**EXHIBIT 10.1**

 

**PC MALL, INC.**

 

**AMENDED AND RESTATED**

**1994 STOCK INCENTIVE PLAN**

 

(Amended as of June 19, 2002)

(Further amended as of March 22, 2007)

 

1.                                       Establishment,Purpose, and Definitions.

 

(a)                                  PC Mall, Inc.(formerly Creative Computers, Inc. and IdeaMall, Inc.) (the **“Company”**) hereby adopts its 1994 Stock Incentive Plan (the **“Plan”**).

 

(b)                                 The purpose ofthe Plan is to provide incentives to eligible individuals (as defined inSection 4 below) for increased efforts and successful achievements onbehalf of or in the interests of the Company and its Affiliates and to maximizethe rewards due them for those efforts and achievements.  The Plan provides employees (includingofficers and directors who are employees) of the Company and of its Affiliatesan opportunity to purchase shares of common stock of the Company (**“Stock”**) pursuant to options which may qualify as incentivestock options (referred to as “incentive stock options”) under Section 422of the Internal Revenue Code of 1986, as amended (the **“Code”**),and employees, officers, directors, independent contractors and consultants ofthe Company and of its Affiliates an opportunity to purchase shares of Stockpursuant to options which are not described in Sections 422 or 423 ofthe Code (referred to as “nonqualified stock options”).  The Plan also provides for (i) the saleor bonus of Stock to eligible individuals in connection with the performance ofservices for the Company or its Affiliates, and (ii) awards which may beearned in whole or in part upon the passage of time or the attainment ofperformance criteria established by the Committee and which may be settled forcash, Stock or a combination thereof, as established by the Committee (suchawards referred to herein as “**Restricted Stock Units**”).  Finally, the Plan authorizes the grant ofstock appreciation rights (**“SARs”**), eitherseparately or in tandem with stock options, entitling holders to cashcompensation measured by appreciation in the value of the Stock.

 

(c)                                  The term “Affiliate”as used in the Plan means parent or subsidiary corporations of the Company, asdefined in Sections 424(e) and (f) of the Code (but substituting“the Company” for “employer corporation”), including parents or subsidiaries ofthe Company which become such after adoption of the Plan.

 

2.                                       Administrationof the Plan.

 

(a)                                  The Plan shallbe administered by the Board of Directors of the Company (the **“Board”**).  The Boardmay delegate the responsibility for administering the Plan to a committee,under such terms and conditions as the Board shall determine (the **“Committee”**).  TheCommittee shall consist of two or more members of the Board or such lessernumber of

 

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membersof the Board as permitted by Rule 16b-3 (or any successor thereto)promulgated under the Securities Exchange Act of 1934, as amended (**“Rule 16b-3”**). The Committee shall select one of its members as chair of the Committeeand shall hold meetings at such times and places as it may determine.  A majority of the Committee shall constitutea quorum, and acts of the Committee at which a quorum is present, or actsreduced to or approved in writing by all the members of the Committee, shall bethe valid acts of the Committee.  If theBoard does not delegate administration of the Plan to the Committee, then eachreference in this Plan to the “Committee” shall be construed to refer to theBoard.

 

(b)                                 The Committeeshall determine which eligible individuals (as defined in Section 4 below)shall be granted options under the Plan, the timing of such grants, the termsthereof (including any restrictions on the Stock), and the number of sharessubject to such options.

 

(c)                                  The Committeeshall also determine which eligible individuals (as defined in Section 4below) shall be granted or issued SARs, Stock (other than pursuant to theexercise of options), or Restricted Stock Units under the Plan, the timing ofsuch grants or issuances, the terms thereof (including any restrictions and theconsideration, if any, to be paid therefor) and the number of shares, SARs orRestricted Stock Units to be granted.

 

(d)                                 The Committeemay amend the terms of any outstanding option or SAR granted under this Plan,but any amendment which would adversely affect the holder’s rights under anoutstanding option or SAR shall not be made without the holder’s writtenconsent.  The Committee may, with theholder’s written consent, cancel any outstanding option or SAR or accept anyoutstanding option or SAR in exchange for a new option or SAR.  The Committee also may amend any stockpurchase agreement or stock bonus agreement relating to sales or bonuses ofStock under the Plan or any outstanding Restricted Stock Unit granted underthis Plan, but any amendment which would adversely affect the individual’srights to the Stock or the Restricted Stock Unit shall not be made without hisor her written consent.

 

(e)                                  The Committeeshall have the sole authority, in its absolute discretion to adopt, amend andrescind such rules and regulations as, in its opinion, may be advisable inthe administration of the Plan, to construe and interpret the Plan, the rules andthe regulations, and the instruments evidencing options, SARs, Stock orRestricted Stock Units granted or issued under the Plan and to make all otherdeterminations deemed necessary or advisable for the administration of thePlan.  All decisions, determinations andinterpretations of the Committee shall be binding on all participants.

 

(f)                                    Notwithstandingthe foregoing provisions of this Section 2, grants of options or any otherawards hereunder to any “Covered Employee,” as such term is defined by Section 162(m) ofthe Code shall be made only by a Committee (or subcommittee of a Committee)which, in addition to meeting other applicable requirements of this Section 2,is comprised solely of two or more “outside directors,” within the meaning ofSection 162(m) of the Code and the regulations thereunder (the “Subcommittee”)to the extent it is intended that such grants qualify as “performance-basedcompensation” under Section 162(m). In the case of such grants to Covered Employees, reference to the “Committee”shall be deemed to be references to the Subcommittee as specified above.

 

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3.                                       Stock Subjectto the Plan.

 

(a)                                  The maximumaggregate number of shares of Stock available for issuance under the Plan andduring the life of the Plan shall equal 4,326,324 (subject to adjustment forany stock splits or reverse stock splits) and, commencing with the firstbusiness day of each calendar year thereafter beginning with January 1,2003, such maximum aggregate number of shares of Stock shall be increased by anumber equal to three percent (3%) of the number of shares of Stock outstandingas of December 31 of the immediately preceding calendar year.  Notwithstanding the foregoing, subject to theprovisions of Sections 3(c) and 3(d) below, the maximum aggregatenumber of shares of Stock available for grant of incentive stock options shallbe 650,000 shares of Stock, and such number shall not be subject to annualadjustment as described above. Notwithstanding the foregoing, the maximum aggregate number of shares ofStock which may be issued pursuant to all awards of restricted Stock andRestricted Stock Units is 100,000 shares.

 

(b)                                 If an option issurrendered or for any other reason ceases to be exercisable in whole or inpart, the shares of Stock which were subject to such option but as to which theoption had not been exercised shall continue to be available under the Plan.  Any Restricted Stock Units or shares of Stockforfeited to the Company pursuant to the terms of agreements evidencingRestricted Stock Units or sales or bonuses of Stock under the Plan shallcontinue to be available under the Plan.

 

(c)                                  If there is anychange in the Stock through merger, consolidation, reorganization,recapitalization, reincorporation, stock split, stock dividend (in excess of2%), or other change in the corporate structure of the Company, appropriateadjustments shall be made by the Committee, in order to preserve but not toincrease the benefits to the outstanding options, SARs, Restricted Stock Unitsand stock purchase or stock bonus awards under the Plan, including adjustmentsto the aggregate number and kind of shares subject to the Plan, or to outstandingstock purchase or stock bonus agreements, Restricted Stock Unit agreements orSAR agreements, and the number and kind of shares and the price per sharesubject to outstanding options; provided however, that a distribution by theCompany to its stockholders of all or any portion of the securities of anysubsidiary of the Company (a “Spinoff Transaction”) shall not be deemed to be achange in the Stock for purposes of this Section 3.

 

(d)                                 In the event ofa Spinoff Transaction, the Committee may in its discretion make suchadjustments and take such other action as it deems appropriate with respect tothe outstanding options, SARs, Restricted Stock Units and stock purchase orstock bonus awards under the Plan, including but not limited to adjustments tothe number and kind of shares, the price per share and the vesting periods ofoutstanding options or the substitution, exchange or grant of options topurchase securities of the subsidiary; provided that the Committee shall not beobligated to make any such adjustments or take any such action hereunder.

 

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4.                                       EligibleIndividuals.  Individualswho shall be eligible to have granted to them options, SARs, Restricted StockUnits or Stock under the Plan shall be such employees, officers, directors,independent contractors and consultants of the Company or an Affiliate as theCommittee, in its discretion, shall designate from time to time.  Notwithstanding the foregoing, only employeesof the Company or an Affiliate (including officers and directors who are bonafide employees) shall be eligible to receive incentive stock options.

 

5.                                       The OptionPrice.  The exercise price of the eachincentive stock option shall be not less than the per share fair market value ofthe Stock subject to such option on the date the option is granted.  The exercise price of each nonqualified stockoption shall be as determined by the Committee. Notwithstanding the foregoing, in the case of an incentive stock optiongranted to a person possessing more than 10 percent of the combined votingpower of the Company or an Affiliate, the exercise price shall be not less than110 percent of the fair market value of the Stock on the date the optionis granted.  The exercise price of anoption shall be subject to adjustment to the extent provided in Sections 3(c) and3(d) above.

 

6.                                       Terms andConditions of Options.

 

(a)                                  Each optiongranted pursuant to the Plan will be evidenced by a written stock optionagreement executed by the Company and the person to whom such option isgranted.

 

(b)                                 The Committeeshall determine the term of each option granted under the Plan; provided,however, that the term of an incentive stock option shall not be for more thanten years and that, in the case of an incentive stock option granted to aperson possessing more than 10 percent of the combined voting power of theCompany or an Affiliate, the term of each incentive stock option shall be nomore than five years.

 

(c)                                  In the case ofincentive stock options, the aggregate fair market value (determined as of thetime such option is granted) of the Stock with respect to which incentive stockoptions are exercisable for the first time by an eligible employee in anycalendar year (under this Plan and any other plans of the Company or itsAffiliates) shall not exceed $100,000.

 

(d)                                 The stockoption agreement may contain such other terms, provisions and conditionsconsistent with this Plan as may be determined by the Committee.  If an option, or any part thereof is intendedto qualify as an incentive stock option, the stock option agreement shallcontain those terms and conditions which are necessary to so qualify it.

 

(e)                                  The maximumnumber of shares of Stock with respect to which options or other awards may begranted to any individual in any fiscal year under the Plan shall be 650,000shares, subject to adjustment pursuant to Sections 3(c) and 3(d).  To the extent required by Section 162(m) ofthe Code or the regulations thereunder, in applying the foregoing limitationwith respect to an employee, if any option or other award is cancelled, thecancelled option or award shall continue to count against the maximum number ofshares for which options or awards may be granted to the employee under this Section 6(e).  For this purpose, the repricing of 

 

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anoption or award (or, in the case of a SAR, the base amount on which the stockappreciation is calculated is reduced to reflect a reduction in the fair marketvalue of the Stock), shall be treated as a cancellation of the existing optionor award and the grant of a new option or award.

 

7.                                       Terms andConditions of Stock Purchases and Bonuses

 

(a)                                  Each sale orbonus grant of Stock pursuant to the Plan will be evidenced by a written stockpurchase or stock bonus agreement, as applicable, executed by the Company andthe person to whom such stock is sold or granted.

 

(b)                                 The stockpurchase agreement or stock bonus agreement may contain such other terms,provisions and conditions consistent with this Plan as may be determined by theCommittee, including not by way of limitation, restrictions on transfer,forfeiture provisions, repurchase provisions and vesting provisions.

 

8.                                       Terms andConditions of SARs.  TheCommittee may, under such terms and conditions as it deems appropriate,authorize the issuance of SARs evidenced by a written SAR agreement (which, inthe case of tandem options, may be part of the option agreement to which theSAR relates) executed by the Company and the person to whom the SARs aregranted.  The SAR agreement shall specifythe term for the SARs covered thereby and contain such other terms, provisionsand conditions consistent with this Plan as may be determined by the Committee.

 

9.                                       Terms andConditions of Restricted Stock Units.  The Committee may, under such terms andconditions as it deems appropriate, authorize the issuance of Restricted StockUnits evidenced by a written Restricted Stock Unit agreement executed by theCompany and the person to whom the Restricted Stock Units are granted.  The Restricted Stock Unit agreement shallspecify the term for the Restricted Stock Units covered thereby and containsuch other terms, provisions and conditions consistent with this Plan as may bedetermined by the Committee, including not by way of limitation, restrictionson transfer, forfeiture provisions, repurchase provisions and vestingprovisions.

 

10.                                 Amendment,Suspension, or Termination of the Plan.

 

(a)                                  The Board mayat any time amend, suspend or terminate the Plan as it deems advisable;provided that such amendment, suspension or termination complies with allapplicable requirements of state and federal law, including any applicablerequirement that the Plan or an amendment to the Plan be approved by theshareholders, and provided further that, except as provided in Sections 3(c) and3(d) above, the Board shall in no event amend the Plan in the followingrespects without the consent of shareholders then sufficient to approve thePlan in the first instance:

 

(i)                                     To materially increase thebenefits accruing to participants under the Plan;

 

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(ii)                                  To materially increase thenumber of shares of Stock available under the Plan; or

 

(iii)                               To materially modify theeligibility requirements for participation in the Plan.

 

(b)                                 No option, SARor Restricted Stock Unit may be granted nor may any Stock be issued (other thanupon exercise of outstanding options or SARs or settlement of outstandingRestricted Stock Units) under the Plan during any suspension or after thetermination of the Plan, and no amendment, suspension or termination of thePlan shall, without the affected individual’s consent, alter or impair anyrights or obligations under any option, SAR or Restricted Stock Unit previouslygranted under the Plan.  The Plan shallterminate with respect to the grant of incentive options on the tenthanniversary of the date of adoption of the Plan, unless previously terminatedby the Board pursuant to this Section 10.

 

11.                                 Transferability.  Incentive stock options may not be sold,pledged, assigned, hypothecated, transferred, or disposed of in any mannerother than by will or by the laws of descent or distribution and may beexercised, during the lifetime of the optionee, only by the optionee; provided,however, that the optionee may designate a beneficiary of the optionee’sincentive stock option in the event of the optionee’s death on a beneficiarydesignation form provided by the Committee. Other awards may be transferred by gift or through a domestic relationsorder to members of the optionee’s Immediate Family to the extent provided inthe award agreement or in the manner and to the extent determined by theCommittee.  For purposes of this Plan, “ImmediateFamily” shall mean any child, stepchild, grandchild, parent, stepparent,grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,father-in-law, son-in law, daughter-in-law, brother-in-law, or sister-in-law,including adoptive relationships, any person sharing the optionee’s household(other than a tenant or employee), a trust in which these persons have morethan fifty percent (50%) of the beneficial interest, a foundation in whichthese persons (or the optionee) control the management of assets, and any otherentity in which these persons (or the optionee) own more than fifty percent(50%) of the voting interests.

 

12.                                 Payment UponExercise of Options.

 

(a)                                  Payment of thepurchase price upon exercise of any option granted under this Plan shall bemade in cash, a certified check, bank draft, or postal or express money orderpayable to the order of the Company in lawful money of the United States;provided, however, that the Committee, in its sole discretion, may permit anoptionee to pay the option price in whole or in part (i) with shares ofStock owned by the optionee or with shares of Stock withheld from the sharesotherwise deliverable to the optionee upon exercise of an option; (ii) bydelivery on a form prescribed by the Committee of an irrevocable direction to asecurities broker approved by the Committee to sell shares of Stock and deliverall or a portion of the proceeds to the Company in payment for the Stock;(iii) by delivery of the optionee’s promissory note with such recourse,interest, security and redemption provisions as the Committee in its discretiondetermines appropriate; or (iv) in any combination of the foregoing.  Any Stock used to exercise options shall bevalued at its fair market value on the date of the exercise of the option.

 

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(b)                                 In the eventthat the exercise price is satisfied by shares withheld from the shares ofStock otherwise deliverable to the optionee, the Committee may issue theoptionee an additional option, with terms identical to the option agreementunder which the option was exercised, entitling the optionee to purchaseadditional shares of Stock equal to the number of shares so withheld but at anexercise price equal to the fair market value of the Stock on the grant date ofthe new option.

 

13.                                 WithholdingTaxes.

 

(a)                                  No Stock shallbe granted or sold under the Plan to any individual, no option or SAR may beexercised and no RSU shall be settled, until the individual has madearrangements acceptable to the Committee for the satisfaction of federal, stateand local income and employment tax withholding obligations, including withoutlimitation obligations incident to the receipt of Stock under the Plan, thelapsing of restrictions applicable to such Stock, the failure to satisfy theconditions for treatment as incentive stock options under applicable tax law orthe receipt of cash payments.  Upon theexercise of a stock option of SAR, the settlement of Restricted Stock Units orthe lapsing of a restriction on Stock issued under the Plan, the Company (orthe optionee’s or shareholder’s employer) may withhold from the sharesotherwise deliverable to the optionee upon such exercise, or require theshareholder to surrender shares of Stock as to which the restriction haslapsed, such number of shares having a fair market value sufficient to satisfyfederal, state and local income and employment tax withholding obligations.

 

(b)                                 In the eventthat such tax withholding is satisfied by the Company or the optionee’semployer withholding shares of Stock otherwise deliverable to the optionee, theCommittee may issue the optionee an additional option, with terms identical tothe option agreement under which the option was exercised, entitling theoptionee to purchase additional shares of Stock equal to the number of sharesso withheld but at an exercise price equal to the fair market value of theStock on the grant date of the new option.

 

14.                                 Restrictions onTransfer of Shares.  TheCommittee may require that the Stock acquired pursuant to the Plan be subjectto such restrictions and agreements regarding sale, assignment, encumbrances orother transfer as are in effect among the shareholders of the Company at thetime such Stock is acquired, as well as to such other restrictions as theCommittee shall deem appropriate.

 

15.                                 Change inControl.

 

(a)                                  For purposes ofthis Section 15, a “Change in Control” shall be deemed to occur upon:

 

(i)                                     the direct orindirect acquisition by any person or related group of persons (other than anacquisition from or by the Company or by a Company-sponsored employee benefitplan or by a person that directly or indirectly controls, is controlled by, oris under common control with, the Company) of beneficial ownership (within themeaning of

 

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Rule 13d-3of the Securities Exchange Act of 1934, as amended) of securities possessingmore than fifty percent (50%) of the total combined voting power of the Company’soutstanding Stock;

 

(ii)                                  a change in thecomposition of the Board over a period of thirty-six (36) months or less suchthat a majority of the Board members cease, by reason of one or more contestedelections for Board membership or by one or more actions by written consent ofshareholders, to be comprised of individuals who either (a) have beenBoard members continuously since the beginning of such period or (b) havebeen elected or nominated for election as Board members during such period byat least a majority of the Board members described in clause (a) whowere still in office at the time such election or nomination was approved bythe Board;

 

(iii)                               approval by theCompany’s shareholders of a merger or consolidation in which the Company is notthe surviving entity, except for a transaction the principal purpose of whichis to change the state in which the Company is incorporated;

 

(iv)                              approval by theCompany’s shareholders of (x) the sale, transfer or other disposition ofall or substantially all of the assets of the Company (including the capitalstock of the Company’s subsidiary corporations) or (y) the completeliquidation or dissolution of the Company; or

 

(v)                                 approval by theCompany’s shareholders of any reverse merger in which the Company survives asan entity but in which securities possessing more than fifty percent (50%) ofthe total combined voting power of the Company’s outstanding securities aretransferred to a person or persons different from those who held suchsecurities immediately prior to such merger.

 

(b)                                 In itsdiscretion, the Committee may provide in any stock option, SAR, RestrictedStock Unit, Stock bonus or Stock purchase agreement (or in an amendmentthereto) evidencing an option, SAR, Restricted Stock Unit, Stock bonus or Stockpurchase hereunder that, in the event of any Change in Control, all or aportion of any outstanding options or SARs covered by such an agreement shallautomatically become vested, nonforfeitable and exercisable, and that all or aportion of any Restricted Stock Unit or restricted Stock covered by such anagreement shall automatically become released from restrictions on transfer andrepurchase or forfeiture rights, immediately prior to the specified effectivedate of the Change in Control.

 

Ifthe Committee determines to incorporate a Change in Control provision in anyoption, SAR or Restricted Stock Unit agreement hereunder, the agreement mayprovide that, (a) in the event of a Change in Control described in clauses(i), (ii) and (v) above, the option or SAR shall remain exercisablefor the remaining term of the option or SAR and (b) in the event of aChange in Control described in clauses (iii) or (iv), the option, SAR orRestricted Stock Unit shall terminate as of the effective date of the merger,disposition of assets, liquidation or dissolution described therein.  The Committee may in its sole discretionprovide in any option, SAR or Restricted Stock Unit agreement that, upon anyChange in Control described in clauses

 

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(i) through(v) of Section 15(a), the award shall terminate as of the effectivedate of such Change in Control unless it is assumed by the successorcorporation or parent thereof.  In noevent shall any option or SAR under the Plan be exercised after the expirationof the term provided for in the related stock option or SAR agreement pursuantto Section 6(b) or Section 8.

 

16.                                 ShareholderApproval.  The Planshall become effective upon its approval by the holders of a majority of theCompany’s shares voting (in person or by proxy) at a shareholders’ meeting heldwithin 12 months of the Board’s adoption of the Plan.

 

17.                                 Use of Proceeds.  Cash proceeds realized from the exercise ofoptions granted under the Plan or from other sales of Stock under the Planshall constitute general funds of the Company.

 

18.                                 Rule 16b-3Compliance.  Withrespect to persons subject to Section 16 of the Securities Exchange Act of1934, transactions under the Plan are intended to comply with all applicableconditions of Rule 16b-3.  To theextent any provision of the Plan or action by the Committee fails to so comply,it shall be deemed null and void, to the extent permitted by law and deemedadvisable by the Committee.  Moreover, inthe event the Plan does not include a provision required by Rule 16b-3 tobe stated therein, such provision (other than one relating to eligibilityrequirements or the price and amount of awards) shall be deemed automaticallyto be incorporated by reference into the Plan insofar as persons subject toSection 16 are concerned.

 

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