PRELIMINARY COPY
BARPOINT.COM, INC.
One East Broward Blvd., Suite 410
Ft. Lauderdale, FL 33301
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON APRIL 4, 2000 AT 12:00 P.M.
To the Shareholders of
BarPoint.com, Inc.
Notice is hereby given that the Annual Meeting of Shareholders of BarPoint.com,
Inc., a Delaware corporation (the "Company"), will be held at The Riverside
Hotel, 620 East Las Olas Blvd., Fort Lauderdale, Florida 33301 on April 4, 2000
at the hour of 12:00 noon local time for the following purposes:
(1) To elect seven (7) Directors of the Company for the following
fiscal year;
(2) To approve the Company's 1999 Equity Incentive Plan (the "Plan");
(3) To approve options granted under the 1999 Equity Incentive
Plan, as approved by the Company's Board of Directors, to
certain employees of the Company; and
(4) To approve an amendment to the Company's Certificate of
Incorporation to increase the authorized shares of Common
Stock which the Company shall have authority to issue from
20,000,000 shares of a par value of $.001 per share to
100,000,000 shares of a par value of $.0001 per share.
(5) To transact such other business as may properly come before
the Meeting.
Only shareholders of record at the close of business on March 1, 2000
are entitled to notice of and to vote at the meeting or any adjournment thereof.
By Order of the Board of Directors
Jeffrey W. Sass, Secretary
March 1, 2000
IF YOU WISH TO VOTE IN FAVOR OF EACH OF THE PROPOSALS AND FOR
THE NOMINEES PRESENTED, CHECK THE APPROPRIATE BOX AND SIGN,
DATE AND RETURN THE ENCLOSED PROXY IN THE ENCLOSED ENVELOPE
WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES. IN
ANY EVENT, YOUR PROMPT RETURN OF SIGNED AND DATED PROXY WILL
BE APPRECIATED.
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ANNUAL MEETING OF STOCKHOLDERS
OF
BARPOINT.COM, INC.
-----------------
PROXY STATEMENT
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GENERAL INFORMATION
Proxy Solicitation
This Proxy Statement is furnished to the holders of Common Stock, $.001 par
value per share ("Common Stock"), of Barpoint.com, Inc. (the "Company") in
connection with the solicitation of proxies on behalf of the Board of Directors
of the Company for use at the Annual Meeting of Stockholders ("Annual Meeting")
to be held April 4, 2000, or at any continuation or adjournment thereof,
pursuant to the accompanying Notice of Annual Meeting of Stockholders. The
purpose of the meeting and the matters to be acted upon are set forth in the
accompanying Notice of Annual Meeting of Stockholders. The Board of Directors
knows of no other business which will come before the meeting.
Proxies for use at the meeting will be mailed to stockholders
on or about March 3, 2000 and will be solicited chiefly by mail, but additional
solicitation may be made by telephone, telegram or other means of
telecommunications by directors, officers, consultants or regular employees of
the Company. The Company may enlist the assistance of brokerage houses,
fiduciaries, custodians and other like parties in soliciting proxies. All
solicitation expenses, including costs of preparing, assembling and mailing the
proxy material, will be borne by the Company.
Revocability and Voting of Proxy
A form of proxy for use at the meeting and a return envelope
for the proxy are enclosed. Stockholders may revoke the authority granted by
their execution of proxies at any time before their effective exercise by filing
with the Secretary of the Company a written revocation or duly executed proxy
bearing a later date or by voting in person at the meeting. Shares represented
by executed and unrevoked proxies will be voted in accordance with the choice or
instructions specified thereon. If no specifications are given, the proxies
intend to vote "FOR" each of the nominees for director as described in Proposal
No. 1 and "FOR" proposals 2 and 3. Proxies marked
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as abstaining will be treated as present for purposes of determining a quorum
for the Annual Meeting, but will not be counted as voting in respect of any
matter as to which abstinence is indicated. If any other matters properly come
before the meeting or any continuation or adjournment thereof, the proxies
intend to vote in accordance with their best judgment.
Record Date and Voting Rights
Only stockholders of record at the close of business on March
1, 2000 are entitled to notice of and to vote at the Annual Meeting of
Shareholders or any continuation or adjournment thereof. On that date there were
15,404,491 shares of common stock outstanding. Each share of Common Stock is
entitled to one vote per share. Any share of Common Stock held of record on
March 1, 2000 shall be assumed, by the Board of Directors, to be owned
beneficially by the record holder thereof for the period shown on the Company's
stockholder records. The affirmative vote of a majority of the shareholders
present in person or by proxy at the meeting is required for the election of the
directors to be elected by such shares.
PROPOSAL NO. 1
ELECTION OF DIRECTORS
The By-Laws of the Company provide for a Board of Directors of
not less than three (3) members. The Board of Directors currently consists of
seven (7) members. At the meeting, seven (7) directors will be elected to serve
until the 2000 Annual Meeting of Stockholders and until their successors have
been elected and qualified. Present vacancy or vacancies which occur during the
year may be filled by the Board of Directors, and any directors so appointed
must stand for reelection at the next annual meeting of stockholders. All
current directors have been nominated for re-election. The nominees to be voted
on by stockholders are Messrs. Rothschild, Jeffrey W. Sass, Siegel, David W.
Sass, Schilowitz, Linn, and Jaeggi.
All nominees have consented to be named and have indicated
their intent to serve if elected. The Company has no reason to believe that any
of these nominees are unavailable for election. However, if any of the nominees
become unavailable for any reason, the persons named as proxies may vote for the
election of such person or persons for such office as the Board of Directors of
the Company may recommend in the place of such nominee or nominees. It is
intended that proxies, unless marked to the contrary, will be voted in favor of
the election of Messrs. Rothschild, Jeffrey W. Sass, Siegel, David W. Sass,
Schilowitz, Linn, and Jaeggi.
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NOMINEES FOR ELECTION
The Directors of the Company and a brief summary of their business experience
and certain other information with respect to them are set forth below:
Name Age Capacities In Which Served
Leigh M. Rothschild 49 CEO and Chairman
Jeffrey W. Sass 40 Chief Operating Officer,
Executive Vice President
and Secretary
Seymour G. Siegel 57 Treasurer and Director
David W. Sass 64 Director
Matthew C. Schilowitz 36 Director
Jay Howard Linn 65 Director
Kenneth Jaeggi 53 Director
The biographies of the directors are as follows:
Leigh M. Rothschild. Prior to founding the Company in October 1998, Mr.
Rothschild was President and Chief Executive Officer of Intracorp Entertainment,
Inc., a consumer software company with worldwide product distribution that he
founded in 1984. Mr. Rothschild is a former presidential appointee to the
High-Resolution Board for the United States under former President George W.
Bush. He has served two Florida governors on technology boards and served as a
special advisor to the their Florida Secretary of Commerce, now Governor, Jeb
Bush. Prior to founding Intracorp, Mr. Rothschild was a real estate investor and
founded several high technology companies. Mr. Rothschild has an undergraduate
degree from and has also done post graduate work at the University of Miami.
Jeffrey W. Sass. Prior to joining the Company in June 1999, Mr. Sass formed, in
July 1997, the Marketing Machine, a full-service marketing agency and consulting
firm, servicing clients in computer hardware, software and other industries.
From April 1995 through July 1997 he served as Vice President of marketing at
Intracorp Entertainment. From July 1994 through April 1995 Mr. Sass was the
director of marketing of Gametek, Inc. Mr. Sass is a graduate of Cornell
University.
Seymour G. Siegel. Mr. Siegel became a director of the Company in July 1995. Mr.
Siegel is a CPA and from 1969-1990 was senior partner and founder of Siegel Rich
& Co. P.C. (Siegel
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Rich), an accounting firm specializing in privately owned businesses and high
net worth individuals. In 1990, Siegel Rich merged with M.R. Weiser & Co. Mr.
Siegel stayed on as a senior partner until 1994, when he co-founded Siegel Rich
Incorporated, a firm providing advisory services to businesses regarding mergers
and acquisitions, long-range planning and problem resolution. Mr. Siegel is also
a former director of the Oak Hall Capital Fund and Prime Motor Inns, L.P.
David W. Sass. Mr. Sass has been a director of the Company since July 1995. For
the past 39 years, Mr. Sass has been a practicing attorney in New York City and
is currently a senior partner in the law firm of McLaughlin & Stern, LLP,
counsel to our company. Mr. Sass is a director of Genisys Reservation Systems,
Inc., a company engaged in the Internet travel business; an officer of Westbury
Metals Group, Inc. a company engaged in the refining of precious metals; a
director of Pallet Management Systems, Inc. a company engaged in the manufacture
and repair of wooden pallets and other packaging services and a member and Vice
Chairman of the Board of Trustees of Ithaca College.
Matthew C. Schilowitz. Mr. Schilowitz has been a director of the Company since
its inception in 1995 and from inception until June 3, 1999, was our president
and chairman. Prior to The Harmat Organization, Inc., Mr. Schilowitz was
President of Harmat Homes, Inc. Mr. Schilowitz has a B.A. in finance from the AB
Freeman School of Business at Tulane University.
Jay Howard Linn. Mr. Linn has been a director of the Company since July 1999.
Since 1995, he has practiced in his own firm as a certified public accountant.
Prior to going out on his own, he was a partner at the CPA firm of Moss & Linn
for 14 years in North Miami, Florida.
Kenneth Jaeggi. Mr. Jaeggi became a director of the Company in September 1999.
He is the Senior Vice President of Finance and the Chief Financial Officer of
Symbol Technologies, Inc. From May 1996 to May 1997, he was a member of the
Office of the Chairman and the Operating Committee of Electromagnetic Sciences
in Atlanta, GA. From December 1992 until May 1996, Mr. Jaeggi served as Senior
Vice President, Chief Financial Officer and consultant of Scientific-Atlanta,
Inc., a leading producer of cable network and satellite communications systems.
David W. Sass is the father of Jeffrey W. Sass.
Messrs. Leigh M. Rothschild and Jeffrey W. Sass were previously
employed by a company, Intracorp Entertainment, Inc. which on October 4, 1996
filed a voluntary petition for relief under Chapter 11 of the United States
Bankruptcy Code. Messrs. Jeffrey W. Sass and Leigh M. Rothschild were officers
of Intracorp, and are now current officers of the Company. The filing of this
bankruptcy petition was caused, in part, by the failure and subsequent
bankruptcy of two of Intracorp's largest accounts receivable debtors. Intracorp
operated as a debtor-in-possession under case number 96-16276-BKC-RAM, United
States Bankruptcy Court for the Southern District of Florida. On March 20, 1998,
the Bankruptcy Court entered its order converting Intracorps bankruptcy case to
a case under Chapter 7 of the U.S. Bankruptcy Code. Marcia Dunn was appointed as
Chapter 7 Trustee and undertook liquidating the remaining assets of Intracorp.
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Security Ownership of Certain Beneficial Owners
The following tabulation shows the security ownership as of March 1,
2000 of (i) each person known to the Company to be the beneficial owner of more
than 5% of the Company's outstanding Common Stock; (ii) each of the Company's
directors and executive officers and (iii) all directors and executive officers
as a group. As of March 1, 2000, we had 15,404,491 shares of Common Stock issued
and outstanding.
Name & Address Number of Shares Owned Percent of Class
Leigh M. Rothschild (1)(4)
c/o BarPoint.com
One East Broward Blvd. 926,818 6.0%
Suite 410
Ft. Lauderdale, FL 33301
Irrevocable Trust No. III (2)
c/o Jay Howard Linn, Trustee
1160 Kane Concourse, Suite 205 4,973,328 32.3%
Miami, Fl. 33154
David W. Sass (3)(7)
c/o McLaughlin Stern, LLP
260 Madison Avenue 69,817 *
New York, NY 10016
Matthew C. Schilowitz (5)
PO BOX 108
Remsenburg, NY 11960 1,976,012 12.8%
Jeffrey W. Sass (6)
c/o BarPoint.com
One East Broward Blvd.
Suite 410 487,192 3.1%
Ft. Lauderdale, FL 33301
Seymour G. Siegel(8) 59,817 *
c/o Siegel Rich, Inc.
295 Madison Avenue
Suite 926
New York, NY 10017
Jay Howard Linn(9) 71,313 *
1160 Kane Concourse, Suite 205
Miami, Fl. 33154
Kenneth Jaeggi(10)
Symbol Technologies
One Symbol Plaza 0 *
Holtsville, NY 11742-1300
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Name & Address Number of Shares Owned Percent of Class
Symbol Technologies(11)
One Symbol Plaza 1,355,789 8.8%
Holtsville, NY 11742-1300
All Officers and Directors 3,590,969 23.3%
as a Group (7 persons)
(1)(3)(4)(5)(6)(7)(8)(9)(10)
* Represents an amount less than one (1%) percent.
(1) Does not include 156,736 shares and options to purchase 16,730 shares at an
exercise price of $1.90 per share, owned by Mr. Leigh M. Rothschild's brother or
156,736 shares and options to purchase 16,730 shares at an exercise price of
$1.90 per share owned by the Rothschild Children Present Interest Trust, nor
4,973,328 shares and options to purchase 548,660 shares at an exercise price of
$1.90 per share, owned by the Irrevocable Trust No. III, in all of such shares
Mr. Leigh M. Rothschild disclaims any beneficial interest.
(2) Does not include 156,736 shares and options to purchase 16,730 shares at an
exercise price of $1.90 per share, owned by The Rothschild Children's Present
Interest Trust nor 31,213 shares and options to purchase 3,343 shares at an
exercise price of $1.90 per share, owned by Jay Howard Linn, the trustee of both
trusts, nor options to purchase 548,660 shares at an exercise price of $1.90 per
share.
(3) Does not include 79,609 shares and options to purchase 8,498 shares at an
exercise price of $1.90 per share, owned by McLaughlin & Stern, LLP, counsel to
the Company, of which firm David W. Sass is a member. David W. Sass is the
father of Jeffrey W. Sass.
(4) Does not include options to purchase 66,908 shares at an exercise price of
$1.90 per share. Includes options to purchase 300,000 shares at $6.97 pursuant
to our company's 1999 Equity Incentive Plan.
(5) Includes options to purchase 190,615 shares at $1.90 per share, options to
purchase 180,000 shares at $6.97 per share, options to purchase 346,049 shares
pursuant to the 1996 Stock Option Plan exercisable at $.30 per share and options
to purchase 576,748 shares at $.30 per share under his former employment
agreement.
(6) Does not include options to purchase 66,650 shares at an exercise price of
$1.90 per share. Includes options to purchase 255,000 shares at $6.97 pursuant
to our company's 1999 Equity Incentive Plan.
(7) Includes options to purchase 40,000 shares pursuant to the Company's 1999
Equity Incentive Plan.
(8) Includes options to purchase 20,000 shares pursuant to the Company's 1999
Equity Incentive Plan.
(9) Includes options to purchase 40,000 shares pursuant to the Company's 1999
Equity Incentive Plan. Does not include shares or options (as set forth in this
table) owned by the Rothschild Children's Present Interest Trust or the
Irrevocable Trust Agreement III. Mr. Linn is a trustee of both trusts. Does not
include options to purchase 3,344 shares at an exercise price of $1.90 per
share.
(10) Does not include 1,315,789 shares owned by Symbol Technologies, which
company Mr. Jaeggi is Senior Vice President and Chief Financial Officer and
disclaims any beneficial ownership thereof.
(11) Includes options to purchase 40,000 shares pursuant to the Company's 1999
Equity Incentive Plan.
Compliance With Section 16(a) of the Securities Exchange Act of1934
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires certain officers, directors, and beneficial owners of more than ten
percent of the Company's common stock to file reports of ownership and changes
in their ownership of our equity securities with the Securities and Exchange
Commission. Based solely on a review of the reports and representations
furnished to us
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during the last fiscal year, the Company believes that each of these persons is
in compliance with all applicable filing requirements.
During the fiscal year ended September 30, 1999 there were 10 meetings
of the Company's Board of Directors. All of the directors at the time of each
meeting were in attendance.
Summary Compensation Table. The following table sets forth the aggregate cash
compensation paid for services rendered to the Company during each of the
Company's last three fiscal years by all individuals who served as the Company's
Chief Executive Officer during the last fiscal year and our company's most
highly compensated executed officers who served as such during the last fiscal
year.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Annual Compensation Long-Term Compensation
Other
Annual
Name and Principal Compensa Securities Underlying
Position Year Salary($) Bonus tion ($) Options SARs
Leigh M. Rothschild(1) 1999 $66,667
Chief Executive
Officer
Jeffrey W. Sass (1) 1999 $50,000
Executive Vice President
Matthew C. Schilowitz(2) 1999 $150,000 190,615 shares of common stock
Director/Consultant 1998 $155,000 576,748 shares of common stock
1997 $105,000 346,049 shares of common stock
</TABLE>
(1) Messrs. Rothschild and Sass were employed by the Company for only four
months of our fiscal 1999 year and salary payments amounts reflect for a partial
year.
(2) The Plan for Incentive Compensation of Matthew C. Schilowitz (the
"Schilowitz Incentive Plan") was adopted by the Board of Directors and
approved by the Company's stockholders on March 1, 1996, amended August 3,
1996, March 24, 1997 and June 19, 1998. Pursuant to the Schilowitz
Incentive Plan, Mr. Schilowitz has been granted an option to purchase up to
an aggregate of 500,000 shares of common stock at $.35 per share, which has
been adopted to 576,748 shares exercisable at $.30 per share.
On March 24, 1997, as part of the Company's 1996 Incentive Stock Option
Plan, Mr. Schilowitz was granted options to purchase 300,000 shares of the
Company's common stock at an exercise price of $2.337 per share, being 110%
of the fair market value of such shares on the date of grant. On June 19,
1998 the Company reduced the exercise price of such options to $.35, and
then later reduced to its current price at $.30 per share and adjusted the
number of shares to 346,049, as a result of anti-dilution provisions
provided in the plan. The options have a duration of five years.
In connection with services rendered, the acquisition agreement Matthew C.
Schilowitz for certain services rendered and to be rendered was awarded
options to purchase an aggregate of 190,615 shares at $1.90 per share,
exercisable over a five year period.
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Employment Agreements
The Company entered into three year employment agreements with Leigh M.
Rothschild and Jeffrey W. Sass and a three year consulting agreement with
Matthew C. Schilowitz. Mr. Rothschild's employment agreement provides for a
base salary of $200,000 in the first year with a raise of $50,000 in each
of the second and third years. Mr. Sass's employment agreement provides for
a base salary of $150,000 in the first year with a raise of $25,000 in each
of the second and third years. In addition, each of Messrs. Rothschild and
Sass is eligible to participate in our Bonus Incentive Plan and our
employee benefit plans, and each receives a car allowance of $750 per
month. Upon termination other than for death or disability, each will
continue to receive his base salary for the remainder of the term and
retain any stock options whether or not vested or exercisable. Under his
consulting agreement, Mr. Schilowitz receives a fee of $150,000 for the
first year, $175,000 for the second year and $200,000 for the third year.
He may participate in our employee benefit plans to the extent eligible and
receives a car allowance of $750 per month. In addition, he will receive a
bonus in the amount of 60% of the bonus granted to Mr. Rothschild, if and
when Mr. Rothschild receives a bonus pursuant to his employment agreement.
Upon termination other than for death or disability, Mr. Schilowitz will
continue to receive his base fee for the remainder of the term and retain
any stock options whether or not vested or exercisable.
Stock Option Plans
In March 1996, the Company adopted a plan for incentive compensation of
Matthew C. Schilowitz, who is currently a director and consultant and was
chairman and president. This plan was amended in August 1996, March 1997
and June 1998. Under this plan, Mr. Schilowitz has been granted an option
to purchase up to an aggregate of 500,000 shares of common stock at $.35
per share, which has been adjusted to 576,748 shares of common stock at an
exercise price of $.30 per share as a result of dilution protection. In
conjunction with the acquisition of BarPoint all such options have become
fully vested.
In February 1996, the Board of Directors adopted the 199 Incentive Stock
Option Plan providing for awards of up to a total of 400,000 shares of our
common stock. In January 1997, the Company granted five year options under
the Plan providing for 10,000 shares at a price of $2.125 per share ($.35
as amended) to four directors and three key employees of The Harmat
Organization. During 1998, 10,000 of these options were forfeited with the
termination of employment of a key employee. During the year ended
September 30, 1999, 60,000 options were exercised.
On March 24, 1997, as part of the Company's 1996 Incentive Stock Option
Plan, Mr. Schilowitz was granted options to purchase 300,000 shares of the
Company's common stock at an exercise price of $2.337 per share, being 110%
of the fair market value of such shares on the date of grant. On June 19,
1998 the Company reduced the exercise price of such options to $.35, and
then later reduced to its current price at $.30 per share and adjusted the
number of shares to 346,049, as a result of anti-dilution provisions
provided in the plan. The options have a duration
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of five years. As part of the acquisition the Company authorized five year
options to purchase 800,000 shares of Common Stock at an exercise price of
$1.90 per share. Such options vest as follows: one-third after June 3,
2000; one-third after June 3, 2001 in the event we achieve revenues of
$24,500,000 in the second year and one third after June 3, 200 in the event
we achieve revenues of $89,500,000 in the third year. To date all of the
options have been granted to certain employees, management and the original
BarPoint.com shareholders.
The 1999 Plan for Incentive Stock Options was adopted by the Board of
Directors on September 17, 1999, subject to stockholder approval,
authorizing us to grant five year options to purchase 1,500,000 shares of
our common stock at fair market value at date of grant, with the exception
of grants to certain officer's at 85% of the fair market value at the date
of grant. To date, 919,000 options have been granted.
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Option/SAR Grant Table
The table below sets forth the following information with respect
to options granted to the named executive officers during fiscal year 1999
and the potential realizable value of such option grants (1) the number of
shares of common stock underlying options granted during the year, (2) the
percentage that such options represent of all options granted to employees
during the year, (3) the exercise price, and (4) the expiration date.
Individual Grants
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Number of Percent of Total
Securities Options/SARs
Underlying Granted to Exercise
Options/SARs Employees in Price Expiration
Granted Fiscal Year (S/Sh) Date
Name
Leigh M. Rothschild................... -0- 0% - -
CEO and Chairman
Jeffrey W. Sass....................... -0- 0% - -
Chief Operating Officer, Executive
Vice President and Secretary
Matthew C. Schilowitz................. 190,615 32.7% $1.90 6/3/2004
former CEO Consultant
Option Exercises and Values for 1999
The table below sets forth the following information with respect
to option exercises during fiscal 1999 by each of the named executive
officers and the status of their options at September 30, 1999 (1) the
number of shares of common stock acquired upon exercise of options during
fiscal 1999, (2) the aggregate dollar value realized upon the exercise of
such options, (3) the total number of exercisable and non exercisable stock
options held at September 30, 1999, and (4) the aggregate dollar value of
in-the-money exercisable options at September 30, 1999.
AGGREGATED
OPTION VALUES ON SEPTEMBER 30, 1999 AGGREGATED
Number of Securities Value of Unexercised
Underlying Unexercised In-the-Money Options
Options at 9/30/99 at 9/30/99(1)
Name Exercisable Unexercisable Exercisable Unexercisable
Leigh M. Rothschild -0- -0- -0- -0-
Jeffrey W. Sass -0- -0- -0- -0-
Matthew C. Schilowitz 1,113,412 -0- $4,580,111.11 -0-
</TABLE>
1. Values are calculated by subtracting the exercise price from the fair market
value of the underlying common stock. For purposes of this table, fair market
value is deemed to be $4.6875, the average of the high and low bids for our
common stock price on the OTC Bulletin Boar on September 30, 1999.
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CERTAIN TRANSACTIONS
The June 3, 1999 Acquisition
The Company's present business and technology was acquired from a Florida
corporation by the name of BarPoint.com, Inc. The Company acquired the Florida
corporation of BarPoint.com, Inc. when the Company, then The Harmat
Organization, Inc., purchased all of the outstanding shares of the Florida
corporation of BarPoint.com, Inc. The transaction was accounted for as a reverse
acquisition, as if the Florida BarPoint acquired our company, due to the fact
that the former shareholders of the Florida BarPoint owned a majority of its
common stock after the transaction. Upon the closing of the acquisition, the
Company changed its name from The Harmat Organization, Inc. to BarPoint.com,
Inc.
The consideration for the acquisition was 6,634,042 shares of the
Company's common stock based upon a negotiated value of $1.90 per share. The
purchase price was subject to adjustment depending upon the value of certain
assets of the Company at the date of closing (June 3, 1999) and over a 45 day
period following the closing.
A group of investors headed by Matthew C. Schilowitz, a shareholder and
former President and Director of the Company, made a capital contribution to the
company of 250,000 shares of FinancialWeb.com, Inc. and certain other assets.
The then Board of Directors of the Company declared a stock dividend of its
common stock to shareholders of record on June 2, 1999, excluding the
shareholders of the acquired company (the Florida BarPoint) who received the
Company's common stock in the transaction. The number of shares to be
distributed in the dividend was determined based upon the value of the
FinancialWeb Stock over a 45 day period, plus the agreed upon value of the other
assets contributed. The payment of the dividend of a total of 878,770 shares of
the Company's common stock was made on October 19, 1999.
As part of the transaction the Company sold to Leigh M. Rothschild,
President of the Florida corporation of BarPoint.com, Inc., and the Company's
current Chief Executive Officer, three (3) shares of our company's Series A
Stock for a purchase price of $10.00 per share. The Preferred Stock shall vote
on a pari-passu basis with our common stock. The first share of Preferred Stock
shall have 216,667 votes, the second share shall have 108,333 votes and the
third share of Preferred Stock shall have 346,766 votes. In no event will any of
the Preferred Stock have any votes after five years from the date of issue.
As part of the acquisition the Company authorized five year options to
purchase 800,000 shares of its common stock at an exercise price of $1.90 per
share. To date, all of the options have been granted to certain employees,
management and the original BarPoint shareholders. Such options vest as follows:
one-third (1/3) immediately after one year from the date of the closing of the
acquisition (June 3, 1999), one-third (1/3) after the second year from the date
of the closing of the acquisition, in the event our company achieves 50% of its
revenue projection of $49,000,000 in such second year, and the balance of
one-third (1/3) after the third year from the date of closing of the
acquisition, in the event our company achieves 50% of its revenue projection of
$179,000,000 in such third year. Projections referred to herein are the Florida
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corporation of BarPoint.coms April 1, 1999 business projections as presented to
the Company prior to the closing of the acquisition.
Other Related Transactions
In August 1999, the Company announced a strategic partnership with Symbol
Technologies, Inc. As part of the strategic partnership Symbol Technologies
purchased 1,315,789 shares of the Company's common stock representing
approximately 9% of its outstanding common stock and granted a royalty free
license to use Symbol's scanner patents. The Company agreed to sell Symbol SPT
1500 machines and grant Symbol the right to designate one designee to the
Company's Board of Directors. Ken Jaeggi, CFO and Senior Vice President of
finance of Symbol Technology, was designated as Symbol's designee to the
Company's Board of Directors. Symbol manufactures a wide range of barcode
scanning hardware that is compatible with BarPoint's service, including the SPT
1500, a handheld organizer using the popular Palm platform with a built in laser
barcode scanner.
David W. Sass, a director of the Company, is the father of Jeffrey W. Sass,
our Chief Operating Officer and Executive Vice President. Mr. David W. Sass is a
partner with McLaughlin & Stern, LLP, counsel to the Company. McLaughlin & Stern
received 79,609 shares and options to purchase at $1.90 per share, 8,498 shares
in the Company, representing less than 1% of its outstanding shares as of
December 23, 1999, as part of the acquisition transaction. In addition,
McLaughlin & Stern received aggregate legal fees of $69,000 and $19,000 during
1999 and 1998 respectively, for services rendered to the Company.
In August 1999, the Company repaid a loan to Leigh M. Rothschild, president
of the Company, in the amount of $110,000. The loan amount was unsecured and
non-interest bearing.
The 1999 Plan for Incentive Stock Options was adopted by our board of
directors on September 17, 1999. Options were granted to Leigh M.
Rothschild and Jeffrey W. Sass to purchase 300,000 and 255,000 shares of
common stock respectively, exercisable at $6.97. In addition Matthew C.
Schilowitz was granted an option to purchase 180,000 shares, exercisable at
$6.97 per share. In addition options to purchase 40,000 were granted to
each of David W. Sass, Jay Howard Linn, Seymour G. Siegel and Ken Jaeggi.
Mr. Jaeggi's options are currently owned by Symbol Technologies.
A Plan for Incentive Compensation of Matthew C. Schilowitz was adopted by
our board of directors and approved by our company's stockholders on March 1,
1996, amended August 3, 1996, March 24, 1997 and June 19, 1998. The plan is
currently fully vested and can be exercised for a period of 10 years expiring
April 1, 2006. Pursuant to this plan, Mr. Schilowitz has been granted an option
to purchase up to an aggregate of 500,000 shares of common stock at $.35 per
share, which has been adjusted to 576,748 shares exercisable at $.30 per share.
On January 23, 1997, the Board of Directors voted to grant options to four
directors , (David W. Sass, Scott Prizer, David Eiten, and Seymour G. Siegel)
under the terms of the Company's 1996 Stock Option Plan. Each board member
abstained from voting for himself. Each individual
12
<PAGE>
was granted a five year option to purchase 10,000 shares at a price of $2.125.
On June 19, 1998 the exercise price was reduced to $.35. All of such options
have been exercised.
On March 24, 1997, as part of the Company's 1996 Qualified Stock Option
Plan, Mr. Schilowitz was granted an option of 300,000 shares (which was later
adjusted after a stock dividend to 346,049 shares) of the Company's common stock
at an exercise price of $2.337 per share, being 110% of the fair market value of
such shares on the date of grant. On June 19, 1998, the Board of Directors voted
to reduce the exercise price of such options for Mr. Schilowitz to $.35 ($.30,
as amended). This option has a duration of five-years.
In July 1997, Matthew C. Schilowitz became personally indebted to the
Company pursuant to a certain promissory note in the original principal amount
of $225,000.00 the Note evidencing such debt carried interest at the Prime Rate
charged by Chase Manhattan Bank, NA, and is collateralized by 500,000 shares of
its common stock. The balance of this loan as of June 30, 1999 was $218,655.
Pursuant to an agreement between Mr. Schilowitz and the Company, such note
and all accrued interest thereon deemed satisfied and paid in full in exchange
for Mr. Schilowitz's waiver of commissions in the amount of $246,548.95.
During 1997 and 1998 the Company made loans to related parties in the amount
of $67,600 and $186,696, respectively. These loans had no stated interest rate
and are due on demand.
In April 1997 the Company purchased a building lot from Emerald Woods
Development Corp. (Of which Matthew C. Schilowitz is a 50% owner) for $195,000
and constructed and sold a house on such lot. The Company purchased two
additional building lots from Emerald Woods in December 1997 for $190,000 and
simultaneously sold them to an unaffiliated third party.
In October 1997 the Company purchased a 2.5% Class A Limited Partnership
interest in Woodland Development Associates (of which Matt Schilowitz owns
11.1%) for a purchase price of $50,000.
During 1998 the Company purchased a building lot from Crossings Associates,
L.P. (of which Matthew C. Schilowitz is a 11.1% owner) and constructed and sold
a house on such lot.
THE BOARD OF DIRECTORS OF THE COMPANY DEEMS PROPOSAL
NUMBER 1 TO BE IN THE BEST INTEREST OF THE COMPANY AND ITS
SHAREHOLDERS AND RECOMMENDS A VOTE "FOR" ITS APPROVAL.
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<PAGE>
PROPOSAL NO. 2
APPROVAL OF 1999 EQUITY INCENTIVE PLAN
The 1999 Equity Incentive Plan was adopted by the Board of Directors on
September 17, 1999, subject to stockholder approval, authorizing the
Company to grant five year options to purchase 1,500,000 shares of its
common stock at fair market value at date of grant, with the exception of
grants to certain officers at 85% of the fair market value at the date of
grant. To date, 919,000 options have been granted, and are subject to your
approval. Options under the Plan shall be available to be granted to
employees (including officers and directors), consultants or advisers of
the Company or of a Parent, Subsidiary or Affiliate of the Company (a
"Participant"). Any definitions not set forth herein shall be defined as
set forth in the 1999 Equity Incentive Plan, attached hereto as Exhibit A.
The Plan provides for Options in the form of Incentive Stock Options (ISOs)
and Non-Qualified Stock Options such as Restricted Stock Awards and Stock
Bonus Awards.
ISOs (as defined in Section 5 of the attached Plan) may be granted only to
employees (including officers and directors who are also employees) of the
Company or of a Parent or Subsidiary of the Company. All other Awards may
be granted to employees, officers, consultants and advisors of the Company
or any Parent, Subsidiary or Affiliate of the Company, provided such
consultants and advisors render bona fide services not in connection with
the offer and sale of securities in a capital-raising transaction. A person
may be granted more than one Award under the Plan.
The Board of Directors, upon recommendation of the committee appointed by
the Board of Directors to administer the Plan (the "Committee"), may grant
Options to eligible persons and, upon recommendation of the Board of
Directors, shall determine whether such Options shall be Incentive Stock
Options within the meaning of the Internal Revenue Code of 1986 as amended
(the "Code") ("ISO'S") or Nonqualified Stock Options ("NQSO's), the number
of Shares subject to the Option, the Exercise Price of the Option, the
period during which the Option may be exercised, and all other terms and
conditions of the Option, subject to the Plan.
Each Option granted under the Plan shall be evidenced by an Award Agreement
which shall expressly identify the Option as an ISO or NQSO ("Stock Option
Agreement"), and be in such form and contain such provisions (which need
not be the same for each Participant) as the Board of Directors, upon
recommendation of the Committee, shall from time to time approve, and which
shall comply with and be subject to the terms and conditions of the Plan.
The date of grant of an Option shall be the date on which the Board of
Directors, upon recommendation of the Committee, makes the determination to
grant such Option, unless otherwise specified by the Board of Directors,
upon recommendation of the Committee. The Stock Option Agreement and a copy
of the Plan will be delivered to the Participant within a reasonable time
after the granting of the Option.
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<PAGE>
Options shall be exercisable within the times o upon the events determined
by Board of Directors, upon recommendation of the Committee, as set forth
in the Stock Option Agreement; provided, however, that no Option shall be
exercisable after the expiration of ten (10) years from the date the Option
is granted, and provided further that no Option granted to a person who
directly or by attribution owns more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any Parent
or Subsidiary of the Company ("Ten Percent Shareholder") shall be
exercisable after the expiration of five (5) years from the date the Option
is granted. The Board of Directors, upon recommendation of the Committee,
also may provide for the exercise of Options to become exercisable at one
time or from time to time, periodically or otherwise, in such number or
percentage as the Board of Directors, upon recommendation of the Committee,
determines.
The Exercise Price shall be determined by the Board of Directors, upon
recommendation of the Committee, when the Option is granted and may be not
less than eighty-five percent (85%) of the Fair Market Value of the Shares
on the date of grant; provided that (i) the Exercise Price of an ISO shall
be not less than one hundred percent (100%) of the Fair Market Value of the
Shares on the date of grant; (ii) the Exercise Price of any Option granted
to a Ten Percent Shareholder shall not be less than one hundred ten percent
(110%) of the Fair Market Value of the Shares on the date of grant; and
(iii) the Exercise Price of any option granted that the Board of Directors
intends to qualify under Section 162(m) of the Code, shall not be less than
one hundred percent (100%) of the fair market value of the shares on the
date of grant. Payment for the Shares purchased may be made in accordance
with Section 8 of the Plan.
Options may be exercised only by delivery to the Company of a written stock
option exercise agreement (the "Exercise Agreement") in a form approved by
the Committee (which need not be the same for each Participant), stating
the number of Shares being purchased, the restrictions imposed on the
Shares, if any, and such representations and agreements regarding
Participant's investment intent and access to information and other
matters, if any, as may be required or desirable by the Company to comply
with applicable securities laws, together with payment in full of the
Exercise Price for the number of Shares being purchased.
A Restricted Stock Award is an offer by the Company to sell to an eligible
person Shares that are subject to restrictions. The Board of Directors,
upon recommendation of the Committee, shall determine to whom an offer will
be made, the number of Shares the person may purchase, the price to be paid
(the "Purchase Price"), the restrictions to which the Shares shall be
subject, and all other terms and conditions of the Restricted Stock Award,
subject to the Plan.
All purchases under a Restricted Stock Award made pursuant to the Plan
shall be evidenced by an Award Agreement ("Restricted Stock Purchase
Agreement") that shall be in such form (which need not be the same for each
Participant) as the Board of Directors, upon recommendation of the
Committee, shall from time to time approve, and shall comply with and be
subject to the terms and conditions of the Plan. The offer of Restricted
Stock shall be
15
<PAGE>
accepted by the Participant's execution and delivery of the Restricted
Stock Purchase Agreement and full payment for the shares to the Company
within thirty (30) days from the date the Restricted Stock Purchase
Agreement is delivered to the person. If such person does not execute and
deliver the Restricted Stock Purchase Agreement along with full payment
for the Shares to the Company within thirty (30) days, then the offer
shall terminate, unless otherwise determined by the Committee.
The Purchase Price of Shares sold pursuant to a Restricted Stock Award
shall be determined by the Board of Directors, upon recommendation of the
Committee, and shall be at least eighty-five percent (85%) of the Fair
Market Value of the Shares on the date the Restricted Stock Award is
granted, except in the case of a sale to a Ten Percent Shareholder, in
which case the Purchase Price shall be one hundred percent (110%) of the
Fair Market Value. Payment of the Purchase Price may be made in accordance
with Section 8 of the Plan.
A Stock Bonus is an award of Shares (which may consist of Restricted Stock)
for services rendered to the Company or any Parent, Subsidiary or Affiliate
of the Company. A Stock Bonus may be awarded for past services already
rendered to the Company, or any Parent, Subsidiary or Affiliate of the
Company pursuant to an Award Agreement (the "Stock Bonus Agreement") that
shall be in such form (which need not be the same for each Participant) as
the Board of Directors, upon recommendation of the Committee, shall from
time to time approve, and shall comply with and be subject to the terms and
conditions of the Plan. A Stock Bonus may be awarded upon satisfaction of
such performance goals as are set out in advance in Participant's
individual Award Agreement (the "Performance Stock Bonus Agreement") that
shall be in such form (which need not be the same for each Participant) as
the Board of Directors, upon recommendation of the Committee, shall from
time to time approve, and shall comply with and be subject to the terms and
conditions of the Plan. Stock Bonuses may vary from Participant to
Participant and between groups of Participants, and may be based upon such
other criteria as the Board of Directors, upon recommendation of the
Committee, may determine; provided, however, that performance-based bonuses
shall be restricted to individuals earning at least Sixty Thousand Dollars
($60,000) per year and of adequate sophistication and sufficiently
empowered to achieve the performance goals.
A Stock Bonus that the Board of Directors intends to qualify for the
performance-based exception under Code section 162(m) shall only be awarded
based upon the attainment of one (1) or more of the following performance
goals: stock price, market share, sales increases, earning per share,
return on equity, cost reductions, or any other similar performance measure
established by the Board of Directors, upon recommendation of the
Committee. Such performance measures shall be established by the Board of
Directors, upon recommendation of the Committee, in writing, no later than
the earlier of (a) ninety (90) days after the commencement of the
performance period with respect to which the Stock Bonus award is made; and
(b) the date as of which twenty-five percent (25%) of such performance
period has elapsed.
16
<PAGE>
The Board of Directors, upon recommendation of the Committee, shall
determine the number of Shares to be awarded to the Participant and whether
such Shares shall be Restricted Stock. If the Stock Bonus is being earned
upon the satisfaction of performance goals pursuant to a Performance Stock
Bonus Agreement, then the Board of Directors, upon recommendation of the
Committee, shall determine: (a) the nature, length and starting date of any
period during which performance is to be measured (the "Performance
Period") for each Stock Bonus; (b) the performance goals and criteria to be
used to measure the performance, if any; (c) the number of Shares that may
be awarded to the Participant; and (d) the extent to which such Stock
Bonuses have been earned. Performance Periods may overlap and Participants
may participate simultaneously with respect to Stock Bonuses that are
subject to different Performance Periods and different performance goals
and other criteria. The number of Shares may be fixed or may vary in
accordance with such performance goals and criteria as may be determined by
the Board of Directors, upon recommendation of the Committee. The Board of
Directors, upon recommendation of the Committee, may adjust the performance
goals applicable to the Stock Bonuses to take into account changes in law
and accounting or tax rules and to make such adjustments as the Board of
Directors, upon recommendation of the Committee, deems necessary or
appropriate to reflect the impact of extraordinary or unusual items, events
or circumstances to avoid windfalls or hardships.
The earned portion of a Stock Bonus may be paid currently or on a deferred
basis with such interest or dividend equivalent, if any, as the Board of
Directors, upon recommendation of the Committee, may determine. Payment may
be made in the form of cash, Shares, including Restricted Stock, or a
combination thereof, either in a lump sum payment or in installments, all
as the Board of Directors, upon recommendation of the Committee, shall
determine.
Whenever Shares are to be issued in satisfactio of Awards granted under the
Plan, the Company may require the Participant to remit to the Company an
amount sufficient to satisfy federal, state and local withholding tax
requirements prior to the delivery of any certificate or certificates for
such Shares. Whenever, under the Plan, payments in satisfaction of Awards
are to be made in cash, such payment shall be net of an amount sufficient
to satisfy federal, state, and local withholding tax requirements.
When, under applicable tax laws, a Participant incurs tax liability in
connection with the exercise or vesting of any Award that is subject to tax
withholding and the Participant is obligated to pay the Company the amount
required to be withheld, the Board of Directors may allow the Participant
to satisfy the minimum withholding tax obligation by electing to have the
Company withhold from the Shares to be issued that number of Shares having
a Fair Market Value equal to the minimum amount required to be withheld,
determined on the date that the amount of tax to be withheld is to be
determined (the "Tax Date"). All elections by a Participant to have Shares
withheld for this purpose shall be made in writing in a form acceptable to
the Board of Directors and shall be subject to the following restrictions:
(a) the election must be made on or prior to the applicable Tax Date;
17
<PAGE>
(b) once made, then except as provided below, the election shall be
irrevocable as to the particular Shares as to which the election is made;
(c) all elections shall be subjec to the consent or disapproval of the
Board of Directors;
(d) if the Participant is an Insider and if the Company is subject to
Section 16(b) of the Exchange Act: (1) the election may not be made within
six (6) months of the date of grant of the Award, except as otherwise
permitted by SEC Rule 16b-3(e) under the Exchange Act, and (2) either (A)
the election to use stock withholding must be irrevocably made at least six
(6) months prior to the Tax Date (although such election may be revoked at
any time at least six (6) months prior to the Tax Date) or (B) the exercise
of the Option or election to use stock withholding must be made in the ten
(10) day period beginning on the third day following the release of the
Company's quarterly or annual summary statement of sales or earnings; and
(e) in the event that the Tax Dat is deferred until six (6) months after
the delivery of Shares under Section 83(b) of the Code, the Participant
shall receive the full number of Shares with respect to which the exercise
occurs, but such Participant shall be uncondi tionally obligated to tender
back to the Company the proper number of Shares on the Tax Date.
THE BOARD OF DIRECTORS OF THE COMPANY DEEMS PROPOSAL NUMBER 2 TO BE IN THE BEST
INTEREST OF THE COMPANY AND ITS SHAREHOLDERS AND RECOMMENDS A VOTE "FOR" ITS
APPROVAL.
18
<PAGE>
PROPOSAL NO. 3
APPROVAL OF OPTIONS GRANTED UNDER 1999 EQUITY INCENTIVE PLAN
The following employees, officer, directors, consultants, or advisors of
the Company have been granted Options under the Company's 1999 Equity
Incentive Plan. The granting of these Options was approved by the Board of
Directors and are subject to Shareholder approval.
NO. OF SHARES SUBJECT EXERCISE EXP
TO OPTIONS PRICE DATE
NAME
Jay Howard Linn 40,000 $4.50 9/17/2004
Seymour G. Siegel 40,000 $4.50 9/17/2004
David W. Sass 40,000 $4.50 9/17/2004
Matthew C. Schilowitz 180,000 $6.97 11/2004
Symbol Technologies 40,000 $4.50 9/17/2004
Leigh M. Rothschild 300,000 $6.97 11/2004
Jeffrey W. Sass 255,000 $6.97 11/2004
All employees, consultants,
and advisors as a group 204,000 * *
* Varies according to each individual with ranges from $3.53 to $8.37
** Varies according to each individual with ranges from 7/2004 - 11/2004
THE BOARD OF DIRECTORS OF THE COMPANY DEEMS PROPOSAL NUMBER 3 TO
BE IN THE BEST INTEREST OF THE COMPANY AND ITS SHAREHOLDERS AND
RECOMMENDS A VOTE "FOR" ITS APPROVAL.
<PAGE>
PROPOSAL NO. 4
INCREASE OF AUTHORIZED SHARES
The Board of Directors propose to increase the authorized shares of Common
Stock which the Company shall have authority to issue from 20,000,000
shares of a par value of $.0001 per share to 100,000,000 shares of a par
value of $.0001 per share.
The Company has currently authorized 20,000,000 shares of common stock of
which 15,404,491 shares are issued and outstanding. In addition, the
Company has reserved approximately 3,646,000 shares subject to the exercise
of outstanding options and warrants. There is only available for future
issuances 949,000 shares.
The management of the Company believes it is in the best interest of the
Company to increase the authorized shares so that the shares will be
available for future acquisitions and other proper corporate purposes.
There are no written understandings at this time for the issuance of any
additional shares although the Company is in discussions with several
groups seeking to make acquisitions and to raise additional capital. No
assurance can be given that the Company will be able to complete any such
acquisitions or financings.
The Board of Directors recommends that the stockholders vote "FOR" the
increase of authorized shares (Item No. 1 on the proxy card).
THE BOARD OF DIRECTORS OF THE COMPANY DEEMS PROPOSAL NUMBER 4 TO BE IN THE
BEST INTEREST OF THE COMPANY AND ITS SHAREHOLDERS AND RECOMMENDS A VOTE
"FOR" ITS APPROVAL.
<PAGE>
PERFORMANCE CHART
Set forth below is a comparison of the total stockholder return on the
Company's Common Stock for the period beginning September 30, 1997 and ending
September 30, 1999 with the total stockholder return for the same period for the
indicated indices. The total stockholder return reflects the annual change in
share price, assuming an investment of $100.00 on September 30, 1997 plus the
reinvestment of dividends, if any. No dividends were paid on the Common Stock
during the period shown. The return shown is based on the annual percentage
change during each fiscal year in the five year period ended September 30, 1999.
The stock price performance shown below is not necessarily indicative of future
stock price performance.
Total Return To Shareholder's
(Dividends reinvested monthly)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
ANNUAL RETURN PERCENTAGE
Years Ending
Company / Index Sep97 Sep98 Sep99
BARPOINT.COM INC -93.75 -38.38 2380.87
S&P SMALLCAP 600 INDEX 36.97 -18.67 17.54
COMPUTER(SOFTWARE&SVC)-SMALL 7.78 -1.26 38.27
INDEXED RETURNS
Base Years Ending
Period
Company / Index Sep96 Sep97 Sep98 Sep99
BARPOINT.COM INC 100 6.25 3.85 95.58
S&P SMALLCAP 600 INDEX 100 136.97 111.39 130.93
COMPUTER(SOFTWARE&SVC)-SMALL 100 107.78 106.42 147.15
</TABLE>
21
<PAGE>
OTHER BUSINESS TO BE TRANSACTED
As of the date of this Proxy Statement, the Board of Directors knows of
no other business to be presented for action at the Annual Meeting of
Stockholders. As for any business that may properly come before the Annual
Meeting or any continuation or adjournment thereof, the Proxies confer
discretionary authority to the person named therein. These persons will vote or
act in accordance with their best judgment with respect thereto.
ANNUAL REPORT TO STOCKHOLDERS
The Annual Report to Stockholders for the year ended September 30, 1999
is being mailed to stockholders with this Proxy Statement.
STOCKHOLDER PROPOSAL - 2000 ANNUAL MEETING
Any stockholder proposals to be considered by the Company for inclusion
in the proxy material for the 2000 Annual Meeting of Stockholders must be
received by the Company at its principal executive offices by September 30,
2000.
The prompt return of your proxy will be appreciated and helpful in
obtaining the necessary vote. Therefore, whether or not you expect to attend the
meeting, please sign the proxy and return it in the enclosed envelope.
BY ORDER OF
THE BOARD OF DIRECTORS
Jeffrey W. Sass, Secretary
Miami, Florida
March 1, 2000
22
<PAGE>
PROXY
This Proxy is Solicited on Behalf of the Board of Directors
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a shareholder in
BarPoint.com, Inc., a Delaware corporation ("BarPoint"), hereby appoints Leigh
M. Rothschild and David W. Sass, and each of them acting jointly, if more than
one be present, to be the true and lawful attorneys and proxies for the
undersigned, to vote all shares of BarPoint as the undersigned is entitled to
vote, with all powers the undersigned would possess if personally present, at
the annual meeting of shareholders of BarPoint to be held on April 4, 2000
or any adjournment thereof, on the following matters as designated below and, in
their discretion, on such other matters as may properly come before the meeting.
This proxy will be voted in the manner directed herein by the undersigned
shareholder. If no direction is made, this proxy will be voted FOR the following
Proposals.
1. ELECTION OF DIRECTORS
For all nominees listed below Withhold Authority to
(Except as Marked to the Vote All Nominees Listed
Contrary) ________ Below _______
LIST OF DIRECTORS: Leigh M. Rothschild, Jeffrey W. Sass, David W. Sass,
Matthew C. Schilowitz, Seymour G. Siegel, Jay Howard Linn, and Kenneth
Jaeggi.
(INSTRUCTION: To withhold authority to vote for any individual nominee,
print that nominee's name on the line provided below.)
2. APPROVAL OF 1999 EQUITY INCENTIVE PLAN
FOR [ ] AGAINST [ ] ABSTAIN [ ]
3. APPROVAL OF OPTIONS GRANTED UNDER 1999 EQUITY INCENTIVE PLAN
FOR [ ] AGAINST [ ] ABSTAIN [ ]
4. APPROVAL OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION
INCREASING TO 100,000,000 SHARES THE NUMBER OF COMMON STOCK TO BE
AUTHORIZED.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
- ----------------------------------------------------------------------------
OTHER MATTERS: Granting the proxies discretionary authority to vote upon any
other unforseen matters which are properly brought before the meeting as
management may recommend.
The undersigned hereby revokes any and all other proxies heretofore
given by the undersigned and hereby ratifies all that the above named proxies
may do at such meetings, or at any adjournments thereof, by virtue hereof.
When shares are held by joint tenants, both should sign. When signing
as attorney, as executor, administrator, trustee or guardian, please give full
title as such and also state the name of the stockholder of record for whom you
act. If a corporation, please sign in full corporate name by President or other
authorized officer. If a partnership, please sign in partnership name by
authorized person.
Dated:__________________, 2000
-----------------------------
Signature
-----------------------------
Signature, if held jointly
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY USING THE ENCLOSED ENVELOPE
EXHIBIT A
BARPOINT.COM, INC.
EQUITY INCENTIVE PLAN
1. Purpose. The purpose of the plan is to provide incentives to
attract, retain and motivate eligible persons whose present and potential
contributions are important to the success of BARPOINT.COM, INC. a Delaware
corporation (the "Company"), its Subsidiaries and Affiliates, by offering them
an opportunity to participate in the Company's future performance through awards
of Options, Restricted Stock and Stock Bonuses. Capitalized terms not defined in
the text are defined in Section 23.
2. Shares Subject to the Plan.
2.1 Number of Shares Available. Subject to Sections 2.2 and
18, the total number of Shares reserved and available for grant and issuance
pursuant to the Plan shall be one million five hundred thousand (1,500,000)
Shares. Subject to Sections 2.2 and 18, Shares shall again be available for
grant and issuance in connection with future Awards under the Plan that:
(a) are subject to issuance upon exercise of an Option but cease to be
subject to such Option for any reason other than exercise of such Option;
(b) are subject to an Award granted hereunder but are forfeited; or are
subject to an
(c) Award that otherwise terminates without Shares being
issued.
2.2 Adjustment of Shares. In the event that the number of
outstanding Shares is changed by a stock dividend, recapitalization, stock
split, reverse stock split, subdivision or similar change in the capital
structure of the Company without consideration, then (a) the number of Shares
reserved for issuance under the Plan; (b) the Exercise Prices of and number of
Shares subject to outstanding Options; and (c) the number of Shares subject to
other outstanding Awards shall be proportionately adjusted, subject to any
required action by the Board or the shareholders of the Company and compliance
with applicable securities laws.
3. Eligibility.
3.1 General. ISO's (as defined in Section 5 below) may be
granted only to employees (including officers and directors who are also
employees) of the Company or of a Parent or Subsidiary of the Company. All other
Awards may be granted to employees, officers, consultants and advisors of the
Company or any Parent, Subsidiary or Affiliate of the Company, provided such
consultants and advisors render bona fide services not in connection with the
offer and sale of securities in a capital-raising transaction. A person may be
granted more than one Award under the Plan.
4. Administration.
4.1 Board Discretion. Any determination made by the Board with
respect to any Award shall be made in its sole discretion at the time of grant
of the Award or, unless in contravention of any express term of the Plan or
Award, at any later time, and such determination shall be final and binding on
the Company and all persons having an interest in any Award under the Plan.
4.2 Committee Authority. The Plan shall be administered by the
Committee, subject to and at the direction of the Board. Subject to the general
purposes, terms and conditions of the Board, the Committee shall have full power
to implement and carry out the Plan. The Committee may delegate to one or more
officers of the Company the authority to make recommendations to grant an Award
under the Plan to Participants who are not Insiders of the Company. The
Committee shall have the authority to:
(a) construe and interpret the Plan, any Award Agreement and any other
agreement or document executed pursuant to the Plan;
1
<PAGE>
(b) recommend to the Board amendments to the rules and regulations relating
to the Plan;
(c) recommend to the Board person to receive Awards;
(d) recommend to the Board the form and terms of Awards;
(e) recommend to the Board the number of Shares or other consideration
subject to Awards;
(f) recommend to the Board whether Awards will be granted singly, in
combination, in tandem with, in replacement of, or as alternatives to,
other Awards under the Plan or any other incentive or compensation plan of
the Company or any Parent, Subsidiary or Affiliate of the Company;
(g) recommend to the Board the granting of certain waivers of Plan or Award
conditions;
(h) recommend to the Board conditions concerning the vesting,
exercisability and payment of Awards;
(i) recommend to the Board such matters so as to correct any defect, supply
any omission, or reconcile any inconsistency in the Plan, any Award or any
Award Agreement;
(j) determine whether an Award ha been earned; and
(k) make all other determinations necessary or advisable for the
administration of the Plan.
4.3 Exchange Act Requirements. If the Company is subject to
the Exchange Act, the Company will take appropriate steps to comply with the
disinterested director requirements of Section 16(b) of the Exchange Act,
including but not limited to, the appointment by the Board of a Committee
consisting of not less than two persons (who are members of the Board), each of
whom is a Disinterested Person.
4.4 Address of Committee. The Committee's address to which any
correspondence or notifications may be sent or given
is:
BARPOINT.COM, INC.
1 East Broward Blvd.
Suite 410
Fort Lauderdale, Florida 33301
Attention: Chief Financial Officer
5. Options. The Board, upon recommendation of the Committee, may grant
Options to eligible persons and, upon recommendation of the Board, shall
determine whether such Options shall be Incentive Stock Options within the
meaning of the Code ("ISO'S") or Nonqualified Stock Options ("NQSO's), the
number of Shares subject to the Option, the Exercise Price of the Option, the
period during which the Option may be exercised, and all other terms and
conditions of the Option, subject to the following:
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5.1 Form of Option Grant. Each Option granted under the Plan
shall be evidenced by an Award Agreement which shall expressly identify the
Option as an ISO or NQSO ("Stock Option Agreement"), and be in such form and
contain such provisions (which need not be the same for each Participant) as the
Board, upon recommendation of the Committee, shall from time to time approve,
and which shall comply with and be subject to the terms and conditions of the
Plan.
5.2 Date of Grant. The date of grant of an Option shall be the
date on which the Board, upon recommendation of the Committee, makes the
determination to grant such Option, unless otherwise specified by the Board,
upon recommendation of the Committee. The Stock Option Agreement and a copy of
the Plan will be delivered to the Participant within a reasonable time after the
granting of the Option.
5.3 Exercise Period. Options shall be exercisable within the
times or upon the events determined by Board, upon recommendation of the
Committee, as set forth in the Stock Option Agreement; provided, however, that
no Option shall be exercisable after the expiration of ten (10) years from the
date the Option is granted, and provided further that no Option granted to a
person who directly or by attribution owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or any Parent
or Subsidiary of the Company ("Ten Percent Shareholder") shall be exercisable
after the expiration of five (5) years from the date the Option is granted. The
Board, upon recommendation of the Committee, also may provide for the exercise
of Options to become exercisable at one time or from time to time, periodically
or otherwise, in such number or percentage as the Board, upon recommendation of
the Committee, determines.
5.4 Exercise Price. The Exercise Price shall be determined by
the Board, upon recommendation of the Committee, when the Option is granted and
may be not less than eighty-five percent (85%) of the Fair Market Value of the
Shares on the date of grant; provided that (i) the Exercise Price of an ISO
shall be not less than one hundred percent (100%) of the Fair Market Value of
the Shares on the date of grant; (ii) the Exercise Price of any Option granted
to a Ten Percent Shareholder shall not be less than one hundred ten percent
(110%) of the Fair Market Value of the Shares on the date of grant; and (iii)
the Exercise Price of any option granted that the Board intends to qualify under
Section 162(m) of the Code, shall not be less than one hundred percent (100%) of
the fair market value of the shares on the date of grant. Payment for the Shares
purchased may be made in accordance with Section 8 of the Plan.
5.5 Method of Exercise. Options may be exercised only by
delivery to the Company of a written stock option exercise agreement (the
"Exercise Agreement") in a form approved by the Committee (which need not be the
same for each Participant), stating the number of Shares being purchased, the
restrictions imposed on the Shares, if any, and such representations and
agreements regarding Participant's investment intent and access to information
and other matters, if any, as may be required or desirable by the Company to
comply with applicable securities laws, together with payment in full of the
Exercise Price for the number of Shares being purchased.
5.6 Termination. Notwithstanding the exercise periods set forth in the
Stock Option Agreement, exercise of an Option shall always be subject to
the following:
(a) If the Participant is Terminated for any reason except death or
Disability, then Participant may exercise such Participant's Options only
to the extent that such Options would have been exercisable upon the
Termination Date no later than three (3) months after the Termination Date
(or such shorter time period as may be specified in the Stock Option
Agreement), but in any event, no later than the expiration date of the
Options.
(b) If the Participant is terminated because of death or Disability (or the
Participant dies within three (3) months of such termination), then
Participant's Options may be exercised only to the extent that such Options
would have been exercisable by Participant on the Termination Date and must
be exercised by Participant (or Participant's legal representative or
authorized assignee) no later than twelve (12) months after the Termination
Date (or such shorter time period
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as may be specified in the Stock Option Agreement), but in any event no
later than the expiration date of the Options; provided, however, that in
the event of termination due to Disability other than as defined in Section
22(e)(3) of the Code, any ISO that remains exercisable after ninety (90)
days after the date of termination shall be deemed a NQSO.
5.7 Limitations on Exercise. The Committee may specify a
reasonable minimum number of Shares that may be purchased on any exercise of an
Option, provided that such minimum number will not prevent Participant from
exercising the Option for the full number of Shares for which it is then
exercisable.
5.8 Limitations on ISO's. The aggregate Fair Market Value
(determined as of the date of grant) of Shares with respect to which ISO'S are
exercisable for the first time by a Participant during any calendar year (under
the Plan or under any other incentive stock option plan of the Company or any
Affiliate, Parent or Subsidiary of the Company) shall not exceed One Hundred
Thousand Dollars ($100,000). If the Fair Market Value of Shares on the date of
grant with respect to which ISO's are exercisable for the first time by a
Participant during any calendar year exceeds One Hundred Thousand Dollars ($
1OO,OOO),the Options for the first One Hundred Thousand Dollars ($100,000) worth
of Shares to become exercisable in such calendar year shall be ISO's and the
Options for the amount in excess of One Hundred Thousand Dollars ($100,000) that
become exercisable in that calendar year shall be NQSO's. In the event that the
Code or the regulations promulgated thereunder are amended after the Effective
Date of the Plan to provide for a different limit on the Fair Market Value of
Shares permitted to be subject to SO's, such different limit shall be
automatically incorporated herein and shall apply to any Options granted after
the effective date of such amendment.
5.9 Modification. Extension or Renewal. The Board, upon
recommendation of the Committee, may modify, extend or renew outstanding Options
and authorize the grant of new Options in substitution therefor, provided that
any such action may not without the written consent of Participant, impair any
of Participant's rights under any Option previously granted. Any outstanding ISO
that is modified, extended, renewed or otherwise altered shall be treated in
accordance with Section 424(h) of the Code. The Committee may reduce the
Exercise Price of outstanding Options without the consent of Participants
affected by a written notice to them; provided, however, that the Exercise Price
may not be reduced below the minimum Exercise price that would be permitted
under Section 5.4 of the Plan for Options granted on the date the action is
taken to reduce the Exercise Price.
5.10 No Disqualification. Notwithstanding any other provision
in the Plan, no term of the Plan relating to ISO's shall be interpreted, amended
or altered, nor shall any discretion or authority granted under the Plan be
exercised, so as to disqualify the Plan under Section 422 of the Code or,
without the consent of the Participant affected, to disqualify any ISO under
Section 422 of the Code.
6. Restricted Stock. A Restricted Stock Award is an offer by the
Company to sell to an eligible person Shares that are subject to restrictions.
The Board, upon recommendation of the Committee, shall determine to whom an
offer will be made, the number of Shares the person may purchase, the price to
be paid (the "Purchase Price"), the restrictions to which the Shares shall be
subject, and all other terms and conditions of the Restricted Stock Award,
subject to the following:
6.1 Form of Restricted Stock Award. All purchases under a
Restricted Stock Award made pursuant to the Plan shall be evidenced by an Award
Agreement ("Restricted Stock Purchase Agreement") that shall be in such form
(which need not be the same for each Participant) as the Board, upon
recommendation of the Committee, shall from time to time approve, and shall
comply with and be subject to the terms and conditions of the Plan. The offer of
Restricted Stock shall be accepted by the Participant's execution and delivery
of the Restricted Stock Purchase Agreement and full payment for the shares to
the Company within thirty (30) days from the date the Restricted Stock Purchase
Agreement is delivered to the person. If such person does not execute and
deliver the Restricted Stock Purchase Agreement along with full payment for the
Shares to the Company within thirty (30) days, then the offer shall terminate,
unless otherwise determined by the Committee.
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6.2 Purchase Price. The Purchase Price of Shares sold pursuant
to a Restricted Stock Award shall be determined by the Board, upon
recommendation of the Committee, and shall be at least eighty-five percent (85%)
of the Fair Market Value of the Shares on the date the Restricted Stock Award is
granted, except in the case of a sale to a Ten Percent Shareholder, in which
case the Purchase Price shall be one hundred percent (110%) of the Fair Market
Value. Payment of the Purchase Price may be made in accordance with Section 8 of
the Plan.
6.3 Restrictions. Restricted Stock Awards shall be subject to
such restrictions as the Board, upon recommendation of the Committee, may
impose. The Board, upon recommendation of the Committee, may provide for the
lapse of such restrictions in installments and may accelerate or waive such
restrictions, in whole or in part, based on length of service, performance or
such other factors or criteria as the Board, upon recommendation of the
Committee, may determine. Restricted Stock Awards which the Board intends to
qualify under Code section 162(m) shall be subject to a performance-based goal.
Restrictions on such stock shall lapse based on one (1) or more of the following
performance goals: stock price, market share, sales increases, earning per
share, return on equity, cost reductions, or any other similar performance
measure established by the Board, upon recommendation of the Committee. Such
performance measures shall be established by the Board, upon recommendation of
the Committee, in writing, no later than the earlier of (a) ninety (90) days
after the commencement of the performance period with respect to which the
Restricted Stock award is made; and (b) the date as of which twenty-five percent
(25%) of such performance period has elapsed.
7. Stock Bonuses.
7.1 Awards of Stock Bonuses. A Stock Bonus is an award of
Shares (which may consist of Restricted Stock) for services rendered to the
Company or any Parent, Subsidiary or Affiliate of the Company. A Stock Bonus may
be awarded for past services already rendered to the Company, or any Parent,
Subsidiary or Affiliate of the Company pursuant to an Award Agreement (the
"Stock Bonus Agreement") that shall be in such form (which need not be the same
for each Participant) as the Board, upon recommendation of the Committee, shall
from time to time approve, and shall comply with and be subject to the terms and
conditions of the Plan subject to Section 7.2 herein. A Stock Bonus may be
awarded upon satisfaction of such performance goals as are set out in advance in
Participant's individual Award Agreement (the "Performance Stock Bonus
Agreement") that shall be in such form (which need not be the same for each
Participant) as the Board, upon recommendation of the Committee, shall from time
to time approve, and shall comply with and be subject to the terms and
conditions of the Plan. Stock Bonuses may vary from Participant to Participant
and between groups of Participants, and may be based upon such other criteria as
the Board, upon recommendation of the Committee, may determine; provided,
however, that performance-based bonuses shall be restricted to individuals
earning at least Sixty Thousand Dollars ($60,000) per year and of adequate
sophistication and sufficiently empowered to achieve the performance goals.
7.2 Code Section 162(m). A Stock Bonus that the Board intends
to qualify for the performance-based exception under Code section 162(m) shall
only be awarded based upon the attainment of one (1) or more of the following
performance goals: stock price, market share, sales increases, earning per
share, return on equity, cost reductions, or any other similar performance
measure established by the Board, upon recommendation of the Committee. Such
performance measures shall be established by the Board, upon recom mendation of
the Committee, in writing, no later than the earlier of (a) ninety (90) days
after the commencement of the performance period with respect to which the Stock
Bonus award is made; and (b) the date as of which twenty- five percent (25%) of
such performance period has elapsed.
7.3 Terms of Stock Bonuses. The Board, upon recommendation of
the Committee, shall determine the number of Shares to be awarded to the
Participant and whether such Shares shall be Restricted Stock. If the Stock
Bonus is being earned upon the satisfaction of performance goals pursuant to a
Performance Stock Bonus Agreement, then the Board, upon recommendation of the
Committee, shall determine: (a) the nature, length and starting date of any
period during which performance is to be measured (the "Performance Period") for
each Stock Bonus; (b) the performance goals and criteria to be used to measure
the performance, if any; (c) the number of Shares that may be awarded to the
Participant; and (d) the extent to which such Stock Bonuses have been earned.
Performance Periods may overlap and Participants may participate simultaneously
with respect to Stock Bonuses that are subject to different Performance Periods
and different performance goals and other criteria. The number of
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Shares may be fixed or may vary in accordance with such performance goals and
criteria as may be determined by the Board, upon recommendation of the
Committee. The Board, upon recommendation of the Committee, may adjust the
performance goals applicable to the Stock Bonuses to take into account changes
in law and accounting or tax rules and to make such adjustments as the Board,
upon recommendation of the Committee, deems necessary or appropriate to reflect
the impact of extraordinary or unusual items, events or circumstances to avoid
windfalls or hardships.
7.4 Form of Payment. The earned portion of a Stock Bonus may
be paid currently or on a deferred basis with such interest or dividend
equivalent, if any, as the Board, upon recommendation of the Committee, may
determine. Payment may be made in the form of cash, Shares, including Restricted
Stock, or a combination thereof, either in a lump sum payment or in
installments, all as the Board, upon recommendation of the Committee, shall
determine.
7.5 Termination During Performance Period. If a Participant is
Terminated during a Performance Period for any reason, then such Participant
shall be entitled to payment (whether in Shares, cash or otherwise) with respect
to the Stock Bonus only to the extent earned as of the date of Termination in
accordance with the Performance Stock Bonus Agreement, unless the Board, upon
recommendation of the Committee, shall determine otherwise.
8. Payment For Share Purchases.
8.1 Payment. Payment for Shares purchased pursuant to the Plan
may be made in cash (by check) or, where expressly approved for the Participant
by the Board and where permitted by law:
(a) by cancellation of indebtedness of the Company to the Participant;
(b) by transfer of Shares that either (1) have been owned by Participant
for more than six (6) months and have been paid for within the meaning of
SEC Rule 144; or (2) were obtained by Participant in the public market;
(c) by waiver of compensation due or accrued to Participant for services
rendered;
(d) by tender of property;
(e) with respect only to purchase upon exercise of an Option, and provided
that a public market for the Company's stock exists:
(f) through a "same day sale" commitment from Participant and a
broker-dealer that is a member of the National Association of Securities
Dealers (an "NASD Dealer") whereby the Participant irrevocably elects to
exercise the Option and to sell a portion of the Shares so purchased to pay
for the Exercise Price, and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the Exercise Price directly to the
Company; or
(g) through a "margin" commitment from Participant and an NASD Dealer
whereby Participant irrevocably elects to exercise the Option and to pledge
the Shares so purchased to the NASD Dealer in a margin account as security
for a loan from the NASD Dealer in the amount of the Exercise Price, and
whereby the NASD Dealer irrevocably commits upon receipt of such Shares to
forward the exercise price directly to the Company; or
(h) by any combination of the foregoing.
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9. Stock Appreciation Rights. All options granted pursuant to the Plan
shall include a stock appreciation right. Such stock appreciation right
shall be subject to the following express terms and conditions and to such
other terms and conditions as the Committee may deem appropriate:
(1) The stock appreciation right shall be exercisable to the extent, and
only to the extent, the option is exercisable.
(2) The stock appreciation right shall entitle the optionee to surrender to
the Company unexercised the option in which it is included, or any portion
thereof, and to receive from the Company in exchange therefor that number
of shares which is equal to the following:
(i) from the fair market value, at the time of exercise of the stock
appreciation right, of one share of Common Stock, SUBTRACT the purchase
price specified in such option; then
(ii) MULTIPLY the result obtained in subparagraph (I) by the
number of shares called for by the option, or portion thereof, which is so
surrendered; then
(iii) DIVIDE the product obtained in subparagraph (ii) by the fair
market value, at the time of exercise of the stock appreciation right, of
one share of Common Stock.
10. Withholding Taxes.
10.1 Withholding Generally. Whenever Shares are to be issued
in satisfaction of Awards granted under the Plan, the Company may require the
Participant to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. Whenever, under the Plan, payments
in satisfaction of Awards are to be made in cash, such payment shall be net of
an amount sufficient to satisfy federal, state, and local withholding tax
requirements.
10.2 Stock Withholding. When, under applicable tax laws, a
Participant incurs tax liability in connection with the exercise or vesting of
any Award that is subject to tax withholding and the Participant is obligated to
pay the Company the amount required to be withheld, the Board may allow the
Participant to satisfy the minimum withholding tax obligation by electing to
have the Company withhold from the Shares to be issued that number of Shares
having a Fair Market Value equal to the minimum amount required to be withheld,
determined on the date that the amount of tax to be withheld is to be determined
(the "Tax Date"). All elections by a Participant to have Shares withheld for
this purpose shall be made in writing in a form acceptable to the Board and
shall be subject to the following restrictions:
(a) the election must be made on or prior to the applicable Tax Date;
(b) once made, then except as provided below, the election shall be
irrevocable as to the particular Shares as to which the election is made;
(c) all elections shall be subjec to the consent or disapproval of the
Board;
(d) if the Participant is an Insider and if the Company is subject to
Section 1 6(b) of the Exchange Act: (1) the election may not be made within
six (6) months of the date of grant of the Award, except as otherwise
permitted by SEC Rule 1 6b- 3(e) under the Exchange Act, and (2) either (A)
the election to use stock withholding must be irrevocably made at least six
(6) months prior to the Tax Date (although such election may be revoked at
any time at least six (6) months prior to the Tax Date) or (B) the exercise
of the Option or election to use stock withholding must be made in the ten
(10) day period beginning on the third day
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following the release of the Company's quarterly or annual summary
statement of sales or earnings; and
(e) in the event that the Tax Date is deferred until six (6) months after
the delivery of Shares under Section 83(b) of the Code, the Participant
shall receive the full number of Shares with respect to which the exercise
occurs, but such Participant shall be unconditionally obligated to tender
back to the Company the proper number of Shares on the Tax Date.
11. Privileges of Stock Ownership.
11.1 Voting and Dividends. No Participant shall have any of
the rights of a shareholder with respect to any Shares until the Shares are
issued to the Participant. After Shares are issued to the Participant, the
Participant shall be a shareholder and have all the rights of a shareholder with
respect to such Shares, including the right to vote and receive all dividends or
other distributions made or paid with respect to such Shares; provided, that if
such Shares are Restricted Stock, then any new, additional or different
securities the Participant may become entitled to receive with respect to such
Shares by virtue of a stock dividend, stock split or any other change in the
corporate or capital structure of the Company shall be subject to the same
restrictions as the Restricted Stock.
11.2 Financial Statements. The Company shall provide financial
statements to each Participant prior to such Participant's purchase of Shares
under the Plan, and to each Participant annually during the period such
Participant has Awards outstanding; provided, however, the Company shall not be
required to provide such financial statements to Participants whose services in
connection with the Company assure them access to equivalent information.
12. Transferability. Awards granted under the Plan, and any interest
therein, shall not be transferable or assignable by Participant, and may not be
made subject to execution, attachment or similar process, otherwise than by will
or by the laws of descent and distribution or as consistent with the specific
Plan and Award Agreement provisions relating thereto. During the lifetime of the
Participant an Award shall be exercisable only by the Participant, and any
elections with respect to an Award, may be made only by the Participant.
13. Restrictions on Shares. At the discretion of the Board, the Company may
reserve to itself and/or its assignee(s) in the Award Agreement a right of
first refusal to purchase all Shares that a Participant (or a subsequent
transferee) may propose to transfer to a third party.
14. Certificates. All certificates for Shares or other securities
delivered under the Plan shall be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or advisable,
including restrictions under any applicable federal, state or foreign securities
law, or any rules, regulations and other requirements of the SEC or any stock
exchange or automated quotation system upon which the Shares may be listed.
15. Escrow; Pledge of Shares. To enforce any restrictions on a
Participant's Shares, the Committee may require the Participant to deposit all
certificates representing Shares, together with stock powers or other
instruments of transfer approved by the Committee, appropriately endorsed in
blank, with the Company or an agent designated by the Company to hold in escrow
until such restrictions have lapsed or terminated, and the Committee may cause a
legend or legends referencing such restrictions to be placed on the
certificates.
16. Exchange and Buy out of Awards. The Board, upon recommendation of
the Committee, may, at any time or from time to time, authorize the Company,
with the consent of the respective Participants, to issue new Awards in exchange
for the surrender and cancellation of any or all outstanding Awards. The Company
may at any time buy from a Participant an Award previously granted with payment
in cash, Shares (including Restricted Stock) or other consideration, based on
such terms and conditions as the Company and the Participant shall agree.
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17. Securities Law and Other Regulatory Compliance. An Award shall not
be effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed, as they are in effect on the date of grant of the
Award and also on the date of exercise or other Issuance. Notwithstanding any
other provision in the Plan, the Company shall have no obligation to issue or
deliver certificates for Shares under the Plan prior to (a) obtaining any
approvals from governmental agencies that the Company determines are necessary
or advisable, and/or (b) completion of any registration or other qualification
of such shares under any state or federal law or ruling of any governmental body
that the Company determines to be necessary or advisable. The Company shall be
under no obligation to register the Shares with the SEC or to effect compliance
with the registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and the Company
shall have no liability for any inability or failure to do so.
18. No Obligation to Employ. Nothing in the Plan or any Award granted
under the Plan shall confer or be deemed to confer on any Participant any right
to continue in the employ of, or to continue any other relationship with, the
Company or any Parent, Subsidiary or Affiliate of the Company or limit in any
way the right of the Company or any Parent, Subsidiary or Affiliate of the
Company to terminate Participant's employment or other relationship at any time,
with or without cause.
19. Corporate Transactions.
19.1 Assumption or Replacement of Awards by Successor. In the
event of (a) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the shareholders of
the company and the Awards granted under the Plan are assumed or replaced by the
successor corporation, which assumption shall be binding on all Participants);
(b) a dissolution or liquidation of the Company; (c) the sale of substantially
all of the assets of the Company; or (d) any other transaction which qualifies
as a "corporate transaction" under Section 424(a) of the Code wherein the
shareholders of the Company give up all of their equity interest in the Company
(except for the acquisition, sale or transfer of all or substantially all of the
outstanding shares of the Company), any or all outstanding Awards may, to the
extent permitted by applicable law, be replaced by the successor corporation (if
any), which replacement shall be binding on all Participants. In the
alternative, the successor corporation may substitute equivalent Awards or
provide substantially similar consideration to Participants as was provided to
shareholders (after taking into account the existing provisions of the Awards).
The successor corporation may also issue, in place of outstanding Shares of the
Company held by the Participant, substantially similar shares or other property
subject to repurchase restrictions no less favorable to the Participant.
In the event such successor corporation (if any) refuses to substitute
Options, as provided above, pursuant to a transaction described in this
Subsection 1 8.1, such Options shall expire on such transaction at such
time and on such conditions as the Board shall determine.
19.2 Other Treatment of Awards. Subject to any greater rights
granted to Participants under the foregoing provisions of this Section 18, in
the event of the occurrence of any transaction described in Section 18.1, any
outstanding Awards shall be treated as provided in the applicable agreement or
plan of merger, consolidation, dissolution, liquidation, sale of assets or other
"corporate transaction."
19.3 Assumption of Awards by the Company. The Company, from
time to time, also may grant Awards identical to awards granted by another
company, whether in connection with an acquisition of such other company or
otherwise, by granting an Award under the Plan in replacement of such other
company's award. Such replacement shall be permissible if the holder of the
replaced award would have been eligible to be granted an Award under the Plan if
the other company had applied the rules of the Plan to such grant. In the event
the Company grants Awards identical to an award granted by another company, the
terms and conditions of such award shall remain unchanged (except that the
exercise price and the number and nature of Shares issuable upon exercise of any
such option will be adjusted approximately pursuant to Section 424(a) of the
Code).
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20. Adoption and Shareholder Approval. The Plan shall become effective
on the date that it is adopted by the Board (the "Effective Date"). The Plan
shall be approved by the shareholders of the Company (excluding Shares issued
pursuant to this Plan), consistent with applicable laws, within twelve months
before or after the Effective Date. Upon the Effective Date, the Board may grant
Awards pursuant to the Plan; provided, however, that: (a) no Option may be
exercised prior to initial shareholder approval of the Plan; (b) no Option
granted pursuant to an increase in the number of Shares approved by the Board
shall be exercised prior to the time such increase has been approved by the
shareholders of the Company; and (C) in the event that shareholder approval is
not obtained within the time period provided herein, all Awards granted
hereunder shall be canceled, any Shares issued pursuant to any Award shall be
canceled and any purchase of Shares hereunder shall be rescinded. After the
Company becomes subject to Section 16(b) of the Exchange Act, the Company will
comply with the requirements of Rule 16b-3 (or its successor), as amended, with
respect to shareholder approval.
21. Term of Plan. The Plan will terminate ten (10) years from the Effective
Date or, if earlier, the date of shareholder approval of the Plan.
22. Amendment or Termination of Plan. The Board may at any time
terminate or amend the Plan in any respect, including without limitation
amendment of any form of Award Agreement or instrument to be executed pursuant
to the Plan; provided, however, that the Board shall not, without the approval
of the shareholders of the Company, amend the Plan in any manner that requires
such shareholder approval pursuant to the Code or the regulations promulgated
thereunder as such provisions apply to ISO plans or pursuant to the Exchange Act
or Rule 16b-3 (or its successor), as amended, thereunder.
23. Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board, the submission of the Plan to the shareholders of the Company for
approval, nor any provision of the Plan shall be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and bonuses otherwise than under the Plan, and such
arrangements may be either generally applicable or applicable only in specific
cases.
24. Definitions. As used in the Plan, the following terms shall have the
following meanings:
"Affiliate" means any corporation that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, another corporation, where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to cause the direction of the management and policies of
the corporation, whether through the ownership of voting securities, by contract
or otherwise.
"Award" means any award under the Plan, including any Option, Restricted
Stock or Stock Bonus.
"Award Agreement" means, with respect to each Award, the signed written
agreement between the Company and the Participant setting forth the terms
and conditions of the Award.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee appointed by the Board to administer the
Plan.
"Company" means BARPOINT.COM,INC, a Delaware corporation , or
any successor company.
"Disability" means a disability, whether temporary or permanent, partial or
total, as determined by the Committee.
"Disinterested Person" means a director who has not, during the period that
person is a member of
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the Committee and for one (1) year prior to service as a
member of the Committee, been granted or awarded equity
securities pursuant to the Plan or any other plan of the
Company or any Parent, Subsidiary or Affiliate of the Company,
except in accordance with the requirements set forth in Rule
16b-3(c)(2)(I) (and any successor regulation thereto) as
promulgated by the SEC under Section 16(b) of the Exchange
Act, as such rule is amended from time to time and as
interpreted by the SEC.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exercise Price" means the price at which a holder of an
Option may purchase the Shares issuable upon exercise of the
Option.
"Fair Market Value" means, as of any date, the value of a
share of the Company's Common Stock determined as follows:
(a) if such Common Stock is then quoted on a Nasdaq market, its last
reported sale price on the Nasdaq market or, if no such reported sale takes
place on such date, the average of the closing bid and asked prices;
(b) if such Common Stock is publicly traded and is then listed on a
national securities exchange, the last reported sale price or, if no such
reported sale takes place on such date, the average of the closing bid and
asked prices on the principal national securities exchange on which the
Common Stock is listed or admitted to trading;
(c) if such Common Stock is publicly traded but is not quoted on a Nasdaq
market nor listed or admitted to trading on a national securities exchange,
the average of the closing bid and asked prices on such date, as reported
by The Wall Street Journal, for the over-the-counter market; or
(d) if none of the foregoing is applicable, by the Board of Directors of
the Company in good faith.
"Insider" means an officer or director of the Company or any
other person whose transactions in the Company's Common Stock
are subject to Section 16 of the Exchange Act.
"Option" means an award of an option to purchase Shares pursuant to Section
5.
"Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if at
the time of the granting of an Award under the Plan, each of
such corporations other than the Company owns stock possessing
fifty percent (50%), or more, of the total combined voting
power of all classes of stock in one of the other corporations
in such chain.
"Participant" means a person who receives an Award under the Plan.
"Plan" means this BARPOINT.COM, INC. Equity Incentive Plan, as amended from
time to time.
"Restricted Stock Award" means an award of Shares pursuant to Section 6.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of the Company's Common Stock reserved for issuance
under the Plan, as
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adjusted pursuant to Sections 2 and 15, and any successor security.
"Stock Bonus" means an award of Shares, or cash in lieu of Shares, pursuant
to Section 7.
"Subsidiary" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company
if, at the time of granting of the Award, each of the
corporations other than the last corporation in the unbroken
chain owns stock possessing fifty percent (50%), or more, of
the total combined voting power of all classes of stock in one
of the other corporations in such claim.
"Termination" or "Terminated" means, for purposes of the Plan
with respect to a Participant, that the Participant has ceased
to provide services as an employee, director, consultant or
advisor, to the Company or a Parent, Subsidiary or Affiliate
of the Company, except in the case of sick leave, military
leave, or any other leave of absence approved by the
Committee, provided, that such leave is for a period of not
more than ninety (90) days, or reinstatement upon the
expiration of such leave is guaranteed by contract or statute.
The Committee shall have sole discretion to determine whether
a Participant has ceased to provide services and the effective
date on which the Participant ceased to provide services (the
"Termination Date").
