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EXHIBIT 4.1
BINGO.COM, INC.
2000 STOCK OPTION PLAN
1. PURPOSE. The Plan is intended to provide incentive to employees,
directors, advisors and consultants of the Corporation to encourage proprietary
interest in the Corporation, to encourage such employees to remain in the employ
of the Corporation or such directors, advisors and consultants to remain in the
service of the Corporation, and to attract new employees, directors, advisors
and consultants with outstanding qualifications.
2. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, the capitalized terms used herein shall have the following
meanings:
(a) "Administrator" shall mean the Board or the Plan Committee of
the Board, whichever shall be administering the Plan from time to time in the
discretion of the Board, as described in Section 4 of the Plan.
(b) "Board" shall mean the Board of Directors of the Corporation.
(c) "Change of Control" shall mean, a change of control of a nature
that would be required to be reported in response to Item 1 of Form 8-K required
to be filed pursuant to the Exchange Act; provided that, without limitation,
such a Change of Control shall be deemed to have occurred if:
(i) the Shareholders of the Corporation approve a definitive
agreement to sell, transfer, or otherwise dispose of all or
substantially all of the Corporation's assets and properties; or
(ii) any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act), other than the Corporation or any "person"
who as of the date this Plan is adopted by the Board, is a director or
officer of the Corporation (including any trust of such director or
officer), is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing fifty percent (50%) or more of the
combined voting power of the Corporation's then outstanding securities;
provided, however, that the following shall not constitute a "Change of
Control" of the Corporation:
(a) any acquisition directly from the Corporation
(excluding any acquisition resulting from the exercise of a conversion
or exchange privilege in respect of outstanding convertible or
exchangeable securities);
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(b) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any
corporation controlled by the Corporation; or
(c) upon the death of any person who as of the date of
this Agreement is a director or officer of the Corporation, the
transfer (x) by testamentary disposition or the laws of intestate
succession to the estate or the legal beneficiaries or heirs of such
person, or (y) by the provisions of any living trust to the named
current income beneficiaries thereof of the securities of the
Corporation beneficially owned by such director or officer of the
Corporation; or
(iii) during any period of two consecutive years during the term
of this Plan, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in advance
by directors representing at least two-thirds of the directors then in
office who were directors at the beginning of the period; or
(iv) the Shareholders of the Corporation approve the dissolution
of the Corporation or a definitive agreement to merge or consolidate
the Corporation with or into another entity in which the Corporation is
not the continuing or surviving corporation or pursuant to which any
shares of the Corporation's stock would be converted into cash,
securities or other property of another entity, other than a merger of
the Corporation in which holders of the Shares immediately prior to the
merger own, either directly or indirectly, fifty percent (50%) or more
of the equity interests or combined voting power of the surviving
entity immediately after the merger as immediately before.
(d) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(e) "Commission" shall mean the Securities and Exchange
Commission.
(f) "Corporation" shall mean Bingo.com, Inc., a Florida
corporation.
(g) "Disability" shall mean a medically determinable
physical or mental impairment which has made an individual incapable of
engaging in any substantial gainful activity. A condition shall be
considered a Disability only if (i) it can be expected to result in
death or has lasted or it can be expected to last for a continuous
period of not less than twelve (12) months, and (ii) the Administrator,
based upon medical evidence, has expressly determined that Disability
exists.
(h) "Employee" shall mean an individual who is employed
(within the meaning of Section 3401 of the Code and the regulations
thereunder) by the Corporation.
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(i) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(j) "Exercise Price" shall mean the price per Share
determined by the Administrator, at which an Option may be exercised.
(k) "Fair Market Value" shall mean the value of one (1)
Share, determined as follows:
(i) If the Shares are (A) listed on an exchange, the
closing price as reported for composite transactions on the date of
valuation, or, if no sale occurred on that date, then the mean between
the closing bid and asked prices on such exchange on such date, or (B)
traded on the National Market System (the "NMS") of The Nasdaq Stock
Market, Inc. ("Nasdaq"), the last sale price on the date of valuation,
or if no sale occurred on that date, the last sale price on the
business day immediately prior to the date of valuation, or, if no sale
occurred on such date, then the mean between the highest bid and lowest
asked prices as of the close of business on the business day
immediately prior to the date of valuation, as reported on Nasdaq;
(ii) If the Shares are not traded on an exchange or
the NMS but are otherwise traded over-the-counter, the mean between the
highest bid and lowest asked prices quoted on Nasdaq as of the close of
business on the date of valuation, or, if on such day such Shares are
not quoted on Nasdaq, the mean between the representative bid and asked
prices on such date in the United States over-the-counter market as
reported by the OTC Bulletin Board or the National Quotation Bureau,
Inc., or any similar successor organization; or
(iii) If neither clause (i) nor (ii) above applies,
the Fair Market Value shall be determined by the Administrator in good
faith. Such determination shall be conclusive and binding on all
persons.
(l) "Grant Date" shall mean the date on which the granting
of an Option is authorized by the Administrator or such other date as
prescribed by the Administrator.
(m) "Incentive Stock Option" shall mean an option
described in Section 422 of the Code.
(n) "Nonstatutory Stock Option" shall mean an option that
does not meet the requirements of Section 422(b) of the Code or is not
intended to be an Incentive Stock Option.
(o) "Option" shall mean any stock option granted pursuant
to the Plan.
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(p) "Option Agreement" shall mean a written stock option
agreement evidencing the grant of an Option.
(q) "Option Limit" shall have the meaning assigned to it
in Section 6.
(r) "Optionee" shall mean a Participant who has received
an Option.
(s) "Participant" shall have the meaning assigned to it in
Section 5(a) hereof.
(t) "Plan" shall mean this Bingo.com, Inc. 2000 Stock
Option Plan, as it may be amended from time to time.
(u) "Plan Committee" shall mean a committee of two or more
directors appointed by the Board to administer the Plan.
(v) "Purchase Price" shall mean the Exercise Price
multiplied by the number of Shares with respect to which an Option is
exercised.
(w) "Retirement" shall mean the voluntary termination of
employment by an employee after qualifying for early or normal
retirement under any pension plan or profit sharing or benefit plan of
the Corporation or its Subsidiaries. If an employee is not covered by
any such plan, "Retirement" shall mean voluntary termination of
employment after the employee has attained age sixty-five (65) and
after the employee has attained the tenth (10th) anniversary of his or
her last preceding date of hire, or as otherwise determined in the
Administrator's sole discretion.
(x) "Section 16 Participant" shall mean a Participant who
is (or, in the opinion of the Administrator, may be) generally subject
to the Section 16 Requirements with respect to purchases and sales of
Shares or other equity securities of the Corporation.
(y) "Section 16 Requirements" shall mean the those
obligations and requirements imposed on officers and directors by
Sections 16(a) and 16(b) of the Exchange Act and the rules of the
Commission promulgated thereunder.
(z) "Securities Act" shall mean the Securities Act of
1933, as amended.
(aa) "Subsidiary" shall mean any subsidiary corporation as
defined in Section 425(f) of the Code.
(bb) "Share" shall mean one share of Common Stock of the
Corporation, adjusted in accordance with Section 10 of the Plan (if
applicable).
(cc) "Shareholders" shall mean holders of Shares.
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(dd) "Transfer Agent" shall mean a third-party
organization retained by the Corporation to maintain the stock transfer
records of the Corporation.
3. EFFECTIVE DATE. The Plan was adopted by the Board effective May 23,
2000. Options granted prior to obtaining Shareholder approval in accordance with
Section 15 of the Plan shall be granted subject to such shareholder approval and
must be rescinded if such approval is not obtained in accordance with such
section.
4. ADMINISTRATION.
(a) Administrator. Subject to subsection (c) below, the Plan shall
be administered, in the discretion of the Board from time to time, by the Board
or by a Plan Committee which shall be appointed by the Board. The Board may from
time to time remove members from, or add members to, the Plan Committee.
Vacancies on the Plan Committee, however caused, shall be filled by the Board.
The Board shall appoint one of the members of the Plan Committee as Chairman.
The Administrator shall hold meetings at such times and places as it may
determine. Acts of a majority of the members of the Administrator at which a
quorum is present, or acts reduced to or approved in writing by the unanimous
consent of the members of the Administrator, shall be the valid acts of the
Administrator.
(b) Powers of Administrator. The Administrator shall from time to
time at its discretion select the Optionees who are to be granted Options,
determine the number of Shares to be subject to Options to be granted to each
Optionee and designate such Options as Incentive Stock Options or Nonstatutory
Stock Options. The Administrator shall have full power and authority to operate,
manage and administer the Plan and interpret and construe the Plan and the terms
of all Option Agreements. The interpretation and construction by the
Administrator of any provision of the Plan or of any Option or Option Agreement
shall be final. No member of the Administrator shall be liable for any action or
determination made in good faith with respect to the Plan or any Option.
(c) Disinterested Administration. If the Shares are registered under
the Exchange Act and Section 16 Participants are to receive grants of Options
hereunder, such grants shall be approved by the Board or by a Plan Committee, or
a subcommittee of the Plan Committee or other committee of the Board, consisting
solely of two or more directors, each of whom shall be a "non-employee director"
within the meaning of Rule 16b-3(b)(3) of the Exchange Act and an "outside
director" within the meaning of Section 162(m) of the Code.
5. PARTICIPATION.
(a) Eligibility. The Optionee shall be such persons (collectively,
"Participants"; individually a "Participant") as the Administrator may select
from among the following classes of persons, subject to the terms and conditions
of Section 5(b) below:
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(i) Employees (who may be officers, whether or not they are
directors) of the Corporation or of a Subsidiary and non-employees to
whom an offer of employment has been extended; and
(ii) directors, advisors and consultants of the Corporation or a
Subsidiary.
Notwithstanding provisions of the first paragraph of this Section 5(a),
the Administrator may at any time or from time to time designate one or more
directors as being ineligible for selection as Participants in the Plan for any
period or periods of time. The Administrator may, in its sole discretion and
upon such terms as it deems appropriate, require as a condition of the grant of
an Option to a Participant that the Participant surrender for cancellation some
or all of the Options which have been previously granted to such person under
this Plan or otherwise. An Option, the grant of which is conditioned upon such
surrender, may have an option price lower (or higher) than the exercise price of
such surrendered Option, may cover the same (or a lesser or greater) number of
shares as such surrendered Option, may contain such other terms as the
Administrator deems appropriate, and shall be exercisable in accordance with its
terms, without regard to the number of shares, price, exercise period or any
other term or condition of such surrendered Option.
(b) Ten-Percent Shareholders. To the extent required by law or
regulation, a Participant who, at the time of grant, owns more than ten percent
(10%) of the total combined voting power of all classes of outstanding stock of
the Corporation or its parent shall not be eligible to receive an Option unless
(i) the Exercise Price of the Shares subject to such Option is at least one
hundred ten percent (110%) of the Fair Market Value of such Shares on the Grant
Date.
(c) Stock Ownership. For purposes of Section 5(b) above, in
determining stock ownership, a Participant shall be considered as owning the
stock owned, directly or indirectly, by or for his or her brothers and sisters,
spouse, ancestors and lineal descendants. Stock owned, directly or indirectly,
by or for a corporation, partnership, estate or trust shall be considered as
being owned proportionately by or for its shareholders, partners or
beneficiaries. Stock with respect to which such Participant holds an Option
shall not be counted.
(d) Outstanding Stock. For purposes of Section 5(b) above,
"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant of the Option to the Optionee. "Outstanding stock"
shall not include Shares authorized for issue under outstanding Options held by
the Optionee or by any other person.
6. STOCK. The stock subject to Options granted under the Plan shall be
from the Corporation's authorized but unissued or reacquired Shares. The
aggregate number of Shares which may be issued upon exercise of Options under
the Plan at any time shall not exceed Two Million (2,000,000) Shares (the
"Option Limit"), subject to adjustment as provided for in this Plan.
Notwithstanding the foregoing, for so long as the Corporation shall be subject
to the California Corporate Securities Law of 1968, as amended (the "California
Securities Law"), in
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connection with the Plan and Options granted thereunder, the total number of
Shares issuable upon exercise of all outstanding Options and the total number of
Shares provided for under any stock bonus or similar plan of the Corporation may
not exceed the applicable percentage as calculated in accordance with the
conditions and exclusions of Section 260.140.45 of Title 10 of the California
Code of Regulations based on the Shares of the Corporation which are outstanding
at the time the calculation is made. Notwithstanding the foregoing, upon the
full or partial payment of any Purchase Price by the transfer to the Corporation
of Shares or upon satisfaction of tax withholding provisions in connection with
any such exercise or any other payment made or benefit realized under this Plan
by the transfer or relinquishment of Shares, there shall be deemed to have been
issued or transferred under this Plan only the net number of Shares actually
issued or transferred by the Corporation. In the event any outstanding Option
granted under this Plan for any reason expires or is canceled or terminated, the
Shares allocable to the unexercised portion of such Option shall again be
available to be granted as Options under this Plan. Notwithstanding the previous
sentence, to the extent required by Section 162(m) of the Code, Shares subject
to Options which are canceled continue to be counted against the Option Limit
and if, after an Option grant, the price of Shares subject to such Option is
reduced, the transaction is treated as a cancellation of the Option and a grant
of a new Option and both the Option deemed to be canceled and the Option deemed
to be granted are counted against the Option Limit. The limitations established
by this Section 6 shall be subject to adjustment in the manner provided in
Section 10 hereof upon the occurrence of an event specified in Section 10.
7. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreements. Each Option shall be evidenced by an
Option Agreement in such other form as the Administrator shall from time to time
determine. Such Option Agreements need not be identical but shall comply with
and be subject to the terms and conditions set forth in this Section 7.
(b) Nature of Option. Each Option shall state whether it is an
Incentive Stock Option or a Nonstatutory Stock Option.
(c) Optionee's Undertaking. Each Optionee shall agree to remain in
the employ or service of the Corporation and to render services for a period as
shall be determined by the Administrator, from the Grant Date of the Option or
such other date agreed to by the Optionee and the Corporation, but such
agreement shall not impose upon the Corporation any obligation to retain the
Optionee in their employ or service for any period.
(d) Number of Shares. Each Option shall state the number of Shares
to which it pertains and shall provide for the adjustment thereof in accordance
with the provisions of Section 10 hereof.
(e) Exercise Price; Exercise of Options. Each Option shall state the
Exercise Price. To the extent required by law or regulation, the Exercise Price
in the case of an Option granted to an Optionee described in Section 5(b)
hereof, shall not be less than one hundred ten
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percent (110%) of the Fair Market Value on the Grant Date. The Exercise Price in
the case of any Nonstatutory Stock Option, shall not be less than eighty-five
percent (85%) of the Fair Market Value on the Grant Date. The Exercise Price in
the case of any Incentive Stock Option granted to persons other than to an
Optionee described in Section 5(b) hereof, shall not be less than the Fair
Market Value on the Grant Date. At the sole discretion of the Administrator, any
Option granted under this Plan to any Participant may be exercisable in whole or
in part immediately upon the grant thereof, or only after the occurrence of a
specified event and/or only in installments, which installments may be equal or
otherwise, and which installments may vary as to the number thereof as well as
to whether any unexercised installments are cumulative through the life of a
particular Option; provided that, in any event, to the extent required by law or
regulation such Option shall be exercisable at a minimum rate of at least twenty
percent (20%) per year over the period five years from the Grant Date for the
Option in question; however, in the case of an Option granted to a Participant
who is a director, consultant, advisor or officer of the Corporation, the
Administrator may provide that the Option may become fully exercisable, subject
to reasonable conditions such as continued employment or service to the
Corporation, at any time or during any period established by the Administrator.
(f) Medium and Time of Payment; Notice. The Purchase Price shall be
payable in full in United States dollars upon the exercise of the Option;
provided, however, that if the applicable Option Agreement so provides, or the
Administrator in its sole discretion otherwise approves thereof, the Purchase
Price may (to the extent permitted by applicable law) be paid by the surrender
of Shares in good form for transfer, owned by the person exercising the Option
and having a Fair Market Value on the date of exercise equal to the Purchase
Price.
In the event the Corporation determines that it is required to withhold
state, United States Federal or foreign income tax as a result of the exercise
of an Option, as a condition to the exercise thereof, an Optionee must make
arrangements satisfactory to the Corporation to enable it to satisfy such
withholding requirements before the Optionee shall be permitted to exercise the
Option. Payment of such withholding requirements may be made, in the discretion
of the Administrator, (i) in cash, (ii) by delivery of Shares registered in the
name of the Optionee and held for a period of six (6) months or more by the
Optionee or (iii) any combination of (i) and (ii) above.
The Optionee shall exercise an Option by completing and delivering to
the Corporation, concurrently with the payment of the Purchase Price in the
manner described above, an exercise notice in such form as the Administrator
shall from time to time determine.
(g) Term and Non-Transferability of Options. Each Option shall state
the time or times when all or part thereof becomes exercisable. No Option shall
be exercisable after the expiration of ten (10) years (or less, in the
discretion of the Administrator) from the Grant Date; except that no Incentive
Stock Option granted to an Optionee described in Section 5(b) hereof shall be
exercisable after the expiration of five (5) years from the Grant Date (or less,
in the discretion of the Administrator). During the lifetime of the Optionee,
the Option shall be exercisable only by the Optionee or the Optionee's guardian
or legal representative and shall not be assignable or transferable. The Option
shall not be transferable by the Optionee other than by
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will or the laws of descent and distribution. Any other attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of any Option
or right thereunder, shall be null and void and, at the Corporation's option,
shall cause all of the Optionee's rights under the Option to terminate.
(h) Cessation of Employment (Except by Death, Disability or
Retirement). If an Optionee's employment or service with the Corporation ceases
for any reason or no reason, whether voluntarily or involuntarily, with or
without cause, other than pursuant to death, Disability or Retirement, such
Optionee shall have the right, subject to the restrictions referred to in
Section 7(g) above, to exercise the Option at any time within ninety (90) days
after such cessation, but, except as otherwise provided in the applicable Option
Agreement, only to the extent that, at the date of such cessation, the
Optionee's right to exercise such Option had accrued pursuant to the terms of
the applicable Option Agreement and had not previously been exercised.
For purposes of this Section 7(h), the employment relationship shall be
treated as continuing intact while the Optionee is on military leave, sick leave
or other bona fide leave of absence (to be determined in the sole discretion of
the Administrator). The foregoing notwithstanding, in the case of an Incentive
Stock Option, employment shall not be deemed to continue beyond the ninetieth
(90th) day after the Optionee ceased active employment, unless the Optionee's
reemployment rights are guaranteed by statute or by contract.
(i) Death of Optionee. If an Optionee's employment or service with
the Corporation ceases by reason of the Optionee's death, or after ceasing to be
a Participant but during the period in which he or she could have exercised the
Option under this Section 7, and has not fully exercised the Option, then the
Option may be exercised in full, subject to the restrictions referred to in
Section 7(g) above, at any time within twelve (12) months after the Optionee's
death by the executor or administrator of his or her estate or by any person or
persons who have acquired the Option directly from the Optionee by bequest or
inheritance, but, except as otherwise provided in the applicable Option
Agreement, only to the extent that, at the date of death, the Optionee's right
to exercise such Option had accrued and had not been forfeited pursuant to the
terms of the applicable Option Agreement and had not previously been exercised.
(j) Disability of Optionee. If an Optionee's employment or service
with the Corporation ceases by reason of the Optionee's Disability, such
Optionee shall have the right, subject to the restrictions referred to in
Section 7(g) above, to exercise the Option at any time within twelve (12) months
after such cessation by reason of Disability, but, except as provided in the
applicable Option Agreement, only to the extent that, at the date of such
cessation, the Optionee's right to exercise such Option had accrued pursuant to
the terms of the applicable Option Agreement and had not previously been
exercised.
(k) Retirement of Optionee. If an Optionee's employment or service
with the Corporation ceases by reason of the Optionee's Retirement, such
Optionee shall have the right, subject to the restrictions referred to in
Section 7(g) above, to exercise the Option at any time within ninety (90) days
after the date of Retirement, but only to the extent that, at the date of such
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cessation, the Optionee's right to exercise such Option had accrued pursuant to
the terms of the applicable Option Agreement and had not previously been
exercised.
(l) Time of Cessation of Service. For purposes of this Plan, the
Optionee's employment or service shall be deemed to have ceased or be terminated
on the date when the Optionee's employment or service in fact ceased or Optionee
is in fact terminated.
(m) Rights as a Shareholder. No one shall have rights as a
Shareholder with respect to any Shares covered by an Option until the date of
the issuance of a stock certificate for such Shares. No adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash, securities or other
property), distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 10 hereof.
(n) Modification, Extension and Renewal of Options. Within the
limitations of the Plan, the Administrator may modify an Option, extend or renew
outstanding Options or accept the cancellation of outstanding Options (to the
extent not previously exercised) for the granting of new Options in substitution
therefor. The foregoing notwithstanding, no modification of an Option shall,
without the consent of the Optionee, alter or impair any rights or obligations
under any Option previously granted. With the consent of the affected Optionee,
the Administrator may cancel any agreement evidencing Options. In the event of
such cancellation, the Administrator may authorize the granting of new Options,
which may or may not cover the same number of Shares that have been the subject
of the prior award, at such Exercise Price and subject to such terms, conditions
and discretions as would have been applicable under this Plan had the canceled
Options not been granted.
(o) Substitution of Options. Notwithstanding any inconsistent
provisions or limits under the Plan, in the event the Corporation acquires
(whether by purchase, merger or otherwise) all or substantially all of
outstanding capital stock or assets of another corporation or of any
reorganization or other transaction qualifying under Section 424 of the Code,
the Administrator may, in accordance with the provisions of that Section,
substitute Options under the Plan for options under the plan of the acquired
corporation; provided, however, that (i) the excess of the aggregate fair market
value of the shares subject to an option immediately after the substitution over
the aggregate option price of such shares is not more than the similar excess
immediately before such substitution and (ii) the new option does not give
persons additional benefits, including any extension of the exercise period.
(p) Forfeiture of Option Gain and Unexercised Options Held By
Directors, Officers or Consultants who Engage in Certain Activities. At the
discretion of the Administrator, and unless otherwise prohibited by applicable
laws, an Option Agreement provided to a director, officer or consultant of the
Corporation may provide that if at any time within (i) the term of an Option
granted to a Optionee or (ii) within one year after the termination of such
Optionee's employment or service with the Corporation for any reason or no
reason or (iii) within one year after such Optionee exercises any portion of an
Option, whichever is the latest, such Optionee engages in any activity in direct
competition with the principal business of the Corporation, or
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inimical, contrary or harmful to the interests of the Corporation, including,
but not limited to: (A) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (B) violation
of Corporation policies, including, without limitation, the Corporation's
insider trading policy, (C) accepting employment with or serving as a
consultant, advisor or in any other capacity to an employer that is in direct
competition with or acting against the interests of the Corporation, including
employing or recruiting any present, former or future employee of the
Corporation, (D) disclosing or misusing any confidential information or material
concerning the Corporation, or (E) participating in a hostile takeover attempt
against the Corporation, then, at the discretion of the Administrator, (1) any
Options granted under the Plan to such Optionee shall terminate effective the
date on which such Optionee entered into such activity, unless terminated sooner
by operation of another term or condition of the Plan, and (2) any gain realized
by such Optionee from exercising all or a portion of any Option shall be paid by
Optionee to the Corporation.
(q) Right of Set-Off. Optionee shall consent to a deduction from any
amounts the Corporation owes Optionee from time to time (including amounts owed
as wages or other compensation, fringe benefits or vacation pay, as well as any
other amounts owed to Optionee by the Corporation), to the extent of the amounts
Optionee owes the Corporation, including pursuant to subparagraph (p) above.
Whether or not the Corporation elects to make any set-off in whole or in part,
if the Corporation does not recover by means of set-off the full amount Optionee
owes to the Corporation, Optionee shall agree to pay immediately the unpaid
balance to the Corporation.
(r) Other Provisions. An Option Agreement authorized under the Plan
may contain such terms and provisions not inconsistent with the terms of the
Plan (including, without limitation, restrictions upon the exercise of the
Option) as the Administrator shall deem advisable in its sole and absolute
discretion.
8. LIMITATION ON ANNUAL AWARDS.
(a) Limitation on Incentive Stock Options. To the extent that the
aggregate Fair Market Value (determined as of the Grant Date) of the Shares with
respect to which Incentive Stock Options are exercisable for the first time by
any Optionee during any calendar year under the Plan and all other plans
maintained by the Corporation or its parent, exceeds $100,000, such excess
Options shall be treated as Nonstatutory Stock Options. For the purposes of this
Section 8, Incentive Stock Options shall be taken into account in the order in
which they were granted.
(b) Limitation on Total Options Granted. As long as the Plan is in
effect, at no time will Options granted to any Participant pursuant to the Plan
exceed 1,000,000 Shares, subject to adjustment as provided for in Section 10.
9. TERM OF PLAN. Options may be granted pursuant to the Plan until the
expiration of the Plan ten (10) years after the effective date referred to in
Section 3.
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10. EFFECT OF CERTAIN EVENTS.
(a) Adjustments Upon Changes in Stock. The Administrator shall make
or provide for such adjustments in the Option Limit, the Exercise Price and in
the number or kind of shares or other securities (including shares or other
securities of another issuer) covered by this Plan and outstanding Options as
the Administrator in its sole discretion, exercised in good faith, shall
determine is equitably required to prevent dilution or enlargement of rights of
optionees that would otherwise result from (a) any stock dividend, stock split,
combination of shares, issuance of rights or warrants to purchase stock,
spin-off, recapitalization or other changes in the capital structure of the
Corporation, (b) any merger, consolidation, reorganization or partial or
complete liquidations, or (c) any other corporate transaction or event having an
effect similar to any of the foregoing. The Administrator also shall make or
provide for such adjustment in the number or kind of shares of the Corporation's
capital stock or other securities (or in shares or other securities of another
issuer) which may be acquired pursuant to Options granted under the Plan and the
number of such securities to be awarded to each Optionee as the Administrator in
its sole discretion, shall determine is appropriate to reflect any transaction
or event described in the preceding sentence. In the event of any such
transaction or event, the Administrator may provide in substitution for any or
all outstanding Options under the Plan such alternative consideration (including
securities of any surviving entity) as it may in good faith determine to be
equitable under the circumstances and may require in connection therewith the
surrender of all Options so replaced. In any case, such substitution of
securities shall not require the consent of any person who is granted Options
pursuant to the Plan. The determination of the Administrator as to what
adjustments shall be made, and the extent thereof, shall be final, binding and
conclusive.
(b) Change of Control. In addition to the rights set forth in
Section 10(a) above, in the event of a Change of Control, the Administrator may
in its sole discretion, without obtaining Shareholder approval or the consent of
any person granted Options under the Plan, take one or more of the following
actions:
(i) Accelerate the exercise dates of any outstanding Option, or
make the Option fully vested and exercisable;
(ii) Pay cash to any or all owners of Options in exchange for
the cancellation of their outstanding Options; or
(iii) Make any other adjustments or amendments to the Plan and
outstanding Options and substitute new Options for outstanding Options.
(c) Adjustment Determination. To the extent that the foregoing
adjustments relate to securities of the Corporation, such adjustments shall be
made by the Administrator, whose determination shall be conclusive and binding
on all persons.
(d) Limitation on Rights. Except as expressly provided in this
Section 10, the Optionee shall have no rights by reason of any subdivision or
consolidation of shares of stock of
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any class, the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, merger or consolidation or spinoff of assets or stock of another
corporation, and any issue by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the Plan shall not affect in any way the right or power of the Corporation to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
11. SECURITIES LAW REQUIREMENTS.
(a) Legality of Issuance. No Shares shall be issued upon the
exercise of any Option unless and until the Corporation has determined that:
(i) it and the Optionee have taken all actions required to
register the offer and sale of the Shares under the Securities Act, or
to perfect an exemption from the registration requirements thereof;
(ii) any applicable listing requirement of any stock exchange on
which the Shares are listed has been satisfied; and
(iii) any other applicable provision of state, United States
Federal or foreign law has been satisfied.
(b) Restrictions on Transfer; Representations of Optionee; Legends.
Regardless of whether the offering and sale of Shares under the Plan has been
registered under the Securities Act or has been registered or qualified under
the securities laws of any state, the Corporation may impose restrictions upon
the grant of Options and the sale, pledge or other transfer of Shares (including
the placement of appropriate legends on stock certificates) if, in the judgment
of the Corporation and its counsel, such restrictions are necessary or desirable
in order to achieve compliance with the provisions of the Securities Act, the
securities laws of any state or any other law. In the event that the sale of
Shares under the Plan is not registered under the Securities Act but an
exemption is available which requires an investment representation or other
representation, each Optionee shall be required to represent that such Shares
are being acquired for investment, and not with a view to the sale or
distribution thereof, and to make such other representations as are deemed
necessary or appropriate by the Corporation and its counsel. Stock certificates
evidencing Shares acquired under the Plan pursuant to an unregistered
transaction shall bear the following restrictive legend and such other
restrictive legends as are required or deemed advisable under the provisions of
any applicable law:
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"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). ANY TRANSFER OR PLEDGE OF SUCH SECURITIES WILL BE
INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN
EFFECT AS TO SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR
THE ISSUER SUCH REGISTRATION IS UNNECESSARY IN ORDER FOR SUCH
TRANSFER OR PLEDGE TO COMPLY WITH THE ACT."
Any determination by the Corporation and its counsel in connection with
any of the matters set forth in this Section 11 shall be conclusive and binding
on all persons.
(c) Registration or Qualification of Securities. The Corporation
may, but shall not be obligated to, register or qualify the sale of Shares under
the Securities Act or any other applicable law. The Corporation shall not be
obligated to take any affirmative action in order to cause the sale of Shares
under the Plan to comply with any law.
(d) Exchange of Certificates. If, in the opinion of the Corporation
and its counsel, any legend placed on a stock certificate representing Shares
sold under the Plan is no longer required, the holder of such certificate shall
be entitled to exchange such certificate for a certificate representing the same
number of Shares but without such legend.
12. AMENDMENT OF THE PLAN. The Board may from time to time, with
respect to any Shares at the time not subject to Options, suspend or discontinue
the Plan or revise or amend it in any respect whatsoever except that, without
the approval of the Corporation's Shareholders, no such revision or amendment
shall:
(a) Be made if Shareholder approval is required by applicable law,
regulation or the requirements of The Nasdaq Stock Market or any exchange or
interdealer network where the Shares are trading;
(b) Increase the number of Shares which may be issued under the
Plan; or
(c) Amend this Section 12 to defeat its purpose.
Without limiting the generality of the foregoing, the Administrator may
amend this Plan to eliminate provisions which are no longer necessary as a
result of changes in tax or securities laws or regulations, or in the
interpretation thereof.
13. FINANCIAL STATEMENTS. Each Optionee shall receive financial
statements of the Corporation not less than annually.
14. APPLICATION OF FUNDS. The proceeds received by the Corporation from
the sale of Shares pursuant to the exercise of an Option will be used for
general corporate purposes.
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15. APPROVAL OF SHAREHOLDERS. The Plan must be approved by the
affirmative vote of the holders of a majority of the Corporation's outstanding
shares of voting capital stock on or before the date twelve (12) months from the
date the Plan was adopted by the Board.
16. GOVERNING LAW. This Plan, and the Option Agreements, shall be
governed by and enforced and construed in accordance with the internal
substantive laws (and not the laws of conflicts of laws) of the State of
California.
To record the adoption of the Plan by the Board as of May 23, 2000, the
Board has caused its authorized officers to sign the Plan and affix the
corporate seal hereto.
BINGO.COM, INC.
By: /s/ SHANE MURPHY
-------------------------------------
Shane Murphy
Chairman of the Board, President,
Chief Financial Officer and Secretary
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