EXHIBIT 4.3
BARPOINT.COM, INC.
EQUITY INCENTIVE PLAN, AS AMENDED
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 four million five hundred thousand (4,500,000)
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. ISOs (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
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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;
(b) recommend to the Board amendments to the rules
and regulations relating to the Plan;
(c) recommend to the Board persons 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 has 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.
One East Broward Boulevard
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
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Options within the meaning of the Code ("ISOs") or Nonqualified Stock Options
("NQSOs"), 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:
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.
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(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 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 ISOs. The aggregate Fair Market Value
(determined as of the date of grant) of Shares with respect to which ISOs 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 ISOs are exercisable for the first time by a
Participant during any calendar year exceeds One Hundred Thousand Dollars
($100,000), the Options for the first One Hundred Thousand Dollars ($100,000)
worth of Shares to become exercisable in such calendar year shall be ISOs and
the Options for the amount in excess of One Hundred Thousand Dollars ($100,000)
that become exercisable in that calendar year shall be NQSOs. 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 SOs, 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 ISOs 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
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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.
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 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.
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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 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 purchases 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
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(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.
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
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the particular Shares as to which the
election is made;
(c) all elections shall be subject 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 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.
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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.
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.
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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).
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.
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"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 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.
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"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 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").
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