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EXHIBIT 10.1
2WAY MEDIA, INC.
1994 STOCK OPTION PLAN
Mayer, Brown & Platt
Chicago, Illinois
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TABLE OF CONTENTS
SECTION PAGE
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1 General............................................................ 1
Purpose....................................................... 1
Effective Date and Duration................................... 1
Administration................................................ 1
Shares Subject to the Plan.................................... 1
Adjustments to Number of Shares Subject to the Plan........... 2
Gender and Number............................................. 2
Employment, Director and Shareholder Status................... 2
2 Participation...................................................... 2
3 Grants............................................................. 3
Option Grants................................................. 3
Option Agreement.............................................. 3
Option Price.................................................. 3
Expiration of Options......................................... 4
Exercise of Options........................................... 4
Compliance With Applicable Laws............................... 5
Withholding................................................... 6
Nontransferability............................................ 6
4 Amendment and Termination of the Plan......................... 6
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2WAY MEDIA, INC.
1994 STOCK OPTION PLAN
SECTION 1
General
1.1. Purpose. 2Way Media, Inc. (the "Company") has established 2Way
Media, Inc. 1994 Stock Option Plan (the "Plan") as set forth herein to promote
the long term interests of the Company by (i) attracting, motivating and
retaining key employees; and (ii) strengthening the Company's ability to attract
and retain the services of experienced and knowledgeable directors and providing
such directors with an opportunity to acquire an equity interest in the Company.
1.2. Effective Date and Duration. Subject to the approval of the
shareholders of the Company, the Plan shall be effective as of September 15,
1994; provided, however, that to the extent any Options (as defined in Section
3) have been granted under the Plan prior to receipt of such approval, such
Options shall be contingent on such approval being obtained and shall
automatically terminate and be of no further force or effect if such approval is
not obtained. The Plan shall be unlimited in duration and, in the event of Plan
termination, shall remain in effect as long as any Options granted under it are
outstanding; provided, however, that no Incentive Stock Options (as defined in
subsection 3.1) may be granted under the Plan on a date that is more than 10
years from the date the Plan is adopted or, if earlier, the date the Plan is
approved by the shareholders of the Company.
1.3. Administration. The authority to manage and control the operation
and administration of the Plan shall be vested in the Company's Board of
Directors (the "Board") or a designated committee of the Board (the
"Committee"). The determination of the Board or the Committee on matters within
its authority shall be conclusive and binding upon the Company and all other
persons. Notwithstanding the foregoing, no member of the Board or the Committee
shall act or participate in any way with respect to the grant of an Option to
himself.
1.4. Shares Subject to the Plan. An aggregate of 642 shares of common
stock of the Company ("Stock") shall be available for issuance under the Plan.
Such shares shall be either authorized and unissued shares or treasury shares of
Stock. If any Option under the Plan or portion thereof shall expire
unexercised, terminate, be surrendered, cancelled or settled in such a manner
that all or some of the shares subject to the Option are not issued to the
Participant, such shares
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shall (unless the Plan shall have terminated) become available for the
grant of additional Options under the Plan, except shares withheld pursuant to
subsection 3.7.
1.5. Adjustments to Number of Shares Subject to the Plan. In the event of
any merger, consolidation, reorganization, recapitalization, spinoff, stock
dividend, stock split, exchange or other change in corporate structure or
capitalization affecting the Stock of the Company, the aggregate number of
shares of Stock with respect to which Options may be granted under the Plan and
the type and number of shares subject to any outstanding Options under the Plan
and the terms thereof may be equitably adjusted by the Board or the Committee in
its sole discretion.
1.6. Gender and Number. Where the context admits, words in any gender
shall include any other gender, words in the singular shall include the plural
and the plural shall include the singular.
1.7. Employment, Director and Shareholder Status. The Plan does not
constitute a contract of employment or continued service, and participation in
the Plan will not give any employee or Participant the right to be retained in
the employ of the Company or the right to continue as a director of the Company,
or any right or claim to any benefit under the Plan unless such right or claim
has specifically accrued under the terms of the Plan or any agreement evidencing
the grant of the Option. No Option under the Plan shall confer upon the holder
thereof any right as a shareholder of the Company prior to the issuance of Stock
pursuant to the exercise thereof.
SECTION 2
Participation
Subject to the terms and conditions of the Plan, the Board or the Committee
shall determine and designate from time to time the key employees of the Company
and the members of the Board or the Committee who shall be "Participants" in the
Plan. In making this determination, the Board or the Committee shall take into
account the employee's or director's contribution and potential contribution to
the Company and any other factors that the Board or the Committee determines to
be relevant.
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SECTION 3
Grants
3.1. Option Grants. Subject to the terms and conditions of the Plan,
each Participant designated by the Board or the Committee in accordance with
Section 2 shall be granted an option to purchase shares of Stock ("Options")
and the Board or the Committee shall determine the number, type and terms of
the Options to be granted to each of them. Each Option shall entitle the
Participant to purchase shares of Stock upon the terms and conditions as the
Board or the Committee specifies and which are not inconsistent with the Plan
and at the Option Price (as defined in subsection 3.3) determined by the Board
or the Committee at the time the Option is granted, subject to the following
provisions of this Section 3. Any Option granted under this Section 3 that is
awarded to an employee of the Company and that satisfies all of the
requirements of section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), may be designated by the Board or the Committee as an "Incentive
Stock Option"; provided, however, that to the extent that the aggregate fair
market value of Stock with respect to which Incentive Stock Options are
exercisable for the first time by an individual during any calendar year (under
the Plan and all other plans of the Company and its affiliates) exceeds
$100,000, such Options shall be treated as Non-Qualified Options.
"Non-Qualified Options" are Options that are not designated as Incentive Stock
Options or that do not satisfy the requirements of section 422 of the Code.
3.2. Option Agreement. Each grant of an Option under the Plan shall be
evidenced by an agreement between the Participant and the Company in a form
specified by the Board or the Committee containing such terms and conditions,
not inconsistent with the Plan, as the Board or the Committee may, in its sole
discretion, prescribe.
3.3. Option Price. The purchase price of each share of Stock under an
Option granted under this Section 3 (the "Option Price") shall be determined by
the Board or the Committee at the time of the grant of the Option; provided,
however, that in no event shall the Option Price be less than the Fair Market
Value (as defined below) of a share of Stock on the date the Option is granted
or, if greater, par value; and provided further that, in the case of a grant of
an Incentive Stock Option to a Participant who, as of the date of grant, is a
10 percent shareholder of the Company (determined in accordance with section
422 of the Code), the Option Price shall not be less than 110 percent of the
Fair Market Value of a share of Stock as of the date of grant. For all purposes
of the Plan, the term "Fair Market Value" of a share of Stock as at any date
shall mean the fair market value of such
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share of Stock determined, in good faith, in accordance with procedures
established by the Board or the Committee or in accordance with procedures
established by the Board or the Committee.
3.4 Expiration of Options. All rights with respect to an Option granted
under the Plan, whether or not then exercisable, shall automatically terminate
as of the Option's Expiration Date. The "Expiration Date" with respect to an
Option or any portion thereof, granted to a Participant under the Plan shall be
the earliest of:
(a) the date which is 10 years after the date on which the Option is
granted (5 years in the case of an Incentive Stock Option which is
granted to an individual who, as of the date of grant, is a 10 percent
shareholder of the Company);
(b) the date established by the Board or the Committee at the time of the
grant of the Option;
(c) the date which is one year after the date on which the Participant's
employment with the Company (or service as a director of the Company)
is terminated by reason of his becoming disabled (within the meaning
of section 22(e)(3) of the Code) or his death;
(d) the date which is three months after the date on which the
Participant's employment with the Company (or service as a director of
the Company) is terminated for any reason other than Cause (as
defined below) or voluntary resignation; or
(e) the date on which the Participant's employment with the Company (or
service as a director of the Company) is terminated for any reason
other than as described in paragraph (c) or (d) next above (including,
but not limited to, termination by the Company on account of Cause or
by the Participant by voluntary resignation).
For purposes of the Plan, the term "Cause" shall mean (a) the willful and
continued failure by the Participant to substantially perform his duties for
the Company; (b) the willful engaging by the Participant in conduct which is
demonstrably and materially injurious to the Company, monetarily or otherwise;
or (c) an illegal or negligent action of the Participant which substantially
and adversely affects the Company.
3.5 Exercise of Options. To the extent then exercisable, Options awarded
under the Plan shall be exercised, in whole or in part, by filing a written
notice with the Secretary of the
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Company at its corporate headquarters prior to the Option's Expiration Date.
Such notice shall specify the number of shares of Stock which the Participant
elects to purchase and shall be accompanied by payment of the Option Price for
such shares, plus any required withholding taxes. The Option Price of each share
of Stock purchased upon the exercise of any Option granted under this Section 3,
and any required withholding taxes, shall be paid in cash (including check, bank
draft or money order) or, to the extent provided by the Board or the Committee
at the time of grant, in shares of Stock (valued at Fair Market Value as of the
date of exercise, and including shares of Stock acquired pursuant to the
exercise of the Option) or in any combination of cash and Stock. If applicable,
in the discretion of the Board or the Committee separate certificates
representing the shares purchased by exercise of Incentive Stock Options and by
exercise of Non-Qualified Options shall be delivered to the person entitled
thereto as soon as practicable after such exercise.
3.6 Compliance With Applicable Laws. Notwithstanding any other
provision of the Plan:
(a) The Company shall have no liability to issue any shares of Stock
under the Plan unless such issuance would comply with all
applicable laws and the applicable requirements of any securities
exchange or similar entity.
(b) Prior to the issuance of any shares of Stock under the Plan, the
Company may require a written statement that the recipient is
acquiring the shares of Stock solely for investment and not for the
purpose or with the intention of distributing the shares and will
not dispose of such shares in violation of the Securities Act of
1933 or any applicable state securities registration law and any
certificate representing such shares shall bear a legend referring
to such restrictions.
(c) If, at any time, the Company, in its sole discretion, determines
that the listing, registration or qualification (or any updating
of any such document) of the Stock is necessary on any securities
exchange or under any federal or state securities or blue sky law,
or that the consent or approval of any governmental regulatory body
is necessary or desirable as a condition or, in connection with the
issuance of Stock pursuant to the exercise of an Option, the Stock
shall not be issued, in whole or in part, unless such listing,
registration, qualification consent or approval shall have been
effected or obtained free of any condition not acceptable to the
Company.
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3.7 WITHHOLDING. All exercises of Options under the Plan are
subject to withholding of all applicable taxes, which withholding obligation
shall be satisfied by the payment of cash or check payable to the Company, or,
to the extent permitted by the Board or the Committee at the time of the grant
of an Option, through the surrender of shares of Stock which the Participant
already owns or the withholding of shares of Stock to which a Participant is
otherwise entitled upon exercise of the Option.
3.8 NONTRANSFERABILITY. No option under the Plan, and no interest
therein, shall be transferable except by the Participant by will or by the laws
of descent and distribution and shall be exercisable during a Participant's
lifetime only by the Participant. After a Participant's death, Options shall be
exercisable, to the extent exercisable by the Participant on the date of his
death, by the executor or administrator of the Participant's estate or by the
person or persons who shall have acquired the Option from the Participant by
bequest or inheritance, subject to the terms of the Plan and the agreement
between the Company and the Participant evidencing such Option.
SECTION 4
AMENDMENT AND TERMINATION OF THE PLAN
The Board may at any time and in any manner amend, suspend or
terminate the Plan; provided, however, that no such amendment, suspension or
termination shall alter or impair the rights of Participants with respect to
Options previously granted under the Plan without the consent of the holder
thereof.
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