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Exhibit 4.1
BLUEFLY, INC.
2000 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purposes of this Bluefly, Inc. 2000 Stock Option Plan (the "Plan") are
to encourage selected employees and consultants of Bluefly, Inc. (together with
any successor thereto, the "Company" ) and its Affiliates (as defined below) to
acquire a proprietary interest in the growth and performance of the Company, to
generate an increased incentive to contribute to the Company's future success
and prosperity, thus enhancing the value of the Company for the benefit of its
shareholders, and to enhance the ability of the Company and its Affiliates to
attract and retain qualified individuals upon whom, in large measure, the
sustained progress, growth, and profitability of the Company depend.
SECTION 2. DEFINITIONS
As used in the Plan, the following terms shall have the meanings set forth
below:
(a) "Affiliate" shall mean any entity that, directly or through one or more
intermediaries, is controlled by, controls or is under common control with the
Company.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" shall mean a committee of the Board designated by the Board
to administer the Plan and composed of not less than two directors.
(e) "Consultant" shall mean any Person who contracts to provide services to
the Company as an independent contractor.
(f) "Fair Market Value" shall mean, with respect to Shares or other
securities (i) the closing price per Share of the Shares on the principal
exchange on which the Shares are then trading, if any, on such date, or, if the
Shares were not traded on such date, then on the next preceding trading day
during which a sale occurred; or (ii) if the Shares are not traded on an
exchange but are quoted on NASDAQ or a successor quotation system, (1) the last
sales price (if the Shares are then listed as a National Market Issue under the
NASDAQ National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the Shares on such
date as reported by NASDAQ or such successor quotation system; or (iii) if the
Shares are not publicly traded on an exchange and not quoted on NASDAQ or a
successor quotation system, the mean between the closing bid and asked prices
for the Shares on such date as determined in good faith by the Committee; or
(iv) if the provisions of clauses (i), (ii) and (iii) shall not be applicable,
the fair market value established by the Committee acting in good faith.
(g) "Key Employee" shall mean any regular full-time employee of the Company
or its present and future Affiliates (other than any employee who is an officer
or director of the Company or its present and future Affiliates).
(h) "Incentive Stock Option" shall mean, if this Plan is approved by the
stockholders of the Company within 12 months after this Plan is adopted, each
Option granted to a Key Employee if and to the extent such Option qualifies as
an "inventive stock option" within the meaning of Section 422 of the Code.
(i) "Option" shall mean an option granted under Section 6 of the Plan.
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(j) "Option Agreement" shall mean a written agreement, contract, or other
instrument or document evidencing an Option granted under the Plan.
(k) "Participant" shall mean a Key Employee or Consultant who has been
granted an Option under the Plan.
(l) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
(m) "Shares" shall mean the common stock of the Company, $.01 par value,
and such other securities or property as may become the subject of Options
pursuant to an adjustment made under Section 4(b) of the Plan.
SECTION 3. ADMINISTRATION
(a) Generally. The Plan shall be administered by the Committee. Unless
otherwise expressly provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the Plan or any
Option shall be within the sole discretion of the Committee, may be made at any
time, and shall be final, conclusive, and binding upon all Persons, including
the Company, any Affiliate, any Participant, any holder or beneficiary of any
Option, any shareholder of the Company or any Affiliate, and any employee of the
Company or of any Affiliate.
(b) Powers. Subject to the terms of the Plan and applicable law, the
Committee shall have full power and authority in its discretion to: (i)
designate Participants; (ii) determine the number of Shares to be covered by
Options; (iii) determine the terms and conditions of any Option; (iv) determine
whether, to what extent, and under what circumstances Options may be settled or
exercised in cash, Shares, other Options, or other property, or canceled,
forfeited, or suspended, and the method or methods by which Options may be
settled, exercised, canceled, forfeited, or suspended; (v) interpret and
administer the Plan and any instruments or agreements relating to, or Options
granted under, the Plan; (vi) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (vii) make any other determination and take any
other action that the Committee deems necessary or desirable for the
administration of the Plan.
(c) Reliance, Indemnification. The Committee may employ attorneys,
consultants, accountants or other persons and the Committee, the Company and its
officers and directors shall be entitled to rely upon the advice, opinions or
valuations of any such persons. No member of the Committee shall be personally
liable for any action, determination or interpretation taken or made in good
faith with respect to the Plan, or Options granted thereunder and all members of
the Committee shall be fully indemnified and protected by the Company in respect
of any such action, determination or interpretation.
SECTION 4. SHARES AVAILABLE FOR OPTIONS
(a) Shares Available. Subject to adjustment as provided in Section 4(b):
(i) Limitation on Number of Shares. Options issuable under the Plan are
limited such that the maximum aggregate number of Shares which may issued
pursuant to, or by reason of, Options is 1,500,000. Further, no Participant
shall be granted in any one fiscal year Options to purchase more than
100,000 Shares. To the extent that an Option granted to a Key Employee or
Consultant ceases to remain outstanding by reason of termination of rights
granted thereunder, forfeiture or otherwise, the Shares subject to such
Option shall again become available for award under the Plan to Key
Employees and Consultants; provided, however, that in the case of the
cancellation or termination of an Option in the same fiscal year that such
Option was granted, both the cancelled Option and the newly granted Option
shall be counted in determining whether the recipient has received the
maximum number of such Options under the Plan for such fiscal year.
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(ii) Accounting for Awards. For purposes of this Section 4, the number
of Shares covered by an Option to a Key Employee or Consultant shall be
counted on the date of grant of such Option against the aggregate number of
Shares available for granting Options under the Plan to Key Employees and
Consultants.
(iii) Sources of Shares Deliverable Under Options. Any Shares delivered
pursuant to an Option may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall determine that any
(i) subdivision or consolidation of Shares, (ii) dividend or other distribution
(in the form of Shares), (iii) recapitalization or other capital adjustment of
the Company or (iv) merger, consolidation or other reorganization of the Company
or other rights to purchase Shares or other securities of the Company, or other
similar corporate transaction or event, affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee shall, in such manner as it
may deem necessary to prevent dilution or enlargement of the benefits or
potential benefits intended to be made under the Plan, adjust any or all of (x)
the number and type of Shares which thereafter may be made the subject of
Options, (y) the number and type of Shares subject to outstanding Options, and
(z) the grant, purchase, or exercise price with respect to an Option or, if
deemed appropriate, make provision for a cash payment to the holder of an
outstanding Option, provided, however, in each case, that the number of Shares
subject to any Option denominated in Shares shall always be a whole number.
SECTION 5. ELIGIBILITY
Options may be granted only to Key Employees and Consultants; provided,
however, that Incentive Stock Options may be granted only to Key Employees of
the Company and those Affiliates which are a "subsidiary corporation" of the
Company (within the meaning of Section 424(f) of the Code). In determining the
Persons to whom Options shall be granted and the number of Shares to be covered
by each Option, the Committee shall take into account the nature of the Person's
duties, such Person's present and potential contributions to the success of the
Company and such other factors as it shall deem relevant in connection with
accomplishing the purposes of the Plan. A Key Employee or Consultant who has
been granted an Option or Options under the Plan may be granted an additional
Option or Options.
SECTION 6. OPTION
The Committee is hereby authorized to grant Options to Participants upon
the following terms and the conditions and with such additional terms and
conditions, in either case not inconsistent with the provisions of the Plan, as
the Committee shall determine:
(a) Exercise Price. The purchase price per Share purchasable under
Options shall be the price determined by the Committee.
(b) Option Term. The term of each Option shall be fixed by the
Committee.
(c) Time and Method of Exercise. The Committee shall determine the time
or times at which an Option may be exercised in whole or in part, and the
method or methods by which, and the form or forms in which, payment of the
option price with respect thereto may be made or deemed to have been made
(including, without limitation, (i) cash, Shares, outstanding Options or
other consideration, or any combination thereof, having a Fair Market Value
on the exercise date equal to the relevant option price and (ii) a
broker-assisted cashless exercise program established by the Committee).
The payment of the exercise price of an Option may be made in a single
payment or transfer, in installments, or on a deferred basis, in each case
in accordance with rules and procedures established by the Committee.
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(d) Early Termination. The unexercised portion of any Option granted to
a Key Employee under the Plan will generally be terminated, unless
otherwise determined by the Committee, (i) thirty (30) days after the date
on which the Key Employee's employment is terminated for any reason other
than (A) Cause (as defined below), (B) retirement or mental or physical
disability, or (C) death; (ii) immediately upon the termination of the Key
Employee's employment for Cause; (iii) three months after the date on which
the Key Employee's employment is terminated by reason of retirement or
mental or physical disability; or (iv)(A) 12 months after the date on which
the Key Employee's employment is terminated by reason of the death of the
Key Employee, or (B) three months after the date on which the Key Employee
shall die if such death shall occur during the three-month period following
the termination of the Key Employee's employment by reason of retirement or
mental or physical disability. The term "Cause," as used herein, shall mean
(w) the Key Employee's willful misconduct or fraud in the performance of
his duties under such Key Employee's employment arrangement with the
Company, (x) the continued failure or refusal of the Key Employee
(following written notice thereof) to carry out any reasonable request of
the Company for the provision of services under such Key Employee's
employment arrangement with the Company, (y) the material breach by the Key
Employee of his employment arrangement with the Company or (z) the entering
of a plea of guilty or nolo contendere to or the conviction of the Key
Employee for a felony or any other criminal act involving moral turpitude,
dishonesty, theft or unethical business conduct.
(e) No Cash Consideration for Awards. Awards shall be granted for no
cash consideration or such minimal cash consideration as may be required by
applicable law.
(f) Limits on Transfer of Options. No Option and no right under any
such Option, shall be assignable, alienable, saleable, or transferable by a
Participant otherwise than by will or by the laws of descent and
distribution. Each Option, and each right under any such Option, shall be
exercisable during the Participant's lifetime, only by the Participant or,
if permissible under applicable law, by the Participant's guardian or legal
representative. No Option and no right under any such Option, may be
pledged, alienated, attached, or otherwise encumbered, and any purported
pledge, alienation, attachment, or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
(g) Share Certificates. All certificates for Shares or other securities
of the Company delivered under the Plan pursuant to any Option or the
exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the
rules, regulations, and other restrictions of the Securities and Exchange
Commission, any stock exchange upon which such Shares or other securities
are then listed, and any applicable Federal or state securities laws, and
the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(h) Any Option which is an Incentive Stock Option shall be subject to,
and comply with the requirements of, Section 422 of the Code.
SECTION 7. AMENDMENT AND TERMINATION
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Option Agreement or in the Plan:
(a) Amendments to the Plan. The Plan may be wholly or partially amended or
otherwise modified, suspended or terminated at any time or from time to time by
the Board, but no amendment without the approval of the shareholders of the
Company shall be made if shareholder approval would be required under any law or
rule of any governmental authority, stock exchange or other self-regulatory
organization to which the Company is subject. Neither the amendment, suspension
or termination of the Plan shall, without the consent of the holder of such
Option, alter or impair any rights or obligations under any Option theretofore
granted.
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(b) Adjustments of Options Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee shall be authorized to make adjustments in
the terms and conditions of, and the criteria included in, Options in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4(b) hereof) affecting the Company, any
Affiliate, or the financial statements of the Company or any Affiliate or of
changes in applicable laws, regulations, or accounting principles, whenever the
Committee determines that such adjustments are appropriate in order to prevent
enlargement of the benefits or potential benefits to be made available under the
Plan.
(c) Correction of Defects, Omissions, and Inconsistencies. The Committee
may correct any defect, supply any omission or reconcile any inconsistency in
the Plan or any Option in the manner and to the extent it shall deem desirable
to carry the Plan into effect.
SECTION 8. ELECTION TO HAVE SHARES WITHHELD
(a) In combination with or in substitution for cash withholding or any
other legal method of satisfying federal and state withholding tax liability, a
Participant may elect to have Shares withheld by the Company or to have Shares
sold in a broker-assisted transaction in order to satisfy federal and state
withholding tax liability (a "share withholding election"), provided (i) the
Committee shall have adopted procedures providing for a withholding election;
and (ii) the share withholding election is made on or prior to the date on which
the amount of withholding tax liability is determined (the "Tax Date"). If the
Committee adopts procedures for broker-assisted transactions, a Participant
shall also be permitted to satisfy the exercise price of Options through
withholding of Shares rather than cash payments in the manner prescribed by the
Committee.
(b) A share withholding election shall be deemed made when written notice
of such election, signed by the Participant, has been hand delivered or
transmitted by registered or certified mail to the Secretary of the Company at
its then principal office. Delivery of said notice shall constitute an
irrevocable election to have Shares withheld.
(c) If a Participant has made a share withholding election pursuant to this
Section 8, then on the Tax Date, such Participant will be unconditionally
obligated to tender back to the Company the number of Shares having an aggregate
fair market value (as determined in good faith by the Committee), equal to the
amount of tax required to be withheld plus cash for any fractional amount.
SECTION 9. GENERAL PROVISIONS
(a) No Rights to Awards. No Key Employee or Consultant shall have any claim
to be granted any Option under the Plan, and there is no obligation for
uniformity of treatment of Key Employees or Consultants or holders or
beneficiaries of Options under the Plan. The terms and conditions of Options
need not be the same with respect to each recipient.
(b) No Limit on Other Plans. Nothing contained in the Plan shall prevent
the Company or any Affiliate from adopting or continuing in effect other or
additional compensation arrangements and such arrangements may be either
generally applicable or applicable only in specific cases.
(c) No Right to Employment. The grant of an Option shall not be construed
as giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability, or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Option
Agreement.
(d) Governing Law. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan shall be determined in accordance
with the laws of the State of New York and applicable Federal law.
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(e) Severability. If any provision of the Plan or any Option is or becomes
or is deemed to be invalid, illegal, or unenforceable in any jurisdiction, or
would disqualify the Plan or any Option under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan, such
provision shall be deemed void, stricken and the remainder of the Plan and any
such Option shall remain in full force and effect.
(f) No Trust or Fund Created. Neither the Plan nor any Option shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any other
Person. To the extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Option, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Affiliate.
(g) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Option, and the Committee shall determine whether
cash, other securities, or other property shall be paid or transferred in lieu
of any fractional Shares or whether such fractional Shares or any rights thereto
shall be canceled, terminated, or otherwise eliminated.
(h) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision hereof.
SECTION 10. EFFECTIVE DATE OF THE PLAN
The Plan is effective as of July 1, 2000 (the "Effective Date").
SECTION 11. TERM OF THE PLAN
The Plan shall continue until the earlier of (i) the date on which all
Options issuable hereunder have been issued, (ii) the termination of the Plan by
the Board or (iii) June 30, 2010. However, unless otherwise expressly provided
in the Plan or in an applicable Option Agreement, any Option theretofore granted
may extend beyond such date and the authority of the Committee to amend, alter,
adjust, suspend, discontinue, or terminate any such Option or to waive any
conditions or rights under any such Option, and the authority of the Board to
amend the Plan, shall extend beyond such date.
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