SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
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
[X] Definitive Proxy Statement Commission Only (as permitted by
[ ] Definitive Additional Materials Rule 14a-6(e)(2))
[ ] Soliciting Material pursuant to
Rule 14a-11(c) or Rule 14a-12
QUOTEMEDIA.COM, INC.
(Name of Registrant as Specified In Its Charter)
-------------------------------------------------
(Name of Person(s) Filing Proxy Statement)
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 by written 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:
---------------------------------------------------------------------------
QUOTEMEDIA.COM, INC.
- --------------------------------------------------------------------------------
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
FEBRUARY 14, 2003
- --------------------------------------------------------------------------------
The Annual Meeting of Stockholders of Quotemedia.com, Inc., a Nevada
corporation, will be held at 10:00 a.m., on Friday, February 14, 2003 at 2375
East Camelback Road, Suite 700, Phoenix, Arizona 85016 for the following
purposes:
1. To elect three directors to serve until their successors are elected and
qualified.
2. To approve an amendment to our Restated Articles of Incorporation to
increase the number of authorized shares of common stock from 50,000,000 to
100,000,000 shares.
3. To approve an amendment to our Restated Articles of Incorporation to
change the name of our company to Quotemedia, Inc.
4. To approve our 2003 Equity Incentive Compensation Plan.
5. To transact such other business as may properly come before the meeting
or any adjournment thereof.
The foregoing items of business are more fully described in the proxy
statement accompanying this notice.
Only stockholders of record at the close of business on January 3, 2003 are
entitled to notice of and to vote at the meeting.
All stockholders are cordially invited to attend the meeting in person. To
assure your representation at the meeting, however, you are urged to mark, sign,
date, and return the enclosed proxy as promptly as possible in the
postage-prepaid envelope enclosed for that purpose. Any stockholder attending
the meeting may vote in person even if he or she previously has returned a
proxy.
Sincerely,
Scottsdale, Arizona Keith J. Randall
January 6, 2003 Secretary
QUOTEMEDIA.COM, INC.
14500 N. NORTHSIGHT BLVD., SUITE 329
SCOTTSDALE, ARIZONA 85260
- --------------------------------------------------------------------------------
PROXY STATEMENT
- --------------------------------------------------------------------------------
VOTING AND OTHER MATTERS
GENERAL
The enclosed proxy is solicited on behalf of Quotemedia.com, Inc., a Nevada
corporation, by our Board of Directors for use at our Annual Meeting of
Stockholders to be held at 10:00 a.m. on Friday, February 14, 2003 or at any
adjournment thereof, for the purposes set forth in this proxy statement and in
the accompanying notice. The meeting will be held at 2375 East Camelback Road,
Suite 700, Phoenix, Arizona 85016.
These proxy solicitation materials were first mailed on or about January
10, 2003, to all stockholders entitled to vote at the meeting.
VOTING SECURITIES AND VOTING RIGHTS
Stockholders of record at the close of business on January 3, 2003 are
entitled to notice of and to vote at the meeting. On the record date, there were
issued and outstanding 48,055,604 shares of our common stock. Each holder of
common stock voting at the meeting, either in person or by proxy, may cast one
vote per share of common stock held on all matters to be voted on at the
meeting.
The presence, in person or by proxy, of the holders of a majority of the
total number of shares entitled to vote constitutes a quorum for the transaction
of business at the meeting. Assuming that a quorum is present, a plurality of
the votes properly cast in person or by proxy will be required to elect
directors and the affirmative vote of a majority of the shares present in person
or by proxy will be required for the approval of the 2003 Equity Incentive
Compensation Plan. The affirmative vote of a majority of the outstanding shares
of our common stock is required to approve the amendments to our Restated
Articles of Incorporation to (a) increase the number of authorized shares of our
common stock from 50,000,000 to 100,000,000 shares, and (b) change the name of
our company to Quotemedia, Inc.
Votes cast by proxy or in person at the meeting will be tabulated by the
election inspectors appointed for the meeting and will determine whether a
quorum is present. The election inspectors will treat abstentions as shares that
are present and entitled to vote for purposes of determining the presence of a
quorum, but as unvoted for purposes of determining the approval of any matter
submitted to the stockholders for a vote. If a broker indicates on the proxy
that it does not have discretionary authority as to certain shares to vote on a
particular matter, those shares will not be considered as present and entitled
to vote with respect to that matter.
VOTING OF PROXIES
When a proxy is properly executed and returned, the shares it represents
will be voted at the meeting as directed. If no specification is indicated, the
shares will be voted (i) "for" the election of nominees for director set forth
in this proxy statement, (ii) "for" approval of the amendment to our Restated
Articles of Incorporation to increase the number of authorized shares of common
stock, (iii) "for" approval of the amendment to our Restated Articles of
Incorporation to change the name of our company to Quotemedia, Inc., and (iv)
"for" approval of the 2003 Equity Incentive Compensation Plan.
REVOCABILITY OF PROXIES
Any person giving a proxy may revoke the proxy at any time before its use
by delivering to us written notice of revocation, by delivering to us a duly
executed proxy bearing a later date, or by attending the meeting and voting in
person.
SOLICITATION
We will pay for the cost of this solicitation. In addition, we may
reimburse brokerage firms and other persons representing beneficial owners of
shares for expenses incurred in forwarding solicitation materials to such
beneficial owners. Proxies also may be solicited by certain of our directors and
officers, personally or by telephone or email, without additional compensation.
ANNUAL REPORT AND OTHER MATTERS
Our Form 10-KSB for the fiscal year ended December 31, 2001 and Form 10-QSB
for the nine months ended September 30, 2002, which were mailed to stockholders
with or preceding this proxy statement, contain financial and other information
about our company, but is not incorporated into this proxy statement and is not
to be considered a part of these proxy soliciting materials or subject to
Regulations 14A or 14C or to the liabilities of Section 18 of the Securities
Exchange Act of 1934, as amended. The information contained in the "Report of
the Audit Committee" below shall not be deemed "filed" with the Securities and
Exchange Commission or subject to Regulations 14A or 14C or to the liabilities
of Section 18 of the Exchange Act.
WE WILL PROVIDE UPON WRITTEN REQUEST, WITHOUT CHARGE TO EACH STOCKHOLDER OF
RECORD AS OF THE RECORD DATE, A COPY OF OUR ANNUAL REPORT ON FORM 10-KSB FOR THE
FISCAL YEAR ENDED DECEMBER 31, 2001 AND OUR QUARTERLY REPORT ON FORM 10-QSB FOR
THE NINE MONTHS ENDED SEPTEMBER 30, 2002, AS FILED WITH THE SEC. ANY EXHIBITS
LISTED IN THE REPORTS ALSO WILL BE FURNISHED UPON REQUEST AT THE ACTUAL EXPENSE
INCURRED BY US IN FURNISHING SUCH EXHIBITS. ANY SUCH REQUESTS SHOULD BE DIRECTED
TO OUR SECRETARY AT OUR EXECUTIVE OFFICES SET FORTH IN THIS PROXY STATEMENT.
ELECTION OF DIRECTORS
NOMINEES
Our bylaws provide that the number of directors shall be fixed from time to
time by resolution of the Board of Directors. All directors are elected at each
annual meeting of our stockholders. Directors hold office for a term of one year
or until their successors have been elected and qualified.
A board of three directors is to be elected at the meeting. Unless
otherwise instructed, the proxy holders will vote the proxies received by them
for each of the nominees named below. All of the nominees currently are
directors of our company. In the event that any such nominee is unable or
declines to serve as a director at the time of the meeting, the proxies will be
voted for any nominee designated by the current Board of Directors to fill the
vacancy. It is not expected that any nominee will be unable or will decline to
serve as a director.
The following table sets forth certain information regarding our directors
and nominees for directors.
NAME AGE POSITION
---- --- --------
Robert J. Thompson........ 60 Chairman of the Board
David M. Shworan.......... 35 President, Chief Executive Officer, and
Director
R. Keith Guelpa........... 56 Chief Operating Officer and Director
2
ROBERT J. THOMPSON has served as our Chairman of the Board since February
2000. Since May 1996, Mr. Thompson has served as the President of BIMSI
Marketing Services, Inc., Vancouver, Canada, a privately held company that
manages the worldwide marketing activities for Birkman International, Inc.,
Houston, Texas, which is one of the world's leading companies providing employee
behavior assessment reports utilized by Fortune 500 companies. From October 1994
until May 1996, he served as President of The Robert Thompson Partnership,
Certified Management Consultants Inc., a division of which was the predecessor
firm of Bimsi Marketing Services. For over 30 years, Mr. Thompson practiced as a
professional management consultant and was a partner of KPMG Management
Consultants, Woods Gordon/Clarkson Gordon, and Ernst & Whinney. He has served as
a director on many boards and until recently served as Chairman of C.M. Oliver
Inc., a Canadian-based investment dealer.
DAVID M. SHWORAN has served as our President, Chief Executive Officer, and
a director since November 2002. Mr. Shworan is a veteran of online marketing and
Internet business. Mr. Shworan is the co-founder of Bravenet Web Services, Inc.,
a webmaster tools and services site for web developers, and has served as the
Chief Executive Officer of Bravenet since September 1997. Mr. Shworan is the
founder of several Internet companies, and has been a consultant to Internet
companies for the past three years.
R. KEITH GUELPA has served as our Chief Operating Officer since November
2002 and as a director since July 1999. Mr. Guelpa served as our President and
Chief Executive Officer, from July 1999 until November 2002. From March 1999
until June 1999, Mr. Guelpa served as President of R.K. Guelpa & Associates, a
private consulting company. From January 1998 until February 1999, Mr. Guelpa
was Chairman and Chief Executive Officer of Mailbank.com, Inc., Vancouver,
Canada, a privately held Canadian Internet based corporation which owned the
largest registration of top level domain names in the world. From November 1995
until December 1997, Mr. Guelpa served as President/CDO of C.M. Oliver Inc., a
publicly held Canadian corporation offering brokerage/financial planning and
investment banking services. Mr. Guelpa received a Bachelor of Commerce degree
from the University of British Columbia in 1970.
MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
Our Board of Directors held seven meetings during the fiscal year ended
December 31, 2002. Each of our directors attended at least 75% or more of the
aggregate of (i) the total number of meetings of the Board of Directors held
during fiscal 2002, and (ii) the total number of meetings held by all committees
of the Board of Directors on which such person served during fiscal 2002.
Our bylaws authorize the Board of Directors to appoint among its members
one or more committees consisting of one or more directors. Our Audit Committee
reviews our annual financial statements, any significant accounting issues, and
the scope of the audit with our independent auditors and discusses with the
auditors any other audit related matters that may arise during the year. During
fiscal 2002, our Audit Committee consisted of Mr. Thompson and Ian Lambert, both
non-employee directors of our company, and Mr. Guelpa. The Compensation
Committee, which during fiscal 2002 consisted of Messrs. Thompson and Lambert,
reviews and acts on matters relating to compensation levels and benefit plans
for our key executives. Mr. Lambert resigned as a director of our company
effective November 21, 2002.
DIRECTOR COMPENSATION AND OTHER INFORMATION
Directors do not receive cash compensation for service on our Board. All
directors receive from us a grant of options to purchase 200,000 shares of
common stock upon joining our Board of Directors, which are vested on the date
of grant. From time to time, we grant to our directors options to purchase
additional shares of common stock.
3
EXECUTIVE COMPENSATION
SUMMARY OF CASH AND OTHER COMPENSATION
The following table sets forth certain information concerning the
compensation for the fiscal years ended December 31, 2000, 2001, and 2002 earned
by our Chief Executive Officer and one other officer who served as our Chief
Executive Officer during fiscal 2002. None of our other executive officers cash
salary and bonus exceeded $100,000 during fiscal 2002.
SUMMARY COMPENSATION TABLE
LONG TERM
COMPENSATION
AWARDS
SECURITIES
UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY($)(1) OPTIONS(#) COMPENSATION ($)
- --------------------------- ---- ------------ ---------- ----------------
David M. Shworan.................... 2002 $ --(3) 20,000,000(3) $ --
Chief Executive Officer (2)
R. Keith Guelpa..................... 2002 $ 36,458(5) 871,875(5) $ 30,000(6)
Chief Operating Officer, 2001 $ 125,000 -- $ 50,000(6)
President, and Director (4) 2000 $ 175,000 350,000 $ --
- ----------
(1) The executive officers listed also received certain perquisites, the value
of which did not exceed 10% of his salary during any year presented.
(2) Mr. Shworan was named our Chief Executive Officer effective November 13,
2002.
(3) Pursuant to his employment agreement, we will not pay or accrue salary for
Mr. Shworan until determined by us and him at a later date. In connection
with his employment, we granted to Mr. Shworan as a signing bonus five-year
warrants to purchase 4,000,000 shares of common stock, which were vested as
of the date of grant, and warrants to purchase an additional 16,000,000
shares of common stock, which vest pursuant to our company achieving
various monthly net revenue targets and common stock price targets.
(4) Mr. Guelpa served as our Chief Executive Officer from July 1999 to November
2002. Effective November 13, 2002, Mr. Guelpa was named our Chief Operating
Officer.
(5) During 2001, $73,983 of Mr. Guelpa's salary was accrued but remained unpaid
at December 31, 2001. During 2002, Mr. Guelpa forgave $23,983 of the salary
payable. The remaining $50,000 was paid to Mr. Guelpa and loaned back to
us. During 2002, Mr. Guelpa also agreed to receive a reduced salary of
$36,458 in exchange for receiving warrants to purchase 871,875 shares of
common stock at an average exercise price of $0.09. See "Executive
Compensation - Option Grants."
(6) In May 2000, we loaned Mr. Guelpa $80,000 to provide relocation assistance.
During 2001, our Board of Directors approved forgiving $50,000 of the loan.
During 2002, our Board of Directors approved forgiving the remaining
$30,000 of loan.
4
OPTION GRANTS
The following table provides information on stock options granted to the
officers listed during the fiscal year ended December 31, 2002.
OPTION GRANTS IN LAST FISCAL YEAR
INDIVIDUAL GRANTS
-----------------------------
NUMBER OF
SECURITIES % OF TOTAL
UNDERLYING OPTIONS EXERCISE
OPTIONS GRANTED IN PRICE EXPIRATION
NAME GRANTED (#) FISCAL YEAR ($/SH)(1) DATE
- ---- ----------- ----------- --------- ----
David M. Shworan....... 4,000,000(2) 18.6% $0.05 11/13/07
16,000,000(3) 74.6% $0.05 11/13/07
R. Keith Guelpa........ 367,875(4) 1.7% $0.05 10/31/07
324,625(4) 1.5% $0.09 09/04/07
179,375(4) 1.0% $0.15 05/24/07
- ----------
(1) The exercise prices of all options and warrants granted were equal to the
fair market value of our common stock on the date of grant.
(2) The warrants were vested immediately upon grant.
(3) The warrants vest pursuant to our company achieving various monthly net
revenue targets and common stock price targets. See "Executive Compensation
-- Employment Agreements."
(4) In exchange for Mr. Guelpa's agreement to reduce his salary, we granted to
him warrants to purchase shares of common stock. See "Certain Relationships
and Related Transactions."
OPTION VALUES
The following table provides information respecting the options held by the
officers listed as of December 31, 2002. The officers listed did not exercise
options during fiscal 2002.
OPTIONS HELD AND VALUES AS OF DECEMBER 31, 2002
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE MONEY OPTIONS
OPTIONS AT FISCAL YEAR-END(#) AT FISCAL YEAR-END($)(1)
--------------------------------- --------------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---- ----------- ------------- ----------- -------------
David M. Shworan........ 4,000,000 16,000,000 $ 40,000 $ 160,000
R. Keith Guelpa......... 1,221,875 -- $ 3,679 $ --
- ----------
(1) Calculated based upon the closing price of our common stock as reported on
the OTC Bulletin Board on December 31, 2002 of $0.06 per share. The
exercise prices of certain of the options held by our executive officers on
December 31, 2002 were greater than $0.06 per share.
5
EMPLOYMENT AGREEMENTS
On November 13, 2002, we entered into a two-year employment agreement with
David M. Shworan to serve as our Chief Executive Officer. At that time, and as a
condition of his employment, Mr. Shworan agreed to arrange for an affiliated
company to purchase 800,000 shares of our common stock at a price of $0.05 per
share each six-month period commencing on November 12, 2002, up to an aggregate
of 4,800,000 shares ($240,000). We will not be obligated to pay or accrue cash
compensation to Mr. Shworan until determined by the parties at a future date. In
connection with his employment, we granted to Mr. Shworan as a signing bonus
five-year warrants to purchase 4,000,000 shares of our common stock at an
exercise price of $0.05 per share. One-twelfth of the warrants will vest each
month during the first year of the agreement. In addition, we granted to Mr.
Shworan warrants to purchase an additional 16,000,000 shares of common stock at
an exercise price of $0.05 per share, which vest pursuant to our company
achieving various monthly net revenue targets and common stock price targets, as
follows:
Monthly Net Revenue Targets (1) Warrants Vested
------------------------------- ---------------
$ 40,000 3,000,000
$ 60,000 1,000,000
$ 250,000 1,000,000
$ 750,000 1,000,000
Share Price Targets (2) Warrants Vested
----------------------- ---------------
$ 0.50 1,000,000
$ 0.75 1,000,000
$ 1.00 3,000,000
$ 1.50 2,000,000
$ 2.00 3,000,000
- ----------
(1) The respective warrants will vest at such time as our company records an
average of the indicated target level during a three-month period. The
warrants will not vest until a three-month average of a target level is
achieved.
(2) The respective warrants will vest at such time as the market value of our
common stock as quoted on the OTC Bulletin Board achieves a one-month
average of the indicated target level.
We have a five-year employment agreement with Mr. Guelpa, our Chief
Operating Officer, terminating in July 2004. The employment agreement was
amended on November 13, 2002 and provides for a base salary of $60,000 per year.
The agreement provides for incentive based compensation based upon our company
achieving various profitability levels. In the event we record net income of
$10.0 million, we will grant to Mr. Guelpa options to purchase 500,000 shares of
our common stock. If we terminate Mr. Guelpa's employment without cause, we have
agreed to pay Mr. Guelpa a lump sum payment of two years' salary and all
perquisites. If we terminate Mr. Guelpa following a merger, takeover, or any
other event that changes more than 25% ownership of our company, we have agreed
to pay Mr. Guelpa a lump sum payment of three years' salary and all perquisites.
Such lump sum payment will equal one years' salary and perquisities in the event
Mr. Guelpa terminates his employment following such transaction.
We offer our employees, including officers, medical benefits. Our executive
officers and other key personnel are eligible to receive discretionary bonuses,
and are eligible to receive stock options under our stock option plans.
6
1999 STOCK OPTION PLAN
During March 1999, we adopted, and our stockholders approved, the 1999
Stock Option Plan to advance the interests of our company by encouraging and
enabling key employees to acquire a financial interest in our company and link
their interests and efforts to the long-term interests of our stockholders. A
total of 400,000 shares of common stock was initially reserved for issuance
under the plan. In September 1999, this number was increased to 2,500,000 and
further increased to 6,000,000 during 2001. As of December 31, 2002, no shares
of our common stock had been issued upon exercise of options granted under the
plan, and there were outstanding options to acquire 5,015,000 shares of our
common stock under the plan.
The plan is administered by our Board of Directors or a committee appointed
by our Board. Our Board or the committee has the authority to grant options,
determine the purchase price of shares of our common stock covered by each
option, determine the persons who are eligible under the plan, interpret the
plan, determine the terms and provisions of an option agreement, and make all
other determinations deemed necessary for the administration of the plan.
Options may be granted to any director, officer, key employee, or any advisory
board member of our company. Incentive stock options may not be granted to a
director, consultant, or advisory board member that is not an employee of our
company.
The price of any incentive stock options may not be less than 100% of the
fair market value of our common stock on the date of grant. The price of any
incentive stock options granted to a person who owns more than 10% of our common
stock may not be less than 110% of the fair market value of our common stock on
the date of grant. The option price for non-incentive stock options may not be
less than 50% of the fair market value of our common stock on the date of grant.
Options may be granted for terms of up to but not exceeding ten years from the
date of grant, however, in the case of an incentive stock option granted to an
individual who beneficially owns 10% more of the stock of our company, the
exercise period shall not exceed five years from the date of grant. Our Board of
Directors may accelerate the exerciseability of any outstanding options at any
time for any reason.
In the event of any change in the number of shares of our common stock, the
number of shares of common stock covered by outstanding options and the price
per share of such options will be adjusted accordingly to reflect any such
changes. Similar changes will also be made if our company engages in any merger,
consolidation, or reclassification in which is it the surviving entity. In the
event that we are not the surviving entity, each option shall terminate provided
that each holder will have the right to exercise during a ten period ending on
the fifth day prior to such corporate transaction. In the event of a change of
control, our board or the committee may terminate each option, provided that
each holder receive the amount of cash equal to the difference between the
exercise price of the each option and the fair market value of each share of
stock subject to such option.
Our Board may suspend, terminate, modify, or amend the plan provided that,
in certain instances, the holders of a majority of our common stock issued and
outstanding approve the amendment.
2003 EQUITY INCENTIVE COMPENSATION PLAN
Our Board of Directors has approved our 2003 Equity Incentive Compensation
Plan, subject to approval by our stockholders at the meeting.
The purpose of the 2003 equity plan is to assist our company in attracting,
motivating, retaining, and rewarding high-quality executives and other
employees, directors, officers, and independent contractors by enabling such
persons to acquire or increase a proprietary interest in our company in order to
strengthen the mutuality of interests between such persons and our stockholders,
and providing such persons with annual and long-term performance incentives to
expend their maximum efforts in the creation of stockholder value. The 2003
Equity Incentive Compensation Plan is summarized in "Proposals to Approve Our
2003 Equity Incentive Compensation Plan."
7
Presently, the number of shares of common stock that may be issued under
the 2003 Equity Incentive Compensation Plan is equal to 10,000,000. As of
December 31, 2002, no shares of common stock had been issued upon exercise of
options granted under the 2003 Equity Incentive Compensation Plan and there were
no options outstanding under the 2003 Equity Incentive Compensation Plan.
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth information with respect to our common stock
that may be issued upon the exercise of outstanding options, warrants, and
rights to purchase shares of our common stock as of December 31, 2002.
(c)
(a) Number of Securities
Number of Securities (b) Remaining Available for
to be Issued Upon Weighted Average Future Issuance Under
Exercise of Exercise Price of Equity Compensation Plans
Outstanding Options, Outstanding Options, (Excluding Securities
Plan Category Warrants, and Rights Warrants, and Rights Reflected in Column (a))
------------- -------------------- -------------------- ------------------------
Equity Compensation Plans
Approved by
Stockholders........... 2,500,000 $0.30 --
Equity Compensation Plans
Not Approved by
Stockholders........... 25,866,875 (2) $0.06 10,985,000 (1)
---------- ----------
Total............ 28,366,875 10,985,000
========== ==========
- ----------
(1) Includes 10,000,000 securities that may be issued under the 2003 Equity
Incentive Compensation Plan, subject to approval by our stockholders at the
meeting. Also includes 985,000 options available to be issued under our
existing 1999 Stock Option Plan.
(2) Includes 16,000,000 warrants that vest pursuant to our company achieving
various monthly net revenue targets and common stock price targets.
LIMITATION OF DIRECTORS' LIABILITY; INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES, AND AGENTS
Our articles of incorporation eliminate the personal liability of any
director of our company to us or our stockholders for money damages for breach
of fiduciary duty as a director or officer, to the fullest extent allowed by the
General Corporation Law of Nevada, or NGCL. Under the NGCL, directors and
officers will not be individually liable to us or our stockholders for any
damages as a result of any act or failure to act in his capacity as a director
or officer unless it is proven that (a) his act or failure to act constituted a
breach of his fiduciary duties as a director or officer; and (b) his breach of
those duties involved intentional misconduct, fraud, or a knowing violation of
law. The effect of these provisions in our articles of incorporation is to
eliminate our rights and the rights of our stockholders (through stockholders'
derivative suits on our behalf) to recover money damages from a director for all
actions or omissions as a director (including breaches resulting from negligent
or grossly negligent behavior) except in the situations described above. These
provisions do not limit or eliminate our rights or the rights of our
stockholders to seek non-monetary relief such as an injunction or rescission in
the event of a breach of a director's duty of care.
Our articles of incorporation require us to indemnify and advance expenses
to any person who incurs liability or expense by reason of such person acting as
a director of our company, to the fullest extent allowed by the NGCL. This
indemnification is mandatory with respect to directors in all circumstances in
8
which indemnification is permitted by the NGCL, subject to the requirements of
the NGCL. In addition, we, in our sole discretion, may indemnify and advance
expenses, to the fullest extent allowed by the NGCL, to any person who incurs
liability or expense by reason of such person acting as an officer, employee, or
agent of our company, except where indemnification is mandatory pursuant to the
NGCL, in which case we are required to indemnify to the fullest extent required
by the NGCL.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During November 13, 2002, we entered into a two-year employment agreement
with Mr. Shworan to serve as our Chief Executive Officer. See "Executive
Compensation - Employment Agreements." At that time, and as a condition to his
employment, Mr. Shworan agreed to arrange for an affiliated company to purchase
800,000 shares of our common stock at a price of $0.05 per share each six-month
period commencing on November 12, 2002, up to an aggregate of 4,800,000 shares.
We will not be obligated to pay or accrue cash compensation to Mr. Shworan until
determined by the parties at a future date. In connection with his employment,
we granted to Mr. Shworan as a signing bonus five-year warrants to purchase
4,000,000 shares of our common stock at an exercise price of $0.05 per share.
One-twelfth of the warrants will vest each month during the first year of the
agreement. In addition, we granted to Mr. Shworan warrants to purchase an
additional 16,000,000 warrants at an exercise price of $0.05 per share, which
vest pursuant to our company achieving various monthly net revenue targets and
common stock price targets, as described under "Executive Compensation -
Employment Agreements."
In May 2000, we relocated our corporate offices to Scottsdale, Arizona. Our
company loaned Mr. Keith Guelpa, our Chief Executive Officer, $80,000 to provide
relocation assistance. The loan bears interest at the rate of prime plus 0.5%.
Repayment terms are at the discretion of our board of directors. During 2001,
our Board of Directors approved forgiving $50,000 of the outstanding principal
amount of the loan, and during 2002, our Board of Directors approved forgiving
the remaining $30,000 of the outstanding principal amount of the loan. During
2001, Mr. Guelpa made loans to us and deferred salary that combined totaled
$265,000 at December 31, 2001. To compensate Mr. Guelpa, we awarded him a total
of 5,395,914 warrants at an average price of $0.16. In 2002, Mr. Guelpa loaned
us an additional $53,850, of which $26,100 was repaid during 2002, and agreed to
a reduced salary of approximately $36,500. In exchange for such reduction in
salary, we granted to Mr. Guelpa warrants to purchase 1,098,958 shares of common
stock at exercise prices ranging from $0.05 to $0.20 per share. See "Executive
Compensation - Option Grants." Mr. Guelpa also personally incurred costs
totaling approximately $129,000 associated with financing our company. In
exchange for agreeing to loan us this amount and in lieu of interest paid on
outstanding loans to us, we granted to Mr. Guelpa warrants to purchase 5,773,329
shares of common stock at an exercise prices ranging from $0.09 to $0.20 per
share.
REPORT OF THE AUDIT COMMITTEE
The Board of Directors has appointed an Audit Committee, which consisted of
three directors during fiscal 2001. Two of the three members of the committee
are "independent" of our company and management, as that term is defined in the
NASD's listing standards. The Board of Directors has not adopted a written
charter of the audit committee.
The primary responsibility of the committee is to oversee our (a) financial
reporting process on behalf of the board of directors, (b) system of internal
accounting and financial controls, (c) outside auditors independence and
performance, and (d) compliance with any legal compliance and ethics programs as
may be established from time to time by the board of directors. Management has
the primary responsibility for the financial statements and the reporting
process, including the systems of internal controls. The independent auditors
are responsible for auditing the financial statements and expressing an opinion
on the conformity of those audited financial statements with generally accepted
accounting principles.
9
In fulfilling its oversight responsibilities, the committee reviewed the
audited financial statements with management and the independent auditors. The
committee discussed with the independent auditors the matters required to be
discussed by Statement of Auditing Standards No. 61. This included a discussion
of the auditors' judgments as to the quality, not just the acceptability, of the
company's accounting principles and such other matters as are required to be
discussed with the committee under generally accepted auditing standards. In
addition, the committee received from the independent auditors written
disclosures and the letter required by Independence Standards Board Standard No.
1. The committee also discussed with the independent auditors the auditors'
independence from management and our company, including the matters covered by
the written disclosures and letter provided by the independent auditors.
The committee discussed with our independent auditors the overall scope and
plans for their audits. The committee meets with the independent auditors, with
and without management present, to discuss the results of their examinations,
their evaluations of our company, the internal controls, and the overall quality
of the financial reporting. The committee held one meeting during fiscal 2001.
Based on the reviews and discussions referred to above, the committee
recommended to the board of directors, and the board approved, that the audited
financial statements be included in the Annual Report on Form 10-KSB for the
fiscal year ended December 31, 2001 for filing with the Securities and Exchange
Commission. The committee and the board of directors also have recommended the
selection of the independent auditors.
December 30, 2002 Robert Thompson, Chairman
Ian Lambert
R. Keith Guelpa
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors, officers, and
persons who own more than 10% of a registered class of our equity securities to
file reports of ownership and changes in ownership with the SEC. Directors,
officers, and greater than 10% stockholders are required by the SEC regulations
to furnish the Company with copies of all Section 16(a) forms they file. Based
solely upon our review of the copies of such forms received by us during the
fiscal year ended December 31, 2002 and written representations that no other
reports were required, we believe that each person who at any time during such
fiscal year was a director, officer, or beneficial owner of more than 10% of our
common stock complied with all Section 16(a) filing requirements during such
fiscal year.
10
INDEPENDENT PUBLIC ACCOUNTANTS
On February 25, 2002, we engaged Allan G. Hutchison, CPA as our new
independent public accountant. Our former public accountant, Duncan Budge, C.A.,
retired from public practice. The decision to engage our certifying accountant
was recommended and approved by our Board of Directors. During the fiscal years
ended December 31, 2000 and 1999 and the subsequent interim reporting periods
from the audit date of December 31, 2000, through and including the termination
date of February 25, 2002, there were no disagreements between us and Duncan
Budge, C.A. on any matter of accounting principles or practices, financial
statement disclosure, accounting scope or procedure, or any reportable events.
The report of Duncan Budge, C.A. on our financial statements for the fiscal
years ended December 31, 2000 and 1999 contained no adverse opinion or
disclaimer of opinion and was not qualified or modified as to uncertainty, audit
scope, or accounting principles. We did not consult with Allan G. Hutchison, CPA
during the fiscal years ended December 31, 2000 and 1999 or during the
subsequent interim reporting periods from the audit date of December 31, 2000,
through and including the termination date of February 25, 2002, on either the
application of accounting principles or type of opinion Allan G. Hutchison, CPA
might issue on our financial statements. We requested Duncan Budge, C.A. to
furnish a letter addressed to the Securities and Exchange Commission stating
whether Duncan Budge, C.A. agrees with the above statements. A copy of this
letter addressed to the SEC, dated February 25, 2002, is filed as Exhibit 16 to
our Current Report on Form 8-K dated February 25, 2002.
We have appointed Allan G. Hutchinson, CPA, to audit our consolidated
financial statements for the fiscal year ending December 31, 2002. Aggregate
fees billed to our company for the fiscal year ended December 31, 2001 by our
principal accounting firm, Allan G. Hutchinson, CPA, are as follows:
Audit Fees....................................................... $ 4,100
Financial Information Systems Design and Implementation Fees..... $ --
All Other Fees................................................... $ --
We anticipate that Mr. Hutchinson will be present at the meeting. Mr.
Hutchinson will have the opportunity to make a statement if he desires and will
be available to respond to appropriate questions. The members of our audit
committee believe that the non-audit services provided by Allan G. Hutchinson,
CPA, referenced above in "Financial Information Systems Design and
Implementation Fees" and "All Other Fees," are compatible with maintaining our
principal accounting firm's independence.
11
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS, DIRECTORS,
AND OFFICERS
The following table sets forth certain information regarding the shares of
our outstanding common stock beneficially owned as of January 3, 2003 by (i)
each of our directors and executive officers, (ii) all directors and executive
officers as a group, and (iii) each other person who is known by us to
beneficially own or to exercise voting or dispositive control over more than 5%
of our common stock.
NAME AND ADDRESS OF
BENEFICIAL OWNER(1) NUMBER OF SHARES (2) PERCENT
- ------------------- -------------------- -------
DIRECTORS AND EXECUTIVE OFFICERS
David M. Shworan............................ 3,432,633(3) 6.9%
R. Keith Guelpa............................. 13,297,212(4) 22.7%
Keith J. Randall............................ 891,792(5) 1.8%
Robert J. Thompson.......................... 550,000(6) 1.1%
All executive officers and directors
as a group (four persons)................. 18,171,637 29.5%
5% STOCKHOLDERS
Duane Nelson................................ 5,062,317(7) 9.8%
- ----------
* Less than 1%
(1) Each person named in the table has sole voting and investment power with
respect to all common stock beneficially owned by him or her, subject to
applicable community property law, except as otherwise indicated. Except as
otherwise indicated, each person may be reached through us at 14500 N.
Northsight Blvd. Suite 329, Scottsdale, Arizona 85260.
(2) The percentages shown are calculated based upon 48,055,604 shares of common
stock outstanding on January 3, 2003. The numbers and percentages shown
include the shares of common stock actually owned as of January 3, 2003 and
the shares of common stock that the identified person or group had the
right to acquire within 60 days of such date. In calculating the percentage
of ownership, all shares of common stock that the identified person or
group had the right to acquire within 60 days of January 3, 2003 upon the
exercise of options are deemed to be outstanding for the purpose of
computing the percentage of the shares of common stock owned by such person
or group, but are not deemed to be outstanding for the purpose of computing
the percentage of the shares of common stock owned by any other person.
(3) Represents 1,011,800 shares of common stock owned by Mr. Shworan and
800,000 shares owned by Mr. Shworan's wife. Also includes 37,500 shares of
common stock owed by Bravenet Web Services, Inc. of which Mr. Shworan is a
control person. Mr. Shworan disclaims beneficial ownership of these shares
except to the extent of his pecuniary interest therein. Also includes
vested warrants to acquire directly 1,333,333 shares of common stock and
vested warrants for Bravenet Web Services, Inc. to acquire 250,000 shares
of common stock.
(4) Represents 207,500 shares of our common stock owned directly and 2,500,000
shares of our common stock owned by Mr. Guelpa's wife and children. Also
includes 9,964,712 shares of common stock issuable upon exercise of stock
options and warrants held by Mr. Guelpa and 625,000 shares of common stock
issuable upon exercise of warrants held by Mr. Guelpa's son. Mr. Guelpa
disclaims ownership of any shares of common stock or warrants held by his
wife and children.
(5) Represents 25,000 shares of common stock and vested options and warrants to
acquire 866,762 shares of common stock.
(6) Represents vested options to acquire 550,000 shares of common stock.
12
(7) Represents 1,392,000 shares of common stock and vested options to acquire
3,670,317 shares of common stock.
PROPOSALS TO AMEND AND RESTATE OUR
ARTICLES OF INCORPORATION
INTRODUCTION
At our annual meeting, our stockholders will be asked to approve two
separate proposals concerning amendments to our articles of incorporation, each
of which was approved and adopted by our Board of Directors on November 22,
2002. Following the effectiveness of the two proposed amendments, we intend to
file our Second Amended and Restated Articles of Incorporation substantially in
the form set forth as APPENDIX A to this proxy statement, which reflects all of
the amendments to our articles of incorporation, if the two proposed amendments
are adopted by our stockholders. If fewer than both proposed amendments are
approved by the stockholders, we intend to file our Second Amended and Restated
Articles of Incorporation reflecting those amendments that have been approved by
our stockholders and have become effective. Our Board of Directors recommends a
vote "FOR" each proposed amendment to our articles of incorporation.
A description of each of the two proposals is set forth below. The
descriptions are a summary only and are qualified in their entirety by reference
to the text of such amendments as set forth in the proposed Second Amended and
Restated Articles of Incorporation, which will be substantially as set forth in
APPENDIX A to this Proxy Statement. The text of the proposed Second Amended and
Restated Articles of Incorporation in APPENDIX A is subject to revision if
either of the two proposals as set forth below are not approved by our
stockholders.
PROPOSAL TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK
Our Board of Directors has approved a proposal to amend our articles of
incorporation to increase the number of authorized shares of common stock from
50,000,000 to 100,000,000 shares. If approved by the stockholders, the proposed
amendment will become effective upon the filing of our Second Amended and
Restated Articles of Incorporation with the Secretary of State of the State of
Nevada, which will occur as soon as reasonably practicable.
INCREASE IN NUMBER OF SHARES OF COMMON STOCK AUTHORIZED FOR ISSUANCE
It is proposed to increase the number of shares of common stock authorized
for issuance from 50,000,000 shares to a maximum of 100,000,000 shares. The
proposed increase in the number of shares authorized for issuance recognizes the
increase in the number of outstanding shares of our common stock as a result of
various issuances of common stock through private placements and for services
rendered. As a result of these issuances, as of the record date there were
48,055,604 shares of common stock outstanding. In addition, as of December 31,
2002, we have the following outstanding securities:
* employee stock options to purchase 5,015,000 shares of common stock at
a weighted exercise price of $0.25 per share; and
* warrants to purchase 34,651,812 shares of common stock at a weighted
exercise price of $0.08 per share (includes 16,000,000 warrants that
vest only upon our company achieving various monthly net revenue
targets and common stock price targets).
As a result, we do not have sufficient shares of common stock authorized for
issuance to allow us to raise additional equity securities, which are needed for
our company's capital requirements. In addition, we do not have sufficient
shares of common stock authorized for issuance to permit full exercise of the
options and warrants listed above.
13
The proposed increase in the number of shares of common stock authorized
for issuance will provide us with the flexibility necessary to enable us to (a)
raise additional capital through one or more public offerings or private
placements of shares of us common stock or options, warrants, convertible debt,
convertible preferred stock, or other securities exercisable or convertible into
shares of common stock; (b) acquire additional assets or businesses by using
shares of common stock for a portion or all of the consideration paid to the
sellers; (c) repay existing indebtedness by issuing shares of common stock in
lieu of cash; (d) attract and retain directors, officers, and key employees and
motivate such persons to exert their best efforts on behalf of our company by
issuing options to acquire shares of common stock; or (e) effect stock splits in
the form of a stock dividend or otherwise to make stock dividends to existing
stockholders. The Board of Directors believes that the number of shares of
common stock currently authorized for issuance is not adequate to provide a
sufficient number of shares for transactions such as those described above as
and when they may arise in the future. The Board of Directors also believes that
the proposed increase in the number of authorized shares of common stock could
be an important factor in our ability to raise capital and to acquire new
assets. Accordingly, the Board of Directors believes that the proposed amendment
to our articles of incorporation is appropriate and in the best interests of our
company and its stockholders generally.
Upon approval of the proposed amendment to the articles and filing of our
Second Amended and Restated Articles of Incorporation with the Secretary of
State of the State of Nevada, the authorized shares of common stock will be
available for issuance by action of the Board of Directors for any of the
reasons described above or for any other corporate purpose. The authorized
shares of preferred stock and common stock in excess of those issued will be
available for issuance at such times and for such corporate purposes as the
Board of Directors may deem advisable, without further action by our
stockholders, except as may be required by applicable law or by the rules of any
stock exchange or national securities association trading system on which our
common stock may be listed or traded.
ARRANGEMENTS TO ISSUE SHARES OF COMMON STOCK
On November 13, 2002, we entered into a two-year employment agreement with
David M. Shworan to serve as our Chief Executive Officer. At that time, and as a
condition of his employment, Mr. Shworan agreed to arrange for an affiliated
company to purchase 800,000 shares of our common stock at a price of $0.05 per
share each six-month period commencing on November 12, 2002, up to an aggregate
of 4,800,000 shares. We will not be obligated to pay or accrue cash compensation
to Mr. Shworan until determined by the parties at a future date. In connection
with his employment, we granted to Mr. Shworan as a signing bonus five-year
warrants to purchase 4,000,000 shares of our common stock at an exercise price
of $0.05 per share. One-twelfth of the warrants will vest each month during the
first year of the agreement. In addition, we granted to Mr. Shworan warrants to
purchase an additional 16,000,000 warrants at an exercise price of $0.05 per
share, which vest pursuant to our company achieving various monthly net revenue
targets and common stock price targets, as set forth under "Executive
Compensation - Employment Agreements."
Other than the arrangements and the outstanding securities described above,
we have no arrangements, agreements, understandings, or plans at the present
time for the issuance or use of the additional shares of common stock proposed
to be authorized. Our Board of Directors does not intend to issue any preferred
stock or common stock except on terms that the directors deem to be in the best
interests of our company and our then-existing stockholders. Any future issuance
of common stock will be subject to the rights and preferences of holders of
outstanding shares of any preferred stock that we may issue in the future.
SERIAL PREFERRED STOCK
The proposed amendment will not effect our ability to issue serial
preferred stock. Our articles of incorporation authorize the Board of Directors
to issue up to 10,000,000 shares of serial preferred stock in one or more series
and to fix the rights, preferences, privileges, and restrictions, including
dividend rights, conversion rights, voting rights, rights and terms of
redemption, redemption price or prices, liquidation preferences, and the number
of shares constituting any series or the designation of such series, without any
further vote or action by the stockholders. The issuance of serial preferred
stock may have the effect of delaying, deferring, or preventing a change in
control of our company without further action by our stockholders. The issuance
14
of serial preferred stock with voting and conversion rights may adversely affect
the voting power of the holders of common stock, including the loss of voting
control to others. No serial preferred stock currently is outstanding and we
have no present plans to issue any shares of serial preferred stock.
POTENTIAL EFFECTS OF THE PROPOSED AMENDMENT
In deciding whether to issue additional shares of preferred stock or common
stock, our Board of Directors will carefully consider the effect of the issuance
on the operating results of our company and our then-existing stockholders. With
the exception of stock dividends, including stock splits effected as stock
dividends, issuances of preferred stock or common stock may result in dilution
to the investments of existing stockholders. In addition, issuances of preferred
stock or common stock could be used to discourage or make more difficult a
business combination or an attempt to obtain control of our company that is not
approved by the our Board of Directors, even when those attempts may be in the
best interests of some or all of our stockholders. Certain provisions of Nevada
law relating to business combinations with interested stockholders also may
create a potential restraint on takeovers or other changes in control of our
company. The Board of Directors did not propose this amendment for the purpose
of discouraging mergers, tender offers, proxy contests, or other changes in
control of our company and we are not aware of any specific effort to accumulate
our common stock or to obtain control of our company by means of a merger,
tender offer, solicitation, or otherwise.
No rights of appraisal or similar rights of dissenters exist with respect
to this matter.
PROPOSAL TO CHANGE THE NAME OF OUR COMPANY
On November 22, 2002, our Board of Directors unanimously adopted a
resolution authorizing an amendment to our articles of incorporation to change
the name of our company to "QuoteMedia, Inc." The Board of Directors believes
that it is in the best interest of our company and its stockholders to change
our company's name to reflect our current business strategy and focus. The Board
of Directors believes that "QuoteMedia, Inc." reflects our current business
strategy and focus and will provide a more accurate perception of that strategy
and focus to the public.
If our stockholders approve the name change, we intend to retain our
trading symbol as "QMCI." The change of our company name will not affect in any
way the validity or transferability of our outstanding securities, the
certificates for our outstanding securities, or our capitalization or corporate
structure. Stockholders will not be required to surrender or exchange
certificates representing shares of common stock or options or warrants to
purchase shares of common stock for new certificates bearing the new corporate
name. Following the effective date of the change of our company's name, we will
overprint all new stock certificates that we issue with the new corporate name.
If, in the judgment of the Board of Directors, any circumstances exist that
would make the name change inadvisable, then, notwithstanding approval of the
proposed amendment by the stockholders, the Board of Directors may abandon the
name change, either before or after approval of the proposed amendment by the
stockholders and at any time prior to the filing of the Amended and Restated
Articles of Incorporation. Under Nevada law, stockholders will not be entitled
to appraisal rights with respect to the proposal to change our company's name.
REQUIRED VOTE
Our Board of Directors has unanimously approved all of the proposed
amendments to our articles of incorporation. The affirmative vote of a majority
of the outstanding shares of our common stock is required for approval of each
of the amendments to our articles of incorporation. OUR BOARD OF DIRECTORS
RECOMMENDS A VOTE "FOR" BOTH OF THE PROPOSED AMENDMENTS TO OUR ARTICLES OF
INCORPORATION DESCRIBED ABOVE.
15
PROPOSAL TO APPROVE OUR
2003 EQUITY INCENTIVE COMPENSATION PLAN
Our Board of Directors has approved our 2003 Equity Incentive Compensation
Plan, subject to approval by our stockholders at the meeting. The full text of
the equity plan is included as "Appendix B" to this proxy statement. The Board
of Directors believes that it is in the best interests of our company to adopt
the equity plan. Accordingly, the Board of Directors recommends a vote "FOR" the
proposal to approve the equity plan.
The terms of the equity plan provide for grants of stock options, stock
appreciation rights, or SARs, restricted stock, deferred stock, other
stock-related awards, and performance or annual incentive awards that may be
settled in cash, stock, or other property. The effective date of the equity plan
is November 22, 2002.
Under the equity plan, the total number of shares of common stock that may
be subject to the granting of awards under the equity plan at any time during
the term of the equity plan shall not exceed 10,000,000 shares. As of December
31, 2002, we had not granted any options to purchase shares of our common stock
under the equity plan. None of these options have been exercised.
In addition, the equity plan imposes individual limitations on the amount
of certain awards in part to comply with Internal Revenue Code Section 162(m).
Under these limitations, during any fiscal year the number of options, SARs,
restricted shares of common stock, deferred shares of common stock, shares as a
bonus or in lieu of other company obligations, and other stock-based awards
granted to any one participant may not exceed 1,000,000 for each type of such
award, subject to adjustment in certain circumstances. The maximum amount that
may be paid out as an annual incentive award or other cash award in any fiscal
year to any one participant is $2,000,000, and the maximum amount that may be
earned as a performance award or other cash award in respect of a performance
period by any one participant is $5,000,000.
We have authorized a committee to adjust the limitations described in the
two preceding paragraphs and to adjust outstanding awards (including adjustments
to exercise prices of options and other affected terms of awards) in the event
that a dividend or other distribution (whether in cash, shares of common stock,
or other property), recapitalization, forward or reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, share exchange, or
other similar corporate transaction or event affects the common stock so that an
adjustment is appropriate to prevent dilution or enlargement of the rights of
participants. The committee is also authorized to adjust performance conditions
and other terms of awards in response to these kinds of events or in response to
changes in applicable laws, regulations, or accounting principles.
ELIGIBILITY AND ADMINISTRATION
The persons eligible to receive awards under the equity plan are the
officers, directors, employees, and independent contractors of our company. The
equity plan is to be administered by a committee designated by our Board of
Directors consisting of not less than two directors, each member of which must
be a "non-employee director" as defined under Rule 16b-3 under the Exchange Act
and an "outside director" for purposes of Section 162(m) of the Code. However,
except as otherwise required to comply with Rule 16b-3 of the Exchange Act, or
Section 162(m) of the Code, our Board of Directors may exercise any power or
authority granted to the committee. Subject to the terms of the equity plan, the
committee or our Board of Directors is authorized to select eligible persons to
receive awards, determine the type and number of awards to be granted and the
number of shares of common stock to which awards will relate, specify times at
which awards will be exercisable or settleable (including performance conditions
that may be required as a condition thereof), set other terms and conditions of
awards, prescribe forms of award agreements, interpret and specify rules and
regulations relating to the equity plan, and make all other determinations that
may be necessary or advisable for the administration of the equity plan.
STOCK OPTIONS AND SARS
The committee or our Board of Directors is authorized to grant stock
options, including both incentive stock options, or ISOs, which can result in
potentially favorable tax treatment to the participant, and nonqualified stock
options, and SARs entitling the participant to receive the amount by which the
16
fair market value of a share of common stock on the date of exercise (or defined
"change in control price" following a change in control) exceeds the grant price
of the SAR. The exercise price per share subject to an option and the grant
price of an SAR are determined by the committee, but in the case of an ISO must
not be less than the fair market value of a share of common stock on the date of
grant. For purposes of the equity plan, the term "fair market value" means the
fair market value of common stock, awards, or other property as determined by
the committee or our Board of Directors or under procedures established by the
committee or our Board of Directors. Unless otherwise determined by the
committee or our Board of Directors, the fair market value of common stock as of
any given date shall be the closing sales price per share of common stock as
reported on the principal stock exchange or market on which common stock is
traded on the date as of which such value is being determined or, if there is no
sale on that date, then on the last previous day on which a sale was reported.
The maximum term of each option or SAR, the times at which each option or SAR
will be exercisable, and provisions requiring forfeiture of unexercised options
or SARs at or following termination of employment generally are fixed by the
committee or our Board of Directors, except that no option or SAR may have a
term exceeding ten years. Options may be exercised by payment of the exercise
price in cash, shares that have been held for at least six months, outstanding
awards, or other property having a fair market value equal to the exercise
price, as the committee or our Board of Directors may determine from time to
time. Methods of exercise and settlement and other terms of the SARs are
determined by the committee or our Board of Directors. SARs granted under the
equity plan may include "limited SARs" exercisable for a stated period of time
following a change in control of our company, as discussed below.
RESTRICTED AND DEFERRED STOCK
The committee or our Board of Directors is authorized to grant restricted
stock and deferred stock. Restricted stock is a grant of shares of common stock
that may not be sold or disposed of, and that may be forfeited in the event of
certain terminations of employment, prior to the end of a restricted period
specified by the committee or our Board of Directors. A participant granted
restricted stock generally has all of the rights of a stockholder of our
company, unless otherwise determined by the committee or the Board. An award of
deferred stock confers upon a participant the right to receive shares of common
stock at the end of a specified deferral period, subject to possible forfeiture
of the award in the event of certain terminations of employment prior to the end
of a specified restricted period. Prior to settlement, an award of deferred
stock carries no voting or dividend rights or other rights associated with share
ownership, although dividend equivalents may be granted, as discussed below.
DIVIDEND EQUIVALENTS
The committee or our Board of Directors is authorized to grant dividend
equivalents conferring on participants the right to receive, currently or on a
deferred basis, cash, shares of common stock, other awards or other property
equal in value to dividends paid on a specific number of shares of common stock
or other periodic payments. Dividend equivalents may be granted alone or in
connection with another award, may be paid currently or on a deferred basis and,
if deferred, may be deemed to have been reinvested in additional shares of
common stock, awards, or otherwise as specified by the committee or our Board of
Directors.
BONUS STOCK AND AWARDS IN LIEU OF CASH OBLIGATIONS
The committee or our Board of Directors is authorized to grant shares of
common stock as a bonus free of restrictions, or to grant shares of common stock
or other awards in lieu of company obligations to pay cash under the equity plan
or other plans or compensatory arrangements, subject to such terms as the
committee or our Board of Directors may specify.
OTHER STOCK-BASED AWARDS
The committee or our Board of Directors is authorized to grant awards that
are denominated or payable in, valued by reference to, or otherwise based on or
related to shares of common stock. Such awards might include convertible or
exchangeable debt securities, other rights convertible or exchangeable into
17
shares of common stock, purchase rights for shares of common stock, awards with
value and payment contingent upon performance of our company or any other
factors designated by the committee or our Board of Directors, and awards valued
by reference to the book value of shares of common stock or the value of
securities of or the performance of specified subsidiaries or business units.
The committee or our Board of Directors determines the terms and conditions of
such awards.
PERFORMANCE AWARDS, INCLUDING ANNUAL INCENTIVE AWARDS
The right of a participant to exercise or receive a grant or settlement of
an award, and the timing thereof, may be subject to such performance conditions
(including subjective individual goals) as may be specified by the committee or
our Board of Directors. In addition, the equity plan authorizes specific annual
incentive awards, which represent a conditional right to receive cash, shares of
common stock, or other awards upon achievement of certain preestablished
performance goals and subjective individual goals during a specified fiscal
year. Performance awards and annual incentive awards granted to persons whom the
committee expects will, for the year in which a deduction arises, be "covered
employees" (as defined below) will, if and to the extent intended by the
committee, be subject to provisions that should qualify such awards as
"performance-based compensation" not subject to the limitation on tax
deductibility by us under Code Section 162(m). For purposes of Section 162(m),
the term "covered employee" means our chief executive officer and each other
person whose compensation is required to be disclosed in our filings with the
SEC by reason of that person being among our four highest compensated officers
as of the end of a taxable year. If and to the extent required under Section
162(m) of the Code, any power or authority relating to a performance award or
annual incentive award intended to qualify under Section 162(m) of the Code is
to be exercised by the committee and not our Board of Directors.
Subject to the requirements of the equity plan, the committee or our Board
of Directors will determine performance award and annual incentive award terms,
including the required levels of performance with respect to specified business
criteria, the corresponding amounts payable upon achievement of such levels of
performance, termination, and forfeiture provisions and the form of settlement.
In granting annual incentive or performance awards, the committee or our Board
of Directors may establish unfunded award "pools," the amounts of which will be
based upon the achievement of a performance goal or goals based on one or more
of certain business criteria described in the equity plan (including, for
example, total stockholder return, net income, pretax earnings, EBITDA, earnings
per share, and return on investment). During the first 90 days of a fiscal year
or performance period, the committee or our Board of Directors will determine
who will potentially receive annual incentive or performance awards for that
fiscal year or performance period, either out of the pool or otherwise.
After the end of each fiscal year or performance period, the committee or
our Board of Directors will determine
* the amount of any pools and the maximum amount of potential annual
incentive or performance awards payable to each participant in the
pools; and
* the amount of any other potential annual incentive or performance
awards payable to participants in the equity plan.
The committee or our Board of Directors may, in its discretion, determine
that the amount payable as an annual incentive or performance award will be
reduced from the amount of any potential award.
OTHER TERMS OF AWARDS
Awards may be settled in the form of cash, shares of common stock, other
awards or other property, in the discretion of the committee or our Board of
Directors. The committee or our Board of Directors may require or permit
participants to defer the settlement of all or part of an award in accordance
with such terms and conditions as the committee or the Board may establish,
including payment or crediting of interest or dividend equivalents on deferred
amounts, and the crediting of earnings, gains and losses based on deemed
investment of deferred amounts in specified investment vehicles. The committee
or our Board of Directors is authorized to place cash, shares of common stock,
or other property in trusts or make other arrangements to provide for payment of
our obligations under the equity plan. The committee or our Board of Directors
may condition any payment relating to an award on the withholding of taxes and
may provide that a portion of any shares of common stock or other property to be
distributed will be withheld (or previously acquired shares of common stock or
18
other property be surrendered by the participant) to satisfy withholding and
other tax obligations. Awards granted under the equity plan generally may not be
pledged or otherwise encumbered and are not transferable except by will or by
the laws of descent and distribution, or to a designated beneficiary upon the
participant's death, except that the committee or our Board of Directors may, in
its discretion, permit transfers for estate planning or other purposes subject
to any applicable restrictions under Rule 16b-3 promulgated under the Securities
Exchange Act.
Awards under the equity plan are generally granted without a requirement
that the participant pay consideration in the form of cash or property for the
grant (as distinguished from the exercise), except to the extent required by
law. The committee or our Board of Directors may, however, grant awards in
exchange for other awards under the equity plan, awards under other company
plans, or other rights to payment from us, and may grant awards in addition to
and in tandem with such other awards, rights, or other awards.
ACCELERATION OF VESTING; CHANGE IN CONTROL
The committee or our Board of Directors may in the case of a "change of
control" of our company, as defined in the equity plan, in its discretion,
accelerate the exercisability, the lapsing of restrictions, or the expiration of
deferral or vesting periods of any award (including the cash settlement of SARs
and "limited SARs" which may be exercisable in the event of a change in
control). In addition, the committee or our Board of Directors may provide in an
award agreement that the performance goals relating to any performance based
award will be deemed to have been met upon the occurrence of any "change in
control." Upon the occurrence of a change in control, if so provided in the
award agreement, stock options and limited SARs (and other SARs which so
provide) may be cashed out based on a defined "change in control price," which
will be the higher of
* the cash and fair market value of property that is the highest price
per share paid (including extraordinary dividends) in any
reorganization, merger, consolidation, liquidation, dissolution, or
sale of substantially all assets of our company; or
* the highest fair market value per share (generally based on market
prices) at any time during the 60 days before and 60 days after a
change in control.
For purposes of the equity plan, the term "change in control" generally
means
* approval by stockholders of any reorganization, merger, or
consolidation or other transaction or series of transactions if
persons who were shareholders immediately prior to such
reorganization, merger, or consolidation or other transaction do not,
immediately thereafter, own more than 50% of the combined voting power
of the reorganized, merged, or consolidated company's then
outstanding, voting securities, or a liquidation or dissolution of our
company or the sale of all or substantially all of the assets of our
company (unless the reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or sale is
subsequently abandoned),
* a change in the composition of our Board of Directors such that the
persons constituting the Board of Directors on the date the award is
granted, or the Incumbent Board, and subsequent directors approved by
the Incumbent Board (or approved by such subsequent directors), cease
to constitute at least a majority of our Board of Directors, or
* the acquisition by any person, entity or "group", within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act, of
more than 50% of either the then outstanding shares of our common
stock or the combined voting power of our company's then outstanding
voting securities entitled to vote generally in the election of
directors excluding, for this purpose, any acquisitions by (1) our
company, (2) any person, entity, or "group" that as of the date on
which the award is granted owns beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act)
of a controlling interest, or (3) any employee benefit plan of our
company.
19
AMENDMENT AND TERMINATION
Our Board of Directors may amend, alter, suspend, discontinue, or terminate
the equity plan or the committee's authority to grant awards without further
stockholder approval, except stockholder approval must be obtained for any
amendment or alteration if such approval is required by law or regulation or
under the rules of any stock exchange or quotation system on which shares of
common stock are then listed or quoted. Thus, stockholder approval may not
necessarily be required for every amendment to the equity plan which might
increase the cost of the equity plan or alter the eligibility of persons to
receive awards. Stockholder approval will not be deemed to be required under
laws or regulations, such as those relating to ISOs, that condition favorable
treatment of participants on such approval, although our Board of Directors may,
in its discretion, seek stockholder approval in any circumstance in which it
deems such approval advisable. Unless earlier terminated by our Board of
Directors, the equity plan will terminate at such time as no shares of common
stock remain available for issuance under the equity plan and we have no further
rights or obligations with respect to outstanding awards under the equity plan.
FEDERAL INCOME TAX CONSEQUENCES OF AWARDS OF OPTIONS
The following is a brief description of the federal income tax consequences
generally arising with respect to awards of options under the equity plan.
The grant of an option will create no tax consequences for the participant
or our company. A participant will not have taxable income upon exercising an
ISO (except that the alternative minimum tax may apply). Upon exercising an
option other than an ISO, the participant must generally recognize ordinary
income equal to the difference between the exercise price and the fair market
value of the freely transferable and non-forfeitable shares of common stock
acquired on the date of exercise.
Upon a disposition of shares of common stock acquired upon exercise of an
ISO before the end of the applicable ISO holding periods, the participant must
generally recognize ordinary income equal to the lesser of (i) the fair market
value of the shares of common stock at the date of exercise of the ISO minus the
exercise price, or (ii) the amount realized upon the disposition of the ISO
shares of common stock minus the exercise price. Otherwise, a participant's
disposition of shares of common stock acquired upon the exercise of an option
(including an ISO for which the ISO holding periods are met) generally will
result in short-term or long-term capital gain or loss measured by the
difference between the sale price and the participant's tax basis in such shares
of common stock (the tax basis generally being the exercise price plus any
amount previously recognized as ordinary income in connection with the exercise
of the option).
We generally will be entitled to a tax deduction equal to the amount
recognized as ordinary income by the participant in connection with an option.
We generally are not entitled to a tax deduction relating to amounts that
represent a capital gain to a participant. Accordingly, we will not be entitled
to any tax deduction with respect to an ISO if the participant holds the shares
of common stock for the ISO holding periods prior to disposition of the shares.
The Omnibus Budget Reconciliation Act of 1993 added Section 162(m) to the
Code, which generally disallows a public company's tax deduction for
compensation to covered employees in excess of $1 million in any tax year
beginning on or after January 1, 1994. Compensation that qualifies as
"performance-based compensation" is excluded from the $1 million deductibility
cap, and therefore remains fully deductible by the company that pays it. As
discussed above, we intend that options and certain other awards granted to
employees whom the committee expects to be covered employees at the time a
deduction arises in connection with such awards, qualify as such
"performance-based compensation," so that such awards will not be subject to the
Section 162(m) deductibility cap of $1 million. Future changes in Section 162(m)
or the regulations thereunder may adversely affect our ability to ensure that
options or other awards under the equity plan will qualify as "performance-based
compensation" that is fully deductible by our company under Section 162(m).
The foregoing discussion, which is general in nature and is not intended to
be a complete description of the federal income tax consequences of the equity
plan, is intended for the information of stockholders considering how to vote at
20
the meeting and not as tax guidance to participants in the equity plan. This
discussion does not address the effects of other federal taxes or taxes imposed
under state, local, or foreign tax laws. Participants in the equity plan should
consult a tax advisor as to the tax consequences of participation.
NEW PLAN BENEFITS
We believe that awards granted under the equity plan will be granted
primarily to those persons who possess a capacity to contribute significantly to
the successful performance of our company. Because persons to whom awards may be
made are to be determined from time to time by the committee in its discretion,
it is impossible at this time to indicate the precise number, name, or positions
of persons who will hereafter receive awards or the nature and terms of such
awards.
RATIFICATION BY STOCKHOLDERS OF THE 2003 EQUITY INCENTIVE COMPENSATION PLAN
Approval of the equity plan will require the affirmative vote of the
holders of a majority of the outstanding shares of common stock of our company
present in person or by proxy and entitled to vote at the meeting. Upon approval
of the equity plan by our stockholders, any awards granted pursuant to the
equity plan prior to stockholder approval will remain valid and unchanged. In
the event that the proposal to approve the equity plan is not approved by our
stockholders at the meeting, any awards granted pursuant to the equity plan will
automatically terminate and be forfeited to the same extent and with the same
effect as though the equity plan had never been adopted, and we will not make
any further grants of awards under the equity plan.
DEADLINE FOR RECEIPT OF STOCKHOLDER PROPOSALS
Stockholder proposals that are intended to be presented by such
stockholders at our annual meeting of stockholders to be held during calendar
2004 must be received by us no later than March 11, 2004 in order to be included
in the proxy statement and form of proxy relating to such meeting. Pursuant to
Rule 14a-4 under the Exchange Act, we intend to retain discretionary authority
to vote proxies with respect to stockholder proposals for which the proponent
does not seek to have us include the proposed matter in the proxy statement for
the annual meeting to be held during calendar 2004, except in circumstances
where (i) we receive notice of the proposed matter no later than December 26,
2003 and (ii) the proponent complies with the other requirements set forth in
Rule 14a-4.
OTHER MATTERS
We know of no other matters to be submitted to the meeting. If any other
matters properly come before the meeting, it is the intention of the persons
named in the enclosed proxy card to vote the shares they represent as the Board
of Directors may recommend.
Dated: January 6, 2003
21
APPENDIX A
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
QUOTEMEDIA, INC.
Quotemedia, Inc., a corporation organized and existing under the laws of
the State of Nevada (the "Corporation"), hereby certifies as follows:
1. Pursuant to Section 78.403 of the Nevada Revised Statutes Annotated,
these Second Amended and Restated Articles of Incorporation restate, in their
entirety, and amend, the provisions of the Articles of Incorporation of this
Corporation.
2. The text of the Second Amended and Restated Articles of Incorporation
is hereby restated to read in its entirety as follows:
FIRST: The name and of the Corporation shall be Quotemedia, Inc.
SECOND: The Corporation's registered office in the state of Nevada is
located at 311 N. Carson Street, Carson City, Nevada 89701. The name of its
resident agent at that address is State Agent and Transfer Syndicate, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may now or hereafter be organized pursuant to
the General Corporation Law of Nevada.
FOURTH: The said Corporation is to have perpetual existence unless
dissolved according to law.
FIFTH: The total number of shares of all classes which the Corporation
shall have authority to issue is 110,000,000, of which 10,000,000 shares shall
be Preferred Shares, par value $0.001 per share, and 100,000,000 shall be Common
Shares, par value $0.001 per share, and the designations, preferences,
limitations, and relative rights of the shares of each class are as follows:
1. PREFERRED SHARES: The Corporation may divide and issue the
Preferred Shares in series. Preferred Shares of each series when issued
shall be designated to distinguish them from the shares of all other
series. The Board of Directors is hereby expressly vested with authority to
divide the class of Preferred Shares into series and to fix and determine
the relative rights and preferences of the shares of any such series so
established to the full extent permitted by these Articles of Incorporation
and the laws of the State of Nevada in respect of the following:
(a) The number of shares to constitute such series, and the
distinctive designations thereof;
(b) the rate and preference of dividends, if any, the time of
payment of dividends, whether dividends are cumulative and the date
from which any dividend shall accrue;
(c) whether shares may be redeemed and, if so, the redemption
price and the terms and conditions of redemption;
(d) the amount payable upon shares in event of involuntary
liquidation;
(e) the amount payable upon shares in event of voluntary
liquidation;
(f) sinking fund or other provisions, if any, for the redemption
or purchase of shares;
A-1
(g) the terms and conditions on which shares may be converted,
if the shares of any series are issued with the privilege of
conversion;
(h) voting powers, as a class, to elect up to two directors to
the Board of Directors, if any; and
(i) any other relative rights and preferences of shares of such
series including, without limitation, any restriction on an increase
in the number of shares of any series theretofore authorized and any
limitation or restriction of rights or powers to which shares of any
future series shall be subject.
2. COMMON SHARES:
(a) The rights of holders of Common Shares to receive dividends
or share in the distribution of assets in the event of liquidation,
dissolution, winding up of the affairs of the Corporation shall be
subject to the preferences, limitations, and relative rights of the
Preferred Shares fixed in the resolution of resolutions which may be
adopted from time to time by the Board of Directors of the Corporation
providing for the issuance of one or more series of the Preferred
Shares.
(b) The holders of the Common Shares shall be entitled to one
vote for each share of Common Shares held by them of record at the
time for determining the holders thereof entitled to vote.
(c) Unless otherwise ordered by a court of competent
jurisdiction, at all meetings of stockholders a majority of the
stockholders entitled to vote at such meeting, represented in person
or by proxy, shall constitute a quorum.
(d) The stockholders, by vote or concurrence of a majority of
the outstanding shares of the Corporation, or any class or series
thereof, entitled to vote on the subject matter, may take any action
which, except for this provision, would require a two-thirds vote
under the Nevada Corporation Code.
SIXTH: Cumulative voting in the election of Directors shall not be
permitted by this Corporation.
SEVENTH: A stockholder of the Corporation shall not be entitled to a
preemptive right to purchase, subscribe for, or otherwise acquire any unissued
or treasury shares of stock of the Corporation, or any options or warrants to
purchase, subscribe for or otherwise acquire any such unissued or treasury
shares or any shares, bonds, notes, debentures, or other securities convertible
into or carrying options or warrants to purchase, subscribe for or otherwise
acquire any such unissued or treasury shares.
EIGHTH: The governing board of this Corporation shall be known as
directors. The affairs and management of this Corporation shall be under the
control of the Corporation's Board of Directors, which shall consist of not less
than one (1) nor more than seven (7) directors, to serve until his, her, or
their successors are duly elected and qualified, or until the Corporation is
required by statute or otherwise to increase the number of Board members.
NINTH: None of the directors or officers of this Corporation shall, in the
absence of fraud, be disqualified by his office from contracting, leasing, or
otherwise dealing with this corporation, either as a vendor, lessor, purchaser,
or otherwise, of which he shall be a member or in which he may be pecuniarily
interested in any manner from doing business with the Corporation. No director
or officer, nor any firm, association, or corporation or with which he is
connected as aforesaid shall be liable to account to this Corporation or its
stockholders for any profit realized by him from or through any such contract,
lease, or transaction, it being the express intent and purpose of this Article
to permit this Corporation to buy or lease from, sell to or otherwise deal with
A-2
partnerships, firms, or corporations of which the directors and officers or in
which they or any of them may have a pecuniary interest, and that the contracts
or leases of this Corporation, in the absence of fraud, not be void or voidable
or affected in any manner by reason of any such membership. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or a committee thereof which authorizes, approves, or
ratifies such contract or transaction.
TENTH:
1. The Corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (except that an action by or in the right of the
Corporation), by reason of the fact that he is or was a director, officer,
employee, fiduciary, or agent of the shares or is or was serving at the
request of the Corporation as a director, officer, employee, fiduciary, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorney fees), judgments, fines,
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation and that, with respect
to any criminal action or proceeding, had reasonable cause to believe his
conduct was unlawful.
2. The Corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee, fiduciary or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against expenses including amounts paid in settlement and attorney fees
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation; but no indemnification shall be made in respect of any claim,
issue, or matter as to which such person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the Corporation or for amounts paid in settlement to the
Corporation unless and only to the extent that the court in which such
action or suit was brought or other court of competent jurisdiction
determines upon application that, despite the adjudication of liability,
but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which such court
deems proper.
3. To the extent that a director, officer, employee, fiduciary, or
agent of a corporation has been successful on the merits in defense of any
action, suit, or proceeding referred to in (1) or (2) or this Article Tenth
or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses (including attorney fees) actually and
reasonably incurred by him in connection therewith.
4. Any indemnification under (1) or (2) of this Article Tenth
(unless ordered by a court) and as distinguished from (3) of this Article
shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer,
employee, fiduciary, or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in (1) or (2) above. Such
determination shall be made by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit,
or proceeding, or, if such a quorum is not obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or by the stockholders.
A-3
5. Expenses (including attorney fees) incurred in defending a civil
or criminal action, suit, or proceeding may be paid by the Corporation in
advance of the final disposition in (3) or (4) above, upon receipt of an
undertaking by or on behalf of the director, officer, employee, fiduciary,
or agent to repay such amount unless it is ultimately determined that he is
entitled to be indemnified by the Corporation as authorized in this Article
Tenth.
6. The indemnification provided by this Article Tenth shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise, and any procedure provided for by any of the
foregoing, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, fiduciary, or
agent and shall inure to the benefit of heirs, executors, and
administrators of such a person.
7. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, fiduciary, or agent
of the Corporation, or who is or was serving at the request of the
Corporation as a director, officer, employee, fiduciary, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under provisions of this Article Tenth.
8. Anything herein to the contrary notwithstanding, to the fullest
extent permitted by the General Corporation Law of Nevada, as the same
exists or may hereafter be amended, a director or officer of this
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director of officer.
ELEVENTH: The Corporation shall be permitted to conduct business in other
states of the United States and to have one or more offices outside of the state
of Nevada.
TWELFTH: The Board of Directors and stockholders of this Corporation shall
have the right to hold their meetings outside of the state of Nevada when deemed
most convenient or to the best interests of the Corporation.
THIRTEENTH: The Board of Directors may at any meeting, by a majority vote,
sell, lease, exchange, and/or convey all of its property and assets, including
its goodwill and or its corporate franchises, upon such terms and conditions and
for such consideration or considerations as the Board of Directors in their sole
discretion deem expedient and for the best interest of the Corporation and said
consideration or considerations may consist in whole or in part of shares of
stock and/or securities of any other corporation or corporations; provided,
however, in all such cases the affirmative vote of the holders of a majority of
the Common Stock of said Corporation then issued and outstanding shall be voted
in ratification of the Board of Directors action, said vote to be taken at a
special stockholders' meeting of the Corporation, duly called for that purpose.
Nothing herein shall be construed to limit the power of the Board of Directors
of the Corporation and said Board shall have power in its sole discretion to
sell, lease, exchange and/or convey such parts of parcels of land or personal
property or assets as the Board of Directors determine are no longer necessary
or expedient to be held by the Corporation. It is, however, specifically
understood that the Board of Directors may at their discretion create a lien or
mortgage on any or all of the assets of the Corporation in order to borrow money
should the Board of Directors feel that it is necessary for the conduct of the
business.
FOURTEENTH: Stockholders shall at all times have the right to examine the
books of the Corporation except as limited by these Articles of Incorporation.
Such examination as hereinafter provided shall be made only by the stockholder
in person, and no extract from the books or records of the Corporation shall be
permitted to be made by any stockholder(s) of the Corporation. Such stockholder
shall give assurance in writing satisfactory to the Board of Directors that he
does not desire the information required or to be obtained by such inspection
for the purpose of communicating the same to others who are not stockholders
and, further, that he will not directly or indirectly disclose the Company's
business or affairs to any person or persons whomsoever.
A-4
No information in regard to the business or operations of the Corporation
and no copy of, or extract from, any of the books or records of the Corporation
shall be furnished to any person by any officer or director of the Corporation
except by direction and/or approval by the Board of Directors. Stockholders
desiring information in regard to the business or operations of the Corporation,
or desiring to make inspection of the books or records, shall first make
application in writing to the Board of Directors stating the specific purpose of
the application, the particular information desired and the books and records
required for that purpose by such stockholder before such examination, and shall
further satisfy the Board of Directors that said application is made in good
faith and that said examination will not be detrimental to the interests of the
Corporation.
FIFTEENTH: The Corporation shall be entitled to treat the registered holder
of any shares of the Corporation as the owner thereof for all purposes,
including all rights deriving from such shares, and the Corporation shall not be
bound to recognize any equitable or other claim to, or interest in, such shares
or rights deriving from such shares on the part of any other person including
without limiting the generality hereof, a purchaser, assignee, or transferee of
such shares or rights deriving from such shares, unless and until such other
person becomes the registered holder of such shares, whether or not the
Corporation shall have either actual or constructive notice of the claimed
interest of such other person. By way of example and not of limitation, until
such person has become the registered holder of such shares, he shall not be
entitled: to receive notice of the meetings of the stockholders; to vote at such
meetings; to examine a list of the stockholders; to be paid dividends or other
sums payable to stockholders; or to own, enjoy, and exercise any other rights
deriving from such shares against the Corporation.
SIXTEENTH: The Board of Directors shall have the power to make and amend
such prudential bylaws as they deem proper and not inconsistent with the
Constitution or the laws of the United States or of this state for the
management of the property of this Corporation, the regulation and government of
its affairs, and for the certificate and transfer of its stock.
CERTIFICATE OF PRESIDENT
The undersigned, being the duly elected President of Quotemedia, Inc., a
Nevada corporation, hereby certifies that the Second Amended and Restated
Articles of Incorporation included hereinabove, were approved by a majority of
the stockholders of the Corporation by a vote of _________ in favor, ___
against, ___ abstaining, at a meeting of the Corporation's stockholders duly
called pursuant to notice, held on the ____ day of _____, 2003.
----------------------------------------
By: David M. Shworan
Title: President
A-5
APPENDIX B
QUOTEMEDIA, INC.
2003 EQUITY INCENTIVE COMPENSATION PLAN
ADOPTED BY THE BOARD OF DIRECTORS AS OF NOVEMBER 22, 2002
1. PURPOSE. The purpose of this 2003 EQUITY INCENTIVE COMPENSATION PLAN
(the "Plan") is to assist QuoteMedia, Inc., a Nevada corporation (the "Company")
and its subsidiaries in attracting, motivating, retaining and rewarding
high-quality executives and other employees, officers, directors and independent
contractors by enabling such persons to acquire or increase a proprietary
interest in the Company in order to strengthen the mutuality of interests
between such persons and the Company's stockholders, and providing such persons
with annual and long term performance incentives to expend their maximum efforts
in the creation of shareholder value. In the event that the Company is or
becomes a Publicly Held Corporation (as hereinafter defined), the Plan is
intended to qualify certain compensation awarded under the Plan for tax
deductibility under Section 162(m) of the Code (as hereafter defined) to the
extent deemed appropriate by the Committee (or any successor committee) of the
Board of Directors of the Company.
2. DEFINITIONS. For purposes of the Plan, the following terms shall be
defined as set forth below, in addition to such terms defined in Section 1
hereof.
(a) "Annual Incentive Award" means a conditional right granted to a
Participant under Section 8(c) hereof to receive a cash payment, Stock or other
Award, unless otherwise determined by the Committee, after the end of a
specified fiscal year.
(b) "Award" means any Option, SAR (including Limited SAR), Restricted
Stock, Deferred Stock, Stock granted as a bonus or in lieu of another award,
Dividend Equivalent, Other Stock-Based Award, Performance Award or Annual
Incentive Award, together with any other right or interest, granted to a
Participant under the Plan.
(c) "Beneficiary" means the person, persons, trust or trusts which
have been designated by a Participant in his or her most recent written
beneficiary designation filed with the Committee to receive the benefits
specified under the Plan upon such Participant's death or to which Awards or
other rights are transferred if and to the extent permitted under Section 10(b)
hereof. If, upon a Participant's death, there is no designated Beneficiary or
surviving designated Beneficiary, then the term Beneficiary means the person,
persons, trust or trusts entitled by will or the laws of descent and
distribution to receive such benefits.
(d) "Beneficial Owner", "Beneficially Owning" and "Beneficial
Ownership" shall have the meanings ascribed to such terms in Rule 13d3 under the
Exchange Act and any successor to such Rule.
(e) "Board" means the Company's Board of Directors.
(f) "Cause" shall, with respect to any Participant, have the
equivalent meaning (or the same meaning as "cause" or "for cause") set forth in
any employment agreement between the Participant and the Company or Parent
Corporation or Subsidiary or, in the absence of any such agreement, such term
shall mean (i) the failure by the Participant to perform his or her duties as
assigned by the Company (or Parent Corporation or Subsidiary) in a reasonable
manner, (ii) any violation or breach by the Participant of his or her employment
agreement with the Company (or Parent Corporation or Subsidiary), if any, (iii)
any violation or breach by the Participant of his or her non-competition and/or
non-disclosure agreement with the Company (or Parent Corporation or Subsidiary),
if any, (iv) any act by the Participant of dishonesty or bad faith with respect
to the Company (or Parent Corporation or Subsidiary), (v) chronic addition to
alcohol, drugs or other similar substances affecting the Participant's work
performance, or (vi) the commission by the Participant of any act, misdemeanor,
or crime reflecting unfavorably upon the Participant or the Company. The good
faith determination by the Committee of whether the Participant's employment was
B-1
terminated by the Company for "Cause" shall be final and binding for all
purposes hereunder.
(g) "Change in Control" means a Change in Control as defined with
related terms in Section 9 of the Plan.
(h) "Change in Control Price" means the amount calculated in
accordance with Section 9(c) of the Plan.
(i) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, including regulations thereunder and successor provisions and
regulations thereto.
(j) "Committee" means a committee designated by the Board to
administer the Plan; provided, however, that the Committee shall consist of at
least two directors, and, in the event the Company is or becomes a Publicly Held
Corporation (as hereinafter defined), each member of which shall be (i) a
"non-employee director" within the meaning of Rule 16b-3 under the Exchange Act,
unless administration of the Plan by "non-employee directors" is not then
required in order for exemptions under Rule 16b-3 to apply to transactions under
the Plan, and (ii) an "outside director" within the meaning of Section 162(m) of
the Code, unless administration of the Plan by "outside directors" is not then
required in order to qualify for tax deductibility under Section 162(m) of the
Code.
(k) "Corporate Transaction" means a Corporate Transaction as defined
in Section 9(b)(i) of the Plan.
(l) "Covered Employee" means an Eligible Person who is a Covered
Employee as specified in Section 8(e) of the Plan.
(m) "Deferred Stock" means a right, granted to a Participant under
Section 6(e) hereof, to receive Stock, cash or a combination thereof at the end
of a specified deferral period.
(n) "Director" means a member of the Board.
(o) "Disability" means a permanent and total disability (within the
meaning of Section 22(e) of the Code), as determined by a medical doctor
satisfactory to the Committee.
(p) "Dividend Equivalent" means a right, granted to a Participant
under Section 6(g) hereof, to receive cash, Stock, other Awards or other
property equal in value to dividends paid with respect to a specified number of
shares of Stock, or other periodic payments.
(q) "Effective Date" means the effective date of the Plan, which
shall be November 22, 2002.
(r) "Eligible Person" means each Executive Officer of the Company (as
defined under the Exchange Act) and other officers, Directors and employees of
the Company or of any Subsidiary, and independent contractors with the Company
or any Subsidiary. The foregoing notwithstanding, only employees of the Company
or any Subsidiary shall be Eligible Persons for purposes of receiving any
Incentive Stock Options. An employee on leave of absence may be considered as
still in the employ of the Company or a Subsidiary for purposes of eligibility
for participation in the Plan.
(s) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor provisions
and rules thereto.
(t) "Executive Officer" means an executive officer of the Company as
defined under the Exchange Act.
B-2
(u) "Fair Market Value" means the fair market value of Stock, Awards
or other property as determined by the Committee or the Board, or under
procedures established by the Committee or the Board. Unless otherwise
determined by the Committee or the Board, the Fair Market Value of Stock as of
any given date shall be the closing sale price per share reported on a
consolidated basis for stock listed on the principal stock exchange or market on
which Stock is traded on the date as of which such value is being determined or,
if there is no sale on that date, then on the last previous day on which a sale
was reported.
(v) "Good Reason" shall, with respect to any Participant, have the
equivalent meaning (or the same meaning as "good reason" or "for good reason")
set forth in any employment agreement between the Participant and the Company or
Parent Corporation or Subsidiary or, in the absence of any such agreement, such
term shall mean (i) the assignment to the Participant of any duties inconsistent
in any respect with the Participant's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
assigned by the Company (or Parent Corporation or Subsidiary), or any other
action by the Company (or Parent Corporation or Subsidiary) which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company (or Parent Corporation or
Subsidiary) promptly after receipt of notice thereof given by the Participant;
(ii) any failure by the Company (or Parent Corporation or Subsidiary) to comply
with its obligations to the Participant as agreed upon, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company (or Parent Corporation or Subsidiary) promptly after
receipt of notice thereof given by the Participant; (iii) the Company's (or
Parent Corporation's or Subsidiary's) requiring the Participant to be based at
any office or location outside of fifty miles from the location of employment as
of the date of Award, except for travel reasonably required in the performance
of the Participant's responsibilities; (iv) any purported termination by the
Company (or Parent Corporation or Subsidiary) of the Participant's employment
otherwise than for Cause as defined in Section 2(f), or by reason of the
Participant's Disability as defined in Section 2(o), prior to the Expiration
Date.
(w) "Incentive Stock Option" or "ISO" means any Option intended to be
designated as an incentive stock option within the meaning of Section 422 of the
Code or any successor provision thereto.
(x) "Incumbent Board" means the Incumbent Board as defined in Section
9(b)(ii) of the Plan.
(y) "Limited SAR" means a right granted to a Participant under
Section 6(c) hereof.
(z) "Option" means a right granted to a Participant under Section
6(b) hereof, to purchase Stock or other Awards at a specified price during
specified time periods.
(aa) "Other Stock-Based Awards" means Awards granted to a Participant
under Section 6(h) hereof.
(bb) "Parent Corporation" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the
Company, if each of the corporations in the chain (other than the Company) owns
stock possessing 50% or more of the combined voting power of all classes of
stock in one of the other corporations in the chain.
(cc) "Participant" means a person who has been granted an Award under
the Plan which remains outstanding, including a person who is no longer an
Eligible Person.
(dd) "Performance Award" means a right, granted to an Eligible Person
under Section 8 hereof, to receive Awards based upon performance criteria
specified by the Committee or the Board.
(ee) "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, and
shall include a "group" as defined in Section 13(d) thereof.
B-3
(ff) "Publicly Held Corporation" shall mean a publicly held
corporation as that term is used under Section 162(m)(2) of the Code.
(gg) "Restricted Stock" means Stock granted to a Participant under
Section 6(d) hereof, that is subject to certain restrictions and to a risk of
forfeiture.
(hh) "Rule 16b-3" and "Rule 16a-1(c)(3)" means Rule 16b-3 and Rule
16al (c)(3), as from time to time in effect and applicable to the Plan and
Participants, promulgated by the Securities and Exchange Commission under
Section 16 of the Exchange Act.
(ii) "Stock" means the Company's Common Stock, and such other
securities as may be substituted (or resubstituted) for Stock pursuant to
Section 10(c) hereof.
(jj) "Stock Appreciation Rights" or "SAR" means a right granted to a
Participant under Section 6(c) hereof.
(kk) "Subsidiary" means any corporation or other entity in which the
Company has a direct or indirect ownership interest of 50% or more of the total
combined voting power of the then outstanding securities or interests of such
corporation or other entity, entitled to vote generally in the election of
directors or in which the Company has the right to receive 50% or more of the
distribution of profits or 50% or more of the assets on liquidation or
dissolution.
3. ADMINISTRATION.
(a) AUTHORITY OF THE COMMITTEE. The Plan shall be administered by the
Committee; provided, however, that except as otherwise expressly provided in
this Plan or, during the period that the Company is a Publicly Held Corporation,
in order to comply with Code Section 162(m) or Rule 16b-3 under the Exchange
Act, the Board may exercise any power or authority granted to the Committee
under this Plan. The Committee or the Board shall have full and final authority,
in each case subject to and consistent with the provisions of the Plan, to
select Eligible Persons to become Participants, grant Awards, determine the
type, number and other terms and conditions of, and all other matters relating
to, Awards, prescribe Award agreements (which need not be identical for each
Participant) and rules and regulations for the administration of the Plan,
construe and interpret the Plan and Award agreements and correct defects, supply
omissions or reconcile inconsistencies therein, and to make all other decisions
and determinations as the Committee or the Board may deem necessary or advisable
for the administration of the Plan. In exercising any discretion granted to the
Committee or the Board under the Plan or pursuant to any Award, the Committee or
the Board shall not be required to follow past practices, act in a manner
consistent with past practices, or treat any Eligible Person in a manner
consistent with the treatment of other Eligible Persons.
(b) MANNER OF EXERCISE OF COMMITTEE AUTHORITY. In the event that the
Company is or becomes a Publicly Held Corporation, the Committee, and not the
Board, shall exercise sole and exclusive discretion on any matter relating to a
Participant then subject to Section 16 of the Exchange Act with respect to the
Company to the extent necessary in order that transactions by such Participant
shall be exempt under Rule 16b-3 under the Exchange Act. Any action of the
Committee or the Board shall be final, conclusive and binding on all persons,
including the Company, its subsidiaries, Participants, Beneficiaries,
transferees under Section 10(b) hereof or other persons claiming rights from or
through a Participant, and stockholders. The express grant of any specific power
to the Committee or the Board, and the taking of any action by the Committee or
the Board, shall not be construed as limiting any power or authority of the
Committee or the Board. The Committee or the Board may delegate to officers or
managers of the Company or any subsidiary, or committees thereof, the authority,
subject to such terms as the Committee or the Board shall determine, (i) to
perform administrative functions, (ii) with respect to Participants not subject
to Section 16 of the Exchange Act, to perform such other functions as the
Committee or the Board may determine, and (iii) with respect to Participants
subject to Section 16, to perform such other functions of the Committee or the
Board as the Committee or the Board may determine to the extent performance of
such functions will not result in the loss of an exemption under Rule 16b-3
otherwise available for transactions by such persons, in each case to the extent
permitted under applicable law and subject to the requirements set forth in
B-4
Section 8(d). The Committee or the Board may appoint agents to assist it in
administering the Plan.
(c) LIMITATION OF LIABILITY. The Committee and the Board, and each
member thereof, shall be entitled to, in good faith, rely or act upon any report
or other information furnished to him or her by any executive officer, other
officer or employee of the Company or a Subsidiary, the Company's independent
auditors, consultants or any other agents assisting in the administration of the
Plan. Members of the Committee and the Board, and any officer or employee of the
Company or a subsidiary acting at the direction or on behalf of the Committee or
the Board, shall not be personally liable for any action or determination taken
or made in good faith with respect to the Plan, and shall, to the extent
permitted by law, be fully indemnified and protected by the Company with respect
to any such action or determination.
4. STOCK SUBJECT TO PLAN.
(a) LIMITATION ON OVERALL NUMBER OF SHARES SUBJECT TO AWARDS. Subject
to adjustment as provided in Section 10(c) hereof, the total number of shares of
Stock reserved and available for delivery in connection with Awards under the
Plan shall be the sum of (i) 10,000,000, plus (ii) the number of shares with
respect to Awards previously granted under the Plan that terminate without being
exercised, expire, are forfeited or canceled, and the number of shares of Stock
that are surrendered in payment of any Awards or any tax withholding with regard
thereto. Any shares of Stock delivered under the Plan may consist, in whole or
in part, of authorized and unissued shares or treasury shares. Subject to
adjustment as provided in Section 10(c) hereof, in no event shall the aggregate
number of shares of Stock which may be issued pursuant to ISOs exceed 5,000,000
shares.
(b) APPLICATION OF LIMITATIONS. The limitation contained in Section
4(a) shall apply not only to Awards that are settleable by the delivery of
shares of Stock but also to Awards relating to shares of Stock but settleable
only in cash (such as cash-only SARs). The Committee or the Board may adopt
reasonable counting procedures to ensure appropriate counting, avoid double
counting (as, for example, in the case of tandem or substitute awards) and make
adjustments if the number of shares of Stock actually delivered differs from the
number of shares previously counted in connection with an Award.
5. ELIGIBILITY; PER-PERSON AWARD LIMITATIONS. Awards may be granted under
the Plan only to Eligible Persons. In each fiscal year during any part of which
the Plan is in effect, an Eligible Person may not be granted Awards relating to
more than 5,000,000 shares of Stock, subject to adjustment as provided in
Section 10(c), under each of Sections 6(b), 6(c), 6(d), 6(e), 6(f), 6(g), 6(h),
8(b) and 8(c). In addition, the maximum amount that may be earned as an Annual
Incentive Award or other cash Award in any fiscal year by any one Participant
shall be $2,000,000, and the maximum amount that may be earned as a Performance
Award or other cash Award in respect of a performance period by any one
Participant shall be $5,000,000.
6. SPECIFIC TERMS OF AWARDS.
(a) GENERAL. Awards may be granted on the terms and conditions set
forth in this Section 6. In addition, the Committee or the Board may impose on
any Award or the exercise thereof, at the date of grant or thereafter (subject
to Section 10(e)), such additional terms and conditions, not inconsistent with
the provisions of the Plan, as the Committee or the Board shall determine,
including terms requiring forfeiture of Awards in the event of termination of
employment by the Participant and terms permitting a Participant to make
elections relating to his or her Award. The Committee or the Board shall retain
full power and discretion to accelerate, waive or modify, at any time, any term
or condition of an Award that is not mandatory under the Plan. Except in cases
in which the Committee or the Board is authorized to require other forms of
consideration under the Plan, or to the extent other forms of consideration must
be paid to satisfy the requirements of Nevada law, no consideration other than
services may be required for the grant (but not the exercise) of any Award.
(b) OPTIONS. The Committee and the Board each is authorized to grant
Options to Participants on the following terms and conditions:
B-5
(i) EXERCISE PRICE. The exercise price per share of Stock
purchasable under an Option shall be determined by the Committee or
the Board, provided that such exercise price shall not, in the case of
Incentive Stock Options, be less than 100% of the Fair Market Value of
the Stock on the date of grant of the Option and shall not, in any
event, be less than the par value of a share of Stock on the date of
grant of such Option. If an employee owns or is deemed to own (by
reason of the attribution rules applicable under Section 424(d) of the
Code) more than 10% of the combined voting power of all classes of
stock of the Company or any Parent Corporation or Subsidiary and an
Incentive Stock Option is granted to such employee, the option price
of such Incentive Stock Option (to the extent required by the Code at
the time of grant) shall be no less than 110% of the Fair Market Value
of the Stock on the date such Incentive Stock Option is granted.
(ii) TIME AND METHOD OF EXERCISE. The Committee or the Board
shall determine the time or times at which or the circumstances under
which an Option may be exercised in whole or in part (including based
on achievement of performance goals and/or future service
requirements), the time or times at which Options shall cease to be or
become exercisable following termination of employment or upon other
conditions, the methods by which such exercise price may be paid or
deemed to be paid (including in the discretion of the Committee or the
Board a cashless exercise procedure), the form of such payment,
including, without limitation, cash, Stock, other Awards or awards
granted under other plans of the Company or any subsidiary, or other
property (including notes or other contractual obligations of
Participants to make payment on a deferred basis), and the methods by
or forms in which Stock will be delivered or deemed to be delivered to
Participants.
(iii) ISOS. The terms of any ISO granted under the Plan shall
comply in all respects with the provisions of Section 422 of the Code.
Anything in the Plan to the contrary notwithstanding, no term of the
Plan relating to ISOs (including any SAR in tandem therewith) shall be
interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be exercised, so as to disqualify either the
Plan or any ISO under Section 422 of the Code, unless the Participant
has first requested the change that will result in such
disqualification. Thus, if and to the extent required to comply with
Section 422 of the Code, Options granted as Incentive Stock Options
shall be subject to the following special terms and conditions:
(A) the Option shall not be exercisable more than ten years
after the date such Incentive Stock Option is granted; provided,
however, that if a Participant owns or is deemed to own (by reason of
the attribution rules of Section 424(d) of the Code) more than 10% of
the combined voting power of all classes of stock of the Company or
any Parent Corporation and the Incentive Stock Option is granted to
such Participant, the term of the Incentive Stock Option shall be (to
the extent required by the Code at the time of the grant) for no more
than five years from the date of grant; and
(B) The aggregate Fair Market Value (determined as of the
date the Incentive Stock Option is granted) of the shares of stock
with respect to which Incentive Stock Options granted under the Plan
and all other option plans of the Company or its Parent Corporation
during any calendar year exercisable for the first time by the
Participant during any calendar year shall not (to the extent required
by the Code at the time of the grant) exceed $100,000.
(iv) REPURCHASE RIGHTS. The Committee and the Board shall have
the discretion to grant Options which are exercisable for unvested
shares of Common Stock. Should the Optionee cease to be employed with
or perform services to the Company (or a Parent Corporation or
Subsidiary) while holding such unvested shares, the Company shall have
the right to repurchase, at the exercise price paid per share, any or
all of those unvested shares. The terms upon which such repurchase
right shall be exercisable (including the period and procedure for
exercise and the appropriate vesting schedule for the purchased
B-6
shares) shall be established by the Committee or the Board and set
forth in the document evidencing such repurchase right.
(c) STOCK APPRECIATION RIGHTS. The Committee and the Board each is
authorized to grant SARs to Participants on the following terms and conditions:
(i) RIGHT TO PAYMENT. A SAR shall confer on the Participant to
whom it is granted a right to receive, upon exercise thereof, the
excess of (A) the Fair Market Value of one share of stock on the date
of exercise (or, in the case of a "Limited SAR" that may be exercised
only in the event of a Change in Control, the Fair Market Value
determined by reference to the Change in Control Price, as defined
under Section 9(c) hereof), over (B) the grant price of the SAR as
determined by the Committee or the Board. The grant price of an SAR
shall not be less than the Fair Market Value of a share of Stock on
the date of grant except as provided under Section 7(a) hereof.
(ii) OTHER TERMS. The Committee or the Board shall determine at
the date of grant or thereafter, the time or times at which and the
circumstances under which a SAR may be exercised in whole or in part
(including based on achievement of performance goals and/or future
service requirements), the time or times at which SARs shall cease to
be or become exercisable following termination of employment or upon
other conditions, the method of exercise, method of settlement, form
of consideration payable in settlement, method by or forms in which
Stock will be delivered or deemed to be delivered to Participants,
whether or not a SAR shall be in tandem or in combination with any
other Award, and any other terms and conditions of any SAR. Limited
SARs that may only be exercised in connection with a Change in Control
or other event as specified by the Committee or the Board, may be
granted on such terms, not inconsistent with this Section 6(c), as the
Committee or the Board may determine. SARs and Limited SARs may be
either freestanding or in tandem with other Awards.
(d) RESTRICTED STOCK. The Committee and the Board each is authorized
to grant Restricted Stock to Participants on the following terms and conditions:
(i) GRANT AND RESTRICTIONS. Restricted Stock shall be subject to
such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee or the Board may impose, which
restrictions may lapse separately or in combination at such times,
under such circumstances (including based on achievement of
performance goals and/or future service requirements), in such
installments or otherwise, as the Committee or the Board may determine
at the date of grant or thereafter. Except to the extent restricted
under the terms of the Plan and any Award agreement relating to the
Restricted Stock, a Participant granted Restricted Stock shall have
all of the rights of a stockholder, including the right to vote the
Restricted Stock and the right to receive dividends thereon (subject
to any mandatory reinvestment or other requirement imposed by the
Committee or the Board). During the restricted period applicable to
the Restricted Stock, subject to Section 10(b) below, the Restricted
Stock may not be sold, transferred, pledged, hypothecated, margined or
otherwise encumbered by the Participant.
(ii) FORFEITURE. Except as otherwise determined by the Committee
or the Board at the time of the Award, upon termination of a
Participant's employment during the applicable restriction period, the
Participant's Restricted Stock that is at that time subject to
restrictions shall be forfeited and reacquired by the Company;
provided that the Committee or the Board may provide, by rule or
regulation or in any Award agreement, or may determine in any
individual case, that restrictions or forfeiture conditions relating
to Restricted Stock shall be waived in whole or in part in the event
of terminations resulting from specified causes, and the Committee or
the Board may in other cases waive in whole or in part the forfeiture
of Restricted Stock.
B-7
(iii) CERTIFICATES FOR STOCK. Restricted Stock granted under the
Plan may be evidenced in such manner as the Committee or the Board
shall determine. If certificates representing Restricted Stock are
registered in the name of the Participant, the Committee or the Board
may require that such certificates bear an appropriate legend
referring to the terms, conditions and restrictions applicable to such
Restricted Stock, that the Company retain physical possession of the
certificates, and that the Participant deliver a stock power to the
Company, endorsed in blank, relating to the Restricted Stock.
(iv) DIVIDENDS AND SPLITS. As a condition to the grant of an
Award of Restricted Stock, the Committee or the Board may require that
any cash dividends paid on a share of Restricted Stock be
automatically reinvested in additional shares of Restricted Stock or
applied to the purchase of additional Awards under the Plan. Unless
otherwise determined by the Committee or the Board, Stock distributed
in connection with a Stock split or Stock dividend, and other property
distributed as a dividend, shall be subject to restrictions and a risk
of forfeiture to the same extent as the Restricted Stock with respect
to which such Stock or other property has been distributed.
(e) DEFERRED STOCK. The Committee and the Board each is authorized to
grant Deferred Stock to Participants, which are rights to receive Stock, cash,
or a combination thereof at the end of a specified deferral period, subject to
the following terms and conditions:
(i) AWARD AND RESTRICTIONS. Satisfaction of an Award of Deferred
Stock shall occur upon expiration of the deferral period specified for
such Deferred Stock by the Committee or the Board (or, if permitted by
the Committee or the Board, as elected by the Participant). In
addition, Deferred Stock shall be subject to such restrictions (which
may include a risk of forfeiture) as the Committee or the Board may
impose, if any, which restrictions may lapse at the expiration of the
deferral period or at earlier specified times (including based on
achievement of performance goals and/or future service requirements),
separately or in combination, in installments or otherwise, as the
Committee or the Board may determine. Deferred Stock may be satisfied
by delivery of Stock, cash equal to the Fair Market Value of the
specified number of shares of Stock covered by the Deferred Stock, or
a combination thereof, as determined by the Committee or the Board at
the date of grant or thereafter. Prior to satisfaction of an Award of
Deferred Stock, an Award of Deferred Stock carries no voting or
dividend or other rights associated with share ownership.
(ii) FORFEITURE. Except as otherwise determined by the Committee
or the Board, upon termination of a Participant's employment during
the applicable deferral period thereof to which forfeiture conditions
apply (as provided in the Award agreement evidencing the Deferred
Stock), the Participant's Deferred Stock that is at that time subject
to deferral (other than a deferral at the election of the Participant)
shall be forfeited; provided that the Committee or the Board may
provide, by rule or regulation or in any Award agreement, or may
determine in any individual case, that restrictions or forfeiture
conditions relating to Deferred Stock shall be waived in whole or in
part in the event of terminations resulting from specified causes, and
the Committee or the Board may in other cases waive in whole or in
part the forfeiture of Deferred Stock.
(iii) DIVIDEND EQUIVALENTS. Unless otherwise determined by the
Committee or the Board at date of grant, Dividend Equivalents on the
specified number of shares of Stock covered by an Award of Deferred
Stock shall be either (A) paid with respect to such Deferred Stock at
the dividend payment date in cash or in shares of unrestricted Stock
having a Fair Market Value equal to the amount of such dividends, or
(B) deferred with respect to such Deferred Stock and the amount or
value thereof automatically deemed reinvested in additional Deferred
Stock, other Awards or other investment vehicles, as the Committee or
the Board shall determine or permit the Participant to elect.
B-8
(f) BONUS STOCK AND AWARDS IN LIEU OF OBLIGATIONS. The Committee and
the Board each is authorized to grant Stock as a bonus, or to grant Stock or
other Awards in lieu of Company obligations to pay cash or deliver other
property under the Plan or under other plans or compensatory arrangements,
provided that, in the case of Participants subject to Section 16 of the Exchange
Act, the amount of such grants remains within the discretion of the Committee to
the extent necessary to ensure that acquisitions of Stock or other Awards are
exempt from liability under Section 16(b) of the Exchange Act. Stock or Awards
granted hereunder shall be subject to such other terms as shall be determined by
the Committee or the Board.
(g) DIVIDEND EQUIVALENTS. The Committee and the Board each is
authorized to grant Dividend Equivalents to a Participant entitling the
Participant to receive cash, Stock, other Awards, or other property equal in
value to dividends paid with respect to a specified number of shares of Stock,
or other periodic payments. Dividend Equivalents may be awarded on a
freestanding basis or in connection with another Award. The Committee or the
Board may provide that Dividend Equivalents shall be paid or distributed when
accrued or shall be deemed to have been reinvested in additional Stock, Awards,
or other investment vehicles, and subject to such restrictions on
transferability and risks of forfeiture, as the Committee or the Board may
specify.
(h) OTHER STOCK-BASED AWARDS. The Committee and the Board each is
authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that may be denominated or payable in, valued in
whole or in part by reference to, or otherwise based on, or related to, Stock,
as deemed by the Committee or the Board to be consistent with the purposes of
the Plan, including, without limitation, convertible or exchangeable debt
securities, other rights convertible or exchangeable into Stock, purchase rights
for Stock, Awards with value and payment contingent upon performance of the
Company or any other factors designated by the Committee or the Board, and
Awards valued by reference to the book value of Stock or the value of securities
of or the performance of specified subsidiaries or business units. The Committee
or the Board shall determine the terms and conditions of such Awards. Stock
delivered pursuant to an Award in the nature of a purchase right granted under
this Section 6(h) shall be purchased for such consideration (including without
limitation loans from the Company or a Parent Corporation or a Subsidiary), paid
for at such times, by such methods, and in such forms, including, without
limitation, cash, Stock, other Awards or other property, as the Committee or the
Board shall determine. The Committee and the Board shall have the discretion to
grant such other Awards which are exercisable for unvested shares of Common
Stock. Should the Optionee cease to be employed with or perform services to the
Company (or a Parent Corporation or Subsidiary) while holding such unvested
shares, the Company shall have the right to repurchase, at the exercise price
paid per share, any or all of those unvested shares. The terms upon which such
repurchase right shall be exercisable (including the period and procedure for
exercise and the appropriate vesting schedule for the purchased shares) shall be
established by the Committee or the Board and set forth in the document
evidencing such repurchase right. Cash awards, as an element of or supplement to
any other Award under the Plan, may also be granted pursuant to this Section
6(h).
7. CERTAIN PROVISIONS APPLICABLE TO AWARDS.
(a) STAND-ALONE, ADDITIONAL, TANDEM, AND SUBSTITUTE AWARDS. Awards
granted under the Plan may, in the discretion of the Committee or the Board, be
granted either alone or in addition to, in tandem with, or in substitution or
exchange for, any other Award or any award granted under another plan of the
Company, any subsidiary, or any business entity to be acquired by the Company or
a subsidiary, or any other right of a Participant to receive payment from the
Company or any subsidiary. Such additional, tandem, and substitute or exchange
Awards may be granted at any time. If an Award is granted in substitution or
exchange for another Award or award, the Committee or the Board shall require
the surrender of such other Award or award in consideration for the grant of the
new Award. In addition, Awards may be granted in lieu of cash compensation,
including in lieu of cash amounts payable under other plans of the Company or
any subsidiary, in which the value of Stock subject to the Award is equivalent
in value to the cash compensation (for example, Deferred Stock or Restricted
Stock), or in which the exercise price, grant price or purchase price of the
Award in the nature of a right that may be exercised is equal to the Fair Market
Value of the underlying Stock minus the value of the cash compensation
surrendered (for example, Options granted with an exercise price "discounted" by
the amount of the cash compensation surrendered).
B-9
(b) TERM OF AWARDS. The term of each Award shall be for such period
as may be determined by the Committee or the Board; provided that in no event
shall the term of any Option or SAR exceed a period of ten years (or such
shorter term as may be required in respect of an ISO under Section 422 of the
Code).
(c) FORM AND TIMING OF PAYMENT UNDER AWARDS; DEFERRALS. Subject to
the terms of the Plan and any applicable Award agreement, payments to be made by
the Company or a subsidiary upon the exercise of an Option or other Award or
settlement of an Award may be made in such forms as the Committee or the Board
shall determine, including, without limitation, cash, other Awards or other
property, and may be made in a single payment or transfer, in installments, or
on a deferred basis. The settlement of any Award may be accelerated, and cash
paid in lieu of Stock in connection with such settlement, in the discretion of
the Committee or the Board or upon occurrence of one or more specified events
(in addition to a Change in Control). Installment or deferred payments may be
required by the Committee or the Board (subject to Section 10(e) of the Plan) or
permitted at the election of the Participant on terms and conditions established
by the Committee or the Board. Payments may include, without limitation,
provisions for the payment or crediting of a reasonable interest rate on
installment or deferred payments or the grant or crediting of Dividend
Equivalents or other amounts in respect of installment or deferred payments
denominated in Stock.
(d) EXEMPTIONS FROM SECTION 16(B) LIABILITY. If and to the extent
that the Company is or becomes a Publicly Held Corporation, it is the intent of
the Company that this Plan comply in all respects with applicable provisions of
Rule 16b-3 or Rule 16a-1(c)(3) to the extent necessary to ensure that neither
the grant of any Awards to nor other transaction by a Participant who is subject
to Section 16 of the Exchange Act is subject to liability under Section 16(b)
thereof (except for transactions acknowledged in writing to be non-exempt by
such Participant). Accordingly, if any provision of this Plan or any Award
agreement does not comply with the requirements of Rule 16b-3 or Rule
16a-1(c)(3) as then applicable to any such transaction, such provision will be
construed or deemed amended to the extent necessary to conform to the applicable
requirements of Rule 16b-3 or Rule 16a-1(c)(3) so that such Participant shall
avoid liability under Section 16(b). In addition, the purchase price of any
Award conferring a right to purchase Stock shall be not less than any specified
percentage of the Fair Market Value of Stock at the date of grant of the Award
then required in order to comply with Rule 16b-3.
8. PERFORMANCE AND ANNUAL INCENTIVE AWARDS.
(a) PERFORMANCE CONDITIONS. The right of a Participant to exercise or
receive a grant or settlement of any Award, and the timing thereof, may be
subject to such performance conditions as may be specified by the Committee or
the Board. The Committee or the Board may use such business criteria and other
measures of performance as it may deem appropriate in establishing any
performance conditions, and may exercise its discretion to reduce the amounts
payable under any Award subject to performance conditions, except as limited
under Sections 8(b) and 8(c) hereof in the case of a Performance Award or Annual
Incentive Award intended to qualify under Code Section 162(m). At such times as
the Company is a Publicly Held Corporation, if and to the extent required under
Code Section 162(m), any power or authority relating to a Performance Award or
Annual Incentive Award intended to qualify under Code Section 162(m), shall be
exercised by the Committee and not the Board.
(b) PERFORMANCE AWARDS GRANTED TO DESIGNATED COVERED EMPLOYEES. If
and to the extent that the Committee determines that a Performance Award to be
granted to an Eligible Person who is designated by the Committee as likely to be
a Covered Employee should qualify as "performance-based compensation" for
purposes of Code Section 162(m), the grant, exercise and/or settlement of such
Performance Award shall be contingent upon achievement of preestablished
performance goals and other terms set forth in this Section 8(b).
(i) PERFORMANCE GOALS GENERALLY. The performance goals for such
Performance Awards shall consist of one or more business criteria and
a targeted level or levels of performance with respect to each of such
criteria, as specified by the Committee consistent with this Section
8(b). Performance goals shall be objective and shall otherwise meet
the requirements of Code Section 162(m) and regulations thereunder
including the requirement that the level or levels of performance
B-10
targeted by the Committee result in the achievement of performance
goals being "substantially uncertain." The Committee may determine
that such Performance Awards shall be granted, exercised and/or
settled upon achievement of any one performance goal or that two or
more of the performance goals must be achieved as a condition to
grant, exercise and/or settlement of such Performance Awards.
Performance goals may differ for Performance Awards granted to any one
Participant or to different Participants.
(ii) BUSINESS CRITERIA. One or more of the following business
criteria for the Company, on a consolidated basis, and/or specified
subsidiaries or business units of the Company (except with respect to
the total stockholder return and earnings per share criteria), shall
be used exclusively by the Committee in establishing performance goals
for such Performance Awards: (1) total stockholder return; (2) such
total stockholder return as compared to total return (on a comparable
basis) of a publicly available index such as, but not limited to, the
Standard & Poor's 500 Stock Index or the S&P Specialty Retailer Index;
(3) net income; (4) pretax earnings; (5) earnings before interest
expense, taxes, depreciation and amortization; (6) pretax operating
earnings after interest expense and before bonuses, service fees, and
extraordinary or special items; (7) operating margin; (8) earnings per
share; (9) return on equity; (10) return on capital; (11) return on
investment; (12) operating earnings; (13) working capital or
inventory; and (14) ratio of debt to stockholders' equity. One or more
of the foregoing business criteria shall also be exclusively used in
establishing performance goals for Annual Incentive Awards granted to
a Covered Employee under Section 8(c) hereof that are intended to
qualify as "performanced-based compensation under Code Section 162(m).
(iii) PERFORMANCE PERIOD; TIMING FOR ESTABLISHING PERFORMANCE
GOALS. Achievement of performance goals in respect of such Performance
Awards shall be measured over a performance period of up to ten years,
as specified by the Committee. Performance goals shall be established
not later than 90 days after the beginning of any performance period
applicable to such Performance Awards, or at such other date as may be
required or permitted for "performance-based compensation" under Code
Section 162(m).
(iv) PERFORMANCE AWARD POOL. The Committee may establish a
Performance Award pool, which shall be an unfunded pool, for purposes
of measuring Company performance in connection with Performance
Awards. The amount of such Performance Award pool shall be based upon
the achievement of a performance goal or goals based on one or more of
the business criteria set forth in Section 8(b)(ii) hereof during the
given performance period, as specified by the Committee in accordance
with Section 8(b)(iii) hereof. The Committee may specify the amount of
the Performance Award pool as a percentage of any of such business
criteria, a percentage thereof in excess of a threshold amount, or as
another amount which need not bear a strictly mathematical
relationship to such business criteria.
(v) SETTLEMENT OF PERFORMANCE AWARDS; OTHER TERMS. Settlement of
such Performance Awards shall be in cash, Stock, other Awards or other
property, in the discretion of the Committee. The Committee may, in
its discretion, reduce the amount of a settlement otherwise to be made
in connection with such Performance Awards. The Committee shall
specify the circumstances in which such Performance Awards shall be
paid or forfeited in the event of termination of employment by the
Participant prior to the end of a performance period or settlement of
Performance Awards.
(c) ANNUAL INCENTIVE AWARDS GRANTED TO DESIGNATED COVERED EMPLOYEES.
The Committee may, within its discretion, grant one or more Annual Incentive
Awards to any Eligible Person, subject to the terms and conditions set forth in
this Section 8(c).
(i) ANNUAL INCENTIVE AWARD POOL. The Committee may establish an
Annual Incentive Award pool, which shall be an unfunded pool, for
purposes of measuring Company performance in connection with Annual
B-11
Incentive Awards. In the case of Annual Incentive Awards intended to
qualify as "performance-based compensation" for purposes of Code
Section 162(m), the amount of such Annual Incentive Award pool shall
be based upon the achievement of a performance goal or goals based on
one or more of the business criteria set forth in Section 8(b)(ii)
hereof during the given performance period, as specified by the
Committee in accordance with Section 8(b)(iii) hereof. The Committee
may specify the amount of the Annual Incentive Award pool as a
percentage of any such business criteria, a percentage thereof in
excess of a threshold amount, or as another amount which need not bear
a strictly mathematical relationship to such business criteria.
(ii) POTENTIAL ANNUAL INCENTIVE AWARDS. Not later than the end of
the 90th day of each fiscal year, or at such other date as may be
required or permitted in the case of Awards intended to be
"performance-based compensation" under Code Section 162(m), the
Committee shall determine the Eligible Persons who will potentially
receive Annual Incentive Awards, and the amounts potentially payable
thereunder, for that fiscal year, either out of an Annual Incentive
Award pool established by such date under Section 8(c)(i) hereof or as
individual Annual Incentive Awards. In the case of individual Annual
Incentive Awards intended to qualify under Code Section 162(m), the
amount potentially payable shall be based upon the achievement of a
performance goal or goals based on one or more of the business
criteria set forth in Section 8(b)(ii) hereof in the given performance
year, as specified by the Committee; in other cases, such amount shall
be based on such criteria as shall be established by the Committee. In
all cases, the maximum Annual Incentive Award of any Participant shall
be subject to the limitation set forth in Section 5 hereof.
(iii) PAYOUT OF ANNUAL INCENTIVE AWARDS. After the end of each
fiscal year, the Committee shall determine the amount, if any, of (A)
the Annual Incentive Award pool, and the maximum amount of potential
Annual Incentive Award payable to each Participant in the Annual
Incentive Award pool, or (B) the amount of potential Annual Incentive
Award otherwise payable to each Participant. The Committee may, in its
discretion, determine that the amount payable to any Participant as an
Annual Incentive Award shall be reduced from the amount of his or her
potential Annual Incentive Award, including a determination to make no
Award whatsoever. The Committee shall specify the circumstances in
which an Annual Incentive Award shall be paid or forfeited in the
event of termination of employment by the Participant prior to the end
of a fiscal year or settlement of such Annual Incentive Award.
(d) WRITTEN DETERMINATIONS. All determinations by the Committee as to
the establishment of performance goals, the amount of any Performance Award pool
or potential individual Performance Awards and as to the achievement of
performance goals relating to Performance Awards under Section 8(b), and the
amount of any Annual Incentive Award pool or potential individual Annual
Incentive Awards and the amount of final Annual Incentive Awards under Section
8(c), shall be made in writing in the case of any Award intended to qualify
under Code Section 162(m). The Committee may not delegate any responsibility
relating to such Performance Awards or Annual Incentive Awards if and to the
extent required to comply with Code Section 162(m).
(e) STATUS OF SECTION 8(b) AND SECTION 8(c) AWARDS UNDER CODE SECTION
162(M). It is the intent of the Company that Performance Awards and Annual
Incentive Awards under Section 8(b) and 8(c) hereof granted to persons who are
designated by the Committee as likely to be Covered Employees within the meaning
of Code Section 162(m) and regulations thereunder shall, if so designated by the
Committee, constitute "qualified performance-based compensation" within the
meaning of Code Section 162(m) and regulations thereunder. Accordingly, the
terms of Sections 8(b), (c), (d) and (e), including the definitions of Covered
Employee and other terms used therein, shall be interpreted in a manner
consistent with Code Section 162(m) and regulations thereunder. The foregoing
notwithstanding, because the Committee cannot determine with certainty whether a
given Participant will be a Covered Employee with respect to a fiscal year that
has not yet been completed, the term Covered Employee as used herein shall mean
only a person designated by the Committee, at the time of grant of Performance
B-12
Awards or an Annual Incentive Award, as likely to be a Covered Employee with
respect to that fiscal year. If any provision of the Plan or any agreement
relating to such Performance Awards or Annual Incentive Awards does not comply
or is inconsistent with the requirements of Code Section 162(m) or regulations
thereunder, such provision shall be construed or deemed amended to the extent
necessary to conform to such requirements.
9. CHANGE IN CONTROL.
(a) EFFECT OF "CHANGE IN CONTROL." If and to the extent provided in
the Award, in the event of a "Change in Control," as defined in Section 9(b):
(i) The Committee may, within its discretion, accelerate the
vesting and exercisability of any Award carrying a right to exercise
that was not previously vested and exercisable as of the time of the
Change in Control, subject to applicable restrictions set forth in
Section 10(a) hereof;
(ii) The Committee may, within its discretion, accelerate the
exercisability of any limited SARs (and other SARs if so provided by
their terms) and provide for the settlement of such SARs for amounts,
in cash, determined by reference to the Change in Control Price;
(iii) The Committee may, within its discretion, lapse the
restrictions, deferral of settlement, and forfeiture conditions
applicable to any other Award granted under the Plan and such Awards
may be deemed fully vested as of the time of the Change in Control,
except to the extent of any waiver by the Participant and subject to
applicable restrictions set forth in Section 10(a) hereof; and
(iv) With respect to any such outstanding Award subject to
achievement of performance goals and conditions under the Plan, the
Committee may, within its discretion, deem such performance goals and
other conditions as having been met as of the date of the Change in
Control.
(b) DEFINITION OF "CHANGE IN CONTROL." A "Change in Control" shall be
deemed to have occurred upon:
(i) Approval by the shareholders of the Company of a
reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect to
which persons who were the shareholders of the Company immediately
prior to such reorganization, merger or consolidation or other
transaction do not, immediately thereafter, own more than 50% of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's then
outstanding voting securities, or a liquidation or dissolution of the
Company or the sale of all or substantially all of the assets of the
Company (unless such reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or sale (any such
event being referred to as a "Corporate Transaction") is subsequently
abandoned);
(ii) Individuals who, as of the date on which the Award is
granted, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any person becoming a director subsequent to the date on which the
Award was granted whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest
relating to the election of the Directors of the Company, as such
terms are used in Rule 14a-1 of Regulation 14A promulgated under the
Securities Exchange Act) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board;
or
B-13
(iii) the acquisition (other than from the Company) by any
person, entity or "group", within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act, of more than 50% of either
the then outstanding shares of the Company's Common Stock or the
combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of directors
(hereinafter referred to as the ownership of a "Controlling Interest")
excluding, for this purpose, any acquisitions by (1) the Company or
its Subsidiaries, (2) any person, entity or "group" that as of the
date on which the Award is granted owns beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Securities Exchange
Act) of a Controlling Interest or (3) any employee benefit plan of the
Company or its Subsidiaries.
(c) DEFINITION OF "CHANGE IN CONTROL PRICE." The "Change in Control
Price" means an amount in cash equal to the higher of (i) the amount of cash and
fair market value of property that is the highest price per share paid
(including extraordinary dividends) in any Corporate Transaction triggering the
Change in Control under Section 9(b)(i) hereof or any liquidation of shares
following a sale of substantially all of the assets of the Company, or (ii) the
highest Fair Market Value per share at any time during the 60-day period
preceding and the 60-day period following the Change in Control.
10. GENERAL PROVISIONS.
(a) COMPLIANCE WITH LEGAL AND OTHER REQUIREMENTS. The Company may, to
the extent deemed necessary or advisable by the Committee or the Board, postpone
the issuance or delivery of Stock or payment of other benefits under any Award
until completion of such registration or qualification of such Stock or other
required action under any federal or state law, rule or regulation, listing or
other required action with respect to any stock exchange or automated quotation
system upon which the Stock or other Company securities are listed or quoted, or
compliance with any other obligation of the Company, as the Committee or the
Board, may consider appropriate, and may require any Participant to make such
representations, furnish such information and comply with or be subject to such
other conditions as it may consider appropriate in connection with the issuance
or delivery of Stock or payment of other benefits in compliance with applicable
laws, rules, and regulations, listing requirements, or other obligations. The
foregoing notwithstanding, in connection with a Change in Control, the Company
shall take or cause to be taken no action, and shall undertake or permit to
arise no legal or contractual obligation, that results or would result in any
postponement of the issuance or delivery of Stock or payment of benefits under
any Award or the imposition of any other conditions on such issuance, delivery
or payment, to the extent that such postponement or other condition would
represent a greater burden on a Participant than existed on the 90th day
preceding the Change in Control.
(b) LIMITS ON TRANSFERABILITY; BENEFICIARIES. No Award or other right
or interest of a Participant under the Plan, including any Award or right which
constitutes a derivative security as generally defined in Rule 16al(c) under the
Exchange Act, shall be pledged, hypothecated or otherwise encumbered or subject
to any lien, obligation or liability of such Participant to any party (other
than the Company or a Subsidiary), or assigned or transferred by such
Participant otherwise than by will or the laws of descent and distribution or to
a Beneficiary upon the death of a Participant, and such Awards or rights that
may be exercisable shall be exercised during the lifetime of the Participant
only by the Participant or his or her guardian or legal representative, except
that Awards and other rights (other than ISOs and SARs in tandem therewith) may
be transferred to one or more Beneficiaries or other transferees during the
lifetime of the Participant, and may be exercised by such transferees in
accordance with the terms of such Award, but only if and to the extent such
transfers and exercises are permitted by the Committee or the Board pursuant to
the express terms of an Award agreement (subject to any terms and conditions
which the Committee or the Board may impose thereon, and further subject to any
prohibitions or restrictions on such transfers pursuant to Rule 16b-3). A
Beneficiary, transferee, or other person claiming any rights under the Plan from
or through any Participant shall be subject to all terms and conditions of the
Plan and any Award agreement applicable to such Participant, except as otherwise
determined by the Committee or the Board, and to any additional terms and
conditions deemed necessary or appropriate by the Committee or the Board.
B-14
(c) ADJUSTMENTS.
(i) ADJUSTMENTS TO AWARDS. In the event that any dividend or
other distribution (whether in the form of cash, Stock, or other
property), recapitalization, forward or reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, share
exchange, liquidation, dissolution or other similar corporate
transaction or event affects the Stock and/or such other securities of
the Company or any other issuer such that a substitution, exchange, or
adjustment is determined by the Committee or the Board to be
appropriate, then the Committee or the Board shall, in such manner as
it may deem equitable, substitute, exchange or adjust any or all of
(A) the number and kind of shares of Stock which may be delivered in
connection with Awards granted thereafter, (B) the number and kind of
shares of Stock by which annual per-person Award limitations are
measured under Section 5 hereof, (C) the number and kind of shares of
Stock subject to or deliverable in respect of outstanding Awards, (D)
the exercise price, grant price or purchase price relating to any
Award and/or make provision for payment of cash or other property in
respect of any outstanding Award, and (E) any other aspect of any
Award that the Committee or Board determines to be appropriate.
(ii) ADJUSTMENTS IN CASE OF CERTAIN CORPORATE TRANSACTIONS. In
the event of a proposed sale of all or substantially all of the
Company's assets or any reorganization, merger, consolidation, or
other form of corporate transaction in which the Company does not
survive, or in which the shares of Stock are exchanged for or
converted into securities issued by another entity, then the successor
or acquiring entity or an affiliate thereof may, with the consent of
the Committee or the Board, assume each outstanding Option or
substitute an equivalent option or right. If the successor or
acquiring entity or an affiliate thereof, does not cause such an
assumption or substitution, then each Option shall terminate upon the
consummation of sale, merger, consolidation, or other corporate
transaction. The Committee or the Board shall give written notice of
any proposed transaction referred to in this Section 10(c)(ii) a
reasonable period of time prior to the closing date for such
transaction (which notice may be given either before or after the
approval of such transaction), in order that Optionees may have a
reasonable period of time prior to the closing date of such
transaction within which to exercise any Options that are then
exercisable (including any Options that may become exercisable upon
the closing date of such transaction). An Optionee may condition his
exercise of any Option upon the consummation of the transaction.
(iii) OTHER ADJUSTMENTS. In addition, the Committee (and the
Board if and only to the extent such authority is not required to be
exercised by the Committee to comply with Code Section 162(m)) is
authorized to make adjustments in the terms and conditions of, and the
criteria included in, Awards (including Performance Awards and
performance goals, and Annual Incentive Awards and any Annual
Incentive Award pool or performance goals relating thereto) in
recognition of unusual or nonrecurring events (including, without
limitation, acquisitions and dispositions of businesses and assets)
affecting the Company, any Related Entity or any business unit, or the
financial statements of the Company or any Related Entity, or in
response to changes in applicable laws, regulations, accounting
principles, tax rates and regulations or business conditions or in
view of the Committee's assessment of the business strategy of the
Company, any Related Entity or business unit thereof, performance of
comparable organizations, economic and business conditions, personal
performance of a Participant, and any other circumstances deemed
relevant; provided that no such adjustment shall be authorized or made
if and to the extent that such authority or the making of such
adjustment would cause Options, Stock Appreciation Rights, Performance
Awards granted under Section 8(b) hereof or Annual Incentive Awards
granted under Section 8(c) hereof to Participants designated by the
Committee as Covered Employees and intended to qualify as
"performance-based compensation" under Code Section 162(m) and the
regulations thereunder to otherwise fail to qualify as
"performance-based compensation" under Code Section 162(m) and
regulations thereunder.
B-15
(d) TAXES. The Company and any Subsidiary is authorized to withhold
from any Award granted, any payment relating to an Award under the Plan,
including from a distribution of Stock, or any payroll or other payment to a
Participant, amounts of withholding and other taxes due or potentially payable
in connection with any transaction involving an Award, and to take such other
action as the Committee or the Board may deem advisable to enable the Company
and Participants to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Award. This authority shall include
authority to withhold or receive Stock or other property and to make cash
payments in respect thereof in satisfaction of a Participant's tax obligations,
either on a mandatory or elective basis in the discretion of the Committee.
(e) CHANGES TO THE PLAN AND AWARDS. The Board may amend, alter,
suspend, discontinue or terminate the Plan, or the Committee's authority to
grant Awards under the Plan, without the consent of stockholders or
Participants, except that any amendment or alteration to the Plan shall be
subject to the approval of the Company's stockholders not later than the annual
meeting next following such Board action if such stockholder approval is
required by any federal or state law or regulation (including, without
limitation, Rule 16b-3 or Code Section 162(m)) or the rules of any stock
exchange or automated quotation system on which the Stock may then be listed or
quoted, and the Board may otherwise, in its discretion, determine to submit
other such changes to the Plan to stockholders for approval; provided that,
without the consent of an affected Participant, no such Board action may
materially and adversely affect the rights of such Participant under any
previously granted and outstanding Award. The Committee or the Board may waive
any conditions or rights under, or amend, alter, suspend, discontinue or
terminate any Award theretofore granted and any Award agreement relating
thereto, except as otherwise provided in the Plan; provided that, without the
consent of an affected Participant, no such Committee or the Board action may
materially and adversely affect the rights of such Participant under such Award.
Notwithstanding anything in the Plan to the contrary, if any right under this
Plan would cause a transaction to be ineligible for pooling of interest
accounting that would, but for the right hereunder, be eligible for such
accounting treatment, the Committee or the Board may modify or adjust the right
so that pooling of interest accounting shall be available, including the
substitution of Stock having a Fair Market Value equal to the cash otherwise
payable hereunder for the right which caused the transaction to be ineligible
for pooling of interest accounting.
(f) LIMITATION ON RIGHTS CONFERRED UNDER PLAN. Neither the Plan nor
any action taken hereunder shall be construed as (i) giving any Eligible Person
or Participant the right to continue as an Eligible Person or Participant or in
the employ of the Company or a Subsidiary; (ii) interfering in any way with the
right of the Company or a Subsidiary to terminate any Eligible Person's or
Participant's employment at any time, (iii) giving an Eligible Person or
Participant any claim to be granted any Award under the Plan or to be treated
uniformly with other Participants and employees, or (iv) conferring on a
Participant any of the rights of a stockholder of the Company unless and until
the Participant is duly issued or transferred shares of Stock in accordance with
the terms of an Award.
(g) UNFUNDED STATUS OF AWARDS; CREATION OF TRUSTS. 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
obligation to deliver Stock pursuant to an Award, nothing contained in the Plan
or any Award shall give any such Participant any rights that are greater than
those of a general creditor of the Company; provided that the Committee may
authorize the creation of trusts and deposit therein cash, Stock, other Awards
or other property, or make other arrangements to meet the Company's obligations
under the Plan. Such trusts or other arrangements shall be consistent with the
"unfunded" status of the Plan unless the Committee otherwise determines with the
consent of each affected Participant. The trustee of such trusts may be
authorized to dispose of trust assets and reinvest the proceeds in alternative
investments, subject to such terms and conditions as the Committee or the Board
may specify and in accordance with applicable law.
(h) NONEXCLUSIVITY OF THE PLAN. Neither the adoption of the Plan by
the Board nor its submission to the stockholders of the Company for approval
shall be construed as creating any limitations on the power of the Board or a
committee thereof to adopt such other incentive arrangements as it may deem
desirable including incentive arrangements and awards which do not qualify under
Code Section 162(m).
B-16
(i) PAYMENTS IN THE EVENT OF FORFEITURES; FRACTIONAL SHARES. Unless
otherwise determined by the Committee or the Board, in the event of a forfeiture
of an Award with respect to which a Participant paid cash or other
consideration, the Participant shall be repaid the amount of such cash or other
consideration. No fractional shares of Stock shall be issued or delivered
pursuant to the Plan or any Award. The Committee or the Board shall determine
whether cash, other Awards or other property shall be issued or paid in lieu of
such fractional shares or whether such fractional shares or any rights thereto
shall be forfeited or otherwise eliminated.
(j) GOVERNING LAW. The validity, construction and effect of the Plan,
any rules and regulations under the Plan, and any Award agreement shall be
determined in accordance with the laws of the State of Arizona without giving
effect to principles of conflicts of laws, and applicable federal law.
(k) PLAN EFFECTIVE DATE AND STOCKHOLDER APPROVAL; TERMINATION OF
PLAN. The Plan shall become effective on the Effective Date, subject to
subsequent approval within 12 months of its adoption by the Board by
stockholders of the Company eligible to vote in the election of directors, by a
vote sufficient to meet the requirements of Code Sections 162(m) (if applicable)
and 422, Rule 16b-3 under the Exchange Act (if applicable), applicable NASDAQ
requirements, and other laws, regulations, and obligations of the Company
applicable to the Plan. Awards may be granted subject to stockholder approval,
but may not be exercised or otherwise settled in the event stockholder approval
is not obtained. The Plan shall terminate at such time as no shares of Common
Stock remain available for issuance under the Plan and the Company has no
further rights or obligations with respect to outstanding Awards under the Plan.
B-17
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
QUOTEMEDIA.COM, INC.
2003 ANNUAL MEETING OF STOCKHOLDERS
The undersigned stockholder of QUOTEMEDIA.COM, INC., a Nevada corporation
(the "Company"), hereby acknowledges receipt of the Notice of Annual Meeting of
Stockholders and Proxy Statement of the Company, each dated January 6, 2003, and
hereby appoints R. Keith Guelpa and Keith J. Randall, and each of them, proxies
and attorneys-in-fact, with full power to each of substitution, on behalf and in
the name of the undersigned, to represent the undersigned at the 2003 Annual
Meeting of Stockholders of QUOTEMEDIA.COM, INC., to be held on Friday, February
14, 2003 , at 10:00 a.m., local time, at the law offices of Greenberg Traurig,
LLP, 2375 East Camelback Road, Suite 700, Phoenix, Arizona 85016, and at any
adjournment or adjournments thereof, and to vote all shares of common stock
which the undersigned would be entitled to vote if then and there personally
present on the matters set forth on the reverse side of this proxy card.
(CONTINUED AND TO BE SIGNED ON THE OTHER SIDE.)
PLEASE MARK YOUR VOTES AS IN THIS EXAMPLE.
WITHHOLD
FOR all nominees AUTHORITY
listed at to vote for
right (except all nominees
as indicated) listed at right NOMINEES:
1. ELECTION [ ] [ ] Robert J. Thompson
OF David M. Shworan
DIRECTORS: R. Keith Guelpa
If you wish to withhold authority to vote for any individual nominee, strike a
line through that nominee's name in the list at right.
2. Proposal to approve the amendment to the Company's Restated Articles of
Incorporation to increase the number of authorized shares of common stock
from 50,000,000 to 100,000,000 shares.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
3. Proposal to approve the amendment to the Company's Restated Articles of
Incorporation to change the name of the Company to Quotemedia, Inc.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
4. Proposal to approve the Company's 2003 Equity Incentive Compensation Plan.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
and upon such matters which may properly come before the meeting or any
adjournment or adjournments thereof.
THIS PROXY WILL BE VOTED AS DIRECTED OR, IF NO CONTRARY DIRECTION IS INDICATED,
WILL BE VOTED FOR THE ELECTION OF DIRECTORS; FOR APPROVAL OF THE AMENDMENT TO
THE COMPANY'S RESTATED ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF
SHARES OF COMMON STOCK AUTHORIZED FOR ISSUANCE; FOR APPROVAL OF THE AMENDMENT TO
THE COMPANY'S RESTATED ARTICLES OF INCORPORATION TO CHANGE THE COMPANY'S NAME;
FOR APPROVAL OF THE 2003 EQUITY INCENTIVE COMPENSATION PLAN; AND AS SAID PROXIES
DEEM ADVISABLE ON SUCH OTHER MATTERS AS MAY COME BEFORE THE MEETING.
A majority of such attorneys-in-fact or substitutes as shall be present and
shall act at said meeting or any adjournment or adjournments thereof (or if only
one shall be present and act, then that one) shall have and may exercise all of
the powers of said attorneys-in-fact hereunder.
SIGN, DATE, AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE.
Signature _____________________ _____________________ Dated: _________, 2003.
Signature if
held jointly
NOTE: (THIS PROXY SHOULD BE DATED, SIGNED BY THE SHAREHOLDER(S) EXACTLY AS
HIS OR HER NAME APPEARS HEREON, AND RETURNED PROMPTLY IN THE ENCLOSED
ENVELOPE. PERSONS SIGNING IN A FIDUCIARY CAPACITY SHOULD SO INDICATE.
IF SHARES ARE HELD BY JOINT TENANTS OR AS COMMUNITY PROPERTY, BOTH
SHAREHOLDERS SHOULD SIGN.)