outstanding
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shares of Common Stock are increased, decreased, changed into or exchanged for a
different number or kind of securities of the Company, or shares of a different
par value or without par value, through reorganization, recapitalization,
reclassification, stock dividend, stock split, amendment to the Company's
certificate of incorporation, reverse stock split or otherwise, an appropriate
adjustment shall be made in the maximum numbers and kind of securities to be
purchased under the Plan with a corresponding adjustment in the purchase price
to be paid therefor.
Section 11.02 Merger or Consolidation. If the Company is merged into or
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consolidated with one or more corporations during the term of the Plan,
appropriate adjustments will be made to give effect thereto on an equitable
basis in terms of issuance of shares of the corporation
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surviving the merger or of the consolidated corporation, as the case may be.
ARTICLE XII
APPLICABLE LAW
Rights to purchase Common Stock granted under the Plan shall be construed
and shall take effect in accordance with the laws of the State of Delaware.
ARTICLE XIII
INTERNATIONAL PARTICIPANTS
The Committee shall have the power and authority to allow Participants of
those Participating Affiliates, so designated by the Committee, who work or
reside outside of the United States on behalf of the Company an opportunity to
acquire Common Stock pursuant to the Plan in accordance with such special terms
and conditions as the Committee may designate with respect to each such
Participating Affiliate. Without limiting the authority of the Committee, the
special terms and conditions which may be established with respect to each such
Participating Affiliate, and which need not be the same for all Participating
Affiliates, include but are not limited to the right to participate, procedures
for elections to participate, the payment of any interest with respect to
amounts received from or credited to accounts held for the benefit of
Participants, the purchase price of any shares to be acquired, the length of any
purchase period, the maximum amount of contributions, credits or Stock which may
be acquired by any Participant, and a Participant's rights in the event of his
or her death, disability, withdrawal from the Plan, termination of employment on
behalf of the Company and all matters related thereto. This Article XIII is not
subject to Section 423 of the Code or any other provision of the Plan that
refers to or is based upon such Section. For tax purposes, this Article XIII
shall be treated as separate and apart from the balance of the Plan.
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