EXHIBIT 10.1
etravelserve.com, Inc.
YEAR 2000 STOCK PLAN
1. Purpose. This Year 2000 Stock Plan (the "Plan") of etravelserve.com, Inc.
(the "Company") for selected employees, officers, directors and key consultants
and advisors to the Company and its subsidiaries, is intended to advance the
best interests of the Company by providing personnel who have substantial
responsibility for the management and growth of the Company and its subsidiaries
with additional incentive by increasing their proprietary interest in the
success of the Company, thereby encouraging them to remain in the employ of the
Company or any of its subsidiaries.
2. Administration. The Plan shall be administered by the Board of Directors of
the Company (the "Board") which shall keep the minutes of its proceedings with
regard to the Plan and all records, documents, and data pertaining to its
administration of the Plan. A majority of the members of the Board shall
constitute a quorum for the transaction of business, and the vote of a majority
of those members present at any meeting shall decide any question brought before
that meeting. In addition, the Board may take any action otherwise proper under
the Plan by the affirmative vote, taken without a meeting, of a majority of its
members. Any decision or determination reduced to writing and signed by a
majority of the members shall be as effective as if it had been made by a
majority vote at a meeting properly called and held. All questions of
interpretation and application of the Plan shall be subject to the determination
of the Board. The actions of the Board in exercising all of the rights, powers
and authorities set out in this Plan, when performed in good faith and in its
sole judgment, shall be final, conclusive, and binding on the parties.
3. Shares Available Under the Plan. The stock subject to Options and Stock
Awards shall be shares of the Company's Common Stock, .001 par value (the
"Common Stock"). The total number of shares of Common Stock available under the
Plan shall not exceed in the aggregate 4,000,000 shares, provided, that the
class and aggregate number of shares which may be subject to grant hereunder
shall be subject to adjustment in accordance with the provisions of Paragraph 11
hereof. Such shares may be treasury shares or authorized but unissued shares. If
any outstanding Option or Stock Award expires or is terminated by reason of the
death or severance of employment of the optionee or grantee, the shares of
Common Stock allocable to the unexercised portion of that Option or the
forfeited Stock Award may again be available under the Plan.
4. Eligibility. The individuals who shall be eligible to participate in the Plan
shall be any officer, director, employee, consultant, advisor or other person
providing key services to the Company or any of its subsidiaries, and any person
to whom an offer of employment has been made by the Company or any of its
subsidiaries (hereinafter such persons may sometimes be referred to as the
"Eligible Individuals.").
9
5. Authority to Grant Stock Awards and Options. The Board in its discretion and
subject to the provisions of the Plan, may grant the following from time to time
to eligible individuals of the Company or any of its subsidiaries:
(a) Stock Awards. The Board may award and issue shares of Common Stock
under the Plan to an eligible individual ("Stock Award"). Stock Awards may be
made in lieu of cash compensation or as additional compensation. Stock Awards
may also be made pursuant to performance based goals established by the Board.
Subject only to any applicable limitations set forth in the Plan, the number of
shares of Common Stock covered by any Stock Award, shall be determined by the
Board.
(b) Non-Qualified Stock Options. The Board may grant to an eligible
individual an Option or Options to buy a stated number of shares of Common Stock
under the terms and conditions of the Plan, which Option or Options do not
constitute "incentive stock options" within the meaning of Section 422 of the
Code ("Non-Qualified Stock Option," "Stock Option" or "Option"). Stock Options
may be made in lieu of cash compensation or as additional compensation. Stock
Options may also be made pursuant to performance based goals established by the
Board. Subject only to any applicable limitations set forth in the Plan, the
number of shares of Common Stock covered by any Stock Options, shall be
determined by the Board.
6. Stock Awards.
(a) Awards in Lieu of Compensation. The Board may grant Common Stock to
an Eligible Individual under the Plan, without any payment by the individual, in
lieu of certain cash compensation or as additional compensation. The Stock Award
is subject to appropriate tax withholding. After compliance with the tax
withholding requirements, a stock certificate shall be issued to the individual
recipient of the Stock Award. The certificate shall bear such legend, if any, as
the Board determines is reasonably required by applicable law. Prior to receipt
of a Stock Award, the individual must comply with appropriate requests of the
Board to assure compliance with all relevant laws.
(b) Performance Based Awards. The Board may award shares of Common
Stock, without any payment for such shares, to designated individuals if
specified performance goals established by the Board are satisfied. The terms
and provisions herein relating to performance based Stock Awards are intended to
satisfy Section 162(m) of the Code and regulations issued thereunder. The
designation of an employee eligible for a specific performance based Stock Award
shall be made by the Board in writing prior to the beginning of the 12-month
period for which the performance is measured. The Board shall establish the
number of shares to be issued to a designated employee if the performance goal
is met. The Board must certify in writing that a performance goal has been met
prior to issuance of any certificate for a performance based Stock Award to any
employee. If the Board certifies the entitlement of an employee to the
performance based Stock Award, the certificate shall be issued to the employee
as soon as administratively practicable, and subject to other applicable
provisions of the Plan, including but not limited to, all
10
legal requirements and tax withholding. Performance goals determined by the
Board may be based on specified increases in net profits, stock price, Company
or segment sales, market share, earnings per share, and/or return on equity. The
employees eligible for a performance based Stock Award are the senior officers
(i.e., President Vice President, Secretary, Treasurer, and above) of the Company
and its subsidiaries.
7. Options.
--------
(a) Option Price. The price at which shares may be purchased pursuant
to an Option may or may not be less than the fair market value of the Common
Stock on the date the Option is granted, and the Board in its discretion may
provide that the price at which shares may be purchased shall be more than the
fair market value of the Common Stock on the date the Option is granted. The
Board shall set the price at which shares may be purchased at the time the
Option is granted, and shall also state the fair market value of the Common
Stock at the time the Option is granted. The Option price determined under this
Section is referred to herein as the "Option Price."
For all purposes of this Plan, the "fair market value" of a share of
Common Stock as of any particular date shall mean (i) if the Common Stock of the
Company is not traded in any recognized securities market, the price at which
the Company's Common Stock was most recently sold in a public or private
offering by the Company; (ii) if the Common Stock of the Company is traded in
the over-the-counter market, the mean between the closing bid and asked prices
for Common Stock of the Company as reported by the NASDAQ Small-Cap Index or
National Market System, or the National Quotations Bureau, Inc. (or similar
quotation agency) on the date the calculation thereof is made; or (iii) if the
Common Stock of the Company is listed on a national securities exchange, the
mean between the high and low sales prices for Common Stock of the Company on
such exchange on the date the calculation thereof is made. If the date of
calculation is a date on which there has not been reported a closing bid and
asked price for Common Stock of the Company, or a date which is not be a trading
date on such national securities exchange, as the case may be, determination of
fair market value shall be made as of the first date prior thereto on which
there has been reported a closing bid and asked price for Common Stock of the
Company or the first date prior thereto which was a trading date on such
national securities exchange, as the case may be.
(b) Duration of Options. The Board in its discretion shall determine
the term during which all of any portion of the Option shall be exercisable.
(c) Exercise of Options. An optionee may exercise an Option by
delivering to the Company a written notice stating (i) that the optionee wishes
to exercise the Option on the date notice is delivered, (ii) the number of
shares of Common Stock with respect to which the Option is to be exercised,
(iii) the address to which the certificate representing the shares of Common
Stock should be mailed, and (iv) the social security number of the optionee. In
order to be effective, the written notice shall be accompanied by (i) payment of
the Option Price of the shares of Common Stock and (ii) payment of an amount of
money necessary to satisfy the withholding tax liability, if any, that may
result from the exercise of the Option. Each payment shall be made by cash or by
11
check drawn on a national banking association and payable to the order of the
Company in United States dollars.
The Board may permit an optionee to elect to pay the exercise price
upon exercise of an Option by authorizing a third party (broker) to sell all (or
a portion) of the shares of Stock acquired upon exercise of the Option and remit
to the Company a sufficient portion of the sale proceeds to pay the exercise
price and any applicable tax withholding resulting from such exercise.
As promptly as practicable after the receipt by the Company of (i) the
written notice from the optionee, (ii) payment, in the form required by the
foregoing provisions of this Paragraph of the Option Price of the shares of
Common Stock with respect to which the Option is to be exercised, and (iii)
payment, in the form required by the foregoing provisions of this Paragraph of
an amount of money necessary to satisfy any withholding tax liability that may
result from the exercise of the Option, the Company shall deliver to the
optionee a certificate representing the number of shares of Common Stock with
respect to which the Option has been exercised, reduced to the extent applicable
by the number of shares retained by the Company as provided above to pay any
required withholding tax liability, the certificate to be registered in the name
of the optionee, provided that delivery shall be considered to have been made
when the certificate shall have been mailed, postage prepaid, to the optionee at
the address specified for that purpose in written notice from the optionee to
the Company.
(d) Transferability of Options to Permitted Transferees.
----------------------------------------------------
(i) Discretionary Transfers. The Board may, in its discretion,
permit an individual to transfer all or any portion of a Non-Qualified Stock
Option, or authorize all or a portion of any Non-Qualified Stock Option to be
granted to an individual to be on terms which permit transfer by such
individual, to (i) his spouse, children or grandchildren ("Immediate Family
Members"), (ii) a trust or trusts for the exclusive benefit of such Immediate
Family Members, or (iii) a partnership in which such Immediate Family Members
are the only partners (collectively, "Permitted Transferees"); provided that (x)
there may be no consideration for any such transfer and (y) subsequent transfers
of Options transferred as provided above shall be prohibited except subsequent
transfers back to the original individual-holder of the Non-Qualified Stock
Option and transfers to other Permitted Transferees of the original
individual-holder. Options evidencing Non-Qualified Stock Options with respect
to which such transferability is authorized at the time of grant must be
approved by the Board, and must expressly provide for transferability in a
manner consistent with this Subsection.
(ii) Other Transfers. Except as expressly permitted by the
preceding subsection, Options requiring exercise shall not be transferable other
than by will or the laws of descent and distribution or pursuant to domestic
relations orders.
(iii) Effect of Transfer. Following the transfer of any
Non-Qualified Stock Option as contemplated by the two preceding Subsections, (i)
such Option shall continue to be
12
subject to the same terms and conditions as were applicable immediately prior to
transfer, provided that the term "individual" shall be deemed to refer to the
Permitted Transferee or the estate or heirs of a deceased individual, as
applicable, to the extent appropriate to enable the holder to exercise the
transferred Option in accordance with the terms of the Plan and applicable law
and (ii) the provisions of the Plan shall continue to be applied with respect to
the original individual and, following the occurrence of any such events
described therein the Options shall be exercisable by the Permitted Transferee
or the estate or heirs of a deceased holder, as applicable, only to the extent
and for the periods specified.
(iv) Procedures and Restrictions. Any individual desiring to
transfer a Non-Qualified Stock Option as permitted under Subsection (a), above,
shall make application therefor to the Board and shall comply with such other
requirements as the Board may require to assure compliance with all applicable
securities laws. The Board shall not give permission for such a transfer if (i)
it would give rise to short-swing liability under Section 16(b) of the Exchange
Act, or (ii) it may not be made in compliance with all applicable federal, state
and foreign securities laws.
(v) Registration. To the extent the issuance to any Permitted
Transferee of any shares of Stock issuable pursuant to Non-Qualified Stock
Options transferred as permitted in this Section is not registered pursuant to
the effective registration statement of the Company generally covering the
shares to be issued pursuant to the Plan to initial holders of Options, the
Company shall not have any obligation to register the issuance of any such
shares of stock to any such transferee.
(e) Termination of Employment or Death of Optionee. Except as may be
otherwise expressly provided in connection with the grant of the Option, each
Option, to the extent it has not previously been exercised, shall terminate on
the earlier of the date of the expiration of the Option or one day less than
three months after the date of the severance of the employment relationship
between the Company and the optionee, whether with or without cause, for any
reason other than the death or disability of the optionee, during which period
the optionee shall be entitled to exercise the Option in respect of the number
of shares that the optionee would have been entitled to purchase had the
optionee exercised the Option on the date of severance of employment. Whether
authorized leave of absence, or absence on military or government service, shall
constitute severance of the employment relationship between the Company and the
optionee shall be determined by the Board at the time thereof.
In the event of severance because of the disability of the holder of
any Option while in the employ of the Company and before the date of expiration
of the Option, the Option shall terminate on the earlier of the date of
expiration or one day less than one year following the date of severance because
of disability, during which period the optionee shall be entitled to exercise
the Option in respect of the number of shares that the optionee would have been
entitled to purchase had the optionee exercised the Option on the date of
severance because of disability.
13
In the event of the death of the holder of any Option while in the
employ of the Company and before the date of expiration of the Option, the
Option shall terminate on the earlier of the date of expiration or one day less
than one year following the date of death. After the death of the optionee, the
executors, administrators or any person or persons to whom the Option was
transferred by will or by the laws of descent and distribution, shall have the
right, at any time prior to the expiration of an Option, to exercise the option
in whole or in part, without regard to any limitation the optionee would have
been subject to had he exercised the option on the day of his death while in
employment.
8. Requirements of Law. The Company shall not be required to sell or issue any
shares under any Option or Stock Award if the issuance of those shares would
constitute a violation by the recipient or the Company of any provisions of any
law or regulation of any governmental authority. Each Option and Stock Award
granted under the Plan shall be subject to the requirements that, if at any time
the Board shall determine that the listing, registration or qualification of the
shares subject thereto upon any securities exchange or under any state or
federal law of the United States or of any other country or governmental
subdivision thereof, or the consent or approval of any governmental regulatory
body, or investment or other representations, are necessary or desirable in
connection with the issue or purchase of shares subject thereto, no Option may
be exercised in whole or in part, or Stock Award issued, unless the listing,
registration, qualification, consent, approval or representations shall have
been effected or obtained free of any conditions not acceptable to the Board. If
required at any time by the Board, an Option may not be exercised or a Stock
Award may not be issued until the recipient has delivered an investment letter
to the Company. In addition, specifically in connection with the Securities Act
of 1933 (as now in effect or hereafter amended) (the "1933 Act"), upon exercise
of any Option or entitlement to a Stock Award, the Company shall not be required
to issue the underlying shares unless the Board has received evidence
satisfactory to it to the effect that the holder of the Stock Award will not
transfer the shares except pursuant to a registration statement in effect under
the 1933 Act or unless an opinion of counsel satisfactory to the Board has been
received by the Company to the effect that registration is not required. Any
determination in this connection by the Board shall be final, binding and
conclusive.
The Company may, but shall not be obligated to, register any securities covered
by a Stock Award or Option pursuant to the 1933 Act (as now in effect or as
hereafter amended) and, in the event any shares are registered, the Company may
remove any legend on certificates representing these shares. The Company shall
not be obligated to take any other affirmative action in order to cause the
exercise of the Stock Award or Option to comply with any law or regulation of
any governmental authority.
9. No Rights as Shareholder. No optionee shall have rights as a shareholder with
respect to shares covered by an Option until the date of issuance of a stock
certificate for the shares; and, except as otherwise provided in Paragraph 11
hereof, no adjustment for dividends, or otherwise, shall be made if the record
date therefor is prior to the date of issuance of the certificate.
14
10. Employment Obligation. The granting of any Option or Stock Award shall not
impose upon the Company any obligation to employ or continue to employ any
grantee; and the right of the Company to terminate the employment of any officer
or other employee shall not be diminished or affected by reason of the fact that
a Stock Award has been granted to him.
11. Changes in the Company's Capital Structure. The existence of outstanding
Options and Stock Awards shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
If the Company effects a subdivision or consolidation of shares or other capital
readjustment, the payment of a dividend in capital stock or other equity
securities of the Company on, its Common Stock, or other increase or reduction
of the number of shares of the Common Stock outstanding, without receiving
consideration therefor in money, services, or property, or the reclassification
of its Common Stock, in whole or in part, into other equity securities of the
Company, then (a) the number, class and per share price of shares of Common
Stock subject to outstanding Options and Stock Awards hereunder shall be
appropriately adjusted (or in the case of the issuance of other equity
securities as a dividend on, or in a reclassification of, the Common Stock, the
Options and Stock Awards shall extend to such other securities) in a manner so
as to entitle a grantee to receive, upon exercise of an Option, for the same
aggregate cash consideration, and for an award of pending performance based
Stock Awards, the same total number and class or classes of shares (or in the
case of a dividend of, or reclassification into, other equity securities, those
other securities) he would have held after adjustment if he had exercised his
Option, or the Stock Award was earned, immediately prior to the event requiring
the adjustment, or, if applicable, the record date for determining shareholders
to be affected by the adjustment; and (b) the number and class of shares then
reserved for issuance under the Plan (or in the case of a dividend of, or
reclassification into, other equity securities, those other securities) shall be
adjusted by substituting for the total number and class of shares of stock then
reserved, the number and class or classes of shares of stock (or in the case of
a dividend of, or reclassification into, other equity securities, those other
securities) that would have been received by the owner of an equal number of
outstanding shares of Common Stock as a result of the event requiring the
adjustment. Comparable rights shall accrue to each optionee or employee in the
event of successive subdivisions, consolidations, capital adjustments, dividends
or reclassifications of the character described above. Appropriate adjustments
shall also be made to pending Stock Awards.
Except as hereinbefore expressly provided, the issue by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
for cash or property, or for labor or services either upon direct sale or upon
the exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Company convertible into such shares or other
15
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock then subject to
outstanding Stock Awards.
12. Amendment or Termination of Plan. The Board may at any time alter, suspend
or terminate the Plan.
13. Forfeitures. Notwithstanding any other provisions of this Plan, if the Board
finds by a majority vote after full consideration of the facts that the
employee, before or after termination of his employment with the Company or its
subsidiaries for any reason (a) committed or engaged in fraud, embezzlement,
theft, commission of a felony, or proven dishonesty in the course of his
employment by the Company or its subsidiaries, which conduct damaged the Company
or its subsidiaries, or disclosed trade secrets of the Company or its
subsidiaries, or (b) participated, engaged in or had a financial or other
interest, whether as an employee, officer, director, consultant, contractor,
shareholder, owner, or otherwise, in any commercial endeavor in the United
States which is competitive with the business of the Company or its subsidiaries
without the written consent of the Company or its subsidiaries, the employee
shall forfeit all outstanding Stock Awards and Stock Options which are not fully
vested, including all rights related to such matters, and including any
performance based Stock Awards and Stock Options to which he may be entitled,
and other elections pursuant to which the Company has not yet delivered a stock
certificate. Clause (b) shall not be deemed to have been violated solely by
reason of the employee's ownership of stock or securities of any publicly owned
corporation, if that ownership does not result in effective control of the
corporation.
The decision of the Board as to the cause of the employee's discharge, the
damage done to the Company or its subsidiaries, and the extent of the employee's
competitive activity shall be final. No decision of the Board, however, shall
affect the finality of the discharge of the employee by the Company or its
subsidiaries in any manner. To provide the Company with an opportunity to
enforce this Section, no certificate for Stock may be issued under this Plan
without the certification by the Board that no action forbidden by this
provision has been raised for their determination.
14. Tax Withholding. The Company or any of its subsidiaries shall be entitled to
deduct from other compensation payable to each employee any sums required by
federal, state, or local tax law to be withheld with respect to the grant,
exercise, or vesting, as appropriate, of an Option or Stock Award. In the
alternative, the Company may require the employee (or other person receiving the
Stock Award or Stock Option) to pay the sum directly to the employer
corporation. If the employee (or other person) is required to pay the sum
directly, payment in cash or by check of such sums for taxes shall be delivered
within five (5) days after the date of exercise. The Company shall have no
obligation to withhold such amounts upon issuance of a Stock Award or Stock
Option until payment has been received, unless withholding (or offset against a
cash payment) as of or prior to the date of exercise is sufficient to cover all
sums due with respect to that exercise or vesting. The Company shall not be
obligated to advise an employee of the existence of the tax or the amount which
the employer corporation will be required to withhold.
16
15. Written Agreement. Each Option and Stock Award granted hereunder shall be
embodied in a written agreement, which shall be subject to the terms and
conditions prescribed herein, and shall be signed by the optionee or grantee and
by an appropriate officer of the Company on behalf of the Company. Each
agreement shall contain other provisions which the Board in its discretion shall
deem advisable.
16. Governing Law and Interpretation. This Plan shall be governed by the laws of
the state of Florida. Headings contained in this Plan are for convenience only
and shall in no manner be construed as part of this Plan.
17. Effective Date of Plan. The Plan shall become effective as of February 1,
2000 (the "Effective Date") and shall terminate on the 10th anniversary of the
Effective Date. No Option or Stock Award shall be granted pursuant to the Plan
after January 31, 2010.
17