EXHIBIT 4.6
onlinetradinginc.com corp.
1999 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to advance the interests
of onlinetradinginc.com, corp., a Florida corporation (the "Company"), by
providing an additional incentive to attract, retain and motivate highly
qualified and competent persons who are key to the Company, including key
employees, consultants, independent contractors, officers and directors, and
upon whose efforts and judgment the success of the Company and its Subsidiaries
is largely dependent, by authorizing the grant of options to purchase Common
Stock of the Company to persons who are eligible to participate hereunder,
thereby encouraging stock ownership in the Company by such persons, all upon and
subject to the terms and conditions of this Plan.
2. DEFINITIONS. As used herein, the following terms shall have
the meanings indicated:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Cause" shall mean any of the following:
(i) a determination by the Company that there
has been a willful, reckless or grossly negligent failure by the Optionee to
perform his or her duties as an employee of the Company;
(ii) a determination by the Company that there
has been a willful breach by the Optionee of any of the material terms or
provisions of any employment agreement between such Optionee and the Company;
(iii) any conduct by the Optionee that either
results in his or her conviction of a felony under the laws of the United States
of America or any state thereof, or of an equivalent crime under the laws of any
other jurisdiction;
(iv) a determination by the Company that the
Optionee has committed an act or acts involving fraud, embezzlement,
misappropriation, theft, breach of fiduciary duty or material dishonesty against
the Company, its properties or personnel;
(v) any act by the Optionee that the Company
determines to be in willful or wanton disregard of the Company's best interests,
or which results, or is intended to result, directly or indirectly, in improper
gain or personal enrichment of the Optionee at the expense of the Company;
(vi) a determination by the Company that there
has been a willful, reckless or grossly negligent failure by the Optionee to
comply with any rules, regulations, policies or procedures of the Company, or
that the Optionee has engaged in any act, behavior or
<PAGE>
conduct demonstrating a deliberate and material violation or disregard of
standards of behavior that the Company has a right to expect of its employees;
or
(vii) if the Optionee, while employed by the
Company and for two years thereafter, violates a confidentiality and/or
noncompete agreement with the Company, or fails to safeguard, divulges,
communicates, uses to the detriment of the Company or for the benefit of any
person or persons, or misuses in any way, any confidential information;
PROVIDED, HOWEVER, that, if the Optionee has entered into a written employment
agreement with the Company which remains effective and which expressly provides
for a termination of such Optionee's employment for "cause," the term "Cause" as
used herein shall have the meaning as set forth in the Optionee's employment
agreement in lieu of the definition of "Cause" set forth in this Section 2(b).
(c) "Change of Control" shall mean the acquisition by any
person or group (as that term is defined in the Exchange Act, and the rules
promulgated pursuant to that act) in a single transaction or a series of
transactions of thirty percent (30%) or more in voting power of the outstanding
stock of the Company and a change of the composition of the Board of Directors
so that, within two years after the acquisition took place, a majority of the
members of the Board of Directors of the Company, or of any corporation with
which the Company may be consolidated or merged, are persons who were not
directors or officers of the Company or one of its Subsidiaries immediately
prior to the acquisition, or to the first of a series of transactions which
resulted in the acquisition of thirty percent (30%) or more in voting power of
the outstanding stock of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(e) "Committee" shall mean the stock option committee
appointed by the Board or, if not appointed, the Board.
(f) "Common Stock" shall mean the Company's Common Stock,
par value $.01 per share.
(g) "Director" shall mean a member of the Board.
(h) "Employee" shall mean any person, including officers,
directors, consultants and independent contractors employed by the Company or
any parent or Subsidiary of the Company within the meaning of Section 3401(c) or
the regulations promulgated thereunder.
(i) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(j) "Fair Market Value" of a Share on any date of
reference shall be the Closing Price of a share of Common Stock on the business
day immediately preceding such date, unless the Committee in its sole discretion
shall determine otherwise in a fair and uniform manner. For this purpose, the
"Closing Price" of the Common Stock on any business day shall be (i) if the
Common Stock is listed or admitted for trading on any United States national
2
<PAGE>
securities exchange, or if actual transactions are otherwise reported on a
consolidated transaction reporting system, the last reported sale price of the
Common Stock on such exchange or reporting system, as reported in any newspaper
of general circulation, (ii) if the Common Stock is quoted on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"), or any
similar system of automated dissemination of quotations of securities prices in
common use, the mean between the closing high bid and low asked quotations for
such day of the Common Stock on such system, or (iii) if neither clause (i) nor
(ii) is applicable, the mean between the high bid and low asked quotations for
the Common Stock as reported by the National Quotation Bureau, Incorporated if
at least two securities dealers have inserted both bid and asked quotations for
the Common Stock on at least five (5) of the ten (10) preceding days. If the
information set forth in clauses (i) through (iii) above is unavailable or
inapplicable to the Company (e.g., if the Company's Common Stock is not then
publicly traded or quoted), then the "Fair Market Value" of a Share shall be the
fair market value (i.e., the price at which a willing seller would sell a Share
to a willing buyer when neither is acting under compulsion and when both have
reasonable knowledge of all relevant facts) of a Share of the Common Stock on
the business day immediately preceding such date as the Committee in its sole
and absolute discretion shall determine in a fair and uniform manner.
(k) "Incentive Stock Option" shall mean an incentive
stock option as defined in Section 422 of the Code.
(l) "Non-Statutory Stock Option" or "Nonqualified Stock
Option" shall mean an Option which is not an Incentive Stock Option.
(m) "Officer" shall mean the Company's chairman,
president, principal financial officer, principal accounting officer (or, if
there is no such accounting officer, the controller), any vice president of the
Company in charge of a principal business unit, division or function (such as
sales, administration or finance), any other officer who performs a
policy-making function, or any other person who performs similar policy-making
functions for the Company. Officers of Subsidiaries shall be deemed Officers of
the Company if they perform such policy-making functions for the Company. As
used in this paragraph, the phrase "policy-making function" does not include
policy-making functions that are not significant. Unless specified otherwise in
a resolution by the Board, an "executive officer" pursuant to Item 401(b) of
Regulation S-K (17 C.F.R. Section 229.401(b)) shall be only such person
designated as an "Officer" pursuant to the foregoing provisions of this
paragraph.
(n) "Option" (when capitalized) shall mean any stock
option granted under this Plan.
(o) "Optionee" shall mean a person to whom an Option is
granted under this Plan or any person who succeeds to the rights of such person
under this Plan by reason of the death of such person.
(p) "Plan" shall mean this 1999 Stock Option Plan of the
Company, which Plan shall be effective upon approval by the Board, subject to
approval, within 12 months of the date thereof by holders of a majority of the
Company's issued and outstanding Common Stock.
3
<PAGE>
(q) "Share" or "Shares" shall mean a share or shares, as
the case may be, of the Common Stock, as adjusted in accordance with Section 10
of this Plan.
(r) "Subsidiary" shall mean any corporation (other than
the Company) in any unbroken chain of corporations beginning with the Company
if, at the time of the granting of the option, each of the corporations other
than the last corporation-in the unbroken chain owns stock possessing 50 percent
or more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
3. SHARES AND OPTIONS. Subject to adjustment in accordance with
Section 10 hereof, the Company may grant to Optionees from time to time Options
to purchase an aggregate of up to One Million (1,000,000) Shares from Shares
held in the Company's treasury or from authorized and unissued Shares. If any
option granted under this Plan shall terminate, expire, or be canceled,
forfeited or surrendered as to any Shares, the Shares relating to such lapsed
Option shall be available for issuance pursuant to new Options subsequently
granted under this Plan. Upon the grant of any Option hereunder, the authorized
and unissued Shares to which such Option relates shall be reserved for issuance
to permit exercise under this Plan. Subject to the provisions of Section 14
hereof, an Option granted hereunder shall be either an Incentive Stock Option or
a Non-Statutory Stock Option as determined by the Committee at the time of grant
of such Option and shall clearly state whether it is an Incentive Stock Option
or Non-Statutory Stock Option. All Incentive Stock Options shall be granted
within 10 years from the effective date of this Plan.
4. LIMITATIONS. Options otherwise qualifying as Incentive Stock
Options hereunder will not be treated as Incentive Stock Options to the extent
that the aggregate Fair Market Value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the requirements
of Code Section 422(b) are exercisable for the first time by any individual
during any calendar year (under all stock option or similar plans of the Company
and any Subsidiary), exceeds $100,000.
5. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an option agreement
that may contain any term deemed necessary or desirable by the Committee,
provided such terms are not inconsistent with this Plan or any applicable law.
Optionees shall be those persons selected by the Committee from the class of all
regular Employees of the Company or its Subsidiaries, including Employee
Directors and Officers who are regular or former regular employees of the
Company, Directors who are not regular employees of the Company, as well as
consultants to the Company. Any person who files with the Committee, in a form
satisfactory to the Committee, a written waiver of eligibility to receive any
Option under this Plan shall not be eligible to receive any Option under this
Plan for the duration of such waiver.
(b) In granting Options, the Committee shall take into
consideration the contribution the person has made, or is expected to make, to
the success of the Company or its Subsidiaries and such other factors as the
Committee shall determine. The Committee shall also have the authority to
consult with and receive recommendations from Officers and other personnel of
the Company and its Subsidiaries with regard to these matters. The Committee may
4
<PAGE>
from time to time in granting Options under this Plan prescribe such terms and
conditions concerning such Options as it deems appropriate, including, without
limitation, (i) the exercise price or prices of the Option or any installments
thereof, (ii) prescribing the date or dates on which the option becomes and/or
remains exercisable, (iii) providing that the Option vests or becomes
exercisable in installments over a period of time, and/or upon the attainment of
certain stated standards, specifications or goals, (iv) relating an Option to
the continued employment of the Optionee for a specified period of time, or (v)
conditions or termination events with respect to the exercisability of any
Option, provided that such terms and conditions are not more favorable to an
Optionee than those expressly permitted herein; provided, however, that to the
extent not cancelled pursuant to Section 9(b) hereof, upon a Change in Control,
any Options that have not yet vested, may, in the sole discretion of the
Committee, vest upon such Change in Control.
(c) Incentive Stock Options granted to employees pursuant
to this Plan will vest in equal installments over a five year period commencing
on the first anniversary on the date of grant.
(d) The Options granted to employees under this Plan
shall be in addition to regular salaries, pension, life insurance or other
benefits related to their employment with the Company or its Subsidiaries.
Neither this Plan nor any Option granted under this Plan shall confer upon any
person any right to employment or continuance of employment (or related salary
and benefits) by the Company or its Subsidiaries.
6. EXERCISE PRICE. The exercise price per Share of any Option
shall be any price determined by the Committee but shall not be less than the
par value per Share; provided, however, that in no event shall the exercise
price per Share of any Incentive Stock Option be less than the Fair Market Value
of the Shares underlying such Option on the date such Option is granted and, in
the case of an Incentive Stock Option granted to a 10% shareholder, the per
Share exercise price will not be less than 110% of the Fair Market Value in
accordance with Section 14 of this Plan. Re-granted Options, or options which
are canceled and then re-granted covering such canceled Options, will, for
purposes of this Section 6, be deemed to have been granted on the date of the
re-granting.
7. EXERCISE OF OPTIONS.
(a) An option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, (iii) the Optionee has
agreed to be bound by the terms, provisions and conditions of any applicable
shareholders, agreement, and (iv) arrangements that are satisfactory to the
Committee in its sole discretion have been made for the Optionee's payment to
the Company of the amount that is necessary for the Company or the Subsidiary
employing the Optionee to withhold in accordance with applicable Federal or
state tax withholding requirements. Unless further limited by the Committee in
any Option, the exercise price of any Shares purchased pursuant to the exercise
of such Option shall be paid in cash, by certified or official bank check, by
money order, with Shares or by a combination of the above; provided, however,
that the Committee in its sole discretion may accept a personal check in full or
partial payment of any Shares. If the exercise
5
<PAGE>
price is paid in whole or in part with Shares, the value of the Shares
surrendered shall be their Fair Market Value on the date the Option is
exercised. The Company in its sole discretion may, on an individual basis or
pursuant to a general program established by the Committee in connection with
this Plan, lend money to an Optionee to exercise all or a portion of the Option
granted hereunder. If the exercise price is paid in whole or part with the
Optionee's promissory note, such not; shall provide for full recourse to the
maker, (ii) be collateralized by the pledge of the Shares that the Optionee
purchases upon exercise of such Option, (iii) bear interest at a rate no less
than the rate of interest payable by the Company to its principal lender, and
(iv) contain such other terms as the Committee in its sole discretion shall
require. No Optionee shall be deemed to be a holder of any shares subject to an
option unless and until a stock certificate or certificates for such shares are
issued to the person(s) under the terms of this Plan. No adjustments shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 10 hereof.
(b) No Optionee shall be deemed to be a holder of any
Shares subject to an Option unless and until a stock certificate or certificates
for such Shares are issued to such person(s) under the terms of this Plan. No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such stock certificate is issued, except as
expressly provided in Section 10 hereof.
8. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable
in such amounts, at such intervals, upon such events or occurrences and upon
such other terms and conditions as shall be provided in an individual Option
agreement evidencing such Option, except as otherwise provided in Section 5(b)
or this Section 8.
(a) The expiration date(s) of an Option shall be
determined by the Committee at the time of grant, but in no event shall an
Option be exercisable after the expiration of ten years from the date of grant
of the Option.
(b) Unless otherwise expressly provided in any Option as
approved by the Committee, notwithstanding the exercise schedule set forth in
any Option, each outstanding option, may, in the sole discretion of the
Committee, become fully exercisable upon the date of the occurrence of any
Change of Control, but, unless otherwise expressly provided in any Option, no
earlier than six months after the date of grant, and if and only if Optionee is
in the employ of the Company on such date.
(c) The Committee may in its sole discretion accelerate
the date on which any Option may be exercised and may accelerate the vesting of
any Shares subject to any Option or previously acquired by the exercise of any
Option.
9. TERMINATION OF OPTION PERIOD.
(a) Unless otherwise expressly provided in any Option,
the unexercised portion of any Option shall automatically and without notice
immediately terminate and become forfeited, null and void at the time of the
earliest to occur of the following:
6
<PAGE>
(i) three months after the date on which the
Optionee's employment is terminated for any reason other than by reason of (A)
Cause, (B) the termination of the Optionee's employment with the Company by such
Optionee following less than 60 days' prior written notice to the Company of
such termination (an "Improper Termination"), (C) a mental or physical
disability (within the meaning of Section 22(e) of the Code) as determined by a
medical doctor satisfactory to the Committee or (D) death;
(ii) immediately upon (A) the termination by the
Company of the Optionee's employment for Cause or (B) an Improper Termination;
(iii) one year after the date on which the
Optionee's employment is terminated by reason of a mental or physical disability
(within the meaning of Code Section 22(e)) as determined by a medical doctor
satisfactory to the Committee or the later of three months after the date on
which the Optionee shall die if such death shall occur during the one-year
period specified herein; or
(iv) one year after the date of termination of
the Optionee's employment by reason of death of the employee;
(b) The Committee in its sole discretion may, by giving
written notice ("Cancellation Notice"), cancel effective upon the date of the
consummation of any corporate transaction described in Subsection 10(d) hereof,
any Option that remains unexercised on such date. Such Cancellation Notice shall
be given a reasonable period of time prior to the proposed date of such
cancellation and may be given either before or after approval of such corporate
transaction.
(c) Upon Optionee's termination of employment as
described in this Section 9, or otherwise, any Option (or portion thereof) not
previously vested or not yet exercisable pursuant to Section 8 of this Plan or
the vesting schedule set forth in such Option shall be immediately canceled.
10. ADJUSTMENT OF SHARES.
(a) If at any time while this Plan is in effect or
unexercised Options are outstanding, there shall be any increase or decrease in
the number of issued and outstanding Shares through the declaration of a stock
dividend or through any recapitalization resulting in a stock split, combination
or exchange of Shares (other than any such exchange or issuance of Shares
through which Shares are issued to effect an acquisition of another business or
entity or the Company's purchase of Shares to exercise a "call" purchase
option), then and in such event:
(i) appropriate adjustment shall be made in the
maximum number of Shares available for grant under this Plan, so that the same
percentage of the Company's issued and outstanding Shares shall continue to be
subject to being so optioned;
(ii) appropriate adjustment shall be made in the
number of Shares and the exercise price per Share thereof then subject to any
outstanding Option, so that the same
7
<PAGE>
percentage of the Company's issued and outstanding Shares shall remain subject
to purchase at the same aggregate exercise price; and
(iii) such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive.
(b) Subject to the specific terms of any Option, the
Committee may change the terms of Options outstanding under this Plan, with
respect to the option price or the number of Shares subject to the Options, or
both, when, in the Committee's sole discretion, such adjustments become
appropriate by reason of a corporate transaction described in Subsection 10(d)
hereof, or otherwise.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into or exchangeable for shares of its capital stock of
any class, either in connection with a direct or unwritten sale or upon the
exercise of rights or warrants to subscribe therefor or purchase such Shares, or
upon conversion of shares of obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to the number of or exercise price of Shares
then subject to outstanding Options granted under this Plan.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under this Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, reclassifications, recapitalizations, reorganizations or
other changes in the Company's capital structure or its business; (ii) any
merger or consolidation of the Company or to which the Company is a party; (iii)
any issuance by the Company of debt securities, or preferred or preference stock
that would rank senior to or above the Shares subject to outstanding Options;
(iv) any purchase or issuance by the Company of Shares or other classes of
common stock or common equity securities; (v) the dissolution or liquidation of
the Company; (vi) any sale, transfer, encumbrance, pledge or assignment of all
or any part of the assets or business of the Company; or (vii) any other
corporate act or proceeding, whether of a similar character or otherwise.
(e) The Optionee shall receive written notice within a
reasonable time prior to the consummation of such action advising the Optionee
of any of the foregoing. The Committee may, in the exercise of its sole
discretion, in such instances declare that any Option shall terminate as of a
date fixed by the Board and give each Optionee the right to exercise his or her
Option.
11. TRANSFERABILITY OF OPTIONS. No Option granted hereunder shall
be sold, pledged, assigned, hypothecated, disposed or otherwise transferred by
the Optionee other than by will or the laws of descent and distribution, unless
otherwise authorized by the Board, and no Option shall be exercisable during the
Optionee's lifetime by any person other than the Optionee.
12. ISSUANCE OF SHARES. As a condition of any sale or issuance of
Shares upon exercise of any Option, the Committee may require such agreements or
undertakings, if any, as
8
<PAGE>
the committee may deem necessary or advisable to assure compliance with any such
law or regulation including, but not limited to, the following:
(i) a representation and warranty by the
Optionee to the Company, at the time any option is exercised, that he is
acquiring the Shares to be issued to him for investment and not with a view to,
or for sale in connection with, the distribution of any such Shares; and
(ii) (A) an agreement and undertaking to comply
with all of the terms, restrictions and provisions set forth in any then
applicable shareholders' agreement relating to the Shares, including, without
limitation, any restrictions on transferability, any rights of first refusal and
any option of the Company to "call" or purchase such Shares under then
applicable agreements, and
(B) any restrictive legend or legends, to
be embossed or imprinted on Share certificates, that are, in the discretion of
the Committee, necessary or appropriate to comply with the provisions of any
securities law or other restriction applicable to the issuance of the Shares.
13. ADMINISTRATION OF THIS PLAN.
(a) This Plan shall be administered by the Committee,
which shall consist of not less than two Directors. The Committee shall have all
of the powers of the Board with respect to this Plan. Any member of the
Committee may be removed at any time, with or without cause, by resolution of
the Board and any vacancy occurring in the membership of the Committee may be
filled by appointment by the Board.
(b) Subject to the provisions of this Plan, the Committee
shall have the authority, in its sole discretion, to: (i) grant Options, (ii)
determine the exercise price per Share at which Options may be exercised, (iii)
determine the Optionees to whom, and time or times at which, Options shall be
granted, (iv) determine the number of Shares to be represented by each Option,
(v) determine the terms, conditions and provisions of each Option granted (which
need not be identical) and, with the consent of the holder thereof, modify or
amend each Option, (vi) defer (with the consent of the Optionee) or accelerate
the exercise date of any Option, and (vii) make all other determinations deemed
necessary or advisable for the administration of this Plan, including
re-pricing, canceling and re-granting Options.
(c) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of this Plan. The Committee's
determinations and its interpretation and construction of any provision of this
Plan shall be final, conclusive and binding upon all Optionees and any holders
of any Options granted under this Plan.
(d) Any and all decisions or determinations of the
Committee shall be made either (i) by a majority vote of the members of the
Committee at a meeting of the Committee or (ii) without a meeting by the
unanimous written approval of the members of the Committee.
9
<PAGE>
(e) No member of the Committee, or any Officer or
Director of the Company or its Subsidiaries, shall be personally liable for any
act or omission made in good faith in connection with this Plan.
14. INCENTIVE OPTIONS FOR 10% SHAREHOLDERS. Notwithstanding any
other provisions of this Plan to the contrary, an Incentive Stock Option shall
not be granted to any person owning directly or indirectly (through attribution
under Section 424(d) of the Code) at the date of grant, stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company (or of its Subsidiary) at the date of grant unless the exercise price of
such Option is at least 110% of the Fair Market Value of the Shares subject to
such Option on the date the Option is granted, and such Option by its terms is
not exercisable after the expiration of five (5) years from the date such Opt-on
is granted.
15. INTERPRETATION.
(a) This Plan shall be administered and interpreted so
that all Incentive Stock Options granted under this Plan will qualify as
Incentive Stock Options under Section 422 of the Code. If any provision of this
Plan should be held invalid for the granting of Incentive Stock Options or
illegal for any reason, such determination shall not affect :he remaining
provisions hereof, and this Plan shall be construed and enforced as if such
provision had never been included in this Plan.
(b) This Plan shall be governed by the laws of the State
of Florida.
(c) Headings contained in this Plan are for convenience
only and shall in no manner be construed as part of this Plan or affect the
meaning or interpretation of any part of this Plan.
(d) Any reference to the masculine, feminine, or neuter
gender shall be a reference to such other gender as is appropriate.
(e) Time shall be of the essence with respect to all time
periods specified for the giving of notices to the company hereunder, as well as
all time periods for the expiration and termination of Options in accordance
with Section 9 hereof (or as otherwise set forth in an option agreement).
16. AMENDMENT AND DISCONTINUATION OF THIS PLAN. Either the Board
or the Committee may from time to time amend this Plan or any Option without the
consent or approval of the shareholders of the Company; provided, however, that,
except to the extent provided in Section 9, no amendment or suspension of this
Plan or any Option issued hereunder shall substantially impair any Option
previously granted to any Optionee without the consent of such Optionee.
17. TERMINATION DATE. This Plan shall terminate ten years after
the date of adoption by the Board of Directors.
10
