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Exhibit 10.16
THE MANAGEMENT NETWORK GROUP, INC.
2000 SUPPLEMENTAL STOCK PLAN
PURPOSES OF THE PLAN. THE PURPOSES OF THIS 2000 SUPPLEMENTAL STOCK PLAN ARE:
- to attract and retain the best available personnel for
positions of substantial responsibility,
- to provide additional incentive to Employees, Directors and
Consultants, and
- to promote the success of the Company's business.
Options granted under the Plan will be Nonstatutory Stock Options.
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DEFINITIONS. AS USED HEREIN, THE FOLLOWING DEFINITIONS SHALL APPLY:
"ADMINISTRATOR" MEANS THE BOARD OR ANY OF ITS COMMITTEES AS SHALL BE
ADMINISTERING THE PLAN, IN ACCORDANCE WITH SECTION 4 OF THE PLAN.
"APPLICABLE LAWS" MEANS THE REQUIREMENTS RELATING TO THE ADMINISTRATION OF STOCK
OPTION PLANS UNDER U.S. STATE CORPORATE LAWS, U.S. FEDERAL AND STATE SECURITIES
LAWS, THE CODE, ANY STOCK EXCHANGE OR QUOTATION SYSTEM ON WHICH THE COMMON STOCK
IS LISTED OR QUOTED AND THE APPLICABLE LAWS OF ANY FOREIGN COUNTRY OR
JURISDICTION WHERE OPTIONS ARE, OR WILL BE, GRANTED UNDER THE PLAN.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
"CAUSE" MEANS (i) ANY WILLFUL MATERIAL VIOLATION BY THE OPTIONEE OF ANY LAW OR
REGULATION APPLICABLE TO THE BUSINESS OF THE COMPANY OR A PARENT OR SUBSIDIARY
OF THE COMPANY, THE OPTIONEE'S CONVICTION FOR, OR GUILTY PLEA TO, A FELONY OR A
CRIME INVOLVING MORAL TURPITUDE, ANY WILLFUL PERPETRATION BY THE OPTIONEE OF A
COMMON LAW FRAUD, (ii) THE OPTIONEE'S COMMISSION OF AN ACT OF PERSONAL
DISHONESTY WHICH INVOLVES PERSONAL PROFIT IN CONNECTION WITH THE COMPANY OR ANY
OTHER ENTITY HAVING A BUSINESS RELATIONSHIP WITH THE COMPANY, (iii) ANY MATERIAL
BREACH BY THE OPTIONEE OF ANY PROVISION OF ANY AGREEMENT OR UNDERSTANDING
BETWEEN THE COMPANY, OR ANY PARENT OR SUBSIDIARY OF THE COMPANY, AND THE
OPTIONEE REGARDING THE TERMS OF THE OPTIONEE'S SERVICE AS A SERVICE PROVIDER,
INCLUDING WITHOUT LIMITATION, THE WILLFUL AND CONTINUED FAILURE OR REFUSAL OF
THE OPTIONEE TO PERFORM THE MATERIAL DUTIES REQUIRED OF SUCH OPTIONEE AS A
SERVICE PROVIDER, OTHER THAN AS A RESULT OF HAVING A DISABILITY, OR A BREACH OF
ANY APPLICABLE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT OR SIMILAR
AGREEMENT BETWEEN THE COMPANY AND THE OPTIONEE, (iv) OPTIONEE'S DISREGARD OF THE
POLICIES OF THE COMPANY OR ANY PARENT OR SUBSIDIARY OF THE COMPANY SO AS TO
CAUSE LOSS, DAMAGE OR INJURY TO THE PROPERTY, REPUTATION OR EMPLOYEES OF THE
COMPANY OR A PARENT OR SUBSIDIARY OF THE COMPANY, OR (v) ANY OTHER MISCONDUCT BY
THE OPTIONEE WHICH IS MATERIALLY INJURIOUS TO THE FINANCIAL CONDITION OR
BUSINESS REPUTATION OF, OR IS OTHERWISE MATERIALLY INJURIOUS TO, THE COMPANY OR
A PARENT OF SUBSIDIARY OF THE COMPANY.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
"COMMITTEE" MEANS A COMMITTEE OF DIRECTORS APPOINTED BY THE BOARD IN ACCORDANCE
WITH SECTION 4 OF THE PLAN.
"COMMON STOCK" MEANS THE COMMON STOCK OF THE COMPANY.
"COMPANY" MEANS THE MANAGEMENT NETWORK GROUP, INC., A DELAWARE CORPORATION.
"CONSULTANT" MEANS ANY PERSON, INCLUDING AN ADVISOR, ENGAGED BY THE COMPANY OR A
PARENT OR SUBSIDIARY TO RENDER SERVICES TO SUCH ENTITY.
"DIRECTOR" MEANS A MEMBER OF THE BOARD.
"DISABILITY" MEANS TOTAL AND PERMANENT DISABILITY AS DEFINED IN SECTION 22(e)(3)
OF THE CODE.
"EMPLOYEE" MEANS ANY PERSON, INCLUDING OFFICERS, EMPLOYED BY THE COMPANY OR ANY
PARENT OR SUBSIDIARY OF THE COMPANY. A SERVICE PROVIDER SHALL NOT CEASE TO BE AN
EMPLOYEE IN THE CASE OF (i) ANY LEAVE OF ABSENCE APPROVED BY THE COMPANY OR (ii)
TRANSFERS BETWEEN LOCATIONS OF THE COMPANY OR BETWEEN THE COMPANY, ITS PARENT,
ANY SUBSIDIARY, OR ANY SUCCESSOR. NEITHER SERVICE AS A DIRECTOR NOR PAYMENT OF A
DIRECTOR'S FEE BY THE COMPANY SHALL BE SUFFICIENT TO CONSTITUTE "EMPLOYMENT" BY
THE COMPANY.
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
"FAIR MARKET VALUE" MEANS, AS OF ANY DATE, THE VALUE OF COMMON STOCK DETERMINED
AS FOLLOWS:
If the Common Stock is listed on any established stock exchange or a national
market system, including without limitation the Nasdaq National Market or The
Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall
be the closing sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system for the last market trading day
prior to the time of determination, as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
If the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, the Fair Market Value of a Share of Common
Stock shall be the mean between the high bid and low asked prices for the Common
Stock on the last market trading day prior to the day of determination, as
reported in The Wall Street Journal or such other source as the Administrator
deems reliable;
In the absence of an established market for the Common Stock, the Fair Market
Value shall be determined in good faith by the Administrator.
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"NOTICE OF GRANT" MEANS A WRITTEN OR ELECTRONIC NOTICE EVIDENCING CERTAIN TERMS
AND CONDITIONS OF AN INDIVIDUAL OPTION GRANT. THE NOTICE OF GRANT IS PART OF THE
OPTION AGREEMENT.
"OFFICER" MEANS A PERSON WHO IS AN OFFICER OF THE COMPANY WITHIN THE MEANING OF
SECTION 16 OF THE EXCHANGE ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
"OPTION" MEANS A NONSTATUTORY STOCK OPTION GRANTED PURSUANT TO THE PLAN, THAT IS
NOT INTENDED TO QUALIFY AS AN INCENTIVE STOCK OPTION WITHIN THE MEANING OF
SECTION 422 OF THE CODE AND THE REGULATIONS PROMULGATED THEREUNDER.
"OPTION AGREEMENT" MEANS AN AGREEMENT BETWEEN THE COMPANY AND AN OPTIONEE
EVIDENCING THE TERMS AND CONDITIONS OF AN INDIVIDUAL OPTION GRANT. THE OPTION
AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS OF THE PLAN.
"OPTION EXCHANGE PROGRAM" MEANS A PROGRAM WHEREBY OUTSTANDING OPTIONS ARE
SURRENDERED IN EXCHANGE FOR OPTIONS WITH A LOWER EXERCISE PRICE.
"OPTIONED STOCK" MEANS THE COMMON STOCK SUBJECT TO AN OPTION.
"OPTIONEE" MEANS THE HOLDER OF AN OUTSTANDING OPTION GRANTED UNDER THE PLAN.
"PARENT" MEANS A "PARENT CORPORATION," WHETHER NOW OR HEREAFTER EXISTING, AS
DEFINED IN SECTION 424(e) OF THE CODE.
"PLAN" MEANS THIS 2000 SUPPLEMENTAL STOCK PLAN.
"SERVICE PROVIDER" MEANS AN EMPLOYEE INCLUDING AN OFFICER, CONSULTANT OR
DIRECTOR.
"SHARE" MEANS A SHARE OF THE COMMON STOCK, AS ADJUSTED IN ACCORDANCE WITH
SECTION 12 OF THE PLAN.
"SUBSIDIARY" MEANS A "SUBSIDIARY CORPORATION," WHETHER NOW OR HEREAFTER
EXISTING, AS DEFINED IN SECTION 424(f) OF THE CODE.
STOCK SUBJECT TO THE PLAN. SUBJECT TO THE PROVISIONS OF SECTION 12 OF THE PLAN,
THE MAXIMUM AGGREGATE NUMBER OF SHARES WHICH MAY BE OPTIONED AND SOLD UNDER THE
PLAN IS ONE MILLION (1,000,000) SHARES. THE SHARES MAY BE AUTHORIZED, BUT
UNISSUED, OR REACQUIRED COMMON STOCK.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an Option Exchange Program, the
unpurchased Shares which were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has terminated).
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ADMINISTRATION OF THE PLAN.
ADMINISTRATION. THE PLAN SHALL BE ADMINISTERED BY (i) THE BOARD OR (ii) A
COMMITTEE, WHICH COMMITTEE SHALL BE CONSTITUTED TO SATISFY APPLICABLE LAWS.
POWERS OF THE ADMINISTRATOR. SUBJECT TO THE PROVISIONS OF THE PLAN, AND IN THE
CASE OF A COMMITTEE, SUBJECT TO THE SPECIFIC DUTIES DELEGATED BY THE BOARD TO
SUCH COMMITTEE, THE ADMINISTRATOR SHALL HAVE THE AUTHORITY, IN ITS DISCRETION:
to determine the Fair Market Value of the Common Stock;
to select the Service Providers to whom Options may be granted hereunder;
to determine whether and to what extent Options are granted hereunder;
to determine the number of shares of Common Stock to be covered by each Option
granted hereunder;
to approve forms of agreement for use under the Plan;
to determine the terms and conditions, not inconsistent with the terms of the
Plan, of any award granted hereunder. Such terms and conditions include, but are
not limited to, the exercise price, the time or times when Options may be
exercised (which may be based on performance criteria), any vesting acceleration
or waiver of forfeiture restrictions, and any restriction or limitation
regarding any Option or the shares of Common Stock relating thereto, based in
each case on such factors as the Administrator, in its sole discretion, shall
determine;
to reduce the exercise price of any Option to the then current Fair Market Value
if the Fair Market Value of the Common Stock covered by such Option shall have
declined since the date the Option was granted;
to institute an Option Exchange Program;
to construe and interpret the terms of the Plan and awards granted pursuant to
the Plan;
to prescribe, amend and rescind rules and regulations relating to the Plan,
including rules and regulations relating to sub-plans established for the
purpose of qualifying for preferred tax treatment under foreign tax laws;
to modify or amend each Option (subject to Section 14(b) of the Plan), including
the discretionary authority to extend the post-termination exercisability period
of Options longer than is otherwise provided for in the Plan;
to authorize any person to execute on behalf of the Company any instrument
required to effect the grant of an Option previously granted by the
Administrator;
to determine the terms and restrictions applicable to Options;
to allow Optionees to satisfy withholding tax obligations by electing to have
the Company withhold from the Shares to be issued upon exercise of an Option
that number of Shares having a Fair Market Value equal to the amount required to
be withheld. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be
determined. All elections by an Optionee to have Shares withheld for this
purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable; and
to make all other determinations deemed necessary or advisable for administering
the Plan.
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EFFECT OF ADMINISTRATOR'S DECISION. THE ADMINISTRATOR'S DECISIONS,
DETERMINATIONS AND INTERPRETATIONS SHALL BE FINAL AND BINDING ON ALL OPTIONEES
AND ANY OTHER HOLDERS OF OPTIONS.
ELIGIBILITY. OPTIONS MAY BE GRANTED TO SERVICE PROVIDERS; PROVIDED, HOWEVER,
THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE PLAN, OPTIONS MAY
NOT BE GRANTED TO OFFICERS AND DIRECTORS.
LIMITATION. NEITHER THE PLAN NOR ANY OPTION SHALL CONFER UPON AN OPTIONEE ANY
RIGHT WITH RESPECT TO CONTINUING THE OPTIONEE'S RELATIONSHIP AS A SERVICE
PROVIDER WITH THE COMPANY, NOR SHALL THEY INTERFERE IN ANY WAY WITH THE
OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE SUCH RELATIONSHIP AT ANY
TIME, WITH OR WITHOUT CAUSE.
TERM OF PLAN. THE PLAN SHALL BECOME EFFECTIVE UPON ITS ADOPTION BY THE BOARD. IT
SHALL CONTINUE IN EFFECT FOR TEN (10) YEARS, UNLESS SOONER TERMINATED UNDER
SECTION 14 OF THE PLAN.
TERM OF OPTION. THE TERM OF EACH OPTION SHALL BE STATED IN THE OPTION AGREEMENT.
OPTION EXERCISE PRICE AND CONSIDERATION.
EXERCISE PRICE. THE PER SHARE EXERCISE PRICE FOR THE SHARES TO BE ISSUED
PURSUANT TO EXERCISE OF AN OPTION SHALL BE DETERMINED BY THE ADMINISTRATOR.
WAITING PERIOD AND EXERCISE DATES. AT THE TIME AN OPTION IS GRANTED, THE
ADMINISTRATOR SHALL FIX THE PERIOD WITHIN WHICH THE OPTION MAY BE EXERCISED AND
SHALL DETERMINE ANY CONDITIONS WHICH MUST BE SATISFIED BEFORE THE OPTION MAY BE
EXERCISED.
FORM OF CONSIDERATION. THE ADMINISTRATOR SHALL DETERMINE THE ACCEPTABLE FORM OF
CONSIDERATION FOR EXERCISING AN OPTION, INCLUDING THE METHOD OF PAYMENT. SUCH
CONSIDERATION MAY CONSIST ENTIRELY OF:
cash;
check;
promissory note;
other Shares which (A) in the case of Shares acquired upon exercise of an
option, have been owned by the Optionee for more than six months on the date of
surrender, and (B) have a Fair Market Value on the date of surrender equal to
the aggregate exercise price of the Shares as to which said Option shall be
exercised;
consideration received by the Company under a cashless exercise program
implemented by the Company in connection with the Plan;
a reduction in the amount of any Company liability to the Optionee, including
any liability attributable to the Optionee's participation in any
Company-sponsored deferred compensation program or arrangement;
such other consideration and method of payment for the issuance of Shares to the
extent permitted by Applicable Laws; or
any combination of the foregoing methods of payment.
EXERCISE OF OPTION.
PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. ANY OPTION GRANTED HEREUNDER
SHALL BE EXERCISABLE ACCORDING TO THE TERMS OF THE PLAN AND AT SUCH TIMES AND
UNDER SUCH CONDITIONS AS DETERMINED BY THE ADMINISTRATOR AND SET FORTH IN THE
OPTION AGREEMENT. UNLESS THE ADMINISTRATOR PROVIDES OTHERWISE, VESTING OF
OPTIONS GRANTED HEREUNDER SHALL BE TOLLED DURING ANY UNPAID LEAVE OF ABSENCE. AN
OPTION MAY NOT BE EXERCISED FOR A FRACTION OF A SHARE.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued, except as
provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
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TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER. IF AN OPTIONEE CEASES TO BE A
SERVICE PROVIDER FOR ANY REASON OTHER THAN THE OPTIONEE'S DEATH, DISABILITY OR
TERMINATION OF SERVICE FOR CAUSE (BUT NOT IN THE EVENT OF AN OPTIONEE'S CHANGE
OF STATUS FROM EMPLOYEE TO CONSULTANT OR FROM CONSULTANT TO EMPLOYEE), SUCH
OPTIONEE MAY , BUT ONLY WITHIN SUCH PERIOD OF TIME AS IS DETERMINED BY THE
ADMINISTRATOR, OF AT LEAST THIRTY (30) DAYS, (BUT IN NO EVENT LATER THAN THE
EXPIRATION DATE OF THE TERM OF SUCH OPTION AS SET FORTH IN THE OPTION
AGREEMENT), EXERCISE HIS OR HER OPTION TO THE EXTENT THAT THE OPTIONEE WAS
ENTITLED TO EXERCISE IT AT THE DATE OF SUCH TERMINATION. IN THE ABSENCE OF A
SPECIFIED TIME IN THE OPTION AGREEMENT, THE OPTION SHALL REMAIN EXERCISABLE FOR
THREE (3) MONTHS FOLLOWING THE OPTIONEE'S TERMINATION. IF, ON THE DATE OF
TERMINATION, THE OPTIONEE IS NOT VESTED AS TO HIS OR HER ENTIRE OPTION, THE
SHARES COVERED BY THE UNVESTED PORTION OF THE OPTION SHALL REVERT TO THE PLAN.
IF, AFTER TERMINATION, THE OPTIONEE DOES NOT EXERCISE HIS OR HER OPTION WITHIN
THE TIME SPECIFIED BY THE ADMINISTRATOR, THE OPTION SHALL TERMINATE, AND THE
SHARES COVERED BY SUCH OPTION SHALL REVERT TO THE PLAN.
DISABILITY OF OPTIONEE. IF AN OPTIONEE CEASES TO BE A SERVICE PROVIDER AS A
RESULT OF THE OPTIONEE'S DISABILITY, THE OPTIONEE MAY EXERCISE HIS OR HER OPTION
WITHIN SUCH PERIOD OF TIME AS IS SPECIFIED IN THE OPTION AGREEMENT, TO THE
EXTENT THE OPTION IS VESTED ON THE DATE OF TERMINATION (BUT IN NO EVENT LATER
THAN THE EXPIRATION OF THE TERM OF SUCH OPTION AS SET FORTH IN THE OPTION
AGREEMENT). IN THE ABSENCE OF A SPECIFIED TIME IN THE OPTION AGREEMENT, THE
OPTION SHALL REMAIN EXERCISABLE FOR TWELVE (12) MONTHS FOLLOWING THE OPTIONEE'S
TERMINATION. IF, ON THE DATE OF TERMINATION, THE OPTIONEE IS NOT VESTED AS TO
HIS OR HER ENTIRE OPTION, THE SHARES COVERED BY THE UNVESTED PORTION OF THE
OPTION SHALL REVERT TO THE PLAN. IF, AFTER TERMINATION, THE OPTIONEE DOES NOT
EXERCISE HIS OR HER OPTION WITHIN THE TIME SPECIFIED HEREIN, THE OPTION SHALL
TERMINATE, AND THE SHARES COVERED BY SUCH OPTION SHALL REVERT TO THE PLAN.
DEATH OF OPTIONEE. IF AN OPTIONEE DIES WHILE A SERVICE PROVIDER, THE OPTION MAY
BE EXERCISED WITHIN SUCH PERIOD OF TIME AS IS SPECIFIED IN THE OPTION AGREEMENT
(BUT IN NO EVENT LATER THAN THE EXPIRATION OF THE TERM OF SUCH OPTION AS SET
FORTH IN THE NOTICE OF GRANT), BY THE OPTIONEE'S ESTATE OR BY A PERSON WHO
ACQUIRES THE RIGHT TO EXERCISE THE OPTION BY BEQUEST OR INHERITANCE, BUT ONLY TO
THE EXTENT THAT THE OPTION IS VESTED ON THE DATE OF DEATH. IN THE ABSENCE OF A
SPECIFIED TIME IN THE OPTION AGREEMENT, THE OPTION SHALL REMAIN EXERCISABLE FOR
TWELVE (12) MONTHS FOLLOWING THE OPTIONEE'S TERMINATION. IF, AT THE TIME OF
DEATH, THE OPTIONEE IS NOT VESTED AS TO HIS OR HER ENTIRE OPTION, THE SHARES
COVERED BY THE UNVESTED PORTION OF THE OPTION SHALL IMMEDIATELY REVERT TO THE
PLAN. THE OPTION MAY BE EXERCISED BY THE EXECUTOR OR ADMINISTRATOR OF THE
OPTIONEE'S ESTATE OR, IF NONE, BY THE PERSON(s) ENTITLED TO EXERCISE THE OPTION
UNDER THE OPTIONEE'S WILL OR THE LAWS OF DESCENT OR DISTRIBUTION. IF THE OPTION
IS NOT SO EXERCISED WITHIN THE TIME SPECIFIED HEREIN, THE OPTION SHALL
TERMINATE, AND THE SHARES COVERED BY SUCH OPTION SHALL REVERT TO THE PLAN.
(e) Termination for Cause. If the Optionee is terminated for Cause,
then Optionee's Option shall expire on such Optionee's termination
date or such later time and on such conditions as are determined by
the Administrator
(f) BUYOUT PROVISIONS. THE ADMINISTRATOR MAY AT ANY TIME OFFER TO BUY
OUT FOR A PAYMENT IN CASH OR SHARES, AN OPTION PREVIOUSLY GRANTED
BASED ON SUCH TERMS AND CONDITIONS AS THE ADMINISTRATOR SHALL
ESTABLISH AND COMMUNICATE TO THE OPTIONEE AT THE TIME THAT SUCH OFFER
IS MADE.
NON-TRANSFERABILITY OF OPTIONS. UNLESS DETERMINED OTHERWISE BY THE
ADMINISTRATOR, AN OPTION MAY NOT BE SOLD, PLEDGED, ASSIGNED, HYPOTHECATED,
TRANSFERRED, OR DISPOSED OF IN ANY MANNER OTHER THAN BY WILL OR BY THE LAWS OF
DESCENT OR DISTRIBUTION AND MAY BE EXERCISED, DURING THE LIFETIME OF THE
OPTIONEE, ONLY BY THE OPTIONEE. IF THE ADMINISTRATOR MAKES AN OPTION
TRANSFERABLE, SUCH OPTION SHALL CONTAIN SUCH ADDITIONAL TERMS AND CONDITIONS AS
THE ADMINISTRATOR DEEMS APPROPRIATE.
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR ASSET SALE.
CHANGES IN CAPITALIZATION. SUBJECT TO ANY REQUIRED ACTION BY THE SHAREHOLDERS OF
THE COMPANY, THE NUMBER OF SHARES OF COMMON STOCK COVERED BY EACH OUTSTANDING
OPTION, AND THE NUMBER OF SHARES OF COMMON STOCK WHICH HAVE BEEN AUTHORIZED FOR
ISSUANCE UNDER THE PLAN BUT AS TO WHICH NO OPTIONS HAVE YET BEEN GRANTED OR
WHICH HAVE BEEN RETURNED TO THE PLAN UPON CANCELLATION OR EXPIRATION OF AN
OPTION, AS WELL AS THE PRICE PER SHARE OF COMMON STOCK COVERED BY EACH SUCH
OUTSTANDING OPTION, SHALL BE PROPORTIONATELY ADJUSTED FOR ANY INCREASE OR
DECREASE IN THE NUMBER OF ISSUED SHARES OF COMMON STOCK RESULTING FROM A STOCK
SPLIT, REVERSE STOCK SPLIT, STOCK DIVIDEND, COMBINATION OR RECLASSIFICATION OF
THE COMMON STOCK, OR ANY OTHER INCREASE OR DECREASE IN THE NUMBER OF ISSUED
SHARES OF COMMON STOCK EFFECTED WITHOUT RECEIPT OF CONSIDERATION BY THE COMPANY;
PROVIDED, HOWEVER, THAT CONVERSION OF ANY CONVERTIBLE SECURITIES OF THE COMPANY
SHALL NOT BE DEEMED TO HAVE BEEN "EFFECTED WITHOUT RECEIPT OF CONSIDERATION."
SUCH ADJUSTMENT SHALL BE MADE BY THE BOARD, WHOSE DETERMINATION IN THAT RESPECT
SHALL BE FINAL, BINDING AND CONCLUSIVE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NO
ISSUANCE BY THE COMPANY OF SHARES OF STOCK OF ANY CLASS, OR SECURITIES
CONVERTIBLE INTO SHARES OF STOCK OF ANY CLASS, SHALL AFFECT, AND NO ADJUSTMENT
BY REASON THEREOF SHALL BE MADE WITH RESPECT TO, THE NUMBER OR PRICE OF SHARES
OF COMMON STOCK SUBJECT TO AN OPTION.
DISSOLUTION, LIQUIDATION, MERGER OR ASSET SALE. SUBJECT TO THE THIRD SENTENCE OF
THIS SECTION 13(b), IN THE EVENT OF THE PROPOSED DISSOLUTION OR LIQUIDATION OF
THE COMPANY OR A MERGER OF THE COMPANY WITH OR INTO ANOTHER CORPORATION, OR THE
SALE OF SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY, EACH OUTSTANDING OPTION
SHALL BE ASSUMED OR AN EQUIVALENT OPTION OR RIGHT SUBSTITUTED BY THE SUCCESSOR
CORPORATION OR A PARENT OR SUBSIDIARY OF THE SUCCESSOR CORPORATION.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT A OPTIONEE CEASES TO BE A
SERVICE PROVIDER FOR ANY REASON OTHER THAN CAUSE (INCLUDING A VOLUNTARY
RESIGNATION) WITHIN SIX (6) MONTHS OF THE CONSUMMATION OF A TRANSACTION
DESCRIBED IN THIS SECTION 13(b) PURSUANT TO WHICH OUTSTANDING OPTIONS ARE
ASSUMED OR SUBSTITUTED AS PROVIDED ABOVE, THE VESTING AND EXERCISABILITY OF EACH
OUTSTANDING OPTION SHALL BE AUTOMATICALLY ACCELERATED AS TO 50% OF THE UNVESTED
SHARES OF OPTIONAL STOCK SUBJECT TO THE OPTION ON THE DATE OF SUCH OPTIONEE'S
TERMINATION. NOTWITHSTANDING THE FOREGOING, (i) IN THE EVENT THAT THE SUCCESSOR
CORPORATION REFUSES TO ASSUME OR SUBSTITUTE FOR THE OPTION, AND (ii) IN THE CASE
OF AN OPTION GRANTED TO A SERVICE PROVIDER WHO IS A CONSULTANT AT THE TIME SUCH
OPTION IS GRANTED, THE OPTIONEE SHALL FULLY VEST IN AND HAVE THE RIGHT TO
EXERCISE THE OPTION AS TO ALL OF THE OPTIONED STOCK, INCLUDING SHARES AS TO
WHICH IT WOULD NOT OTHERWISE BE VESTED OR EXERCISABLE. IF AN OPTION BECOMES
FULLY VESTED AND EXERCISABLE IN ACCORDANCE WITH THE FOREGOING SENTENCE, THE
ADMINISTRATOR SHALL NOTIFY THE OPTIONEE IN WRITING OR ELECTRONICALLY THAT THE
OPTION SHALL BE FULLY VESTED AND EXERCISABLE FOR A PERIOD OF FIFTEEN (15) DAYS
FROM THE DATE OF SUCH NOTICE, AND THE OPTION SHALL TERMINATE UPON THE EXPIRATION
OF SUCH PERIOD. FOR THE PURPOSES OF THIS SECTION, THE OPTION SHALL BE CONSIDERED
ASSUMED IF, FOLLOWING THE DISSOLUTION, LIQUIDATION, MERGER OR SALE OF ASSETS,
THE OPTION OR RIGHT CONFERS THE RIGHT TO PURCHASE OR RECEIVE, FOR EACH SHARE OF
OPTIONED STOCK SUBJECT TO THE OPTION IMMEDIATELY PRIOR TO THE MERGER OR SALE OF
ASSETS, THE CONSIDERATION
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(WHETHER STOCK, CASH, OR OTHER SECURITIES OR PROPERTY) RECEIVED IN THE
DISSOLUTION, LIQUIDATION, MERGER OR SALE OF ASSETS BY HOLDERS OF COMMON STOCK
FOR EACH SHARE HELD ON THE EFFECTIVE DATE OF THE TRANSACTION (AND IF HOLDERS
WERE OFFERED A CHOICE OF CONSIDERATION, THE TYPE OF CONSIDERATION CHOSEN BY THE
HOLDERS OF A MAJORITY OF THE OUTSTANDING SHARES); PROVIDED, HOWEVER, THAT IF
SUCH CONSIDERATION RECEIVED IN THE DISSOLUTION, LIQUIDATION, MERGER OR SALE OF
ASSETS IS NOT SOLELY COMMON STOCK OF THE SUCCESSOR CORPORATION OR ITS PARENT,
THE ADMINISTRATOR MAY, WITH THE CONSENT OF THE SUCCESSOR CORPORATION, PROVIDE
FOR THE CONSIDERATION TO BE RECEIVED UPON THE EXERCISE OF THE OPTION, FOR EACH
SHARE OF OPTIONED STOCK SUBJECT TO THE OPTION, TO BE SOLELY COMMON STOCK OF THE
SUCCESSOR CORPORATION OR ITS PARENT EQUAL IN FAIR MARKET VALUE TO THE PER SHARE
CONSIDERATION RECEIVED BY HOLDERS OF COMMON STOCK IN THE DISSOLUTION,
LIQUIDATION, MERGER OR SALE OF ASSETS.
OTHER TREATMENT OF OPTIONS. SUBJECT TO ANY GREATER RIGHTS GRANTED TO OPTIONEES
UNDER THE FOREGOING PROVISIONS OF THIS SECTION 13, IN THE EVENT OF THE
OCCURRENCE OF ANY TRANSACTION DESCRIBED IN SECTION 13 HEREOF, ANY OUTSTANDING
OPTIONS WILL BE TREATED AS PROVIDED IN THE APPLICABLE AGREEMENT OR PLAN OF
MERGER, CONSOLIDATION, DISSOLUTION, LIQUIDATION OR SALE OF ASSETS.
DATE OF GRANT. THE DATE OF GRANT OF AN OPTION SHALL BE, FOR ALL PURPOSES, THE
DATE ON WHICH THE ADMINISTRATOR MAKES THE DETERMINATION GRANTING SUCH OPTION, OR
SUCH OTHER LATER DATE AS IS DETERMINED BY THE ADMINISTRATOR. NOTICE OF THE
DETERMINATION SHALL BE PROVIDED TO EACH OPTIONEE WITHIN A REASONABLE TIME AFTER
THE DATE OF SUCH GRANT.
AMENDMENT AND TERMINATION OF THE PLAN.
AMENDMENT AND TERMINATION. THE BOARD MAY AT ANY TIME AMEND, ALTER, SUSPEND OR
TERMINATE THE PLAN.
EFFECT OF AMENDMENT OR TERMINATION. NO AMENDMENT, ALTERATION, SUSPENSION OR
TERMINATION OF THE PLAN SHALL IMPAIR THE RIGHTS OF ANY OPTIONEE, UNLESS MUTUALLY
AGREED OTHERWISE BETWEEN THE OPTIONEE AND THE ADMINISTRATOR, WHICH AGREEMENT
MUST BE IN WRITING AND SIGNED BY THE OPTIONEE AND THE COMPANY. TERMINATION OF
THE PLAN SHALL NOT AFFECT THE ADMINISTRATOR'S ABILITY TO EXERCISE THE POWERS
GRANTED TO IT HEREUNDER WITH RESPECT TO OPTIONS GRANTED UNDER THE PLAN PRIOR TO
THE DATE OF SUCH TERMINATION.
CONDITIONS UPON ISSUANCE OF SHARES.
LEGAL COMPLIANCE. SHARES SHALL NOT BE ISSUED PURSUANT TO THE EXERCISE OF AN
OPTION UNLESS THE EXERCISE OF SUCH OPTION AND THE ISSUANCE AND DELIVERY OF SUCH
SHARES SHALL COMPLY WITH APPLICABLE LAWS AND SHALL BE FURTHER SUBJECT TO THE
APPROVAL OF COUNSEL FOR THE COMPANY WITH RESPECT TO SUCH COMPLIANCE.
INVESTMENT REPRESENTATIONS. AS A CONDITION TO THE EXERCISE OF AN OPTION THE
COMPANY MAY REQUIRE THE PERSON EXERCISING SUCH OPTION TO REPRESENT AND WARRANT
AT THE TIME OF ANY SUCH EXERCISE THAT THE SHARES ARE BEING PURCHASED ONLY FOR
INVESTMENT AND WITHOUT ANY PRESENT INTENTION TO SELL OR DISTRIBUTE SUCH SHARES
IF, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH A REPRESENTATION IS
REQUIRED.
INABILITY TO OBTAIN AUTHORITY. THE INABILITY OF THE COMPANY TO OBTAIN AUTHORITY
FROM ANY REGULATORY BODY HAVING JURISDICTION, WHICH AUTHORITY IS DEEMED BY THE
COMPANY'S 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.
RESERVATION OF SHARES. THE COMPANY, DURING THE TERM OF THIS PLAN, WILL AT ALL
TIMES RESERVE AND KEEP AVAILABLE SUCH NUMBER OF SHARES AS SHALL BE SUFFICIENT TO
SATISFY THE REQUIREMENTS OF THE PLAN.
8
THE MANAGEMENT NETWORK GROUP, INC.
2000 SUPPLEMENTAL STOCK PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Option Agreement.
1. NOTICE OF STOCK OPTION GRANT
[OPTIONEE'S NAME AND ADDRESS]
You have been granted an option to purchase Common Stock of the Company, subject
to the terms and conditions of the Plan and this Option Agreement, as follows:
Grant Number
-----------------------------------
Date of Grant
-----------------------------------
Vesting Commencement Date
-----------------------------------
Exercise Price per Share $
-----------------------------------
Total Number of Shares Granted
-----------------------------------
Total Exercise Price $
-----------------------------------
Type of Option: Nonstatutory Stock Option
Term/Expiration Date:
-----------------------------------
Vesting Schedule:
Subject to the Optionee continuing to be a Service Provider on such dates, this
Option shall vest and become exercisable in accordance with the following
schedule:
9
25% of the Shares subject to the Option shall vest twelve months after
the Vesting Commencement Date, 25% of the Shares subject to the Option shall
vest twenty-four months after the Vesting Commencement Date, 25% of the Shares
subject to the Option shall vest thirty-six months after the Vesting
Commencement Date and 25% of the Shares subject to the Option shall vest
forty-eight months after the Vesting Commencement, subject to the Optionee
continuing to be a Service Provider on such dates.
Termination Period:
This Option may be exercised for three months after Optionee ceases to
be a Service Provider. Upon the death or Disability of the Optionee, this Option
may be exercised for such longer period as provided in the Plan. In no event
shall this Option be exercised later than the Term/Expiration Date as provided
above.
2. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee") an option (the "Option") to purchase the number of
Shares, as set forth in the Notice of Grant, at the exercise price per share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the Plan, which is incorporated herein by reference. Subject to
Section 14(b) of the Plan, in the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Option Agreement,
the terms and conditions of the Plan shall prevail.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term
in accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of
an exercise notice, in the form attached as Exhibit A (the "Exercise Notice"),
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised (the "Exercised Shares"), and
such other representations and agreements as may be required by the Company
pursuant to the provisions of the Plan. The Exercise Notice shall be completed
by the Optionee and delivered to the Company. The Exercise Notice shall be
accompanied by payment of the aggregate Exercise Price as to all Exercised
Shares. This Option shall be deemed to be exercised upon receipt by the Company
of such fully executed Exercise Notice accompanied by such aggregate Exercise
Price.
No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Exercised Shares shall be considered
transferred to the Optionee on the date the Option is exercised with respect to
such Exercised Shares.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash;
(b) check;
(c) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan.
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by the Optionee. The terms
of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
6. Tax Consequences. Some of the federal tax consequences relating to
this Option, as of the date of this Option, are set forth below. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.
(a) Exercising the Option. The Optionee may incur regular federal
income tax liability upon exercise of an NSO. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the Fair Market Value of the Exercised Shares on the
date of exercise over their aggregate Exercise Price. If the Optionee is an
Employee or a former Employee, the Company will be required to withhold from his
or her compensation or collect from Optionee and pay to the applicable
10
taxing authorities an amount in cash equal to a percentage of this compensation
income at the time of exercise, and may refuse to honor the exercise and refuse
to deliver Shares if such withholding amounts are not delivered at the time of
exercise.
(b) Disposition of Shares. If the Optionee holds NSO Shares for
at least one year, any gain realized on disposition of the Shares will be
treated as long-term capital gain for federal income tax purposes.
7. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this Option Agreement constitute the entire agreement of
the parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Optionee. This agreement is governed by the internal substantive laws, but not
the choice of law rules, of Kansas.
8. NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
By your signature and the signature of the Company's representative below, you
and the Company agree that this Option is granted under and governed by the
terms and conditions of the Plan and this Option Agreement. Optionee has
reviewed the Plan and this Option Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Option
Agreement and fully understands all provisions of the Plan and Option Agreement.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions relating to the Plan
and Option Agreement. Optionee further agrees to notify the Company upon any
change in the residence address indicated below.
OPTIONEE THE MANAGEMENT NETWORK
GROUP, INC.
- ----------------------------------- -----------------------------------
Signature By
- ----------------------------------- -----------------------------------
Print Name Title
- -----------------------------------
Residence Address
- -----------------------------------
11
EXHIBIT A
THE MANAGEMENT NETWORK GROUP, INC.
2000 SUPPLEMENTAL STOCK PLAN
EXERCISE NOTICE
THE MANAGEMENT NETWORK GROUP, INC.
7300 College Blvd.
Suite 302
Overland Park, Kansas 66210
1. Exercise of Option. Effective as of today, ________________, _____,
the undersigned ("Purchaser") hereby elects to purchase ______________ shares
(the "Shares") of the Common Stock of The Management Network Group, Inc. (the
"Company") under and pursuant to the 2000 Supplemental Stock Plan (the "Plan")
and the Stock Option Agreement dated, _________, ___ (the "Option Agreement").
The purchase price for the Shares shall be $_____, as required by the Option
Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full purchase price for the Shares.
3. Representations of Purchaser. Purchaser acknowledges that Purchaser
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Shares so acquired shall
be issued to the Optionee as soon as practicable after exercise of the Option.
No adjustment will be made for a dividend or other right for which the record
date is prior to the date of issuance, except as provided in Section 12 of the
Plan.
5. Tax Consultation. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser's interest except by
means of a writing signed by the Company and Purchaser. This agreement is
governed by the internal substantive laws, but not the choice
7. of law rules, of Kansas.
Submitted by: Accepted by:
PURCHASER THE MANAGEMENT NETWORK GROUP,
INC.
- ----------------------------------- -----------------------------------
Signature By
- ----------------------------------- -----------------------------------
Print Name Title
-----------------------------------
Date Received
Address: Address:
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