EXHIBIT 99
MYTURN.COM, INC.
2000 Stock Option Plan
1. Purpose of the Plan. The MyTurn.com, Inc. 2000 Stock Option Plan (the
"Plan") is intended to advance the interests of MyTurn.com, Inc. (the "Company")
by inducing individuals, and eligible entities (as hereinafter provided) of
outstanding ability and potential to join and remain with, or provide consulting
or advisory services to, the Company, by encouraging and enabling eligible
employees, non-employee Directors, consultants and advisors to acquire
proprietary interests in the Company, and by providing the participating
employees, non-employee Directors, consultants and advisors with an additional
incentive to promote the success of the Company. This is accomplished by
providing for the granting of "Options," which term as used herein includes both
"Incentive Stock Options" and "Non-Statutory Stock Options" (as hereinafter
defined) to employees, non-employee Directors, consultants and advisors.
2. Administration. The Plan shall be administered by the Board of Directors
of the Company (the "Board of Directors") or by a committee (the "Committee")
chosen by the Board of Directors. Except as herein specifically provided, the
interpretation and construction by the Board of Directors or the Committee of
any provision of the Plan or of any Option granted under it shall be final and
conclusive. The receipt of Options by Directors, or any members of the
Committee, shall not preclude their vote on any matters in connection with the
administration or interpretation of the Plan.
3. Shares Subject to the Plan. The stock subject to Options granted under
the Plan shall be shares of the Company's common stock, par value $.01 per share
(the "Common Stock"), whether authorized but unissued or held in the Company's
treasury, or shares purchased
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from stockholders expressly for use under the Plan. The maximum number of shares
of Common Stock which may be issued pursuant to Options granted under the Plan
shall not exceed in the aggregate ten million (10,000,000) shares plus such
number of Common Shares issuable upon the exercise of Reload Options (as
hereinafter defined) granted under the Plan, subject to adjustment in accordance
with the provisions of Section 14 hereof. The Company shall at all times while
the Plan is in force reserve such number of shares of Common Stock as will be
sufficient to satisfy the requirements of all outstanding Options granted under
the Plan. In the event any Option granted under the Plan shall expire or
terminate for any reason without having been exercised in full or shall cease
for any reason to be exercisable in whole or in part, the unpurchased shares
subject thereto shall again be available for Options under the Plan.
4. Participation. The class of individual or entity that shall be eligible
to receive Options under the Plan shall be (a) with respect to Incentive Stock
Options described in Section 6 hereof, all employees (including officers), and
non-employees to whom an offer of employment has been extended, of either the
Company or any subsidiary corporation of the Company, and (b) with respect to
Non-Statutory Stock Options described in Section 7 hereof, all employees
(including officers), non-employees to whom an offer of employment has been
extended, and non-employee Directors of, or consultants and advisors to, either
the Company or any subsidiary corporation of the Company; provided, however,
that Non-Statutory Stock Options shall not be granted to any such consultants
and advisors unless (i) bona fide services have been or are to be rendered by
such consultant or advisor and (ii) such services are not in connection with the
offer or sale of securities in a capital raising transaction. For purposes of
the Plan, for an entity to be an eligible entity, it must be included in the
definition of "employee" for purposes of a Form S-8 Registration Statement filed
under the Securities Act of 1933, as amended (the "Act"). The Board of Directors
or the
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Committee, in its sole discretion, but subject to the provisions of the Plan,
shall determine the employees, non-employees to whom an offer of employment has
been extended, and non-employee Directors of, and the consultants and advisors
to, the Company and its subsidiary corporations to whom Options shall be
granted, and the number of shares to be covered by each Option, taking into
account the nature of the employment or services rendered by the individuals or
entities being considered, their annual compensation, their present and
potential contributions to the success of the Company, and such other factors as
the Board of Directors or the Committee may deem relevant.
5. Stock Option Agreement. Each Option granted under the Plan shall be
authorized by the Board of Directors or the Committee, and shall be evidenced by
a Stock Option Agreement which shall be executed by the Company and by the
individual or entity to whom such Option is granted. The Stock Option Agreement
shall specify the number of shares of Common Stock as to which any Option is
granted, the period during which the Option is exercisable, the option price per
share thereof, and such other terms and provisions not inconsistent with this
Plan.
6. Incentive Stock Options. The Board of Directors or the Committee may
grant Options under the Plan, which Options are intended to meet the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), and which are subject to the following terms and conditions and
any other terms and conditions as may at any time be required by Section 422 of
the Code (referred to herein as an "Incentive Stock Option"):
(a) No Incentive Stock Option shall be granted to individuals other
than employees, or non-employees to whom an offer of employment has been
extended, of the Company or of a subsidiary corporation of the Company.
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(b) Each Incentive Stock Option under the Plan must be granted prior
to June 7, 2010, which is within ten (10) years from the date the Plan
initially was adopted by the Board of Directors of the Company.
(c) The option price of the shares of Common Stock subject to any
Incentive Stock Option shall not be less than the fair market value of the
Common Stock at the time such Incentive Stock Option is granted; provided,
however, if an Incentive Stock Option is granted to an individual who owns,
at the time the Incentive Stock Option is granted, more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Company or of a parent or subsidiary corporation of the Company (a
"Principal Stockholder"), the option price of the shares subject to the
Incentive Stock Option shall be at least one hundred ten percent (110%) of
the fair market value of the Common Stock at the time the Incentive Stock
Option is granted.
(d) No Incentive Stock Option granted under the Plan shall be
exercisable after the expiration of ten (10) years from the date of its
grant. However, if an Incentive Stock Option is granted to a Principal
Stockholder, such Incentive Stock Option shall not be exercisable after the
expiration of five (5) years from the date of its grant. Every Incentive
Stock Option granted under the Plan shall be subject to earlier termination
as expressly provided in Section 12 hereof.
(e) For purposes of determining stock ownership under this Section 6,
the attribution rules of Section 424(d) of the Code shall apply.
(f) For purposes of the Plan, fair market value shall be determined by
the Board of Directors or the Committee. If the Common Stock is listed on a
national securities exchange or traded on the Over-the-Counter market, fair
market value shall be the closing selling price or, if not available, the
closing bid price or, if not available, the high bid price of the Common
Stock quoted on such exchange, or on the Over-the-Counter market as
reported by the National Association of
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Securities Dealers Automated Quotation ("NASDAQ") system or if the Common
Stock is not listed on NASDAQ, then by the Pink Sheets, LLC, as the case
may be, on the day immediately preceding the day on which the Option is
granted or exercised, as the case may be, or, if there is no selling or bid
price on that day, the closing selling price, closing bid price or high bid
price on the most recent day which precedes that day and for which such
prices are available.
7. Non-Statutory Stock Options. The Board of Directors or the Committee may
grant Options under the Plan which are not intended to meet the requirements of
Section 422 of the Code, as well as Options which are intended to meet the
requirements of Section 422 of the Code but the terms of which provide that they
will not be treated as Incentive Stock Options (referred to herein as a
"Non-Statutory Stock Option"). Non-Statutory Stock Options which are not
intended to meet those requirements shall be subject to the following terms and
conditions:
(a) A Non-Statutory Stock Option may be granted to any individual or
entity eligible to receive an Option under the Plan pursuant to Section
4(b) hereof.
(b) The option price of the shares of Common Stock subject to a
Non-Statutory Stock Option shall be determined by the Board of Directors or
the Committee, in its sole discretion, at the time of the grant of the
Non-Statutory Stock Option.
(c) A Non-Statutory Stock Option granted under the Plan may be of such
duration as shall be determined by the Board of Directors or the Committee
(subject to earlier termination as expressly provided in Section 12
hereof).
8. Reload Feature. The Board of Directors or the Committee may grant
Options with a reload feature. A reload feature shall only apply when the option
price is paid by delivery of Common Stock (as set forth in Section 13(b)(ii)).
The Stock Option Agreement for the Options containing the reload feature shall
provide that the Option holder shall receive, contemporaneously
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with the payment of the option price in shares of Common Stock, a reload stock
option (the "Reload Option") to purchase that number of shares of Common Stock
equal to the sum of (i) the number of shares of Common Stock used to exercise
the Option, and (ii) with respect to Non-Statutory Stock Options, the number of
shares of Common Stock used to satisfy any tax withholding requirement incident
to the exercise of such Non-Statutory Stock Option. The terms of the Plan
applicable to the Option shall be equally applicable to the Reload Option with
the following exceptions: (i) the option price per share of Common Stock
deliverable upon the exercise of the Reload Option, (A) in the case of a Reload
Option which is an Incentive Stock Option being granted to a Principal
Stockholder, shall be one hundred ten percent (110%) of the fair market value of
a share of Common Stock on the date of grant of the Reload Option and (B) in the
case of a Reload Option which is an Incentive Stock Option being granted to a
person other than a Principal Stockholder or is a Non-Statutory Stock Option,
shall be the fair market value of a share of Common Stock on the date of grant
of the Reload Option; and (ii) the term of the Reload Option shall be equal to
the remaining option term of the Option (including a Reload Option) which gave
rise to the Reload Option. The Reload Option shall be evidenced by an
appropriate amendment to the Stock Option Agreement for the Option which gave
rise to the Reload Option. In the event the exercise price of an Option
containing a reload feature is paid by check and not in shares of Common Stock,
the reload feature shall have no application with respect to such exercise.
9. Rights of Option Holders. The holder of any Option granted under the
Plan shall have none of the rights of a stockholder with respect to the stock
covered by his Option until such stock shall be transferred to him upon the
exercise of his Option.
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10. Alternate Stock Appreciation Rights.
(a) Concurrently with, or subsequent to, the award of any Option to
purchase one or more shares of Common Stock, the Board of Directors or the
Committee may, in its sole discretion, subject to the provisions of the
Plan and such other terms and conditions as the Board of Directors or the
Committee may prescribe, award to the optionee with respect to each share
of Common Stock covered by an Option ("Related Option"), a related
alternate stock appreciation right ("SAR"), permitting the optionee to be
paid the appreciation on the Related Option in lieu of exercising the
Related Option. An SAR granted with respect to an Incentive Stock Option
must be granted together with the Related Option. An SAR granted with
respect to a Non-Statutory Stock Option may be granted together with, or
subsequent to, the grant of such Related Option.
(b) Each SAR granted under the Plan shall be authorized by the Board
of Directors or the Committee, and shall be evidenced by an SAR Agreement
which shall be executed by the Company and by the individual or entity to
whom such SAR is granted. The SAR Agreement shall specify the period during
which the SAR is exercisable, and such other terms and provisions not
inconsistent with the Plan.
(c) An SAR may be exercised only if and to the extent that its Related
Option is eligible to be exercised on the date of exercise of the SAR. To
the extent that a holder of an SAR has a current right to exercise, the SAR
may be exercised from time to time by delivery by the holder thereof to the
Company at its principal office (attention: Secretary) of a written notice
of the number of shares with respect to which it is being exercised. Such
notice shall be accompanied by the agreements evidencing the SAR and the
Related Option. In the event the SAR shall not be exercised in full, the
Secretary of the Company shall endorse or cause to be endorsed on the SAR
Agreement and the Related Option Agreement the number of shares which have
been exercised thereunder and
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the number of shares that remain exercisable under the SAR and the Related
Option and return such SAR and Related Option to the holder thereof.
(d) The amount of payment to which an optionee shall be entitled upon
the exercise of each SAR shall be equal to one hundred percent (100%) of
the amount, if any, by which the fair market value of a share of Common
Stock on the exercise date exceeds the exercise price per share of the
Related Option; provided, however, the Company may, in its sole discretion,
withhold from any such cash payment any amount necessary to satisfy the
Company's obligation for withholding taxes with respect to such payment.
(e) The amount payable by the Company to an optionee upon exercise of
a SAR may, in the sole determination of the Company, be paid in shares of
Common Stock, cash or a combination thereof, as set forth in the SAR
Agreement. In the case of a payment in shares, the number of shares of
Common Stock to be paid to an optionee upon such optionee's exercise of an
SAR shall be determined by dividing the amount of payment determined
pursuant to Section 10(d) hereof by the fair market value of a share of
Common Stock on the exercise date of such SAR. For purposes of the Plan,
the exercise date of an SAR shall be the date the Company receives written
notification from the optionee of the exercise of the SAR in accordance
with the provisions of Section 10(c) hereof. As soon as practicable after
exercise, the Company shall either deliver to the optionee the amount of
cash due such optionee or a certificate or certificates for such shares of
Common Stock. All such shares shall be issued with the rights and
restrictions specified herein.
(f) SARs shall terminate or expire upon the same conditions and in the
same manner as the Related Options, and as set forth in Section 12 hereof.
(g) The exercise of any SAR shall cancel and terminate the right to
purchase an equal number of shares covered by the Related Option.
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(h) Upon the exercise or termination of any Related Option, the SAR
with respect to such Related Option shall terminate to the extent of the
number of shares of Common Stock as to which the Related Option was
exercised or terminated.
(i) An SAR granted pursuant to the Plan shall be exercisable only by
the optionee hereof during the optionee's lifetime and, subject to the
provisions of Section 10(f) hereof.
(j) An SAR granted pursuant to the Plan shall not be assigned,
transferred, pledged or hypothecated in any way (whether by operation of
law or otherwise) and shall not be subject to execution, attachment, or
similar process. Any attempted transfer, assignment, pledge, hypothecation,
or other disposition of any SAR or of any rights granted thereunder
contrary to the foregoing provisions of this Section 10(j), or the levy of
any attachment or similar process upon an SAR or such rights, shall be null
and void.
11. Transferability. No Option granted under the Plan shall be transferable
by the individual or entity to whom it was granted otherwise than by will or the
laws of descent and distribution, and, during the lifetime of such individual,
shall not be exercisable by any other person, but only by him.
12. Termination of Employment or Death.
(a) Subject to the terms of the Stock Option Agreement, if the
employment of an employee by, or the services of a non-employee Director
for, or consultant or advisor to, the Company or a subsidiary corporation
of the Company shall be terminated for cause or voluntarily by the
employee, non-employee Director, consultant or advisor, or a non-employee
to whom an offer of employment has been extended does not accept such offer
of employment with the Company or a subsidiary corporation of the Company,
or the Company or such subsidiary withdraws such offer, then his or its
Option shall expire forthwith. Subject to the terms of the Stock Option
Agreement,
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and except as provided in subsections (b) and (c) of this Section 12, if
such employment or services shall terminate for any other reason, then such
Option may be exercised at any time within three (3) months after such
termination, subject to the provisions of subsection (d) of this Section
12. For purposes of the Plan, the retirement of an individual either
pursuant to a pension or retirement plan adopted by the Company or at the
normal retirement date prescribed from time to time by the Company shall be
deemed to be termination of such individual's employment other than
voluntarily or for cause. For purposes of this subsection (a), an employee,
non-employee Director, consultant or advisor who leaves the employ or
services of the Company to become an employee or non- employee Director of,
or a consultant or advisor to, a subsidiary corporation of the Company or a
corporation (or subsidiary or parent corporation of the corporation) which
has assumed the Option of the Company as a result of a corporate
reorganization or the like shall not be considered to have terminated his
employment or services.
(b) Subject to the terms of the Stock Option Agreement, if the holder
of an Option under the Plan dies (i) while employed by, or while serving as
a non-employee Director for or a consultant or advisor to, the Company or a
subsidiary corporation of the Company, or (ii) within three (3) months
after the termination of his employment or services other than voluntarily
by the employee or non-employee Director, consultant or advisor, or for
cause, then such Option may, subject to the provisions of subsection (d) of
this Section 12, be exercised by the estate of the employee or non-employee
Director, consultant or advisor, or by a person who acquired the right to
exercise such Option by bequest or inheritance or by reason of the death of
such employee or non- employee Director, consultant or advisor at any time
within one (1) year after such death.
(c) Subject to the terms of the Stock Option Agreement, if the holder
of an Option under the Plan ceases employment or services because of
permanent and total disability
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(within the meaning of Section 22(e)(3) of the Code) while employed by, or
while serving as a non- employee Director for or consultant or advisor to,
the Company or a subsidiary corporation of the Company, then such Option
may, subject to the provisions of subsection (d) of this Section 12, be
exercised at any time within one (1) year after his termination of
employment, termination of Directorship or termination of consulting or
advisory services, as the case may be, due to the disability.
(d) An Option may not be exercised pursuant to this Section 12 except
to the extent that the holder was entitled to exercise the Option at the
time of termination of employment, termination of Directorship, termination
of consulting or advisory services, or death, and in any event may not be
exercised after the expiration of the Option.
(e) For purposes of this Section 12, the employment relationship of an
employee of the Company or of a subsidiary corporation of the Company will
be treated as continuing intact while he is on military or sick leave or
other bona fide leave of absence (such as temporary employment by the
Government) if such leave does not exceed ninety (90) days, or, if longer,
so long as his right to re-employment is guaranteed either by statute or by
contract.
13. Exercise of Options.
(a) Unless otherwise provided in the Stock Option Agreement, any
Option granted under the Plan shall be exercisable in whole at any time, or
in part from time to time, prior to expiration. The Board of Directors or
the Committee, in its absolute discretion, may provide in any Stock Option
Agreement that the exercise of any Options granted under the Plan shall be
subject (i) to such condition or conditions as it may impose, including,
but not limited to, a condition that the holder thereof remain in the
employ or service of, or continue to provide consulting or advisory
services to, the Company or a subsidiary corporation of the Company for
such period or periods from
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the date of grant of the Option as the Board of Directors or the Committee,
in its absolute discretion, shall determine; and (ii) to such limitations
as it may impose, including, but not limited to, a limitation that the
aggregate fair market value of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by any employee
during any calendar year (under all plans of the Company and its parent and
subsidiary corporations) shall not exceed one hundred thousand dollars
($100,000). In addition, in the event that under any Stock Option Agreement
the aggregate fair market value of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by any employee
during any calendar year (under all plans of the Company and its parent and
subsidiary corporations) exceeds one hundred thousand dollars ($100,000),
the Board of Directors or the Committee may, when shares are transferred
upon exercise of such Options, designate those shares which shall be
treated as transferred upon exercise of an Incentive Stock Option and those
shares which shall be treated as transferred upon exercise of a Non-
Statutory Stock Option.
(b) An Option granted under the Plan shall be exercised by the
delivery by the holder thereof to the Company at its principal office
(attention of the Secretary) of written notice of the number of shares with
respect to which the Option is being exercised. Such notice shall be
accompanied, or followed within ten (10) days of delivery thereof, by
payment of the full option price of such shares, and payment of such option
price shall be made by the holder's delivery of (i) his check payable to
the order of the Company, or (ii) previously acquired Common Stock, the
fair market value of which shall be determined as of the date of exercise,
or by the holder's delivery of any combination of the foregoing (i) and
(ii).
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14. Adjustment Upon Change in Capitalization.
(a) In the event that the outstanding Common Stock is hereafter
changed by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination of shares,
reverse split, stock dividend or the like, an appropriate adjustment shall
be made by the Board of Directors or the Committee in the aggregate number
of shares available under the Plan, in the number of shares and option
price per share subject to outstanding Options, and in any limitation on
exerciseability referred to in Section 13(a)(ii) hereof which is set forth
in outstanding Incentive Stock Options. If the Company shall be
reorganized, consolidated, or merged with another corporation, the holder
of an Option shall be entitled to receive upon the exercise of his Option
the same number and kind of shares of stock or the same amount of property,
cash or securities as he would have been entitled to receive upon the
happening of any such corporate event as if he had been, immediately prior
to such event, the holder of the number of shares covered by his Option;
provided, however, that in such event the Board of Directors or the
Committee shall have the discretionary power to take any action necessary
or appropriate to prevent any Incentive Stock Option granted hereunder
which is intended to be an "incentive stock option" from being disqualified
as such under the then existing provisions of the Code or any law
amendatory thereof or supplemental thereto.
(b) Any adjustment in the number of shares shall apply proportionately
to only the unexercised portion of the Option granted hereunder. If
fractions of a share would result from any such adjustment, the adjustment
shall be revised to the next lower whole number of shares.
15. Further Conditions of Exercise.
(a) Unless prior to the exercise of the Option the shares issuable
upon such exercise have been registered with the Securities and Exchange
Commission pursuant to the Act,
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the notice of exercise shall be accompanied by a representation or
agreement of the person or estate exercising the Option to the Company to
the effect that such shares are being acquired for investment purposes and
not with a view to the distribution thereof, and such other documentation
as may be required by the Company, unless in the opinion of counsel to the
Company such representation, agreement or documentation is not necessary to
comply with such Act.
(b) The Company shall not be obligated to deliver any Common Stock
until it has been listed on each securities exchange or market on which the
Common Stock may then be listed or until there has been qualification under
or compliance with such federal or state laws, rules or regulations as the
Company may deem applicable. The Company shall use reasonable efforts to
obtain such listing, qualification and compliance.
16. Effectiveness of the Plan. The Plan was adopted by the Board of
Directors of the Company on June 8, 2000.
17. Termination, Modification and Amendment.
(a) The Plan (but not Options or SARs previously granted under the
Plan) shall terminate on June 7, 2010, which is within ten (10) years from
the date of its adoption by the Board of Directors of the Company, or
sooner as hereinafter provided, and no Option shall be granted after
termination of the Plan.
(b) The Plan may from time to time be terminated, modified, or amended
by the affirmative vote of the holders of a majority of the outstanding
shares of capital stock of the Company present at a meeting of shareholders
and entitled to vote thereon (or, in the case of action by written consent,
a majority of the outstanding shares of capital stock of the Company
entitled to vote thereon).
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(c) The Board of Directors may at any time, on or before the
termination date referred to in Section 17(a) hereof, terminate the Plan,
or from time to time make such modifications or amendments to the Plan as
it may deem advisable; provided, however, that the Board of Directors shall
not, without approval by the affirmative vote of the holders of a majority
of the outstanding shares of capital stock of the Company present at a
meeting of shareholders and entitled to vote thereon (or, in the case of
action by written consent, a majority of the outstanding shares of capital
stock of the Company entitled to vote thereon), change the designation of
the employees or class of employees eligible to receive Incentive Stock
Options, or make any other change which would prevent any Incentive Stock
Option granted hereunder which is intended to be an "incentive stock
option" from qualifying as such under the then existing provisions of the
Code or any law amendatory thereof or supplemental thereto.
(d) No termination, modification, or amendment of the Plan may,
without the consent of the individual or entity to whom any Option shall
have been granted, adversely affect the rights conferred by such Option.
18. Not a Contract of Employment. Nothing contained in the Plan or in any
Stock Option Agreement executed pursuant hereto shall be deemed to confer upon
any individual or entity to whom an Option is or may be granted hereunder any
right to remain in the employ or service of the Company or a subsidiary
corporation of the Company or any entitlement to any remuneration or other
benefit pursuant to any consulting or advisory arrangement.
19. Use of Proceeds. The proceeds from the sale of shares pursuant to
Options granted under the Plan shall constitute general funds of the Company.
20. Indemnification of Board of Directors or Committee. In addition to such
other rights of indemnification as they may have, the members of the Board of
Directors or the
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Committee, as the case may be, shall be indemnified by the Company to the extent
permitted under applicable law against all costs and expenses reasonably
incurred by them in connection with any action, suit, or proceeding to which
they or any of them may be a party by reason of any action taken or failure to
act under or in connection with the Plan or any rights granted thereunder and
against all amounts paid by them in settlement thereof or paid by them in
satisfaction of a judgment of any such action, suit or proceeding, except a
judgment based upon a finding of bad faith. Upon the institution of any such
action, suit, or proceeding, the member or members of the Board of Directors or
the Committee, as the case may be, shall notify the Company in writing, giving
the Company an opportunity at its own cost to defend the same before such member
or members undertake to defend the same on his or their own behalf.
21. Definitions. For purposes of the Plan, the terms "parent corporation"
and "subsidiary corporation" shall have the meanings set forth in Sections
424(e) and 424(f) of the Code, respectively, and the masculine shall include the
feminine and the neuter as the context requires.
22. Governing Law. The Plan shall be governed by, and all questions arising
hereunder shall be determined in accordance with, the laws of the State of
Delaware.
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