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e-PROFILE, Inc.
1999 EQUITY COMPENSATION PLAN
Effective as of May 1, 1999
(UPDATED TO REFLECT THE DECEMBER 14, 1999 STOCK SPLIT)
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e-PROFILE, Inc.
1999 EQUITY COMPENSATION PLAN
SECTION 1. PURPOSE; DEFINITIONS
The purpose of the e-PROFILE, Inc. 1999 Equity Compensation Plan (the
"Plan") is to provide employees, New Hires, officers, directors, and Eligible
Independent Contractors of e-PROFILE, Inc. (the "Company") or any Affiliated
Company with the opportunity to receive grants of incentive stock options,
nonqualified stock options, stock appreciation rights and restricted stock
awards. The Company believes that the Plan will enable the Company to attract,
retain and motivate employees, officers, directors and Eligible Independent
Contractors, will encourage Plan participants to contribute materially to the
growth of the Company for the benefit of the Company's stockholders, and will
align the economic interests of the Plan participants with those of the
stockholders.
For the purposes of the Plan, the following terms shall be defined as
set forth below:
1.1. "ADMINISTRATOR" means the Board or a Committee appointed by
the Board pursuant to Section 2.1 of the Plan, which shall administer the Plan.
1.2. "AFFILIATED COMPANY" means any firm, partnership, limited
liability company, or corporation that directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control with
the Company. For the purposes hereof, "control" shall be defined to include,
without limitation, ten percent (10%) or greater ownership of voting securities.
"Affiliated Company" also includes any other organization similarly related to
the Company that is designated as such by the Board.
1.3. "BOARD" means the Board of Directors of the Company.
1.4. "CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
1.5. "COMMITTEE" means the Committee designated by the Board to
administer the Plan.
1.6. "COMPANY" means e-PROFILE, Inc., its subsidiaries or any
successor organization.
1.7. "DISABILITY" means permanent and total disability within the
meaning of Section 22(e)(3) of the Code.
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1.8. "ELIGIBLE INDEPENDENT CONTRACTOR" means an independent
consultant or advisor engaged by the Employer to provide bona fide services for
the Employer that are not in connection with the offer or sale of securities in
a capital-raising transaction.
1.9. "EMPLOYED BY THE EMPLOYER" means employment or service as an
employee or Eligible Independent Contractor or member of the Board or of the
Board of Directors of an Affiliated Company, so that for purposes of exercising
Stock Options and Stock Appreciation Rights and satisfying conditions with
respect to Restricted Stock Grants, a Participant shall not be considered to
have terminated employment or service until the Participant ceases to be an
employee, Eligible Independent Contractor, or member of the Board or of the
Board of Directors of an Affiliated Company, unless the Administrator determines
otherwise. The Administrator's determination as to a Participant's employment or
other provision of services, termination of employment or cessation of the
provision of services, leave of absence, or reemployment shall be conclusive on
all persons unless determined to be incorrect.
1.10. "EMPLOYER" means the Company and any Affiliated Company.
1.11. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
1.12. "FAIR MARKET VALUE" shall have the meaning set forth below,
except as otherwise determined by the Administrator, if the Stock is publicly
traded: (i) if the principal trading market for the Stock is a national
securities exchange or the Nasdaq National Market, the mean between the highest
and lowest quoted selling prices on the relevant date or, if there were no
trades on that date, the latest preceding date upon which a sale was reported,
or (ii) if the Stock is not principally traded on such exchange or market, the
mean between the last reported "bid" and "asked" prices of Stock on the relevant
date, as reported on Nasdaq or, if not so reported, as reported by the National
Daily Quotation Bureau, Inc. or as reported in a customary financial reporting
service, as applicable and as the Administrator determines. If the Stock is not
publicly traded or, if publicly traded, is not subject to reported transactions
or "bid" or "asked" quotations as set forth above, the Fair Market Value per
share shall be as determined by the Administrator.
1.13. "GRANT" means any Stock Option, Stock Appreciation Right or
Restricted Stock award granted pursuant to the Plan.
1.14. "INCENTIVE STOCK OPTION" means any Stock Option intended to be
and designated as an "Incentive Stock Option" within the meaning of Section 422
of the Code.
1.15. "INSIDER" means a Participant who is subject to Section 16 of
the Exchange Act.
1.16. "NEW HIRE" means an individual to whom an offer of employment
with the Employer has been extended.
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1.17. "NON-EMPLOYEE DIRECTOR" has the meaning set forth in Rule
16b-3(b)(3)(i) promulgated by the Securities and Exchange Commission under the
Exchange Act, or any successor definition adopted by the Securities and Exchange
Commission; provided, however, that the Administrator may, to the extent the
Administrator deems it necessary or desirable to comply with Section 162(m) of
the Code and applicable regulations thereunder, ensure that each Non-Employee
Director also qualified as an "outside director" as that term is defined in the
regulations under Section 162(m) of the Code.
1.18. "NON-QUALIFIED STOCK OPTION" means any Stock Option that is
not an Incentive Stock Option.
1.19. "PARTICIPANT" means an employee, New Hire, director or
Eligible Independent Contractor to whom an award is granted pursuant to the
Plan.
1.20. "PLAN" means the e-PROFILE, Inc. 1999 Equity Compensation
Plan, as hereinafter amended from time to time.
1.21. "RESTRICTED STOCK" means an award of shares of Stock that is
subject to restrictions pursuant to Section 7 below.
1.22. "SECURITIES ACT" means the Securities Act of 1933, as amended.
1.23. "SECURITIES BROKER" means the registered securities broker
acceptable to the Company who agrees to effect the cashless exercise of an
Option pursuant to Section 5.4 hereof.
1.24. "STOCK" means the Common Stock of the Company, $.001 par
value.
1.25. "STOCK APPRECIATION RIGHT" means the right, pursuant to an
award granted under Section 6 below, to surrender to the Company all (or a
portion) of a Stock Option in exchange for an amount in cash and/or shares of
Stock equal in value to the excess of (i) the Fair Market Value, as of the date
such right is exercised and the related Stock Option (or such portion thereof)
is surrendered, of the shares of Stock covered by such Stock Option (or such
portion thereof), over (ii) the aggregate exercise price of such Stock
Appreciation Right (or such portion thereof).
1.26. "STOCK OPTION" or "OPTION" means any option to purchase shares
of Stock (including Restricted Stock, if the Administrator so determines)
granted pursuant to Section 5 below.
1.27. "STOCK PURCHASE AND RESTRICTION AGREEMENT" means an agreement,
in such form as the Administrator may from time to time approve, which an
Optionee may be required to execute as a condition of purchasing Stock upon
exercise of an Option.
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1.28. "TERMINATION FOR CAUSE" means the determination of the
Administrator that any one or more of the following events has occurred:
1.28.1. the Participant's conviction of any act which
constitutes a felony under applicable federal or state law, either in connection
with the performance of the Participant's obligations on behalf of the Employer
or which affects the Participant's ability to perform his or her obligations as
an employee, board member or advisor of the Employer or under any employment
agreement, non-competition agreement, confidentiality agreement or like
agreement or covenant between the Participant and the Employer (any such
agreement or covenant being herein referred to as an "Employment Agreement");
1.28.2. the Participant's willful misconduct in connection
with the performance of his or her duties and responsibilities as an employee,
board member or advisor of the Employer or under any Employment Agreement, which
willful misconduct is not cured by the Participant within 10 days of his or her
receipt of written notice thereof from the Administrator;
1.28.3. the Participant's commission of an act of
embezzlement, fraud or dishonesty which results in a loss, damage or injury to
the Employer;
1.28.4. the Participant's substantial and continuing neglect,
gross negligence or inattention in the performance of his or her duties as an
employee, board member or Eligible Independent Contractor or under any
Employment Agreement which is not cured by the Participant within 10 days of his
or her receipt of written notice thereof from the Administrator;
1.28.5. the Participant's unauthorized use or disclosure of
any trade secret or confidential information of the Employer which adversely
affects the business of the Employer, provided that any disclosure of any trade
secret or confidential information of the Employer to a third party in the
ordinary course of business who signs a confidentiality agreement shall not be
deemed a breach of this subparagraph;
1.28.6. the Participant's material breach of any of the
provisions of any Employment Agreement, which material breach is not cured by
the Participant within 10 days of his or her receipt of a written notice from
the Employer specifying such material breach; or
1.28.7. the Participant has voluntarily terminated his or her
employment or service with the Employer and breaches his or her non-competition
agreement with the Employer.
SECTION 2. ADMINISTRATION
2.1. PROCEDURE. The Plan shall be administered by the Board or a
Committee consisting of not less than two (2) persons appointed by the Board,
which shall be the Administrator. In the event the Company has a class of equity
securities registered under the Exchange Act, the Board shall administer the
Plan or shall appoint a Committee in accordance
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with Section 2.2. of two or more non-employee directors appointed by the Board.
In the absence of the designation of a Committee to administer the Plan, the
Plan shall be administered by the full Board.
2.2. COMMITTEE. If a Committee is appointed by the Board, then the
Committee shall possess the power and authority of the Board in administering
the Plan on behalf of the Board, subject to the terms and conditions as the
Board may prescribe. Members of the Committee shall be members of the Board and
shall serve for such period of time as the Board may determine. From time to
time, the Board may increase the size of the Committee and appoint additional
members thereto, remove members (with or without cause) and appoint new members
in substitution therefor, fill vacancies however caused, or remove all members
of the Committee and thereafter directly administer the Plan. Except to the
extent prohibited by applicable law or the applicable rules of a stock exchange,
the Committee may allocate all or any portion of its responsibilities and powers
to any one or more of its members or may delegate all or any part of its
responsibilities and powers to any person or persons selected by it. Any such
allocation or delegation may be revoked by the Committee at any time.
2.3. POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan (and, in the case of the Committee, the specific duties delegated by the
Board to such Committee), the Administrator shall have the authority, in its
sole discretion, to:
2.3.1. select the Participants to whom Grants may from time to
time be made hereunder;
2.3.2. determine the type, size and terms of the Grants to be
made to each such Participant;
2.3.3. determine the time when the Grants will be made and the
duration of any applicable exercise or restriction period, including the
criteria for exercisability and the acceleration of exercisability;
2.3.4. determine the terms and provisions of each Stock
Purchase and Restriction Agreement (which need not be identical with the terms
of other Stock Purchase and Restriction Agreements).
2.3.5. amend the terms of any outstanding award (with the
consent of the Participant) to reflect terms not otherwise inconsistent with the
Plan, including, but not limited to, amendments concerning vesting acceleration
or forfeiture waiver regarding any award or the extension of a Participant's
right with respect to Grants under the Plan as a result of ceasing to be
Employed by the Employer, based on such factors as the Administrator shall
determine, in its sole discretion, or substitution of new Stock Options for
previously granted Stock Options, including previously granted Stock Options
having high option prices;
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2.3.6. establish from time to time any policy or program to
encourage or require Participants to achieve or maintain equity ownership in the
Company through the use of the Plan upon such terms and conditions as the
Administrator may determine in its sole discretion, and thereafter to amend,
modify or terminate such policy or program as the Administrator may from time to
time deem appropriate; and
2.3.7. deal with any other matters arising under the Plan.
The Administrator shall have full power and authority to administer and
interpret the Plan and any Grant made under the Plan, to make factual
determinations and to adopt, alter and repeal such administrative rules,
guidelines, practices, agreements and instruments for implementing the Plan and
for the conduct of its business as it deems necessary or advisable, in its sole
discretion. All decisions made by the Administrator pursuant to the provisions
of the Plan shall be final and binding on all persons having any interest in the
Plan or in any Grants made hereunder. All power of the Administrator shall be
executed in its sole discretion, in the best interest of the Company, not as a
fiduciary, and in keeping with the objectives of the Plan.
No member of the Board or the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any Grant made
under it. Nothing herein shall be deemed to expand the personal liability of a
member of the Board or Committee beyond that which may arise under any
applicable standards set forth in the Company's Articles of Incorporation,
by-laws and Delaware law, nor shall anything herein limit any rights to
indemnification or advancement of expenses to which any member of the Board or
the Committee may be entitled under any applicable law, the Company's Articles
of Incorporation or by-laws, agreement, vote of the stockholders or directors,
or otherwise.
SECTION 3. STOCK SUBJECT TO THE PLAN
3.1. The aggregate number of shares of Stock that may be issued or
transferred under the Plan is 1,500,000, subject to adjustment pursuant to
Section 3.2 below. Such shares may be authorized but unissued shares or
reacquired shares of Stock, including shares purchased by the Company on the
open market for purposes of the Plan. In the event the number of shares of Stock
issued under the Plan and the number of shares of Stock subject to outstanding
awards equals the maximum number of shares of Stock authorized under the Plan,
no further awards shall be made unless the Plan is amended to increase the
number of shares of Stock issuable and transferable hereunder or additional
shares of Stock become available for further awards under the Plan. If and to
the extent that Options or Stock Appreciation Rights granted under the Plan
terminate, expire or are canceled, forfeited, exchanged or surrendered without
having been exercised, or if any shares of Restricted Stock are forfeited, the
shares subject to such Grants shall again be available for subsequent awards
under the Plan.
3.2. If there is any change in the number or kind of shares of
Stock outstanding (i) by reason of a stock dividend, spin off, recapitalization,
stock split, or combination or exchange of
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shares, (ii) by reason of a merger, reorganization or consolidation in which the
Company is the surviving corporation, (iii) by reason of a reclassification or
change in par value, or (iv) by reason of any other extraordinary or unusual
event affecting the outstanding Stock as a class without the Company's receipt
of consideration, or if the value of outstanding shares of Stock is
substantially reduced as a result of a spin off or the Company's payment of an
extraordinary dividend or distribution, then unless such event or change results
in the termination of all outstanding awards under the Plan, the Administrator
shall preserve the value of the outstanding awards by adjusting the maximum
number and class of shares issuable under the Plan to reflect the effect of such
event or change in the Company's capital structure, and by making appropriate
adjustments to the number and class of shares subject to an outstanding award
and/or the option price of each outstanding Option and Stock Appreciation Right,
except that any fractional shares resulting from such adjustments shall be
eliminated by rounding any portion of a share equal to .5 or greater up, and any
portion of a share equal to less than .5 down, in each case to the nearest whole
number.
SECTION 4. ELIGIBILITY; PARTICIPANT LIMITATIONS CONCERNING ISSUANCES
All employees and directors of the Employer, New Hires, and Eligible
Independent Contractors are eligible to participate in the Plan. The maximum
aggregate number of shares of Stock that shall be subject to Grants made under
the Plan to any Participant shall not exceed 300,000, subject to adjustment as
specified in Section 3.2. The terms and provisions of Grants made under the Plan
may vary between Participants or as to the same Participant to whom more than
one Grant may be awarded.
SECTION 5. STOCK OPTIONS
Stock Options may be granted alone, in addition to, or in tandem with
other awards granted under the Plan. Any Stock Option granted under the Plan
shall be in such form as the Administrator may from time to time approve. Stock
Options granted under the Plan may be of two types: (i) Incentive Stock Options
and (ii) Non-Qualified Stock Options.
The Administrator shall have the authority to grant Incentive Stock
Options, NonQualified Stock Options or both types of Stock Options (in each case
with or without Stock Appreciation Rights). To the extent that any Stock Option
does not qualify as an Incentive Stock Option, it shall constitute a
Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify the Plan under Section 422 of the Code, or,
without the consent of the Participant affected, to disqualify any Incentive
Stock Option under Section 422.
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Options granted under the Plan shall be subject to the following terms
and conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Administrator shall deem
appropriate:
5.1. OPTION PRICE. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Administrator at the time of
grant, provided, however, that the option price per share for any Incentive
Stock Option shall be not less than 100% of the Fair Market Value of the Stock
at the time of grant.
Any Incentive Stock Option granted to any Participant who, at
the time the Option is granted, owns more than 10% of the voting power of all
classes of stock of the Company or of a parent or subsidiary corporation (within
the meaning of Section 424 of the Code), shall have an exercise price no less
than 110% of the Fair Market Value per share on the date of the grant.
5.2. OPTION TERM. The term of each Stock Option shall be fixed by
the Administrator, but no Stock Option shall be exercisable more than ten years
after the date the Stock Option is granted. However, any Incentive Stock Option
granted to any Participant who, at the time the Option is granted, owns more
than 10% of the voting power of all classes of stock of the Company or of a
parent or subsidiary corporation (within the meaning of Section 424 of the Code)
may not have a term of more than five years. No Stock Option may be exercised by
any person after expiration of the term of the Stock Option.
5.3. EXERCISABILITY.
5.3.1. IN GENERAL. Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined by
the Administrator at or after grant. If the Administrator provides, in its
discretion, that any Stock Option is exercisable only in installments, the
Administrator may waive such installment exercise provisions at any time at or
after grant in whole or in part, based on such factors as the Administrator
shall determine, in its sole discretion.
5.3.2. ACCELERATED VESTING. In the event Sanchez Computer
Associates, Inc. ceases to own at least 50% of the voting power of the Company
(hereinafter, "Change in Ownership"), all Stock Options held by Participants
who, as of the date of the Change in Ownership, are employed by Sanchez Computer
Associates, Inc. shall become fully and immediately vested and exercisable.
5.4. METHOD OF EXERCISE. Subject to whatever installment exercise
provisions apply under Section 5.3, Stock Options may be exercised, in whole or
in part at any time and from time to time during the Option period, by giving
written notice of exercise to the Company specifying the number of shares to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price, either by cash, check, or such other instrument as the Administrator may
accept, along with, if required by the Administrator in its sole discretion, an
executed Stock
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Purchase and Restriction Agreement. As determined by the Administrator, in its
sole discretion, at or after grant, payment in full or in part may also be made
in the form of unrestricted Stock already owned by the Participant (including
Stock acquired in connection with the exercise of an Option, subject to such
restrictions as the Administrator deems appropriate); provided, however, that
(i) in the case of an Incentive Stock Option, the right to make a payment in the
form of unrestricted Stock already owned by the Participant may be authorized
only at the time the Option is granted and (ii) the Company may require that the
Stock has been owned by the Participant for the requisite period of time
necessary to avoid a charge to the Company's earnings for financial reporting
purposes and adverse accounting consequences to the Company with respect to the
Option.
If specified by the Administrator in the agreement governing a
Stock Option at the time of grant, the Administrator may, in its sole
discretion, upon receipt of such Participant's written notice to exercise, elect
to cash out all or part of the portion of the Stock Option to be exercised by
paying the Participant an amount, in cash or Stock, equal to the excess of the
Fair Market Value of the Stock over the option price on the effective date of
such cash-out.
To the extent permitted under the applicable laws and
regulations, at the request of the Participant and if authorized by the
Administrator, in its sole discretion, at or after grant, the Company agrees to
cooperate in a "cashless exercise" of a Stock Option. The cashless exercise
shall be effected by the Participant delivering to the Securities Broker
instructions to sell a sufficient number of shares of Stock to cover the cost
and expenses associated therewith.
No shares of Stock shall be issued until full payment therefor
has been made. A Participant shall not have any right to dividends or other
rights of a stockholder with respect to shares subject to the Option until such
time as Stock is issued in the name of the Participant following exercise of the
Option in accordance with the Plan.
5.5. STOCK OPTION AGREEMENT. Each Option granted under this Plan
shall be evidenced by an appropriate Stock Option agreement, which agreement
shall expressly specify whether such Option is an Incentive Stock Option or a
Non-Qualified Stock Option and shall be executed by the Company and the
Participant. The agreement shall contain such terms and provisions, not
inconsistent with the Plan, as shall be determined by the Administrator.
5.6. REPLACEMENT OPTIONS. The Administrator may, in its sole
discretion and at the time of the original option grant, authorize the
Participant to automatically receive replacement Options pursuant to this part
of the Plan. Any such replacement option shall be granted upon such terms and
subject to such conditions and limitations as the Administrator may deem
appropriate. Any replacement option shall cover a number of shares determined by
the Administrator, but in no event more than the number of shares equal to the
number of shares of the original option exercised. The per share exercise price
of any replacement option shall equal the then current Fair Market Value of a
share of Stock, and shall have a term as determined by the Administrator at the
time of grant of the original Option.
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The Administrator shall have the right, and may reserve the right in
any Option grant, in its sole discretion and at any time, to discontinue the
automatic grant of replacement options if it determines the continuance of such
grants to no longer be in the best interest of the Company.
5.7. NON-TRANSFERABILITY OF OPTIONS. Except as provided below, no
Stock Option shall be transferable by the Participant other than by will or by
the laws of descent and distribution, and all Stock Options shall be
exercisable, during the Participant's lifetime, only by the Participant. When a
Participant dies, the representative or other person entitled to succeed to the
rights of the Participant may exercise such rights, subject to the Company
receiving satisfactory proof of his or her right to receive the Grant under the
Participant's will or under the applicable laws of descent and distribution.
Notwithstanding the foregoing, the Administrator may provide, at or after Grant,
that a Participant may transfer Non-Qualified Stock Options pursuant to a
domestic relations order or to family members or other persons or entities
according to such terms as the Administrator may determine.
5.8. TERMINATION OF EMPLOYMENT; DISABILITY; DEATH
5.8.1. Unless otherwise determined by the Administrator at or
after grant, in the event a Participant ceases to be Employed by the Employer
for any reason other than as provided below, any Stock Option held by such
Participant may thereafter be exercised by the Participant, to the extent it was
exercisable at the time of such termination or on such accelerated basis as the
Administrator may determine at or after grant, for a period of one month (or
such shorter period as the Administrator may specify at grant) from the date of
such termination or until the expiration of the stated term of such Stock
Option, whichever period is shorter.
5.8.2. Unless otherwise determined by the Administrator at or
after grant, if any Participant ceases to be Employed by the Employer on account
of a Termination for Cause by the Employer, any Stock Option held by such
Participant shall terminate as of the date the Participant ceases to be Employed
by the Employer, and the Participant shall automatically forfeit all Stock
underlying any exercised portion of an Option for which the Company has not yet
delivered the share certificates, upon refund by the Company of the exercise
price paid by the Participant for such Stock.
5.8.3. Unless otherwise determined by the Administrator at or
after grant, if a Participant ceases to be Employed by the Employer by reason of
Disability, any Stock Option held by such Participant may thereafter be
exercised by the Participant, to the extent it was exercisable at the time of
such termination, or on such accelerated basis as the Administrator may
determine at or after grant, for a period of one year (or such shorter period as
the Administrator may specify at grant) from the date of such termination or
until the expiration of the stated term of such Stock Option, whichever period
is shorter.
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5.8.4. Unless otherwise determined by the Administrator at or
after grant, if any Participant dies while Employed by the Employer or within
one month after the date on which the Participant ceases to be Employed by the
Employer on account of a termination specified in Section 5.8.1 above (or within
such other period of time as may be specified by the Administrator), any Stock
Option held by such Participant may thereafter be exercised, to the extent then
exercisable or on such accelerated basis as the Administrator may determine at
or after grant, by the legal representative of the estate or by the legatee of
the Participant under the will of the Participant, for a period of one year (or
such shorter period as the Administrator may specify at grant) from the date of
such termination or until the expiration of the stated term of such Stock
Option, whichever period is shorter.
5.9. INCENTIVE STOCK OPTION LIMITATION. The aggregate Fair Market
Value (determined as of the time of grant) of the Stock with respect to which
Incentive Stock Options are exercisable for the first time by the Participant
during any calendar year under the Plan and/or any other stock option plan of
the Company or of a parent or subsidiary corporation (within the meaning of
Section 424 of the Code) shall not exceed $100,000. An Incentive Stock Option
shall not be granted to any person who is not an employee of the Company or a
parent or subsidiary (within the meaning of Section 424(f) of the Code).
5.10. ISSUANCE OF SHARES. Within a reasonable time after exercise of
an Option, the Company shall cause to be delivered to the Participant a
certificate for the Stock purchased pursuant to the exercise of the Option.
SECTION 6. STOCK APPRECIATION RIGHTS
6.1. GRANT AND EXERCISE. Stock Appreciation Rights may be granted
either separately or in tandem with all or part of any Stock Option granted
under the Plan. The provisions of Stock Appreciation Rights awarded under the
Plan need not be the same with respect to each Participant. In the case of a
Non-Qualified Stock Option, such rights may be granted either at the grant of
such Stock Option or at any time thereafter while the Option remains
outstanding. In the case of an Incentive Stock Option, such rights may be
granted only at the time of the grant of such Stock Option. The Administrator
shall establish the base amount of the Stock Appreciation Rights at the time the
Stock Appreciation Right is granted. Unless the Administrator determines
otherwise, the base amount of each Stock Appreciation Right shall be equal to
the per share option price of the related Stock Option or, if there is no
related Stock Option, the Fair Market Value of a share of Stock as of the date
of grant of such Stock Appreciation Right.
A Stock Appreciation Right or applicable portion thereof
granted with respect to a given Stock Option shall terminate and no longer be
exercisable upon the termination or exercise of the related Stock Option, except
that, unless otherwise determined by the Administrator, in its sole discretion,
at the time of grant, a Stock Appreciation Right granted with respect to less
than the full number of shares covered by a related Stock Option shall not be
reduced until the number
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of shares covered by an exercise or termination of the related Stock Option
exceeds the number of shares not covered by the Stock Appreciation Right.
A Stock Appreciation Right may be exercised by a Participant,
in accordance with Section 6.2, by surrendering the applicable portion of the
related Stock Option. Upon such exercise and surrender, the Participant shall be
entitled to receive an amount determined in the manner prescribed in Section
6.2. Stock Options which have been so surrendered, in whole or in part, shall no
longer be exercisable to the extent the related Stock Appreciation Rights have
been exercised.
6.2. TERMS AND CONDITIONS. Stock Appreciation Rights shall be
subject to such terms and conditions, not inconsistent with the provisions of
the Plan, as shall be determined from time to time by the Administrator,
including the following:
6.2.1. Stock Appreciation Rights shall be exercisable only at
such time or times and to the extent that the Stock Options to which they
relate, if any, shall be exercisable in accordance with the provisions of
Section 5 and this Section 6 of the Plan.
6.2.2. Upon the exercise of a Stock Appreciation Right, a
Participant shall be entitled to receive up to, but not more than, an amount in
cash and/or shares of Stock equal in value to the excess of the Fair Market
Value of one share of Stock (as of the date the Stock Appreciation Right is
exercised and the related Stock Option is surrendered) over the exercise price
of the Stock Appreciation Right, multiplied by the number of shares of Stock in
respect of which the Stock Appreciation Right shall have been exercised, with
the Administrator having the right to determine the form of payment.
6.2.3. Stock Appreciation Rights shall be transferable only
when and to the extent that the underlying Stock Option would be transferable
under Section 5.7 of the Plan.
6.2.4. A Stock Appreciation Right granted in connection with
an Incentive Stock Option may be exercised only if and when the market price of
the Stock subject to the Incentive Stock Option exceeds the exercise price of
such Stock Option.
SECTION 7. RESTRICTED STOCK
7.1. ADMINISTRATION. Shares of Restricted Stock may be issued
either alone or in addition to other awards granted under the Plan. The
Administrator shall determine the employees, directors or Eligible Independent
Contractors to whom, and the time or times at which, grants of Restricted Stock
will be made, the number of shares to be awarded, the price (if any) to be paid
by the recipient of Restricted Stock (subject to Section 7.2), the time or times
within which such awards may be subject to forfeiture, and all other conditions
of the awards. The Administrator may condition the grant of Restricted Stock
upon the attainment of specified performance goals or such other factors as the
Administrator may determine, in its sole
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discretion. The provisions of Restricted Stock awards need not be the same with
respect to each Participant.
7.2. AWARDS AND CERTIFICATES. The prospective recipient of a
Restricted Stock award shall not have any rights with respect to such award
unless and until such recipient has executed an agreement evidencing the award
and has delivered a fully executed copy thereof to the Company, and has
otherwise complied with the applicable terms and conditions of such award.
7.2.1. The purchase price for shares of Restricted Stock shall
be established by the Administrator and may be zero.
7.2.2. Awards of Restricted Stock may be accepted within a
period of 60 days (or such shorter period as the Administrator may specify at
grant) after the grant date, by executing a Restricted Stock award agreement and
paying whatever price (if any) is required under Section 7.2.1.
7.2.3. Each Participant receiving a Restricted Stock award
shall be issued a certificate in respect of such shares of Restricted Stock.
Such certificate shall be registered in the name of such Participant, and shall
bear an appropriate legend referring to the terms, conditions, and restrictions
applicable to such award, substantially in the following form:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the e-PROFILE, Inc. 1999
Equity Compensation Plan and an Agreement entered into between
the registered owner and e-PROFILE, Inc. Copies of such Plan
and Agreement are on file at the offices of e-PROFILE, Inc."
7.2.4. The Administrator shall require that the certificates
evidencing such Restricted Stock be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any
Restricted Stock award, the Participant shall have delivered a stock power,
endorsed in blank, relating to the Stock covered by such award.
7.3. RESTRICTIONS AND CONDITIONS. The shares of Restricted Stock
awarded pursuant to this Section 7 shall be subject to the following
restrictions and conditions:
7.3.1. Subject to the provisions of this Plan and the
Restricted Stock award agreement, during a period set by the Administrator
commencing with the date of such award (the "Restriction Period"), the
Participant shall not be permitted to sell, transfer, pledge, assign or
otherwise encumber shares of Restricted Stock awarded under the Plan. Within
these limits, the Administrator, at its sole discretion, may provide for the
lapse of such restrictions in installments and may accelerate or waive such
restrictions in whole or in part, based on service, performance and/or such
other factors or criteria as the Administrator may determine, in its sole
discretion.
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7.3.2. Except as provided in this paragraph 7.3.2 and Section
7.3.1, the Participant shall have, with respect to the shares of Restricted
Stock, all of the rights of a stockholder of the Company, including the right to
vote the shares and the right to receive any cash dividends. The Administrator,
in its sole discretion, as determined at the time of award, may permit or
require the payment of cash dividends to be deferred and, if the Administrator
so determines, reinvested in additional Restricted Stock to the extent shares
are available under Section 3.
7.3.3. Subject to the applicable provisions of the Restricted
Stock award agreement and this Section 7, in the event a Participant ceases to
be Employed by the Employer for any reason during the Restriction Period, all
shares still subject to restriction shall be forfeited by the Participant,
subject to any payments for such shares as may be provided in the Restricted
Stock award agreement.
7.3.4. The Administrator may, in its sole discretion, waive in
whole or in part any or all remaining restrictions with respect to such
Participant's shares of Restricted Stock, based on such factors as the
Administrator may deem appropriate.
7.3.5. If and when the Restriction Period expires without a
prior forfeiture of the Restricted Stock subject to such Restriction Period, the
certificates for such shares shall be delivered to the Participant promptly.
SECTION 8. WITHHOLDING AND USE OF SHARES TO SATISFY TAX OBLIGATIONS
8.1. REQUIRED WITHHOLDING. All Grants under the Plan shall be
subject to applicable federal (including FICA), state and local withholding
requirements. The Employer shall have the right to deduct from all Grants paid
in cash, or from other wages paid to the Participant, any federal, state or
local taxes required by law to be withheld with respect to such Grants. In the
case of Grants paid in Stock, the Company may require the Participant or other
person receiving such Stock to pay to the Company the amount of any such taxes
that the Employer is required to withhold with respect to such Grants, or the
Employer may deduct from other wages paid by the Employer the amount of any
withholding taxes due with respect to such Grants.
8.2. ELECTION TO WITHHOLD SHARES. If the Administrator so permits,
a Participant may elect to satisfy the Company's income tax withholding
obligation with respect to a Grant paid in Stock by having shares withheld up to
an amount that does not exceed the Participant's maximum marginal tax rate for
federal (including FICA), state and local tax liabilities. The election must be
in a form and manner prescribed by the Administrator and shall be subject to the
prior approval of the Administrator.
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SECTION 9. REORGANIZATION OF THE COMPANY
9.1. REORGANIZATION. As used herein, a "Reorganization" shall be
deemed to have occurred if the shareholders of the Company approve (or, if
shareholder approval is not required, the Board approves) an agreement providing
for (i) the merger or consolidation of the Company with another corporation
where the shareholders of the Company, immediately prior to the merger or
consolidation, will not beneficially own, immediately after the merger or
consolidation, shares entitling such shareholders to more than 50% of all votes
to which all shareholders of the surviving corporation would be entitled in the
election of directors (without consideration of the rights of any class of stock
to elect directors by a separate class vote), (ii) the sale or other disposition
of all or substantially all of the assets of the Company, or (iii) a liquidation
or dissolution of the Company.
9.2. ASSUMPTION OF GRANTS. Upon a Reorganization where the Company
is not the surviving corporation (or survives only as a subsidiary of another
corporation), unless the Administrator determines otherwise, all outstanding
Options and Stock Appreciation Rights that are not exercised shall be assumed
by, or replaced with comparable options or rights by, the surviving corporation.
9.3. OTHER ALTERNATIVES. Notwithstanding the foregoing, in the
event of a Reorganization, the Administrator may take one or both of the
following actions: the Administrator may (i) require that Participants surrender
their outstanding Options and Stock Appreciation Rights in exchange for a
payment by the Company, in cash or Stock as determined by the Administrator, in
an amount equal to the amount by which the then Fair Market Value of the shares
of Stock subject to the Participant's unexercised Options and Stock Appreciation
Rights exceeds the Exercise Price of the Options or the base amount of the Stock
Appreciation Rights, as applicable, or (ii) after giving Participants an
opportunity to exercise their outstanding Options and Stock Appreciation Rights,
terminate any or all unexercised Options and Stock Appreciation Rights at such
time as the Administrator deems appropriate. Such surrender or termination shall
take place as of the date of the Reorganization or such other date as the
Administrator may specify.
9.4. LIMITATIONS. Notwithstanding anything in the Plan to the
contrary, in the event of a Reorganization, the Administrator shall not have the
right to take any actions described in the Plan (including without limitation
actions described in Section 9.2 above) that would make the Reorganization
ineligible for pooling of interests accounting treatment or that would make the
Reorganization ineligible for desired tax treatment if, in the absence of such
right, the Reorganization would qualify for such treatment and the Company
intends to use such treatment with respect to the Reorganization.
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SECTION 10. CHANGE OF CONTROL OF THE COMPANY
10.1. As used herein, a "Change of Control" shall be deemed to have
occurred if:
10.1.1. Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing a majority of the voting power of the then outstanding
securities of the Company except where the acquisition is approved by the Board;
or
10.1.2. Any person has commenced a tender offer or exchange
offer for a majority of the voting power of the then outstanding shares of the
Company except where such tender offer or exchange offer is approved by the
Board.
10.2. NOTICE AND ACCELERATION. Unless the Administrator determines
otherwise, a Change of Control shall not result in the acceleration of vesting
of outstanding Options and Stock Appreciation Rights or the removal of
restrictions and conditions on outstanding Restricted Stock grant.
10.3. OTHER ALTERNATIVES. Notwithstanding the foregoing, in the
event of a Change of Control, the Administrator may take one or both of the
following actions: the Administrator may (i) require that Participants surrender
their outstanding Options and Stock Appreciation Rights in exchange for a
payment by the Company, in cash or Stock as determined by the Administrator, in
an amount equal to the amount by which the then Fair Market Value of the shares
of Stock subject to the Participant's unexercised Options and Stock Appreciation
Rights exceeds the exercise price of the Options or the base amount of the Stock
Appreciation Rights, as applicable, or (ii) after giving Participants an
opportunity to exercise their outstanding Options and Stock Appreciation Rights,
terminate any or all unexercised Options and Stock Appreciation Rights at such
time as the Administrator deems appropriate. Such surrender or termination shall
take place as of the date of the Change of Control or such other date as the
Administrator may specify.
10.4. LIMITATIONS. Notwithstanding anything in the Plan to the
contrary, in the event of a Change of Control, the Administrator shall not have
the right to take any actions described in the Plan (including without
limitation actions described in Section 10.3 above) that would make the Change
of Control ineligible for pooling of interests accounting treatment or that
would make the Change of Control ineligible for desired tax treatment if, in the
absence of such right, the Change of Control would qualify for such treatment
and the Company intends to use such treatment with respect to the Change of
Control.
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SECTION 11. AMENDMENTS AND TERMINATION
The Board may amend or terminate the Plan at any time.
SECTION 12. UNFUNDED STATUS OF PLAN
The Plan is intended to constitute an "unfunded" plan. The Company
shall not be required to establish any special or separate fund or to make any
other segregation of assets to assure the payment of any Grants under this Plan.
In no event shall interest be paid or accrued on any Grant, including unpaid
installments of Grants.
SECTION 13. GENERAL PROVISIONS
13.1. The Administrator may require each person purchasing shares
pursuant to a Stock Option or receiving Stock upon the expiration of any
Restriction Period under the Plan to represent to and agree with the Company in
writing that the Participant is acquiring the shares for investment and not with
a view to distribution thereof and that such Participant will not dispose of
such Stock in any manner that would involve a violation of applicable securities
laws. In such event no Stock shall be issued to such Participant unless and
until the Company is satisfied with such representation. The certificates for
such shares may include any legend which the Administrator deems appropriate to
reflect any restrictions on transfer under the Securities Act or any state
securities law.
All certificates for shares of Stock or other securities
delivered under the Plan shall be subject to such stop-transfer orders and other
restrictions as the Administrator may deem advisable under the rules,
regulations and other requirements of the Securities Act, the Exchange Act, any
stock exchange or over-the-counter market upon which the Stock is then listed or
included, and any applicable federal or state securities law, and the
Administrator may cause a legend or legends to be put on any such certificates
to make appropriate reference to such restrictions.
13.2. Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to stockholder
approval if such approval is required, and such arrangements may be either
generally applicable or applicable only in specific cases.
13.3. The adoption of the Plan shall not confer upon any Participant
any right to continued employment with the Employer nor shall it interfere in
any way with the right of an Employer to terminate its relationship with any of
its employees, directors or independent contractors at any time.
13.4. The Administrator may provide in connection with any grant
made under this Plan that (i) the shares of Stock received as a result of such
grant shall be subject to a right of first
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refusal, pursuant to which the Participant shall be required to offer to the
Company any shares that the Participant wishes to sell, with the price being the
then Fair Market Value of the Stock, subject to such other terms and conditions
as the Administrator may specify; and (ii) the shares of Stock received or to be
received as a result of such grant shall be subject to repurchase by the Company
in the event the Participant ceases to be Employed by the Employer, subject to a
repurchase price and such other terms and conditions as the Administrator may
specify.
13.5. The reinvestment of dividends in additional Restricted Stock
at the time of any dividend payment shall only be permissible if sufficient
shares of Stock are available under Section 3 for such reinvestment.
13.6. The Administrator shall establish such procedures as it deems
appropriate for a Participant to designate a beneficiary to whom any amounts
payable in the event of the Participant's death are to be paid.
13.7. The Plan shall be governed by and subject to all applicable
laws and to the approvals by any governmental or regulatory agency as may be
required.
SECTION 14. EFFECTIVE DATE AND TERM OF PLAN
The Plan shall be effective as of May 1, 1999, subject to the consent
or approval of the Company's stockholders. No Stock Option, Stock Appreciation
Right or Restricted Stock award shall be granted pursuant to the Plan on or
after May 1, 2009, but awards granted prior to such tenth anniversary may extend
beyond that date; provided, however, that if the Plan is not approved by the
unanimous consent of all stockholders or by a majority of the votes cast at a
duly held meeting at which a quorum representing a majority of all outstanding
voting stock of the Company is, either in person or by proxy, present and voting
on the Plan, within 12 months after said date, the Plan and all Grants awarded
hereunder shall be null and void and no additional Grants shall be awarded
hereunder.
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SECTION 15. INTERPRETATION
A determination of the Administrator as to any question which may
arise with respect to the interpretation of the provisions of this Plan or any
Grants awarded thereunder shall be final and conclusive, and nothing in this
Plan, or in any regulation hereunder, shall be deemed to give any Participant,
his legal representatives, assigns or any other person any right to participate
herein except to such extent, if any, as the Administrator may have determined
or approved pursuant to this Plan. The Administrator may consult with legal
counsel who may be counsel to the Company and shall not incur any liability for
any action taken in good faith in reliance upon the advice of such counsel.
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SECTION 16. GOVERNING LAW.
With respect to any Incentive Stock Options granted pursuant to the
Plan and the agreements thereunder, the Plan, such agreements and any Incentive
Stock Options granted pursuant thereto shall be governed by the applicable Code
provisions to the maximum extent possible. Otherwise, the laws of the State of
Delaware shall govern the operation of, and the rights of Participants under,
the Plan, the agreements and any Grants awarded thereunder.
SECTION 17. COMPLIANCE WITH SECTION 16b OF THE EXCHANGE ACT
Unless an Insider could otherwise transfer shares of Stock issued
hereunder without incurring liability under Section 16b of the Exchange Act, at
least six months must elapse from the date of grant of an Option, Stock
Appreciation Right or Restricted Stock award to the date of disposition of the
Stock issued upon exercise of such Option or Stock Appreciation Right or grant
of such Restricted Stock award.
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