<PAGE> 1
As filed with the Securities and Exchange Commission on August 23rd, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARKETWATCH.COM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3315360
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
825 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(Address of principal executive offices)
OPTIONS TO PURCHASE COMMON STOCK ASSUMED BY THE REGISTRANT
PURSUANT TO AN AGREEMENT AND PLAN OF REORGANIZATION DATED AS OF APRIL 28, 1999
(Full title of the plan)
J. PETER BARDWICK
CHIEF FINANCIAL OFFICER
MARKETWATCH.COM, INC.
825 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 733-0500
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
JEFFREY R. VETTER, ESQ.
SAYRE E. STEVICK, ESQ.
CYNTHIA E. GARABEDIAN, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
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PROPOSED
AMOUNT PROPOSED MAXIMUM MAXIMUM
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 585,824 (1) $ 6.23 $3,650,803 $1,015
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</TABLE>
(1) Represents shares subject to outstanding options granted under the Restated
Concerto Technologies Inc. 1995 Stock Plan and assumed by the Registrant.
(2) Weighted average exercise price per share for such assumed outstanding
options.
(3) Calculated based on the weighted average exercise price per share for such
options, pursuant to Rule 457(h)(1) of the Securities Act of 1933, as
amended.
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MARKETWATCH.COM, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-K filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which contains audited financial
statements for the Registrant's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 8-A filed with the
Commission under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred arising under the Securities Act of 1933, as amended (the "Securities
Act")).
As permitted by the Delaware General Corporation Law, the Registrant's
Amended and Restated Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the directors duty of loyalty to the Registrant or its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under section 174 of the Delaware General
Corporation Law (regarding unlawful dividends and stock purchases) or (iv) for
any transaction from which the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, the Bylaws of the
Registrant provide that (i) the Registrant is required to indemnify its
directors and officers to the fullest extent permitted by
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the Delaware General Corporation Law, subject to certain very limited
exceptions, (ii) the Registrant may indemnify its other employees and agents as
set forth in the Delaware General Corporation Law, (iii) the Registrant is
required to advance expenses, as incurred, to its directors and executive
officers in connection with a legal proceeding to the fullest extent permitted
by the Delaware General Corporation Law, subject to certain very limited
exceptions and (iv) the rights conferred in the Bylaws are not exclusive.
The Registrant has entered into Indemnification Agreements with each of
its directors and executive officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's Amended and Restated Certificate of Incorporation and
to provide additional procedural protections. At present, there is no pending
litigation or proceeding involving a director, officer or employee of the
Registrant regarding which indemnification is sought, nor is the Registrant
aware of any threatened litigation that may result in claims for
indemnification.
The indemnification provision in the Registrant's Amended and Restated
Certificate of Incorporation, Bylaws and the Indemnification Agreements entered
into between the Registrant and each of its directors and executive officers may
be sufficiently broad to permit indemnification of the Registrant's directors
and executive officers for liabilities arising under the Securities Act.
The Registrant, with approval by the Registrant's Board of Directors,
has obtained directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit No. Description
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4.01 The Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.01 of Registrant's Annual Report on Form 10-K (File No.
000-25113) filed with the Commission on March 31, 1999
(the "Form 10-K")).
4.02 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.03 of Registrant's Registration Statement on
Form S-1 (File No. 333-65569) filed with and declared
effective by the Commission on January 14, 1999 (the
"Form S-1")).
4.03 Restated Concerto Technologies Inc. 1995 Stock Plan and
related forms of Option Agreement.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.01 Power of Attorney (see page II-4).
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on the 23rd day
of August, 1999.
MARKETWATCH.COM, INC..
By: /s/ LAWRENCE S. KRAMER
-------------------------------------
Lawrence S. Kramer
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints Lawrence S. Kramer and J. Peter
Bardwick, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8, and to file the same
with all exhibits thereto and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or his or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
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PRINCIPAL EXECUTIVE OFFICER:
/s/ LAWRENCE S. KRAMER President, Chief Executive August 23, 1999
- ----------------------------------- Officer and Director
Lawrence S. Kramer
PRINCIPAL FINANCIAL OFFICER:
/s/ J. PETER BARDWICK Chief Financial Officer
- ----------------------------------- August 23, 1999
J. Peter Bardwick
PRINCIPAL ACCOUNTING OFFICER:
/s/ JOSEPH BRICHLER Controller
- ----------------------------------- August 23, 1999
Joseph Brichler
ADDITIONAL DIRECTORS:
/s/ JAMES A. DEPALMA Director
- ----------------------------------- August 23, 1999
James A. DePalma
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Andrew Heyward
- ----------------------------------- Director August 23, 1999
Andrew Heyward
- ----------------------------------- Director August 23, 1999
Alan J. Hirschfield
/s/ PHILIP D. HOTCHKISS
- ----------------------------------- Director August 23, 1999
Philip D. Hotchkiss
/s/ MARK F. IMPERIALE
- ----------------------------------- Director August 23, 1999
Mark F. Imperiale
/s/ Michael H. Jordan
- ----------------------------------- Director August 23, 1999
Michael H. Jordan
/s/ ROBERT LESSIN
- ----------------------------------- Director August 23, 1999
Robert Lessin
/s/ DANIEL MASON
- ----------------------------------- Director August 23, 1999
Daniel Mason
- ----------------------------------- Director August 23, 1999
Allan R. Tessler
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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4.01 The Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.01 of Registrant's Annual Report on Form 10-K (File No.
000-25113) filed with the Commission on March 31, 1999
(the "Form 10-K")).
4.02 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.03 of Registrant's Registration Statement on
Form S-1 (File No. 333-65569) filed with and declared
effective by the Commission on January 14, 1999 (the
"Form S-1")).
4.03 Restated Concerto Technologies Inc. 1995 Stock Plan and
related forms of Option Agreement.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.01 Power of Attorney (see page II-4).
</TABLE>
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EXHIBIT 4.03
RESTATED
CONCERTO TECHNOLOGIES INC.
(FORMERLY KNOWN AS
CONCERTO CAPITAL MANAGEMENT, INC.)
1995 STOCK PLAN
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SECTION CONTENTS PAGE
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1. General Purpose of Plan; Definitions ............................... 1
2. Administration ..................................................... 3
3. Stock Subject to Plan .............................................. 4
4. Eligibility ........................................................ 4
5. Stock Options ...................................................... 5
6. Restricted Stock ................................................... 9
7. Transfer, Leave of Absence, etc. ................................... 10
8. Amendments and Termination ......................................... 11
9. Unfunded Status of Plan ............................................ 11
10. General Provisions ................................................. 11
11. Effective Date of Plan ............................................. 13
</TABLE>
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RESTATED
CONCERTO TECHNOLOGIES INC.
(FORMERLY KNOWN AS
CONCERTO CAPITAL MANAGEMENT, INC.)
1995 STOCK PLAN
SECTION 1. General Purpose of Plan; Definitions.
The name of this plan is the Restated Concerto Technologies Inc.
(Formerly known as Concerto Capital Management, Inc.) 1995 Stock Plan (the
"Plan"). The purpose of the Plan is to enable Concerto Technologies Inc. (the
"Company") and its Subsidiaries to retain and attract executives and other key
employees, directors and consultants who contribute to the Company's success by
their ability, ingenuity and industry, and to enable such individuals to
participate in the long-term success and growth of the Company by giving them a
proprietary interest in the Company.
For purposes of the Plan, the following terms shall be defined as set
forth below:
a. "Board" means the Board of Directors of the Company as it may be
comprised from time to time.
b. "Cause" means a felony conviction of a participant or the failure
of a participant to contest prosecution for a felony, willful
misconduct, dishonesty or intentional violation of a statute,
rule or regulation, any of which, in the judgment of the Company,
is harmful to the business or reputation of the Company.
c. "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute.
d. "Committee" means the Committee referred to in Section 2 of the
Plan.
e. "Consultant" means any person performing services for the Company
or any Parent Corporation or Subsidiary of the Company and who is
not an employee of the Company or any Parent Corporation or
Subsidiary of the Company.
f. "Company" means Concerto Technologies Inc. (Formerly known as
Concerto Capital Management, Inc.), a corporation organized under
the laws of the State of Minnesota (or any successor
corporation).
g. "Disability" means permanent and total disability as determined
by the Committee.
h. "Early Retirement" means retirement, with consent of the
Committee at the time of retirement, from active employment with
the Company and any Subsidiary or Parent Corporation of the
Company.
<PAGE> 4
i. "Fair Market Value" of Stock on any given date shall be
determined by the Committee as follows: (a) if the Stock is
listed for trading on one or more national securities exchanges,
or is traded on the Nasdaq Stock Market, the last reported sales
price on the principal such exchange or the Nasdaq Stock Market
on the date in question, or if such Stock shall not have been
traded on such principal exchange on such date, the last reported
sales price on such principal exchange or the Nasdaq Stock Market
on the first day prior thereto on which such Stock was so traded;
or (b) if the Stock is not listed for trading on a national
securities exchange or the Nasdaq Stock Market, but is traded in
the over-the-counter market, including the Nasdaq System, closing
bid price for such Stock on the date in question, or if there is
no such bid price for such Stock on such date, the closing bid
price on the first day prior thereto on which such price existed;
or (c) if neither (a) or (b) is applicable, by any means fair and
reasonable by the Committee, which determination shall be final
and binding on all parties.
j. "Incentive Stock Option" means any Stock Option intended to be
and designated as an "Incentive Stock Option" within the meaning
of Section 422 of the Code.
k. "Non-Employee Director" means a "Non-Employee Director" within
the meaning of Rule 16b-3(b)(3) under the Securities Exchange Act
of 1934, as amended, or any successor rule.
1. "Non-Qualified Stock Option" means any Stock Option that is not
an Incentive Stock Option, and is intended to be and is
designated as a "Non-Qualified Stock Option."
m. "Normal Retirement" means retirement from active employment with
the Company and any Subsidiary or Parent Corporation of the
Company on or after age 60.
n. "Outside Director" shall mean a director who (a) is not a current
employee of the Company or any member of an affiliated group
which includes the Company; (b) is not a former employee of the
Company who receives compensation for prior services (other than
benefits under a tax-qualified retirement plan) during the
taxable year; (c) has not been an officer of the Company; (d)
does not receive remuneration from the Company, either directly
or indirectly, in any capacity other than as a director, except
as otherwise permitted under Code Section 162(m) and regulations
thereunder. For this purpose, remuneration includes any payment
in exchange for goods or services. This definition shall be
further governed by the provisions of Code Section 162(m) and
regulations promulgated thereunder.
o. "Parent Corporation" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the
Company if each of the corporations (other than the Company) owns
stock possessing 50 % or more of the total combined voting power
of all classes of stock in one of the other corporations in the
chain.
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p. "Restricted Stock" means an award of shares of Stock that are
subject to restrictions under Section 6 below.
q. "Retirement" means Normal Retirement or Early Retirement.
r. "Stock" means the Common Stock of the Company.
s. "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5 below.
t. "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each
of the corporations (other than the last corporation in the
unbroken chain) owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in the chain.
SECTION 2. Administration.
The Plan shall be administered by the Board of Directors or by a
Committee of not less than two directors, all of whom shall be Non-Employee
Directors upon the Company becoming subject to the insider reporting
requirements of Section 16 of the Securities Exchange Act of 1934, as amended,
and also Outside Directors upon the Company becoming subject to the requirements
of Rule 162(m) of the Code. Committee members shall be appointed by the Board of
Directors of the Company and shall serve at the pleasure of the Board. Any or
all of the functions of the Committee specified in the Plan may be exercised by
the Board, unless the Plan specifically states otherwise.
The Committee shall have the power and authority to grant to eligible
employees, members of the Board of Directors, or Consultants, pursuant to the
terms of the Plan: (i) Stock Options or (ii) Restricted Stock awards.
In particular, the Committee shall have the authority:
(i) to select the officers and other key employees of the Company and
its Subsidiaries and other eligible persons to whom Stock Options
and/or Restricted Stock may from time to time be granted
hereunder;
(ii) to determine whether and to what extent Incentive Stock Options
and/or Restricted Stock awards, or a combination of the
foregoing, are to be granted hereunder;
(iii) to determine the number of shares to be covered by each such
award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but
not limited to, any restriction on any Stock Option or other
award and/or the shares of Stock relating thereto); and
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<PAGE> 6
(v) to determine whether, to what extent and under what circumstances
Stock and other amounts payable with respect to an award under
this Plan shall be deferred either automatically or at the
election of the participant.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any award issued under the Plan (and any agreements relating thereto);
and to otherwise supervise the administration of the Plan. The Committee may
delegate to executive officers of the Company the authority to exercise the
powers specified in (i), (ii), (iii), (iv), and (v) above with respect to
persons who are not executive officers of the Company.
All decisions made by the Committee pursuant to the provisions of the
Plan shall be final and binding on all persons, including the Company and Plan
participants.
SECTION 3. Stock Subject to Plan.
The total number of shares of Stock reserved and available for
distribution under the Plan shall be 650,000 shares. Such shares may consist,
in whole or in part, of authorized and unissued shares.
If any shares that have been optioned cease to be subject to Stock
Options, or if any shares subject to any Restricted Stock award granted
hereunder are forfeited or such award otherwise terminates without a payment
being made to the participant, such shares shall again be available for
distribution in connection with future awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, other change in corporate structure affecting
the Stock, or spin-off or other distribution of assets to shareholders, such
substitution or adjustment shall be made in the aggregate number of shares
reserved for issuance under the Plan, in the number and option price of shares
subject to outstanding options granted under the Plan, and in the number of
shares subject to Restricted Stock awards granted under the Plan as may be
determined to be appropriate by the Committee, in its sole discretion, provided
that the number of shares subject to any award shall always be a whole number.
SECTION 4. Eligibility.
Officers, other key employees of the Company and Subsidiaries, Directors
and Consultants who are responsible for or contribute to the management, growth
and/or profitability of the business of the Company and its Subsidiaries are
eligible to be granted Stock Options or Restricted Stock awards under the Plan.
The optionees and participants under the Plan shall be selected from time to
time by the Committee, in its sole discretion, from among those eligible, and
the Committee shall determine, in its sole discretion, the number of shares
covered by each award.
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<PAGE> 7
Notwithstanding the foregoing, upon the Company becoming subject to the
requirements of Rule 162(m) of the Code, no person shall receive grants of Stock
Options under this Plan which exceed 300,000 shares during any fiscal year of
the Company.
SECTION 5. Stock Options.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
The Stock Options granted under the Plan may be of two types: (i)
Incentive Stock Options and (ii) Non-Qualified Stock Options. No Incentive Stock
Options shall be granted under the Plan more than ten years after the Plan is
adopted.
The Committee shall have the authority to grant any optionee Incentive
Stock Options, Non-Qualified Stock Options, or both types of options. To the
extent that any option does not qualify as an Incentive Stock Option, it shall
constitute a separate Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify either the Plan or any Incentive Stock Option
under Section 422 of the Code. The preceding sentence shall not preclude any
modification or amendment to an outstanding Incentive Stock Option, whether or
not such modification or amendment results in disqualification of such Option as
an Incentive Stock Option, provided the optionee consents in writing to the
modification or amendment.
Options granted under the Plan shall be subject to the following terms
and conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable.
(a) Option Price. The option price per share of Stock purchasable under
a Stock Option shall be determined by the Committee at the time of grant. In no
event shall the option price per share of Stock purchasable under an Incentive
Stock Option be less than 100% of the Fair Market Value of the Stock on the date
of the grant of the option. If an employee owns or is deemed to own (by reason
of the attribution rules applicable under Section 424(d) of the Code) more than
10% of the combined voting power of all classes of stock of the Company or any
Parent Corporation or Subsidiary and an Incentive Stock Option is granted to
such employee, the option price shall be no less than 110% of the Fair Market
Value of the Stock on the date the option is granted.
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than ten
years after the date the option is granted. If an employee owns or is deemed to
own (by reason of the attribution rules of Section 424(d) of the Code) more than
10 % of the combined voting power of all classes of stock of the Company or any
Parent Corporation or Subsidiary and an Incentive Stock Option is granted to
such employee, the term of such option shall be no more than five years from the
date of grant.
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<PAGE> 8
(c) Exercisability. Stock Options shall be exercisable at such time or
times as determined by the Committee at or after grant. If the Committee
provides, in its discretion, that any option is exercisable only in
installments, the Committee may waive such installment exercise provisions at
any time. Notwithstanding anything contained in the Plan to the contrary, the
Committee may, in its discretion, extend or vary the term of any Stock Option or
any installment thereof. whether or not the optionee is then employed by the
Company, if such action is deemed to be in the best interests of the Company.
Notwithstanding anything contained in the Plan to the contrary, in the event of
the sale by the Company of substantially all of its assets and the consequent
discontinuance of its business, or in the event of a merger, exchange,
consolidation or liquidation of the Company, the Board shall, in its sole
discretion, in connection with the Board's adoption of the plan for sale,
merger, exchange, consolidation or liquidation, provide for one or more of the
following: (i) the acceleration of the exercisability of any or all outstanding
Stock Options; (ii) the complete termination of this Plan and cancellation of
outstanding Stock Options not exercised prior to a date specified by the Board
(which date shall give optionees a reasonable period of time in which to
exercise vested options prior to the effectiveness of such sale, merger,
exchange, consolidation or liquidation); and (iii) the continuance of the Plan
with respect to the exercise of options which were outstanding as of the date of
adoption by the Board of such plan for sale, merger, exchange, consolidation or
liquidation and provide to optionees holding such options the right to exercise
their respective options as to an equivalent number of shares of stock of the
corporation succeeding the Company by reason of such sale, merger, exchange,
consolidation or liquidation. The grant of an option pursuant to the Plan shall
not limit in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, exchange or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
(d) Method of Exercise. Stock Options may be exercised in whole or in
part at any time during the option period by giving written notice of exercise
to the Company specifying the number of shares to be purchased. Such notice
shall be accompanied by payment in full of the purchase price, either by check.
or by any other form of legal consideration deemed sufficient by the Committee
and consistent with the Plan's purpose and applicable law, including promissory
notes or a properly executed exercise notice together with irrevocable
instructions to a broker acceptable to the Company to promptly deliver to the
Company the amount of sale or loan proceeds to pay the exercise price. As
determined by the Committee at the time of grant or exercise, in its sole
discretion, payment in full or in part may also be made in the form of Stock
already owned by the optionee (which have been owned for more than six months on
the date of surrender) or, in the case of the exercise of a Non-Qualified Stock
Option, by delivery of Restricted Stock subject to an award hereunder (based on
the Fair Market Value of the Stock on the date the option is exercised, as
determined by the Committee), provided, however, that, in the case of an
Incentive Stock Option, the right to make a payment in the form of already owned
shares may be authorized only at the time the option is granted, and provided
further that in the event payment is made in the form of shares of Restricted
Stock award, the optionee will receive a portion of the option shares in the
form of, and in an amount equal to, the Restricted Stock award tendered as
payment by the optionee. If the terms of an option so permit, an optionee may
elect to pay all or part of the option exercise price by having the Company
withhold from the
6
<PAGE> 9
shares of Stock that would otherwise be issued upon exercise that number of
shares of Stock having a Fair Market Value equal to the aggregate option
exercise price for the shares with respect to which such election is made. No
shares of Stock shall be issued until full payment therefor has been made. An
optionee shall generally have the rights to dividends and other rights of a
shareholder with respect to shares subject to the option when the optionee has
given written notice of exercise, has paid in full for such shares, and, if
requested, has given the representation described in paragraph (a) of Section
10.
(e) Non-transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution, and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee. Notwithstanding the foregoing, the
Committee may, in its discretion. determine that a Stock Option may be exercised
by a person other than the optionee and that the Stock Option may be
transferable, in each case based on the tax and federal securities law
considerations then in effect.
(f) Termination by Death. If an optionee's employment by the Company and
any Subsidiary or Parent Corporation terminates by reason of death, the Stock
Option may thereafter be immediately exercised, to the extent then exercisable,
by the legal representative of the estate or by the legatee of the optionee
under the will of the optionee, for a period of one year from the date of such
death or until the expiration of the stated term of the option, whichever period
is shorter.
(g) Termination by Reason of Disability. If an optionee's employment by
the Company and any Subsidiary or Parent Corporation terminates by reason of
Disability, any Stock Option held by such optionee my thereafter be exercised,
to the extent it was exercisable at the time of termination due to Disability,
but may not be exercised after one year from the date of such termination of
employment or the expiration of the stated term of the option, whichever period
is the shorter. In the event of termination of employment by reason of
Disability, if an Incentive Stock Option is exercised after the expiration of
the exercise periods that apply for purposes of Section 422 of the Code, the
option will thereafter be treated as a Non-Qualified Stock Option.
(h) Termination by Reason of Retirement. If an optionee's employment by
the Company and any Subsidiary or Parent Corporation terminates by reason of
Retirement, any Stock Option held by such optionee may thereafter be exercised
to the extent it was exercisable at the time of such Retirement, but may not be
exercised after one year from the date of such termination of employment or the
expiration of the stated term of the option, whichever period is the shorter. In
the event of termination of employment by reason of Retirement, if an Incentive
Stock Option is exercised after the expiration of the exercise periods that
apply for purposes of Section 422 of the Code, the option will thereafter be
treated as a Non-Qualified Stock Option.
(i) Other Termination. Unless otherwise determined by the Committee, if
an optionee's employment by the Company and any Subsidiary or Parent Corporation
terminates for any reason other than death, Disability or Retirement, the Stock
Option shall thereupon terminate, except that, if the optionee is involuntarily
terminated without Cause by the Company
7
<PAGE> 10
and any Subsidiary or Parent Corporation, the option may be exercised to the
extent it was exercisable at such termination for the lesser of three months or
the balance of the option's term.
(j) Annual Limit on Incentive Stock Options. The aggregate Fair Market
Value (determined as of the time the Stock Option is granted) of the Common
Stock with respect to which an Incentive Stock Option under this Plan or any
other plan of the Company and any Subsidiary or Parent Corporation is
exercisable for the first time by an optionee during any calendar year shall not
exceed $100,000.
(k) Directors Who Are Not Employees. Each person serving as a member of
the Board of Directors who is not an employee of the Company, any Parent
Corporation or a Subsidiary shall, upon the approval of this Plan by the Board,
as restated (subject to shareholder approval of this Plan), or as of the date of
the meeting in which such director is first elected to the Board of Directors,
automatically be granted an Option to purchase 40,000 shares of Stock at an
option price per share equal to 100% of the Fair Market Value of a share of
Stock on such date, i.e. either the date of this Plan's approval by the Board or
the date of the meeting in which such Director is first elected, as applicable.
Such option shall vest immediately with respect to 25,000 shares purchasable
under such option, and 5,000 shares purchasable under such option shall vest an
each of the next three anniversaries of the date of grant. All such options
shall be designated as Non-Qualified Options and shall be subject to the same
terms and provisions as are then in effect with respect to the granting of
Non-Qualified Options to officers and by employees of the Company, except that
the term of each such Option shall be ten years. Upon termination of a person's
service as a Director, the unvested portion of an option shall terminate
immediately and such Director will be allowed to exercise the vested portion of
such option for a period of one year after the date on which such person ceases
to be a Director, after which date the vested portion of the option, if not
exercised, shall terminate.
In addition, any person who is re-elected as a Director of the Company
after four years of continuous service and who is not an employee of the
Company, any Parent Corporation or a Subsidiary shall, as of the date of the
meeting in which such Director is so re-elected to the Board of Directors,
automatically be granted options to purchase 20,000 shares of Stock at an option
price equal to 100% of the Fair Market Value of a share of Stock on the date of
such re-election. Such option shall vest immediately with respect to 5,000
shares purchasable under such option, and 5,000 shares purchasable under such
option shall vest on each of the next three anniversaries of the date of grant.
All such options shall be designated as Non-Qualified Options and shall be
subject to the same terms and provisions as are then in effect with respect to
the granting of Non-Qualified Options to officers and by employees of the
Company, except that the term of each such Option shall be ten years. Upon
termination of a person's service as a Director, the unvested portion of an
option shall terminate immediately and such Director will be allowed to exercise
the vested portion of such option for a period of one year after the date on
which such person ceases to be a Director, after which date the vested portion
of the option, if not exercised, shall terminate.
Subject to the foregoing, all provisions of this Plan not inconsistent
with the foregoing shall apply to options granted under this Section 5(k).
8
<PAGE> 11
SECTION 6. Restricted Stock.
(a) Administration. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted under the Plan. The Committee shall
determine the officers, key employees, members of the Board of Directors and
Consultants of the Company and Subsidiaries to whom, and the time or times at
which, grants of Restricted Stock will be made, the number of shares to be
awarded, the time or times within which such awards may be subject to
forfeiture, and all other conditions of the awards. The Committee may also
condition the grant of Restricted Stock upon the attainment of specified
performance goals. The provisions of Restricted Stock awards need not be the
same with respect to each recipient.
(b) Awards and Certificates. The prospective recipient of an award of
shares of Restricted Stock shall not have any rights with respect to such award,
unless and until such recipient has executed an agreement evidencing the award
and has delivered a fully executed copy thereof to the Company, and has
otherwise complied with the then applicable terms and conditions.
(i) Each participant shall be issued a stock certificate in
respect of shares of Restricted Stock awarded under the Plan. Such
certificate shall be registered in the name of the participant, and
shall bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such award, substantially in the following
farm:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions
(including forfeiture) of the Restated Concerto Technologies Inc.
1995 Stock Plan and an Agreement entered into between the
registered owner and Concerto, Inc. Copies of such Plan and
Agreement are on file in the offices of Concerto Technologies
Inc., 7600 France Ave., Suite 106, Edina, MN 55435."
(ii) The Committee shall require that the stock certificates
evidencing such shares be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any
Restricted Stock award, the participant shall have delivered a stock
power, endorsed in blank, relating to the Stock covered by such award.
(c) Restrictions and Conditions. The shares of Restricted Stock awarded
pursuant to the Plan shall be subject to the following restrictions and
conditions:
(i) Subject to the provisions of this Plan and the award
agreement, during a period set by the Committee commencing with the date
of such award (the "Restriction Period"), the participant shall not be
permitted to sell, transfer, pledge or assign shares of Restricted Stock
awarded under the Plan. In no event shall the Restriction Period be less
than one (1) year. Within these limits, the Committee may provide for
the lapse of such restrictions in installments where deemed appropriate.
(ii) Except as provided in paragraph (c)(i) of this Section 6,
the participant shall have, with respect to the shares of Restricted
Stock, all of the rights of a shareholder
9
<PAGE> 12
of the Company, including the right to vote the shares and the right to
receive any cash dividends. The Committee, in its sole discretion, may
permit or require the payment of cash dividends to be deferred and, if
the Committee so determines, reinvested in additional shares of
Restricted Stock (to the extent shares are available under Section 3 and
subject to paragraph (f) of Section 10). Certificates for shares of
unrestricted Stock shall be delivered to the grantee promptly after, and
only after, the period of forfeiture shall have expired without
forfeiture in respect of such shares of Restricted Stock.
(iii) Subject to the provisions of the award agreement and
paragraph (c)(iv) of this Section 6, upon termination of employment for
any reason during the Restriction Period, all shares still subject to
restriction shall be forfeited by the participant.
(iv) In the event of special hardship circumstances of a
participant whose employment is terminated (other than for Cause),
including death, Disability or Retirement, or in the event of an
unforeseeable emergency of a participant still in service, the Committee
may, in its sole discretion, when it finds that a waiver would be in the
best interest of the Company, waive in whole or in part any or all
remaining restrictions with respect to such participant's shares of
Restricted Stock.
(v) Notwithstanding the foregoing, in the event of the sale by
the Company of substantially all of its assets and the consequent
discontinuance of its business, or in the event of a merger, exchange,
consolidation or liquidation of the Company, the Board shall, in its
sole discretion, in connection with the Board's adoption of the plan for
sale, merger, exchange, consolidation or liquidation, provide for one or
more of the following with respect to Restricted Stock Awards that are,
on such date, still subject to a Restriction Period: (i) the removal of
the restrictions on any or all outstanding Restricted Stock Awards; (ii)
the complete termination of this Plan and forfeiture of outstanding
Restricted Stock Awards prior to a date specified by the Board; and
(iii) the continuance of the Plan with respect to the Restricted Stock
Award which were outstanding as of the date of adoption by the Board of
such plan for sale, merger, exchange, consolidation or liquidation and
provide to participants holding Restricted Stock Awards the right to an
equivalent number of restricted shares of stock of the corporation
succeeding the Company by reason of such sale, merger, exchange,
consolidation or liquidation. The grant of a Restricted Stock Award
pursuant to the Plan shall not limit in any way the right or power of
the Company to make adjustments. reclassifications, reorganizations or
changes of its capital or business structure or to merge, exchange or
consolidate or to dissolve, liquidate, sell or transfer all or any part
of its business or assets.
SECTION 7. Transfer, Leave of Absence, etc.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer of an employee from the Company to a Parent Corporation
or Subsidiary, or from a Parent Corporation or Subsidiary to the Company, or
from one Subsidiary to another;
10
<PAGE> 13
(b) a leave of absence, approved in writing by the Committee, for
military service or sickness, or for any other purpose approved by the Company
if the period of such leave does not exceed ninety (90) days (or such longer
period as the Committee may approve, in its sole discretion); and
(c) a leave of absence in excess of ninety (90) days, approved in
writing by the Committee, but only if the employee's right to reemployment is
guaranteed either by a statute or by contract, and provided that, in the case of
any leave of absence, the employee returns to work within 30 days after the end
of such leave.
SECTION 8. Amendments and Termination.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration, or discontinuation shall be made (i) which would impair the rights
of an optionee or participant under a Stock Option or Restricted Stock award
theretofore granted, without the optionee's or participant's consent, or (ii)
which without the approval of the stockholders of the Company would cause the
Plan to no longer comply with Section 422 of the Code or any other regulatory
requirements.
The Committee may amend the terms of any award or option theretofore
granted, prospectively or retroactively, but no such amendment shall impair the
rights of any holder without his or her consent except to the extent authorized
under the Plan. The Committee may also substitute new Stock Options for
previously granted options, including previously granted options having higher
option prices.
SECTION 9. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Stock or payments in lieu of or with respect to awards
hereunder, provided, however, that the existence of such trusts or other
arrangements is consistent with the unfunded status of the Plan.
SECTION 10. General Provisions.
(a) The Committee may require each person purchasing shares pursuant to
a Stock Option under the Plan to represent to and agree with the Company in
writing that the optionee is acquiring the shares without a view to distribution
thereof. The certificates for such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Stock delivered under the Plan pursuant
to any Restricted Stock awards shall be subject to such stock transfer orders
and other restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the
11
<PAGE> 14
Securities and Exchange Commission, any stock exchange upon which the Stock is
then listed, and any applicable Federal or state securities laws, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
(b) Subject to paragraph (d) below, recipients of Restricted Stock
awards under the Plan (other than Stock Options) are not required to make any
payment or provide consideration other than the rendering of services.
(c) Nothing contained in this Plan shall prevent the Board of Directors
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases. The adoption
of the Plan shall not confer upon any employee of the Company or any Subsidiary
any right to continued employment with the Company or a Subsidiary, as the case
may be, nor shall it interfere in any way with the right of the Company or a
Subsidiary to terminate the employment of any of its employees at any time.
(d) Each participant shall, no later than the date as of which any part
of the value of an award first becomes includible as compensation in the gross
income of the participant far Federal income tax purposes, pay to the Company,
or make arrangements satisfactory to the Committee regarding payment of, any
Federal, state, or local taxes of any kind required by law to be withheld with
respect to the award. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements and the Company and Subsidiaries
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the participant. With respect to
any award under the Plan, if the terms of such award so permit, a participant
may elect by written notice to the Company to satisfy part or all of the
withholding tax requirements associated with the award by (i) authorizing the
Company to retain from the number of shares of Stock that would otherwise be
deliverable to the participant, or (ii) delivering to the Company from shares of
Stock already owned by the participant, that number of shares having an
aggregate Fair Market Value equal to part or all of the tax payable by the
participant under this Section 10(d). Any such election shall be in accordance
with, and subject to, applicable tax and securities laws, regulations and
rulings.
(e) At the time of grant, the Committee may provide in connection with
any grant made under this Plan that the shares of Stock received as a result of
such grant shall be subject to a repurchase right in favor of the Company,
pursuant to which the participant shall be required to offer to the Company upon
termination of employment for any reason any shares that the participant
acquired under the Plan, with the price being the then Fair Market Value of the
Stock or, in the case of a termination for Cause, an amount equal to the cash
consideration paid for the Stock, subject to such other terms and conditions as
the Committee may specify at the time of grant. The Committee may, at the time
of the grant of an award under the Plan, provide the Company with the right to
repurchase, or require the forfeiture of, shares of Stock acquired pursuant to
the Plan by any participant who, at any time within two years after termination
of employment with the Company, directly or indirectly competes with, or is
employed by a competitor of, the Company.
12
<PAGE> 15
(f) The reinvestment of dividends in additional Restricted Stock at the
time of any dividend payment shall only be permissible if the Committee (or the
Company's chief financial officer) certifies in writing that under Section 3
sufficient shares are available for such reinvestment (taking into account then
outstanding Stock Options and other Plan awards).
SECTION 11. Effective Date of Plan.
The Plan shall be effective on the date it is approved by a vote of the
holders of a majority of the Stock present and entitled to vote at a meeting of
the Company's shareholders.
13
<PAGE> 16
FIRST AMENDMENT
TO THE
BIGCHARTS INC.
(FORMERLY KNOWN AS
CONCERTO TECHNOLOGIES INC.)
1995 STOCK PLAN
The following amendments were adopted to the Company's 1995 Stock Plan
(the "Plan") effective September 11, 1998.
1 Section l(f) is amended and restated in its entirety to read as
follows:
f. "Company" means BigCharts Inc. (formerly known as Concerto
Technologies Inc.), a corporation organized under the laws
of the State of Minnesota (or any successor corporation).
2. The first paragraph of Section 3 is amended and restated in its
entirety to read as follows:
"The total number of shares of stock reserved and available for
distribution under the Plan shall be 1,500,000 shares. Such
shares may consist, in whole or in part, of authorized and
unissued shares."
<PAGE> 17
BIGCHARTS INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT is made as of the __th day of __________, 1999,
between BIGCHARTS INC., a Minnesota corporation (the "Company"), and
______________________, an employee of the Company (the "Optionee").
The Company desires, by affording the Optionee an opportunity to
purchase shares of its common stock (the "Common Stock"), as hereinafter
provided, to carry out the purpose of the Restated 1995 Stock Option Plan of the
Company approved by its shareholders (the "Plan").
THEREFORE, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee the right
and option (hereinafter called the "Option") to purchase from the Company all or
any part of an aggregate amount of ________ shares of the Common Stock of the
Company (the "Option Shares") on the terms and conditions herein set forth. The
Option is intended to be an "incentive stock option" as that term is defined in
Section 422 of the Internal Revenue Code.
2. Purchase Price. The purchase price of the Option Shares shall be
$_______ per share.
3. Term of Option. The term of the Option shall be for a period of ten
(10) years from the date hereof, subject to earlier termination as hereinafter
provided.
4. Exercise of Option. Subject to the terms and conditions hereof, the
Option may be exercised as follows:
(a) From and after a review of the Optionee's performance to be
held 90 days following the date on which the Optionee commenced
employment with the Company (the "Starting Date"), the Option may be
exercised as to _________ shares.
(b) From and after 12 months from the Starting Date, the Option
may be exercised as to an additional _______ shares.
(c) From and after 24 months from the Starting Date, the Option
may be exercised as to an additional _______ shares.
(d) From and after 36 months from the Starting Date, the Option
may be exercised as to an additional _______ shares.
(e) From and after 48 months from the Starting Date, the Option
may be exercised as to the remaining _______ shares.
5. Non-Transferability. The Option shall not be transferred otherwise
than by will or the laws of descent and distribution, and the Option may be
exercised, during the lifetime of the
<PAGE> 18
Optionee, only by the Optionee, unless the Board of Directors otherwise
determines in accordance with the provisions of the Plan.
6. Death, Disability or Retirement of Optionee. If the Optionee's
employment with the Company shall terminate by reason of Death, Disability or
Retirement (as such terms are defined in the Plan), the Option may be exercised
(to the extent that the Optionee shall have been entitled to do so at the date
of his or her termination of employment by reason of Death, Disability or
Retirement) by the Optionee, his or her legal representative, or, in the case of
death, by the person to whom the Option is transferred by will or the applicable
laws of descent and distribution at the time for a period of one (1) year, but
in no event later than the expiration of the term specified in section 3 hereof.
7. Termination of Employment. In the event the employment of the
Optionee shall be terminated for reason other than Death, Disability or
Retirement, any unexercised Option shall terminate immediately upon such
termination of employment, provided, however, that in the event of termination
without Cause by the Company, such Option shall be exercisable (to the extent
that the Optionee shall have been entitled to do so at the date of his or her
termination of employment) for the lesser of three (3) months or the balance of
the Option's term. In no event shall any Option be exercisable after the
expiration of the term specified in Section 3 hereof. So long as the Optionee
shall continue to be an affected by any change of duties or position. Nothing in
this Option Agreement shall confer upon the Optionee any right to continue in
the employ of the Company or any of its subsidiaries or interfere in any way
with the right of the Company or any such subsidiary to terminate the employment
of the Optionee at any time.
8. Method of Exercising Option. Subject to the terms and conditions of
this Option Agreement, the Option may be exercised by written notice to the
Board of Directors of the Company at the principle office of the Company. Such
notice shall state the selection to exercise the Option and the number of shares
in respect of which it is being exercised, and shall be signed by the person so
exercising the Option. Such notice shall be accompanied by payment of the full
purchase price of such shares, which payment shall be made in cash or by check
or bank draft payable to the Company, or, provided such form of payment does not
result in a charge to the earnings of the Company for financial accounting
purposes, by delivery of shares of Common Stock of the Company with a fair
market value equal to the purchase price or by a combination of cash and such
shares, whose fair market value shall equal the purchase price. For the purposes
fo this paragraph, the "fair market value" of the Common Stock of the Company
shall be established in a manner set forth in the Plan. In the event the Option
shall be exercised by any person other than the Optionee, such notice shall be
accompanied by the appropriate proof of such right of such person to exercise
the Option.
9. Option Plan. This Option is subject to certain additional terms and
conditions set forth in the Restated 1995 Stock Plan pursuant to which this
Option has been issued. A copy of the Plan is on file with the Secretary of the
Company and by acceptance hereof Optionee agrees to and accepts this Option
subject to the terms of the Plan.
10. Disputes. As a condition of the granting of the Option herein
granted, the Optionee agrees, for the Optionee and the Optionee's personal
representatives, that any dispute or disagreement which may arise under or as a
result of or pursuant to this Agreement shall be
2
<PAGE> 19
determined by the Company, in its sole discretion, and that any interpretation
by the Company of the terms of this Agreement shall be final, binding and
conclusive.
11. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date and year first above written.
BIGCHARTS INC.
___________________________________ By_________________________________
Optionee Its Chief Executive Officer
3
<PAGE> 20
BIGCHARTS INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
(FOR NON-EMPLOYEE DIRECTORS)
THIS OPTION AGREEMENT is made as of the __th day of __________, 1999,
between BIGCHARTS INC., a Minnesota corporation (the "Company"), and
______________________, a non-employee of the Company (the "Optionee").
The Company desires, by affording the Optionee an opportunity to
purchase shares of its common stock (the "Common Stock"), as hereinafter
provided, to carry out the purpose of the Restated 1995 Stock Option Plan of the
Company approved by its shareholders (the "Plan").
THEREFORE, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee the right
and option (hereinafter called the "Option") to purchase from the Company all or
any part of an aggregate amount of 40,000 shares of the Common Stock of the
Company (the "Option Shares") on the terms and conditions herein set forth.
2. Purchase Price. The purchase price of the Option Shares shall be
$_______ per share.
3. Term of Option. The term of the Option shall be for a period of ten
(10) years from ______________, 199__ (the "Option Date"), subject to earlier
termination as hereinafter provided.
4. Exercise of Option. Subject to the terms and conditions hereof, the
Option may be exercised as follows:
(a) From and after the Option Date, the Option may be exercised
as to 25,000 shares.
(b) From and after 12 months from the Option Date, the Option may
be exercised as to an additional 5,000 shares.
(c) From and after 24 months from the Option Date, the Option may
be exercised as to an additional 5,000 shares.
(d) From and after 36 months from the Option Date, the Option may
be exercised as to an additional 5,000 shares.
5. Non-Transferability. The Option shall not be transferred otherwise
than by will or the laws of descent and distribution, and the Option may be
exercised, during the lifetime of the Optionee, only by the Optionee, unless the
Board of Directors otherwise determines in accordance with the provisions of the
Plan.
6. Termination of Directorship. If the Optionee's services as a
non-employee director of the Company shall terminate for any reason, the already
vested portion of the Option may be
<PAGE> 21
exercised (to the extent that the Optionee shall have been entitled to do so at
the date of the termination of his services as a non-employee director) by the
Optionee, the Optionee's legal representative, or by the person to whom the
Option is transferred by will or the applicable laws of descent and distribution
at any time, for a period of one (1) year after the date of termination of the
Optionee's directorship; but in no event later than the expiration of the term
specified in paragraph 3 hereof. Any unvestd portion of an Option at the time of
termination of directorship shall terminate immediately.
7. Method of Exercising Option. Subject to the terms and conditions of
this Option Agreement, the Option may be exercised by written notice to the
Board of Directors of the Company at the principle office of the Company. Such
notice shall state the election to exercise the Option and the number of shares
in respect of which it is being exercised, and shall be signed by the person so
exercising the Option. Such notice shall be accompanied by payment of the full
purchase price of such shares, which payment shall be made in cash or by check
or bank draft payable to the Company, or, provided such form of payment does not
result in a charge to earnings of the Company for financial accounting purposes,
by delivery of shares of Common Stock of the Company with a fair market value
equal to the purchase price or by a combination of cash and such shares, whose
fair market value shall equal the purchase price. For the purposes of this
Agreement, the "fair market value" of the Common Stock of the Company shall be
established in a manner set forth in the Plan. In the event the Option shall be
exercised by any person other than the Optionee, such notice shall be
accompanied by the appropriate proof of such right of such person to exercise
the Option.
8. Option Plan. This Option is subject to certain additional terms and
conditions set forth in the Restated 1995 Stock Plan pursuant to which this
Option has been issued. A copy of the Plan is on file with the Secretary of the
Company and by acceptance hereof Optionee agrees to and accepts this Option
subject to the terms of the Plan. Any capitalized terms in this Agreement that
are not defined herein shall have the meaning set forth in the Plan.
9. Disputes. As a condition of the granting of the Option herein
granted, the Optionee agrees, for the Optionee and the Optionee's personal
representatives, that any dispute or disagreement which may arise under or as a
result of or pursuant to this Agreement shall be determined by the Company, in
its sole discretion, and that any interpretation by the Company of the terms of
this Agreement shall be final, binding and conclusive.
10. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date and year first above written.
BIGCHARTS INC.
___________________________________ By_________________________________
Optionee Its Chief Executive Officer
2
<PAGE> 1
EXHIBIT 5.01
August 23, 1999
MarketWatch.com, Inc.
825 Battery Street
San Francisco, CA 94111
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about August 23, 1999 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 585,824 shares of your Common Stock (the "Stock") subject to
issuance by you upon exercise of stock options assumed by you pursuant to the
terms of that certain Agreement and Plan of Reorganization, dated as of April
28, 1999, relating to the acquisition of BigCharts Inc., a Minnesota
corporation, (the "Agreement"). In rendering this opinion, we have examined the
following:
(1) the Registration Statement, together with the Exhibits filed as a part
thereof;
(2) the Prospectus prepared in connection with the Registration Statement;
(3) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, Marketwatch.Com, LLC,
a Delaware limited liability company (the "Predecessor"), that are in
our possession;
(4) the stock records for both you and the Predecessor that you have
provided to us (consisting of a list of stockholders issued by your
transfer agent and dated of even date herewith and a list of option,
warrant and other rights holders respecting your capital stock and of
any rights to purchase capital stock that was prepared by you and
dated August 23, 1999 verifying the number of such issued and
outstanding securities); and
(5) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all
<PAGE> 2
MarketWatch.com, Inc.
August 23, 1999
Page 2
natural persons executing the same, the lack of any undisclosed termination,
modification, waiver or amendment to any documents reviewed by us and the due
authorization, execution and delivery of all documents where due authorization,
execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials
referred to above. We have made no independent investigation or other attempt to
verify the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; however, we are not aware of any
facts that would cause us to believe that the opinion expressed herein is not
accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to case law or secondary sources)
the existing Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that the up to 585,824 shares
of Stock that may be issued and sold by you upon the exercise of stock options
assumed by you pursuant to the terms of the Agreement, when issued and sold in
accordance with the applicable plan and stock option agreement to be entered
into thereunder, and in the manner referred to in the relevant Prospectus
associated with the Registration Statement, will be validly issued, fully paid
and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Jeffrey R. Vetter
----------------------------
Jeffrey R. Vetter
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 or our report dated February 12, 1999 relating to the
financial statements of MarketWatch.com, Inc., and June 15, 1998, relating to
the financial statements of the DBC OnLine/News Business, a division of Data
Broadcasting Corporation, which appear in MarketWatch.com, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
San Jose, California
August 18, 1999
