Exhibit
4.1


 


FARECHASE.COM, INC.


2000
EQUITY INCENTIVE PLAN, As Amended


 


1.             Purpose.  The purpose of the Farechase.com, Inc. 2000
Equity Incentive Plan (the “Plan@) is to establish a flexible vehicle through
which Farechase.com, Inc., a Delaware corporation (the “Company”), can offer
equity-based compensation incentives to eligible personnel.  Awards under the Plan may be in the form of
(a) options to purchase shares of the Company’s common stock, $.001 par value
(“Common Stock”), including options intended to qualify as “incentive stock
options” (“ISOs”) within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”), and options which do not qualify as ISOs
(“NQSOs”), and (b) restricted shares of Common Stock.


 


2.             Administration.  The Plan shall be administered by a
committee (the “Committee”) of at least two directors appointed by the Board of
Directors of the Company (the “Board”) whose members shall serve at the
pleasure of the Board.  Subject to the
provisions of the Plan, the Committee, acting in its sole and absolute
discretion, shall have full power and authority to (a) select the persons to
whom awards shall be granted under the Plan, (b) grant awards to such persons,
(c) prescribe the terms and conditions of such awards, (d) interpret and apply
the provisions of the Plan and of any agreement or other document evidencing an
award granted under the Plan,  and (e)
take such other action as may be necessary or desirable in order to carry out
the provisions, intent and purpose of the Plan.  Notwithstanding anything herein to the contrary, the Board may,
in its sole discretion, at any time and from time to time, grant awards under
the Plan or administer the Plan.  In
such event, the Board shall have all of the authority and responsibility
granted to the Committee herein.  The
Company shall indemnify and hold harmless each member of the Board and the
Committee and any employee of the Company or its affiliates who provides
assistance with respect to the administration or interpretation of the Plan
from and against any loss, cost, liability (including any sum paid in
settlement of a claim with the approval of the Board), damage and expense
(including legal and other expenses incident thereto) arising out of or
incurred in connection with the Plan, unless and except to the extent
attributable to such person’s fraud or wilful misconduct.


 


3.             Eligibility.  Awards under the Plan may be granted to such
officers, directors, employees (including prospective employees), consultants
and other persons who may perform services for the Company or its subsidiaries,
as the Committee may select.  In
granting awards under the Plan, the Committee shall give consideration to the
functions and responsibilities of a potential recipient, the potential recipient’s
previous and/or expected future contributions to the business of the Company
and its subsidiaries and such other factors as the Committee deems relevant
under the circumstances.


 


4.             Share
Limitations.  Subject to increase or
decrease as provided in Section 10 below, the maximum number of shares of
Common Stock that may be issued under the Plan is 279,253.  For this purpose, the following shares shall
be deemed not to have been issued under the Plan and shall remain available for
future issuance: (a) shares covered by the unexercised portion of an option
that terminates, expires or is canceled, (b) shares of restricted stock that
are forfeited or repurchased, and (c) shares that are withheld in order to pay
the purchase price for shares covered by an award or to satisfy the tax
withholding obligations associated with an


 

















 


award.  Shares of Common Stock available for
issuance under the Plan may be either authorized and unissued or held by the
Company in its treasury.  No fractional
shares of Common Stock will be issued under the Plan.


 


5.             Stock
Options.  Subject to the provisions
of the Plan, the Committee may grant options to eligible persons upon such
terms and conditions as the Committee deems appropriate.  The terms and conditions of each option will
be evidenced by a written option agreement or other instrument approved for
this purpose by the Committee.


 


(a)           Exercise
Price.  The exercise price per share
of Common Stock covered by an option may not be less than the par value of the
Common Stock on the date the option is granted, provided that the exercise
price per share of Common Stock covered by an ISO may not be less than the fair
market value of the Common Stock on the date the ISO is granted (or 110% of the
fair market value in the case of an optionee who, at the time the option is
granted, owns stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or a “subsidiary” of the Company within
the meaning of Section 424 of the Code).


 


(b)           Option
Term.  No option granted under the
Plan may be exercisable more than ten (10) years after the date the option is
granted (or, in the case of an ISO granted to a 10% stockholder, five (5)
years).


 


(c)           Vesting
Conditions.  The Committee may
establish such vesting and other conditions and restrictions on the exercise of
an option and/or upon the issuance of Common Stock in connection with the
exercise of an option as it deems appropriate, including, without limitation,
conditioning the exercise of an option on the attainment of specified
performance criteria and restricting the transfer or sale of shares acquired
pursuant to the exercise of an option prior to an initial public offering of
the Company’s shares.   If the Committee
provides, in its discretion, that any option is exercisable upon the attainment
of certain limitations (including, without limitation, that it is exercisable
only in installments based upon the attainment of specified vesting criteria),
the Committee may waive such limitations on the exercisability at any time
after grant in whole or in part.


 


(d)           Exercise
of Options.  An option may be
exercised by transmitting to the Company: (1) 
a notice specifying the number of shares to be purchased and (2)  payment of the exercise price, together with
the amount, if any, deemed necessary by the Company to enable it to satisfy its
tax withholding obligations associated with such exercise (unless other
arrangements acceptable to the Company are made with respect to the
satisfaction of such withholding obligations). 
The exercise price under an option may be paid in cash, certified check
and/or such other forms of payment as may be permitted by the Committee from
time to time, including, without limitation, shares of Common Stock owned for
at least six (6) months (free and clear of any liens or encumbrances).


 


(e)           Rights
as a Stockholder.  No shares of
Common Stock shall be issued in respect of the exercise of an option until full
payment of the exercise price and the applicable tax withholding obligation has
been made or provided for.  The holder
of an option shall have no rights as a stockholder with respect to any shares
covered by an option until the date such shares


 


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are issued.  Except as otherwise provided herein, no
adjustments shall be made for dividend distributions or other rights for which
the record date is prior to the date such shares are issued.


 


(f)            Other
Conditions.  The Committee may
impose such other terms and conditions on or with respect to the grant or
exercise of an option under the Plan or the issuance of shares of Common Stock
acquired pursuant to any such exercise as it deems necessary or desirable from
time to time, including, without limitation, terms and conditions relating to
the application of federal securities laws, state securities laws and any
applicable rules or regulations promulgated thereunder and/or any exchange or
listing requirements.  Shares issued
pursuant to an option exercised at a time when the Common Stock is not
publicly-traded will be subject to such other restrictions and repurchase
rights as the Committee deems appropriate from time to time.


 


6.             Restricted
Stock.  Subject to the provisions of
the Plan, the Committee may award shares of restricted stock to eligible
persons upon such terms and subject to such conditions and restrictions as the
Committee deems appropriate. The terms and conditions of any restricted stock
shall be evidenced by a written agreement or other instrument approved for this
purpose by the Committee.


 


(a)           Stock
Certificates for Restricted Stock. 
Unless the Committee elects to use a different method (such as, for
example, the issuance and delivery of stock certificates), shares of restricted
stock shall be evidenced by book entries on the Company’s stock transfer
records pending the expiration of restrictions thereon.  If a stock certificate for shares of
restricted stock is issued in the name of the grantee, it will bear an
appropriate legend to reflect the nature of the restrictions applicable to the
shares represented by the certificate, and the Committee may require that any
or all such stock certificates be held in custody by the Company until the
applicable restrictions have lapsed. 
The Committee may establish such other conditions as it deems
appropriate in connection with the issuance of certificates for shares of
restricted stock, including, without limitation, a requirement that the grantee
deliver a duly signed stock power, endorsed in blank, for the shares covered by
the award.


 


(b)           Purchase
Price.  The purchase price payable
for restricted stock shall be fixed by the Committee and, to the extent
permitted by applicable law, may be as low as zero.


 


(c)           Restrictions
and Vesting.  The Committee may
establish such conditions and restrictions on the vesting of restricted stock
as it deems appropriate (including, without limitation, conditions and
restrictions based upon continued service, the attainment of specified
performance goals and/or other factors and criteria deemed relevant for this
purpose) and the Committee may accelerate the vesting of restricted stock or
waive the conditions and restrictions on vesting in whole or in part at any
time after grant.  Except as otherwise
specifically provided herein or in a restricted stock agreement, the Company
shall have the right to repurchase a recipient’s shares of restricted stock at
the price paid therefor if the recipient’s employment or other service with the
Company and its subsidiaries terminates before the vesting conditions applicable
to the shares are satisfied and/or before any other restrictions to which the
shares are subject have lapsed.


 


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(d)           Rights
as a Stockholder.  Except to the
extent otherwise provided by the Committee, the holder of shares of restricted
stock awarded under the Plan shall possess all incidents of ownership of such
shares including, the right to receive dividends with respect to such shares,
the right to vote such shares and, subject to the satisfaction of the
applicable vesting or other conditions, the right to tender or transfer such
shares.  Any shares, securities or
property (other than cash) representing a dividend or distribution or return of
capital on shares of restricted stock shall be subject to the same restrictions
and other conditions as the restricted stock. 
Except as otherwise provided by the Committee, the payment of cash
dividends or distributions prior to the satisfaction of the applicable vesting
or other conditions applicable to shares of restricted stock shall be deferred
until such conditions are satisfied (and such amounts shall not bear interest
during such period of deferral).


 


(e)           Lapse
of Restrictions.  If and when the
vesting conditions and other restrictions applicable to restricted stock are
satisfied, a certificate for the shares covered by the award, to the extent
vested and free of restrictions, shall be delivered to the holder.  All legends shall be removed from said
certificates at the time of delivery except as otherwise required by applicable
law.


 


(f)            Other
Conditions.  The Committee may
impose such other conditions with on or respect to the issuance of restricted
stock or the lapse of restrictions thereon as it deems necessary or desirable
from time to time, including, without limitation, terms and conditions relating
to the application of federal or state securities laws and any applicable rules
or regulations promulgated thereunder and/or any exchange or listing
requirements.   Shares which otherwise
become unrestricted at a time when the Common Stock is not publicly traded will
be subject to such other restrictions and repurchase rights as the Committee
deems appropriate from time to time.


 


7.             Fair
Market Value.  For all purposes of
the Plan, the fair market value of a share of the Common Stock on any date
shall be determined by the Committee.


 


8.             Non-Transferability
and Other Limitations. No option granted under the Plan shall be
transferable by the recipient other than upon the recipient’s death to a
beneficiary designated by the recipient in a manner acceptable to the
Committee, or, if no designated beneficiary shall survive the recipient,
pursuant to the recipient’s will or by the laws of descent and
distribution.  All options shall be
exercisable during the recipient’s lifetime only by the recipient. Shares of
restricted stock may not be transferred prior to the date on which such shares
have vested and are free of any applicable restriction imposed hereunder.  Except as otherwise specifically provided by
law or the provisions hereof, no award received under the Plan may be
transferred in any manner, and any attempt to transfer any such award shall be
null and void.  Notwithstanding the
foregoing, the Committee may determine at the time of grant or thereafter that
a NQSO is transferable by an optionee in whole or part to such persons, under
such circumstances, and subject to such conditions as the Committee may
prescribe.


 


9.             Termination
of Employment or Service.  Unless
otherwise determined by the Committee at grant or, if no rights of the
recipient are thereby reduced, thereafter, and subject to earlier termination
in accordance with the provisions hereof, the following rules apply with


 


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regard to awards held by
a recipient at the time of his or her termination of employment or other
service with the Company and its subsidiaries.


 


(a)           Rules
Applicable to Stock Options.


 


(i)            Termination
by Reason of Death/Disability.  If
an optionee’s employment or service terminates by reason of death or Disability
(as defined below), then (i) any option held by the optionee which is not then
exercisable, shall thereupon terminate, and (ii) any option held by the
optionee which is then exercisable shall remain exercisable by the optionee (or
the deceased optionee’s beneficiary) for a period of one hundred eighty (180)
days following such termination of employment or service or, if sooner, until
the expiration of the stated term of the option, and, to the extent not
exercised within such period, shall thereupon terminate.  For purposes of the Plan, unless the
Committee determines otherwise at the time of grant, the term Disability shall
mean the inability of an individual to perform the customary duties of his or
her employment or other service for the Company or a subsidiary by reason of a
physical or mental incapacity which is expected to result in death or to be of
indefinite duration.


 


(ii)           Termination
for Cause.  If an optionee’s
employment or service is terminated by the Company or a subsidiary for Cause
(as defined below) or if, at the time of such termination, grounds for a
termination for Cause exist, then any option held by the optionee (whether or
not then otherwise exercisable) shall immediately terminate and cease to be
exercisable.  For purposes of the Plan,
a termination for Cause shall mean, unless the Committee determines otherwise
at the time of grant (A) in the case where there is no employment or consulting
agreement between the recipient and the Company or its subsidiaries at the time
of grant or where such an agreement exists at the time of grant but does not
define Acause” (or words of like import), a termination classified by the
Company or a subsidiary as a termination due to an individual’s dishonesty,
fraud, insubordination, willful misconduct, refusal to perform services or
materially unsatisfactory performance of his or her duties or unauthorized use
or disclosure to any person or entity of any confidential information or trade
secrets of the Company or its subsidiaries, or (B)  in the case where there is an employment or consulting agreement
between the recipient and the Company or a subsidiary at the time of grant that
defines “cause” (or words of like import), a termination that is or would be
deemed for Acause” (or words of like import) under such agreement.


 


(iii)          Other
Termination.  If an optionee’s
employment or service terminates for any reason (other than death, Disability
or Cause or at a time when Cause exists) or no reason, then (i) any option held
by the optionee, which is not then exercisable shall thereupon terminate, and
(ii) any option held by the optionee which is then exercisable shall remain
exercisable during the thirty (30) day period following such termination or, if
sooner, until the expiration of the stated term of the option and, to the
extent not exercised within such period, shall thereupon terminate.


 


(b)           Rules
Applicable to Restricted Stock. 
Upon the termination of a recipients’s employment or service for any
reason (including, without limitation, death or Disability) or no reason,
unless the Committee determines otherwise at the time of grant, shares of
restricted stock which have not yet become fully vested shall be forfeited and
any certificate


 


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therefor or book entry
with respect thereto or other evidence thereof shall be canceled.  The Company shall pay the terminated
recipient or the beneficiary of a deceased beneficiary an amount equal to the
amount paid by the recipient for the acquisition of the shares of restricted
stock that are forfeited.


 


10.           Capital
Changes; Change in Control; Merger.


 


(a)           Adjustments
Upon Changes in Capitalization.  The
aggregate number and class of shares for which awards may be granted under the
Plan, the number and class of shares covered by each outstanding award and, if
applicable, the exercise price per share shall all be equitably adjusted to
reflect any change in the Common Stock by reason of a stock split, reverse
stock split, stock dividend or like capital adjustment or to reflect a
conversion or exchange of the Common Stock for other securities as a result of
a merger, consolidation or reorganization.


 


(b)           Change
in Control.   The Committee may
provide in any award agreement for the effect on the award of a Achange in
control” of the Company or any of its subsidiaries or affiliates , including,
to the extent applicable, the acceleration of the exercisability of, or the
lapse of restrictions or deemed satisfaction of goals with respect to, any
outstanding award.


 


(c)           Merger;
Consolidation.   In the event of a
merger, consolidation, mandatory share exchange or other similar business
combination of the Company with or into any other entity (ASuccessor Entity”)
or any transaction in which another person or entity acquires all or
substantially all of the issued and outstanding Common Stock or assets of the
Company, outstanding awards may be assumed or equivalent awards may be
substituted by the Successor Entity or a parent or subsidiary of the Successor
Entity, provided that, if and to the extent that outstanding options are not
assumed or replaced with substantially equivalent options, then the optionees
shall be permitted to exercise their outstanding options in whole or in part
(whether or not otherwise vested or exercisable) for a period of at least
fifteen (15) days prior to such transaction, and any outstanding options which
are not exercised before such transaction shall thereupon terminate.


 


(d)           Fractional
Shares.  In the event of any
adjustment in the number of shares covered by any award pursuant to the
provisions hereof, any fractional shares resulting from such adjustment shall
be disregarded, and each such award shall cover only the number of full shares
resulting from the adjustment.


 


(e)           Determinations
Final.  All adjustments under this
Section 10 shall be made by the Committee, and its determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding and
conclusive.


 


11.           Tax
Withholding.  As a condition to the
exercise of any option or the delivery of any shares of Common Stock pursuant
to the exercise of any option or the lapse of restrictions on any shares of
Common Stock, or in connection with any other event that gives rise to a
federal or other governmental tax withholding obligation on the part of the
Company or its subsidiaries relating to an option or shares, (a) the Company
and its subsidiaries may deduct or withhold (or cause to be deducted or
withheld) from any payment or distribution to an award recipient


 


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whether or not pursuant
to the Plan or (b) the Company and its subsidiaries shall be entitled to
require that the award recipient remit cash to the Company or its subsidiaries
(through payroll deduction or otherwise), in each case in an amount sufficient
in the opinion of the Company to satisfy such withholding obligation.  If the event giving rise to the withholding
obligation involves a transfer of shares of Common Stock, then, unless the
applicable award agreement provides otherwise, at the discretion of the
Committee, the award recipient may satisfy the withholding obligation described
under this Section 11 by electing to have the Company withhold shares of Common
Stock (which withholding will be at a rate not in excess of the statutory
minimum rate) or by tendering previously-owned shares of Common Stock, in each
case, having a fair market value equal to the amount of tax to be withheld (or
by any other mechanism as may be required or appropriate to conform with local
tax and other rules).


 


12.           Amendment
and Termination.  The Board may
amend or terminate the Plan, provided that no such action may affect adversely
the rights of the holder of any outstanding award without the consent of the
holder.  Except as otherwise provided in
Section 10, any amendment which would increase the aggregate number of shares
of Common Stock for which awards may be granted under the Plan or modify the
class of employees eligible to receive options under the Plan shall, to the
extent necessary or desirable to comply with applicable law, be subject to the
approval of the Company’s stockholders. 
The Committee may amend the terms of any agreement or instrument issued
hereunder at any time and from time to time; provided, however, that any
amendment which would adversely affect the rights of the holder of any
outstanding awards may not be made without his or her consent.


 


13.           No
Rights Conferred.  Nothing contained
herein shall be deemed to give any individual any right to receive any awards
under the Plan or to be retained in the employ or service of the Company or any
subsidiary or affiliate of the Company.


 


14.           Decisions
and Determinations to be Final.  All
decisions and determinations made by the Board pursuant to the provisions
hereof and, except to the extent rights or powers under the Plan are reserved
specifically to the discretion of the Board, all decisions and determinations
of the Committee shall be final, binding and conclusive on all parties.


 


15.           Governing
Law.  The Plan shall be governed by
the laws of the State of New York, without regard to its principles of
conflicts of law.


 


16.           Term
of the Plan.  The Plan shall be
effective as of the date of its adoption by the Board, subject to the approval
of the stockholders of the Company within one year from the date of such
adoption by the Board.  The Plan shall
terminate on the tenth anniversary of the date of its adoption by the Board,
unless sooner terminated by the Board. 
The rights of any person with respect to an award made under the Plan
that is outstanding at the time of the termination of the Plan shall not be
affected solely by reason of the termination of the Plan and shall continue in
accordance with the terms of the award (as then in effect or thereafter amended)
and the Plan.


 


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