MAGICINC.COM
2001 CONSULTANT COMPENSATION PLAN
1. Purpose
The Magicinc.com 2001 Consultant Compensation Plan (the "Plan") is
intended to promote the interests of Magicinc.com and its subsidiaries, if any
(collectively the "Corporation") by offering those outside consultants of the
Corporation who assist in the development and success of the business of the
Corporation, the opportunity to participate in a compensation plan designed to
reward them for their services and to encourage them to continue to provide
services to the Corporation.
2. Definitions
For all purposes of this Plan, the following terms shall have the
following meanings:
"Common Stock" means Magicinc.com common stock, $.0001 par
value.
"Conditional Shares" means shares of Common Stock awarded
under this Plan subject to conditions imposed by the Committee (as
defined herein) or the conditions set forth in Section 6.2 or both.
"Discounted Purchase Shares" means shares of Common Stock sold
under this Plan at a discount from the Common Stock's then current
market price.
"Subsidiary" means any company of which Magicinc.com owns,
directly or indirectly, the majority of the combined voting power of
all classes of stock.
"Unconditional Shares" means shares of Common Stock awarded
under this Plan subject to no conditions.
3. Administration
The Plan shall be administered by a committee (the "Committee") of not
less than two directors of Magicinc.com selected by, and serving at the pleasure
of, Magicinc.com's Board of Directors (the "Magicinc.com Board").
Magicinc.com or any Subsidiary will recommend to the Committee persons
to whom shares may be awarded or may be sold at a discount. The Committee shall
make all final decisions with respect to the persons to whom awards shall be
granted or stock shall be sold at a discount ("Participants"), the number of
shares that shall be covered by each award or sale, the time or times at which
awards shall be granted or sales shall be made, the timing of when awards shall
vest, the percentage from the then current market price that any shares sold
shall be discounted, the terms and provisions of the instruments by which awards
or sales shall be evidenced, the interpretation of the Plan and all
determinations necessary or advisable for its administration.
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4. Eligibility
Only individuals who are outside consultants, or directors, officers,
partners or employees of outside consultants, of Magicinc.com or any Subsidiary
shall be granted awards or shall be permitted to purchase shares at a discount.
5. Stock Subject to the Plan
The stock, which may be awarded or sold pursuant to this Plan, shall be
shares of Common Stock. When shares of Common Stock are awarded or sold,
Magicinc.com may award or sell authorized but unissued Common Stock, or
Magicinc.com may award or sell issued Common Stock held in its treasury. Each of
the respective boards of Magicinc.com and all Subsidiaries involved in the award
or sale will fund the Plan to the extent so required to provide Common Stock for
the benefit of Participants. The total number of shares of Common Stock, which
may be granted or sold under this Plan, shall not exceed 1,500,000 shares in the
aggregate. Any shares awarded and later forfeited are again subject to award or
sale under the Plan.
6. Share Awards and Sales
6.1 Grant of Share Awards and Sale of Discounted Purchase Shares
The Committee may award to Participants Unconditional Shares
and Conditional Shares. The Committee will determine for each Participant
selected to be awarded Unconditional Shares and Conditional Shares the time or
times when Unconditional Shares or Conditional Shares shall be awarded and the
number of shares of Common Stock to be covered by each Unconditional Shares or
Conditional Shares award. Unless expressly specified as Conditional Shares by
the Committee, all shares of Common Stock awarded under this Plan shall be
Unconditional Shares. No Unconditional Shares or Conditional Shares shall be
awarded unless Magicinc.com (in the judgement of the Committee) has received
from the Participant either (a) a full performance of the services for which the
Unconditional Shares or Conditional Shares are being awarded, or (b) (i) a
partial performance of the services for which the Unconditional Shares or
Conditional Shares are being awarded and the value of such partial performance
(in the judgment of the Committee) equals or exceeds the aggregate par value of
the Unconditional Shares or Conditional Shares to be awarded and (ii) a binding
obligation from the Participant to provide in the future the remainder of the
services for which the Unconditional Shares or Conditional Shares are being
awarded. In addition to awarding Unconditional Shares and Conditional Shares,
the Committee may sell to Participants Discounted Purchase Shares, for purchase
prices at such discounts from the then current market price of the Common Stock,
and upon such terms and conditions, as the Committee shall determine.
6.2 Conditions
Shares of Common Stock issued to a Participant, as a
Conditional Shares award, will be subject to the following conditions as well as
all other conditions imposed by the Committee ("Share Conditions"):
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(a) Except as set forth in Paragraphs 6.4 and 6.5, if Share
Conditions are not satisfied, Conditional Shares will be forfeited and returned
to Magicinc.com or, in the event such Conditional Shares were provided to the
Participant from shares of Common Stock purchased by the Subsidiary, then the
Conditional Shares will be returned to the Subsidiary. In either case, all
rights of the Participant to such Conditional Shares will terminate without any
payment of consideration by Magicinc.com or the Subsidiary with which the
Participant is associated, unless the Participant maintains his association with
Magicinc.com or a Subsidiary for the period of time (if any) determined by the
Committee.
(b) During the condition period ("Condition Period") relating
to a Conditional Share award none of the Conditional Shares subject to such
award may be sold, assigned, bequeathed, transferred, pledged, hypothecated or
otherwise disposed of in any way by the Participant.
(c) The Committee may require the Participant to enter into an
escrow agreement providing that the certificates representing Conditional Shares
sold or granted pursuant to the Plan will remain in the physical custody of
Magicinc.com or the applicable Subsidiary or an escrow holder during the
Condition Period.
(d) Certificates representing Conditional Shares sold granted
pursuant to the Plan may bear a legend making an appropriate reference to the
conditions imposed on the Conditional Shares.
(e) The Committee may impose other conditions on any
Conditional Shares issued pursuant to the Plan as it may deem advisable,
including without limitations, restrictions under the Securities Act of 1933, as
amended, under the requirements of any stock exchange upon which such share or
shares of the same class are then listed and under any state securities laws or
other securities laws applicable to such shares.
6.3 Rights of a Stockholder
Except as set forth in Paragraph 6.2(b), the recipient of a
Conditional Share award will have all of the rights of a stockholder of
Magicinc.com with respect to the Conditional Shares, including the right to vote
the Conditional Shares and to receive all dividends or other distributions made
with respect to the Conditional Shares.
6.4 Lapse of Conditions
In the event of the termination of association of Participant
during the Condition Period by reason of death, disability, or termination of
association, the Committee may, at its discretion, remove Share Conditions on
Conditional Shares.
Conditional Shares to which the Share Conditions have not so
lapsed will be forfeited and returned to the Corporation as provided in
Paragraph 6.2(a).
6.5 Lapse of Conditions at Discretion of the Committee
The Committee may shorten the Condition Period or remove any
or all Share Conditions if, in the exercise of its absolute discretion, it
determines that such action is in the best interests of the Corporation and
equitable to the Participant.
6.6 Listing and Registration of Shares
Magicinc.com may, in its reasonable discretion, postpone the
issuance and/or delivery of any shares of Common Stock awarded or sold pursuant
to this Plan until completion of stock exchange listing, or registration, or
other qualification of such shares under any law, rule or regulation.
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6.7 Designation of Beneficiary
A Participant may, with the consent of the Committee designate
a person or persons to receive, in the event of death, any shares of Common
Stock to which such Participant would then be entitled pursuant to this Plan.
Such designation will be made upon forms supplied by and delivered to the
Committee and may be revoked in writing by the Participant. If a Participant
fails effectively to designate a beneficiary, then such Participant's estate
will be deemed to be the beneficiary.
7. Capital Adjustments
The number and consideration of Common Stock covered by each award
granted or each sale under this Plan and the total number of shares that may be
granted or sold under the Plan shall be proportionally adjusted to reflect,
subject to any required action by stockholders, any stock dividend or split,
recapitalization, merger, consolidation, spin-off, reorganization, combination
or exchange of shares or other similar corporate change.
8. Change of Control
Notwithstanding the provisions of Section 7, in the event of a change
of control, all Share Conditions on all Conditional Shares will lapse. For
purposes of this plan, a "Change of Control" of Magicinc.com shall be deemed to
have occurred at such time as (a) any "person" (as that term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934), becomes the "beneficial
owner" (as defined in Rule 13d-3 under the foregoing act), directly or
indirectly, of securities of Magicinc.com representing 30% or more of the
combined voting power of Magicinc.com's outstanding securities ordinarily having
the right to vote at the election of directors; or (b)individuals who constitute
the Magicinc.com Board on the date hereof (the "Incumbent Board") cease for any
reasons to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
at least a majority of the directors comprising the Incumbent Board, or whose
nomination or election was approved by a majority of the Magicinc.com Board
serving under an Incumbent Board, shall be, for purposes of this clause (b),
considered as if he or she were a member of the Incumbent Board; or (c) merger,
consolidation or sale of all or substantially all the assets of Magicinc.com
occurs, unless such merger or consolidation shall have been affirmatively
recommended to Magicinc.com's stockholders by a majority of the Incumbent Board;
or (d) a proxy statement soliciting proxies from stockholders of Magicinc.com,
by someone other than the current management of Magicinc.com seeking stockholder
approval of a plan of reorganization, merger or consolidation of Magicinc.com
with one or more corporations as a result of which the outstanding shares of
Magicinc.com's securities are actually exchanged for or converted into cash or
property or securities not issued by Magicinc.com unless the reorganization,
merger or consolidation shall have been affirmatively recommended to
Magicinc.com's stockholders by a majority of the Incumbent Board.
9. Approvals
The issuance of shares pursuant to this Plan is expressly conditioned
upon obtaining all necessary approvals from all regulatory agencies from which
approval is required.
10. Effective Date of Plan
The effective date of the Plan is November 17, 2000.
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11. Term and Amendment of Plan
This Plan shall expire on November 17, 2010 (except to Conditional
Shares outstanding on that date). Magicinc.com Board may terminate or amend the
Plan in any respect at any time, except no action of the Magicinc.com Board, the
Committee or Magicinc.com's stockholders, however, may, without the consent of a
Participant, alter or impair such Participant's rights under any conditional
Shares previously granted.
12. No Right of Association
Neither the action of Magicinc.com in establishing this Plan, nor any
action taken by any Magicinc.com Board or any Subsidiary or the Committee, nor
any provision of the Plan itself, shall be construed to limit in any way the
right of Magicinc.com to terminate a Participant's association with the
Corporation at any time.
13. Withholding Taxes
Magicinc.com or any Subsidiary, as applicable, shall have the right to
deduct withholding taxes from any payments made pursuant to the Plan or to make
such other provisions as it deems necessary or appropriate to satisfy its
obligations to withhold federal, state or local income or other taxes incurred
by reason of payment or the issuance of Common Stock under the Plan. Whenever
under the Plan, Common Stock is to be delivered upon vesting of Conditional
Shares, the Committee shall be entitled to require as a condition of delivery
that the Participant remit or provide for the withholding of an amount
sufficient to satisfy all federal, state and other government withholding tax
requirements related thereto.
14. Plan not a Trust
Nothing contained in the Plan and no action taken pursuant to the Plan
shall create or be construed to create a trust of any kind, or a fiduciary
relationship, between the Corporation and any Participant, the executor,
administrator or other personal representative, or designated beneficiary of
such Participant, or any other persons. If and to the extent that any
Participant or such Participant's executor, administrator or other personal
representative, as the case may be, acquires a right to receive any payment from
the Corporation pursuant to the Plan, such right shall be no greater than the
right of an unsecured general creditor of the Corporation.
15. Notices
Each Participant shall be responsible for furnishing the Committee with
the current and proper address for the mailing of notices and delivery of Common
Stock pursuant to the Plan. Any notices required or permitted to be given shall
be deemed given if addressed to the person to be notified at such address given
to the Committee by such person and mailed by regular United States mail,
first-class and prepaid. If any item mailed to such address is returned as
undeliverable to the addressee, mailing will be suspended until the Participant
furnishes the proper address. This provision shall not be construed as requiring
the mailing of any notice or notification if such notice is not required under
the terms of the Plan or any applicable law.
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16. Severability of Provisions
If any provisions of this Plan shall be held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions
hereof, and this Plan shall be construed and enforced as if such provisions had
not been included.
17. Payment to Minors, etc.
Any benefit payable to or for the benefit of a minor, an incompetent
person or other person incapable of receipting therefor shall be deemed paid
when paid to such person's guardian or the party providing or reasonably
appearing to provide for the care of such person, and such payment shall fully
discharge the Committee, the Magicinc.com Board, the Corporation and other
parties with respect thereto.
18. Headings and Captions
The headings and captions herein are provided for reference and
convenience only, shall not be considered part of the Plan, and shall not be
employed in the construction of the Plan.
19. Controlling Law
This Plan shall be construed and enforced according to the laws of the
State of Florida to the extent not preempted by federal law, which shall
otherwise control.
20. Enforcement of Rights
In the event the Corporation or a Participant is required to bring any
action to enforce the terms of this Plan, the prevailing party shall be
reimbursed by the non-prevailing party for all costs and fees, including actual
attorney fees, for bringing and pursuing such action.
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