JVWEB, INC.
2000 NON-QUALIFIED STOCK OPTION PLAN
1. NAME AND PURPOSES OF THE PLAN
(a) The plan set forth herein shall be known as "JVWeb, Inc. 2000
Non-Qualified Stock Option Plan" (the "Plan").
(b) The purposes of the Plan are to:
(i) Encourage selected employees, directors and
consultants to improve operations and increase
profits of JVWeb, Inc., a Delaware corporation (the
"Company");
(ii) Encourage selected employees, directors and
consultants to accept or continue employment or
association with the Company or its Affiliates (as
defined below); and
(iii) Increase the interest of selected employees,
directors and consultants in the Company's welfare
through participation in the growth in value of the
common stock of the Company (the "Common Stock").
(c) The options granted pursuant to this Plan are not intended to
qualify as "incentive stock options" under Section 422(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the provisions of this Plan
need not be construed in a manner consistent with the requirements of that Code
section.
2. ELIGIBLE PERSONS AND CERTAIN DEFINITIONS
Any consultant, non-employee director, or full-time employee of the
Company or of any Affiliate selected by the Administrator (as defined herein) in
its sole discretion is eligible to receive a grant of an option pursuant to this
Plan (an "Option"). The term "Affiliate" as used in the Plan means a parent or
subsidiary corporation as defined in the applicable provisions (currently
Sections 424(e) and (f), respectively) of the Code. The term "employee" includes
an officer or director who is an employee of the Company. The term "consultant"
includes persons employed by, or otherwise affiliated with, a consultant. The
term "Optionee" shall refer to a person in whose favor an Option is granted
pursuant to this Plan. The term "Acquired Shares" shall refer to the shares of
Common Stock acquired by an Optionee pursuant to an exercise of an Option.
3. STOCK SUBJECT TO THIS PLAN
The total number of shares of Common Stock that may be issued under
Options granted pursuant to this Plan shall not exceed 5.0 million. Shares
covered by any Option that expires unexercised shall become available again for
grants under the Plan.
4. ADMINISTRATION
(a) This Plan shall be administered by the Board of Directors of the
Company (the "Board") or by a committee of at least two Board members to which
administration of the Plan, or of part of the Plan, is delegated (in either
case, the "Administrator").
(b) Subject to the other provisions of this Plan, the Administrator
shall have the authority, in its discretion: (i) to grant Options; (ii) to
determine the Fair Market Value of the Common Stock subject to Options in
accordance with Section 6.11 hereof; (iii) to determine the exercise price of
Options granted; (iv) to determine the persons to whom, and the time or times at
which, Options shall be granted, and the number of shares subject to each
Option; (v) to interpret this Plan; (vi) to prescribe, amend, and rescind rules
and regulations relating to this Plan; (vii) to determine the terms and
provisions of each Option granted (which need not be identical), including but
not limited to, the time or times at which Options shall be exercisable; (viii)
with the consent of the Optionee, to modify or amend any Option; (ix) to defer
(with the consent of the Optionee) the exercise date of any Option; (x) to
authorize any person to execute on behalf of the Company any instrument
evidencing the grant of an Option; and (xi) to make all other determinations
deemed necessary or advisable for the administration of this Plan. The
Administrator may delegate nondiscretionary administrative duties to such
employees of the Company as it deems proper.
(c) All questions of interpretation, implementation, and
application of this Plan shall be determined by the Administrator. Such
determinations shall be final and binding on all persons.
(d) With respect to persons subject to Section 16 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), if any, transactions
under this Plan are intended to comply with the applicable conditions of Rule
16b-3, or any successor rule thereto. To the extent any provision of this Plan
or action by the Administrator fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable by the Administrator.
Notwithstanding the above, it shall be the responsibility of such persons, not
of the Company or the Administrator, to comply with the requirements of Section
16 of the Exchange Act; and neither the Company nor the Administrator shall be
liable if this Plan or any transaction under this Plan fails to comply with the
applicable conditions of Rule 16b-3 or any successor rule thereto, or if any
such person incurs any liability under Section 16 of the Exchange Act.
5. GRANTING OF OPTIONS; OPTION AGREEMENT
(a) No Options shall be granted under this Plan after ten years from
the date of adoption of this Plan by the Board.
(b) Each Option shall be evidenced by a written stock option agreement
(an "Option Agreement"), in form satisfactory to the Company, executed by the
Company and the person to whom such Option is granted; provided, however, that
the failure by the Company, the Optionee, or both to execute such an agreement
shall not invalidate the granting of an Option, although the exercise of each
Option shall be subject to Section 6.3.
(c) The Administrator may approve the grant of Options under this Plan
to persons who are expected to become employees, directors or consultants of the
Company, but are not employees, directors or consultants at the date of
approval.
6. TERMS AND CONDITIONS OF OPTIONS
Each Option granted under this Plan shall be subject to the following
terms and conditions:
6.1 Changes in Capital Structure. Subject to Section 6.2, if the Common
Stock is changed by reason of a stock split, reverse stock split, stock
dividend, or recapitalization, combination or reclassification, appropriate
adjustments shall be made by the Administrator in (a) the number and class of
shares of Common Stock subject to this Plan and each Option outstanding under
this Plan, and (b) the exercise price of each outstanding Option; provided,
however, that the Company shall not be required to issue fractional shares as a
result of any such adjustments. Each such adjustment shall be subject to
approval by the Administrator in its sole discretion.
6.2 Corporate Transactions.
(a) In the event of (i) a dissolution or liquidation of the Company,
(ii) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the shareholders of
the Company or their relative stock holdings and the Options granted under this
Plan are assumed, converted or replaced by the successor or acquiring
corporation, which assumption, conversion or replacement will be binding on all
Optionees), (iii) a merger in which the Company is the surviving corporation but
after which the shareholders of the Company immediately prior to such merger
(other than any shareholder which merges with the Company in such merger, or
which owns or controls another corporation which merges, with the Company in
such merger) cease to own their shares or other equity interests in the Company,
or (iv) the sale of all or substantially all of the assets of the Company, any
or all outstanding Options may be assumed, converted or replaced by the
successor or acquiring corporation (if any), which assumption, conversion or
replacement will be binding on all Optionees. In the alternative, the successor
or acquiring corporation may substitute equivalent options or provide
substantially similar consideration to Optionees as was provided to shareholders
(after taking into account the existing provisions of the Options). The
successor or acquiring corporation may also issue, in place of outstanding
Acquired Shares, substantially similar shares or other property subject to
repurchase restrictions and other provisions no less favorable to the Optionee
than those which applied to the Acquired Shares immediately prior to such
transaction described in this Section 6.2(a). In the event such successor or
acquiring corporation (if any) does not assume or substitute Options, as
provided above, pursuant to a transaction described in this Section 6.2(a), then
notwithstanding any other provision in this Plan to the contrary, the vesting of
such Options will accelerate and the Options will become exercisable in full
prior to the consummation of such event at such times and on such conditions as
the Administrator determines, and if such Options are not exercised prior to the
consummation of the corporate transaction, they shall terminate upon the
consummation of such corporate transaction.
(b) Subject to any greater rights granted to Optionees under the
foregoing provisions of this Section 6.2, in the event of the occurrence of any
transaction described in Section 6.2(a) hereof, any outstanding Options will be
treated as provided in the applicable agreement or plan of merger,
consolidation, dissolution, liquidation or sale of assets.
(c) The Company, from time to time, also may substitute or assume
outstanding options granted by another company, whether in connection with an
acquisition of such other company or otherwise, by either (i) granting an Option
under this Plan in substitution of such other company's option, or (ii) assuming
such option as if it had been granted under this Plan if the terms of such
assumed option could be applied to an Option granted under this Plan. Such
substitution or assumption will be permissible if the holder of the substituted
or assumed option would have been eligible to be granted an Option under this
Plan if the other company had applied the rules of this Plan to such grant. In
the event the Company assumes an option granted by another company, the terms
and conditions of such Option will remain unchanged (except that the exercise
price and the number and nature of shares issuable upon exercise of any such
Option may be adjusted appropriately pursuant to Section 424(a) of the Code. In
the event the Company elects to grant a new Option rather than assuming an
existing option, such new Option may be granted with a similarly adjusted
exercise price.
6.3 Time of Option Exercise. Subject to Section 5, Options granted
under this Plan shall be exercisable (a) immediately as of the effective date of
the Option Agreement granting the Option, or (b) in accordance with a vesting
schedule attached to the Option Agreement and signed by Optionee; provided,
however, that the right to exercise an Option must vest at the rate of at least
20% per year over five years from the date the Option was granted. In any case,
no Option shall be exercisable until an Option Agreement in form satisfactory to
the Company is executed by the Company and the Optionee.
6.4 Option Grant Date. Except in the case of advance approvals
described in Section 5(c), the date of grant of an Option under this Plan shall
be the date as of which the Administrator approves the grant.
6.5 Nonassignability of Option Rights. No Option granted under this
Plan shall be assignable or otherwise transferable by the Optionee except by
will or by the laws of descent and distribution. During the life of the
Optionee, an Option shall be exercisable only by the Optionee.
6.6 Payment. Except as provided below, payment in full, in cash, shall
be made for all Common Stock purchased at the time written notice of exercise of
an Option is given to the Company, and proceeds of any payment shall constitute
general funds of the Company. At the time an Option is granted or exercised, the
Administrator, in the exercise of its absolute discretion after considering any
tax or accounting consequences, may authorize any one or more of the following
additional methods of payment:
(a) Acceptance of the Optionee's full recourse promissory note for all
or part of the exercise price, payable on such terms and bearing such interest
rate as determined by the Administrator (but in no event less than the minimum
interest rate specified under the Code at which no additional interest would be
imputed), which promissory note may be either secured or unsecured in such
manner as the Administrator shall approve (including, without limitation, by a
security interest in the Acquired Shares); and
(b) Delivery by the Optionee of Common Stock already owned by the
Optionee for all or part of the exercise price, provided the Fair Market Value
(determined as set forth in Section 6.11) of such Common Stock is equal on the
date of exercise to the exercise price, or such portion thereof as the Optionee
is authorized to pay by delivery of such stock; provided, however, that if an
Optionee has exercised any portion of any Option granted by the Company by
delivery of Common Stock, the Optionee may not, within six months following such
exercise, exercise any Option granted under this Plan by delivery of Common
Stock without the consent of the Administrator.
6.7 Termination.
(a) Subject to earlier termination pursuant to Section 6.2 hereof and
notwithstanding the exercise periods set forth in the related Option Agreement,
exercise of an Option will always be subject to the following:
(i) If an Optionee is Terminated for any reason except death,
Disability or Cause, then an Optionee may exercise such Optionee's
Options, only to the extent that such Options are exercisable on the
Termination Date and such Options must be exercised by an Optionee, if
at all, within three (3) months after the Termination Date (or within
such shorter time period, not less than thirty (30) days after the
Termination Date, or such longer time period not exceeding five (5)
years after the Termination Date as may be determined by the
Administrator), but in any event, no later than the expiration date of
the Options.
(ii) If an Optionee is Terminated because of Optionee's death
or Disability (or an Optionee dies within three (3) months after
Optionee's Termination other than for Cause), then Optionee's Options
may be exercised, only to the extent that such Options are exercisable
by Optionee on the Termination Date and must be exercised by Optionee
(or Optionee's legal representative or authorized assignee), if at all,
within twelve (12) months after the Termination Date (or within such
shorter time period, not less than six (6) months after the Termination
Date, or such longer time period not exceeding five (5) years after the
Termination Date as may be determined by the Administrator), but in any
event no later than the expiration date of the Options.
(iii) If an Optionee is terminated for Cause, then Optionee's
Options shall expire on such Optionee's Termination Date, or at such
later time and on such conditions as are determined by the
Administrator.
(b) "Termination" or "Terminated" means, for purposes of this Plan with
respect to an Optionee, that the Optionee has for any reason ceased to provide
services as an employee, officer, director or consultant to the Company or an
Affiliate. An Optionee will not be deemed to have ceased to provide services in
the case of (i) sick leave, (ii) military leave, or (iii) any other leave of
absence approved by the Administrator, provided that such leave is for a period
of not more than ninety (90) days, unless reinstatement upon the expiration of
such leave is guaranteed by contract or statute or unless provided otherwise
pursuant to formal policy adopted from time to time by the Company and issued
and promulgated in writing. In the case of any Optionee on (i) sick leave, (ii)
military leave or (iii) an approved leave of absence, the Administrator may make
such provisions respecting suspension of vesting of the Option while the
Optionee is on leave from the Company or an Affiliate as the Administrator may
deem appropriate, except that in no event may an Option be exercised after the
expiration of the term set forth in the related Option Agreement. The
Administrator will have sole discretion to determine whether an Optionee has
ceased to provide services and the effective date on which the Optionee ceased
to provide services (the "Termination Date").
(c) "Disability" means a disability, whether temporary or
permanent, partial or total, as determined by the Administrator.
(d) "Cause" means Termination because of (i) any willful material
violation by the Optionee of any law or regulation applicable to the business of
the Company or an Affiliate, the Optionee's conviction for or guilty plea to, a
felony or a crime involving moral turpitude or any willful perpetration by the
Optionee of a common law fraud, (ii) the Optionee's commission of an act of
personal dishonesty which involves a personal profit in connection with the
Company or any other entity having a business relationship with the Company,
(iii) any material breach by the Optionee of any material provision of any
agreement or understanding between the Company or an Affiliate and the Optionee
regarding the terms of the Optionee's service as an employee, director or
consultant to the Company or an Affiliate, including without limitation, the
willful and continued failure or refusal of the Optionee to perform the material
duties required of such Optionee as an employee, director or consultant of the
Company or an Affiliate, other than as a result of having a Disability, or a
breach of any applicable invention assignment and confidentiality agreement or
similar agreement between the Company or an Affiliate and the Optionee, (iv)
Optionee's intentional disregard of the policies of the Company or an Affiliate
so as to cause loss, damage or injury to the property, reputation or employees
of the Company or an Affiliate, or (v) any other misconduct by the Optionee
which is materially injurious to the financial condition or business reputation
of, or is otherwise materially injurious to, the Company or an Affiliate.
6.8 Repurchase of Stock. At the discretion of the Administrator, the
Company may reserve to itself and/or its assignee(s) in the Option Agreement a
right to repurchase Acquired Shares held by a Optionee following such Optionee's
Termination at any time within ninety (90) days after Optionee's Termination
Date (or in the case of securities issued upon exercise of an Option after the
Optionee's Termination Date, within ninety (90) days after the date of such
exercise) for cash and/or cancellation of purchase money indebtedness, at the
Optionee's exercise price for the Acquired Shares, provided, that such right to
repurchase Acquired Shares at the exercise price shall lapse at the rate of at
least twenty percent (20%) per year over five (5) years from the date of grant
of the Option.
6.9 Withholding and Employment Taxes.
(a) Whenever shares of Common Stock are to be issued in satisfaction of
Options granted under this Plan, the Company may require the Optionee to remit
to the Company an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such shares. Whenever, under this Plan, payments in
satisfaction of Options are to be made in cash, such payment will be net of an
amount sufficient to satisfy federal, state, and local withholding tax
requirements.
(b) When, under applicable tax laws, an Optionee incurs tax liability
in connection with the exercise or vesting of any Option that is subject to tax
withholding and the Optionee is obligated to pay the Company the amount required
to be withheld, the Administrator may in its sole discretion allow the Optionee
to satisfy the minimum withholding tax obligation by electing to have the
Company withhold from the shares to be issued that number of shares having a
Fair Market Value (determined in accordance with Section 6.11 hereof) equal to
the minimum amount required to be withheld, determined on the date that the
amount of tax to be withheld is to be determined. All elections by an Optionee
to have shares withheld for this purpose will be made in accordance with the
requirements established by the Administrator and be in writing in a form
acceptable to the Administrator.
6.10 Other Provisions. Each Option granted under this Plan may
contain such other terms, provisions, and conditions not inconsistent with this
Plan as may be determined by the Administrator.
6.11 Determination of Value. For purposes of the Plan, the Fair Market
Value of Common Stock or other securities of the Company shall be determined as
follows:
(a) If the Common Stock is listed on or included in any established
stock exchange, national market system (including without limitation the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotation System), or other recognized trading market (including
without limitation the OTC Bulletin Board or the National Quotation Bureau, Inc.
pink sheets), its Fair Market Value shall be the closing sales price for such
stock or the closing bid if no sales were reported, as quoted on such exchange,
system or market (or the most prominent thereof) for the date the Fair Market
Value is to be determined (or if there are no sales for such date, then for the
last preceding business day on which there were sales).
(b) If the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, its Fair Market Value shall be the
means between the high bid and low asked prices for the Common Stock on the date
the Fair Market Value is to be determined (or if there are no quoted prices for
the date of grant, then for the last preceding business day on which there were
quoted prices).
(c) In the absence of an established market for the Common Stock, the
Fair Market Value thereof shall be determined in good faith by the
Administrator, with reference to the Company's net worth, prospective earning
power, dividend-paying capacity, and other relevant factors, including the
goodwill of the Company, the economic outlook in the Company's industry, the
Company's position in the industry and its management, and the values of stock
of other corporations in the same or a similar line of business.
6.12 Option Term. No Option shall be exercisable more than ten
years after the date of grant, or such lesser period of time as is set forth in
the Option Agreement.
6.13 Exercise Price. Except as otherwise provided in this Section 6.13,
the exercise price of an Option shall equal the Fair Market Value (determined in
accordance with Section 6.11) of the Common Stock subject to the Option on the
date of grant. Notwithstanding the preceding, the exercise price of any Option
granted to any person who owns, directly or by attribution under the Code
currently Section 424(d), Common Stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or of any
Affiliate (a "Ten Percent Stockholder") shall in no event be less than 110% of
the Fair Market Value (determined in accordance with Section 6.11) of the Common
Stock covered by the Option at the time the Option is granted.
6.14 Escrow; Pledge of Shares. To enforce any restrictions on an
Optionee's Acquired Shares (including, without limitation, the right of
repurchase provided for in Section 6.8), the Administrator may require the
Optionee to deposit all certificates representing the Acquired Shares, together
with stock powers or other instruments of transfer approved by the
Administrator, appropriately endorsed in blank, with the Company or an agent
designated by the Company to hold in escrow until such restrictions have lapsed
or terminated, and the Administrator may cause a legend or legends referencing
such restrictions to be placed on the certificates. Any Optionee who is
permitted to execute a promissory note as partial or full consideration for the
purchase of shares of Common Stock under this Plan will be required to pledge
and deposit with the Company all or part of the shares so purchased as
collateral to secure the payment of Optionee's obligation to the Company under
the promissory note; provided, however, that the Administrator may require or
accept other or additional forms of collateral to secure the payment of such
obligation and, in any event, the Company will have full recourse against the
Optionee under the promissory note notwithstanding any pledge of the Optionee's
Acquired Shares or other collateral. In connection with any pledge of the
Acquired Shares, an Optionee will be required to execute and deliver a written
pledge agreement in such form as the Administrator will from time to time
approve. Acquired Shares purchased with the promissory note may be released from
the pledge on a pro rata basis as the promissory note is paid at the discretion
of the Administrator.
6.15 Registration of Acquired Shares. At any time or from time to time,
the Board may register, with the United States Securities and Exchange
Commission, all or any portion of the Acquired Shares to be issued upon the
exercise of an Option. If any such Acquired Shares have been so registered and
remain available for issuance upon the exercise of an Option, then upon the
exercise of an Option, solely at the discretion of the Administrator, the
related Optionee may be issued registered Acquired Shares in lieu of
unregistered Acquired Shares.
7. MANNER OF EXERCISE
(a) An Optionee wishing to exercise an Option shall give written notice
to the Company at its principal executive office, to the attention of the
officer of the Company designated by the Administrator, accompanied by payment
of the exercise price as provided in Section 6.6. The date the Company receives
written notice of an exercise hereunder accompanied by payment of the exercise
price will be considered as the date such Option was exercised.
(b) Promptly after receipt of written notice of exercise of an Option,
the Company shall, without stock issue or transfer taxes to the Optionee or
other person entitled to exercise the Option, deliver to the Optionee or (if the
Acquired Shares are to be placed into escrow) to the escrow holder, one or more
certificates for the requisite number of Acquired Shares. An Optionee or
permitted transferee of an Optionee shall not have any privileges as a
shareholder with respect to any shares of Common Stock covered by the Option
until the date of issuance (as evidenced by the appropriate entry on the books
of the Company or a duly authorized transfer agent) of such shares.
8. EMPLOYMENT, DIRECTOR OR CONSULTING RELATIONSHIP
Nothing in this Plan or any Option granted thereunder shall interfere
with or limit in any way the right of the Company or of any of its Affiliates to
terminate any Optionee's employment, director or consulting arrangement at any
time, nor confer upon any Optionee any right to continue in the employ of, on
the Board of, or consult with, the Company or any of its Affiliates.
9. CONDITIONS UPON ISSUANCE OF SHARES.
Shares of Common Stock shall not be issued pursuant to the exercise of
an Option unless the exercise of such Option and the issuance and delivery of
such shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended.
10. NONEXCLUSIVITY OF THE PLAN.
The adoption of the Plan shall not be construed as creating any
limitations on the power of the Company to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options other than under the Plan.
11. AMENDMENT OR TERMINATION OF PLAN
The Board may (without the approval of any Optionee or the Company's
shareholders) modify or amend this Plan in any respect; provided, however, that
no modification or amendment of this Plan shall adversely affect any previously
granted Options without the consent of the related Optionee. The Board may, at
any time or from time to time, suspend or terminate this Plan; provided,
however, that no such action shall adversely affect any previously granted
Options without the consent of the related Optionee.
12. EFFECTIVE DATE OF PLAN
This Plan is effective as of August 2, 2000; provided, however, that
Options may be granted and exercised under this Plan only after there has been
compliance with all applicable federal and state securities laws. This Plan
shall remain in effect until terminated by the Board.
