eCom.com, Inc.
EMPLOYEE STOCK INCENTIVE PLAN
1. GENERAL PROVISIONS
1.1 Establishment and Purpose of Plan.
eCom.com, Inc., a Colorado corporation ("Company") and its
Subsidiaries which it may have from time to time (Company and
such Subsidiaries are referred to herein as the Company") hereby
establishes a stock incentive plan to be known as the "eCom.com,
Inc. Stock Incentive Plan" (hereinafter referred to as the
"Plan"), as set forth in this document. The Plan is intended to
allow designated officers and employees (all of whom are
sometimes collectively referred to herein as "Employees") of to
receive certain options ("Stock Options") to purchase the
Company's common stock, $0.01 par value ("Common Stock"), and to
receive grants of Common Stock subject to certain restrictions
("Awards"). As used in this Plan, the term "Subsidiary" shall
mean each corporation which is a "subsidiary corporation" of the
Company within the meaning of Section 424(f) of the Internal
Revenue Code of 1986, as amended ("Code"). The purpose of this
Plan is to provide Employees with equity-based compensation
incentives to make significant and extraordinary contributions to
the long-term performance and growth of the Company, and to
attract and retain Employees of exceptional ability.
Subject to approval by the Company's Board of Directors, the
Plan shall become effective as of June 1, 2000 (the "Effective
Date") and shall remain in effect as provided in Section 1.3
hereof.
1.2 Administration.
1.2.1 The Plan shall be administered by the Board of Directors
or by a Compensation Committee ("Committee") of, or appointed by,
the Board of Directors of Company ("Board"). Each member of the
Committee shall be a "disinterested person" as that term is defined
in Rule 16b-3 promulgated by the Securities and Exchange Commission
("Commission") pursuant to the Securities Exchange Act of 1934, as
amended ("Exchange Act"), but no action of the Committee shall be
invalid if this requirement is not met. The Committee shall select
one of its members as Chairman and shall act by vote of a majority
of a quorum, or by unanimous written consent. A majority of its
members shall constitute a quorum. The Committee shall be governed
by the provisions of Company's Bylaws and of Nevada law applicable
to the Board, except as otherwise provided herein or determined by
the Board.
1.2.2 The Board or Committee shall have full and complete
authority, in its discretion, but subject to the express provisions
of the Plan: to approve the Employees nominated by the management
of the Company to be granted Awards or Stock Options; to determine
the number of Awards or Stock Options to be granted to an Employee;
to determine the time or times at which Awards or Stock Options
shall be granted; to establish the terms and conditions upon which
Awards or Stock Options may be exercised; to remove or adjust any
restrictions and conditions upon Awards or Stock Options; to
specify, at the time of grant, provisions relating to
exercisability of Stock Options and to accelerate or otherwise
modify the exercisability of any Stock Options; and to adopt such
rules and regulations and to make all other determinations deemed
necessary or desirable for the administration of the Plan. All
interpretations and constructions of the Plan by the Board or
Committee, and all of its actions hereunder, shall be binding and
conclusive on all persons for all purposes.
1.2.3 The Company hereby agrees to indemnify and hold harmless
each Board or Committee member and each employee of the Company,
and the estate and heirs of such Board or Committee member or
employee, against all claims, liabilities, expenses, penalties,
damages or other pecuniary losses, including legal fees, which such
Board or Committee member or employee, his or her estate or heirs
may suffer as a result of his or her responsibilities, obligations
or duties in connection with the Plan, to the extent that
insurance, if any, does not cover the payment of such items. No
member of the Board or Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any
Award or Stock Option granted pursuant to the Plan.
1.3 Eligibility and Participation.
Employees eligible under the Plan shall be approved by the
Board or Committee from those Employees who, in the opinion of the
management of the Company, are in positions which enable them to
make significant and extraordinary contributions to the long-term
performance and growth of the Company. In selecting Employees to
whom Stock Options or Awards may be granted, consideration shall be
given to factors such as employment position, duties and respon-
sibilities, ability, productivity, length of service, morale,
interest in the Company and recommendations of supervisors. No
member of the Committee shall be eligible to participate under the
Plan or under any other Company plan if such participation would
contravene the standard of paragraph 1.2.1 above relating to "dis-
interested persons."
1.4 Shares Subject to the Plan.
The maximum number of shares of Common Stock that may be
issued pursuant to the Plan shall be Ten Million (10,000,000)
subject to adjustment pursuant to the provisions of paragraph 4.1.
If shares of Common Stock awarded or issued under the Plan are
reacquired by the Company due to a forfeiture or for any other
reason, such shares shall be cancelled and thereafter shall again
be available for purposes of the Plan. If a Stock Option expires,
terminates or is cancelled for any reason without having been
exercised in full, the shares of Common Stock not purchased
thereunder shall again be available for purposes of the Plan.
2. PROVISIONS RELATING TO STOCK OPTIONS
2.1 Grants of Stock Options.
The Board or Committee may grant Stock Options in such
amounts, at such times, and to such Employees nominated by the
management of the Company as the Board or Committee, in its
discretion, may determine. Stock Options granted under the Plan
shall constitute "incentive stock options" within the meaning of
Section 422 of the Code, if so designated by the Board or Committee
on the date of grant. The Board or Committee shall also have the
discretion to grant Stock Options which do not constitute incentive
stock options, and any such Stock Options shall be designated non-
statutory stock options by the Board or Committee on the date of
grant. The aggregate fair market value (determined as of the time
an incentive stock option is granted) of the Common Stock with
respect to which incentive stock options are exercisable for the
first time by any Employee during any one calendar year (under all
plans of the Company and any parent or Subsidiary of the Company)
may not exceed the maximum amount permitted under Section 422 of
the Code (currently one hundred thousand dollars ($100,000.00)).
Non-statutory stock options shall not be subject to the limitations
relating to incentive stock options contained in the preceding
sentence. Each Stock Option shall be evidenced by a written
agreement ("Option Agreement") in a form approved by the Board or
Committee, which shall be executed on behalf of the Company and by
the Employee to whom the Stock Option is granted, and which shall
be subject to the terms and conditions of this Plan. In the
discretion of the Board or Committee, Stock Options may include
provisions (which need not be uniform), authorized by the Board or
Committee in its discretion, that accelerate an Employee's rights
to exercise Stock Options following a "Change in Control," upon
termination of such Employee employment by the Company without
"Cause" or by the Employee for "Good Reason," as such terms are
defined in paragraph 3.1 hereof. The holder of a Stock Option
shall not be entitled to the privileges of stock ownership as to
any shares of Common Stock not actually issued to such holder.
2.2 Purchase Price.
The purchase price ("Exercise Price") of shares of Common
Stock subject to each Stock Option ("Option Shares") shall equal to
at least eighty-five percent (85%) of the market price of the
Common Stock on the date of the grant, less any discount as deemed
appropriate by the Board or the Committee.
2.3 Option Period.
The Stock Option period ("Term") shall commence on the date of
grant of the Stock Option and shall be ten years or such shorter
period as is determined by the Board or Committee. Each Stock
Option shall provide that it is exercisable over its term in such
periodic installments as the Board or Committee in its sole
discretion may determine. Such provisions need not be uniform.
Notwithstanding the foregoing, but subject to the provisions of
paragraphs 1.2.2 and 2.1, Stock Options granted to Employees who
are subject to the reporting requirements of Section 16(a) of the
Exchange Act ("Section 16 Reporting Persons") shall not be
exercisable until at least six months and one day from the date the
Stock Option is granted.
2.4 Exercise of Options.
2.4.1 Each Stock Option may be exercised in whole or in part
(but not as to fractional shares) by delivering it for surrender or
endorsement to the Company, attention of the Corporate Secretary,
at the principal office of the Company, together with payment of
the Exercise Price and an executed Notice and Agreement of Exercise
in the form prescribed by paragraph 2.4.2. Payment may be made (i)
in cash, (ii) by cashier's or certified check, (iii) by surrender
of previously owned shares of the Company's Common Stock valued
pursuant to paragraph 2.2 (if the Board or Committee authorizes
payment in stock in its discretion), (iv) by withholding from the
Option Shares which would otherwise be issuable upon the exercise
of the Stock Option that number of Option Shares equal to the
exercise price of the Stock Option, if such withholding is
authorized by the Board or Committee in its discretion, or (v) in
the discretion of the Board or Committee, by the delivery to the
Company of the optionee's promissory note secured by the Option
Shares, bearing interest at a rate sufficient to prevent the
imputation of interest under Sections 483 or 1274 of the Code, and
having such other terms and conditions as may be satisfactory to
the Board or Committee.
2.4.2 Exercise of each Stock Option is conditioned upon the
agreement of the Employee to the terms and conditions of this Plan
and of such Stock Option as evidenced by the Employee's execution
and delivery of a Notice and Agreement of Exercise in a form to be
determined by the Board or Committee in its discretion. Such
Notice and Agreement of Exercise shall set forth the agreement of
the Employee that: (a) no Option Shares will be sold or otherwise
distributed in violation of the Securities Act of 1933, as amended
("Securities Act"), or any other applicable federal or state
securities laws, (b) each Option Share certificate may be imprinted
with legends reflecting any applicable federal and state securities
law restrictions and conditions, (c) the Company may comply with
said securities law restrictions and issue "stop transfer"
instructions to its transfer agent and registrar without liability,
(d) if the Employee is a Section 16 Reporting Person, the Employee
will furnish to the Company a copy of each Form 4 or Form 5 filed
by said Employee and will timely file all reports required under
federal securities laws, and (e) the Employee will report all sales
of Option Shares to the Company in writing on a form prescribed by
the Company.
2.4.3 No Stock Option shall be exercisable unless and until
any applicable registration or qualification requirements of
federal and state securities laws, and all other legal require-
ments, have been fully complied with. The Company will use
reasonable efforts to maintain the effectiveness of a Registration
Statement under the Securities Act for the issuance of Stock
Options and shares acquired thereunder, but there may be times when
no such Registration Statement will be currently effective. The
exercise of Stock Options may be temporarily suspended without
liability to the Company during times when no such Registration
Statement is currently effective, or during times when, in the
reasonable opinion of the Board or Committee, such suspension is
necessary to preclude violation of any requirements of applicable
law or regulatory bodies having jurisdiction over the Company. If
any Stock Option would expire for any reason except the end of its
term during such a suspension, then if exercise of such Stock
Option is duly tendered before its expiration, such Stock Option
shall be exercisable and exercised (unless the attempted exercise
is withdrawn) as of the first day after the end of such suspension.
The Company shall have no obligation to file any Registration
Statement covering resales of Option Shares.
2.5 Continuous Employment.
Except as provided in paragraph 2.7 below, an Employee may not
exercise a Stock Option unless from the date of grant to the date
of exercise such Employee remains continuously in the employ of the
Company. For purposes of this paragraph 2.5, the period of
continuous employment of an Employee with the Company shall be
deemed to include (without extending the term of the Stock Option)
any period during which such Employee is on leave of absence with
the consent of the Company, provided that such leave of absence
shall not exceed ninety (90) days and that such Employee returns to
the employ of the Company at the expiration of such leave of
absence. If such Employee fails to return to the employ of the
Company at the expiration of such leave of absence, such Employee's
employment with the Company shall be deemed terminated as of the
date such leave of absence commenced. The continuous employment of
an Employee with the Company shall also be deemed to include any
period during which such Employee is a member of the Armed Forces
of the United States, provided that such Employee returns to the
employ of the Company within ninety (90) days (or such longer
period as may be prescribed by law) from the date such Employee
first becomes entitled to discharge. If an Employee does not
return to the employ of the Company within ninety (90) days (or
such longer period as may be prescribed by law) from the date such
Employee first becomes entitled to discharge, such Employee's
employment with the Company shall be deemed to have terminated as
of the date such Employee's military service ended.
2.6 Restrictions on Transfer.
Each Stock Option granted under this Plan shall be
transferable only by will or the laws of descent and distribution.
No interest of any Employee under the Plan shall be subject to
attachment, execution, garnishment, sequestration, the laws of
bankruptcy or any other legal or equitable process. Each Stock
Option granted under this Plan shall be exercisable during an
Employee's lifetime only by such Employee or by such Employee's
legal representative.
2.7 Termination of Employment.
2.7.1 Upon an Employee's Retirement, Disability (both terms
being defined below) or death, (a) all Stock Options to the extent
then presently exercisable shall remain in full force and effect
and may be exercised pursuant to the provisions thereof, including
expiration at the end of the fixed term thereof, and (b) unless
otherwise provided by the Board or Committee, all Stock Options to
the extent not then presently exercisable by such Employee shall
terminate as of the date of such termination of employment and
shall not be exercisable thereafter.
2.7.2 Upon the termination of the employment of an Employee
with the Company for any reason other than the reasons set forth in
paragraph 2.7.1 hereof, (a) all Stock Options to the extent then
presently exercisable by such Employee shall remain exercisable
only for a period of ninety (90) days after the date of such
termination of employment (except that the ninety (90) day period
shall be extended to twelve (12) months if the Employee shall die
during such ninety (90) day period), and may be exercised pursuant
to the provisions thereof, including expiration at the end of the
fixed term thereof, and (b) unless otherwise provided by the Board
or Committee, all Stock Options to the extent not then presently
exercisable by such Employee shall terminate as of the date of such
termination of employment and shall not be exercisable thereafter.
2.7.3 For purposes of this Plan:
(a) "Retirement" shall mean an Employee's retirement
from the employ of the Company on or after the date on which such
Employee attains the age of sixty-five (65) years; and
(b) "Disability" shall mean total and permanent
incapacity of an Employee, due to physical impairment or legally
established mental incompetence, to perform the usual duties of
such Employee's employment with the Company, which disability shall
be determined: (i) on medical evidence by a licensed physician
designated by the Board or Committee, or (ii) on evidence that the
Employee has become entitled to receive primary benefits as a
disabled employee under the Social Security Act in effect on the
date of such disability.
3. PROVISIONS RELATING TO AWARDS
3.1 Grant of Awards.
Subject to the provisions of the Plan, the Board or
Committee shall have full and complete authority, in its
discretion, but subject to the express provisions of this Plan,
to (i) grant Awards pursuant to the Plan, (ii) determine the
number of shares of Common Stock subject to each Award ("Award
Shares"), (iii) determine the terms and conditions (which need
not be identical) of each Award, including the consideration (if
any) to be paid by the Employee for such Common Stock, which may,
in the Board's or Committee's discretion, consist of the delivery
of the Employee's promissory note meeting the requirements of
paragraph 2.4.1, (iv) establish and modify performance criteria
for Awards, and (v) make all of the determinations necessary or
advisable with respect to Awards under the Plan. Each award
under the Plan shall consist of a grant of shares of Common Stock
subject to a restriction period (after which the restrictions
shall lapse), which shall be a period commencing on the date the
award is granted and ending on such date as the Board or
Committee shall determine ("Restriction Period"). The Board or
Committee may provide for the lapse of restrictions in
installments, for acceleration of the lapse of restrictions upon
the satisfaction of such performance, or other criteria or upon
the occurrence of such events as the Board or Committee shall
determine, and for the early expiration of the Restriction Period
upon an Employee's death, Disability or Retirement as defined in
paragraph 2.7.3, or following a Change of Control, upon
termination of an Employee's employment by the Company without
"Cause" or by the Employee for "Good Reason," as those terms are
defined herein.
In addition to the above, any person who receives Award Shares
may only sell shares of Common Stock pursuant to the volume and
certain other limitations of Rule 144 under the Securities Act of
1933, as amended (the "Securities Act"), for a period of one (1)
year or by complying with the registration requirements of the
Securities Act; non-affiliates shall not be subject to such
limitations after holding the Common Stock for a period of two
years. The volume, manner of sale and notice provisions of Rule
144 are applicable to any resale of Common Stock. In addition,
Section 16 of the Exchange Act may limit an affiliate's right to
resell shares or impose reporting obligations upon any such
resale. All such persons should consult the Company's counsel
concerning their status as affiliates and the applicability of
Rule 144 and Section 16 before selling any Company Common Stock.
An "affiliate" is generally defined under the Securities Act as
an officer, director, ten percent (10%) shareholder, or other
control person, including, in some cases, certain officers and
directors of Subsidiaries.
"Change of Control" shall be deemed to occur (a) on the date
the Company first has actual knowledge that any person (as such
term is used in Sections 13(d) and 14(d) (2) of the Exchange Act)
has become the beneficial owner (as defined in Rule 13(d)-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing forty percent (40%) or more of the combined
voting power of the Company's then outstanding securities, or (b)
on the date the shareholders of the Company approve (i) a merger of
the Company with or into any other corporation in which the Company
is not the surviving corporation or in which the Company survives
as a subsidiary of another corporation, (ii) a consolidation of the
Company with any other corporation, or (iii) the sale or
disposition of all or substantially all of the Company's assets or
a plan of complete liquidation.
"Cause," when used with reference to termination of the
employment of an Employee by the Company for "Cause," shall mean:
(a) the Employee's continuing willful and material breach of
his or her duties to the Company after he or she receives a demand
from the Chief Executive of the Company specifying the manner in
which he or she has willfully and materially breached such duties,
other than any such failure resulting from Disability of the
Employee or his or her resignation for "Good Reason," as defined
herein; or
(b) the conviction of the Employee of a felony; or
(c) the Employee's commission of fraud in the course of his
or her employment with the Company, such as embezzlement or other
material and intentional violation of law against the Company; or
(d) the Employee's gross misconduct causing material harm to
the Company.
"Good Reason" shall mean any one or more of the following,
occurring following or in connection with a Change of Control and
within 90 days prior to the Employee's resignation, unless the
Employee shall have consented thereto in writing:
(a) the assignment to the Employee of duties inconsistent
with his or her executive status prior to the Change of Control or
a substantive change in the officer or officers to whom he or she
reports from the officer or officers to whom he or she reported
immediately prior to the Change of Control; or
(b) the elimination or reassignment of a majority of the
duties and responsibilities that were assigned to the Employee
immediately prior to the Change of Control; or
(c) a reduction by the Company in the Employee's annual base
salary as in effect immediately prior to the Change of Control; or
(d) the Company's requiring the Employee to be based
anywhere outside a 35-mile radius from his or her place of
employment immediately prior to the Change of Control, except for
required travel on the Company's business to an extent
substantially consistent with the Employee's business travel
obligations immediately prior to the Change of Control; or
(e) the failure of the Company to grant the Employee a
performance bonus reasonably equivalent to the same percentage of
salary the Employee normally received prior to the Change of
Control, given comparable performance by the Company and the
Employee; or
(f) the failure of the Company to obtain a satisfactory
Assumption Agreement (as defined in paragraph 4.12 of the Plan)
from a successor, or the failure of such successor to perform such
Assumption Agreement.
3.2 Incentive Agreements.
Each Award granted under the Plan shall be evidenced by a
written agreement (an "Incentive Agreement") in a form approved by
the Board or Committee and executed by the Company and the Employee
to whom the Award is granted. Each Incentive Agreement shall be
subject to the terms and conditions of the Plan and other such
terms and conditions as the Board or Committee may specify.
3.3 Waiver of Restrictions.
The Board or Committee may modify or amend any Award under the
Plan or waive any restrictions or conditions applicable to such
Awards; provided, however, that the Board or Committee may not
undertake any such modifications, amendments or waivers if the
effect thereof materially increases the benefits to any Employee,
or adversely affects the rights of any Employee without his or her
consent.
3.4 Terms and Conditions of Awards.
3.4.1 Upon receipt of an Award of shares of Common Stock under
the Plan, even during the Restriction Period, an Employee shall be
the holder of record of the shares and shall have all the rights of
a shareholder with respect to such shares, subject to the terms and
conditions of the Plan and the Award.
3.4.2 Except as otherwise provided in this paragraph 3.4, no
shares of Common Stock received pursuant to the Plan shall be sold,
exchanged, transferred, pledged, hypothecated or otherwise disposed
of during the Restriction Period applicable to such shares. Any
purported disposition of such Common Stock in violation of this
paragraph 3.4.2 shall be null and void.
3.4.3 If an Employee's employment with the Company terminates
prior to the expiration of the Restriction Period for an Award,
subject to any provisions of the Award with respect to the
Employee's death, Disability or Retirement, or Change of Control,
all shares of Common Stock subject to the Award shall be
immediately forfeited by the Employee and reacquired by the
Company, and the Employee shall have no further rights with respect
to the Award. In the discretion of the Board or Committee, an
Incentive Agreement may provide that, upon the forfeiture by an
Employee of Award Shares, the Company shall repay to the Employee
the consideration (if any) which the Employee paid for the Award
Shares on the grant of the Award. In the discretion of the Board
or Committee, an Incentive Agreement may also provide that such
repayment shall include an interest factor on such consideration
from the date of the grant of the Award to the date of such
repayment.
3.4.4 The Board or Committee may require under such terms and
conditions as it deems appropriate or desirable that (i) the
certificates for Common Stock delivered under the Plan are to be
held in custody by the Company or a person or institution
designated by the Company until the Restriction Period expires,
(ii) such certificates shall bear a legend referring to the
restrictions on the Common Stock pursuant to the Plan, and (iii)
the Employee shall have delivered to the Company a stock power
endorsed in blank relating to the Common Stock.
4. MISCELLANEOUS PROVISIONS
4.1 Adjustments Upon Change in Capitalization.
4.1.1 The number and class of shares subject to each out-
standing Stock Option, the Exercise Price thereof (but not the
total price), the maximum number of Stock Options that may be
granted under the Plan, the minimum number of shares as to which a
Stock Option may be exercised at any one time, and the number and
class of shares subject to each outstanding Award, shall
be proportionately adjusted in the event of any increase or
decrease in the number of the issued shares of Common Stock which
results from a split-up or consolidation of shares, payment of a
stock dividend or dividends exceeding a total of five percent (5%)
for which the record dates occur in any one fiscal year, a
recapitalization (other than the conversion of convertible securi-
ties according to their terms), a combination of shares or other
like capital adjustment, so that (i) upon exercise of the Stock
Option, the Employee shall receive the number and class of shares
such Employee would have received had such Employee been the holder
of the number of shares of Common Stock for which the Stock Option
is being exercised upon the date of such change or increase or
decrease in the number of issued shares of the Company, and (ii)
upon the lapse of restrictions of the Award Shares, the Employee
shall receive the number and class of shares such Employee would
have received if the restrictions on the Award Shares had lapsed on
the date of such change or increase or decrease in the number of
issued shares of the Company.
4.1.2 Upon a reorganization, merger or consolidation of
the Company with one or more corporations as a result of which
the Company is not the surviving corporation or in which the
Company survives as a wholly-owned subsidiary of another
corporation, or upon a sale of all or substantially all of the
property of the Company to another corporation, or any dividend
or distribution to shareholders of more than ten percent (10%) of
the Company's assets, adequate adjustment or other provisions
shall be made by the Company or other party to such transaction
so that there shall remain and/or be substituted for the Option
Shares and Award Shares provided for herein, the shares,
securities or assets which would have been issuable or payable in
respect of or in exchange for such Option Shares and Award Shares
then remaining, as if the Employee had been the owner of such
shares as of the applicable date. Any securities so substituted
shall be subject to similar successive adjustments.
4.2 Withholding Taxes.
The Company shall have the right at the time of exercise of
any Stock Option, the grant of an Award, or the lapse of
restrictions on Award Shares, to make adequate provision for any
federal, state, local or foreign taxes which it believes are or may
be required by law to be withheld with respect to such exercise
("Tax Liability"), to ensure the payment of any such Tax Liability.
The Company may provide for the payment of any Tax Liability by
any of the following means or a combination of such means, as
determined by the Board or Committee in its sole and absolute
discretion in the particular case: (i) by requiring the Employee
to tender a cash payment to the Company, (ii) by withholding from
the Employee's salary, (iii) by withholding from the Option Shares
which would otherwise be issuable upon exercise of the Stock
Option, or from the Award Shares on their grant or date of lapse of
restrictions, that number of Option Shares or Award Shares having
an aggregate fair market value (determined in the manner prescribed
by paragraph 2.2) as of the date the withholding tax obligation
arises in an amount which is equal to the Employee's Tax Liability
or (iv) by any other method deemed appropriate by the Board or
Committee. Satisfaction of the Tax Liability of a Section 16
Reporting Person may be made by the method of payment specified in
clause (iii) above only if the following two conditions are
satisfied:
(a) the withholding of Option Shares or Award Shares and the
exercise of the related Stock Option occur at least six months and
one day following the date of grant of such Stock Option or Award;
and
(b) the withholding of Option Shares or Award Shares is made
either (i) pursuant to an irrevocable election ("Withholding
Election") made by such Employee at least six (6) months in advance
of the withholding of Options Shares or Award Shares, or (ii) on a
day within a ten (10) day "window period" beginning on the third
(3rd) business day following the date of release of the Company's
quarterly or annual summary statement of sales and earnings.
Anything herein to the contrary notwithstanding, a Withholding
Election may be disapproved by the Board or Committee at any time.
4.3 Relationship to Other Employee Benefit Plans.
Stock Options and Awards granted hereunder shall not be deemed
to be salary or other compensation to any Employee for purposes of
any pension, thrift, profit-sharing, stock purchase or any other
employee benefit plan now maintained or hereafter adopted by the
Company.
4.4 Amendments and Termination.
The Board may at any time suspend, amend or terminate this
Plan. No amendment, except as provided in paragraph 2.8, or
modification of this Plan may be adopted, except subject to
stockholder approval, which would: (a) materially increase the
benefits accruing to Employees under this Plan, (b) materially
increase the number of securities which may be issued under this
Plan (except for adjustments pursuant to paragraph 4.1 hereof), or
(c) materially modify the requirements as to eligibility for
participation in the Plan.
4.5 Successors in Interest.
The provisions of this Plan and the actions of the Board or
Committee shall be binding upon all heirs, successors and assigns
of the Company and of the Employees.
4.6 Other Documents.
All documents prepared, executed or delivered in connection
with this Plan (including, without limitation, Option Agreements
and Incentive Agreements) shall be, in substance and form, as
established and modified by the Board or Committee; provided,
however, that all such documents shall be subject in every respect
to the provisions of this Plan, and in the event of any conflict
between the terms of any such document and this Plan, the
provisions of this Plan shall prevail.
4.7 No Obligation to Continue Employment.
This Plan and grants hereunder shall not impose any obligation
on the Company to continue to employ any Employee. Moreover, no
provision of this Plan or any document executed or delivered
pursuant to this Plan shall be deemed modified in any way by any
employment contract between an Employee (or other employee) and the
Company.
4.8 Misconduct of an Employee.
Notwithstanding any other provision of this Plan, if an
Employee commits fraud or dishonesty toward the Company or wrong-
fully uses or discloses any trade secret, confidential data or
other information proprietary to the Company, or intentionally
takes any other action materially inimical to the best interests of
the Company, as determined by the Board or Committee, in its sole
and absolute discretion, such Employee shall forfeit all rights and
benefits under this Plan.
4.9 Term of Plan.
This Plan was adopted by the Board effective June 1, 2000. No
Stock Options or Awards may be granted under this Plan after June
1, 2010.
4.10 Governing Law.
This Plan shall be construed in accordance with, and governed
by, the laws of the State of Nevada.
4.11 Assumption Agreements.
The Company will require each successor, (direct or indirect,
whether by purchase, merger, consolidation or otherwise), to all or
substantially all of the business or assets of the Company, prior
to the consummation of each such transaction, to assume and agree
to perform the terms and provisions remaining to be performed by
the Company under each Incentive Agreement and Stock Option and to
preserve the benefits to the Employees thereunder. Such assumption
and agreement shall be set forth in a written agreement in form and
substance satisfactory to the Board or Committee (an "Assumption
Agreement"), and shall include such adjustments, if any, in the
application of the provisions of the Incentive Agreements and Stock
Options and such additional provisions, if any, as the Board or
Committee shall require and approve, in order to preserve such
benefits to the Employees. Without limiting the generality of the
foregoing, the Board or Committee may require an Assumption
Agreement to include satisfactory undertakings by a successor:
(a) to provide liquidity to the Employees at the end of the
Restriction Period applicable to Common Stock awarded to them under
the Plan, or on the exercise of Stock Options;
(b) if the succession occurs before the expiration of any
period specified in the Incentive Agreements for satisfaction of
performance criteria applicable to the Common Stock awarded
thereunder, to refrain from interfering with the Company's ability
to satisfy such performance criteria or to agree to modify such
performance criteria and/or waive any criteria that cannot be
satisfied as a result of the succession;
(c) to require any future successor to enter into an
Assumption Agreement; and
(d) to take or refrain from taking such other actions as the
Board or Committee may require and approve, in its discretion.
The Committee referred to in this paragraph 4.12 is the Committee
appointed by the Board in office prior to the succession then under
consideration.
4.12 Compliance With Rule 16b-3.
Transactions under the Plan are intended to comply with all
applicable conditions of Rule 16b-3. To the extent that any
provision of the Plan or action by the Board or Committee fails to
so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Board or Committee.
IN WITNESS WHEREOF, this Plan has been executed as of the 1st
day of June, 2000.
eCom.com, Inc.
By: /s/ Sidney B. Fowlds
Sidney B. Fowlds, President
