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SkyAuction.com, Inc.
2000 OMNIBUS PLAN
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SkyAuction.com, Inc.
2000 OMNIBUS PLAN
INDEX
SECTION DESCRIPTION
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1 Purpose of the Plan
2 Definitions
3 Types of Awards Covered
4 Administration
5 Eligibility
6 Shares of Stock Subject to the Plan
7 Stock Options
8 Restricted Stock
9 Other Stock-Based Incentive Awards
10 Rights in Event of Death or Disability
11 Tax Withholding
12 Acquisition Events
13 Securities Matters
14 Amendment or Termination
15 Company Call Rights; Rights of First Refusal
16 Unfunded Plan
17 General Provisions
18 Plan Effective Date
19 Plan Termination
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SkyAuction.com, Inc.
2000 Omnibus Plan
SkyAuction.com, Inc.
2000 OMNIBUS PLAN
SECTION 1
Purpose of the Plan
1.1 There is hereby adopted the SkyAuction.com, Inc. 2000 Omnibus Plan (the
"Plan"). The Plan is intended to promote the interests of SkyAuction.com,
Inc. (the "Company") by providing employees of the Company with
appropriate incentives and rewards to encourage them to enter into and
continue in the employ of the Company and to acquire a proprietary
interest in the long-term success of the Company; and to reward officers,
other employees, consultants, and directors in fulfilling their
responsibilities for long-range achievements.
SECTION 2
Definitions
2.1 As used in he Plan, the following definitions apply to the terms
indicated below:
a) "Acquisition Events" shall mean the meaning ascribed to such term in
Section 12.1 herein.
b) "Affiliate" means each of the following: (i) any Subsidiary; (ii)
any parent corporation of the Company within the meaning of Code
Section 424(e); (iii) any corporation, trade or business (including,
without limitation, a partnership or limited liability company)
which is directly or indirectly controlled 50% or more (whether by
ownership of stock, assets or an equivalent ownership interest or
voting interest) by the Company or one of its Affiliates; and (iv)
any other entity in which the Company or any of its Affiliates has a
material equity interest and which is designated as an "Affiliate"
by resolution of the Committee.
c) "Agreement" shall mean the written agreement between the Company and
a Participant evidencing an Award.
d) "Award" means any Option, Restricted Stock or Other Stock-Based
Award granted under the Plan.
e) "Beneficial Owner" shall have the meaning set forth in Rule 13d-3
under the Exchange Act.
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f) "Board" shall mean the Board of Directors of the Company.
g) "Cause" shall mean:
(1) the willful and continued failure by the Participant
substantially to perform his or her duties and obligations to
the Company (other than any such failure resulting from his or
her incapacity due to physical or mental illness) or, the
performance of any act or the failure to perform any act, which
shall entitle the Company to terminate the employment,
consultancy, directorship or any other relationship or
agreement with such Participant;
(2) the willful engaging by the Participant in misconduct which is
materially injurious to the Company;
(3) the commission by the Participant of a felony; or
(4) the commission by the Participant of a crime against the
Company. For purposes of this Section 2(f), no act, or failure
to act, on a Participant's part shall be considered "willful"
unless done, or omitted to be done, by the Participant in bad
faith and without reasonable belief that his or her action or
omission was in the best interest of the Company.
Determination of Cause shall be made by the Committee in its
sole discretion, except that Cause shall be deemed to exist if
the Participant is a director, and cause for his or her removal
exists under any applicable law.
h) "Change in Control" means the occurrence of anyone of the following
events:
(1) upon any Person (other than the Company, any trustee or other
fiduciary holding securities under any employee benefit plan of
the Company or any company owned, directly or indirectly by the
stockholders of the Company substantially in the same
proportion as their ownership of Common Stock in the Company)
becoming the Beneficial Owner, directly or indirectly, of
securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding voting
securities; or
(2) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals
who, on the Effective Date, constitute the Board and any new
director (other
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than a director whose initial assumption of office is in
connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment
or election by the Board or nomination for election by the
Company's stockholders was approved or recommended by a vote of
at least two-thirds (2/3) of the directors then still in office
who either were directors on the Effective Date or whose
appointment, election or nomination for election was previously
so approved or recommended;
(3) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any
other corporation, other than
(i) a merger or consolidation which would result in the
voting securities of the Company outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted
into voting securities of the surviving or parent
entity) more than 50% of the combined voting power of
the voting securities of the Company or such surviving
or parent entity outstanding immediately after such
merger or consolidation; or
(ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no Person, directly or
indirectly, acquired 50% or more of the combined voting
power of the Company's then outstanding securities (not
including in the securities beneficially owned by such
person any securities acquired directly from the
Company or its Affiliates).
(4) the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or
substantially all of the Company's assets (or any transaction
having a similar effect), other than a sale or disposition by
the Company of all or substantially all of the Company's assets
to an entity at least 50% of the combined voting power of the
voting securities of which are owned by stockholders of the
Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
i) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations promulgated thereunder.
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j) "Committee" means (a) with respect to the application of this Plan
to Employees and independent contractors, the committee established
by the Board to administer the Plan, the composition of which shall
at all times satisfy the provisions of Section 162(m) of the Code
and which committee shall consist of two or more Non-Employee
Directors as defined in Rule 16b-3 under the Exchange Act; provided,
however, that if and to the extent that no Committee exists which
has the authority to administer the Plan, the functions of the
Committee shall be exercised by the Board and all references herein
to the Committee shall be deemed to be references to the Board; and
(b) with respect to the application of this Plan to Non-Employee
Directors, the Board.
k) "Company" means SkyAuction.com, Inc., a corporation organized under
the laws of the State of Delaware, or any successor corporation.
l) "Deferred Shares" shall be awards made pursuant to Section 9 of the
Plan or the right to receive Common Stock in lieu of cash thereof at
the end of a specified time period.
m) "Director" shall mean a member of the Board.
n) "Disability" shall mean:
(1) any physical or mental condition that would qualify a
Participant for a disability benefit under the long-term
disability plan maintained by the Company and applicable to him
or her;
(2) when used in connection with the exercise of an Incentive Stock
Option following termination of employment, disability within
the meaning of Section 22(e)(3) of the Code, or
(3) such other condition as may be determined in the sole
discretion of the Committee to constitute Disability.
o) "Effective Date" shall mean the date of the Plan's adoption by the
Board of Directors subject to approval of the Plan by shareholders.
p) Employee" shall mean any full-time employee of the Company or its
Subsidiaries or its Affiliates (including Directors who are
otherwise employed on a full-time basis by the Company or its
Subsidiaries).
q) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
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r) "Executive Officer" shall have the meaning set forth in Rule 3b-7
promulgated under the Exchange Act.
s) "Fair Market Value" of the Common Stock on a given date shall be
based upon either:
(1) if the Common Stock is listed on a national securities exchange
or quoted in an interdealer quotation system, the last sales
price or, if unavailable, the average of the closing bid and
asked prices per share of the Common Stock on such date (or, if
there was no trading or quotation in the Common Stock on such
date, on the next preceding date on which there was trading or
quotation) as provided by one of such organizations; or
(2) if the Common Stock is not listed on a national securities
exchange or quoted in an interdealer quotation system, the
price will be equal to the Company's fair market value, as
determined by the Committee in good faith based upon the best
available facts and circumstances at the time.
t) "Incentive Stock Option" shall mean an Option that is an "incentive
stock option" within the meaning of Section 422 of the Code, or any
successor provision, and that is designated by the Committee as an
Incentive Stock Option.
u) "Issue Date" shall mean the date established by the Company on which
certificates representing Restricted Stock shall be issued by the
Company pursuant to the terms of Section 8.6.
v) "Non-Employee Director" shall mean a member of the Board who is a
non-employee director" as defined in Rule 16b-3.
w) "Non-Qualified Stock Option" shall mean an Option other than an
Incentive Stock Option.
x) "Option" shall mean an option to purchase a number of shares of
Stock granted pursuant to Section 7.
y) "Other Stock-Based Award" shall mean an award granted pursuant to
Section 9 hereof.
z) "Partial Exercise" shall mean an exercise of an Award for less than
the full extent permitted at the time of such exercise.
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aa) "Participant" shall mean:
(1) an Employee, independent contractor or Non-Employee Director to
whom an Award is granted pursuant to the Plan; and
(2) upon the death of an individual described in (1), his or her
successors, heirs, executors and administrators, as the case
may be.
bb) "Person" shall have the meaning set forth in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include:
(1) the Company,
(2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company,
(3) an underwriter temporarily holding securities pursuant to an
offering of such securities, or
(4) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of shares of Stock of the
Company.
cc) "Plan" means the SkyAuction.com, Inc. 2000 Omnibus Plan, as amended
from time to time.
dd) "Reload Option" shall mean a Non-Qualified Stock Option granted
pursuant to Section 7.3(f).
ee) "Restricted Stock" shall mean a share of Stock which is granted
pursuant to the terms of Section 8 hereof and which is subject to
the restrictions set forth in Section 8.4.
ff) "Rule 16b-3" shall mean Rule 16b-3 promulgated under Section 16(b)
of the Exchange Act, as amended from time to time.
gg) "Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
hh) "Stock" or "Common Stock" means the common stock, par value $.01 per
share, of the Company.
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ii) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of granting
of an Award, each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing 50% or more
of the total combined voting power of all classes of stock in one of
the other corporations in the chain.
jj) "Vesting Date" shall mean the date established by the Committee on
which Restricted Stock may vest.
SECTION 3
Types of Awards Covered
3.1 The Committee may grant Options, Restricted Stock and Other Stock-Based
Awards in such amounts and with such terms and conditions as the
Committee shall determine, subject to the provisions of the Plan.
3.2 Each Award granted under the Plan shall be evidenced by an Agreement
which shall contain such provisions as the Committee may in its sole
discretion deem necessary or desirable.
3.3 By accepting an Award, a Participant thereby agrees that the Award shall
be subject to all of the terms and provisions of the Plan and the
applicable Agreement.
SECTION 4
Administration
4.1 The Plan shall be administered by the Committee. The Committee shall have
the authority in its sole discretion, subject to and not inconsistent
with the express provisions of the Plan, to administer the Plan and to
exercise all the powers and authorities either specifically granted to it
under the Plan or necessary or advisable in the administration of the
Plan, including, without limitation, the authority to:
a) grant Awards;
b) determine the persons to whom and the time or times at which Awards
shall be granted and the type and number of Awards to be granted, as
well as the terms and conditions of such Awards;
c) determine whether, to what extent, and under what circumstances an
Award may be settled, canceled, forfeited, exchanged, or
surrendered;
d) construe and interpret the Plan and any Award;
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e) prescribe, amend and rescind rules and regulations relating to the
Plan;
f) determine the terms and provisions of Agreements;
g) modify, extend or renew an Award, subject to Section 14 herein,
provided, however, that if an Award is modified, extended or renewed
and thereby deemed to be the issuance of a new Award under the Code
or the applicable accounting rules, the exercise price of an Award
may continue to be the original exercise price even if less than the
Fair Market Value of the Common Stock at the time of such
modification, extension or renewal; and
h) make all other determinations deemed necessary or advisable for the
administration of the Plan.
4.2 The Committee may, in its absolute discretion, without amendment to the
Plan:
a) accelerate the date on which any Option granted under the Plan
becomes exercisable, waive or amend the operation of Plan provisions
respecting exercise after termination of employment or otherwise
adjust any of the terms of such Option;
b) accelerate the Vesting Date or waive any condition imposed hereunder
with respect to any Restricted Stock; and
c) otherwise adjust any of the terms applicable to any Award; PROVIDED,
HOWEVER, in each case, that in the event of the occurrence of a
Change in Control, the provisions of Section 12 hereof shall govern
vesting and exercisability schedule of any Award granted hereunder.
4.3 No member of the Committee shall be liable for any action, omission or
determination relating to the Plan, and the Company shall indemnify (to
the extent permitted under Delaware law) and hold harmless each member of
the Committee and each other Director or Employee of the Company to whom
any duty or power relating to the administration or interpretation of the
Plan has been delegated against any cost or expense (including counsel
fees) or liability (including any sum paid in settlement of a claim with
the approval of the Committee) arising out of any action, omission or
determination relating to the Plan, unless, in either case, such action,
omission or determination was taken or made by such member, Director or
Employee in bad faith and without reasonable belief that it was in the
best interests of the Company.
4.4 The Committee may employ such legal counsel and consultants as it may
deem desirable for the administration of the Plan and may rely upon any
opinion received from any such counselor consultant and any computation
received
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from any such consultant. The Committee shall keep minutes of its actions
under the Plan.
4.5 Any decision, interpretation or other action made or taken in good faith
by or at the direction of the Company, the Board or the Committee (or any
of its members) arising out of or in connection with this Plan shall be
within the absolute discretion of all and each of them, as the case may
be, and shall be final, binding and conclusive on the Company and all
employees and Participants and their respective heirs, executors,
administrators, successors and assigns.
SECTION 5
Eligibility
5.1 Incentive Stock Options shall be granted only to Employees (including
officers and directors who are also Employees) of the Company, its parent
or any of its Subsidiaries. All other Awards may be granted to officers,
independent contractors and Employees of the Company or of any of its
Subsidiaries or Affiliates and Non-Employee Directors.
5.2 An Employee or Non-Employee Director who has been granted an Award in one
year shall not necessarily be entitled to be granted Awards in subsequent
years.
SECTION 6
Shares of Stock Subject to the Plan
6.1 The maximum number of shares of Stock reserved for the grant or
settlement of Awards under the Plan at any given time shall be a number
representing 11% of the total number of fully diluted shares of the
Company at such time; provided, however, that the maximum number of
Shares for which Incentive Stock Options may be granted under this plan
shall not exceed 80,000 (which number is subject to adjustment as
provided in Section 6.4 herein). The number of shares of Common Stock
reserved under the Plan shall not be less than the total number of shares
granted, whether exercised or unexercised for all Awards under the Plan.
6.2 The number of shares of Stock that may be awarded in respect of Options,
Restricted Stock and Other Stock-Based Awards to a single individual in
any given year during the life of the Plan shall not exceed 50,000, which
number is subject to adjustment as provided in Section 6.4 herein,
provided, that any such adjustments shall be made in a manner consistent
with Section 162(m) of the Code.
6.3 Such shares may, in whole or in part, be authorized but unissued shares
or shares that shall have been or may be reacquired by the Company in the
open
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market, in private transactions or otherwise. If any shares subject to an
Award are forfeited, canceled, exchanged or surrendered or if an Award
otherwise terminates or expires without a distribution of shares to the
holder of such Award, the shares of Stock with respect to such Award
shall, to the extent of any such forfeiture, cancellation, exchange,
surrender, termination or expiration, again be available for Awards under
the Plan.
6.4 Except as provided in an Award Agreement, in the event that the Committee
shall determine that any dividend or other distribution (whether in the
form of cash, Stock, or other property), recapitalization, Stock split,
reverse Stock split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event, affects the Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of
holders of Awards under the Plan, then the Committee shall make such
equitable changes or adjustments as it deems necessary or appropriate to
any or all of:
a) the number and kind of shares of Stock or other property (including
cash) that may thereafter be issued in connection with Awards;
b) the number and kind of shares of Stock or other property (including
cash) issued or issuable in respect of outstanding Awards;
c) the exercise price, grant price, or purchase price relating to any
Award; provided that, with respect to Incentive Stock Options, such
adjustment shall be made in accordance with Section 424(h) of the
Code; and
d) the individual limitations applicable to Awards.
SECTION 7
Stock Options
7.1 Each Option shall be clearly identified in the applicable Agreement as
either an Incentive Stock Option or a Non-Qualified Stock Option.
7.2 Each Agreement with respect to an Option shall set forth the exercise
price per share of Stock payable by the grantee to the Company upon
exercise of the Option. The exercise price per share of Stock shall be
determined by the Committee; provided, however, that only in the case of
Deferred Shares shall an Option have an exercise price per share of Stock
that is less than the Fair Market Value of a share of Stock on the date
the Option is granted.
7.3 Term and Exercise of Options
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a) Unless the applicable Agreement provides otherwise, an Option shall
become exercisable as to 33 1/3% percent of the Options covered
thereby on each of the first, second and third anniversaries of the
date of grant. The Committee shall determine the expiration date of
each Option; PROVIDED, HOWEVER, that no Option shall be exercisable
more than 10 years after the date of grant. Unless the applicable
Agreement provides otherwise and except in the event of a Change in
Control, no Option shall be exercisable prior to the first
anniversary of the date of grant.
b) An Option may be exercised for all or any portion of the Stock as to
which it is exercisable, provided that no Partial Exercise of an
Option shall be for an aggregate exercise price of less than
$100.00. The Partial Exercise of an Option shall not cause the
expiration, termination or cancellation of the remaining portion
thereof.
c) An Option shall be exercised by delivering notice to the Company's
principal office, to the attention of its Secretary. Such notice
shall be accompanied by the applicable Agreement, shall specify the
number of shares of Stock with respect to which the Option is being
exercised and the effective date of the proposed exercise and shall
be signed by the Participant or other person then having the right
to exercise the Option. Payment for Stock purchased upon the
exercise of an Option shall be made on the effective date of such
exercise by one or a combination of the following means:
(i) in cash or by personal check, certified check, bank
cashier's check or wire transfer;
(ii) subject to the approval of the Committee, in Stock owned by
the Participant for at least six months prior to the date of
exercise and valued at their Fair Market Value on the
effective date of such exercise;
(iii) subject to the approval of the Committee, by such other
provision as the Committee may from time to time authorize.
d) Under Section 421(b) of the Code, each Participant shall notify the
Company of any disposition of Stock issued pursuant to the exercise
of an Incentive Stock Option under the circumstances described in
Section 421(b) of the Code (relating to certain disqualifying
dispositions), within 10 days of such disposition.
e) Certificates for Stock purchased upon the exercise of an Option
shall be issued in the name of the Participant or other person
entitled to receive
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such Stock, and delivered to the Participant or such other person as
soon as practicable following the effective date on which the Option
is exercised.
f) The Committee shall have the authority to specify, at the time of
grant or, with respect to Non-Qualified Stock Options, at or after
the time of grant, that a Participant shall be granted a new
Non-Qualified Stock Option (a "Reload Option") for a number of
shares of Stock equal to the number of shares of Stock surrendered
by the Participant upon exercise of all or a part of an Option in
the manner described in Section 7.3(c)(ii) above, subject to the
availability of Stock under the Plan at the time of such exercise;
provided, however, that no Reload Option shall be granted to a
Non-Employee Director. Reload Options shall be subject to such
conditions as may be specified by the Committee in its discretion,
subject to the terms of the Plan.
7.4 Limitations on Incentive Stock Options
a) To the extent that the aggregate Fair Market Value of Stock of the
Company with respect to which Incentive Stock Options are
exercisable for the first time by a Participant during any calendar
year under the Plan and any other option plan of the Company (or any
Subsidiary or parent) shall exceed $100,000, such Options shall be
treated as Non-Qualified Stock Options. Such Fair Market Value shall
be determined as of the date on which each such Incentive Stock
Option is granted.
b) No Incentive Stock Option may be granted to an individual if, at the
time of the proposed grant, such individual owns (or is attributed
to own by virtue of the Code) Stock possessing more than ten (10)
percent of the total combined voting power of all classes of stock
of the Company or any Subsidiary unless:
(i) the exercise price of such Incentive Stock Option is at
least 110 percent of the Fair Market Value of a share of
Stock at the time such Incentive Stock Option is granted;
and
(ii) such Incentive Stock Option is not exercisable after the
expiration of five years from the date such Incentive Stock
Option is granted.
c) In addition, if an Employee does not remain employed by the Company,
any Subsidiary or any parent at all times from the time an Incentive
Stock Option is granted until 3 months prior to the date of exercise
thereof (or such other period as required by applicable law), such
Stock Option shall be treated as a Non-Qualified Stock Option.
Should any provision of this Plan not be necessary in order for the
Stock Options to qualify as
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Incentive Stock Options, or should any additional provisions be
required, the Committee may amend this Plan accordingly, without the
necessity of obtaining the approval of the stockholders of the
Company.
7.5 Effect of Termination of Employment
a) Unless the applicable Agreement provides otherwise, in the event
that the employment, directorship or consultancy (together,
hereinafter referred to as "employment") of a Participant with the
Company shall terminate for any reason other than Cause, Disability
or death:
(i) Options granted to such Participant, to the extent that they
are exercisable at the time of such termination, shall
remain exercisable until the date that is 90 days after such
termination, on which date they shall expire; and
(ii) Options granted to such Participant, to the extent that they
were not exercisable at the time of such termination, shall
expire at the close of business on the date of such
termination. The 90 day period described in this Section
7.5(a)(i) shall be extended to one year from such
termination, in the event of the Participant's death during
such 90 day period. Notwithstanding the foregoing, no Option
shall be exercisable after the expiration of its term.
b) Unless the applicable Agreement provides otherwise, in the event
that the employment of a Participant with the Company shall
terminate on account of the Disability or death of the Participant:
(i) Options granted to such Participant, to the extent that they
were exercisable at the time of such termination, shall
remain exercisable until the first anniversary of such
termination, on which date they shall expire; and
(ii) Options granted to such Participant, to the extent that they
were not exercisable at the time of such termination, shall
expire at the close of business on the date of such
termination; provided, however, that no Option shall be
exercisable after the expiration of its term.
c) In the event of the termination of a Participant's employment for
Cause, all outstanding Options granted to such Participant shall
expire as of the commencement of business on the date of such
termination.
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SECTION 8
Restricted Stock
8.1 At the time of the grant of Restricted Stock, the Committee shall
establish an Issue Date or Issue Dates, a Vesting Date or Vesting Dates
and the purchase price (if any) with respect to such shares of
Restricted Stock. The Committee may divide such shares of Restricted
Stock into classes and assign a different Issue Date and/or Vesting Date
for each class. The purchase price for shares of Restricted Stock may be
zero to the extent permitted by applicable law, and, to the extent not so
permitted, such purchase price may not be less than par value. If the
grantee is employed by the Company on an Issue Date (which may be the
date of grant), the specified number of shares of Restricted Stock shall
be issued in accordance with the provisions of Section 8.6. Provided that
all conditions to the vesting of Restricted Stock imposed pursuant to
Section 8.2 are satisfied, and except as provided in Section 8.8, upon
the occurrence of the Vesting Date with respect to Restricted Stock, such
Restricted Stock shall vest and the restrictions of Section 8.4 shall
lapse.
8.2 At the time of the grant of Restricted Stock, the Committee may impose
such restrictions or conditions to the vesting of such Restricted Stock
as it, in its absolute discretion, deems appropriate.
8.3 If any Participant shall, in connection with the acquisition of Stock
under the Plan, make the election permitted under Section 83(b) of the
Code (i.e., an election to include in gross income in the year of
transfer the amounts specified in Section 83(b)), such Participant shall
notify the Company of such election within 10 days of filing notice of
the election with the Internal Revenue Service, in addition to any filing
and a notification required pursuant to regulation issued under the
authority of Section 83(b) of the Code.
8.4 Prior to the vesting of any Restricted Stock, no transfer of a
Participant's rights with respect to such Restricted Stock, whether
voluntary or involuntary, by operation of law or otherwise, shall be
permitted. Immediately upon any attempt to transfer such rights, such
Restricted Stock, and all of the rights related thereto, shall be
forfeited by the Participant.
8.5 The committee in its discretion may require that any dividends or
distributions paid on Restricted Stock be held in escrow until all
restrictions on such Restricted Stock has lapsed.
8.6 Issuance of Certificates
a) Reasonably promptly after the Issue Date with respect to Restricted
Stock, the Company shall cause to be issued a certificate,
registered in the name of the Participant to whom such shares of
Restricted Stock were granted, evidencing such shares of Restricted
Stock; provided that the Company shall not cause such a certificate
to be issued unless it has received a power of attorney duly
endorsed in blank with respect to such
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shares of Restricted Stock. Each such certificate shall bear the
following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE STOCK REPRESENTED
HEREBY ARE SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS
(INCLUDING FORFEITURE PROVISIONS AND RESTRICTIONS AGAINST TRANSFER)
CONTAINED IN THE SKYAUCTION.COM, INC. 2000 OMNIBUS PLAN AND AN
AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER OF SUCH STOCK
AND SKYAUCTION.COM, INC. A COPY OF SUCH OMNIBUS PLAN AND AGREEMENT
IS ON FILE WITH THE SECRETARY OF THE COMPANY.
Such legend shall not be removed until such Stock vests pursuant to
the terms hereof.
b) Each certificate issued pursuant to this Section 8.6, together with
the powers relating to the Restricted Stock evidenced by such
certificate, shall be held by the Company unless the Committee
determines otherwise.
8.7 Upon the vesting of any Restricted Stock pursuant to the terms hereof,
the restrictions of Section 8.4 shall lapse with respect to such
Restricted Stock. Reasonably promptly after any Restricted Stock vests,
the Company shall cause to be delivered to the Participant to whom such
shares of Restricted Stock were granted a certificate evidencing such
Stock, free of the legend set forth in Section 8.6.
8.8 Subject to such other provision as the Committee may set forth in the
applicable Agreement, and to the Committee's amendment authority pursuant
to Section 4, upon the termination of a Participant's employment for any
reason other than Cause, any and all Stock to which restrictions on
transferability apply shall be immediately forfeited by the Participant
and transferred to, and reacquired by, the Company; provided that if the
Committee, in its sole discretion, shall within thirty (30) days after
such termination of employment notify the Participant in writing of its
decision not to terminate the Participant's rights in such shares of
Stock, then the Participant shall continue to be the owner of such shares
of Stock subject to such continuing restrictions as the Committee may
prescribe in such notice.
In the event of a forfeiture of Stock pursuant to this section, the
Company shall repay to the Participant (or the Participant's estate) any
amount paid by the Participant for such shares of Stock. In the event
that the Company requires a return of Stock, it shall also have the right
to require the return of all dividends or distributions paid on such
Stock, whether by termination of any escrow arrangement under which such
dividends or distributions are held or otherwise.
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In the event of the termination of a Participant's employment for Cause,
all shares of Restricted Stock granted to such Participant which have not
vested as of the date of such termination shall immediately be returned
to the Company, together with any dividends or distributions paid on such
shares of Stock, in return for which the Company shall repay to the
Participant any amount paid by the Participant for such shares of Stock.
SECTION 9
Other Stock-Based Incentive Awards
9.1 Other forms of Awards valued in whole or in part by reference to, or
otherwise based on, shares of Stock ("Other Stock-Based Awards") may be
granted either alone or in addition to other Awards under the Plan. The
Committee may also grant Participants the right to receive Deferred
Shares which are stock-based incentive grants in lieu of a cash deferral
of bonuses.
9.2 Subject to the provisions of the Plan, the Committee shall have sole and
complete authority to determine the persons to whom and the time or times
at which such Other Stock-Based Awards shall be granted, the number of
shares of Stock to be granted pursuant to such Other Stock-Based Awards
and all other conditions of such Other Stock-Based Awards.
SECTION 10
Rights in Event of Death or Disability
10.1 Upon the death of a Participant, outstanding Awards granted to such
Participant may be exercised only by the executor or administrator of the
Participant's estate or by a person who shall have acquired the right to
such exercise by will or by the laws of descent and distribution. No
transfer of an Award by will or the laws of descent and distribution
shall be effective to bind the Company unless the Committee shall have
been furnished with
a) written notice thereof and with a copy of the will and/or such
evidence as the Committee may deem necessary to establish the
validity of the transfer and
b) an agreement by the transferee to comply with all the terms and
conditions of the Award that are or would have been applicable to
the Participant and to be bound by the acknowledgments made by the
Participant in connection with the grant of the Award.
10.2 During a Participant's lifetime, the Committee may permit the transfer,
assignment or other encumbrance of an outstanding Option unless such
Option is an Incentive Stock Option and the Committee and the Participant
intend that it shall retain such status.
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10.3 Subject to any conditions as the Committee may prescribe, a Participant
may, upon providing written notice to the Secretary of the Company, elect
to transfer any or all Options granted to such Participant pursuant to
the Plan to members of his or her immediate family, including, but not
limited to, children, grandchildren and spouse or to trusts for the
benefit of such immediate family members or to partnerships in which such
family members are the only partners; provided, however, that no such
transfer by any Participant may be made in exchange for consideration.
10.4 A Participant may file with the Committee a written designation of a
beneficiary on such form as may be prescribed by the Committee and may,
from time to time, amend or revoke such designation. If no designated
beneficiary survives the Participant, the executor or administrator of
the Participant's estate shall be deemed to be the grantee's beneficiary.
SECTION 11
Tax Withholding
11.1 Whenever shares of Stock are to be delivered pursuant to an Award, the
Company shall have the right to require the Participant to remit to the
Company in cash an amount sufficient to satisfy any federal, state and
local withholding tax requirements related thereto.
11.2 With the approval of the Committee, a Participant may satisfy the
foregoing requirement by electing to have the Company withhold from
delivery shares of Stock having a value equal to the amount of tax to be
withheld. Such shares of Stock shall be valued at their Fair Market Value
on the date of which the amount of tax to be withheld is determined (the
"Tax Date"). Fractional shares of Stock amounts shall be settled in cash.
Such a withholding election may be made with respect to all or any
portion of the Stock to be delivered pursuant to an Award.
SECTION 12
Acquisition events
12.1 In the event of a merger or consolidation in which the Company is not the
surviving entity or in the event of any transaction that results in the
acquisition of all or substantially all of the Company's outstanding
Common Stock and any other classes of stock convertible into Common Stock
or all or substantially all of its assets by a single person or entity or
by a group of persons and/or entities acting in concert, or in the event
of the sale or transfer of all or substantially all of the Company's
assets (all of the foregoing being referred to as "Acquisition Events"),
then the Committee may, in its sole discretion (i) require that all
shares subject to outstanding Awards or received by any person upon the
exercise of any Awards (including, without limitation, pursuant to clause
(iii) herein) be subject to a "drag along" in any sale of Common Stock or
other securities of the
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Company on such terms and conditions as the Committee shall determine
and/or (ii) require that all shares subject to outstanding Awards or
received by any person upon the exercise of any Awards (including,
without limitation, pursuant to clause (iii) herein) be subject to a call
right by the Company to purchase such shares at their fair market value
as the Committee shall determine and/or (iii) terminate all outstanding
Stock Options, effective as of the date of the Acquisition Event, by
delivering notice of termination to each person holding any Awards under
this Plan at least 20 days prior to the date of consummation of the
Acquisition Event, in which case during the period from the date on which
such notice of termination is delivered to the consummation of the
Acquisition Event, each such person shall have the right to exercise his
or her Stock Options (to the extent then vested), but any such exercise
shall be contingent upon and subject to the occurrence of the Acquisition
Event, and provided that, if the Acquisition Event does not take place
within a specified period after giving such notice for any reason
whatsoever, the notice and exercise pursuant thereto shall be null and
void.
12.2 Upon dissolution or liquidation of the Company, all Options and other
Awards granted under this Plan shall terminate, but each holder of an
Option shall have the right, immediately prior to such dissolution or
liquidation, to exercise his or her Option to the extent then
exercisable.
12.3 If the Company and the other party to a transaction constituting a Change
in Control agree that such transaction shall be treated as a "pooling of
interests" for financial reporting purposes, and if the transaction is in
fact so treated, then any provisions herein or in the terms of any Award
providing for the acceleration of exercisability, vesting or lapse of the
applicable restriction period shall not occur to the extent that the
Company's independent public accountants determine in good faith that
such acceleration would preclude "pooling of interests" accounting.
SECTION 13
Securities Matters
13.1 The Company shall be under no obligation to effect the registration
pursuant to the Securities Act of any interests in the Plan or any Stock
to be issued hereunder or to effect similar compliance under any state
laws.
13.2 Notwithstanding anything herein to the contrary, the Company shall not be
obligated to cause to be issued or delivered any certificates evidencing
Stock pursuant to the Plan unless and until the Company is advised by its
counsel that the issuance and delivery of such certificates is in
compliance with all applicable laws, regulations of governmental
authority and the requirements of any
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securities exchange on which shares of Stock are traded. The Committee
may require, as a condition of the issuance and delivery of certificates
evidencing shares of Stock pursuant to the terms hereof, that the
recipient of such shares of Stock make such agreements and
representations, and that such certificates bear such legends, as the
Committee, in its sole discretion, deems necessary or desirable.
13.3 The transfer of any shares of Stock hereunder shall be effective only at
such time as counsel to the Company shall have determined that the
issuance and delivery of such shares of Stock is in compliance with all
applicable laws, regulations of governmental authority, the requirements
of any securities exchange on which shares of Stock are traded. The
Committee may, in its sole discretion, defer the effectiveness of any
transfer of Stock hereunder in order to allow the issuance of such Stock
to be made pursuant to registration or an exemption from registration or
other methods for compliance available under federal or state securities
laws. The Committee shall inform the Participant in writing of its
decision to defer the effectiveness of a transfer. During the period of
such deferral in connection with the exercise of an Option, the
Participant may, by written notice, withdraw such exercise and obtain the
refund of any amount paid with respect thereto.
13.4 All elections and transactions under this Plan by persons subject to
Section 16 of the Exchange Act involving shares of Common Stock are
intended to comply with any applicable exempting condition under Rule
16b-3. The Committee may establish and adopt written administrative
guidelines, designed to facilitate compliance with Section 16(b) of the
Exchange Act, as it may deem necessary or proper for the administration
and operation of this Plan and the transaction of business thereunder.
13.5 Except as the Company or Committee shall otherwise determine, this Plan
is intended to comply with Section 4(2) or Rule 701 under the Securities
Act, and any provisions inconsistent with such Section or Rule of the
Securities Act shall be inoperative and shall not affect the validity of
the Plan.
SECTION 14
Amendment or Termination
14.1 The Board may, at any time, suspend or terminate the Plan or revise or
amend it in any respect whatsoever; provided, however, that stockholder
approval shall be required (in accordance with the laws of the State of
Delaware) if and to the extent the Board determines that such approval is
appropriate for purposes of satisfying Rule 16b-3, Section 162(m) or 422
of the Code (as applicable) or is otherwise required by law or applicable
stock exchange requirements.
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14.2 Awards may be granted under the Plan prior to the receipt of such
approval but each such grant shall be subject in its entirety to such
approval and no award may be exercised, vested or otherwise satisfied
prior to the receipt of such approval. Nothing herein shall restrict the
Committee's ability to exercise its discretionary authority pursuant to
Section 4, which discretion may be exercised without amendment to the
Plan. No action hereunder may, without the consent of a Participant,
reduce the Participant's rights under any outstanding Award.
SECTION 15
Company Call Rights; Rights of First Refusal
15.1 In the event of termination for Cause, the Company may repurchase from
the Participant any shares of Common Stock previously acquired by the
Participant through the grant of an Option or an award of Restricted
Stock under this Plan at a repurchase price equal to the lesser of (A)
the original purchase price or exercise price (as applicable), if any, or
(B) Fair Market Value as of the date of termination.
In the event of a termination for any reason other than for Cause, the
Company may at any time within 90 days after a Participant incurs a
termination or acquires shares of Common Stock upon the exercise of an
Option following his termination for any reason other than for Cause:
(i) repurchase from the Participant each outstanding vested Option
based on the difference between the exercise price of a share of Common
Stock relating to such Option and the Fair Market Value of a share of
Common Stock on the date of termination and (ii) repurchase from the
Participant any shares of Common Stock previously acquired by the
Participant through the exercise of an Option under this Plan at a
repurchase price equal to Fair Market Value as of the date of
termination.
In the event of a termination for any reason other than for Cause, the
Company may at any time within 90 days after a Participant incurs a
termination other than for Cause repurchase from the Participant any
shares of Common Stock previously acquired by the Participant pursuant to
an award of Restricted Stock under this Plan at a repurchase price equal
to Fair Market Value as of the date of termination.
15.2 No Participant shall, directly or indirectly, transfer any shares of
Common Stock acquired by the Participant (or his estate or legal
representative) through the exercise of an Option under this Plan or
pursuant to an award of Restricted Stock, unless in each such instance
the Participant (or his estate or legal representative) shall have first
offered the Common Stock proposed to be transferred pursuant to a bona
fide offer to a third party, first, to the Company and second, to holders
of Common and Preferred Stock of the Company, pro-rata according to
their ownership of the Company at such time (on an as converted basis).
The right of first refusal must be exercised by the Company
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and any stockholders of the Company by delivering to the Participant (or
his estate or legal representative) written notice of such exercise
within 20 business days of the Company's receipt of written notification
(which the Company shall forward to all of its stockholders within five
days of its receipt) of the proposed sale. Upon the exercise of a right
of first refusal, the Common Stock proposed to be sold shall be purchased
by the Company and/or any stockholders exercising their rights pursuant
to this Section 15.2 at the price per share offered to be paid by the
prospective transferee, subject to Section 15.1 above in the case of a
Participant's termination. The notice of exercise of the right of first
refusal shall specify the date and location for the closing of such
purchase. In the event the Company and its stockholders do not exercise
their rights pursuant to this Section 15.2 with respect to all shares
proposed to be sold by the Participant, the Participant shall have six
months to sell such remaining shares to such bona fide third party
pursuant to terms and conditions not more favorable than those pursuant
to which such shares were offered to the Company and its stockholders.
Any shares proposed to be sold after such six month period shall be
subject to the provisions of this Section 15.2.
15.3 Notwithstanding the foregoing, the Company shall cease to have rights
pursuant to this Section 15 following an initial public offering of the
Common Stock of the Company.
SECTION 16
Unfunded Plan
16.1 This Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments as to which a
Participant has a fixed and vested interest but which are not yet made to
a Participant by the Company, nothing contained herein shall give any
such Participant any rights that are greater than those of a general
creditor of the Company.
SECTION 17
General Provisions
17.1 No Awards may be exercised by a Grantee if such exercise, and the receipt
of cash or stock thereunder, would be, in the opinion of counsel selected
by the Company, contrary to law or the regulations of any duly
constituted authority having jurisdiction over the Plan.
17.2 A bona fide leave of absence approved by a duly constituted officer of
the Company shall not be considered interruption or termination of
service of any Participant for any purposes of the Plan or Awards granted
thereunder, except that no Awards may be granted to an Employee while he
or she is on a bona fide leave of absence.
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17.3 No person shall have any rights as a stockholder with respect to any
shares of Stock covered by or relating to any Award until the date of
issuance of a certificate with respect to such shares of Stock. Except as
otherwise expressly provided in Section 6.4, no adjustment to any Award
shall be made for dividends or other rights prior to the date such
certificate is issued.
17.4 Nothing contained in the Plan or any Agreement shall confer upon any
Participant any right with respect to the continuation of employment,
consultancy or directorship by the Company or any Affiliate or interfere
in any way with the right of the Company or any Affiliate, subject to the
terms of any separate agreement to the contrary, at any time to terminate
such employment, consultancy or directorship or to increase or decrease
the compensation of the Participant. No person shall have any claim or
right to receive an Award hereunder. The Committee's granting of an Award
to a participant at any time shall neither require the Committee to grant
any other Award to such Participant or other person at any time or
preclude the Committee from making subsequent grants to such Participant
or any other person.
17.5 In addition to the remedies of the Company elsewhere provided for herein,
failure by a Participant (or beneficiary) to comply with any of the terms
and conditions of the Plan or the applicable Agreement, unless such
failure is remedied by such Participant (or beneficiary) within ten days
after notice of such failure by the Committee, shall be grounds for the
cancellation and forfeiture of such Award, in whole or in part, as the
Committee, in its absolute discretion, may determine.
17.6 Any Award agreement may provide that stock issued upon exercise of any
Awards may be subject to such restrictions, including, without
limitation, restrictions as to transferability and restrictions
constituting substantial risks of forfeiture as the Committee may
determine at the time such Award is granted.
17.7 As a condition to the receipt of shares of Common Stock pursuant to an
Option under this Plan, to the extent required by the Committee, the
Participant shall execute and deliver a stockholder's agreement or such
other documentation which shall set forth certain restrictions on
transferability of the shares of Common Stock acquired upon exercise or
purchase, a right of first refusal of the Company with respect to shares,
the right of the Company to purchase Common Stock in accordance with this
Plan and such other terms as the Board or Committee shall from time to
time establish. Such stockholder's agreement shall apply to all Common
Stock acquired under the Plan.
17.8 This Plan shall be governed and construed in accordance with the laws of
the State of Delaware (regardless of the law that might otherwise govern
under applicable Delaware principles of conflict of laws).
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SECTION 18
Plan Effective Date
18.1 The Plan shall become effective on the date of its adoption by the Board
of Directors of the Company subject to approval of the Plan by the
holders of a majority of the outstanding voting shares of the Company
within twelve (12) months after the date of the Plan's adoption by said
Board of Directors. In the event of the failure to obtain such
shareholder approval, the Plan and any Awards granted thereunder, shall
be null and void and the Company shall have no liability thereunder.
18.2 No Award granted under the Plan shall be exercisable until such
shareholder approval has been obtained.
SECTION 19
Plan Termination
19.1 No Award may be granted under the Plan on or after the date which is ten
years following the effective date specified in Section 18, but Awards
previously granted may be exercised in accordance with their terms.
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