Exhibit
4.4
Web.com
Group, Inc.
2009
Inducement Award Plan
Approved
By Board on: April 16, 2009
Termination
Date: April 16, 2019
1.
General
.
(a)
Eligible Award
Recipients.
The persons eligible to receive Options are
certain Eligible Employees.
(b)
Available
Awards.
The Plan provides for the grant of
Options.
(c)
General
Purpose.
The Company, by means of the Plan, seeks to secure
the services of the group of persons eligible to receive Options as set forth in
Section
1(a)
,
to provide incentives for such persons to exert maximum efforts for the success
of the Company and any Affiliate and to provide a means by which such eligible
recipients may be given an opportunity to benefit from increases in value of the
Common Stock through the granting of Options.
2.
Administration.
(a)
Administration by
Board.
The Board shall administer the Plan unless and until
the Board delegates administration of the Plan to a Committee or Committees, as
provided in
Section
2(c).
(b)
Powers of
Board.
The Board shall have the power, subject to, and within
the limitations of, the express provisions of the Plan:
(i)
To
determine from time to time (A) which of the persons eligible under the Plan
shall be granted Options; (B) when and how each Option shall be granted; (C)
what type or combination of types of Options shall be granted; (D) the
provisions of each Option granted (which need not be identical), including the
time or times when a person shall be permitted to receive cash or Common Stock
pursuant to an Option; and (E) the number of shares of Common Stock with respect
to which an Option shall be granted to each such person.
(ii)
To
construe and interpret the Plan and Options, and to establish, amend and revoke
rules and regulations for the Plan’s administration. The Board, in
the exercise of this power, may correct any defect, omission or inconsistency in
the Plan or in any Option Agreement in a manner and to the extent it shall deem
necessary or expedient to make the Plan or Award fully effective.
(iii)
To
settle all controversies regarding the Plan and Options.
(iv)
To
accelerate the time at which an Option may first be exercised or the time during
which an Option or any part thereof will vest in accordance with the Plan,
notwithstanding the provisions in the Option Agreement stating the time at which
it may first be exercised or the time during which it will vest.
(v)
To suspend or terminate the Plan at any time. Suspension or
termination of the Plan shall not impair rights and obligations under any
Options granted while the Plan is in effect except with the written consent of
the affected Participant.
(vi)
To
amend the Plan in any respect the Board deems necessary or advisable, including,
without limitation, relating to certain nonqualified deferred compensation under
Section 409A of the Code and to bring the Plan and/or Option into compliance
therewith, subject to the limitations, if any, of applicable law. However,
except as provided in Section
8(a)
relating to Capitalization Adjustments, stockholder approval shall be required
for any amendment of the Plan that either (A) materially increases the number of
shares of Common Stock available for issuance under the Plan, (B) materially
expands the class of individuals eligible to receive Options under the Plan, (C)
materially increases the benefits accruing to Participants under the Plan or
materially reduces the price at which shares of Common Stock may be issued or
purchased under the Plan, (D) materially extends the term of the Plan, or (E)
expands the types of Options available for issuance under the Plan, but only to
the extent required by applicable law or listing requirements. Except as
provided above, rights under any Option granted before amendment of the Plan
shall not be impaired by any amendment of the Plan unless (1) the Company
requests the consent of the affected Participant, and (2) such Participant
consents in writing.
(vii)
To
approve forms of Option Agreements for use under the Plan and to amend the terms
of any one or more Option, including, but not limited to, amendments to provide
terms more favorable to the Participant than previously provided in the Option
Agreement, subject to any specified limits in the Plan that are not subject to
Board discretion;
provided
however,
that the Participant’s rights under any Option shall not be
impaired by any such amendment unless (A) the Company requests the consent of
the affected Participant, and (B) such Participant consents in
writing.
(viii)
Generally,
to exercise such powers and to perform such acts as the Board deems necessary or
expedient to promote the best interests of the Company and that are not in
conflict with the provisions of the Plan or Options.
(ix)
To
adopt such procedures and sub-plans as are necessary or appropriate to permit
participation in the Plan by Eligible Employees who are foreign nationals or
employed outside the United States.
(c) Delegation
to Committee.
(i)
General.
The Board
may delegate some or all of the administration of the Plan to a Committee or
Committees. If administration of the Plan is delegated to a
Committee, the Committee shall have, in connection with the administration of
the Plan, the powers theretofore possessed by the Board that have been delegated
to the Committee, including the power to delegate to a subcommittee of the
Committee any of the administrative powers the Committee is authorized to
exercise (and references in this Plan to the Board shall thereafter be to the
Committee or subcommittee), subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board. The Board may retain the authority to concurrently
administer the Plan with the Committee and may, at any time, revest in the Board
some or all of the powers previously delegated to the Committee, Committees,
subcommittee or subcommittees.
(ii)
Section 162(m) and Rule 16b-3
Compliance.
In the sole discretion of the Board, the Committee
may consist solely of two (2) or more Outside Directors, in accordance with
Section 162(m) of the Code, or solely of two (2) or more Non-Employee Directors,
in accordance with Rule 16b-3. In addition, the Board or the
Committee, in its sole discretion, may (A) delegate to a Committee which need
not consist of Outside Directors the authority to grant Options to eligible
persons who are either (1) not then Covered Employees and are not expected to be
Covered Employees at the time of recognition of income resulting from such
Option, or (2) not persons with respect to whom the Company wishes to comply
with Section 162(m) of the Code, or (B) delegate to a Committee which need not
consist of Non-Employee Directors the authority to grant Options to eligible
persons who are not then subject to Section 16 of the Exchange Act.
(d)
Delegation to an
Officer.
The Board may delegate to one (1) or more Officers
the authority to do one or both of the following (i) designate Eligible
Employees who are not Officers to be recipients of Options and the terms
thereof, and (ii) determine the number of shares of Common Stock to be subject
to such Options granted to such Eligible Employees;
provided, however
,
that the Board
resolutions regarding such delegation shall specify the total number of shares
of Common Stock that may be subject to the Options granted by such Officer and
that such Officer may not grant an Option to himself or
herself. Notwithstanding anything to the contrary in this Section
2(d)
,
the Board may not delegate to an Officer authority to determine the Fair Market
Value pursuant to Section
12(t)(ii)
below.
(e)
Effect of Board’s Decision.
All determinations, interpretations and constructions made by the Board in good
faith shall not be subject to review by any person and shall be final, binding
and conclusive on all persons.
(f)
Cancellation and Re-Grant of
Options
. Neither the Board nor any Committee shall have the
authority to: (i) reprice any outstanding Options under the Plan, or (ii) cancel
and re-grant any outstanding Options under the Plan, unless the stockholders of
the Company have approved such an action within twelve (12) months prior to such
an event.
3.
Shares
Subject to the Plan
.
(a)
Share Reserve.
Subject to the
provisions of Section 8 relating to adjustments upon changes in stock, the
aggregate number of shares of Common Stock that may be issued pursuant to
Options after the Effective Date shall not exceed one hundred forty-six thousand
(146,900) shares (the “
Share
Reserve
”). For clarity, the foregoing is a limitation on the
number of shares of the Common Stock that may be issued pursuant to the Plan and
does not limit the granting of Options except as provided in Section
7(a).
(b)
Reversion of Shares to the Share
Reserve
. If any shares of common stock issued pursuant to an
Option are forfeited back to the Company because of the failure to meet a
contingency or condition required to vest such shares in the Participant, then
the shares which are forfeited shall not revert to nor again become available
for issuance under the Plan. Also, any shares reacquired by the
Company pursuant to Section 8(g) or as consideration for the exercise of an
Option shall not again become available for issuance under the
Plan.
(c)
Section 162(m) Limitation on Annual
Grants
. Subject to the provisions of Section 8(a) relating to
Capitalization Adjustments, at such time as the Company may be subject to the
applicable provisions of Section 162(m) of the Code, no Eligible Employee shall
be eligible to be granted during any calendar year Options whose value is
determined by reference to an increase over an exercise or strike price of at
least one hundred percent (100%) of the Fair Market Value on the date the Option
is granted covering more than one million (1,000,000)
shares of Common
Stock.
(d)
Source of
Shares.
The stock issuable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares repurchased
by the Company on the market or otherwise.
4.
Eligibility.
Eligibility for Specific
Options
. Options may be granted to Eligible
Employees.
5.
Option
Provisions.
Each
Option shall be in such form and shall contain such terms and conditions as the
Board shall deem appropriate. If certificates are issued, a
certificate or certificates shall be issued for shares of Common Stock purchased
on exercise. Each Option Agreement shall include (through incorporation of
provisions hereof by reference in the Option Agreement or otherwise) the
substance of each of the following provisions:
(a)
Term.
No Options
shall be exercisable after the expiration of ten (10) years from the date of its
grant or such shorter period specified in the Option Agreement.
(b)
Exercise Price.
The
exercise price of each Option shall be not less than one hundred percent (100%)
of the Fair Market Value of the Common Stock subject to the Option on the date
the Option is granted.
(c)
Consideration.
The
purchase price of Common Stock acquired pursuant to the exercise of an Option
shall be paid, to the extent permitted by applicable law and as determined by
the Board in its sole discretion, by any combination of the methods of payment
set forth below. The Board shall have the authority to grant Options
that do not permit all of the following methods of payment (or otherwise
restrict the ability to use certain methods) and to grant Options that require
the consent of the Company to utilize a particular method of
payment. The methods of payment permitted by this Section 5
(c)
are:
(i)
by
cash, check, bank draft or money order payable to the Company;
(ii)
pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve
Board that, prior to the issuance of the stock subject to the Option, results in
either the receipt of cash (or check) by the Company or the receipt of
irrevocable instructions to pay the aggregate exercise price to the Company from
the sales proceeds;
(iii)
by
delivery to the Company (either by actual delivery or attestation) of shares of
Common Stock;
(iv)
by
a “net exercise” arrangement pursuant to which the Company will reduce the
number of shares of Common Stock issued upon exercise by the largest whole
number of shares with a Fair Market Value that does not exceed the aggregate
exercise price;
provided,
however
, that the Company shall accept a cash or other payment from the
Participant to the extent of any remaining balance of the aggregate exercise
price not satisfied by such reduction in the number of whole shares to be
issued;
provided,
further,
that shares of Common Stock will no longer be outstanding under
an Option and will not be exercisable thereafter to the extent that (A) shares
are used to pay the exercise price pursuant to the “net exercise,” (B) shares
are delivered to the Participant as a result of such exercise, and (C) shares
are withheld to satisfy tax withholding obligations; or
(v)
in
any other form of legal consideration that may be acceptable to the
Board.
(d)
Transferability of
Options.
The Board may, in its sole discretion, impose such
limitations on the transferability of Options as the Board shall
determine. In the absence of such a determination by the Board to the
contrary, the following restrictions on the transferability of Options shall
apply:
(i)
Restrictions on
Transfer.
An Option shall not be transferable except by will
or by the laws of descent and distribution and shall be exercisable during the
lifetime of the Optionholder only by the Optionholder;
provided, however
, that the
Board may, in its sole discretion, permit transfer of the Option in a manner
consistent with applicable tax and securities laws upon the Optionholder’s
request.
(ii)
Domestic Relations
Orders.
Notwithstanding the foregoing, an Option may be
transferred pursuant to a domestic relations order.
(iii)
Beneficiary
Designation.
Notwithstanding the foregoing, the Optionholder
may, by delivering written notice to the Company, in a form provided by or
otherwise satisfactory to the Company, designate a third party who, in the event
of the death of the Optionholder, shall thereafter be the beneficiary of an
Option with the right to exercise the Option and receive the Common Stock or
other consideration resulting from an Option exercise.
(e)
Vesting
Generally.
The total number of shares of Common Stock subject
to an Option may vest and therefore become exercisable in periodic installments
that may or may not be equal. The Option may be subject to such other
terms and conditions on the time or times when it may or may not be exercised as
the Board may deem appropriate. The vesting provisions of individual
Options may vary. The provisions of this Section 5(e) are subject to
any Option provisions governing the minimum number of shares of Common Stock as
to which an Option may be exercised.
(f)
Termination of Continuous
Service.
Except as otherwise provided in the applicable Option
Agreement or other agreement between the Optionholder and the Company, in the
event that an Optionholder’s Continuous Service terminates (other than upon the
Optionholder’s death or Disability), the Optionholder may exercise his or her
Option (to the extent that the Optionholder was entitled to exercise such Option
as of the date of termination of Continuous Service) but only within such period
of time ending on the earlier of (i) the date three (3) months following the
termination of the Optionholder’s Continuous Service (or such longer or shorter
period specified in the Option Agreement), or (ii) the expiration of the term of
the Option as set forth in the Option Agreement. If, after
termination of Continuous Service, the Optionholder does not exercise his or her
Option within the time specified herein or in the Option Agreement (as
applicable), the Option shall terminate.
(g)
Extension of Termination
Date.
Unless otherwise provided in an Optionholder’s Option
Agreement, if the exercise of the Option following the termination of the
Optionholder’s Continuous Service (other than upon a Change in Control or the
Optionholder’s death or Disability) would be prohibited at any time solely
because the issuance of shares of Common Stock would violate the registration
requirements under the Securities Act, then the Option shall terminate on the
earlier of (i) the expiration of a period equal to the post-termination exercise
period described in Section 5(f), 5(h) or 5(i) after the termination of the
Optionholder’s Continuous Service during which the exercise of the Option would
not be in violation of such registration requirements, or (ii) the expiration of
the term of the Option as set forth in the Option Agreement. In addition,
unless otherwise provided in an Optionholder’s Option Agreement, if the sale of
the Common Stock received upon exercise of an Option following the termination
of the Optionholder’s Continuous Service (other than upon a Change in Control or
the Optionholder’s death or Disability) would violate the Company’s insider
trading policy, then the Option shall terminate on the earlier of (i) the
expiration of a period equal to the post-termination exercise period described
in Section 5(f), 5(h) or 5(i) above after the termination of the Optionholder’s
Continuous Service during which the exercise of the Option would not be in
violation of the Company’s insider trading policy, (ii) the 15
th
day of
the third month
after the date on which
the Option would cease to be exercisable but for this Section 5(g), or such
longer period as would not cause the Option to become subject to Section
409A(a)(1) of the Code; or (iii) the expiration of the term of the Option as set
forth in the Option Agreement.
(h)
Disability of
Optionholder.
In the event that an Optionholder’s Continuous
Service terminates as a result of the Optionholder’s Disability, the
Optionholder may exercise his or her Option (to the extent that the Optionholder
was entitled to exercise such Option as of the date of termination of Continuous
Service), but only within such period of time ending on the earlier of (i) the
date twelve (12) months following such termination of Continuous Service (or
such longer or shorter period specified in the Option Agreement), or (ii) the
expiration of the term of the Option as set forth in the Option
Agreement. If, after termination of Continuous Service, the
Optionholder does not exercise his or her Option within the time specified
herein or in the Option Agreement (as applicable), the Option shall
terminate.
(i)
Death of Optionholder.
In
the event that (i) an Optionholder’s Continuous Service terminates as a result
of the Optionholder’s death, or (ii) the Optionholder dies within the period (if
any) specified in the Option Agreement after the termination of the
Optionholder’s Continuous Service for a reason other than death, then the Option
may be exercised (to the extent the Optionholder was entitled to exercise such
Option as of the date of death) by the Optionholder’s estate, by a person who
acquired the right to exercise the Option by bequest or inheritance or by a
person designated as the beneficiary of the Option upon the Optionholder’s
death, but only within the period ending on the earlier of (A) the date eighteen
(18) months following the date of death (or such longer or shorter period
specified in the Option Agreement), or (B) the expiration of the term of such
Option as set forth in the Option Agreement. If, after the
Optionholder’s death, the Option is not exercised within the time specified
herein or in the Option Agreement (as applicable), the Option shall
terminate. If the Optionholder designates a third party beneficiary
of the Option in accordance with Section 5(d)(iii), then upon the death of the
Optionholder such designated beneficiary shall have the sole right to exercise
the Option and receive the Common Stock or other consideration resulting from an
Option exercise.
(j)
Non-Exempt
Employees
. No Option granted to an Eligible Employee who is a
non-exempt employee for purposes of the Fair Labor Standards Act shall be first
exercisable for any shares of Common Stock until at least six (6) months
following the date of grant of the Option. The foregoing provision is
intended to operate so that any income derived by a non-exempt employee in
connection with the exercise or vesting of an Option will be exempt from his or
her regular rate of pay.
(k)
Inducement Grant Requirements
.
The Options granted pursuant to the Plan are intended to constitute inducement
grants exempt from the shareholder approval requirements of the Nasdaq Stock
Market ("Nasdaq"). As such, the grant of Options to Eligible Employees shall be
approved by the Company's independent compensation committee or a majority of
the Company's Independent Directors (as defined in the applicable Nasdaq
rules).
6.
Covenants
of the Company.
(a)
Availability of
Shares.
During the terms of the Options, the Company shall
keep available at all times the number of shares of Common Stock reasonably
required to satisfy such Options.
(b)
Securities Law
Compliance.
The Company shall seek to obtain from each
regulatory commission or agency having jurisdiction over the Plan such authority
as may be required to grant Options and to issue and sell shares of Common Stock
upon exercise of the Options;
provided, however
, that this
undertaking shall not require the Company to register under the Securities Act
the Plan, any Options or any Common Stock issued or issuable pursuant to any
such Options. If, after reasonable efforts, the Company is unable to
obtain from any such regulatory commission or agency the authority that counsel
for the Company deems necessary for the lawful issuance and sale of Common Stock
under the Plan, the Company shall be relieved from any liability for failure to
issue and sell Common Stock upon exercise of such Options unless and until such
authority is obtained.
(c)
No Obligation to
Notify.
The Company shall have no duty or obligation to any
holder of an Option to advise such holder as to the time or manner of exercising
such Option. Furthermore, the Company shall have no duty or
obligation to warn or otherwise advise such holder of a pending termination or
expiration of an Options or a possible period in which the Option may not be
exercised. The Company has no duty or obligation to minimize the tax
consequences of an Option to the holder of such Option.
7.
Miscellaneous.
(a)
Use of Proceeds from Sales of Common
Stock.
Proceeds from the sale of shares of Common Stock
pursuant to Options shall constitute general funds of the Company.
(b)
Corporate Action Constituting Grant
of Options.
Corporate action constituting a grant by the
Company of an Option to any Participant shall be deemed completed as of the date
of such corporate action, unless otherwise determined by the Board, regardless
of when the instrument, certificate, or letter evidencing the Option is
communicated to, or actually received or accepted by, the
Participant.
(c)
Stockholder
Rights.
No Participant shall be deemed to be the holder of, or
to have any of the rights of a holder with respect to, any shares of Common
Stock subject to such Option unless and until such Participant has exercised the
Option pursuant to its terms and the Participant shall not be deemed to be a
stockholder of record until the issuance of the Common Stock pursuant to such
exercise has been entered into the books and records of the
Company.
(d)
No Employment or Other Service
Rights.
Nothing in the Plan, any Option Agreement or other
instrument executed thereunder or in connection with any Option granted pursuant
to the Plan shall confer upon any Participant any right to continue to serve the
Company or an Affiliate in the capacity in effect at the time the Option was
granted or shall affect the right of the Company or an Affiliate to terminate
the employment of an Eligible Employee with or without notice and with or
without cause.
(e)
Investment
Assurances.
The Company may require a Participant, as a
condition of exercising or acquiring Common Stock under any Option, (i) to give
written assurances satisfactory to the Company as to the Participant’s knowledge
and experience in financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that he or she is capable of
evaluating, alone or together with the purchaser representative, the merits and
risks of exercising the Option; and (ii) to give written assurances satisfactory
to the Company stating that the Participant is acquiring Common Stock subject to
the Option for the Participant’s own account and not with any present intention
of selling or otherwise distributing the Common Stock. The foregoing
requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (A) the issuance of the shares upon the exercise or acquisition
of Common Stock under the Option has been registered under a then currently
effective registration statement under the Securities Act, or (B) as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then applicable
securities laws. The Company may, upon advice of counsel to the
Company, place legends on stock certificates issued under the Plan as such
counsel deems necessary or appropriate in order to comply with applicable
securities laws, including, but not limited to, legends restricting the transfer
of the Common Stock.
(f)
Withholding
Obligations.
Unless prohibited by the terms of an Option
Agreement, the Company may, in its sole discretion, satisfy any federal, state
or local tax withholding obligation relating to an Option by any of the
following means (in addition to the Company’s right to withhold from any
compensation paid to the Participant by the Company) or by a combination of such
means: (i) causing the Participant to tender a cash payment; (ii) withholding
shares of Common Stock from the shares of Common Stock issued or otherwise
issuable to the Participant in connection with the Option; (iii) withholding
cash from an Option settled in cash; or (iv) by such other method as may be set
forth in the Option Agreement.
(g)
Electronic
Delivery
. Any reference herein to a “written” agreement or
document shall include any agreement or document delivered electronically or
posted on the Company’s intranet.
(h)
Deferrals.
To the
extent permitted by applicable law, the Board, in its sole discretion, may
determine that the delivery of Common Stock or the payment of cash, upon the
exercise, vesting or settlement of all or a portion of any Option may be
deferred and may establish programs and procedures for deferral elections to be
made by Participants. Deferrals by Participants will be made in
accordance with Section 409A of the Code. Consistent with Section 409A of the
Code, the Board may provide for distributions while a Participant is still an
employee. The Board is authorized to make deferrals of Options and
determine when, and in what annual percentages, Participants may receive
payments, including lump sum payments, following the Participant’s termination
of employment or retirement, and implement such other terms and conditions
consistent with the provisions of the Plan and in accordance with applicable
law.
(i)
Compliance with Section 409A of the
Code.
To the extent that the Board determines that any Option
granted under the Plan is subject to Section 409A of the Code, the Option
Agreement evidencing such Award shall incorporate the terms and conditions
necessary to avoid the consequences specified in Section 409A(a)(1) of the
Code. To the extent applicable, the Plan and Option Agreements shall
be interpreted in accordance with Section 409A of the Code and Department of
Treasury regulations and other interpretive guidance issued thereunder,
including without limitation any such regulations or other guidance that may be
issued or amended after the Effective Date. Notwithstanding any
provision of the Plan to the contrary, in the event that following the Effective
Date the Board determines that any Option may be subject to Section 409A of the
Code and related Department of Treasury guidance (including such Department of
Treasury guidance as may be issued after the Effective Date), the Board may
adopt such amendments to the Plan and the applicable Option Agreement or adopt
other policies and procedures (including amendments, policies and procedures
with retroactive effect), or take any other actions, that the Board determines
are necessary or appropriate to (i) exempt the Option from Section 409A of the
Code and/or preserve the intended tax treatment of the benefits provided with
respect to the Option, or (ii) comply with the requirements of Section 409A of
the Code and Department of Treasury regulations and other interpretive guidance
issued thereunder, including without limitation any such regulations or other
guidance that may be issued or amended after the Effective
Date.
8.
Adjustments
upon Changes in Common Stock; Other Corporate Events
.
(a)
Capitalization
Adjustments
. In the event of a Capitalization Adjustment, the
Board shall appropriately adjust: (i) the class(es) and maximum number of
securities subject to the Plan pursuant to Section
3(a)
,
(ii) the class(es) and maximum number of securities that may be awarded to
any person pursuant to Section
3(d)
,
and (iii) the class(es) and number of securities and price per share of stock
subject to outstanding Options. The Board shall make such
adjustments, and its determination shall be final, binding and
conclusive.
(b)
Dissolution or
Liquidation
. Except as otherwise provided in the Option
Agreement, in the event of a dissolution or liquidation of the Company, all
outstanding Options shall terminate immediately prior to the
completion of such dissolution or liquidation, and the shares of Common Stock
subject to the Company’s repurchase option may be repurchased by the Company
notwithstanding the fact that the holder of such Option is providing Continuous
Service,
provided,
however
, that the Board may, in its sole discretion, cause some or all
Options to become fully vested, exercisable and/or no longer subject to
repurchase or forfeiture (to the extent such Options have not previously expired
or terminated) before the dissolution or liquidation is completed but contingent
on its completion.
(c)
Corporate Transaction.
The following provisions shall apply to Options in the event
of a Corporate Transaction unless otherwise provided in the instrument
evidencing the Options or any other written agreement between the Company or any
Affiliate and the Participant or unless otherwise expressly provided by the
Board at the time of grant of an Option.
(i)
Options May Be
Assumed.
Except as otherwise stated in the Option Agreement,
in the event of a Corporate Transaction, any surviving corporation or acquiring
corporation (or the surviving or acquiring corporation’s parent company) may
assume or continue any or all Options outstanding under the Plan or may
substitute similar stock awards for Options outstanding under the Plan
(including but not limited to, awards to acquire the same consideration paid to
the stockholders of the Company pursuant to the Corporate Transaction), and any
reacquisition or repurchase rights held by the Company in respect of Common
Stock issued pursuant to Options may be assigned by the Company to the successor
of the Company (or the successor’s parent company, if any), in connection with
such Corporate Transaction. A surviving corporation or acquiring
corporation (or its parent) may choose to assume or continue only a portion of
an Option or substitute a similar stock award for only a portion of an
Option. The terms of any assumption, continuation or substitution
shall be set by the Board in accordance with the provisions of Section
2.
(ii)
Options Held by Current
Participants.
Except as otherwise stated in the Option
Agreement, in the event of a Corporate Transaction in which the surviving
corporation or acquiring corporation (or its parent company) does not assume or
continue such outstanding Options or substitute similar stock awards for such
outstanding Options, then with respect to Options that have not been assumed,
continued or substituted and that are held by Participants whose Continuous
Service has not terminated prior to the effective time of the Corporate
Transaction (referred to as the “
Current
Participants
”), the vesting of such Options and the time at which such
Options may be exercised shall be accelerated in full to a date prior to the
effective time of such Corporate Transaction (contingent upon the effectiveness
of the Corporate Transaction) as the Board shall determine (or, if the Board
shall not determine such a date, to the date that is five (5) days prior to the
effective time of the Corporate Transaction), and such Options shall terminate
if not exercised (if applicable) at or prior to the effective time of the
Corporate Transaction, and any reacquisition or repurchase rights held by the
Company with respect to such Options shall lapse (contingent upon the
effectiveness of the Corporate Transaction).
(iii)
Options Held by Persons other than
Current Participants.
Except as otherwise stated in the Option
Agreement, in the event of a Corporate Transaction in which the surviving
corporation or acquiring corporation (or its parent company) does not assume or
continue such outstanding Options or substitute similar stock awards for such
outstanding Options, then with respect to Options that have not been assumed,
continued or substituted and that are held by persons other than Current
Participants, such Options shall terminate if not exercised (if applicable)
prior to the effective time of the Corporate Transaction;
provided, however
, that any
reacquisition or repurchase rights held by the Company with respect to such
Options shall not terminate and may continue to be exercised notwithstanding the
Corporate Transaction.
(iv)
Payment for Options in Lieu of
Exercise.
Notwithstanding the foregoing, in the event an
Option will terminate if not exercised prior to the effective time of a
Corporate Transaction, the Board may provide, in its sole discretion, that the
holder of such Option may not exercise such Option but will receive a payment,
in such form as may be determined by the Board, equal in value to the excess, if
any, of (A) the value of the property the holder of the Option would have
received upon the exercise of the Option (including, at the discretion of the
Board, any unvested portion of such Option), over (B) any exercise price payable
by such holder in connection with such exercise.
(d)
Change in
Control.
An Option may be subject to additional acceleration
of vesting and exercisability upon or after a Change in Control as may be
provided in the Option Agreement for such Options or as may be provided in any
other written agreement between the Company or any Affiliate and the
Participant, but in the absence of such provision, no such acceleration shall
occur.
9.
Termination
or Suspension of the Plan.
(a)
Plan Term.
Unless
sooner terminated by the Board pursuant to Section 2, the Plan shall
automatically terminate on the day before the tenth (10th) anniversary of the
date the Plan is adopted by the Board. No Options may be granted
under the Plan while the Plan is suspended or after it is
terminated.
(b)
No Impairment of
Rights.
Termination of the Plan shall not impair rights and
obligations under any Option granted while the Plan is in effect except with the
written consent of the affected Participant.
10.
Effective
Date of Plan.
This Plan
shall become effective on the Effective Date.
11.
Choice
of Law.
The law
of the State of Delaware shall govern all questions concerning the construction,
validity and interpretation of this Plan, without regard to such state’s
conflict of laws rules.
12.
Definitions.
As
used in the Plan, the definitions contained in this Section 12 shall apply to
the capitalized terms indicated below:
(a)
“Affiliate”
means, at the time of determination, any “parent” or “subsidiary” of the Company
as such terms are defined in Rule 405 of the Securities Act. The
Board shall have the authority to determine the time or times at which “parent”
or “subsidiary” status is determined within the foregoing
definition.
(b)
“Acquisition”
means, the acquisition by the Company or its Subsidiaries of all or
substantially all of the assets of Solid Cactus, Inc. and Solid Cactus Call
Center, Inc. pursuant to that certain Asset Purchase Agreement by and among
Solid Cactus, Inc., Solid Cactus Call Center, Inc., Solid Cactus Web.com, Inc.
and Solid Cactus Call Center Web.com, Inc.
(c)
“Board”
means the Board of Directors of the Company.
(d)
“Capitalization
Adjustment”
means any change that is made in, or other events that occur
with respect to, the Common Stock subject to the Plan or subject to any Option
after the Effective Date without the receipt of consideration by the Company
(through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or other transaction not involving the receipt of
consideration by the Company. Notwithstanding the foregoing, the
conversion of any convertible securities of the Company shall not be treated as
a transaction “without receipt of consideration” by the Company.
(e)
“Change in
Control”
means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:
(i)
any
Exchange Act Person becomes the Owner, directly or indirectly, of securities of
the Company representing more than fifty percent (50%) of the combined voting
power of the Company’s then outstanding securities other than by virtue of a
merger, consolidation or similar transaction. Notwithstanding the
foregoing, a Change in Control shall not be deemed to occur (A) on account of
the acquisition of securities of the Company by an investor, any affiliate
thereof or any other Exchange Act Person from the Company in a transaction or
series of related transactions the primary purpose of which is to obtain
financing for the Company through the issuance of equity securities or (B)
solely because the level of Ownership held by any Exchange Act Person (the
“
Subject Person
”)
exceeds the designated percentage threshold of the outstanding voting securities
as a result of a repurchase or other acquisition of voting securities by the
Company reducing the number of shares outstanding, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result of the
acquisition of voting securities by the Company, and after such share
acquisition, the Subject Person becomes the Owner of any additional voting
securities that, assuming the repurchase or other acquisition had not occurred,
increases the percentage of the then outstanding voting securities Owned by the
Subject Person over the designated percentage threshold, then a Change in
Control shall be deemed to occur;
(ii)
there
is consummated a merger, consolidation or similar transaction involving
(directly or indirectly) the Company and, immediately after the consummation of
such merger, consolidation or similar transaction, the stockholders of the
Company immediately prior thereto do not Own, directly or indirectly, either (A)
outstanding voting securities representing more than fifty percent (50%) of the
combined outstanding voting power of the surviving Entity in such merger,
consolidation or similar transaction or (B) more than fifty percent (50%) of the
combined outstanding voting power of the parent of the surviving Entity in such
merger, consolidation or similar transaction, in each case in substantially the
same proportions as their Ownership of the outstanding voting securities of the
Company immediately prior to such transaction;
(iii)
the
stockholders of the Company approve or the Board approves a plan of complete
dissolution or liquidation of the Company, or a complete dissolution or
liquidation of the Company shall otherwise occur, except for a liquidation into
a parent corporation;
(iv)
there
is consummated a sale, lease, exclusive license or other disposition of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, other than a sale, lease, license or other disposition of all or
substantially all of the consolidated assets of the Company and its Subsidiaries
to an Entity, more than fifty percent (50%) of the combined voting power of the
voting securities of which are Owned by stockholders of the Company in
substantially the same proportions as their Ownership of the outstanding voting
securities of the Company immediately prior to such sale, lease, license or
other disposition; or
(v)
individuals
who, on the date this Plan is adopted by the Board, are members of the Board
(the “Incumbent Board”) cease for any reason to constitute at least a majority
of the members of the Board;
provided, however
, that if
the appointment or election (or nomination for election) of any new Board member
was approved or recommended by a majority vote of the members of the Incumbent
Board then still in office, such new member shall, for purposes of this Plan, be
considered as a member of the Incumbent Board.
For the
avoidance of doubt, the term Change in Control shall not include a sale of
assets, merger or other transaction effected exclusively for the purpose of
changing the domicile of the Company.
Notwithstanding
the foregoing or any other provision of this Plan, the definition of Change in
Control (or any analogous term) in an individual written agreement between the
Company or any Affiliate and the Participant shall supersede the foregoing
definition with respect to Awards subject to such agreement;
provided, however
, that if no
definition of Change in Control or any analogous term is set forth in such an
individual written agreement, the foregoing definition shall apply.
(f)
“Code”
means the Internal Revenue Code of 1986, as amended.
(g)
“Committee”
means a committee of one (1) or more Directors to whom authority has been
delegated by the Board in accordance with Section
2(c)
.
(h)
“Common
Stock”
means the common stock of the Company.
(i)
“Company”
means Web.com Group, Inc., a Delaware corporation.
(j)
“Continuous
Service”
means that the Participant’s service with the Company or an
Affiliate, as an employee, is not interrupted or terminated. A change
in the capacity in which the Participant renders service to the Company or an
Affiliate as an employee or a change in the entity for which the Participant
renders such service, provided that there is no interruption or termination of
the Participant’s service with the Company or an Affiliate, shall not terminate
a Participant’s Continuous Service. To the extent permitted by law,
the Board or the chief executive officer of the Company, in that party’s sole
discretion, may determine whether Continuous Service shall be considered
interrupted in the case of any leave of absence approved by that party,
including sick leave, military leave or any other personal
leave. Notwithstanding the foregoing, a leave of absence shall be
treated as Continuous Service for purposes of vesting in an Option only to such
extent as may be provided in the Company’s leave of absence policy, in the
written terms of any leave of absence agreement or policy applicable to the
Participant, or as otherwise required by law.
(k)
“Corporate
Transaction”
means the occurrence, in a single transaction or in a series
of related transactions, of any one or more of the following
events:
(i)
a
sale
or other
disposition of all or substantially all, as determined by the Board in its sole
discretion, of the consolidated assets of the Company and its
Subsidiaries;
(ii)
a
sale or other disposition of at least ninety percent (90%) of the outstanding
securities of the Company;
(iii)
the
consummation of a merger, consolidation or similar transaction following which
the Company is not the surviving corporation; or
(iv)
the
consummation of a merger, consolidation or similar transaction following which
the Company is the surviving corporation but the shares of Common Stock
outstanding immediately preceding the merger, consolidation or similar
transaction are converted or exchanged by virtue of the merger, consolidation or
similar transaction into other property, whether in the form of securities, cash
or otherwise.
(l)
“Covered
Employee”
shall have the meaning provided in Section 162(m)(3) of the
Code and the regulations promulgated thereunder.
(m)
“Director”
means a member of the Board.
(n)
“Disability”
means, with respect to a Participant, the inability of such Participant to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than twelve
(12) months, as provided in Section 22(e)(3) and 409A(a)(2)(c)(i) of the
Code.
(o)
“
Effective
Date
” means the effective date of this Plan document, which is April 16,
2009.
(p)
“Eligible
Employee”
means any person entering into employment with the Company or
an Affiliate in connection with the Acquisition, who was not previously an
employee or director of the Company or an Affiliate, or following a bonafide
period of non-employment with the Company or an Affiliate.
(q)
“Entity”
means a corporation, partnership, limited liability company or other
entity.
(r)
“Exchange
Act”
means the Securities Exchange Act of 1934, as amended.
(s)
“Exchange Act
Person”
means any natural person, Entity or “group” (within the meaning
of Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act
Person” shall not include (i) the Company or any Subsidiary of the Company, (ii)
any employee benefit plan of the Company or any Subsidiary of the Company or any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any Subsidiary of the Company, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, (iv) an Entity
Owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their Ownership of stock of the Company;
or (v) any natural person, Entity or “group” (within the meaning of Section
13(d) or 14(d) of the Exchange Act) that, as of the Effective Date of the Plan
as set forth in Section 10, is the Owner, directly or indirectly, of securities
of the Company representing more than fifty percent (50%) of the combined voting
power of the Company’s then outstanding securities.
(t)
“Fair Market
Value”
means, as of any date, the value of the Common Stock determined as
follows:
(i)
If
the Common Stock is listed on any established stock exchange or traded on the
Nasdaq Global Market, the Fair Market Value of a share of Common Stock shall be
the closing sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or market (or the exchange or market with
the greatest volume of trading in the Common Stock) on the date in question, as
reported in
The Wall Street
Journal
or such other source as the Board deems reliable. Unless
otherwise provided by the Board, if there is no closing sales price (or closing
bid if no sales were reported) for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price (or closing bid if
no sales were reported) on the last preceding date for which such quotation
exists.
(ii)
In
the absence of such markets for the Common Stock, the Fair Market Value shall be
determined by the Board in good faith.
(u)
“Non-Employee
Director”
means a Director who
either (i) is not a current employee or officer of the Company or an Affiliate,
does not receive compensation, either directly or indirectly, from the Company
or an Affiliate for services rendered as a consultant or in any capacity other
than as a Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to the
Securities Act (“
Regulation
S-K
”)), does not possess an interest in any other transaction for which
disclosure would be required under Item 404(a) of Regulation S-K, and is not
engaged in a business relationship for which disclosure would be required
pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise considered
a “non-employee director” for purposes of Rule 16b-3.
(v)
“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.
(w)
“Option”
means a stock option to purchase shares of Common Stock granted pursuant to the
Plan.
(x)
“Option
Agreement”
means a written agreement between the Company and an
Optionholder evidencing the terms and conditions of an Option
grant. Each Option Agreement shall be subject to the terms and
conditions of the Plan.
(y)
“Optionholder”
means a person to whom an Option is granted pursuant to the Plan or, if
permitted under the terms of this Plan, such other person who holds an
outstanding Option.
(z)
“Outside
Director”
means a Director who either (i) is not a current employee of
the Company or an “affiliated corporation” (within the meaning of Treasury
Regulations promulgated under Section 162(m) of the Code), is not a former
employee of the Company or an “affiliated corporation” who receives compensation
for prior services (other than benefits under a tax-qualified retirement plan)
during the taxable year, has not been an officer of the Company or an
“affiliated corporation,” and does not receive remuneration from the Company or
an “affiliated corporation,” either directly or indirectly, in any capacity
other than as a Director, or (ii) is otherwise considered an “outside director”
for purposes of Section 162(m) of the Code.
(aa)
“Own,” “Owned,”
“Owner,” “Ownership”
means a person or Entity shall be deemed to “Own,”
to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of
securities if such person or Entity, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has or shares
voting power, which includes the power to vote or to direct the voting, with
respect to such securities.
(bb)
“Participant”
means a person to whom an Option is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Option.
(cc)
“Plan”
means this Web.com Group, Inc. 2009 Inducement Award Plan.
(dd)
“Rule
16b-3”
means Rule 16b-3 promulgated under the Exchange Act or any
successor to Rule 16b-3, as in effect from time to time.
(ee)
“Securities
Act”
means the Securities Act of 1933, as amended.
(ff)
“Subsidiary”
means, with respect to the Company, (i) any corporation of which more than fifty
percent (50%) of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether, at the time, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time, directly or indirectly, Owned by the Company, and
(ii) any partnership, limited liability company or other entity in which the
Company has a direct or indirect interest (whether in the form of voting or
participation in profits or capital) of more than fifty percent
(50%).
