<PAGE>
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12
FINDWHAT.COM
-----------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/X/ No fee required.
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of Securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
<PAGE>
FINDWHAT.COM
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD
JULY 11, 2000
AND
PROXY STATEMENT
IMPORTANT
PLEASE MARK, SIGN AND DATE YOUR PROXY
AND PROMPTLY RETURN IT IN THE ENCLOSED ENVELOPE
<PAGE>
FINDWHAT.COM
121 WEST 27TH STREET
NEW YORK, NEW YORK 10001
(212) 255-1500
May 26, 2000
Dear Stockholder:
You are cordially invited to attend the Annual Meeting of Stockholders
of FindWhat.com on July 11, 2000, at 2:30 p.m., local time, at the office of
Blank Rome Tenzer Greenblat LLP, 405 Lexington Avenue, New York, New York 10174.
We look forward to greeting those stockholders who are able to attend.
At the meeting, you are being asked to elect Courtney P. Jones, Craig
A. Pisaris-Henderson, Robert D. Brahms, Lee S. Simonson, David M. Medinis,
Kenneth E. Christensen and Martin Berger, each to serve one-year terms as
members of the Board of Directors and to approve an amendment to the Company's
Stock Incentive Plan described in the accompanying Proxy Statement.
It is very important that your shares are represented and voted at the
meeting, whether or not you plan to attend. Accordingly, please sign, date and
return your proxy in the enclosed envelope at your earliest convenience.
Your interest and participation in the affairs of the Company are
greatly appreciated. Thank you for your continued support.
Sincerely,
Robert D. Brahms
Chief Executive Officer
<PAGE>
FINDWHAT.COM
121 WEST 27TH STREET
NEW YORK, NEW YORK 10001
(212) 255-1500
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
May 26, 2000
To Our Stockholders:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders
of FindWhat.com, a Nevada corporation (the "Company"), will be held at the
offices of Blank Rome Tenzer Greenblat LLP, 405 Lexington Avenue, New York, New
York 10174 on the 11th day of July, 2000, at 2:30 p.m., local time, for the
following purposes:
1. To elect seven Directors, each for a one-year term and
until their successors are duly elected and qualified;
2. To approve an amendment increasing the number of shares
available for issuance under the Company's 1999 Stock
Incentive Plan from 1,000,000 to 1,975,000; and
3. To transact such other business as may properly come
before the meeting or any adjournment thereof.
Owners of Common Stock of the Company of record at the close
of business on May 19, 2000, will be entitled to vote at the meeting.
Whether or not you plan to attend the meeting, please date,
sign and mail the enclosed proxy in the envelope provided. Thank you for your
cooperation.
By Order of the Board of Directors
Craig A. Pisaris-Henderson
President, Chief Technology Officer and
Secretary
-------------------------------------------------------------------------------
PLEASE SIGN AND MAIL THE ENCLOSED PROXY
IN THE ACCOMPANYING ENVELOPE
NO POSTAGE NECESSARY IF MAILED IN THE UNITED STATES
-------------------------------------------------------------------------------
<PAGE>
FINDWHAT.COM
121 West 27th Street
New York, New York 10001
(212) 255-1500
--------------------------
PROXY STATEMENT
--------------------------
ANNUAL MEETING OF STOCKHOLDERS
JULY 11, 2000
--------------------------
INTRODUCTION
This Proxy Statement is furnished to the stockholders of FindWhat.com,
a Nevada corporation (the "Company"), in connection with the solicitation by the
Board of Directors of the Company of proxies to be used at the Annual Meeting of
Stockholders (the "Annual Meeting") to be held on July 11, 2000, at 2:30 p.m.,
local time, and at any adjournment thereof. The enclosed proxy is solicited by
the Board of Directors of the Company. This Proxy Statement and enclosed proxy
will be first sent to the Company's stockholders on approximately May 26, 2000.
The Company will bear the cost of the solicitation of proxies,
including the charges and expenses of brokerage firms and others for forwarding
solicitation material to beneficial owners of stock. Representatives of the
Company may solicit proxies by mail, telegram, telephone or personal interview.
All shares represented by properly executed proxies received by the
Board of Directors pursuant to this solicitation will be voted in accordance
with the stockholder's directions specified on the proxy or, in the absence of
specific instructions to the contrary, will be voted in accordance with the
Board of Directors' unanimous recommendations, which are FOR the election of
Courtney P. Jones, Craig A. Pisaris-Henderson, Robert D. Brahms, Lee S.
Simonson, David M. Medinis, Kenneth E. Christensen and Martin Berger as
Directors of the Company; FOR an amendment increasing the number of shares
available for issuance under the Company's 1999 Stock Incentive Plan (the "Stock
Incentive Plan") from 1,000,000 to 1,975,000; and, at the discretion of the
persons acting under the proxy, to transact such other business as may properly
come before the meeting or any adjournment thereof.
A proxy may be revoked, without affecting any vote previously taken, by
written notice mailed to the Company (attention Craig A. Pisaris-Henderson) or
delivered in person at the meeting, by filing a duly executed, later dated
proxy, or by attending the meeting and voting in person.
A majority of the outstanding shares of the Company will constitute a
quorum at the meeting. Abstentions and broker non-votes are counted for purposes
of determining the presence or absence of a quorum for the transaction of
business. The election of each Director nominee requires the favorable vote of a
plurality of all votes cast by the holders of Common Stock at a meeting at which
a quorum is present. Only shares that are voted for a particular nominee will be
counted towards such nominee's achievement of a plurality. Abstentions and
broker non-votes are not counted toward such nominee's achievement of a
plurality and, thus, will have no effect. Each other matter to be submitted to
the stockholders at this meeting requires the affirmative vote of the majority
of shares present in person or represented by proxy at the meeting and entitled
to vote. Therefore, on all matters other than the election of Directors,
abstentions and broker non-votes will have the same effect as votes cast against
the proposal.
<PAGE>
VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF
VOTING RIGHTS
Only stockholders of record at the close of business on May 19, 2000,
are entitled to notice of and to vote at the Annual Meeting and any adjournment
thereof. Each share so held entitles the holder thereof to one vote upon each
matter to be voted on. As of May 19, 2000, the Company had approximately
13,702,363 shares of Common Stock, $.001 par value, outstanding. There are no
cumulative voting rights in the election of Directors.
ELECTION OF DIRECTORS
Our Board of Directors has designated Courtney P. Jones, Craig A.
Pisaris-Henderson, Robert D. Brahms, Lee S. Simonson, David M. Medinis, Kenneth
E. Christensen and Martin Berger as nominees for election as Directors of the
Company to serve for terms of one-year and until their successors are duly
elected and qualified. If for any reason any nominee should not be a candidate
for election at the time of the meeting, the proxies may be voted for a
substitute nominee at the discretion of those named as proxies. The Board of
Directors has no reason to believe that any nominee will be unavailable. The
shares represented by the enclosed proxy, if returned duly executed and unless
instructions to the contrary are indicated thereon, will be voted FOR the
nominees listed below. The affirmative vote of a majority of the votes entitled
to be cast by the holders of the Company's Common Stock present in person or
represented by proxy is required to elect each nominee. Abstentions and broker
non-votes are not counted in the election of Directors and thus have no effect.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE ELECTION OF THE
NOMINEES FOR DIRECTOR.
The following table sets forth the name, age and business experience of
the nominees for elections as Director of the Company:
<TABLE>
<CAPTION>
NAME AND BUSINESS EXPERIENCE AGE
<S> <C>
COURTNEY P. JONES 41
Mr. Jones has served as our Chairman of the Board of Directors and as one of our
Directors since we acquired BeFirst Internet Corporation in June 1999. Prior to
that time, he served as the President and as a Director of BeFirst, which is now
our wholly-owned subsidiary, from its inception in March 1998. From November
1993 through February 2000, he served as President and a Director of V-Lite
Video Corporation, a direct marketing production and distributing company.
CRAIG A. PISARIS-HENDERSON 30
Mr. Pisaris-Henderson has served as our President, Secretary and Chief
Technology Officer and as one of our Directors since we acquired BeFirst
Internet Corporation in June 1999. Prior to that time he served as the Vice
President and Secretary and a Director of BeFirst from its inception in March
1998. He served as President and Chief Executive Officer of Internet Services
International, Inc. and its predecessor, H.E. Internet Services (founded under
the name Henderson Enterprises) from 1993 to May 1999. Since May 1999, he has
served as Chairman of the Board of Directors, President and Chief Executive
Officer of E-troop.com., a provider of business-to-business multimedia Internet
content, web site design and distribution services.
ROBERT D. BRAHMS 42
Mr. Brahms has served as our Chief Executive Officer and Treasurer and as one of
our Directors since we acquired BeFirst in June 1999. Prior to that time, he
served as a Vice President and Treasurer and as a Director of BeFirst Internet
Corporation from its inception in May 1998. Mr. Brahms has served as the
President, Chief Executive Officer and Director of WPI Advertising since it was
founded in 1986. WPI is a general advertising firm and sales representative firm
for other advertising media, including print and Internet.
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
NAME AND BUSINESS EXPERIENCE AGE
<S> <C>
DAVID M. MEDINIS 42
Mr. Medinis has served as one of our Directors since December 1999. He has
served as President of Monitor Systems, Inc., an enterprise resource planning
and e-commerce software company primarily serving the automotive industry, since
1989. Mr. Medinis has also served as a consultant for Crawford & Smith.
LEE S. SIMONSON 51
Mr. Simonson is an independent consultant. From 1996 to April 2000, he served as
Chairman and Chief Executive Officer of Broadcasting Partners Holdings, L.P.,
which had controlling equity positions in five platform companies operating 38
radio stations in eleven markets. The stations were sold to Citadel
Communications Corporation in April 2000. Prior to Broadcasting Partners
Holdings, Mr. Simonson was co-founder, and served as Vice Chairman and Chief
Operating Officer, of Broadcasting Partners, Inc., a publicly-traded radio
broadcasting company that merged with AMFM, Inc. (formerly Evergreen Media) in
1995.
KENNETH E. CHRISTENSEN 44
Mr. Christensen is the Vice President/General Manager of Viacom Broadcasting's
"STAR 98.7", "B100.3" and KFI/KOST Los Angeles, based radio stations. Mr.
Christensen joined Viacom Broadcasting in August 1995. Prior to joining Viacom
Broadcasting, Mr. Christensen was the General Sales Manager of KFI/KOST/KACE for
Cox Broadcasting in Los Angeles, a position he held since May 1992.
MARTIN BERGER 41
Mr. Berger is a Managing Member of McCann Real Equities Development LLC, a
position he has held since 1997. From 1989 to 1997 Mr. Berger served as a
Director of McCann Real Equities Development. McCann Real Equities Development
is a real estate finance and development company.
</TABLE>
INFORMATION CONCERNING THE BOARD OF DIRECTORS, EXECUTIVE OFFICERS, AND PRINCIPAL
STOCKHOLDERS
MEETINGS, COMMITTEES, AND COMPENSATION OF THE BOARD OF DIRECTORS
Directors are elected for a period of one year and serve until the next
annual meeting at which their successors are duly elected by the stockholders.
Officers and other employees serve at the will of the Board of Directors. There
are currently no arrangements or understandings regarding the length of time
each Director is to serve in such a capacity. During our fiscal year ended
December 31, 1999, our Board of Directors held one meeting and took written
action an additional 16 times by written consent.
In February 2000, our Board of Directors created an audit committee,
which is currently comprised of Messrs. Simonson, Christensen and Berger. The
audit committee is responsible for reviewing the results of the audit engagement
with the independent auditors; reviewing the adequacy, scope, and results of the
internal accounting controls and procedures; reviewing the degree of
independence of the auditors; reviewing the auditors' fees; and recommending the
engagement of auditors to the full Board of Directors.
Directors who are our employees do not receive any compensation for
services as Directors. David Medinis has not received any compensation for his
services as a Director. Messrs. Christensen, Simonson and Berger each received
an option to purchase 10,000 shares of our common stock at the fair market value
on the date of grant as compensation for their services as Directors.
3
<PAGE>
EXECUTIVE OFFICERS
In addition to Messrs. Pisaris-Henderson and Brahms the following
individuals are executive officers of the Company.
PHILLIP R. THUNE, age 29, has served as our Chief Financial Officer
since April 2000. From 1996 to April 2000, he served as the Chief Financial
Officer and a Director of Broadcasting Partners Holdings, L.P., which had
controlling equity positions in five platform companies operating 38 radio
stations in eleven markets. The stations were sold to Citadel Communications
Corporation in April 2000. Prior to Broadcasting Partners Holdings, Mr. Thune
worked in the Media & Communications group of Alex. Brown & Sons' investment
banking division, and was Vice President of Corporate Development and Strategic
Planning for Broadcasting Partners, Inc., a publicly-traded radio broadcasting
company that merged with AMFM, Inc. (formerly Evergreen Media) in 1995.
PETER NEUMANN, age 36, has served as our Vice President - Marketing
since April 2000. From August 1999 to April 2000, Mr. Neumann served as the
Manger Business Development Search and Directory of Go2Net, Inc., a leading
Internet network which provides consumer services, business services and
enabling services. Prior to joining Go2Net, Inc. and beginning in February 1997,
Mr. Neumann was in sales for Design Intelligence, a software development
publishing company. From February 1995 to February 1997, Mr. Neumann served as
the Manager and Chef of Vicino Bistro in Seattle, Washington.
SECURITY OWNERSHIP OF DIRECTORS, OFFICERS AND CERTAIN BENEFICIAL OWNERS
The following table sets forth information regarding beneficial
ownership of the Company's Common Stock, as of March 31, 2000, by (i) each
person known by the Company to beneficially own five percent or more of any
class of the Company's capital stock, (ii) each director, (iii) each of the
Company's executive officers, and (iv) the directors and executive officers of
the Company as a group.
Except as otherwise noted below, the address of each of the persons in
the table is c/o FindWhat.com, 121 West 27th Street, Suite 903, New York, New
York 10001.
<TABLE>
<CAPTION>
NAME OF AND ADDRESS OF NUMBER OF SHARES PERCENTAGE
BENEFICIAL OWNER BENEFICIALLY OWNED(1) OF CLASS(2)
<S> <C> <C>
Courtney P. Jones 2,348,688(3) 17.0%
Craig A. Pisaris-Henderson 2,382,412(4) 17.2%
Robert D. Brahms 2,350,658(5) 17.0%
Lee S. Simonson 5,200 **%
Kenneth E. Christensen 10,000(6) **%
David M. Medinis 51,740 **%
Martin Berger 32,470 **%
Phillip R. Thune 25,000(7) **%
Peter Neumann 1,540 **%
Peter V. Miller(8) 1,562,500 11.4%
Go2Net, Inc. (9) 725,000(10) 5.0%
--------------------- ------------
All directors and executive officers
as a group (9 persons) 7,207,708 51.1%
</TABLE>
- ---------------------------
4
<PAGE>
** Represent beneficial ownership of less than 1% of our outstanding common
stock.
(1) For purposes of the above table, a person is considered to "beneficially
own" any shares with respect to which he exercises sole or shared voting or
investment power or of which he or she has the right to acquire the
beneficial ownership within 60 days of March 31, 2000. Unless otherwise
indicated, voting power and investment power are exercised solely by the
person named above or shared with members of his or her household.
(2) "Percentage of Class" is calculated on the basis of the number of
outstanding shares plus the number of shares a person has the right to
acquire within 60 days of March 31, 1999.
(3) Includes 125,667 options granted under our Stock Incentive Plan.
(4) Includes 130,667 options granted under our Stock Incentive Plan.
(5) Includes 122,667 options granted under our Stock Incentive Plan.
(6) Includes 10,000 options granted under our Stock Incentive Plan.
(7) Includes 25,000 options granted under our Stock Incentive Plan.
(8) The address of Mr. Peter Miller is c/o Proskauer Rose LLP, 1545 Broadway,
New York, New York 10036, attention Jack P. Jackson, Esq.
(9) The address of Go2Net, Inc. is 999 Third Avenue, Suite 4700, Seattle,
Washington 98104.
(10) Includes 725,000 shares to be issued upon the exercise of a warrant.
EXECUTIVE COMPENSATION
The following table sets forth certain information regarding
compensation paid to our Chief Executive Officer, Chairman of the Board and our
President and Chief Technology Officer. No other of our executive officers
earned combined salary and bonus exceeding $100,000 for 1999.
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
LONG-TERM
FISCAL YEAR ANNUAL COMPENSATION COMPENSATION
NAME AND ENDED --------------------- ------------ ALL OTHER
PRINCIPAL POSITION DECEMBER 31, SALARY BONUS OPTIONS (#) COMPENSATION
- ------------------------------ ------------ --------------------- ------------ ------------
<S> <C> <C> <C> <C>
Robert D. Brahms 1999 $64,615 (1) $20,000 122,667 0
Chief Executive Officer
Courtney P. Jones 1999 $64,615 (1) $20,000 125,667 0
Chairman of the Board
Craig Pisaris-Henderson 1999 $87,615 (1) $20,000 130,667 0
President and Chief
Technology Officer
</TABLE>
- ---------------
(1) From March 27, 1998 (the date of BeFirst's inception) through June 30,
1999, none of our executive officers received compensation. Effective
January 2000, the annual base Salary for Messrs. Brahms, Jones and
Pisaris-Henderson was increased to $180,000.
5
<PAGE>
OPTION GRANTS IN LAST FISCAL YEAR
The following table provides certain information regarding stock
options granted during 1999 to each of the executive officers named in the
Summary Compensation Table.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
------------------------------------------------
% OF TOTAL POTENTIAL REALIZABLE VALUE
OPTIONS AT ASSUMED ANNUAL RATES
GRANTED TO OF STOCK PRICE APPRECIATION
OPTIONS EMPLOYEES EXERCISE FOR OPTION TERM(1)
GRANTED IN FISCAL PRICE EXPIRATION -------------------------------
NAME (#) YEAR ($/SHARE) DATE 0%($) 5%($) 10%($)
- ---------------------------- ---------- ---------- --------- ---------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Robert D. Brahms 122,667 24.6% $2.20 06/17/04 $0 $74,559 $164,757
Courtney P. Jones 125,667 25.2% $2.20 06/17/04 $0 $76,383 $168,786
Craig Pisaris-Henderson 130,667 26.2% $2.20 06/17/04 $0 $79,422 $175,502
</TABLE>
- ---------------
(1) The amounts under the columns labeled "5%($)" and "10%($)" are included
by us pursuant to certain rules promulgated by the Securities and
Exchange Commission and are not intended to forecast future
appreciation, if any, in the price of our common stock. Such amounts
are based on the assumption that the option holders hold the options
granted for their full term. The actual value of the options will vary
in accordance with the market price of our common stock. The column
headed "0%($)" is included to illustrate that the options were granted
at fair market value and option holders will not recognize any gain
without an increase in the stock price.
AGGREGATED OPTION EXERCISES AND FISCAL YEAR-END OPTION VALUE TABLE
The following table provides certain information regarding the
exercise of stock options during 1999, and the number and value of stock options
held by the executive officers named in the Summary Compensation Table as of
December 31, 1999.
<TABLE>
<CAPTION>
SHARES VALUE OF UNEXERCISED
ACQUIRED NUMBER OF UNEXERCISED IN-THE-MONEY OPTIONS AT
ON VALUE OPTIONS AT FISCAL YEAR END FISCAL YEAR END ($)(1)
EXERCISE REALIZED --------------------------- ----------------------------
NAME (#) ($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- --------------------- -------- ---------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Courtney P. Jones 0 $0 125,667 0 $728,869 $0
Robert D. Brahms 0 $0 122,667 0 $711,469 $0
Craig A. Pisaris-
Henderson 0 $0 130,667 0 $757,869 $0
</TABLE>
- ---------------
(1) Represents the total gain which would have been realized if all
in-the-money options held at fiscal year-end had been exercised,
determined by multiplying the number of shares underlying the options
by the difference between the per share option exercise price and per
share fair market value at year-end. An option is in-the-money if the
fair market value of the underlying shares exceeds the exercise price
of the option.
6
<PAGE>
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The Company's sales activities are conducted out of the Manhattan
offices of WPI Advertising, a business owned and operated by Robert D. Brahms,
the Company's Chief Executive Officer, Treasurer and a Director. From the
Company's inception through the date hereof, WPI has provided office space and
support services to the Company. As sales operations expand, the Company will
determine whether to maintain its presence in the WPI offices or to seek
alternate space in Manhattan. Through June 30, 1999, the Company paid a 30%
commission to WPI for sales generated by WPI. The commission covered sales costs
as well as rent allocation and other administrative costs provided by WPI. These
expenses for the period ended December 31, 1999 and December 31, 1998 were
approximately $100,000 and $18,000. Beginning July 1, 1999, the Company hired
its own sales staff and entered into a revised arrangement with WPI whereby an
allocation of the above-mentioned rent and administrative expenses is
apportioned to the Company. The total amount allocated to WPI for the year ended
December 31, 1999 is approximately $54,000.
In November 1999, the Company also hired WPI to purchase airtime to
several radio stations on behalf of the Company. Total amount charged to the
Company was approximately $35,000, which represents the regular rates charged by
these stations during their normal course of business.
On November 28, 1999, the Company entered into a consulting agreement
with David M. Medinis, who was subsequently appointed as a Director of the
Company, in which the Company agreed to issue to Mr. Medinis 50,000 shares of
common stock, with a fair market value of $306,250 based on the closing price on
November 26, 1999, the last trading day prior to the Agreement.
The Company believes that prior transactions with its officers,
Directors and principal stockholders were on terms that were no less favorable
than it could have obtained from unaffiliated third parties. The Company intends
that all future transactions between it and its officers, Directors and
stockholders beneficially owning 5% or more of our outstanding voting securities
or their affiliates will be on terms no less favorable to it than it could
obtain in arm's-length negotiations from unaffiliated third parties.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's officers and Directors, and greater than 10%
stockholders, to file reports of ownership and changes in ownership of the
Company's securities with the Securities and Exchange Commission. Copies of the
reports are required by Securities and Exchange Commission regulation to be
furnished to the Company. Based on its review of such reports and written
representations from reporting persons, the Company believes that all filing
requirements were complied with during fiscal 1999.
AMENDMENT TO THE COMPANY'S
STOCK INCENTIVE PLAN
The Board of Directors has approved an amendment to the Company's
1999 Stock Incentive Plan (the "Stock Incentive Plan")(f/k/a BeFirst.com
Stock Incentive Plan), subject to approval of the amendment by the
stockholders at the Annual Meeting, to increase the number of common shares
available for issuance under the Stock Incentive Plan from 1,000,000 to
1,975,000 shares. Approval of this amendment requires the affirmative vote of
the holders of a majority of the shares of the Company's common stock
represented at the Annual Meeting. The following summary does not purport to
be complete and is qualified in its entirety by the terms of the Stock
Incentive Plan which is attached hereto as Annex A.
PURPOSE OF THE STOCK INCENTIVE PLAN
The Stock Incentive Plan was adopted by the Board of Directors and
approved by the stockholders of the Company, effective as of June 3, 1999. The
purpose of the Stock Incentive Plan is to enable the Company to offer to its key
employees and to other contributors to the success of the Company, long-term
performance based stock and/or other equity interest in the Company, thereby
enhancing its ability to attract, retain and reward the key employees and
contributors.
7
<PAGE>
ADMINISTRATION OF THE STOCK INCENTIVE PLAN
The Stock Incentive Plan is administered by our Board of Directors,
which may determine the persons to whom awards will be granted, the number of
awards to be granted and the specific terms of each grant, including vesting,
subject to the provisions of the Stock Incentive Plan.
STOCK SUBJECT TO THE PLAN AND ELIGIBILITY
The Stock Incentive Plan provides for the grant of Stock Options,
Restricted Stock, Deferred Stock and other Stock-Based Awards. The total number
of shares of Stock reserved and available for distribution pursuant to the Stock
Incentive Plan is 1,000,000 shares. The proposed amendment to the Stock
Incentive Plan would increase the number of shares of the Company's common stock
subject to the plan from 1,000,000 shares to 1,975,000 shares. Awards under the
Stock Incentive Plan consist of stock options, both "Non-Qualified Options" and
options intended to qualify as "Incentive Stock Options" under Section 422 of
the Internal Revenue Code of 1986, as amended, restricted stock awards, deferred
stock awards, stock appreciation rights and other stock-based awards. Officers
and other employees of the Company may be eligible to receive Incentive Stock
Options. Independent agents, consultants, advisors, officers and employees who
contribute to the success of the Company may be eligible to receive
Non-Qualified Options.
OPTION PRICE
The exercise price of Incentive Stock Options may not be less than 100%
of the fair market value of our common stock on the date of grant or 110% of the
fair market value in the case of a grantee holding more than 10% of our
outstanding stock. The aggregate fair market value of shares for which qualified
stock options are exercisable for the first time by a grantee during any
calendar year may not exceed $100,000. Non-Qualified Options granted under the
Stock Incentive Plan may be granted at a price determined by our Board of
Directors, which may not be less than the fair market value per share of our
common stock on the date of grant.
TRANSFERABILITY; EXCERCISABILITY
No stock option may be transferred by an optionee other than by will or
by the laws of descent and distribution or, if permitted, pursuant to a
qualified domestic relations order, and during the lifetime of the optionee, the
option will be exercisable only by the optionee. In the event of termination of
employment by reason of death, the optionee's estate will have no more than one
year after such termination during which the optionee's estate shall be entitled
to exercise the options, unless otherwise determined by the Board of Directors.
In the event of termination of employment by reason of disability, the optionee
will have no more than three years after termination to exercise the options, or
until the end of the stated term of the option, which ever period is shorter,
unless otherwise determined by the Board of Directors. In the event of
termination of employment by reason of retirement, the optionee will have no
more than three years after termination to exercise the options, or until the
end of the stated term of the option, whichever period is shorter, unless
otherwise determined by the Board of Directors. Upon termination of employment
by us without cause, the optionee's options remain exercisable for a period of
six months from the date of the termination or until the expiration of the
stated term of the option, whichever period is shorter.
CHANGE OF CONTROL PROVISIONS
The Stock Incentive Plan also contains certain change in control
provisions which could cause options and other awards to become immediately
exercisable and restrictions and deferral limitations applicable to other awards
to lapse in the event any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, including a "group" as defined in
Section 13(d), but excluding certain stockholders of ours approved by the Board
of Directors, becomes the beneficial owners of more than 25% of the outstanding
shares of common stock.
TERM OF THE STOCK INCENTIVE PLAN
We may grant awards under the Stock Incentive Plan within ten years
from the effective date of the plan. The effective date of this plan is June 3,
1999. Awards granted on or prior to the tenth anniversary of the effective date
may extend beyond that date.
8
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AMENDMENT
The Board of Directors may terminate, amend or modify the Stock
Incentive Plan at any time provided that any amendment which requires the
approval of the stockholders of the Company under Securities and Exchange
Commission Rule 16b-3, Section 162(m) of the Internal Revenue Code or any other
applicable law, rule or regulation, will be subject to such approval in
accordance with the applicable law or regulations. No amendment to the Stock
Incentive Plan may materially impair the rights of an optionee or a participant
without the optionee's or participant's consent unless the amendment is made to
qualify the Stock Incentive Plan for a Rule 16b-3 exemption or to comply with
the provisions of Section 162(m).
STOCK INCENTIVE PLAN TABLE
As of March 31, 2000, options to purchase an aggregate of 986,713 shares
of the Company's common stock (net of options canceled) had been granted
pursuant to the Stock Incentive Plan, no options to purchase shares had been
exercised, options to purchase 986,713 shares remained outstanding, and only
13,287 shares remained available for future grant. As of March 31, 2000, the
market value of all shares of the Company's common stock subject to outstanding
options under the Stock Incentive Plan was approximately $10.2 million. Shares
underlying presently exercisable, but unexercised, options will constitute
outstanding shares of the Company's common stock for purposes of calculating the
Company's net income per share on a fully-diluted basis. The market value of the
1,975,000 shares of the Company's common stock to be subject to the Stock
Incentive Plan, pending stockholder approval, was approximately $20.5 million as
of March 31, 2000. As of March 31, 2000, the Company had not granted any
Restricted Stock, Deferred Stock or Other Stock-Based Awards.
As of March 31, 2000, the following current Directors and executive
officers named in the Company's Proxy Statement had been granted options under
the Stock Incentive Plan as follows:
<TABLE>
<CAPTION>
NUMBER OF OPTIONS AVERAGE EXERCISE PRICE
----------------- ----------------------
NAME GRANTED PER SHARE
---- ------- ---------
<S> <C> <C>
Courtney P. Jones 125,667 $2.20
Craig A. Pisaris-Henderson 130,667 $2.20
Robert D. Brahms 122,667 $2.20
Lee S. Simonson 10,000 $5.75
David M. Medinis 0 --
Kenneth E. Christensen 20,000 $3.875
Martin Berger 0 --
Phillip Thune 125,000 $5.50
Peter Neumann 0 --
Executive Group 504,001 $3.02
Non-Executive Director Group 30,000 $4.50
Non-Executive Officer Employee Group 190,000 $4.25
</TABLE>
9
<PAGE>
FEDERAL INCOME TAX CONSEQUENCES
NON-QUALIFIED OPTIONS. Generally, upon the exercise of a Non-Qualified
Option, the excess of the fair market value of the shares on the date of
exercise over the option price is ordinary income to the optionholder at the
time of the exercise. The tax basis for the shares purchased is their fair
market value on the date of exercise. Any gain or loss realized upon a later
sale of the shares for an amount in excess of or less than their tax basis will
be taxed as capital gain or loss, with the character of the gain or loss
(short-term or long-term) depending upon how long the shares were held since
exercise.
INCENTIVE STOCK OPTIONS. Generally, no regular taxable income is
recognized upon the exercise of an Incentive Stock Option. The tax basis of the
shares acquired will be the exercise price. In order to receive this favorable
treatment, shares acquired pursuant to the exercise of an Incentive Stock Option
may not be disposed of within two years after the date the option was granted,
nor within one year after the exercise date (the "Holding Periods"). If the
shares are sold before the end of the Holding Periods, the amount of that gain
which equals the lesser of the difference between the fair market value on the
exercise date and the option price or the difference between the sale price and
the option price is taxed as ordinary income and the balance, if any, as
short-term or long-term capital gain, depending upon how long the shares were
held. If the Holding Periods are met, all gain or loss realized upon a later
sale of the shares for an amount in excess of or less than their tax basis will
be taxed as a capital gain or loss, respectively, which will be taxed at rates
which depend on how long such shares were held.
EXERCISE WITH PREVIOUSLY-OWNED SHARES. All options granted under the
Stock Incentive Plan may be exercised with payment either in cash or, if
authorized in its sole discretion by the Company's Board of Directors, in
previously-owned shares of the Company Common Stock at their then fair market
value, or in a combination of both. When previously-owned shares ("Old Shares")
are used to purchase shares ("New Shares") upon the exercise of an option, no
gain or loss is recognized by the optionholder to the extent that the total
value of the Old Shares surrendered does not exceed the total value of all of
the New Shares received. If, as would almost always be the case, the value of
the New Shares exceeds the value of the Old Shares, the excess amount is taxable
as ordinary income.
THE COMPANY DEDUCTION. The Company is entitled to a tax deduction in
connection with the exercise of a Non-Statutory Stock Option equal to the
ordinary income recognized by the optionholder (conditioned upon proper
reporting and tax withholding and subject to possible deduction limitations).
HOLDING PERIODS. Provided the shares sold or exchanged are held for more
than twelve (12) months prior to such sale or exchange, the resulting gain or
loss will be long-term in character. If the shares are held for less than twelve
months prior to their sale or exchange, the resulting gain or loss will be
short-term in character
The affirmative vote of the holders of a majority of the common shares
of the Company present and entitled to vote at the Annual Meeting is required to
approve the amendment to the Stock Incentive Plan.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE FOR
APPROVAL OF THE AMENDMENT TO THE STOCK INCENTIVE PLAN. UNLESS A CONTRARY CHOICE
IS SPECIFIED, PROXIES SOLICITED BY THE BOARD OF DIRECTORS WILL BE VOTED FOR
APPROVAL OF THE STOCK INCENTIVE PLAN.
STOCKHOLDER PROPOSALS
Each year the Board of Directors submits its nominations for election
of Directors at the Annual Meeting of Stockholders. Other proposals may be
submitted by the Board of Directors or the stockholders for inclusion in the
Proxy Statement for action at the Annual Meeting. Any proposal submitted by a
stockholder for inclusion in the Proxy Statement for the Annual Meeting of
Stockholders to be held in 2001 must be received by the Company (addressed to
the attention of the Secretary) on or before January 26, 2001. To be submitted
at the meeting, any such proposal must be a proper subject for stockholder
action under the laws of the State of Nevada, and must otherwise conform to
applicable requirements of the proxy rules of the Securities and Exchange
Commission.
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<PAGE>
OTHER MATTERS
The only business which the management intends to present at the
meeting consists of the matters set forth in this statement. The management
knows of no other matters to be brought before the meeting by any other person
or group. If any other matter should properly come before the meeting, the proxy
holders will vote thereon in their discretion.
All proxies received duly executed will be voted. You are requested to
sign and date the enclosed proxy and mail it promptly in the enclosed envelope.
If you later desire to vote in person, you may revoke your proxy, either by
written notice to the Company or in person at the meeting, without affecting any
vote previously taken.
BY ORDER OF THE BOARD OF DIRECTORS
CRAIG A. PISARIS-HENDERSON
PRESIDENT, SECRETARY AND
CHIEF TECHNOLOGY OFFICER
11
<PAGE>
ANNEX A
FINDWHAT.COM
1999 STOCK INCENTIVE PLAN (1)
- -----------------
(1) Formerly known as BeFirst.com 1999 Stock Incentive Plan
<PAGE>
FINDWHAT.COM
(f/k/a BeFirst.com)
1999 Stock Incentive Plan
(as amended by the Board of Directors
on January 28, 2000)
SECTION 1. PURPOSES; DEFINITIONS.
The purpose of this Plan is to enable the Company to offer to its key
employees and to key employees of its Subsidiaries and other persons who are
expected to contribute to the success of the Company, long term
performance-based stock and/or other equity interests in the Company, thereby
enhancing their ability to attract, retain and reward such key employees or
other persons, and to increase the mutuality of interest between those employees
or other persons and the stockholders of the Company.
For purposes of this Plan, the following terms shall be defined as set
forth below:
(a) "Board" means the Board of Directors of FindWhat.com.
(b) "Cause" shall have the meaning ascribed thereto in Section 5(b)(ix)
below.
(c) "Change of Control" shall have the meaning ascribed thereto in Section
9 below.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
(e) "Committee" means the Stock Incentive Committee of the Board or any
other committee of the Board which the Board may designate.
(f) "Company" means FindWhat.com, a corporation organized under the laws of
the State of Nevada.
(g) "Deferred Stock" means Stock to be received, under an award made
pursuant to Section 7 below, at the end of a specified deferral period.
(h) "Disability" means disability as determined under procedures
established by the Committee for purposes of this Plan.
(i) "Early Retirement" means retirement from active employment with the
Company or any Parent or Subsidiary prior to age 65, with the approval
of the Board or the Committee, for purposes of one or more award(s)
under this Plan.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
as in effect from time to time.
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(k) "Fair Market Value" of a share of Stock means, as of any given date:
(i) if the Stock is listed on a national securities exchange or quoted
on the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ"), the last sale price of a share of Stock on
the last preceding day on which the Common Stock was traded, as
reported by such exchange or NASDAQ, or on a composite tape reflecting
transactions on such exchange or by NASDAQ, as the case may be; (ii) if
the Stock is not listed on a national securities exchange or quoted on
the NASDAQ, but is traded in the over-the-counter market, the average
of the high bid and asked prices for a share of Stock on the last
preceding day for which such quotations are reported by the National
Quotation Bureau, Inc.; and (iii) if the fair market value of a share
of Stock cannot be determined pursuant to clause (i) or (ii) above,
such price as the Board of Directors or the Committee, as the case may
be, shall determine, which determination shall be conclusive as to the
Fair Market Value of the Stock.
(l) "Incentive Stock Option" means any Stock Option which is intended to be
and is designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
(m) "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
(n) "Normal Retirement" means retirement from active employment with the
Company or any Subsidiary on or after age 65.
(o) "Other Stock-Based Award" means an award under Section 8 below that is
valued in whole or in part by reference to, or is otherwise based upon
Stock.
(p) "Parent" means any present or future parent of the Company, as such
term is defined in Section 424(e) of the Code, or any successor
thereto.
(q) "Performance Objectives" means performance objectives adopted by the
Committee pursuant to the Plan for key employees who have received
awards under the Plan. With respect to any award to a key employee who
is, or is determined by the Committee to be likely to become a "covered
employee" within the meaning of Section 162(m) of the Code, the
Performance Objectives shall be limited to specified levels of growth
in or peer company comparisons based upon (i) appreciation in the price
of Stock plus reinvested dividends over a specified period of time,
(ii) return on assets or (iii) book value per share, as the Committee
may determine, and the attainment of such Performance Objectives shall
not be deemed to have occurred until certified by the Committee. Except
in the case of a covered employee, if the Committee determines that a
change in business, operations, corporate structure or capital
structure of the Company, or the manner in which it conducts it
business, or other events or circumstances under the Performance
Objectives to be unsuitable, the Committee may modify such
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Performance Objectives or the related minimum acceptable level of
achievement, in whole or in part, as the Committee deems appropriate.
(r) "Plan" means this FindWhat.com 1999 Stock Incentive Plan, as
hereinafter amended from time to time.
(s) "Restricted Stock" means Stock, received under an award made pursuant
to Section 6 below, that is subject to restrictions imposed pursuant to
said Section 6.
(t) "Retirement" means Normal Retirement or Early Retirement.
(u) "Rule 16b-3" means Rule 16b-3 of the General Rules and Regulations
under the Exchange Act, as in effect from time to time, and any
successor thereto.
(v) "Section 162(m)" means Section 162(m) of the Code, as in effect from
time to time, and any successor thereto.
(w) "Securities Act" means the Securities Act of 1933, as amended, as in
effect from time to time.
(x) "Stock" means the Common Stock of the Company, par value $.001 per
share.
(y) "Stock Option" or "Option" means any option to purchase shares of Stock
which is granted pursuant to the Plan.
(z) "Subsidiary" means any present or future (A) subsidiary corporation of
the Company, as such term is defined in Section 424(f) of the Code, or
(B) unincorporated business entity in which the Company owns, directly
or indirectly, 50% or more of the voting rights, capital or profits.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board, or at its discretion,
the Committee, the membership of which shall consist solely of two or more
members of the Board, each of whom shall serve at the pleasure of the Board and
shall be a "Non-Employee Director," as defined in Rule 16b-3, and an "outside
director," as defined in Section 162(m) of the Code, and shall be at all times
constituted so as not to adversely affect the compliance of the Plan with the
requirements of Rule 16b-3 or with the requirements of any other applicable law,
rule or regulation.
The Board or the Committee, as the case may be, shall have the
authority to grant, pursuant to the terms of the Plan, to officers and other key
employees or other persons eligible under Section 4 below: (i) Stock Options,
(ii) Restricted Stock, (iii) Deferred Stock, and/or (iv) Other Stock-Based
Awards.
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For purposes of illustration and not of limitation, the Board or the
Committee, as the case may be, shall have the authority (subject to the express
provisions of this Plan):
(i) to select the officers and other key employees of the
Company or any Parent or Subsidiary and other persons
to whom Stock Options, Restricted Stock, Deferred
Stock and/or Other Stock-Based Awards may be from
time to time granted hereunder;
(ii) to determine the Incentive Stock Options,
Non-Qualified Stock Options, Restricted Stock,
Deferred Stock and/or Other Stock-Based Awards, or
any combination thereof, if any, to be granted
hereunder to one or more eligible persons;
(iii) to determine the number of shares of Stock to be
covered by each 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,
share price, any restrictions or limitations, and any
vesting acceleration, exercisability and/or
forfeiture provisions);
(v) to determine the terms and conditions under which
awards granted hereunder are to operate on a tandem
basis and/or in conjunction with or apart from other
awards made by the Company or any Parent or
Subsidiary outside of this Plan;
(vi) to determine the extent and circumstances under which
Stock and other amounts payable with respect to an
award hereunder shall be deferred; and
(vii) to substitute (A) new Stock Options for previously
granted Stock Options, including previously granted
Stock Options which have higher option exercise
prices and/or containing other less favorable terms,
and (B) new awards of any other type for previously
granted awards of the same type, including previously
granted awards which contain less favorable terms.
Subject to Section 10 hereof, The Board or the Committee, as the case
may be, shall have the authority to (i) adopt, alter and repeal such
administrative rules, guidelines and practices governing this Plan as it shall,
from time to time, deem advisable, (ii) interpret the terms and provisions of
this Plan and any award issued under this Plan (and to determine the form and
substance of all agreements relating thereto), and (iii) to otherwise supervise
the administration of the Plan.
Subject to the express provisions of the Plan, all decisions made by
the Board or the Committee, as the case may be, pursuant to the provisions of
the Plan shall be made in the Board or the Committee's sole and absolute
discretion and shall be final and binding upon all persons, including the
Company, its Parent and Subsidiaries and the Plan participants.
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<PAGE>
SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for
distribution under this Plan shall be 1,975,000 shares. Such shares may consist,
in whole or in part, of authorized and unissued shares or treasury shares.
If any shares of Stock that have been optioned cease to be subject to a
Stock Option for any reason, or if any shares of Stock that are subject to any
Restricted Stock award, Deferred Stock award or Other Stock-Based Award are
forfeited or any such award otherwise terminates without the issuance of such
shares, such shares shall again be available for distribution under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, extraordinary distribution with
respect to the Stock or other change in corporate structure affecting the Stock,
such substitutions or adjustments shall be made in the (A) aggregate number and
kind of shares reserved for issuance under this Plan, (B) number, kind and
exercise price of shares of Stock subject to outstanding Options granted under
this Plan, and (C) number, kind, purchase price and/or appreciation base of
shares of Stock subject to other outstanding awards granted under this Plan, as
may be determined to be appropriate by the Board or the Committee, as the case
may be, in its sole discretion, in order to prevent dilution or enlargement of
rights; PROVIDED, HOWEVER, that the number of shares subject to any award shall
always be a whole number. Such adjusted exercise price shall also be used to
determine the amount which is payable to the optionee upon the exercise by the
Board or the Committee, as the case may be, of the alternative settlement right
which is set forth in Section 5(b)(xi) below.
Subject to the provisions of the immediately preceding paragraph, the
maximum numbers of shares subject to Options, Restricted Stock awards, Deferred
Stock awards, and other Stock-Based awards to any employee who is employed by
the Company or any Parent or Subsidiary on the last day of any taxable year of
the Company, shall be 600,000 shares during the term of the Plan.
SECTION 4. ELIGIBILITY.
Officers and other key employees of the Company or any Parent or
Subsidiary (but excluding any person whose eligibility would adversely affect
the compliance of the Plan with the requirements of Rule 16b-3) who are at the
time of the grant of an award under this Plan employed by the Company or any
Parent or Subsidiary and who are responsible for or contribute to the
management, growth and/or profitability of the business of the Company or any
Parent or Subsidiary, are eligible to be granted Options and awards under this
Plan. In addition, Non-Qualified Stock Options and other awards may be granted
under the Plan to any person, including, but not limited to, independent agents,
consultants and attorneys who the Board or the Committee, as the case may be,
believes has contributed or will contribute to the success of the
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<PAGE>
Company. Eligibility under the Plan shall be determined by the Board or the
Committee, as the case may be.
The grants of Restricted Stock, Deferred Stock and Other Stock-Based
Awards under this Plan shall be earned by a participant on the basis of the
Company's financial performance over the period or periods for which the grants
were awarded on the basis of pre-established performance goals determined by the
Board or the Committee, as the case may be, in its sole discretion. The
performance measurement criteria used for such grants shall be limited to one or
more of: earnings per share, return on stockholders' equity, return on assets,
growth in earnings, growth in sales revenue, and stockholder returns. Such
criteria may be measured by the Company's results or the Company's performance
as measured against a group of comparable companies selected by the Committee.
In applying such criteria, earnings may be calculated based on the exclusion of
discontinued operations and extraordinary items. The Board or the Committee, as
the case may be, may, in its sole discretion, include additional conditions and
restrictions in the agreement entered into in connection with awards under this
Plan.
SECTION 5. STOCK OPTIONS.
(a) GRANT AND EXERCISE. Stock Options granted under this Plan may
be of two types: (i) Incentive Stock Options and (ii)
Non-Qualified Stock Options. Any Stock Option granted under
this Plan shall contain such terms as the Board or the
Committee, as the case may be, may from time to time approve.
The Board or the Committee, as the case may be, shall have the
authority to grant to any optionee Incentive Stock Options,
Non-Qualified Stock Options, or both types of Stock Options,
and they may be granted alone or in addition to other awards
granted under this Plan. To the extent that any Stock Option
is not designated as an Incentive Stock Option or does not
qualify as an Incentive Stock Option, it shall constitute a
Non-Qualified Stock Option. The grant of an Option shall be
deemed to have occurred on the date on which the Board or the
Committee, as the case may be, by resolution, designates an
individual as a grantee thereof, and determines the number of
shares of Stock subject to, and the terms and conditions of,
said Option.
Anything in this Plan to the contrary notwithstanding, no term
of this Plan relating to Incentive Stock Options or any
agreement providing for Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or
authority granted under the Plan be exercised, so as to
disqualify this Plan under Section 422 of the Code, or,
without the consent of the Optionee(s) affected, to disqualify
any Incentive Stock Option under Section 422.
(b) TERMS AND CONDITIONS. Stock Options granted under this Plan
shall be subject to the following terms and conditions:
(i) OPTION PRICE. The option price per share of Stock
purchasable under a Stock Option shall be determined
by the Board or the Committee, as the
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<PAGE>
case may be, at the time of grant but shall be not
less than 100% (110% in the case of an Incentive
Stock Option granted to an optionee ("10%
Stockholder") who, at the time of grant, owns Stock
possessing more than 10% of the total combined
voting power of all classes of stock of the Company
or its Parent, if any, or its Subsidiaries) of the
Fair Market Value of the Stock at the time of grant.
(ii) OPTION TERM. The term of each Stock Option shall be
fixed by the Board or the Committee, as the case may
be, but no Incentive Stock Option shall be
exercisable more than ten years (five years, in the
case of an Incentive Stock Option granted to a 10%
Stockholder) after the date on which the Option is
granted.
(iii) EXERCISABILITY. Stock Options shall be exercisable at
such time or times and subject to such terms and
conditions as shall be determined by the Board or the
Committee, as the case may be, at the time of grant;
PROVIDED, HOWEVER, that except as otherwise provided
in this Section 5 and Section 9 below, unless waived
by the Board or the Committee, as the case may be, at
or after the time of grant, no Stock Option shall be
exercisable prior to the first anniversary date of
the grant of the Option. If the Board or the
Committee, as the case may be, provides, in its
discretion, that any Stock Option is exercisable only
in installments, the Board or the Committee, as the
case may be, may waive such installment exercise
provisions at any time at or after the time of grant
in whole or in part, based upon such factors as the
Board or the Committee, as the case may be, shall
determine.
(iv) METHOD OF EXERCISE. Subject to whatever installment,
exercise and waiting period provisions are applicable
in a particular case, 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 of Stock to
be purchased. Such notice shall be accompanied by
payment in full of the purchase price which shall be
in cash unless otherwise provided in this clause (iv)
or in Section 5(b)(xi) below or, unless otherwise
provided in the Stock Option agreement referred to in
Section 5(b)(xii) below, in whole shares of Stock
which are already owned by the holder of the Option
or unless otherwise provided in the Stock Option
agreement referred to in Section 5(b)(xii) below,
partly in cash and partly in such Stock. Cash
payments shall be made by wire transfer, certified or
bank check or personal check, in each case payable to
the order of the Company; PROVIDED, HOWEVER, that the
Company shall not be required to deliver certificates
for shares of Stock with respect to which an Option
is exercised until the Company has confirmed the
receipt of good and available funds in payment of the
purchase price thereof. Payments in the form of Stock
(which shall be valued at the Fair Market Value of a
share of Stock on the date of exercise) shall be made
by
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<PAGE>
delivery of stock certificates in negotiable form
which are effective to transfer good and valid title
thereto to the Company, free of any liens or
encumbrances. In addition to the foregoing, payment
of the exercise price may be made by delivery to the
Company by the optionee of an executed exercise form,
together with irrevocable instructions to a
broker-dealer to sell or margin a sufficient portion
of the shares covered by the option and deliver the
sale or margin loan proceeds directly to the Company.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS PLAN,
NO OPTION WHICH IS GRANTED TO A PERSON WHO IS AT THE
TIME OF GRANT AN EMPLOYEE OF THE COMPANY OR A
SUBSIDIARY OR PARENT OF THE COMPANY MAY BE EXERCISED
AT ANY TIME UNLESS THE HOLDER THEREOF IS THEN AN
EMPLOYEE OF THE COMPANY OR OF A PARENT OR A
SUBSIDIARY. The holder of an Option shall have none
of the rights of a stockholder with respect to the
shares subject to the Option until the optionee has
given written notice of exercise, has paid in full
for those shares of Stock and, if requested by the
Board or Committee, as the case may be, has given the
representation described in Section 12(a) below.
(v) TRANSFERABILITY; EXERCISABILITY. No Stock Option
shall be transferable by the optionee other than by
will or by the laws of descent and distribution;
provided, however, that a Non-Qualified Stock Option
shall be transferable pursuant to a qualified
domestic relations order, and except as may be
otherwise required with respect to a Non-Qualified
Option pursuant to a qualified domestic relations
order, all Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee or his
or her guardian or legal representative.
(vi) TERMINATION BY REASON OF DEATH. Subject to Section
5(b)(x) below, if an optionee's employment by the
Company or any Parent or Subsidiary terminates by
reason of death, any Stock Option held by such
optionee may thereafter be exercised, to the extent
then exercisable or on such accelerated basis as the
Board or Committee, as the case may be, may determine
at or after the time of grant, for a period of one
year (or such other period as the Board or the
Committee, as the case may be, may specify at or
after the time of grant) from the date of death or
until the expiration of the stated term of such Stock
Option, whichever period is the shorter.
(vii) TERMINATION BY REASON OF DISABILITY. Subject to
Section 5(b)(x) below, if an optionee's employment by
the Company or any Subsidiary terminates by reason of
Disability, any Stock Option held by such optionee
may thereafter be exercised by the optionee, to the
extent it was exercisable at the time of termination
or on such accelerated basis as the Board or the
Committee, as the case may be, may determine at or
after the time of grant, for a period of three years
(or such other period as the Board or the Committee,
as the case may be, may specify at or after the time
of grant) from the date of such termination of
employment or until the expiration of
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the stated term of such Stock Option, whichever
period is the shorter; PROVIDED, HOWEVER, that if the
optionee dies within such three-year period (or such
other period as the Board or the Committee, as the
case may be, shall specify at or after the time of
grant), any unexercised Stock Option held by such
optionee shall thereafter be exercisable to the
extent to which it was exercisable at the time of
death for a period of one year from the date of death
or until the expiration of the stated term of such
Stock Option, whichever period is the shorter.
(viii) TERMINATION BY REASON OF RETIREMENT. Subject to
Section 5(b)(x) below, if an optionee's employment by
the Company or any Parent or Subsidiary terminates by
reason of Normal Retirement, any Stock Option held by
such optionee may thereafter be exercised by the
optionee, to the extent it was exercisable at the
time of termination or on such accelerated basis as
the Board or the Committee, as the case may be, may
determine at or after the time of grant, for a period
of three years (or such other period as the Board or
the Committee, as the case may be, may specify at or
after the time of grant) from the date of such
termination of employment or the expiration of the
stated terms of such Stock Option, whichever period
is the shorter; PROVIDED, HOWEVER, that if the
optionee dies within such three-year period (or such
other period as the Board or the Committee, as the
case may be, shall specify at or after the time of
grant), any unexercised Stock Option held by such
optionee shall thereafter be exercisable to the
extent to which it was exercisable at the time of
death for a period of one year from the date of death
or until the expiration of the stated terms of such
Stock Option, whichever period is the shorter. If an
optionee's employment with the Company or any Parent
or Subsidiary terminates by reason of Early
Retirement, the Stock Option shall thereupon
terminate; PROVIDED, HOWEVER, that if the Board or
the Committee, as the case may be, so approves at the
time of Early Retirement, any Stock Option held by
the optionee may thereafter be exercised by the
optionee as provided above in connection with
termination of employment by reason of Normal
Retirement.
(ix) OTHER TERMINATION. Subject to the provisions of
Section 12(g) below and unless otherwise determined
by the Committee at or after the time of grant, if an
optionee's employment by the Company or any Parent or
Subsidiary terminates for any reason other than
death, Disability or Retirement, the Stock Option
shall thereupon automatically terminate, EXCEPT THAT
IF THE OPTIONEE IS INVOLUNTARILY TERMINATED BY THE
COMPANY OR ANY PARENT OR A SUBSIDIARY WITHOUT CAUSE
(AS HEREINAFTER DEFINED), SUCH STOCK OPTION MAY BE
EXERCISED FOR A PERIOD OF SIX MONTHS FROM THE DATE OF
SUCH TERMINATION OR UNTIL THE EXPIRATION OF THE
STATED TERMS OF SUCH STOCK OPTION, WHICHEVER PERIOD
IS THE SHORTER. For purposes of this Plan, "Cause"
shall mean (1) the conviction of the optionee of a
felony under Federal law or the law of the state in
which such action occurred, (2)
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<PAGE>
dishonesty by the optionee in the course of
fulfilling his or her employment duties, or (3)
the willful and deliberate failure on the part of
the optionee to perform his or her employment
duties in any material respect. In addition, with
respect to an option granted to an employee of the
Company, a Parent or a Subsidiary, for purposes of
this Plan, "Cause" shall also include any
definition of "Cause" contained in any employment
agreement between the optionee and the Company,
Parent or Subsidiary, as the case may be.
(x) ADDITIONAL INCENTIVE STOCK OPTION LIMITATION. In the
case of an Incentive Stock Option, the aggregate Fair
Market Value of Stock (determined at the time of
grant of the Option) with respect to which Incentive
Stock Options are exercisable for the first time by
an optionee during any calendar year (under all such
plans of optionee's employer corporation and its
Parent, if any, and Subsidiaries) shall not exceed
$100,000.
(xi) ALTERNATIVE SETTLEMENT OF OPTION. Upon the receipt of
written notice of exercise, the Board or the
Committee, as the case may be, may elect to settle
all or part of any Stock Option by paying to the
optionees an amount, in cash or Stock (valued at Fair
Market Value on the date of exercise), equal to the
excess of the Fair Market Value of one share of
Stock, on the date of exercise over the Option
exercise price, multiplied by the number of shares of
Stock with respect to which the optionee proposes to
exercise the Option. Any such settlements which
relate to Options which are held by optionees who are
subject to Section 16(b) of the Exchange Act shall
comply with the "window period" provisions of Rule
16b-3, to the extent applicable and with such other
conditions as the Board or Committee may impose. No
such discretion may be exercised unless the option
agreement permits the payment of the purchase price
in that manner.
(xii) STOCK OPTION AGREEMENT. Each grant of a Stock Option
shall be confirmed by, and shall be subject to the
terms of, an agreement executed by the Company and
the participant.
SECTION 6. RESTRICTED STOCK.
(a) GRANT AND EXERCISE. Shares of Restricted Stock may be issued
either alone or in addition to or in tandem with other awards
granted under this Plan. The Board or the Committee, as the
case may be, shall determine the eligible persons to whom, and
the time or times at which, grants of Restricted Stock will be
made, the number of shares to be awarded, the price (if any)
to be paid by the recipient, the time or times within which
such awards may be subject to forfeiture (the "Restriction
Period"), the vesting schedule and rights to acceleration
thereof, and all other terms and conditions of the awards. The
Board or the Committee, as the
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case may be, may condition the grant of Restricted Stock
upon the attainment of specified Performance Objectives or
such other factors as the Board or the Committee, as the
case may be, may determine.
(b) TERMS AND CONDITIONS. Each Restricted Stock award shall be
subject to the following terms and conditions:
(i) Restricted Stock, when issued, will be represented by
a stock certificate or certificates registered in the
name of the holder to whom such Restricted Stock
shall have been awarded. During the Restriction
Period, certificates representing the Restricted
Stock and any securities constituting Retained
Distributions (as defined below) shall bear a
restrictive legend to the effect that ownership of
the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights
appurtenant thereto, are subject to the restrictions,
terms and conditions provided in this Plan and the
Restricted Stock agreement referred to in Section
6(b)(iv) below. Such certificates shall be deposited
by the holder with the Company, together with stock
powers or other instruments of assignment, endorsed
in blank, which will permit transfer to the Company
of all or any portion of the Restricted Stock and any
securities constituting Retained Distributions that
shall be forfeited or that shall not become vested in
accordance with this Plan and the applicable
Restricted Stock agreement.
(ii) Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate
purposes, and the issuance thereof shall be made for
at least the minimum consideration (if necessary) to
permit the shares of Restricted Stock to be deemed to
be fully paid and nonassessable. The holder will have
the right to vote such Restricted Stock, to receive
and retain all regular cash dividends and other cash
equivalent distributions as the Board may in its sole
discretion designate, pay or distribute on such
Restricted Stock and to exercise all other rights,
powers and privileges of a holder of Stock with
respect to such Restricted Stock, with the exceptions
that (A) the holder will not be entitled to delivery
of the stock certificate or certificates representing
such Restricted Stock until the Restriction Period
shall have expired and unless all other vesting
requirements with respect thereto shall have been
fulfilled; (B) the Company will retain custody of the
stock certificate or certificates representing the
Restricted Stock during the Restriction Period; (C)
other than regular cash dividends and other cash
equivalent distribution as the Board may in its sole
discretion designate, pay or distribute, the Company
will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the
Restricted Stock (and such Retained Distributions
will be subject to the same restrictions, terms and
conditions as are applicable to the Restricted Stock)
until such time, if ever, as the Restricted Stock
with respect to which such Retained Distributions
shall have been made, paid or declared shall have
become vested and with
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<PAGE>
respect to which the Restriction Period shall have
expired; (D) the holder may not sell, assign,
transfer, pledge, exchange, encumber or dispose of
the Restricted Stock or any Retained Distributions
during the Restriction Period; and (E) a breach of
any of the restrictions, terms or conditions
contained in this Plan or the Restricted Stock
agreement referred to in Section 6(b)(iv) below,
or otherwise established by the Committee with
respect to any Restricted Stock and Retained
Distributions will cause a forfeiture of such
Restricted Stock and any Retained Distributions
with respect thereto.
(iii) Upon the expiration of the Restriction Period with
respect to each award of Restricted Stock and the
satisfaction of any other applicable restrictions,
terms and conditions (A) all or part of such
Restricted Stock shall become vested in accordance
with the terms of the Restricted Stock agreement
referred to in Section 6(b)(iv) below, and (B) any
Retained Distributions with respect to such
Restricted Stock shall become vested to the extent
that the Restricted Stock related thereto shall have
become vested. Any such Restricted Stock and Retained
Distributions that do not vest shall be forfeited to
the Company and the holder shall not thereafter have
any rights with respect to such Restricted Stock and
Retained Distributions that shall have been so
forfeited.
(iv) Each Restricted Stock award shall be confirmed by,
and shall be subject to the terms of, an agreement
executed by the Company and the participant.
SECTION 7. DEFERRED STOCK.
(a) GRANT AND EXERCISE. Deferred Stock may be awarded either alone
or in addition to or in tandem with other awards granted under
the Plan. The Board or the Committee, as the case may be,
shall determine the eligible persons to whom and the time or
times at which Deferred Stock shall be awarded, the number of
shares of Deferred Stock to be awarded to any person, the
duration of the period (the "Deferral Period") during which,
and the conditions under which, receipt of the Deferred Stock
will be deferred, and all the other terms and conditions of
the awards. The Board or the Committee, as the case may be,
may condition the grant of the Deferred Stock upon the
attainment of specified Performance Objectives or such other
factors or criteria as the Board or the Committee, as the case
may be, shall determine.
(b) TERMS AND CONDITIONS. Each Deferred Stock award shall be
subject to the following terms and conditions:
(i) Subject to the provisions of this Plan and Deferred
Stock agreement referred to in Section 7(b)(vii)
below, Deferred Stock awards may not be sold,
assigned, transferred, pledged or otherwise
encumbered during the Deferral Period. At the
expiration of the Deferral Period (or the
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Additional Deferral Period referred to in Section
7(b)(vi) below, where applicable), share
certificates shall be delivered to the
participant, or his legal representative, in a
number equal to the shares of Stock covered by the
Deferred Stock award.
(ii) As determined by the Committee at the time of award,
amounts equal to any dividends declared during the
Deferral Period (or the Additional Deferral Period
referred to in Section 7(b)(vi) below, where
applicable) with respect to the number of shares
covered by a Deferred Stock award may be paid to the
participant currently or deferred and deemed to be
reinvested in additional Deferred Stock.
(iii) Subject to the provisions of the Deferred Stock
agreement referred to in Section 7(b)(vii) below and
this Section 7 and Section 12(g) below, upon
termination of participant's employment with the
Company or any Subsidiary for any reason during the
Deferral Period (or the Additional Deferral Period
referred to in Section 7(b)(vi) below, where
applicable) for a given award, the Deferred Stock in
question will vest or be fortified in accordance with
the terms and conditions established by the Board or
the Committee, as the case may be, at the time of
grant.
(iv) The Board or the Committee, as the case may be, may,
after grant, accelerate the vesting of all or any
part of any Deferred Stock award and/or waive the
deferral limitations for all or any part of a
Deferred Stock award.
(v) In the event of hardship or other special
circumstances of a participant whose employment with
the Company or any Parent or Subsidiary is
involuntarily terminated (other than for Cause), the
Board or the Committee, as the case may be, may waive
in whole or in part any or all of the remaining
deferral limitations imposed hereunder or pursuant to
the Deferred Stock agreement referred to in Section
7(b)(vii) below with respect to any or all of the
participant's Deferred Stock.
(vi) A participant may request to, and the Board or the
Committee, as the case may be, may at any time, defer
the receipt of an award (or an installment of an
award) for an additional specified period or until a
specified period or until a specified event (the
"Additional deferral Period"). Subject to any
exceptions adopted by the Board or the Committee, as
the case may be, such request must be made at least
one year prior to expiration of the Deferral Period
for such Deferred Stock award (or such installment).
(vii) Each Deferred Stock award shall be confirmed by, and
shall be subject to the terms of, an agreement
executed by the Company and the participant.
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<PAGE>
SECTION 8. OTHER STOCK-BASED AWARDS.
(a) GRANT AND EXERCISE. Other Stock-Based Awards, which may
include performance shares and shares valued by reference to
the performance of the Company or any Subsidiary, may be
granted either alone or in addition to or in tandem with Stock
Options, Restricted Stock or Deferred Stock. The Board or the
Committee, as the case may be, shall determine the eligible
persons to whom, and the time or times at which, such awards
shall be made, the number of shares of Stock to be awarded
pursuant to such awards, and all other terms and conditions of
the awards. The Board or the Committee, as the case may be,
may also provide for the grant of Stock under such awards upon
the attainment of specified Performance Objectives and/or
completion of a specified performance period.
(b) TERMS AND CONDITIONS. Each Other Stock-Based Award shall be
subject to the following terms and conditions:
(i) Shares of Stock subject to an Other Stock-Based may
not be sold, assigned, transferred, pledged or
otherwise encumbered prior to the date on which the
shares are issued, or, if later, the date on which
any applicable restriction or period of deferral
lapses.
(ii) The recipient of Other Stock-Based Award shall be
entitled to receive, currently or on a deferred
basis, dividends or dividend equivalents with respect
to the number of shares covered by the award, as
determined by the Board or the Committee, as the case
may be, at the time of the award. The Board or the
Committee, as the case may be, may provide that such
amounts (if any) shall be deemed to have been
reinvested in additional Stock.
(iii) Any Other Stock-Based Award and any Stock covered by
any Other Stock-Based Award shall vest or be
forfeited to the extent so provided in the award
agreement referred to in Section 8(b)(v) below, as
determined by the Board or the Committee, as the case
may be.
(iv) In the event of the participant's Retirement,
Disability or death, or in case of special
circumstances, the Board or the Committee, as the
case may be, may waive in whole or in part any or all
of the limitations imposed hereunder (if any) with
respect to any or all of an Other Stock-Based Award.
(v) Each Other Stock-Based Award shall be confirmed by,
and shall be subject to the terms of, an agreement
executed by the Company and by the participant.
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<PAGE>
SECTION 9. CHANGE OF CONTROL PROVISIONS.
(a) A "Change of Control" shall be deemed to have occurred on the
tenth day after:
(i) any individual, entity or group (as defined in
Section 13(d)(3) of the Exchange Act), becomes,
directly or indirectly, the beneficial owner (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than 25% of the then
outstanding shares of the Company's capital stock
entitled to vote generally in the election of
directors of the Company; or
(ii) the commencement of, or the first public announcement
of the intention of any individual, firm, corporation
or other entity or of any group (as defined in
Section 13(d)(3) of the Exchange Act) to commence, a
tender or exchange offer subject to Section 14(d)(1)
of the Exchange Act for any class of the Company's
capital stock; or
(iii) the stockholders of the Company approve (A) a
definitive agreement for the merger or other business
combination of the Company with or into another
corporation pursuant to which the stockholders of the
Company immediately prior to the transaction do not
own, immediately after the transaction, more than 50%
of the voting power of the corporation that survives,
or (B) a definitive agreement for the sale, exchange
or other disposition of all or substantially all of
the assets of the Company, or (C) any plan or
proposal for the liquidation or dissolution of the
Company;
PROVIDED, HOWEVER, that a "Change of Control" shall
not be deemed to have taken place if beneficial
ownership is acquired (A) directly from the Company,
other than an acquisition by virtue of the exercise
or conversion of another security unless the security
so converted or exercised was itself acquired
directly from the Company, or (B) by, or a tender or
exchange offer is commenced or announced by, the
Company, any profit-sharing, employee ownership or
other employee benefit plan sponsored or maintained
by the Company; or any trustee of or fiduciary with
respect to any such plan when acting in such
capacity.
(b) In the event of a "Change of Control" as defined in Section
9(a) above, awards granted under this Plan shall be subject to
the following provisions, unless the provisions of this
Section 9 are suspended or terminated by the Board prior to
the occurrence of such a "Change of Control":
(i) all outstanding Stock Options which have been
outstanding for at least six months shall become
exercisable in full, whether or not otherwise
exercisable at such time, and any such Stock Option
shall remain exercisable in full thereafter until it
expires pursuant to its terms; and
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<PAGE>
(ii) all restrictions and deferral limitations contained
in Restricted Stock awards, Deferred Stock awards and
Other Stock-Based Awards granted under the Plan shall
lapse.
SECTION 10. AMENDMENTS AND TERMINATION.
The Board may at any time, and from time to time, amend any of the
provisions of this Plan, and may at any time suspend or terminate the Plan;
PROVIDED, HOWEVER, that no such amendment shall be effective unless and until it
has been duly approved by the holders of the outstanding shares of Stock if the
failure to obtain such approval would adversely affect the compliance of the
Plan with the requirements of Rule 16b-3, Section 162(m) or any other applicable
law, rule or regulation. The Board or the Committee, as the case may be, may
amend the terms of any Stock Option or other award theretofore granted under the
Plan; PROVIDED, HOWEVER, that subject to Section 3 above, no such amendment may
be made by the Board or the Committee, as the case may be, which in any material
respect impairs the rights of the optionee or participant without the optionee's
or participant's consent, except for such amendments which are made to cause
this Plan to qualify for the exemption provided by Rule 16b-3 or to be in
compliance with the provisions of Section 162(m).
SECTION 11. 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 creditor of
the Company.
SECTION 12. GENERAL PROVISIONS.
(a) The Board or the Committee, as the case may be, may require
each person acquiring shares of Stock Option or other award
under this Plan to represent to and agree with the Company in
writing that the optionee or participant is acquiring the
shares for investment without a view towards the distribution
thereof.
All certificates for shares of Stock delivered under this Plan
shall be subject to such stop transfer orders and other
restrictions as the Board or the Committee, as the case may
be, may deem to be advisable in order to assure compliance
with the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange or
association upon which the Stock is then listed or quoted, any
applicable Federal or state securities law, and any applicable
corporate law, and the Board or the Committee, as the case may
be, may cause a legend or legends to be put on any such
certificates to make appropriate reference to such
restrictions.
(b) Nothing contained in the Plan shall prevent the Board from
adopting such other or additional incentive arrangements as it
may deem desirable, including, but not
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<PAGE>
limited to, the granting of stock options and the awarding of
stock and cash otherwise than under this Plan; and such
arrangements may be either generally applicable or applicable
only in specific cases.
(c) Nothing contained in this Plan or in any award hereunder shall
be deemed to confer upon any employee of the Company or any
Parent or Subsidiary any right to continued employment with
the Company or any Parent or Subsidiary, nor shall it
interfere in any way with the right of the Company or any
Parent or Subsidiary to terminate the employment of any of its
employees at any time.
(d) No later than the date as of which an amount first becomes
includable in the gross income of the participant for Federal
income tax purposes with respect to any Option or other award
under this Plan, the participant shall pay to the Company, or
make arrangements satisfactory to the Board or the Committee,
as the case may be, regarding the payment of, any Federal,
state and local taxes of any kind required by law to be
withheld or paid with respect to such amount. If permitted by
the Board or the Committee, as the case may be, tax
withholding or payment obligations may be settled with Stock,
including Stock that is part of the award that gives rise to
the withholding requirement. The obligations of the Company
under this Plan shall be conditional upon such payment or
arrangements, and the Company and any Subsidiary 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 from the Company or any Parent or Subsidiary.
(e) This Plan and all awards made and actions taken thereunder
shall be governed by and construed in accordance with the laws
of the State of Delaware (without regard to choice of law
provisions).
(f) Any Stock Option granted or other award made under this Plan
shall not be deemed compensation for purposes of computing
benefits under any retirement plan of the Company or any
Parent or Subsidiary and shall not affect any benefits under
any other benefit plan now or subsequently in effect under
which the availability or amount of benefits is related to the
level of compensation (unless required by specific reference
in any such other plan to awards under this Plan).
(g) A leave of absence, unless otherwise determined by the
Committee prior to the commencement thereof, shall not be
considered a termination of employment. Any Stock Option
granted or awards made under this Plan shall not be affected
by any change of employment, so long as the holder continues
to be an employee of the Company or any Parent or Subsidiary.
(h) Except as otherwise expressly provided in this Plan, no right
or benefit under this Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbranced or
charged, and any attempt to alienate, sell, assign,
hypothecate, pledge, exchange, transfer, encumber or charge
the same shall be
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void. No right or benefit hereunder shall in any manner be
subject to the debts, contracts or liabilities of the person
entitled to such benefit.
(i) The obligations of the Company with respect to all Stock
Options and awards under this Plan shall be subject to (A) all
applicable laws, rules and regulations, and such approvals by
any governmental agencies as may be required, including,
without limitation, the effectiveness of a registration
statement under the Securities Act, and (B) the rules and
regulations of any securities exchange or association on which
the Stock may be listed or quoted.
(j) It is the intention of the Company that this Plan complies
with the requirements of Rule 16b-3, Section 162(m) and all
other applicable laws, rules and regulations, and any
ambiguities or inconsistencies in the construction of any of
the provisions of this Plan shall be interpreted to give
effect to such intention. If any of the terms or provisions of
this Plan conflict with the requirements of Rule 16b-3, or
with the requirements of Section 162(m) or any other
applicable law, rule or regulation, and with respect to
Incentive Stock Options under Section 422 of the Code, then
such terms or provisions shall be deemed inoperative to the
extent they so conflict. With respect to Incentive Stock
Options, if this Plan does not contain any provision required
to be included herein under Section 422 of the Code. such
provision shall be deemed to be incorporated herein with the
same force and effect as if such provision had been set out at
length herein.
(k) The Board or the Committee, as the case may be, may terminate
any Stock Option or other award made under this Plan if a
written agreement relating thereto is not executed and
returned to the Company within 30 days after such agreement
has been delivered to the optionee or participant for his or
her execution.
(l) The grant of awards pursuant to this Plan shall not in any way
effect the right or power of the Company to make
reclassifications, reorganizations or other changes of or to
its capital or business structure or to merge, consolidate,
liquidate, sell or otherwise dispose of all or any part of its
business or assets.
SECTION 13. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of the date of the approval and
adoption thereof at a meeting of the stockholders of the Company.
SECTION 14. TERM OF PLAN.
This Plan shall terminate on the tenth anniversary of its effective
date, and no Stock Option, Restricted Stock Award, Deferred Stock award or Other
Stock-Based Award shall be granted pursuant to this Plan after said date. Awards
granted on or prior to such date may extend beyond that date.
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FINDWHAT.COM
121 WEST 27TH STREET, NEW YORK, NEW YORK 10001
----------------------------------------------------------------
PROXY FOR ANNUAL MEETING OF STOCKHOLDERS - JULY 11, 2000
The undersigned stockholder of FindWhat.com. (the "Company") hereby
appoints Robert D. Brahms, Phillip R. Thune and John B. Pisaris, or either one
of them, as attorneys and proxies with full power of substitution to vote all
shares of Common Stock of the Company which the undersigned is entitled to vote
at the Annual Meeting of Stockholders of the Company to be held at the office of
Blank Rome Tenzer Greenblat LLP, 405 Lexington Avenue, New York, New York 10174,
on July 11, 2000, at 2:30 p.m., local time, and at any adjournments or
postponements thereof as follows:
1. ELECTION OF DIRECTORS.
/ / FOR all nominees listed below (except as marked to the contrary)
/ / WITHHOLD AUTHORITY to vote for all nominees listed below
(INSTRUCTION: TO WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL
NOMINEE, STRIKE A LINE THROUGH THE NOMINEE'S NAME BELOW.)
<TABLE>
<CAPTION>
<S> <C> <C>
Courtney P. Jones o Craig A. Pisaris-Henderson o Robert D. Brahms
Lee S. Simonson o David M. Medinis o Kenneth E. Christensen
Martin Berger
</TABLE>
2. APPROVE AND ADOPT THE AMENDMENT TO THE COMPANY'S 1999 STOCK INCENTIVE PLAN,
AS DESCRIBED IN THE COMPANY'S PROXY STATEMENT.
/ / FOR
/ / AGAINST
3. IN THEIR DISCRETION TO VOTE UPON SUCH OTHER MATTERS AS MAY PROPERLY COME
BEFORE THE MEETING.
THIS PROXY, WHEN EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE
UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR
PROPOSALS 1, 2 AND 3.
The undersigned hereby acknowledges receipt of the Notice of the Annual
Meeting of Stockholders, dated May 26, 2000, and the Proxy Statement furnished
therewith. Any proxy heretofore given to vote said shares hereby is revoked.
PLEASE SIGN AND DATE THIS PROXY BELOW AND RETURN IN THE ENCLOSED ENVELOPE.
Dated: , 2000
-------------------------------------
-------------------------------------------------
(Signature)
-------------------------------------------------
(Signature)
Signature(s) must agree with the name(s) printed
on this Proxy. If shares are registered in two
names, both stockholders should sign this Proxy.
When signing as attorney, executor,
administrator, trustee or guardian, please give
your full title.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
