2001 Equity Compensation Plan - Logistics.com Inc.
LOGISTICS.COM, INC.
2001 EQUITY COMPENSATION PLAN
The purpose of the Logistics.com, Inc. 2001 Equity Compensation Plan
(the "Plan") is to provide (i) designated employees of Logistics.com, Inc. (the
"Company") and its affiliates or subsidiaries, (ii) designated employees of
entities in which the Company has a greater than 50% ownership interest, (iii)
certain advisors and consultants who perform services for the Company, its
affiliates or its subsidiaries, and (iv) non-employee members of the Board of
Directors of the Company (the "Board") with the opportunity to receive grants of
nonqualified options, share appreciation rights, restricted shares, performance
shares, dividend equivalent rights and cash awards. The Company believes that
the Plan will encourage the participants to contribute materially to the growth
of the Company, thereby benefiting both the Company's stockholders and Internet
Capital Group, Inc.'s ("ICG") stockholders, and will align the economic
interests of the participants with those of the Company's stockholders and ICG's
stockholders.
1. ADMINISTRATION
(a) Committee. The Plan shall be administered and interpreted by a
committee appointed by the Board (the "Committee"). The Committee may consist of
two or more persons appointed by the Board, all of whom may be "non-employee
directors" as defined under Rule 16b-3 promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). However, the Board may ratify or
approve any grants as it or the Committee deems appropriate. To the extent that
the Board ratifies or approves grants, references in the Plan to the "Committee"
shall be deemed to refer to the Board.
(b) Committee Authority. The Committee shall have the sole
authority to (i) determine the individuals to whom grants shall be made under
the Plan, (ii) determine the type, size and terms of the grants to be made to
each such individual, (iii) determine the time when the grants will be made and
the duration of any applicable exercise or restriction period, including the
criteria for exercisability and the acceleration of exercisability, (iv) amend
the terms of any previously issued grant, and (v) make all determinations with
respect to any other matters arising under the Plan.
(c) Committee Determinations. The Committee shall have full power
and authority to administer and interpret the Plan, to make factual
determinations, and to adopt or amend such rules, regulations, agreements and
instruments for implementing the Plan and for the conduct of its business as it
deems necessary or advisable, in its sole discretion. The Committee's
interpretations of the Plan and all determinations made by the Committee
pursuant to the powers vested in it hereunder shall be conclusive and binding on
all persons having any interest in the Plan or in any awards granted hereunder.
All powers of the Committee shall be executed in its sole discretion, in the
best interest of the Company, not as a fiduciary, and in keeping with the
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objectives of the Plan. Determinations made by the Committee under the Plan need
not be uniform as to similarly situated individuals.
2. GRANTS
Awards under the Plan may consist of grants of (i) nonqualified options
as described in Section 5 ("Nonqualified Options" or "Options"), (ii) stock
appreciation rights as described in Section 6 ("SARs"), (iii) restricted shares
as described in Section 7 ("Restricted Shares"), (iv) performance shares as
described in Section 8 ("Performance Shares"), (v) dividend equivalent rights as
described in Section 9 ("Dividend Equivalent Rights"), and (vi) cash awards as
described in Section 10 ("Cash Awards") (hereinafter collectively referred to as
"Grants"). All Grants shall be subject to the terms and conditions set forth
herein and to such other terms and conditions consistent with the Plan as the
Committee deems appropriate and as are specified in writing by the Committee to
the individual in a grant instrument (the "Grant Instrument") or an amendment to
the Grant Instrument. The Committee shall approve the form and provisions of
each Grant Instrument. Grants under a particular Section of the Plan need not be
uniform as among the grant recipients (the "Grantees").
3. SHARES SUBJECT TO THE PLAN
(a) Shares Authorized. For purposes of the Plan, a Share means one
share of common stock of ICG, par value $0.001. Subject to adjustments as
provided in Section 3(b) below, the aggregate number of Shares of ICG that may
be issued or transferred under the Plan is 5,000,000 Shares. The Shares may be
authorized but unissued Shares or reacquired Shares, including Shares purchased
by ICG or the Company on the open market for purposes of the Plan. If and to the
extent Options or SARs granted under the Plan terminate, expire, or are
canceled, forfeited, exchanged or surrendered without having been exercised, or
if any Restricted Shares or Performance Shares are forfeited, the Shares subject
to such Grants shall again be available for purposes of the Plan.
(b) Adjustments. If there is any change in the number or kind of
Shares outstanding (i) by reason of a dividend, spin-off, recapitalization,
split or combination or exchange of Shares, (ii) by reason of a merger,
reorganization or consolidation in which ICG is the surviving corporation, (iii)
by reason of a reclassification or change in par value, or (iv) by reason of any
other extraordinary or unusual event affecting the outstanding Shares of ICG as
a class without ICG's receipt of consideration, or if the value of outstanding
Shares is substantially reduced as a result of a spin-off of ICG or ICG's
payment of an extraordinary dividend or distribution, the maximum number of
Shares available for Grants, the number of Shares covered by outstanding Grants,
the kind of Shares issued under the Plan, and the price per Share or the
applicable market value of such Grants may be appropriately adjusted by the
Committee to reflect any increase or decrease in the number of, or change in the
kind or value of, issued Shares to preclude, to the extent practicable, the
enlargement or dilution of rights and benefits under such Grants; provided,
however, that any fractional Shares resulting from such adjustment shall be
eliminated. Any adjustments determined by the Committee shall be conclusive and
binding on all persons having any interest in the Plan or in any awards granted
hereunder. Any Shares, other securities or other property distributed to a
Grantee, or which a Grantee is entitled to receive, in respect of
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Restricted Shares, which are then subject to restrictions imposed by Section 7,
by reason of any the events described in clauses (i), (ii), (iii), or (iv) above
shall be subject to the restrictions and requirements imposed on such Restricted
Shares, including depositing the certificates therefor with the Company and
bearing a legend as provided in Section 7(d), unless determined otherwise by the
Committee.
4. ELIGIBILITY FOR PARTICIPATION
(a) Eligible Persons. All employees of the Company, its parents
and its subsidiaries, and entities in which the Company has a greater than 50%
ownership interest ("Employees"), including persons who have accepted employment
with the Company or any parent or subsidiary, Employees who are officers or
members of the Board, and members of the Board who are not Employees
("Non-Employee Directors"), shall be eligible to participate in the Plan.
Advisors and consultants who perform services to the Company or any of its
parents or its subsidiaries ("Key Advisors") shall be eligible to participate in
the Plan if the Key Advisors render bona fide services to the Company or its
parent or subsidiary, the services are not in connection with the offer or sale
of securities in a capital-raising transaction, and the Key Advisors do not
directly or indirectly promote or maintain a market for the Company's
securities. Notwithstanding anything in the Plan to contrary, in no event shall
officers and directors of ICG be eligible to receive grants under this Plan.
(b) Selection of Grantees. The Committee shall select the
Employees, Non-Employee Directors and Key Advisors to receive Grants and shall
determine the number of Shares subject to a particular Grant in such manner as
the Committee determines.
5. OPTIONS
(a) Number of Shares. The Committee shall determine the number of
Shares that will be subject to each Grant of Options to Employees, Non-Employee
Directors and Key Advisors.
(b) Type of Option and Price.
(i) All Options shall be Nonqualified Stock Options,
which are not intended to qualify as "incentive stock options" within
the meaning of section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"). The Committee may grant Options in accordance
with the terms and conditions herein set forth. Nonqualified Options
may be granted to Employees, Non-Employee Directors and Key Advisors.
(ii) The purchase price (the "Exercise Price") of Shares
subject to an Option shall be determined by the Committee and may be
equal to, greater than, or less than the Fair Market Value (as defined
below) of a Share on the date the Option is granted.
(iii) If the Shares are publicly traded, then the Fair
Market Value per Share shall be determined as follows: (x) if the
principal trading market for the Shares is a national securities
exchange or the Nasdaq National Market, the last reported sale price
thereof on the preceding date or, if there were no trades on that date,
the latest preceding
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date upon which a sale was reported, or (y) if the Shares are not
principally traded on such exchange or market, the mean between the
last reported "bid" and "asked" prices of a Share on the preceding
date, as reported on Nasdaq or, if not so reported, as reported by the
National Daily Quotation Bureau, Inc. or as reported in a customary
financial reporting service, as applicable and as the Committee
determines. If the Shares are not publicly traded or, if publicly
traded, are not subject to reported transactions or "bid" or "asked"
quotations as set forth above, the Fair Market Value per Share shall be
as determined in good faith by the Committee; provided that, if the
Shares are publicly traded, the Committee may make such discretionary
determinations where the shares have not been traded for 10 trading
days.
(c) Option Term. The Committee shall determine the term of each
Option. The term of any Option shall not exceed ten years from the date of
grant.
(d) Vesting and Exercisability of Options.
(i) Vesting. Options shall vest in accordance with such
terms and conditions as may be determined by the Committee and
specified in the Grant Instrument or an amendment to the Grant
Instrument. The Committee may accelerate the vesting of any or all
outstanding Options at any time for any reason.
(ii) Exercisability. Notwithstanding the foregoing, the
Option may, but need not, include a provision whereby the Grantee may
elect at any time while an Employee, Non-Employee Director or Key
Advisor to exercise the Option as to any part or all of the Shares
subject to the Option prior to the full vesting of the Option. Any
unvested Shares so purchased shall be subject to a repurchase right in
favor of the Company, with the repurchase price to be equal to the
lesser of (x) the original purchase price or (y) the Fair Market Value
of the Shares on the date of such repurchase, or to any other
restriction the Committee determines to be appropriate.
(e) Termination of Employment, Retirement, Disability or Death.
(i) Except as provided below and subject to the
provisions of the Grant Instrument, an Option may only be exercised
while the Grantee is an Employee, Key Advisor or member of the Board.
In the event that a Grantee has a Termination of Service (as defined
below) for any reason other than Retirement (as defined below),
Disability (as defined below), death or Cause (as defined below), any
Option which is otherwise exercisable by the Grantee shall terminate
unless exercised within 90 days after the date of such termination (or
within such other period of time as may be specified by the Committee),
but in any event no later than the date of expiration of the Option
term. Except as otherwise provided by the Committee, any of the
Grantee's Options that are not otherwise exercisable as of the date on
which the Grantee has such a Termination of Service shall terminate as
of such date.
(ii) In the event the Grantee has a Termination of Service
on account of a termination for Cause by the Company, unless otherwise
determined by the Committee
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(x) any Option held by the Grantee shall terminate as of the date of
such Termination of Service and (y) the Grantee shall automatically
forfeit all Shares underlying any exercised portion of an Option for
which the Company has not yet delivered the certificates, upon refund
by the Company of the Exercise Price paid by the Grantee for such
Shares.
(iii) In the event the Grantee has a Termination of Service
on account of Retirement, any Option which is otherwise exercisable by
the Grantee shall terminate unless exercised within three years after
the date of such Termination of Service (or within such other period of
time as may be specified by the Committee), but in any event no later
than the date of expiration of the Option term. Except as otherwise
provided by the Committee, any of the Grantee's Options which are not
otherwise exercisable as of the date of such Termination of Service
shall terminate as of such date.
(iv) In the event the Grantee has a Termination of Service
on account of Disability, any Option which is otherwise exercisable by
the Grantee shall terminate unless exercised within three years after
the date of such Termination of Service (or within such other period of
time as may be specified by the Committee), but in any event no later
than the date of expiration of the Option term. Except as otherwise
provided by the Committee, any of the Grantee's Options which are not
otherwise exercisable as of the date of such Termination of Service
shall terminate as of such date.
(v) If the Grantee dies while an Employee, Key Advisor or
member of the Board or within 90 days after the date on which the
Grantee has a Termination of Service specified in Section 5(e)(i) above
(or within such other period of time as may be specified by the
Committee), any Option that is otherwise exercisable by the Grantee
shall terminate unless exercised within three years after the date of
such death or Termination of Service (or within such other period of
time as may be specified by the Committee), but in any event no later
than the date of expiration of the Option term. Except as otherwise
provided by the Committee, any of the Grantee's Options that are not
otherwise exercisable as of the date of such Termination of Service
shall terminate as of such date.
(vi) For purposes of Sections 5(e), 6, 7 and 8 of the
Plan:
(A) "Cause" shall mean, except to the extent
specified otherwise by the Committee, a finding by the
Committee that (1) the Grantee has breached his or her
employment, service, noncompetition, nonsolicitation or other
similar contract with the Company or its parent and subsidiary
corporations, (2) has been engaged in disloyalty to the
Company or its parent and subsidiary corporations, including,
without limitation, fraud, embezzlement, theft, commission of
a felony or dishonesty in the course of his or her employment
or service, (3) has disclosed trade secrets or confidential
information of the Company or its parents and subsidiary
corporations to persons not entitled to receive such
information or (4) has entered into competition with the
Company or its parent or subsidiary corporations.
Notwithstanding the foregoing, if the Grantee has an
employment
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agreement with the Company defining "Cause," then such
definition shall supersede the foregoing definition.
(B) "Company" shall mean the Company and its
parent and subsidiary corporations or other entities, as
determined by the Committee.
(C) "Disability" shall mean a Grantee's becoming
disabled within the meaning of section 22(e)(3) of the Code.
(D) "Retirement" shall mean a Grantee's
Termination of Service with the consent of the Company after
the attainment of age 55 and pursuant to the Company's
retirement plan.
(E) "Termination of Service" shall mean a
Grantee's termination of employment or service as an Employee,
Key Advisor or member of the Board (so that, for purposes of
the Plan, cessation of service as an Employee, Key Advisor and
member of the Board shall not be treated as a Termination of
Service if the Grantee continues without interruption to serve
thereafter in another one (or more) of such other capacities)
unless the Committee determines otherwise.
(f) Exercise of Options. A Grantee may exercise an Option that has
become exercisable, in whole or in part, by delivering a notice of exercise to
the Company with payment of the Exercise Price. The Grantee shall pay the
Exercise Price for an Option as specified by the Committee (x) in cash, (y) by
delivering Shares owned by the Grantee for the period necessary to avoid a
charge to the Company's earnings for financial reporting purposes and to avoid
adverse accounting consequences to the Company (including Shares acquired in
connection with the exercise of an Option, subject to such restrictions as the
Committee deems appropriate) and having a Fair Market Value on the date of
exercise equal to the Exercise Price, or by attestation (on a form prescribed by
the Committee) to ownership of Shares having a Fair Market Value on the date of
exercise equal to the Exercise Price, or (z) by such other method as the
Committee may approve, including, payment through a broker in accordance with
procedures permitted by Regulation T of the Federal Reserve Board; provided,
that, for purposes of assisting a Grantee to exercise an Option, the Company may
make loans to the Grantee or guarantee loans made by third parties to the
Grantee, on such terms and conditions as the Committee may authorize. The
Grantee shall pay the Exercise Price at the time of exercise and shall satisfy
the withholding tax requirements of Section 12.
6. STOCK APPRECIATION RIGHTS
(a) General Requirements. The Committee may grant SARs to an
Employee, Non-Employee Director or Key Advisor separately from or in tandem with
any Option (for all or a portion of the applicable Option). Tandem SARs may be
granted either at the time the Option is granted or at any time thereafter while
the Option remains outstanding. The Committee shall establish the base amount of
the SAR at the time the SAR is granted. Unless the Committee determines
otherwise, the base amount of each SAR shall be equal to the per Share Exercise
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Price of the related Option or, if there is no related Option, the Fair Market
Value of a Share as of the date of grant of the SAR.
(b) Tandem SARs. In the case of tandem SARs, the number of SARs
granted to a Grantee that shall be exercisable during a specified period shall
not exceed the number of Shares that the Grantee may purchase upon the exercise
of the related Option during such period. Upon the exercise of an Option, the
SARs relating to the Shares purchased pursuant to an Option shall terminate.
Upon the exercise of SARs, the related Option shall terminate to the extent of
an equal number of Shares.
(c) Exercisability. An SAR shall be exercisable during the period
specified by the Committee in the Grant Instrument and shall be subject to such
vesting and other restrictions as may be specified in the Grant Instrument. The
Committee may accelerate the exercisability of any or all outstanding SARs at
any time for any reason. SARs may only be exercised while the Grantee is as an
Employee, Key Advisor or member of the Board or during the applicable period
after Termination of Service as described in Section 5(e). A tandem SAR shall be
exercisable only during the period when the Option to which it is related is
also exercisable. No SAR may be exercised for cash by an executive officer or
director of the Company or any of its subsidiaries who is subject to section 16
of the Exchange Act, except in accordance with Rule 16b-3 under the Exchange
Act.
(d) Value of SARs. When a Grantee exercises an SAR, the Grantee
shall receive in settlement of such SAR an amount, payable in cash, Shares or a
combination thereof, as determined by the Committee, equal to the amount by
which the Fair Market Value of a Share on the date of exercise of the SAR
exceeds the base amount of the SAR as described in Section 6(a).
(e) Form of Payment. The Committee shall determine whether the
appreciation in an SAR shall be paid in the form of cash, Shares, or a
combination of the two, in such proportion as the Committee deems appropriate.
For purposes of calculating the number of Shares to be received, Shares shall be
valued at their Fair Market Value on the date of exercise of the SAR. If Shares
are to be received upon exercise of a SAR, cash shall be delivered in lieu of
any fractional Share.
7. RESTRICTED SHARES
The Committee may issue or transfer Shares to an Employee, Non-Employee
Director or Key Advisor under a Grant of Restricted Shares, upon such terms as
the Committee deems appropriate. The following provisions are applicable to
Restricted Shares:
(a) General Requirements. Shares issued or transferred pursuant to
Restricted Share Grants may be issued or transferred for consideration or for no
consideration, as determined by the Committee. The Committee may establish
conditions under which restrictions on Restricted Shares shall lapse over a
period of time or according to such other criteria as the Committee deems
appropriate. The period of time during which the Restricted Shares will remain
subject to restrictions will be designated in the Grant Instrument as the
"Restriction Period."
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(b) Number of Shares. The Committee shall determine the number of
Restricted Shares to be issued or transferred and the restrictions applicable to
such Grant.
(c) Requirement of Employment or Service. If the Grantee has a
Termination of Service during a period designated in the Grant Instrument as the
Restriction Period, or if other specified conditions are not met, the Restricted
Share Grant shall terminate as to all Shares covered by the Grant as to which
the restrictions have not lapsed, and those Shares must be immediately returned
to the Company, and the Company shall refund to the Grantee the lesser of (x)
the consideration, if any, paid by the Grantee for such Shares and (y) the Fair
Market Value of the Shares as of the date of such Termination of Service. The
Committee may, however, provide for complete or partial exceptions to these
requirements as it deems appropriate.
(d) Restrictions on Transfer and Legend on Certificate. During the
Restriction Period, a Grantee may not sell, assign, transfer, pledge or
otherwise dispose of the Restricted Shares except as permitted under Section 13.
Each certificate for Restricted Shares shall contain a legend giving appropriate
notice of the restrictions in the Grant. The Grantee shall be entitled to have
the legend removed from the certificate covering the Restricted Shares subject
to restrictions when all restrictions on such Shares have lapsed. The Committee
may determine that the Company will not issue certificates for Restricted Shares
until all restrictions on such Shares have lapsed, or that the Company will
retain possession of certificates for Restricted Shares until all restrictions
on such Shares have lapsed.
(e) Right to Vote and to Receive Dividends. Unless the Committee
determines otherwise, during the Restriction Period, the Grantee shall have the
right to vote Restricted Shares and to receive any dividends or other
distributions paid on such Shares, subject to any restrictions deemed
appropriate by the Committee, including, without limitation, the achievement of
specific performance goals.
(f) Lapse of Restrictions. All restrictions imposed on Restricted
Shares shall lapse upon the expiration of the applicable Restriction Period and
the satisfaction of all conditions imposed by the Committee. The Committee may
determine, as to any or all Restricted Share Grants, that the restrictions shall
lapse without regard to any Restriction Period.
8. PERFORMANCE SHARES
(a) General Requirements. The Committee may grant Performance
Shares ("Performance Shares") to an Employee or Key Advisor. Each Performance
Share shall represent the right of the Grantee to receive an amount based on the
value of the Performance Share, if performance goals established by the
Committee are met. The value of a Performance Share shall be based on the Fair
Market Value of a Share as of the date of payment in respect of such Performance
Share is to be made or on such other measurement base as the Committee deems
appropriate. The Committee shall determine the number of Performance Shares to
be granted and the requirements applicable to such Shares.
(b) Performance Period and Performance Goals. When Performance
Shares are granted, the Committee shall establish the performance period during
which performance shall
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be measured (the "Performance Period"), performance goals applicable to the
Shares ("Performance Goals"), if any, and such other conditions of the Grant as
the Committee deems appropriate. Performance Goals may relate to the financial
performance of the Company or its operating shares, the performance of Shares,
individual performance, or such other criteria as the Committee deems
appropriate.
(c) Payment with Respect to Performance Shares. At the end of each
Performance Period, the Committee shall determine to what extent the Performance
Goals and other conditions of the Performance Shares have been met and the
amount, if any, to be paid with respect to the Performance Shares. Payments with
respect to Performance Shares shall be made in cash, in Shares, or in a
combination of the two, as determined by the Committee. Any fractional
Performance Share shall be paid in cash. Unless otherwise determined by the
Committee, any Performance Shares with respect to which the Committee determines
that the applicable Performance Goals or other conditions have not been met
within the Performance Period shall be forfeited.
(d) Requirement of Employment or Service. If the Grantee has a
Termination of Service during a Performance Period, or if other conditions
established by the Committee are not met, the Grantee's Performance Shares shall
be forfeited. The Committee may, however, provide for complete or partial
exceptions to this requirement as it deems appropriate.
(e) Restrictions on Transfer. Rights to payments with respect to
Performance Shares granted under the Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, garnishment, levy, execution, or other legal or equitable process,
either voluntary or involuntary; and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, attach or garnish, or levy or execute on any
right to benefits payable hereunder, shall be void.
(f) Limited Rights. Performance Shares are solely a device for the
measurement and determination of the amounts to be paid to a Grantee under the
Plan. Each Grantee's right in the Performance Shares is limited to the right to
receive payment, if any, as may herein be provided. The Performance Shares do
not constitute Shares and shall not be treated as (or as giving rise to)
property or as a trust fund of any kind; provided, however, that the Company may
establish a mere bookkeeping reserve to meet its obligations hereunder or a
trust or other funding vehicle that would not cause the Plan to be deemed to be
funded for tax purposes or for purposes of Title I of the Employee Retirement
Income Security Act of 1974, as amended. The right of any Grantee of Performance
Shares to receive payments by virtue of participation in the Plan shall be no
greater than the right of any unsecured general creditor of the Company. Nothing
contained in the Plan shall be construed to give any Grantee any rights with
respect to Shares or any ownership interest in the Company. Except as may be
provided in accordance with Section 9, no provision of the Plan shall be
interpreted to confer upon any Grantee any voting, dividend or derivative or
other similar rights with respect to any Performance Share.
9. DIVIDEND EQUIVALENT RIGHTS
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(a) General Requirements. The Committee may grant Dividend
Equivalent Rights to Employees Non-Employee Directors and Key Advisors. Each
Dividend Equivalent Right shall represent the right to receive, either credits
for or payments of, amounts based on the dividends declared on Shares, to be
credited or paid as of the dividend payment dates, during the term of the
Dividend Equivalent Right as determined by the Committee.
(b) Certain Terms. Unless otherwise determined by the Committee, a
Dividend Equivalent Right is exercisable or payable only while the Grantee is an
Employee, member of the Board or Key Advisor. Payment of the amount determined
in accordance with Section 9(a) shall be in cash, in Shares or a combination of
the two, as determined by the Committee. The Committee may impose such other
terms conditions on the grant of a Dividend Equivalent Right as it deems
appropriate in its discretion as reflected by the terms of the Grant Instrument.
(c) Dividend Equivalent Right with Other Grants. The Committee may
establish a program under which Dividend Equivalent Rights may be granted in
conjunction with other Grants. For example, and without limitation, the
Committee may grant a Dividend Equivalent Right in respect of each Share subject
to an Option or with respect to a Performance Share, which right would consist
of the right to receive a cash payment in an amount equal to the dividend
distributions paid on a Share from time to time.
(d) Deferral. The Committee may establish a program under which
the payments with respect to Dividend Equivalent Rights may be deferred. Such
program may include, without limitation, provisions for the crediting of
earnings and losses on unpaid amounts, and, if permitted by the Committee,
provisions under which Grantees may select from among hypothetical investment
alternatives for such deferred amounts in accordance with procedures established
by the Committee.
10. CASH AWARDS
The Committee may grant Cash Awards to Employees, Non-Employee
Directors and Key Advisors. The cash payment due upon settlement of a Cash Award
shall be based on the attainment of performance goals and shall be subject to
such other conditions, restrictions and contingencies as the Committee shall
determine as reflected by the terms of the Grant Instrument.
11. DEFERRALS
The Committee may permit or require a Grantee to defer receipt of the
payment of cash or the delivery of shares that would otherwise be due to such
Grantee in connection with any Option or SAR, the lapse or waiver of
restrictions applicable to Restricted Shares, the satisfaction of any
requirements or objectives with respect to Performance Shares, or the payment of
cash with respect to Cash Awards. If any such deferral election is permitted or
required, the Committee shall, in its sole discretion, establish rules and
procedures for such deferrals.
12. WITHHOLDING OF TAXES
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(a) Required Withholding. The Company shall be entitled to
withhold from any payments or deemed payments any amount of tax withholding
(including all federal, state and local taxes) determined by the Committee to be
required by law. Without limiting the generality of the foregoing, the Committee
may, in its discretion, require the Grantee to pay to the Company at such time
as the Committee determines the amount that the Committee deems necessary to
satisfy the Company's obligation to withhold federal, state or local income or
other taxes incurred by reason of (i) the exercise of any Option or SAR, (ii)
the lapsing of any restrictions applicable to any Restricted Shares, (iii) the
receipt of a payment in respect of Performance Shares, Dividend Equivalent
Rights or Cash Awards or (iv) any other applicable income recognition event (for
example, an election under section 83(b) of the Code). Notwithstanding anything
contained in the Plan to the contrary, the Grantee's satisfaction of any
tax-withholding requirements imposed by the Committee shall be a condition
precedent to the Company's obligation as may otherwise be provided hereunder to
provide Shares to the Grantee and to the release of any restrictions as may
otherwise be provided hereunder, as applicable; and the applicable options,
SARs, Restricted Shares, Performance Shares or Dividend Equivalent Rights shall
be forfeited upon the failure of the Grantee to satisfy such requirements with
respect to, as applicable, (i) the exercise of the option or SAR, (ii) the
lapsing of restrictions on the Restricted Share (or other income recognition
event) or (iii) payments in respect of any Performance Share or Dividend
Equivalent Right.
(b) Election to Withhold Shares. If the Committee so permits, a
Grantee may make a written election to satisfy the Company's income tax
withholding obligation with respect to an Option, an SAR, Restricted Shares,
Performance Shares or Dividend Equivalent Rights paid in Shares by having Shares
withheld by the Company from the Shares otherwise to be received, or to deliver
previously owned Shares (not subject to restrictions hereunder). In the event
that the Committee permits and Grantee makes such an election, the number of
Shares so withheld or delivered shall have an aggregate Fair Market Value on the
date of exercise that does not exceed the Grantee's minimum withholding tax rate
for federal (including FICA), state and local tax liabilities. The election must
be in a form and manner prescribed by the Committee and shall be subject to the
prior approval of the Committee.
13. TRANSFERABILITY OF GRANTS
(a) In General. Except as provided in Section 13(b), only the
Grantee may exercise rights under a Grant during the Grantee's lifetime. A
Grantee may not transfer those rights except by will or by the laws of descent
and distribution, or, if permitted in any specific case by the Committee,
pursuant to a domestic relations order. When a Grantee dies, the personal
representative or other person entitled to succeed to the rights of the Grantee
("Successor Grantee") may exercise such rights in accordance with the terms of
the Plan. A Successor Grantee must furnish proof satisfactory to the Company of
his or her right to receive the Grant under the Grantee's will or under the
applicable laws of descent and distribution.
(b) Transfer of Nonqualified Options. Notwithstanding the
foregoing, the Committee may provide in a Grant Instrument that a Grantee may
transfer Nonqualified Options to family members or other persons or entities,
consistent with applicable securities laws, according to
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such terms as the Committee may determine where the Committee determines that
such transferability does not result in accelerated federal income taxation;
provided that the Grantee receives no consideration for the transfer of an
Option and the transferred Option shall continue to be subject to the same terms
and conditions as were applicable to the Option immediately before the transfer.
14. CHANGE OF CONTROL OF THE COMPANY
(a) Definition. As used herein, a "Change of Control" shall be
deemed to have occurred if:
(i) The stockholders of the Company approve (or, if
stockholder approval is not required, the Board approves) an agreement
providing for: (A) the merger or consolidation of the Company with
another corporation where the stockholders of the Company, immediately
prior to the merger or consolidation, will not beneficially own,
immediately after the merger or consolidation, Shares entitling such
stockholders to more than 50% of all votes to which all stockholders of
the surviving corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to
elect directors by a separate class vote), (B) the sale or other
disposition of all or substantially all of the assets of the Company,
or (C) a liquidation or dissolution of the Company.
(ii) Any "person" (as such term is used in sections 13(d)
and 14(d) of the Exchange Act) becomes a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing a majority of the voting power
of the then outstanding securities of the Company except where the
acquisition is approved by the Board; or
(iii) Any person has commenced a tender offer or exchange
offer for a majority of the voting power of the then outstanding Shares
of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to
occur if any entity controlled by ICG subsequently acquires the Company through
a merger or sale or other disposition of all or substantially all of the assets
of the Company.
(b) Notice and Termination of Grants. Upon a Change of Control
where the Company is not the surviving corporation (or survives only as a
subsidiary of another corporation), unless the Committee determines otherwise,
(i) all Options that are not vested and exercisable as of the Change of Control
shall automatically terminate at the time of the Change of Control, (ii) all
vested and exercisable Options that are not exercised as of the Change of
Control shall be assumed by, or replaced with comparable options or rights by,
the surviving corporation (or a parent or subsidiary of the surviving
corporation), and (iii) all other outstanding Grants shall be converted to
similar grants of the surviving corporation (or a parent of subsidiary of the
surviving corporation). Such termination of Options that are not vested and
exercisable shall take place as of the date of the Change of Control or such
other date as the Committee may specify.
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(c) Other Alternatives. Notwithstanding the foregoing, subject to
Section (d) below, in the event of a Change of Control, the Committee may take
any, or a combination of any, of the following actions: (i) provide that all
outstanding Options and SARs shall automatically accelerate and become fully
exercisable, the restrictions and conditions on all outstanding Restricted
Shares shall immediately lapse, and for Grantees holding Performance Shares, the
Grantees will receive a payment in settlement of such Performance Shares, in an
amount determined by the Committee, based on the Grantee's target payment for
the Performance Period and the portion of the Performance Period that precedes
the Change of Control; (ii) provide that all outstanding Options and SARs that
are not vested and exercisable will be assumed by, or replaced with comparable
options or rights by, the surviving corporation if not the Company (or a parent
or subsidiary of the surviving corporation if not the Company); or (iii) require
that Grantees surrender their outstanding Options and SARs in exchange for a
payment by the Company, in cash or Shares as determined by the Committee, in an
amount equal to the amount by which the then Fair Market Value of the Shares
subject to the Grantee's unexercised Options and SARs exceeds the Exercise Price
of the Options or the base amount of the SARs, as applicable.
(d) Committee. The Committee making the determinations under this
Section 14 following a Change of Control must be comprised of the same members
as those on the Committee immediately before the Change of Control. If the
Committee members do not meet this requirement, the automatic provisions of
Section 14(b) above shall apply in the case of such a Change of Control, and the
Committee shall not have discretion to vary them.
(e) Limitations. Notwithstanding anything in the Plan to the
contrary, in the event of a Change of Control, unless the Committee determines
that such action is in the best interests of the Company, the Committee shall
not have the right to take any actions described in the Plan (including without
limitation actions described in Section 14(c) above) that would result in
adverse accounting treatment or that would make the Change of Control ineligible
for desired tax treatment if, in the absence of such right, the Change of
Control would qualify for such treatment and the Company intends to use such
treatment with respect to the Change of Control.
15. PUBLIC OFFERING
(a) In the event of a Public Offering, unless the Committee
determines otherwise, all outstanding Options that are not vested and
exercisable as of the date of the Public Offering shall terminate at the time of
the Public Offering. Unless the Committee determines otherwise, all vested and
exercisable Options and all other Grants (regardless of whether vested and
exercisable), shall remain unchanged as a result of the Public Offering.
(b) For purposes of this Section 15, "Public Offering" shall mean
the consummation of the first registered public offering of the common stock of
the Company in a firm commitment underwriting.
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16. REQUIREMENTS FOR ISSUANCE OR TRANSFER OF SHARES
No Shares shall be issued or transferred in connection with any Grant
hereunder unless and until all legal requirements applicable to the issuance or
transfer of such Shares have been complied with to the satisfaction of the
Committee. The Committee shall have the right to condition any Grant made to any
Grantee hereunder on such Grantee's undertaking in writing to comply with such
restrictions on his or her subsequent disposition of such Shares as the
Committee shall deem necessary or advisable as a result of any applicable law,
regulation or official interpretation thereof, and certificates representing
such Shares may be legended to reflect any such restrictions. Certificates
representing Shares issued or transferred under the Plan will be subject to such
stop-transfer orders, registration and other restrictions as may be required by
applicable laws, regulations and interpretations, including any requirement that
a legend be placed thereon.
17. AMENDMENT AND TERMINATION OF THE PLAN
(a) Amendment. The Board may amend or terminate the Plan at any
time.
(b) Termination of Plan. The Plan shall terminate on the day
immediately preceding the tenth anniversary of its effective date, unless the
Plan is terminated earlier by the Board.
(c) Termination and Amendment of Outstanding Grants. A termination
or amendment of the Plan that occurs after a Grant is made shall not materially
impair the rights of a Grantee unless the Grantee consents or unless the
amendment is required in order to comply with applicable law. The termination of
the Plan shall not impair the power and authority of the Committee with respect
to an outstanding Grant. Whether or not the Plan has terminated an outstanding
Grant may be terminated or amended in accordance with the Plan or may be amended
by agreement of the Company and the Grantee consistent with the Plan.
(d) Governing Document. The Plan shall be the controlling
document. No other statements, representations, explanatory materials or
examples, oral or written, may amend the Plan in any manner. The Plan shall be
binding upon and enforceable against the Company and its successors and assigns.
18. FUNDING OF THE PLAN
The Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Grants under the Plan. In no event shall
interest be paid or accrued on any Grant, including unpaid installments of
Grants.
19. RIGHTS OF PARTICIPANTS
Nothing in the Plan shall entitle any Employee, Non-Employee Director,
Key Advisor or other person to any claim or right to be granted a Grant under
the Plan. Neither the Plan nor any
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action taken hereunder shall be construed as giving any individual any rights to
be retained by or in the employ of the Company or any other employment rights.
20. NO FRACTIONAL SHARES
No fractional Shares shall be issued or delivered pursuant to the Plan
or any Grant. The Committee shall determine whether cash, other awards or other
property shall be issued or paid in lieu of such fractional Shares or whether
such fractional Shares or any rights thereto shall be forfeited or otherwise
eliminated.
21. HEADINGS
Section headings are for reference only. In the event of a conflict
between a title and the content of a Section, the content of the Section shall
control.
22. EFFECTIVE DATE OF THE PLAN
The Plan shall be effective on September 5, 2001, subject to the
authorization of Shares for issuance under the Plan by ICG's Board of Directors.
23. MISCELLANEOUS
(a) Grants in Connection with Corporate Transactions and
Otherwise. Nothing contained in the Plan shall be construed to (i) limit the
right of the Committee to make Grants under the Plan in connection with the
acquisition, by purchase, lease, merger, consolidation or otherwise, of the
business or assets of any corporation, firm or association, including Grants to
employees thereof who become Employees or for other proper corporate purposes,
or (ii) limit the right of the Company to grant stock options or make other
awards outside of the Plan. Without limiting the foregoing, the Committee may
make a Grant to an employee of another corporation who becomes an Employee by
reason of a corporate merger, consolidation, acquisition of stock or property,
reorganization or liquidation involving the Company or any of its subsidiaries
in substitution for a stock option or restricted share grant made to such
employee by such corporation. The terms and conditions of the substitute grants
may vary from the terms and conditions required by the Plan and from those of
the substituted stock incentives. The Committee shall prescribe the provisions
of the substitute grants.
(b) Compliance with Law. The Plan, the exercise of Options and
SARs and the obligations of the Company to issue or transfer Shares under Grants
shall be subject to all applicable laws and to approvals by any governmental or
regulatory agency as may be required. With respect to persons subject to section
16 of the Exchange Act, it is the intent of the Company that the Plan and all
transactions under the Plan comply with all applicable provisions of Rule 16b-3
or its successors under the Exchange Act. To the extent that any legal
requirement of section 16 of the Exchange Act as set forth in the Plan ceases to
be required under section 16 of the Exchange Act, that Plan provision shall
cease to apply. The Committee may revoke any Grant if it is contrary to law or
modify a Grant to bring it into compliance with any valid and
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mandatory government regulation. The Committee may, in its sole discretion,
agree to limit its authority under this Section 23(b).
(c) Governing Law. The validity, construction, interpretation and
effect of the Plan and Grant Instruments issued under the Plan shall exclusively
be governed by and determined in accordance with the law of the State of
Delaware.
* * * * * *
Date:September 5, 2001 LOGISTICS.COM, INC.
By: /s/ John P. Lanigan, Jr.
------------------------
John P. Lanigan, Jr.
President
Attest:
By: __________________
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