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Exhibit 4.1
BLUEFLY, INC.
1997 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purposes of this Bluefly, Inc. 1997 Stock Option Plan (the "Plan") are
to encourage selected employees, consultants and directors 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, each of whom
is both a non-employee director within the meaning of Rule 16b-3 and an "outside
director" as that term is defined for purposes of Section 162(m) of the Code.
(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
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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) "Incentive Stock Option" shall mean an option granted under Section 6
of the Plan that meets the requirements of Section 422 of the Code or any
successor provision thereto.
(h) "Key Employee" shall mean any officer, director or other employee who
is a regular full-time employee of the Company or its present and future
Affiliates.
(i) "Non-Employee Director" shall mean each member of the Board who is not
an employee of the Company or any Affiliate.
(j) "Non-Qualified Stock Option" shall mean an option granted under the
Plan that is not an Incentive Stock Option.
(k) "Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
(1) "Option Agreement" shall mean a written agreement, contract, or other
instrument or document evidencing an Option granted under the Plan.
(m) "Participant" shall mean a Key Employee, Consultant or Non-Employee
Director who has been granted an Option under the Plan.
(n) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
(o) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended, or
any successor rule or regulation thereto.
(p) "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.
(q) "Ten Percent Shareholder" shall mean a Person, who together with his or
her spouse, children and trusts and custodial accounts for their benefit,
immediately at the time of the grant of an Option and assuming its immediate
exercise, would beneficially own, within the
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meaning of Section 424(d) of the Code, Shares possessing more than ten percent
(10%) of the total combined voting power of all of the outstanding capital stock
of the Company.
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 and except
as provided in Section 7 hereof, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine the type or types of
Options to be granted to each Participant under the Plan; (iii) determine the
number of Shares to be covered by Options; (iv) determine the terms and
conditions of any Option; (v) 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; (vi) interpret and administer the Plan and any instruments or
agreements relating to, or Options granted under, the Plan; (vii) 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 (viii)
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
to Key Employees, Consultants and Non-Employee Directors pursuant to, or by
reason of, Options is 5,400,000. No Participant shall be granted in any one
fiscal year Options to
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purchase more than 1,000,000 Shares. To the extent that an Option granted
to a Participant 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;
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
canceled 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.
(ii) Accounting for Awards. For purposes of this Section 4, the number
of Shares covered by an Option to (A) a Key Employee or Consultant or (B) a
Non-Employee Director 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 (x) Key Employees and Consultants or (y) Non-Employee
Directors, respectively.
(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 (of a type described in Treasury
Regulation Section 1.162-27(e)(2)(iii)(C)), 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 (i) with respect to
Incentive Stock Options no such adjustment shall be authorized to the extent
that such adjustment would cause the Plan to violate Section 422 of the Code or
any successor provision thereto; (ii) each such adjustment shall be made in such
manner as not to constitute a cancellation and reissuance of a Non-Qualified
Stock Option for purposes of Section 162(m) of the Code, or the regulations
promulgated thereunder, to the extent that such reissuance would result in the
grant of such Options in excess of the maximum permitted to be granted to any
Participant in any fiscal year; and (iii) the number of Shares subject to any
Option denominated in Shares shall always be a whole number.
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SECTION 5. ELIGIBILITY
Options may be granted only to Key Employees, Consultants and Non-Employee
Directors; provided, however, that Incentive Stock Options may be granted only
to Key Employees. 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, subject to such
limitations as may be imposed by the Code on the grant of incentive Stock
Options.
SECTION 6. OPTION
The Committee is hereby authorized to grant Options to Participants upon
the following terms and the conditions (except to the extent otherwise provided
in Section 7) 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
Incentive Stock Options shall not be less than 100% of the Fair Market
Value of a Share on the date of grant; provided that the purchase price per
Share purchasable under Incentive Stock Options granted to Ten Percent
Shareholders shall be not less than 110% of the Fair Market Value of a
Share on the date of grant. The purchase price per Share purchasable under
Non-Qualified Stock Options shall be the price determined by the Committee.
(b) Option Term. The term of each Non-Qualified Stock Option shall be
fixed by the Committee. The term of each Incentive Stock Option shall in no
event be more than 10 years from the date of grant, or in the case of an
Incentive Stock Option granted to a Ten Percent Shareholder, 5 years from
the date of grant.
(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),
provided in each case that such methods avoid "short-swing" profits to the
Participant under Section 16(b) of the Securities Exchange Act of 1934, as
amended. 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 or Consultant under the Plan will generally be terminated
(i) thirty (30) days after the date on which the Key Employee's employment
is terminated or the period of the Consultant's services ceases, as the
case may be, 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) in
the case of any Incentive Stock Option, three months after the date on
which the Key Employee's employment is terminated by reason of retirement
or one year after the Key Employee's employment is terminated by reason of
mental or physical disability, or in the case of any Non-Qualified Stock
Option, three months after the date on which the Key Employee's employment
is terminated or the period of the Consultant's services ceases, as the
case may be, by reason of retirement or mental or physical disability, or
in the discretion of the Committee up to one year after the date on which
the Key Employee's employment is terminated or the period of the
Consultant's services ceases, as the case may be, 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 or the period of the
Consultant's services ceases, as the case may be, by reason of the death of
the Key Employee or the Consultant, as the case may be, or (B) three months
after the date on which the Key Employee or the Consultant, as the case may
be, shall die if such death shall occur during the three-month period
following the termination of the Key Employee's employment or the cessation
of the Consultant's services, as the case may be, 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 Board 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. For purposes of this
paragraph (d), no act shall be considered willful unless done or omitted to
be done not in good faith and without reasonable belief that such action or
omission was in the best interest of the Company.
(e) Incentive Stock Options. All terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the provisions of
Section 422 of the Code, or any successor provision thereto, and any
regulations promulgated thereunder.
(f) 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.
(g) Limits on Transfer of Options. Subject to Code Section 422, no
Option and no right under any such Option, shall be assignable, alienable,
saleable, or
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transferable by a Participant otherwise than by will or by the laws of
descent and distribution; provided, however, that, if so determined by the
Committee, a Participant may, in the manner established by the Committee,
designate a beneficiary or beneficiaries to exercise the rights of the
Participant, and to receive any property distributable, with respect to any
Option upon the death of the Participant. 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 with
respect to any Option that is not an Incentive Stock Option, 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.
(h) Term of Options. Except as set forth in Section 6(b) and Section 7,
the term of each Option shall be for such period as may be determined by
the Committee.
(i) 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.
SECTION 7. OPTIONS AWARDED TO NON-EMPLOYEE DIRECTORS
Each Non-Employee Director who was a member of the Board on the Effective
Date (defined hereafter) shall automatically be granted on such date a
Non-Qualified Stock Option to purchase 5,000 Shares, subject to all of the
provisions of the Plan. Each person who is either elected or appointed a
Non-Employee Director, and who has not previously received a grant of
Non-Qualified Stock Options pursuant to the Plan, shall automatically be granted
a Non-Qualified Stock Option to purchase 3,750 Shares on the date of their
appointment or election, subject to the provisions of the Plan. In addition,
each Non-Employee Director who is a member of the Board on April 30 of a year
during the term of the Plan beginning in calendar year 1998 shall automatically
be granted a Non-Qualified Stock Option to purchase 3,750 Shares on May 1of the
following year. All Options granted to Non-Employee Directors pursuant to the
Plan shall (a) be (in the case of a grant under this Section 7) at an exercise
price per Share equal to 100% of the Fair Market Value of a Share on the date of
the grant; (b) have (in the case of a grant under this Section 7) a term of 10
years; (c) terminate (i) thirty (30) days after termination of a Non-Employee
Director's service as a director of the Company for any reason other than
retirement or mental or physical disability or death, (ii) thirty (30) days
after the date the Non-
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Employee Director ceases to serve as a director of the Company due to retirement
or physical or mental disability, or in the discretion of the Committee up to
one year after the date the Non-Employee Director ceases to serve as a director
of the Company due to retirement or physical or mental disability or (iii)(A) 12
months after the date the Non-Employee Director ceases to serve as a director
due to the death of the Non-Employee Director or (B) three months after the
death of the Non-Employee Director if such death shall occur during the three
month period following the date the Non-Employee Director ceased to serve as a
director of the Company due to physical or mental disability; and (d) be
otherwise on the same terms and conditions as all other Options granted pursuant
to the Plan.
SECTION 8. 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 Section
162(m) of the Code, Section 422 of the Code, Rule 16b-3 or any other 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.
(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 9. 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
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tax liability is determined (the "Tax Date"). If a Participant elects within
thirty (30) days of the date of exercise to be subject to withholding tax on the
exercise date pursuant to the provisions of Section 83(b) of the Code, then the
share withholding election may be made during such thirty (30) day period.
Notwithstanding the foregoing, a holder whose transactions in Common Stock are
subject to Section 16(b) of the Securities Exchange Act of 1934, as amended, may
make a share withholding election only if the following additional conditions
are met: (i) the share withholding election is made no sooner than six (6)
months after the date of grant of the Option, except, however, such six (6)
month condition shall not apply if the Participant's death or disability (as
shall be determined by the Committee) occurs within such six (6) month period;
and (ii) the share withholding election is made (x) at least six (6) months
prior to the Tax Date, or (y) during the period beginning on the third business
day following the date of release of the Company's quarterly or annual financial
results and ending on the twelfth business day following such date.
(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 9, and (i) within thirty (30) days of the date of exercise of the
Option, the Participant elects pursuant to the provisions of Section 83(b) of
the Code to be subject to withholding tax on the date of exercise of the Option,
then such Participant will be unconditionally obligated to immediately 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, together with
written notice to the Company informing the Company of the Participant's
election pursuant to Section 83(b) of the Code; or (ii) if the Participant has
not made an election pursuant to the provisions of Section 83(b) of the Code,
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 10. VESTING LIMITATION ON INCENTIVE STOCK OPTIONS
The Fair Market Value of Shares subject to Incentive Stock Options
(determined as of the date such Incentive Stock Options are granted) exercisable
for the first time by any individual during any calendar year shall in no event
exceed $100,000.
SECTION 11. 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
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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 12. DEDUCTIBILITY OF COMPENSATION
Prior to the end of the "reliance period" as defined in Treasury Regulation
Section 1.162-27(f)(2), the Committee shall take such actions, if any, that it
deems necessary or appropriate so that the compensation element of Non-Qualified
Stock Options will qualify as "qualified performance-based compensation," within
the meaning of Treasury Regulation Section 1.162-27(e).
SECTION 13. EFFECTIVE DATE OF THE PLAN
The Plan is effective as of the closing of the Company's initial public
offering (the "Effective Date").
SECTION 14. 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) March 4, 2007. 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.
