Exhibit 10.17
CENDANT CORPORATION
MOVE.COM GROUP
1999 STOCK OPTION PLAN
AS ASSUMED BY CENDANT CORPORATION FROM MOVE.COM, INC. AND
AMENDED AND RESTATED EFFECTIVE AS OF MARCH 21, 2000.
SECTION 1. PURPOSE; DEFINITIONS
The purpose of the Plan is to give Cendant Corporation (the "Corporation")
a competitive advantage in attracting, retaining and motivating its employees,
including employees of Move.com Group, and to provide the Corporation and its
Affiliates with a stock plan providing incentives to plan participants directly
linked to the performance of the Move.com Group businesses and increases in
Move.com Group shareholder value. The Plan was formerly an obligation of
Move.com, Inc. and has been assumed by Cendant Corporation and equitably
adjusted such that, among other things, existing and future grants of options
hereunder shall be options to purchase shares of that series of common stock of
the Corporation designated "Move.com Stock".
For purposes of the Plan, the following terms are defined as set forth
below:
(a) "AFFILIATE" means a corporation or other entity controlled by,
controlling or under common control with the Corporation.
(b) "BOARD" means the Board of Directors of the Corporation.
(c) "CAUSE" means an optionee's (1) failure to substantially perform his
or her duties as an employee of the Corporation or any Affiliate (other than any
such failure resulting from incapacity due to physical or mental illness); (2)
any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct
against the Corporation or any Affiliate; (3) conviction of a felony or any
crime involving moral turpitude (which conviction, due to the passage of time or
otherwise, is not subject to further appeal) or (4) negligence in the
performance of his or her duties. Notwithstanding the foregoing, if an optionee
is a party to an employment agreement with the Corporation or any Affiliate that
contains a definition of "Cause," such definition shall apply to such Stock
Options granted to such optionee under the Plan except to the extent otherwise
provided by the Committee in the agreement relating to any Stock Option. Any
determination regarding the existence of "Cause" shall be made by the Committee
in its sole discretion and any such determination shall be binding on the
optionee, the Corporation and any Affiliate.
(d) "CENDANT" means Cendant Corporation, a Delaware corporation.
(e) "CHANGE-OF-CONTROL TRANSACTION" means any transaction or series of
transactions consummated in any twelve (12) month period pursuant to or as a
result of which (i) any person or entity other than Cendant is or becomes,
directly or indirectly, the beneficial owner of 50% or
more of the Common Stock (or other securities of the Corporation having
generally the right to vote for election of the Board), (ii) the Corporation or
any Subsidiary shall sell, assign or otherwise transfer, directly or indirectly,
assets (including stock or other securities of Subsidiaries) having a fair
market or book value or earning power of 50% or more of the assets or earning
power of the Corporation and its Subsidiaries (taken as a whole) to any third
party, other than Cendant, the Corporation or a wholly-owned Subsidiary thereof,
(iii) control of 50% or more of the business of the Corporation shall be sold,
assigned or otherwise transferred directly or indirectly to any third party
other than Cendant, (iv) there is consummated a merger or consolidation of the
Corporation with any other corporation other than Cendant, other than (A) a
merger or consolidation which would result in the voting securities of the
Corporation outstanding immediately prior to such event continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity or any parent thereof) at least 50% of the combined voting
power of the securities of the Corporation or such surviving entity or any
parent thereof outstanding immediately after such event or (B) a merger or
consolidation effected to implement a recapitalization of the Corporation (or
similar transaction) in which no person or entity becomes the beneficial owner
or more than 50% or more of the combined voting power of the Corporation's then
outstanding securities or (v) the shareholders of the Corporation approve a plan
of liquidation or dissolution. Notwithstanding anything to the contrary
contained herein, an exchange of the Corporation's equity securities for an
equity security issued by the parent corporation of the Corporation commonly
referred to as a "tracking stock" shall not be a Change of Control Transaction
as contemplated hereby, nor shall any changes of ownership of such "tracking
stock."
After an exchange of Common Stock for "tracking stock" the term
"Change-of-Control Transaction" shall be deemed to mean: any transaction or
series of transactions consummated within any twelve (12) month period pursuant
to or as a result of which (i) Cendant or any Subsidiary of Cendant shall sell,
assign or otherwise transfer, directly or indirectly, assets (including stock or
other securities of Subsidiaries) having a fair market or book value or earning
power of 50% or more of the assets or earning power of the Move.com Group (the
"Group") as such group is defined in the Cendant Certificate of Incorporation
from time to time (taken as a whole) to any third party, other than Cendant, the
Corporation or a wholly-owned Subsidiary thereof, (ii) control of 50% or more of
the business of the Group shall be sold, assigned or otherwise transferred
directly or indirectly to any third party other than Cendant or (iii) there is
consummated a merger or consolidation of the Group with any other corporation
other than Cendant, other than (A) a merger or consolidation which would result
in the voting securities of the parent corporation of the Group outstanding
immediately prior to such event continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or any parent thereof) at least 50% of the combined voting power of the
securities of the parent corporation of the Group or such surviving entity or
any parent thereof outstanding immediately after such event or (B) a merger or
consolidation effected to implement a recapitalization of Cendant or the Group
(or similar transaction) in which no person or entity becomes the beneficial
owner or more than 50% or more of the combined voting power of Cendant's then
outstanding securities or (iv) the shareholders of Cendant approve a plan of
liquidation or dissolution of Cendant or of the Group (except for a liquidation
of the Group
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resulting in more than 50% of the assets of the Group remaining under the
ownership or control of Cendant).
(f) "CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor thereto.
(g) "COMMISSION" means the Securities and Exchange Commission or any
successor agency.
(h) "COMMITTEE" means the Committee referred to in Section 2.
(i) "COMMON STOCK" means Move.com Stock, a series of common stock of the
Corporation, par value $0.01 per share, intended to track the performance of
Move.com.
(j) "CORPORATION" means Cendant Corporation, a Delaware corporation.
(k) "DISABILITY" means permanent and total disability as determined under
procedures established by the Committee for purposes of the Plan.
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor thereto.
(m) "FAIR MARKET VALUE" means, as of any given date, the fair market
value of the Common Stock as determined by the Committee in good faith and in
its sole discretion, taking into account, to the extent applicable, the trading
price of the Common Stock on the New York Stock Exchange, or, if not listed on
such exchange, on any other national securities exchange on which the Common
Stock is listed, or on NASDAQ, or in any other regular public trading market for
the Common Stock which may exist as of such date, or, if not publicly-traded,
taking into account such other financial and valuation considerations which it
deems appropriate. The determination of the Committee shall be conclusive in
determining the fair market value of the Common Stock and shall be final and
binding on all parties.
(n) "MOVE.COM" means the Move.com Group.
(o) "PLAN" means this Cendant Corporation Move.com Group 1999 Stock
Option Plan, as set forth herein and as hereinafter amended from time to time.
(p) "RETIREMENT" means retirement from active employment with the
Corporation or an Affiliate at or after age 65.
(q) "STOCK OPTION" means any option granted under Section 5.
(r) "SUBSIDIARY" means any corporation in an unbroken chain of
corporations, beginning with the Corporation, if each of the corporations other
than the last corporation in the
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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 such chain.
(s) "TERMINATION OF EMPLOYMENT" means the termination of the optionee's
active employment with the Corporation and its Affiliates. An optionee employed
by an Affiliate shall also be deemed to incur a Termination of Employment if
such Affiliate ceases to be an Affiliate and the optionee does not immediately
thereafter become an employee of the Corporation or another Affiliate. Temporary
absences from employment because of illness, vacation or leave of absence and
transfers among the Corporation and its Affiliates shall not be considered
Terminations of Employment.
In addition, certain other terms used herein have definitions given to
them in the first place in which they are used.
SECTION 2. ADMINISTRATION
The Plan shall be administered by the Compensation Committee or such other
committee of the Board as the Board may from time to time designate or, if no
such committee is designated, the Board (the "Committee").
The Committee shall have plenary authority to grant Stock Options pursuant
to the terms of the Plan to employees of the Corporation and its Affiliates.
Among other things, the Committee shall have the authority, subject to the
terms of the Plan:
(a) To select the employees to whom Stock Options may from time to time
be granted;
(b) To determine the number of shares of Common Stock to be covered by
each Stock Option granted hereunder;
(c) To determine the terms and conditions of any Stock Option granted
hereunder (including, but not limited to, the option price (subject to Section
5(a) hereof), any vesting condition, restriction or limitation (which may be
related to the performance of the optionee, the Corporation or any Affiliate)
and any vesting acceleration or forfeiture waiver regarding any Stock Option and
the shares of Common Stock relating thereto), based on such factors as the
Committee shall determine;
(d) To modify, amend or adjust the terms and conditions of any Stock
Option, at any time or from time to time, including extending the expiration
date of options during any period in which exercises are not permitted either by
law or pursuant to a corporate policy;
(e) To determine to what extent and under what circumstances Common Stock
and other amounts payable with respect to a Stock Option may be deferred; and
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(f) To determine under what circumstances a Stock Option may be settled in
cash or Common Stock under Section 5(e).
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall
from time to time deem advisable, to interpret the terms and provisions of the
Plan and any Stock Option issued under the Plan (and any agreement relating
thereto) and to otherwise supervise the administration of the Plan.
The Committee may act only by a majority of its members then in office,
except that the members thereof may authorize any one or more of their number or
any officer of the Corporation to execute and deliver documents on behalf of the
Committee.
Any determination made by the Committee or pursuant to authority delegated
as contemplated by the provisions of the Plan with respect to any Stock Option
shall be made in the sole discretion of the Committee or such delegate at the
time of the grant of the Stock Option or, unless in contravention of any express
term of the Plan, at any time thereafter. All decisions made by the Committee or
any appropriately delegated officer pursuant to the provisions of the Plan shall
be final and binding on all persons, including the Corporation and optionees.
Any authority granted to the Committee may also be exercised by the full
Board. To the extent that any permitted action taken by the Board conflicts with
action taken by the Committee, the Board action shall control.
SECTION 3. COMMON STOCK SUBJECT TO PLAN
(a) STOCK AUTHORIZED. The total number of shares of Common Stock
initially reserved and available for grant under the Plan shall be six million
(6,000,000). No optionee may be granted Stock Options under the Plan covering in
the aggregate more than 50% of the total number of shares of Common Stock
authorized for issuance under the Plan over any consecutive two (2) year period.
Shares subject to a Stock Option under the Plan may be authorized and unissued
shares or may be treasury shares.
If any Stock Option terminates without being exercised, shares of Common
Stock subject to such Stock Options shall again be available for distribution in
connection with Stock Options under the Plan.
(b) ADJUSTMENT OF SHARES. In the event of any change in corporate
capitalization, such as a stock split or a corporate transaction, or any merger,
consolidation, separation, including a spin-off, or other distribution of stock
or property of the Corporation, any reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of the
Code), any partial or complete liquidation of the Corporation or any exchange of
the Corporation's common securities for securities to be issued by the
Corporation's parent corporation, including but not limited to securities
commonly referred to as a "tracking stock", the Committee or Board may make such
substitution or adjustments in the aggregate number and kind of shares reserved
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for issuance under the Plan, the limit on options that may be granted to an
individual optionee under paragraph (a) above in the number, the kind and option
price of shares subject to outstanding Stock Options granted under the Plan
and/or such other equitable substitution or adjustments as it may determine to
be appropriate in its sole discretion, taking into account the application of
generally accepted accounting principles and any resultant accounting charge as
a result of such substitution or adjustments; PROVIDED, HOWEVER, that the number
of shares subject to any Stock Option shall always be a whole number.
SECTION 4. ELIGIBILITY
All active employees of the Corporation and its subsidiaries employed
primarily in the Move.com business, and those other active employees of the
Corporation designated from time to time by the Committee in its sole discretion
are eligible to be granted Stock Options under the Plan.
SECTION 5. STOCK OPTIONS
Stock Options granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options shall be evidenced by option agreements, the terms and
provisions of which may differ. The grant of a Stock Option shall occur on the
date the Committee by resolution selects an individual to be a participant in
any grant of a Stock Option, determines the number of shares of Common Stock to
be subject to such Stock Option to be granted to such individual and specifies
the terms and provisions of the Stock Option (or such later date as is specified
in such resolution). The Corporation shall notify an optionee of any grant of a
Stock Option, and a written option agreement or agreements shall be duly
executed and delivered by the Corporation to the optionee. Such agreement or
agreements shall become effective upon execution by the Corporation.
Except as otherwise provided by direction of the Committee in the letter
or agreement documenting such Stock Options, Stock Options granted under the
Plan shall be subject to the following terms and conditions and shall contain
such additional terms and conditions as the Committee shall deem desirable:
(a) OPTION PRICE. The option price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee and
set forth in the option agreement, and shall not be less than the Fair
Market Value of the Common Stock subject to the Stock Option on the date
of grant.
(b) OPTION TERM. The term of each Stock Option shall be fixed by the
Committee.
(c) EXERCISABILITY. Except as otherwise provided herein, Stock
Options shall be exercisable at such time or times and subject to such
terms and conditions as shall be
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determined by the Committee. If the Committee provides that any Stock
Option is exercisable only in installments, the Committee may at any time
waive such installment exercise provisions, in whole or in part, based on
such factors as the Committee may determine. In addition, the Committee
may at any time accelerate the exercisability of any Stock Option.
(d) ACCELERATED EXERCISABILITY. Notwithstanding the provisions of
subsection (c) above, upon the consummation of a Change-of-Control
Transaction, each Stock Option granted shall become immediately
exercisable with respect to 25% of the unvested portion thereof (rounded
down to the nearest whole share), on a PRO RATA basis according to the
scheduled vesting dates. For example, if a Stock Option to purchase 1,000
shares has been granted with a vesting schedule providing for one-third of
such Stock Option to be vested on each of the first three anniversaries of
the date of grant of such Stock Option, and a Change-of-Control
Transaction is finally consummated between the first and the second
vesting date (i.e., 334 shares are then vested and 666 shares are
unvested), 166 of the next shares to vest will be vested immediately, 583
shares will vest on the second anniversary of the date of grant and 583
shares will vest on the third anniversary of the date of grant.
(e) METHOD OF EXERCISE. Subject to the provisions of this Section 5,
Stock Options may be exercised, in whole or in part, at any time during
the option term by giving written notice of exercise to the Corporation
specifying the number of shares of Common Stock subject to the Stock
Option to be purchased.
Such notice shall be accompanied by payment in full of the purchase
price by certified or bank check or such other instrument as the
Corporation may accept. If approved by the Committee, payment, in full or
in part, may also be made in the form of unrestricted Common Stock already
owned by the optionee of the same class as the Common Stock subject to the
Stock Option (based on the Fair Market Value of the Common Stock on the
date the Stock Option is exercised); PROVIDED, HOWEVER, that such already
owned shares have been held by the optionee for at least six (6) months at
the time of exercise.
In the discretion of the Committee, payment for any shares subject
to a Stock Option may also be made by delivering a properly executed
exercise notice to the Corporation, together with a copy of the
irrevocable instructions to a broker to deliver promptly to the
Corporation the amount of sale or loan proceeds necessary to pay the
purchase price, and, if requested, the amount of any federal, state, local
or foreign withholding taxes. To facilitate the foregoing, the Corporation
may enter into agreements for coordinated procedures with one or more
brokerage firms.
In addition, in the discretion of the Committee, payment for any
shares subject to a Stock Option may also be made by instructing the
Committee to withhold a number of such shares having a Fair Market Value
on the date of exercise equal to the aggregate exercise price of such
Stock Option.
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No shares of Common Stock shall be issued until full payment
therefor has been made. An optionee shall have no rights as a shareholder
of the Corporation solely by virtue of the issuance of a Stock Option as
contemplated by this Plan; provided, however, that, except with respect to
(i) any deferral option shares pursuant to Section 5(k) below and (ii) any
option shares for which share certificates have not been issued or
delivered as contemplated under Section 8(a) below, an optionee shall have
all of the rights of a shareholder of the Corporation holding the class or
series of Common Stock that is subject to such Stock Option (including, if
applicable, the right to vote the shares and the right to receive
dividends), when and if the optionee has given written notice of exercise,
has paid in full for such shares.
(f) TRANSFERABILITY OF STOCK OPTIONS. Stock Options shall be
transferable by the optionee only pursuant to the following methods: (i)
by will or the laws of descent and distribution; (ii) pursuant to a
domestic relations order, as defined in the Code or Title I of the
Employee Retirement Income Security Act, as amended, or the regulations
thereunder; or (iii) subject to such conditions as the Committee may
prescribe from time to time, and upon written approval of the Secretary of
the Corporation, as a gift to family members of the optionee or trusts for
the benefit of family members of the optionee. Except to the extent
provided in this Section 5(f), Stock Options may not be assigned,
transferred, pledged, hypothecated or disposed of in any way (whether by
operation of law or otherwise), shall not be subject to execution,
attachment or similar process, and may be exercised during the lifetime of
the holder thereof only by such holder.
(g) TERMINATION BY DEATH OR DISABILITY. Unless otherwise determined
by the Committee in its sole discretion, if an optionee's employment
terminates by reason of death or Disability, any Stock Option held by such
optionee may thereafter be exercised, whether or not it was exercisable at
the time of such termination, for a period of twelve (12) months (or such
other period as the Committee may specify in the option agreement) from
the date of such termination or until the expiration of the stated term of
such Stock Option, whichever period is the shorter.
(h) TERMINATION BY REASON OF RETIREMENT. Unless otherwise determined
by the Committee in its sole discretion, if an optionee's employment
terminates by reason of Retirement, any Stock Option held by such optionee
may thereafter be exercised by the optionee, to the extent it was
exercisable at the time of such Retirement, or on such accelerated basis
as the Committee may determine, for a period of twelve (12) months (or
such other period as the Committee may specify in the option agreement)
from the date of such termination of employment or until the expiration of
the stated term of such Stock Option, whichever period is the shorter. Any
Stock Option not vested as of the date of such Retirement and not
accelerated by action of the Committee shall be canceled as of the date of
such Retirement.
(i) CAUSE. If an optionee incurs a Termination of Employment for
Cause, any Stock Option held by such optionee, whether or not then
exercisable, shall be
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immediately and automatically canceled as of the date of such Termination
of Employment and shall then be of no further force or effect.
(j) OTHER TERMINATION. Unless otherwise determined by the Committee
in its sole discretion, if an optionee incurs a Termination of Employment
for any reason other than death, Disability or Retirement, any Stock
Option held by such optionee, to the extent then exercisable, or on such
accelerated basis as the Committee may determine, may be exercised for the
lesser of thirty (30) days from the date of such Termination of Employment
or the balance of such Stock Option's term. Any Stock Option not vested as
of the date of such Termination of Employment and not accelerated by
action of the Committee shall be canceled as of the date of such
Termination of Employment.
(k) DEFERRAL OF OPTION SHARES. The Committee may from time to time
establish procedures pursuant to which an optionee may elect to defer,
until a time or times later than the exercise of an Option, receipt of all
or a portion of the shares subject to such Option and/or to receive cash
at such later time or times in lieu of such deferred shares, all on such
terms and conditions as the Committee shall determine. If any such
deferrals are permitted, then notwithstanding Section 5(e) above, an
optionee who elects such deferral shall not have any rights as a
stockholder with respect to such deferred shares unless and until
certificates representing such shares are actually delivered to the
optionee with respect thereto, except to the extent otherwise determined
by the Committee.
No Stock Option granted hereunder shall be an "incentive stock option" as
defined in Section 422 of the Code.
SECTION 6. TERM, AMENDMENT AND TERMINATION
The Plan will terminate ten (10) years after the effective date of the
Plan. Under the Plan, Stock Options outstanding as of such date shall not be
affected or impaired by the termination of the Plan.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would impair the rights of an
optionee under a Stock Option theretofore granted without the optionee's or
recipient's consent.
The Committee may amend the terms of any Stock Option theretofore granted,
prospectively or retroactively, but no such amendment shall impair the rights of
any holder without the holder's consent.
Subject to the above provisions, the Board shall have authority to amend
the Plan to take into account changes in law and tax and accounting rules as
well as other developments, and to grant Stock Options which qualify for
beneficial treatment under such rules without stockholder approval.
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SECTION 7. UNFUNDED STATUS OF PLAN
It is presently intended that the Plan constitute an "unfunded" plan for
incentive and deferred compensation.
SECTION 8. GENERAL PROVISIONS
(a) The Committee may require each person purchasing or receiving shares
pursuant to a Stock Option to represent to and agree with the Corporation in
writing that such person is acquiring the shares without a view to the
distribution thereof. The certificates for such shares may include any legend
which the Committee deems appropriate to reflect any restrictions on transfer.
Notwithstanding any other provision of the Plan or agreements made
pursuant thereto, the Corporation shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock under the Plan prior to
fulfillment of all of the following conditions:
(1) Listing or approval for listing upon notice of issuance of such
shares on the New York Stock Exchange, Inc., or such other securities
exchange as may at the time be the principal market for the Common Stock;
(2) Any registration or other qualification of such shares of the
Corporation under any state or federal law or regulation, or the
maintaining in effect of any such registration or other qualification
which the Committee shall, in its absolute discretion upon the advice of
counsel, deem necessary or advisable; and
(3) Obtaining any other consent, approval, or permit from any state
or federal governmental agency which the Committee shall, in its absolute
discretion after receiving the advice of counsel, determine to be
necessary or advisable.
(b) Nothing contained in the Plan shall prevent the Corporation or any
Affiliate from adopting other or additional compensation arrangements for its
employees.
(c) Adoption of the Plan shall not confer upon any employee any right to
continued employment, nor shall it interfere in any way with the right of the
Corporation or any Affiliate to terminate the employment of any employee at any
time.
(d) No later than the date as of which an amount first becomes includible
in the gross income of an optionee for federal income tax purposes with respect
to any Stock Option under the Plan, the optionee shall pay to the Corporation,
or make arrangements satisfactory to the Corporation regarding the payment of,
any federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. Unless otherwise determined by the
Corporation, withholding obligations may be settled with Common Stock, including
Common Stock that is part of the Stock Option that gives rise to the withholding
requirement. The obligations of the Corporation under the Plan shall be
conditional on such payment or
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arrangements, and the Corporation and its Affiliates shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment
otherwise due to the optionee. The Committee may establish such procedures as it
deems appropriate, including making irrevocable elections, for the settlement of
withholding obligations with Common Stock.
(e) The Committee shall establish such procedures as it deems appropriate
for an optionee to designate a beneficiary to whom any amounts payable in the
event of the optionee's death are to be paid or by whom any rights of the
optionee, after the optionee's death, may be exercised.
(f) In the case of a grant of a Stock Option to any employee of an
Affiliate of the Corporation, the Corporation may, if the Committee so directs,
issue or transfer the shares of Common Stock, if any, covered by the Stock
Option to the Affiliate, for such lawful consideration as the Committee may
specify, upon the condition or understanding that the Affiliate will transfer
the shares of Common Stock to the employee in accordance with the terms of the
Stock Option specified by the Committee pursuant to the provisions of the Plan.
(g) The Plan and all Stock Options made and actions taken thereunder
shall be governed by and construed in accordance with the laws of the State of
Delaware, without reference to principles of conflict of laws.
(h) Anything in this Plan to the contrary notwithstanding, the Board may,
without further approval by the shareholders, substitute new options for, or
assume, prior options of any corporation which engages with the Corporation or
any of its Affiliates in a transaction to which Section 424(a) of the Code would
apply (assuming for such purpose that the option assumed or substituted were an
incentive stock option), or any parent or any subsidiary of such corporation.
SECTION 9. EFFECTIVE DATE OF PLAN
The Plan became effective on October 29, 1999, the date upon which the
Plan was approved by the Board of Directors of Move.com, Inc.