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EXHIBIT 4.6
PERFORMANT, INC.
2000 STOCK OPTION/RESTRICTED STOCK PLAN
EFFECTIVE AS OF OCTOBER 30, 2000
1. INTRODUCTION
The Company’s Board of Directors adopted
the Performant, Inc. 2000 Stock Option/Restricted Stock Plan on
August 15, 2000, subject to approval by the Company’s
stockholders.
The purpose of the Plan is to promote the long-term success of
the Company and the creation of shareholder value by offering Key
Employees an opportunity to acquire a proprietary interest in the
success of the Company, or to increase such interest, and to
encourage such selected persons to continue to provide services to
the Company and to attract new individuals with outstanding
qualifications.
The Plan seeks to achieve this purpose by providing for Options
(which may constitute Incentive Stock Options or Nonstatutory Stock
Options) and Awards of Restricted Stock.
The Plan shall be governed by, and construed in accordance with,
the laws of the State of Washington (except its choice-of-law
provisions). Capitalized terms shall have the meaning provided in
Section 2 unless otherwise provided in this Plan or Stock Option
Agreement or Restricted Stock Agreement.
2. DEFINITIONS
(a)
"AFFILIATE" means any entity other than a Subsidiary, if the
Company and/or one or more Subsidiaries own not less than 50% of
such entity. For purposes of determining an individual’s
"Service," this definition shall include any entity other than a
Subsidiary, if the Company, a Parent and/or one or more
Subsidiaries own not less than 50% of such entity.
(b)
"AWARD" means any award of an Option or Restricted Stock under the
Plan.
(c)
"BOARD" means the Board of Directors of the Company, as constituted
from time to time.
(d)
"CHANGE IN CONTROL" except as may otherwise be provided in the
Stock Option Agreement, means:
Any merger or consolidation of the Company into or with another
corporation or other entity, or the sale, transfer or other
disposition of all or substantially all of the assets or capital
stock of the Company, or any reorganization, recapitalization or
like transaction or series of related transactions having
substantially equivalent effect and purpose, at the conclusion of
which such merger, consolidation, sale, transfer, disposition,
reorganization, recapitalization or like transaction the holders of
the capital stock of the Company entitled to vote for the election
of directors or similar governing body immediately prior to such
transaction or series of related transactions own less than a
majority of the capital stock entitled to vote for the election of
directors or similar governing body of the acquiring entity or
entity surviving or resulting from such transaction or series of
related transactions immediately thereafter; provided that a merger
effected exclusively for the purpose of changing the domicile of
the Company shall not be deemed to constitute a "Change in
Control".
(e)
"CODE" means the Internal Revenue Code of 1986, as amended.
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(f)
"COMMITTEE" means a committee consisting of one or more members of
the Board that is appointed by the Board (as described in Section
3) to administer the Plan.
(g)
"COMMON STOCK" means the Company’s common stock.
(h)
"COMPANY" means Performant, Inc., a Delaware corporation.
(i)
"CONSULTANT" means an individual who performs bona fide services to
the Company, a Parent, a Subsidiary or an Affiliate other than as
an Employee or Director or Non-Employee Director.
(j)
"DIRECTOR" means a member of the Board who is also an Employee.
(k)
"DISABILITY" means that the Key Employee is unable 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 which has lasted or can be expected to last for
a continuous period of not less than 12 months.
(l)
"EMPLOYEE" means any individual who is a common-law employee of the
Company, a Parent, a Subsidiary or an Affiliate.
(m)
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(n)
"EXERCISE PRICE" means the amount for which a Share may be
purchased upon exercise of such Option, as specified in the
applicable Stock Option Agreement.
(o)
"FAIR MARKET VALUE" means the market price of Shares, determined by
the Committee as follows:
(i)
If the Shares were traded over-the-counter on the date in question
but were not classified as a national market issue, then the Fair
Market Value shall be equal to the mean between the last reported
representative bid and asked prices quoted by the NASDAQ system for
such date;
(ii)
If the Shares were traded over-the-counter on the date in question
and were classified as a national market issue, then the Fair
Market Value shall be equal to the last-transaction price quoted by
the NASDAQ system for such date;
(iii) If
the Shares were traded on a stock exchange on the date in question,
then the Fair Market Value shall be equal to the closing price
reported by the applicable composite transactions report for such
date; and
(iv) If
none of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on
such basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by the
Committee shall be based on the prices reported in the Wall Street
Journal. Such determination shall be conclusive and binding on all
persons.
(p)
"GRANT" means any grant of an Option under the Plan.
(q)
"INCENTIVE STOCK OPTION" or "ISO" means an incentive stock option
described in Code section 422(b).
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(r)
"KEY EMPLOYEE" means an Employee, Director, Non-Employee Director
or Consultant who has been selected by the Committee to receive an
Award under the Plan.
(s)
"NON-EMPLOYEE DIRECTOR" means a member of the Board who is not an
Employee.
(t)
"NONSTATUTORY STOCK OPTION" or "NSO" means a stock option that is
not an ISO.
(u)
"OPTION" means an ISO or NSO granted under the Plan entitling the
Optionee to purchase Shares.
(v)
"OPTIONEE" means an individual, estate or other entity that holds
an Option.
(w)
"PARENT" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of
the corporations other than the Company owns stock possessing fifty
percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain. A
corporation that attains the status of a Parent on a date after the
adoption of the Plan shall be considered a Parent commencing as of
such date.
(x)
"PARTICIPANT" means an individual or estate or other entity that
holds an Award.
(y)
"PLAN" means this Performant Inc. 2000 Stock Option/Restricted
Stock Plan as it may be amended from time to time.
(z)
"RESTRICTED STOCK" means a Share awarded under the Plan.
(aa) "RESTRICTED
STOCK AGREEMENT" means the agreement described in Section 8
evidencing each Award of Restricted Stock.
(bb) "SECURITIES
ACT" means the Securities Act of 1933, as amended.
(cc) "SERVICE"
means service as an Employee, Director, Non-Employee Director or
Consultant.
(dd) "SHARE"
means one share of Common Stock.
(ee) "STOCK
OPTION AGREEMENT" means the agreement described in Section 6
evidencing each Grant of an Option.
(ff)
"SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each
of the corporations other than the last corporation in the unbroken
chain owns stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain. A corporation that attains the
status of a Subsidiary on a date after the adoption of the Plan
shall be considered a Subsidiary commencing as of such date.
(gg) "10-PERCENT
SHAREHOLDER" means an individual who owns more than ten percent
(10%) of the total combined voting power of all classes of
outstanding stock of the Company, its Parent or any of its
subsidiaries. In determining stock ownership, the attribution rules
of Section 424(d) of the Code shall be applied.
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3. ADMINISTRATION
(a)
COMMITTEE COMPOSITION
A Committee appointed by the Board shall administer the Plan.
The Board shall designate one of the members of the Committee as
chairperson. If no Committee has been approved, the entire Board
shall constitute the Committee. Members of the Committee shall
serve for such period of time as the Board may determine and shall
be subject to removal by the Board at any time. The Board may also
at any time terminate the functions of the Committee and reassume
all powers and authority previously delegated to the Committee.
Effective with the Company’s initial public offering, the
Committee shall consist either (i) of those individuals who shall
satisfy the requirements of Rule 16b-3 (or its successor) under the
Exchange Act with respect to Options to persons who are officers or
directors of the Company under Section 16 of the Exchange Act or
(ii) of the Board itself.
The Board may also appoint one or more separate committees of
the Board, each composed of one or more directors of the Company
who need not qualify under Rule 16b-3, who may administer the Plan
with respect to Key Employees who are not considered officers or
directors of the Company under Section 16 of the Exchange Act, may
grant Awards under the Plan to such Key Employees and may determine
all terms of such Awards.
(b)
AUTHORITY OF THE COMMITTEE
Subject to the provisions of the Plan, the Committee shall have
full authority and discretion to take any actions it deems
necessary or advisable for the administration of the Plan. Such
actions shall include:
(i)
selecting Key Employees who are to receive Awards under the
Plan;
(ii)
determining the type, number, vesting requirements and other
features and conditions of such Awards;
(iii)
interpreting the Plan; and
(iv)
making all other decisions relating to the operation of the
Plan.
The Committee may adopt such rules or guidelines, as it deems
appropriate to implement the Plan. The Committee’s
determinations under the Plan shall be final and binding on all
persons.
(c)
INDEMNIFICATION
Each member of the Committee, or of the Board, shall be
indemnified and held harmless by the Company against and from (i)
any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him or her in connection with or resulting
from any claim, action, suit, or proceeding to which he or she may
be a party or in which he or she may be involved by reason of any
action taken or failure to act under the Plan or any Stock Option
Agreement or any Restricted Stock Agreement, and (ii) from any and
all amounts paid by him or her in settlement thereof, with the
Company’s approval, or paid by him or her in satisfaction of
any judgment in any such claim, action, suit, or proceeding against
him or her, provided he or she shall give the Company an
opportunity, at its own expense, to handle and defend the same
before he or she undertakes to handle and defend it on his or her
own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such
persons may be entitled under the Company’s Certificate of
Incorporation or Bylaws, by contract, as a matter of law, or
otherwise, or under any power that the Company may have to
indemnify them or hold them harmless.
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(d)
FINANCIAL REPORTS
To the extent required by applicable law, the Company shall
furnish to Participants the Company’s summary financial
informat
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