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Exhibit 10.1
ANYDAY.COM, INC.
1999 STOCK INCENTIVE PLAN
1. PURPOSES OF THE PLAN.
The purposes of this 1999 Stock Incentive Plan of AnyDay.com, Inc. (the
"Company") are to promote the interests of the Company and its stockholders by
strengthening the Company's ability to attract, motivate, and retain employees,
directors, consultants and advisors of exceptional ability and to provide a
means to encourage stock ownership and a proprietary interest in the Company to
selected employees, directors, consultants and advisors of the Company upon
whose judgment, initiative, and efforts the financial success and growth of the
business of the Company largely depend.
2. DEFINITIONS.
(a) "Accelerate," "Accelerated," and "Acceleration," when used with
respect to an Option, mean that, as of the relevant time of reference, 50% of
any shares subject to such Option that are at such time not "vested" shall
become immediately exercisable and the remaining shares not "vested" shall
continue to vest as set forth in the applicable Option agreement.
(b) "Acquisition" means
(i) a merger or consolidation in which securities possessing
more than 50% of the total combined voting power of the Company's
outstanding securities are transferred to a person or persons
different from the persons who held those securities immediately prior
to such transaction, or
(ii) the sale, transfer, or other disposition of all or
substantially all of the Company's assets to one or more persons
(other than any wholly owned subsidiary of the Company) in a single
transaction or series of related transactions.
(c) "Beneficial Ownership" means beneficial ownership determined pursuant
to Securities and Exchange Commission Rule 13d-3 promulgated under the Exchange
Act.
(d) "Board" means the Board of Directors of the Company.
(e) "Change in Control" means the date on which any individual,
corporation, partnership or other person or entity (together with its
"Affiliates" and "Associates," as defined in Rule 12b-2 under the Exchange Act
"beneficially owns" (as defined in Rule 13d-3
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under the Exchange Act) in the aggregate 50% or more of the outstanding shares
of capital stock of the Company entitled to vote generally in the election of
directors of the Company.
(f) "Committee" means the Compensation Committee of the Board; provided,
that the Board by resolution duly adopted may at any time or from time to time
determine to assume any or all of the functions of the Committee under the Plan,
and during the period of effectiveness of any such resolution, references herein
to the "Committee" shall mean the Board acting in such capacity.
(g) "Common Stock" means the authorized Common Stock of the Company, par
value $.001 per share.
(h) "Company" means AnyDay.com, Inc.
(i) "Eligible Person" means any person who is, at the time of the grant of
an Option or Restricted Stock Award, an employee (including officers and
employee directors), director, consultant or advisor of the Company or any
Subsidiary.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as amended
and in effect from time to time.
(k) "Fair Market Value" means the value of a share of Common Stock as of
the relevant time of reference, determined as follows. If the Common Stock is
then publicly traded, Fair Market Value shall be (i) the last sale price of a
share of Common Stock on the principal national securities exchange on which the
Common Stock is traded, if the Common Stock is then traded on a national
securities exchange; or (ii) the last sale price of the Common Stock reported in
the NASDAQ National Market System, if the Common Stock is not then traded on a
national securities exchange; or (iii) the average of the closing bid and asked
prices for the Common Stock quoted by an established quotation service for over-
the-counter securities, if the Common Stock is not then traded on a national
securities exchange or reported in the NASDAQ National Market System. If the
Common Stock is not then publicly traded, Fair Market Value shall be the fair
value of a share of the Common Stock as determined by the Board or the
Committee, taking into consideration such factors as it deems appropriate, which
may include recent sale and offer prices of Common Stock in arms'-length private
transactions.
(l) "Hostile Takeover" means a change in ownership of the Company effected
through the following transaction:
(i) any person or related group of persons (other than the
Company or a person that directly or indirectly controls, is
controlled by, or is under common control with the Company) directly
or indirectly acquires Beneficial Ownership of securities possessing
more than 50% of the total combined voting power of the Company's
outstanding securities pursuant to a tender or
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exchange offer made directly to the Company's stockholders that the
Board does not recommend such stockholders to accept, and
(ii) more than 50% of the securities so acquired in such
tender or exchange offer are accepted from holders other than the
officers and directors of the Company who are subject to the short-
swing profit restrictions of Section 16 of the Exchange Act.
(m) "Incentive Stock Option" means an Option intended to qualify as an
"incentive stock option" under Section 422 of the Internal Revenue Code and
regulations thereunder.
(n) "Nonqualified Stock Option" means an Option that is not an Incentive
Stock Option.
(o) "Option" means an Incentive Stock Option or a Nonqualified Stock
Option.
(p) "Participant" means any Eligible Person selected to receive an Option
or Restricted Stock Award pursuant to Section 5 or any Permitted Transferee to
whom an Option or restricted shares of Common Stock granted pursuant to a
Restricted Stock Award have been transferred in accordance with Section 9.
(q) "Permitted Transferee" means any immediate family member of a person
to whom an Option or Restricted Stock Award has been granted pursuant to Section
5 or a trust maintained exclusively for the benefit of, or partnership all of
the interests in which are held by, one or more of such immediate family
members.
(r) "Plan" means this 1999 Stock Incentive Plan as set forth herein and as
amended and/or restated from time to time.
(s) "Restricted Stock Award" means a right to the grant or purchase, at a
price determined by the Committee, of Common Stock which is nontransferable,
except in accordance with Section 9(e), and subject to substantial risk of
forfeiture until specific conditions of continuing employment or performance are
met.
(t) "Subsidiary" means any subsidiary corporation (as defined in Section
424 of the Internal Revenue Code) of the Company.
(u) "Takeover Price" means, with respect to any Incentive Stock Option,
the Fair Market Value per share of Common Stock on the date such Option is
surrendered to the Company in connection with a Hostile Takeover, or in the case
of a Nonqualified Stock Option, such Fair Market Value or, if greater, the
highest reported price per share of Common Stock paid by the tender offeror in
effecting such Hostile Takeover.
3. SHARES OF COMMON STOCK SUBJECT TO THE PLAN.
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(a) Subject to adjustment in accordance with the provisions of Section
3(c) and Section 8 of the Plan, the aggregate number of shares of Common Stock
that may be issued or transferred pursuant to Options or Restricted Stock Awards
under the Plan shall not exceed 1,040,567 shares.
(b) The shares of Common Stock to be delivered under the Plan will be made
available, at the discretion of the Committee, from authorized but unissued
shares of Common Stock and/or from previously issued shares of Common Stock
reacquired by the Company.
(c) If shares covered by any Option cease to be issuable for any reason,
and/or shares covered by Restricted Stock Awards are forfeited, such number of
shares will no longer be charged against the limitation provided in Section 3(a)
and may again be made subject to Options or Restricted Stock Awards.
4. ADMINISTRATION OF THE PLAN.
(a) The Plan will be governed by and interpreted and construed in
accordance with the internal laws of the State of Delaware (without reference to
principles of conflicts or choice of law). The captions of sections of the Plan
are for reference only and will not affect the interpretation or construction of
the Plan.
(b) The Plan will be administered by the Committee, which shall consist of
two or more persons. The Committee has and may exercise such powers and
authority of the Board as may be necessary or appropriate for the Committee to
carry out its functions as described in the Plan. The Committee shall make all
determinations required under the Plan, including the Eligible Persons to whom,
and the time or times at which, Options or Restricted Stock Awards may be
granted, the exercise price or purchase price (if any) of each Option or
Restricted Stock Award, whether each Option is intended to qualify as an
Incentive Stock Option or a Nonqualified Stock Option, and the number of shares
subject to each Option or Restricted Stock Award. The Committee also has
authority (i) to interpret the Plan, (ii) to determine the terms and provisions
of the Option or Restricted Stock Award instruments, and (iii) to make all other
determinations necessary or advisable for Plan administration. The Committee has
authority to prescribe, amend, and rescind rules and regulations relating to the
Plan. All interpretations, determinations, and actions by the Committee will be
final, conclusive, and binding upon all parties.
(c) No member of the Committee will be liable for any action taken or
determination made in good faith by the Committee with respect to the Plan or
any Option or Restricted Stock Award granted under it.
5. GRANTS.
(a) The Committee shall determine and designate from time to time those
Eligible Persons who are to be granted Options or Restricted Stock Awards, the
type of each Option
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to be granted and the number of shares covered thereby or issuable upon exercise
thereof, and the number of shares covered by each Restricted Stock Award. Each
Option and Restricted Stock Award will be evidenced by a written agreement or
instrument and may include any other terms and conditions consistent with the
Plan, as the Committee may determine.
(b) No person will be eligible for the grant of an Incentive Stock Option
who owns or would own immediately before the grant of such Option, directly or
indirectly, stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Company or of any parent corporation or
Subsidiary. This will not apply if, at the time such Incentive Stock Option is
granted, its exercise price is at least 110% of the Fair Market Value of the
Common Stock and by its terms, it is not exercisable after the expiration of
five years from the date of grant.
6. TERMS AND CONDITIONS OF STOCK OPTIONS.
(a) The price at which Common Stock may be purchased by a Participant
under an Option shall be determined by the Committee; provided, however, that
the purchase price under an Incentive Stock Option shall not be less than 100%
of the Fair Market Value of the Common Stock on the date of grant of such
Option.
(b) Each Option shall be exercisable at such time or times, during such
periods, and for such numbers of shares as shall be determined by the Committee
and set forth in the agreement or instrument evidencing the Option grant
(subject to Acceleration by the Committee, in its discretion). The Option shall
expire no later than three months following termination of the optionee's
employment or consulting relationship with the Company or a Subsidiary, except
in the event that such termination is due to death or disability, in which case
the Option may be exercisable for a maximum of twelve months after such
termination. In any event, the Option shall expire no later than the tenth
anniversary of the date of grant.
(c) Unless the Compensation Committee otherwise determines (whether at the
time the Option is granted or, if the Option is a Nonqualified Stock Option,
thereafter), upon the exercise of an Option the purchase price will be payable
in full in cash.
(d) Incentive Stock Options may be granted under the Plan only to
employees of the Company or one of its Subsidiaries, and the aggregate Fair
Market Value (determined as of the date the Incentive Stock Option is granted)
of the number of shares with respect to which Incentive Stock Options are
exercisable for the first time by a Participant in any calendar year shall not
exceed one hundred thousand dollars ($100,000) or such other limit as may be
required by the Internal Revenue Code. Any Options that purport to be Incentive
Stock Options but which are granted to persons other than employees of the
Company or one of its Subsidiaries shall be, and any Options that purport to be
Incentive Stock Options but are granted in amounts in excess of those specified
in this Section 6(d), shall to the extent of such excess be, Nonqualified Stock
Options.
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(e) Subject to the short-swing profit restrictions of the Federal
securities laws, if applicable, each Option granted to any officer of the
Company may provide that upon the occurrence of a Hostile Takeover, such Option
will automatically be canceled in exchange for a cash distribution from the
Company in an amount equal to the excess of (i) the aggregate Takeover Price of
the shares of Common Stock at the time subject to the canceled Option
(regardless of whether the Option is otherwise then exercisable for such shares)
over (ii) the aggregate Option price payable for such shares. Such cash
distribution shall be made within five days after the consummation of the
Hostile Takeover. No subsequent approval of the Committee or of the Board shall
be required in connection with such Option cancellation and cash distribution.
7. TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS.
(a) All shares of Common Stock subject to Restricted Stock Awards granted
or sold pursuant to the Plan may be issued or transferred for such consideration
(which may consist wholly of services) as the Committee may determine, and will
be subject to the following conditions:
(i) Unless the Committee determines otherwise in accordance with
Section 9(e), the shares may not be sold, transferred, or otherwise
alienated or hypothecated, except to the Company, until the restrictions
thereon, if any, are removed or expire.
(ii) The Committee shall provide in the agreement or instrument
evidencing the grant of the Restricted Stock Awards that the certificates
representing shares subject to Restricted Stock Awards granted or sold
pursuant to the Plan will be held in escrow by the Company until the
restrictions on the shares lapse in accordance with the provisions of
subsection (b) of this Section 7.
(iii) Each certificate representing shares subject to Restricted Stock
Awards granted or sold pursuant to the Plan will bear a legend making
appropriate reference to the restrictions thereon, if any.
(iv) The Committee may impose such other conditions on any shares
subject to Restricted Stock Awards granted or sold pursuant to the Plan as
it may deem advisable, including without limitation, restrictions under the
Securities Act of 1933, as amended, under the requirements of any stock
exchange or securities quotations system upon which such shares or shares
of the same class are then listed, and under any blue sky or other
securities laws applicable to such shares.
(b) Any restrictions imposed under subparagraph (a) above upon Restricted
Stock Awards will lapse at such time or times, and/or upon the achievement of
such predetermined performance objectives, as shall be determined by the
Committee and set forth in the agreement or instrument evidencing the Restricted
Stock Award. In the event a holder of a Restricted Stock Award ceases to be an
employee, director, consultant or advisor of the Company, all shares under the
Restricted Stock Award that remain subject to restrictions at
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the time his or her employment, directorship or consulting or advising
relationship terminates will be returned to or repurchased, as the case may be,
by the Company unless the Committee determines otherwise.
(c) Subject to the provisions of subparagraphs (a) and (b) above, the
holder will have all rights of a shareholder with respect to the shares covered
by Restricted Stock Awards granted or sold, including the right to receive all
dividends and other distributions paid or made with respect thereto; provided,
however, that, if requested by the Company, he or she shall execute an
irrevocable proxy or enter into a voting agreement with the Company as
determined by the Committee for the purpose of granting the Company or its
nominee the right to vote all shares that remain subject to restrictions under
this Section 7 in the same proportions (for and against) as the outstanding
voting shares of the Company that are not subject to such restrictions are voted
by the other shareholders of the Company on any matter, unless the Committee
determines otherwise.
8. ADJUSTMENT PROVISIONS.
(a) All of the share numbers set forth in the Plan reflect the capital
structure of the Company at the time of the effectiveness of the Plan. If
subsequent to such date the outstanding shares of Common Stock of the Company
are increased, decreased, or exchanged for a different number or kind of shares
or other securities, or if additional shares or new or different shares or other
securities are distributed with respect to such shares of Common Stock or other
securities, through merger, consolidation, sale of all or substantially all the
property of the Company, reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split, or other distribution with
respect to such shares of Common Stock, or other securities, an appropriate and
proportionate adjustment shall be made in (i) the maximum numbers and kinds of
shares provided in Section 3, (ii) the numbers and kinds of shares or other
securities subject to the then outstanding Options and Restricted Stock Awards,
and (iii) the price for each share or other unit of any other securities subject
to then outstanding Options (without change in the aggregate purchase price as
to which such Options remain exercisable).
(b) In the event of an Acquisition or a Change in Control, the unvested
shares of Common Stock held as Restricted Stock Awards shall immediately vest in
full.
(c) Upon a Change in Control or Acquisition, all outstanding Options shall
Accelerate. The Committee, in its discretion, may grant Options which by their
terms provide for accelerated vesting upon such conditions as determined by the
Committee.
(d) Each outstanding Option that is assumed in connection with an
Acquisition, or is otherwise to continue in effect subsequent to such
Acquisition, shall be appropriately adjusted, immediately after such
Acquisition, to apply to the number and class of securities that would have been
issued to the Option holder, upon consummation of such Acquisition, had such
holder exercised such Option immediately prior to such Acquisition. Appropriate
adjustments shall also be made to the Option price payable per share, provided,
that the
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aggregate Option price payable for such securities shall remain the same. The
class and number of securities available for issuance under the Plan following
the consummation of such Acquisition shall be appropriately adjusted.
(e) Adjustments under this Section 8 will be made by the Committee, whose
determination as to what adjustments will be made and the extent thereof so as
to effectuate the intent of this Section 8 will be final, binding, and
conclusive. No fractional shares will be issued under the Plan on account of any
such adjustments.
9. GENERAL PROVISIONS.
(a) Nothing in the Plan or in any instrument executed pursuant to the Plan
will confer upon any Participant any right to continue in the employ of or as a
director, consultant or adviser to the Company or any of its Subsidiaries or
affect the right of the Company or any Subsidiary to terminate the employment,
directorship or consulting or advising relationship of any Participant at any
time, with or without cause.
(b) No shares of Common Stock will be issued or transferred pursuant to an
Option or Restricted Stock Award unless and until all then applicable
requirements imposed by Federal and state securities and other laws, rules and
regulations and by any regulatory agencies having jurisdiction, and by any stock
exchanges or securities quotations systems upon which the Common Stock may be
listed, have been fully met. As a condition precedent to the issuance of shares
pursuant to the grant or exercise of an Option or Restricted Stock Award, the
Company may require the Participant to take any reasonable action to meet such
requirements.
(c) No Participant and no beneficiary or other person claiming under or
through such Participant will have any right, title, or interest in or to any
shares of Common Stock allocated or reserved under the Plan or subject to any
Option, except as to such shares of Common Stock, if any, that have been issued
or transferred to such Participant.
(d) Except as set forth in paragraph (e) below, no Option and no right
under the Plan, contingent or otherwise, will be transferable or assignable or
subject to any encumbrance, pledge, or charge of any nature except that, under
such rules and regulations as the Committee may establish pursuant to the terms
of the Plan, a beneficiary may be designated with respect to an Option in the
event of death of a Participant. If such beneficiary is the executor or
administrator of the estate of the Participant, any rights with respect to such
Option may be transferred to the person or persons or entity (including a trust)
entitled thereto under the will of the holder of such Option.
(e) The Committee may, upon the grant of a Nonqualified Stock Option or a
Restricted Stock Award or by amendment to any written agreement or instrument
evidencing such Nonqualified Stock Option or Restricted Stock Award, provide
that such Nonqualified Stock Option or Restricted Stock Award be transferable by
the person to whom such Nonqualified Stock Option or Restricted Stock Award was
granted, without payment of
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consideration, to a Permitted Transferee of such person; provided, however, that
no transfer of a Nonqualified Stock Option or Restricted Stock Award shall be
valid unless first approved by the Committee, acting in its sole discretion.
(f) The written agreements or instruments evidencing Restricted Stock
Awards or Options granted under the Plan may contain such other provisions as
the Committee may deem advisable. Without limiting the foregoing, and if so
authorized by the Committee, the Company may, with the consent of the
Participant and at any time or from time to time, cancel all or a portion of any
Option granted under the Plan then subject to exercise and discharge its
obligation with respect to the Option either by payment to the Participant of an
amount of cash equal to the excess, if any, of the Fair Market Value, at such
time, of the shares subject to the portion of the Option so canceled over the
aggregate purchase price specified in the Option covering such shares, or by
issuance or transfer to the Participant of shares of Common Stock with a Fair
Market Value at such time, equal to any such excess, or by a combination of cash
and shares. Upon any such payment of cash or issuance of shares, (i) there shall
be charged against the aggregate limitations set forth in Section 3(a) a number
of shares equal to the number of shares so issued plus the number of shares
purchasable with the amount of any cash paid to the Participant on the basis of
the Fair Market Value as of the date of payment, and (ii) the number of shares
subject to the portion of the Option so canceled, less the number of shares so
charged against such limitations, shall thereafter be available for other
grants.
10. AMENDMENT AND TERMINATION.
(a) The Board shall have the power, in its discretion, to amend, modify,
suspend, or terminate the Plan at any time, subject to applicable law and the
rights of holders of outstanding Options and Restricted Stock Awards on the date
of such action.
(b) The Committee may, with the consent of a Participant, make such
modifications in the terms and conditions of an Option or Restricted Stock Award
held by such Participant as it deems advisable.
(c) No amendment, suspension or termination of the Plan will, without the
consent of the Participant, alter, terminate, impair, or adversely affect any
right or obligation under any Option or Restricted Stock Award previously
granted to such Participant under the Plan.
11. EFFECTIVE DATE OF PLAN AND DURATION OF PLAN.
The Plan became effective upon its adoption by the Board and by the
Company's stockholders on February 17, 1999. Unless previously terminated, the
Plan will terminate on February 16, 2009.
