EXHIBIT 10.22
1996 EQUITY INCENTIVE PLAN
RYKA INC.
1996 EQUITY INCENTIVE PLAN
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1. PURPOSE
The purpose of the RYKA Inc. Equity Incentive Plan (the "Plan") is to
promote the long-term retention of key employees of RYKA Inc., ("RYKA") and its
current and future subsidiaries (collectively, the "Company") and other persons
who are in a position to make significant contributions to the success of the
Company, to further reward these employees and other persons for their
contributions to the Company's growth and expansion, to provide additional
incentive to these employees and other persons to continue to make similar
contributions in the future, and to further align the interests of these
employees and other persons with those of SunGard's stockholders. These purposes
will be achieved by granting to such employees and other person, in accordance
with the provisions of this Plan, Options, Stock Appreciation Rights, Restricted
Stock or Unrestricted Stock Awards, Deferred Stock Awards or Performance Awards,
for shares of RYKA's common stock, $0.01 par value per share ("Common Stock"),
or Loans or Supplemental Grants, or combinations thereof ("Awards").
2. AGGREGATE NUMBER OF SHARES
2.1 The aggregate number of shares of Common Stock for which Awards may be
granted under the Plan will be 2,000,000 shares. Notwithstanding the foregoing,
if there is any change in the capitalization of RYKA, such as by stock dividend,
stock split, combination of shares, exchange of securities, recapitalization or
other event which the Compensation Committee (the "Committee") of the Board of
Directors (the "Board") of RYKA deems, in its sole discretion, to be similar
circumstances, the aggregate number and/or kind of shares for which Awards may
be granted under the Plan shall be appropriately adjusted in a manner determined
by the Committee. No fractional shares of Common Stock will be delivered under
the Plan.
2.2 Treasury shares, reacquired shares and unissued shares of Common Stock
may be used for purposes of the Plan, at RYKA's sole discretion.
2.3 Shares of Common Stock that were issuable pursuant to an Award that
has terminated but with respect to which such Award had not been exercised,
shares of Common Stock that are issued pursuant to an Award but that are
subsequently forfeited and shares of Common Stock that were issuable pursuant to
an Award that was payable in Common Stock or cash but that was satisfied in
cash, shall be available for future Awards under the Plan.
3. ELIGIBLE EMPLOYEES AND PARTICIPANTS
3.1 All current and future key employees of the Company, including
officers and directors who are employed by the Company, ("Employees") and all
other persons, including directors of the Company who are not Employees, who, in
the opinion of the Committee, are in a position to make a significant
contribution to the success of the Company, shall be eligible to receive Awards
under the Plan. Members of the Committee shall not be eligible to receive
Awards. No eligible Employee
or other person (a "Participant") shall have any right to receive an Award
except as expressly provided in the Plan.
3.2 The Participants who shall actually receive Awards under the Plan
shall be determined by the Committee in its sole discretion. In making such
determinations, the Committee shall consider the positions and responsibilities
of eligible Employees and other persons, their past performance and
contributions to the Company's growth and expansion, the value of their services
to the Company, the difficulty of finding qualified replacements, and such other
factors as the Committee deems pertinent in its sole discretion.
4. ADMINISTRATION
4.1 The Plan shall be administered by the Committee. Each member of the
Committee shall be a "disinterest person" within the meaning of Rule 16b-3 under
the Securities Exchange Act of 1934, as amended (the "1934 Act"). The Committee
may delegate all or any portion of its authority hereunder to a subcommittee
consisting of at least two Committee members. In addition to its other authority
and subject to the provisions of the Plan, the Committee shall have the
authority to determine, in its sole discretion, the Participants who shall be
eligible to receive Awards, the Participants who shall actually receive Awards,
the size of each Award, including the number of shares of Common Stock subject
to the Award, the type or types of each Award, the date on which each Award
shall be granted, the terms and conditions of each Award, whether to waive
compliance by a Participant with any obligations to be performed by the
Participant under an Award or waive any term or condition of an Award, whether
to amend or cancel an existing Award in whole or in part (except that the
Committee may not, without the consent of the holder of an Award or unless
specifically authorized by the terms of an Award, take any action under this
clause with respect to such Award if such action would adversely affect the
rights of such holder), and the form or forms of instruments that are required
or deemed appropriate under the Plan, including any written notices and
elections required of Participants.
4.2 The Committee may adopt such rules for the administration of the Plan
as it deems necessary or advisable, in its sole discretion. For all purposes of
the Plan, a majority of the members of the Committee shall constitute a quorum,
and the vote or written consent of a majority of the members of the Committee on
a particular matter shall constitute the act of the Committee on that matter.
The Committee shall have the exclusive right to construe the Plan and any Award,
to settle all controversies regarding the Plan or any Award, to correct defects
and omissions in the Plan and in any Award, and to take such further actions as
the Committee deems necessary or advisable, in its sole discretion, to carry out
the purpose and intent of the Plan. Such actions shall be final, binding and
conclusive upon all parties concerned.
4.3 No member of the Committee or the Board shall be liable for any act or
omission (whether or not negligent) taken or omitted in good faith, or for the
good faith exercise or any authority or discretion granted in the Plan to the
Committee or the Board, or for any act or omission of any other member of the
Committee or the Board.
4.4 All costs incurred in connection with the administration and operation
of the Plan shall be paid by the Company. Except for the express obligations of
the Company under the Plan and under Awards granted in accordance with the
provisions of the Plan, the Company shall have no liability with respect to any
Award, or to any Participant or any transferee of shares of Common
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Stock from any Participant, including, but not limited to, any tax liabilities,
capital losses, or other costs or losses incurred by any Participant or any such
transferee.
5. TYPES OF AWARDS
5.1 Options.
(a) An Option is an Award entitling the recipient on exercise thereof to
purchase Common Stock at a specified exercise price. Both "incentive stock
options," as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code") (any Option intended to qualify as an incentive stock
option is hereinafter referred to as an "ISO"), and Options that are not
incentive stock options ("non-ISO"), may be granted under the Plan. ISOs shall
be awarded only to Employees.
(b) The exercise price of any Option will be determined by the Committee
subject to the following:
(1) The exercise price of an ISO shall not be less than 100% (110% in
the case of an ISO granted to a ten percent shareholder) of the fair market
value of the Common Stock subject to the ISO, determined as of the time the
Option is granted. A "ten-percent shareholder" is any person who at the time of
grant owns, directly or indirectly, or is deemed to own by reason of the
attribution rules of Section 424(d) of the Code, stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company or of
any of its subsidiaries.
(2) The exercise price of a non-ISO shall not be less than 100% of
the fair market value of the Common Stock subject to the non-ISO, determined as
of the time the non-ISO is granted, except that:
(A) the exercise price of a non-ISO may be equal to or greater
than 85% of the fair market value of the Common Stock subject to the non-ISO, if
the discount is granted in lieu of a reasonable amount of cash compensation; or
(B) the exercise price of a non-ISO granted pursuant to a
Performance Award may be (i) 100% of the fair market value of the Common Stock
subject to the non-ISO, determined either as of the time Performance Award is
granted or as of the time the non-ISO is granted pursuant to the Performance
Award; or (ii) an amount less than such fair market value if the discount is
granted in lieu of a reasonable amount of cash compensation as consideration for
exceeding the goals(s) set forth in the Performance Award.
(3) In no case may the exercise price paid for Common Stock which is
part of an original issue of authorized Common Stock be less than the par value
per share of the Common Stock.
(4) The Committee may reduce the exercise price of any option at any
time after the time of grant, but in the case of an Option originally awarded as
an ISO, only with the consent of the Participant.
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(c) The period during which an Option may be exercised will be determined
by the Committee, except that the period during which an ISO may be exercised
will not exceed ten years (five years, in the case of an ISO granted to a
ten-percent shareholder) from the day immediately preceding the date the Option
was granted.
(d) An Option will become exercisable at such time or times, and on such
terms and conditions, as the Committee may determine. The Committee may at any
time accelerate the time at which all or any part of the Option may be
exercised. Any exercise of an Option must be in writing, signed by the proper
person and delivered or mailed to the Company, accompanied by (i) any documents
required by the Committee and (ii) payment in full in accordance with Section
5.1(e) below for the number of shares for which the Option is exercised.
(e) Stock purchased on exercise of an Option must be paid for as follows:
(i) in cash or by check (acceptable to RYKA in accordance with guidelines
established for this purpose), bank draft or money order payable to the order of
RYKA or (ii) if so permitted by the instrument evidencing the Option (or in the
case of an Option which is not an ISO, by the Committee at or after grant of the
Option), (A) through the delivery of shares of Common Stock which have been
outstanding for at least six months (unless the Committee expressly approves a
shorter period) and which have a fair market value on the last business day
preceding the date of exercise at least equal to the exercise price, or (B) by
delivery of a promissory note of the Option holder to RYKA, payable on such
terms and conditions as the Committee may determine, or (C) by delivery of an
unconditional and irrevocable undertaking by a broker to deliver promptly to
RYKA sufficient funds to pay the exercise price, or (D) by any combination of
the permissible forms of payment; provided, that if the Common Stock delivered
upon exercise of the Option is an original issue of authorized Common Stock, at
least so much of the exercise price as represents the par value of such Common
Stock must be paid other than by the Option holder's promissory note.
(f) If the market price of shares of Common Stock subject to an Option
(other than an Option which is in tandem with a Stock Appreciation Right as
described in Section 6.2 below) exceeds the exercise price of the Option at the
time of its exercise, the Committee may cancel the Option and cause RYKA to pay
in cash or in shares of Common Stock (at a price per share equal to the fair
market value per share) to the person exercising the Option an amount equal to
the difference between the fair market value of the Common Stock which would
have been purchased pursuant to the exercise (determined on the date the Option
is canceled) and the aggregate exercise price which would have been paid. The
Committee may exercise its discretion to take such action only if it has
received a written request from the person exercising the Option, but such a
request will not be binding on the Committee.
5.2 Stock Appreciation Rights.
(a) A Stock Appreciation Right is an Award entitling the recipient on its
exercise to receive an amount, in cash or Common Stock or a combination thereof
(such form to be determined by the Committee), determined in whole or in part by
reference to appreciation in Common Stock value. In general, a Stock
Appreciation Right entitles the Participant to receive, with respect to each
share of Common Stock as to which the Right is exercised, the excess of the
share's fair market value on the date of exercise over its fair market value on
the date the Right was granted. However, the Committee may provide at the time
of grant that the amount the recipient is entitled to receive will be adjusted
upward or downward under rules established by the Committee to take into account
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the performance of the Common Stock in comparison with the performance of other
stocks or an index or indices of other stocks. The Committee may also grant
Stock Appreciation Rights that provide that following a Change in Control of the
Company (as defined in Section 6.3(b)) the holder of such Right will be entitled
to receive, with respect to each share of Common Stock subject to the Right, an
amount equal to the excess of a specified value (which may include an average of
values) for a share of Common Stock during a period preceding such Change in
Control over the fair market value of a share of Common Stock on the date the
Right was granted.
(b) Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan. A Stock Appreciation Right
granted in tandem with an Option that is not an ISO may be granted either at or
after the time the Option is granted. A Stock Appreciation Right granted in
tandem with an ISO may be granted only at the time the Option is granted.
(c) When Stock Appreciation Rights are granted in tandem with Options, the
following rules will apply:
(1) The Stock Appreciation Right will be exercisable only at such
time or times, and to the extent, that the related Option is exercisable and
will be exercisable in accordance with the procedure required for exercise of
the related Option.
(2) The Stock Appreciation Right will terminate and no longer be
exercisable upon the termination or exercise of the related Option, except that
a Stock Appreciation Right granted with respect to less than the full number of
shares covered by an Option will not be reduced until the number of shares as to
which the related Option has been exercised or has terminated exceeds the number
of shares not covered by the Stock Appreciation Right.
(3) The Option will terminate and no longer be exercisable upon the
exercise of the related Stock Appreciation Right.
(4) The Stock Appreciation Right will be transferable only with the
related Option.
(5) A Stock Appreciation Right granted in tandem with an ISO may be
exercised only when the market price of the Stock subject to the Option exceeds
the exercise Price of such option.
(d) A Stock Appreciation Right not granted in tandem with an Option will
become exercisable at such time or times, and on such terms and conditions, as
the Committee may specify. The Committee may at any time accelerate the time at
which all or any part of the Right may be exercised. Any exercise of an
independent Stock Appreciation Right must be in writing, signed by the proper
person and delivered or mailed to RYKA, accompanied by any other documents
required by the Committee.
5.3 Restricted and Unrestricted Stock.
(a) A Restricted Stock Award entitles the recipient to acquire, for a
purchase price not less than the par value, shares of Common Stock subject to
the restrictions described in Section 5.3(d) ("Restricted Stock").
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(b) A Participant who is granted a Restricted Stock Award shall have no
rights with respect to such Award unless the Participant accepts the Award by
written instrument delivered or mailed to RYKA accompanied by payment in full of
the specified purchase price, if any, of the shares covered by the Award.
Payment may be by certified or bank check or other instrument acceptable to the
Committee.
(c) A Participant who receives Restricted Stock shall have all the rights
of a stockholder with respect to such stock, including voting and dividend
rights, subject to the restrictions described in 5.3(d) and any other conditions
imposed by the Committee at the time of grant. Unless the Committee otherwise
determines, certificates evidencing shares of Restricted Stock will remain in
the possession of the Company until such shares are free of all restrictions
under the Plan.
(d) Except as otherwise specifically provided by the Plan or the Award,
Restricted Stock may not be sold, assigned, exchanged, pledged, gifted or
otherwise disposed of, or transferred, and if a Participant suffers a Status
Change (as defined in Section 6.1) for any reason, must be offered to RYKA for
purchase for the amount of cash paid for such stock, or forfeited to the Company
if no cash was paid. These restrictions will lapse at such time or times, and on
such terms and conditions, as the Committee may determine. The Committee may at
any time accelerate the time at which the restrictions on all or any part of the
shares will lapse.
(e) Any Participant making, or required by an Award to make, an election
under Section 83(b) of the Code with respect to Restricted Stock shall deliver
to RYKA, within ten days of the filing of such election with the Internal
Revenue Service, a copy of such election.
(f) The Committee may, at the time any Award described in this Section 5
is granted, provide that any or all the Common Stock delivered pursuant to the
Award will be Restricted Stock.
(g) The Committee may, in its sole discretion, approve the sale to any
Participant of shares of Common Stock free of restrictions under the Plan for a
price which is not less than the par value of the Common Stock.
5.4. Deferred Stock. A Deferred Stock Award entitles the recipient to
receive shares of Common Stock to be delivered in the future. Delivery of the
Common Stock will take place at such time or times, and on such terms and
conditions, as the Committee may determine. The Committee may at any time
accelerate the time at which delivery of all or any part of the Common Stock
will take place. At the time any Award described in this Section 5 is granted,
the Committee may provide that, at the time Common Stock would otherwise be
delivered pursuant to the Award, the Participant will instead receive an
instrument evidencing the Participant's right to future delivery of Deferred
Stock.
5.5. Performance Awards. A Performance Award entitles the recipient to
receive, without payment, an Award or Awards described in this Section 5 (such
form to be determined by the Committee) following the attainment of such
performance goals, during such measurement period or periods, and on such other
terms and conditions, all as the Committee may determine. Performance goals may
be related to personal performance, corporate performance, group or departmental
performance or any such other category of performance as the Committee may
determine. The Committee shall have the authority to determine the performance
goals, the period
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or period during which performance is to be measured and all other terms and
conditions applicable to the Award.
5.6. Loans and Supplemental Grants.
(a) The Company may make a loan to a Participant ("Loan"), either in
connection with the purchase of Common Stock under the Award or the payment of
any Federal, state and local income tax with respect to income recognized as a
result of the Award. The Committee shall have the authority, in its sole
discretion, to determine whether to make a Loan, the amount, terms and
conditions of the Loan, including the interest rate (which may be zero), whether
the Loan is to be secured or unsecured or with or without recourse against the
borrower, the terms on which the Loan is to be repaid and the terms and
conditions of the Loan is to be repaid and the terms and conditions, if any,
under which the Loan may be forgiven. In no event shall any Loan have a term
(including extensions) in excess of ten years.
(b) In connection with any Award, the Committee may, grant a cash award
to the Participant ("Supplemental Grant") not to exceed an amount equal to (i)
the amount of any Federal, state and local income tax on ordinary income for
which the Participant may be liable with respect to the Award, determined by
assuming taxation at the highest marginal rate, plus (ii) an additional amount
on a grossed-up basis intended to make the Participant whole on an after-tax
basis after discharging all the Participant's income tax liabilities arising
from all payments under this Section 5. Any payments under this Section 5(b)
shall be made at the time the Participant incurs Federal income tax liability
with respect to the Award.
6. EVENTS AFFECTING OUTSTANDING AWARDS
6.1. Termination of Service by Death or Disability. If a Participant who
is an Employee ceases to be an Employee, or if there is a termination of the
consulting, service or other relationship in respect of which a non-Employee
Participant was granted an Award under the Plan (such termination of employment
or other relationship referred to as a "Status Change") by reason of death or
permanent disability (as determined by the Committee), the following rules shall
apply, unless otherwise determined by the Committee:
(a) All Options and Stock Appreciation Rights held by the Participant at
the time of such Status Change, to the extent then exercisable, will continue to
be exercisable by the Participant's heirs, executor, administrator or other
legal representative, for a period of one year after the Participant's Status
Change. After the expiration of such one-year period, all such Options and Stock
Appreciation Rights shall terminate. In no event, however, shall an Option or
Stock Appreciation Right remain exercisable beyond the latest date on which it
could have been exercised without regard to this Section 6. All Options and
Stock Appreciation Rights held by a Participant at the time of such Status
Change that are not then exercisable shall terminate upon such Status Change.
(b) All Restricted Stock held by the Participant at the time of such
Status Change shall immediately become free of all restrictions and conditions.
(c) Any payment or benefit under a Deferred Stock Award, Performance
Award or Supplemental Grant to which the Participant was not irrevocably
entitled at the time of such Status Change shall be forfeited and the Award
canceled as of the time of such Status Change.
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6.2. Termination of Service Other Than by Death or Disability. If a
Participant suffers a Status Change other than by reason of death or permanent
disability (as determined by the Committee), the following rules shall apply,
unless otherwise determined by the Committee at the time of grant of an Award:
(a) All Options and Stock Appreciation Rights held by the Participant at
the time of such Status Change, to the extent then exercisable, will continue to
be exercisable by the Participant for a period of three months after the
Participant's Status Change. After the expiration of such three-month period,
all such Options and Stock Appreciation Rights shall terminate. In no event,
however, shall an Option or Stock Appreciation Right remain exercisable beyond
the latest date on which it could have been exercised without regard to this
Section 6. All Options and Stock Appreciation Rights held by a Participant at
the time of such Status Change that are not then exercisable shall terminate
upon such Status Change.
(b) All Restricted Stock held by the Participant at the time of such
Status Change shall immediately become free of all restrictions and conditions,
unless such Status Change results from a voluntary resignation or termination
for Cause (as defined in Section 6.2(d)), in which event all Restricted Stock
held by the Participant at the time of the Status Change shall be transferred to
the Company (and, in the event the certificates representing such Restricted
Stock are held by the Company, such Restricted Stock shall be so transferred
without any further action by the Participant) in accordance with Section 5.3
above.
(c) Any payment or benefit under a Deferred Stock Award, Performance
Award, or Supplemental Grant to which the Participant was not irrevocably
entitled at the time of such Status Change shall be forfeited and the Award
canceled as of the date of such Status Change.
(d) A termination by the Company of a Participant's employment with or
service to the Company shall be for "Cause" only if: (i) at least 75% of the
members of the Board determined that the Participant (A) was guilty of gross
negligence or willful misconduct in the performance of his or her duties for the
Company, or (B) breached or violated, in a material respect, any agreement
between the Participant and the Company or any of the Company's policy
statements regarding conflicts-of-interest, insider trading or confidentiality,
or (C) committed a material act of dishonesty or breach of trust; and (ii) in
the case of a Participant who is an Employee, (A) such determination was made at
a duly convened meeting of the Board with respect to which the Participant
received at least ten days prior written notice, had a reasonable opportunity to
make a statement and answer the allegations against him or her; and (B) either
(I) the Participant was given a reasonable opportunity to take remedial action
but failed or refused to do so, or (II) at least 75% of the members of the Board
also determined, at such meeting, that an opportunity to take remedial action
would not have been meaningful under the circumstances.
(e) For all purposes of this Section 6.2 and Section 6.3, (i) if a
Participant is an Employee of a subsidiary of RYKA and such subsidiary ceases to
be a subsidiary of RYKA, then the Participant's employment with the Company will
be deemed to have been terminated by the Company without Cause, unless the
Participant is transferred to RYKA or another subsidiary of RYKA; (ii) the
employment with the Company of a Participant who is an Employee will not be
deemed to have been terminated if the Participant is transferred from RYKA to a
subsidiary of RYKA, or vice versa, or from one subsidiary of RYKA to another,
and (iii) if a Participant who is an Employee terminates his or her employment
with the Company following a reduction in his or her
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rate of compensation, then the Participant's employment with the Company will be
deemed to have been terminated by the Company without Cause.
6.3 Change in Control.
(a) In the event of a Change in Control (as defined in Section 6.3(b)),
the following rules will apply, unless otherwise expressly provided by the
Committee at the time of the grant of an Award:
(1) Each outstanding Option and Stock Appreciation Right shall
automatically become exercisable in full six months after the occurrence of such
Change in Control or, if sooner, upon a termination by the Company of the
Participant's employment with or service to the Company for any reason other
than for Cause (as defined in Section 6.2(d)). This provision shall not prevent
an Option or Stock Appreciation Right from becoming exercisable sooner as to
Common Stock or cash that would otherwise have become available under such
Option or Right during such period.
(2) Each outstanding share of Restricted Stock shall automatically
become free of all restrictions and conditions six months after the occurrence
of such Change in Control or, if sooner, upon a termination by the Company of
the Participant's employment with or service to the Company for any reason other
than for Cause (as defined in Section 6.2(d)). This provision shall not prevent
the earlier lapse of any restrictions or conditions on Restricted Stock that
would otherwise have lapsed during such period.
(3) Conditions on Deferred Stock Awards, Performance Awards and
Supplemental Grants which relate only to the passage of time and continued
employment shall automatically terminate six months after the occurrence of such
Change in Control or, if sooner, upon a termination by the Company of the
Participant's employment with or service to the Company for any reason other
than for Cause (as defined in Section 6.2(d)). This provision shall not prevent
the earlier lapse of any conditions relating to the passage of time and
continued employment that would otherwise have lapsed during such period.
Performance or other conditions (other than conditions relating only to the
passage of time and continued employment) shall continue to apply unless
otherwise provided in the instrument evidencing the Awards or in any other
agreement between the Participant and the Company or unless otherwise agreed to
by the Committee.
(b) A "Change in Control" means: (i) the occurrence of an event that
would, if known to the Company's management, be required to be reported by the
Company under Item 1(a) of Form 8-K pursuant to the 1934 Act; or (ii) the
acquisition or receipt, in any manner, by any person (as defined for purposes of
the 1934 Act) or any group of persons acting in concert, of direct or indirect
beneficial ownership (as defined for purposes of the 1934 Act) of 20% or more of
the combined voting securities ordinarily having the right to vote for the
election of directors of the Company; or (iii) a change in the constituency of
the Board with the result that individuals (the "Incumbent Directors") who are
members of the Board on the Effective Date (as specified in Section 9) cease for
any reason to constitute at least a majority of the Board, provided that any
individual who is elected to the Board after the Effective Date and whose
nomination for election was unanimously approved by the Incumbent Directors
shall be considered an Incumbent Director beginning on the date of his or her
election to the Board; or (iv) the sale, exchange or other disposition of all or
a significant portion of the Company's business or assets, or the execution by
the Company of a binding agreement providing for such a transaction; unless in
any such case, at
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least a majority of the Incumbent Directors determine, prior to the occurrence
of such Change in Control, that no Change has or will have occurred.
7. GRANT AND ACCEPTANCE OF AWARDS
7.1. The Committee's approval of a grant of an Award under the Plan,
including the names of Participants and the size of the Award, including the
number of shares of Common Stock subject to the Award, shall be reflected in
minutes of meetings held by the Committee or the Board or in written consents
signed by members of the Committee or the Board. Once approved by the Committee,
each Award shall be evidenced by such written instrument, containing such terms
as are required by the Plan and such other such terms, consistent with the
provisions of the Plan, as may be approved from time to time by the Committee.
7.2. Each instrument may be in the form of agreements to be executed by
both the Participant and the Company, or certificates, letters or similar
instruments, which need not be executed by the Participant but acceptance of
which shall evidence agreement to the terms thereof. The receipt of an Award
shall not impose any obligation on the Participant to accept the Award.
7.3. Except as specifically provided by the Plan or the instrument
evidencing an Award, a Participant shall not become a stockholder of RYKA until
(a) the Participant makes any required payments in respect of the Common Stock
issued or issuable pursuant to the Award, (b) the Participant furnishes RYKA
with any required agreements, certificates, letters or other instruments, and
(c) the Participant actually receives the shares of Common Stock. Subject to any
terms and conditions imposed by the Plan or the instrument evidencing an Award,
upon the occurrence of all of the conditions set forth in the immediately
preceding sentence, a Participant shall have all rights of a stockholder with
respect Common Stock, including, But not limited to, the right to vote such
shares and to receive dividends and other distributions paid with respect to
such shares. The Committee may, upon such terms and conditions as it deems
appropriate provide that a Participant will receive a benefit in lieu of cash
dividends that would have been payable on any and all Common Stock subject to
the Participant's Award, had such Common Stock been outstanding. Without
limitation, the Committee may provide for payment to the Participant of amounts
representing such dividends, either currently or in the future, or for the
investment of such amounts on behalf of the Participant.
7.4. Notwithstanding any other provision of the Plan, the Company shall
not be obligated to deliver any shares of Common Stock pursuant to the Plan or
to remove any restriction from shares of Common Stock previously delivered under
the Plan (a) until all conditions to the Award have been satisfied or removed,
(b) until, in the opinion of counsel to the Company, all applicable Federal and
state laws and regulations have been complied with, (c) if the outstanding
Common Stock is at the time listed on any stock exchange or included for
quotation on an inter-dealer system, until the shares to be delivered have been
listed or included or authorized to be listed or included on such exchange or
system upon official notice of notice of issuance, (d) if it might cause the
Company to issue or sell more shares of Common Stock that the Company is then
legally entitled to issue or sell, and (e) until all other legal matters in
connection with the issuance and delivery of such shares have approved by
counsel to the Company. If the sale of Common Stock has not been registered
under the Securities Act of 1993, as amended, the Company may require, as a
condition to exercise of an Award, such representations or agreements as counsel
to the Company may consider appropriate to avoid violation of such Act and may
require that the
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certificates evidencing such Common Stock bear an appropriate legend restricting
transfer. If an Award is exercised by the Participant's legal representative,
the Company shall be under no obligation to deliver Common Stock pursuant to
such exercise until the Company is satisfied as to the authority of such
representative.
8. TAX WITHHOLDING
The Company shall withhold from any cash payment made pursuant to an Award
an amount sufficient to satisfy all Federal, state and local withholding tax
requirements (the "withholding requirements"). In the case of an Award pursuant
to which Common Stock may be delivered, the Committee shall have the right to
require that the Participant or other appropriate person remit to the Company an
amount sufficient to satisfy the withholding requirements, or make other
arrangements satisfactory to the Committee with regard to such requirements,
prior to the delivery of any Common Stock. If and to the extent that such
withholding is required, the Committee may permit a Participant or such other
person or entity to elect at such time and in such manner as the Committee may
determine to have the Company hold back from the shares of Common Stock to be
delivered, or to deliver to the Company, Common Stock having a value calculated
to satisfy the withholding requirement. If at the time a ISO is exercised, the
Committee determines that the Company could be liable for withholding
requirements with respect to a disposition of the Common Stock received upon
exercise, the Committee may require as a condition of exercise that the person
exercising the ISO agree (a) to inform the Company promptly of any disposition
(within the meaning of Section 424(c) of the Code) of Common Stock received upon
exercise, and (b) to give such security as the Committee deems adequate to meet
the potential liability of the Company for the withholding requirements and to
augment such security from time to time in any amount reasonably deemed
necessary by the Committee to preserve the adequacy of such security.
9. STOCKHOLDER APPROVAL, EFFECTIVE DATE AND TERM OF PLAN
The Plan was adopted by the Board on March 20, 1996, subject to the
approval of RYKA's stockholders. The Plan shall be submitted to RYKA's
stockholders for approval at RYKA's 1996 annual meeting of stockholders. If such
approval is not obtained at such meeting (or at any subsequent meeting at which
such approval is sought), then, at the discretion of the Board, this Plan may be
re-submitted to RYKA's stockholders for approval at any subsequent annual
meeting of stockholders or at any special meeting of stockholders (including a
special meeting that may be called solely for that purpose). The Plan shall not
become effective unless and until it is approved by the affirmative vote of the
holders of a majority of the outstanding shares of RYKA's Common Stock
represented and entitled to vote at a duly convened meeting of RYKA's
stockholders. If this Plan is so approved by RYKA's stockholders, then the date
of such approval shall be effective date of this Plan ("Effective Date"). No
Award shall be granted more than ten years after the Effective Date.
10. EFFECT, AMENDMENT, SUSPENSION AND TERMINATION
Neither adoption of the Plan nor the grant of Awards to a Participant will
affect the Company's right to grant to such Participant awards that are not
subject to the Plan, to issue to such Participant Common Stock as a bonus or
otherwise, or to adopt other plans or arrangements under which Common Stock may
be issued to Employees or other persons or entities. The Board reserves the
right, at any time and from time to time, to amend the Plan in any way, or to
suspend
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or terminate the Plan, effective as of the date specified by the Board when it
takes such action, which date may be before or after the date the Board takes
such action; provided that any such action shall not affect any Awards granted
before the actual date on which such action is taken by the Board; and further
provided that the approval of RYKA's stockholders shall be required whenever
necessary for the Plan to continue to satisfy the conditions of Rule 16b-3 under
the 1934 Act, Section 422 of the Code with respect to the award of ISOs (unless
the Board determines that ISOs shall no longer be granted under the Plan), any
bylaw, rule or regulation of the market system or stock exchange on which RYKA's
Common Stock is then listed or admitted to trading, or any other applicable law,
rule or regulation.
11. OTHER PROVISIONS
11.1 Nothing contained in the Plan or any Award shall confer upon any
Employee or other Participant the right to continue in the employ of, or to
continue to provide service to, the Company or any affiliated person, or
interfere in any way with the right of the Company or any affiliated person to
terminate the employment or service of any Employee or other Participant for any
reason.
11.2 Corporate action constituting an offer by RYKA of Common Stock to any
Participant under the terms of an Award shall be deemed completed as of the date
of grant of the Award, regardless of when the instrument, certificate, or letter
evidencing the Award is actually received or accepted by the Participant.
11.3 None of a Participant's rights under any Award or under the Plan may
be assigned or transferred in any manner other than by will or under the laws of
descent and distribution. The foregoing shall not, however, restrict a
Participant's rights with respect to Unrestricted Stock or the outright transfer
of cash, nor shall it restrict the ability of a Participant's heirs, estate,
beneficiaries, or personal or legal representatives to enforce the terms of the
Plan with respect to Awards granted to the Participant.
11.4 The Plan, and all Awards granted hereunder, shall be governed by and
construed in accordance with the laws of the State of Delaware. The headings of
the Sections of the Plan are for convenience of reference only and shall not
affect the interpretation of the Plan. All pronouns and similar references in
the Plan shall be construed to be of such number and gender as the context
requires or permits. If any provision of the Plan is determined to be
unenforceable for any reason, then that provision shall be deemed to have been
deleted or modified to the extent necessary to make it enforceable, and the
remaining provisions of the Plan shall be affected.
11.5 All notices with respect to the Plan shall be in writing and shall be
hand delivered or sent by certified mail or reputable overnight delivery
service, expenses prepaid. Notices to the Company or the Committee shall be
delivered or sent to RYKA's headquarters to the attention of its Chief Executive
Officer. Notices to any Participant or holder of shares of Common Stock issued
pursuant to an Award shall be sufficient if delivered or sent to such person's
address as it appears in the regular records of the Company or its transfer
agent.
11.6 If there is any change in the capitalization of the Company, such as
by stock dividend, stock split, combination of shares, exchange of securities,
recapitalization or other event which the Committee deems, in its sole
discretion, to be similar circumstances, the Committee may make such adjustments
to the number and/or kind of shares of stock or securities subject to Awards
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then outstanding or subsequently granted, any exercise prices relating to such
Awards and any other provision of such Awards affected by such change, as the
Committee may determine in its sole discretion. The Committee may also make such
adjustments to take into account material changes in law or in accounting
practices or principles, mergers, consolidations, acquisitions, dispositions or
similar corporate transactions, or any other event, as the Committee may
determine in its sole discretion.
11.7. The Committee may agree at any time, upon request of a Participant,
to defer the date on which any payment under an Award shall be made.
11.8. In any case that a Participant purchases Common Stock under an Award
for a price equal to the par value of the Common Stock, the Committee may
determine, in its sole discretion, that such price has been satisfied by past
services rendered by the Participant.
11.9. For the purposes of the Plan and any Award granted hereunder, unless
otherwise determined by the Committee, the term "fair market value" of Common
Stock on a specified date shall mean the last sale price for one share of Common
Stock on the last trading day on or before the specified date, as reported on
the Nasdaq Stock Market, or on such other market system or stock exchange on
which RYKA's Common Stock is then listed or admitted to trading, or, if the
foregoing does not apply, the market value determined by the Committee.
11.10 Except as otherwise indicated, the term "person," as used in the
Plan shall include individuals, corporations, partnerships, trusts, estates,
limited liability companies and partnerships and any other type of entity.
THE UNDERSIGNED CERTIFIES THAT THIS PLAN WAS DULY APPROVED AND ADOPTED BY
THE BOARD OF DIRECTORS OF RYKA INC. PURSUANT TO RESOLUTIONS BY UNANIMOUS WRITTEN
CONSENT DATED AS OF THE 20TH DAY OF MARCH, 1996.
/s/ Steven A. Wolf,
-----------------------------
STEVEN A. WOLF, SECRETARY
OF RYKA INC.
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