Equity Plan [2003] (2003)Full Document 

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MARCH 20, 2003




Table of Contents

Section 1. Purpose 1
Section 2. Definitions 1
Section 3. Administration 3
   (a) Power and Authority of the Committee 3
   (b)   Power and Authority of the Board 4
Section 4.   Shares Available for Awards 4
   (a) Shares Available 4
   (b) Accounting for Awards 4
   (c) Adjustments 4
   (d)   Award Limitations Under the Plan 5  
Section 5. Eligibility 5
Section 6.   Awards 5  
   (a)   Options 5  
   (b)   Stock Appreciation Rights 7  
   (c)   Restricted Stock and Restricted Stock Units 8  
   (d)   Performance Awards 8  
   (e)   Dividend Equivalents 9  
   (f)   Other Stock Grants 9  
   (g)   Other Stock-Based Awards 9  
   (h)   General 9  
Section 7.   Amendment and Termination; Adjustments 11  
   (a)   Amendments to the Plan 11  
   (b)   Amendments to Awards 11  
   (c)   Correction of Defects, Omissions and Inconsistencies 11  
Section 8.   Income Tax Withholding 11  
Section 9.   General Provisions 12  
   (a)   No Rights to Awards 12  
   (b)   Plan Provisions Control 12  
   (c)   No Rights of Stockholders 12  
   (d)   No Limit on Other Compensation Arrangements 12  
   (e)   No Right to Employment 12  
   (f)   Governing Law 13  
   (g)   Severability 13  
   (h)   No Trust or Fund Created 13  
   (i)   Other Benefits 13  


   (j)   No Fractional Shares 13  
   (k)   Headings 13  
   (l)   Section 16 Compliance; Section 162(m) Administration 13  
   (m)   Conditions Precedent to Issuance of Shares 13  
Section 10.   Effective Date of the Plan 14  
Section 11.   Term of the Plan 14  


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Section 1.    Purpose

The purpose of the Plan is to promote the interests of the Company and its stockholders by aiding the Company in attracting and retaining employees, officers, consultants, independent contractors and directors capable of assuring the future success of the Company, to offer such persons incentives to put forth maximum efforts for the success of the Company’s business and to afford such persons an opportunity to acquire a proprietary interest in the Company.

Section 2.    Definitions

As used in the Plan, the following terms shall have the meanings set forth below:

(a) “Affiliate” shall mean (i) any entity that, directly or indirectly through one or more intermediaries, is controlled by the Company and (ii) any entity in which the Company has a significant equity interest, in each case as determined by the Committee.

(b) “Award” shall mean any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Performance Award, Dividend Equivalent, Other Stock Grant or Other Stock-Based Award granted under the Plan.

(c) “Award Agreement” shall mean any written agreement, contract or other instrument or document evidencing any Award granted under the Plan. Each Award Agreement shall be subject to the applicable terms and conditions of the Plan and any other terms and conditions (not inconsistent with the Plan) determined by the Committee.

(d) “Board” shall mean the Board of Directors of the Company.

(e) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated thereunder.

(f) “Committee” shall mean a committee of Directors designated by the Board to administer the Plan, which shall initially be the Company’s compensation committee. The Committee shall be comprised of not less than such number of Directors as shall be required to permit Awards granted under the Plan to qualify under Rule 16b-3 and Section 162(m) of the Code, and each member of the Committee shall be a “Non-Employee Director.”

(g) “Company” shall mean Momentum Merger Corporation, a Delaware corporation, and any successor corporation.

(h) “Director” shall mean a member of the Board, including any Non-Employee Director.


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(i) “Dividend Equivalent” shall mean any right granted under Section 6(e) of the Plan.

(j) “Eligible Person” shall mean any employee, officer, consultant, independent contractor or director providing services to the Company or any Affiliate who the Committee determines to be an Eligible Person.

(k) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

(l) “Fair Market Value” shall mean, with respect to any property (including, without limitation, any Shares or other securities), the fair market value of such property determined by such methods or procedures as shall be established from time to time by the Committee. Notwithstanding the foregoing and unless otherwise determined by the Committee, the Fair Market Value of a Share as of a given date shall be, if the Shares are then listed on the Nasdaq National Market, the average of the high and low sales price of one Share as reported on the Nasdaq National Market on such date or, if the Nasdaq National Market is not open for trading on such date, on the most recent preceding date when it is open for trading.

(m) “Incentive Stock Option” shall mean an option granted under Section 6(a) of the Plan that is intended to qualify as an “incentive stock option” in accordance with the terms of Section 422 of the Code or any successor provision.

(n) “Non-Employee Director” shall mean any Director who is not also an employee of the Company or an Affiliate within the meaning of Rule 16b-3 and an “outside director” within the meaning of Section 162(m) of the Code.

(o) “Non-Qualified Stock Option” shall mean an option granted under Section 6(a) of the Plan that is not an Incentive Stock Option.

(p) “Option” shall mean an Incentive Stock Option or a Non-Qualified Stock Option.

(q) “Other Stock Grant” shall mean any right granted under Section 6(f) of the Plan.

(r) “Other Stock-Based Award” shall mean any right granted under Section 6(g) of the Plan.

(s) “Participant” shall mean an Eligible Person designated to be granted an Award under the Plan.

(t) “Performance Award” shall mean any right granted under Section 6(d) of the Plan.

(u) “Person” shall mean any individual or entity, including a corporation, partnership, limited liability company, association, joint venture or trust.

(v) “Plan” shall mean the 2003 Equity Plan, as amended from time to time, the provisions of which are set forth herein.

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