NON-EMPLOYEE DIRECTOR STOCK OPTION
AND RETAINER PLAN
OF
PFSWEB, INC.
WHEREAS,
PFSweb, Inc., a Delaware corporation (the “Company”)
has adopted that certain 1999 Non-Employee Director Stock Option
and Retainer Plan (as amended to date, the “Plan”);
and
WHEREAS,
subject to the requisite approval of the Company’s
stockholders at the Company’s 2009 Annual Meeting of
Stockholders, the Company has authorized and adopted certain
amendments to the Plan;
NOW,
THEREFORE, in order to implement and effectuate said amendments,
the Plan, as so amended, shall read as follows:
PFSweb,
Inc., a corporation organized under the laws of the State of
Delaware, hereby adopts this Non-Employee Director Stock Option and
Retainer Plan. The purposes of this Plan are as follows:
(1) To
further the growth, development and financial success of the
Company by providing incentives to its non-employee Directors by
assisting them to become owners of the Company’s Common Stock
and thus to benefit directly from its growth, development and
financial success.
(2) To
enable the Company to obtain and retain the services of qualified
non-employee Directors in order to contribute to the long-range
success of the Company by providing and offering them an
opportunity to become owners of the Company’s Common
Stock.
Whenever
the following terms are used in this Plan, they shall have the
meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and
neuter and the singular shall include the plural, where the context
so indicates.
“Board”
shall mean the Board of Directors of the Company.
“Code”
shall mean the Internal Revenue Code of 1986, as
amended.
“Committee”
shall mean the Committee appointed by the Board, as provided in
Section 6.1.
“Company”
shall mean PFSweb, Inc., a Delaware corporation.
“Director”
shall mean a member of the Board who is not an Employee.
Section 1.6 — Effective
Date
“Effective
Date” shall mean July 1, 1999.
“Employee”
shall mean any employee (as defined in accordance with the
regulations and revenue rulings then applicable under Section
3401(c) of the Code) of the Company, or of any corporation which is
then a Subsidiary.
Section 1.8 — Exchange Act
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.9 — Non-Qualified
Option
“Non-Qualified
Option” shall mean an Option which is not an incentive stock
option and is not qualified under Section 422 of the
Code.
“Officer”
shall mean an officer of the Company, as defined in
Rule 16a-1(f) under the Exchange Act, as such Rule may be
amended in the future.
“Option”
shall mean an option to purchase Common Stock of the Company
granted under the Plan.
“Optionee”
shall mean a Director to whom an Option is granted under the
Plan.
Section 1.13 — Parent
Corporation
“Parent
Corporation” shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations
other than the Company then owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
“Plan”
shall mean this Non-Employee Director Stock Option and Retainer
Plan of PFSweb, Inc.
“Retainer”
shall mean the annual cash retainer payable to each Director for
services as a member of the Board and any committee or committees
of the Board.
Section 1.16 —
Rule 16b-3
“Rule 16b-3”
shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended in the future.
“Secretary”
shall mean the Secretary of the Company.
Section 1.18 — Securities
Act
2
“Securities
Act” shall mean the Securities Act of 1933, as
amended.
“Shares”
shall mean shares of the Company’s Common Stock.
Section 1.20 — Subsidiary
“Subsidiary”
shall mean any corporation in an unbroken chain of corporations
beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock
possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such
chain.
Section 1.21 — Termination
“Termination”
shall mean the time when the Director no longer serves as a member
of the Board, including, but not by way of limitation, a
termination by resignation, discharge, death or
retirement.
Section 2.1 — Shares Subject to
Plan
The
Shares of stock subject to this Plan shall be shares of the
Company’s Common Stock. The aggregate number of such Shares
which may be issued pursuant to this Plan shall be
155,643.
Section 2.2 — Unexercised
Options
If
any Option expires or is canceled without having been fully
exercised, the number of Shares subject to such Option but as to
which such Option was not exercised prior to its expiration or
cancellation, may again be optioned hereunder, subject to the
limitations of Section 2.1.
Section 2.3 — Changes in
Company’s Shares
In
the event that the outstanding Shares of Common Stock of the
Company are hereafter changed into or exchanged for a different
number or kind of shares or other securities of the Company, or of
another corporation, or in the event of any other capital
transaction involving the outstanding shares of Common Stock of the
Company as the Committee shall determine in its sole discretion,
whether by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, stock dividend,
combination of shares or otherwise, appropriate adjustments shall
be made by the Committee in the number and kind of Shares which may
be issued hereunder, including adjustment to the number, exercise
price and kind of shares for the purchase of which Options may be
granted, and further including adjustments of the limitations in
Section 2.1 on the maximum number and kind of shares which may
be issued hereunder and adjustments to the number of Options set
forth in Section 3.5 below.
RETAINER FEES AND GRANTING OF
OPTIONS
Section 3.1 — Payment of
Retainer
(a) Each
Director may elect under the Plan to receive payment of any
Retainer (in such installments as such Retainer shall be payable)
in Shares, in lieu of cash, by submitting a written election
(the
3
“Notice
of Election”) to the Company. The Notice of Election shall
become effective six months following the date of the Notice of
Election or such earlier date as may be permitted under Rule 16b-3
(the “Election Effective Date”) and, from and after the
Election Effective Date, all Retainers payable to the electing
Director (whether in installments or otherwise) shall be payable in
Shares in the manner set forth herein.
(b) Subject
to the foregoing, each Notice of Election shall become effective on
its Election Effective Date and shall continue in effect until
revoked by the electing Director in a written notice of revocation
(the “Notice of Revocation”) delivered to the Company;
provided, however, that no Notice of Revocation shall become
effective until six months following the date of the Notice of
Revocation or such earlier date as may be permitted under
Rule 16b-3.
(c) If
no Notice of Election is submitted to the Company, and prior to any
Election Effective Date, all Retainers shall be payable in
cash.
Section 3.2 — Number of
Shares
The
number of Shares to be issued to each Director electing to have his
or her Retainer paid in Shares shall be determined by dividing the
dollar amount of the then payable Retainer by the fair market value
of the Shares as of the most recent trading day immediately prior
to the date the Retainer is otherwise payable. No fractional Shares
shall be issued and any fractional Share shall be rounded to the
nearest whole Share. Subject to the terms and provisions hereof,
all Shares shall be issued in certificate form in the name of the
Director (or any designee) as promptly as practicable following the
date of payment. For purposes of this Section, fair market value
shall be determined in accordance with Section 4.2(b)
below.
Section 3.3 — Eligibility
Each
Director shall be granted Options in accordance with the provisions
set forth herein.
Section 3.4 — Non-Qualification of
Options
Each
Option shall be a Non-Qualified Option.
Section 3.5 — Granting of
Options
Each
person who is a Director immediately following each annual meeting
of stockholders of the Company shall receive an Option to purchase
4,255 Shares as of the date of such annual meeting; provided that
such Director shall have attended at least 75% of the meetings of
the Board (which may include committee meetings) during the most
recent completed fiscal year prior to such annual meeting (or such
shorter period of time as such Director held office during such
fiscal year).
Section 4.1 — Option
Agreement
Each
Option shall be evidenced by a written Stock Option Agreement,
which shall be executed by the Optionee and an authorized Officer
of the Company and which shall contain such terms and conditions as
are consistent with the Plan.
Section 4.2 — Option Price
(a) The
price of the Shares subject to each Option shall be equal to 100%
of the fair market value of such Shares on the date such Option is
granted.
4
(b) For
purposes of the Plan, the fair market value of a Share of the
Company’s Common Stock as of a given date shall be:
(i) the closing price of a Share of the Company’s Common
Stock on the principal exchange on which Shares of the
Company’s Common Stock are then trading; or (ii) if such
Common Stock is not traded on an exchange but is quoted on NASDAQ
or a successor quotation system, (1) the last sales price (if
the Company’s Common Stock is then listed as a National
Market Issue under the NASD National Market System) or (2) the
mean between the closing representative bid and asked prices (in
all other cases) for the Company’s Common Stock, in
each
|
