Exhibit 4.3
THESTREET.COM, INC.
1998 STOCK INCENTIVE PLAN
AS AMENDED AND RESTATED AS OF NOVEMBER 1, 1999
SECTION 1 Purposes
The purpose of TheStreet.com, Inc. 1998 Stock Incentive Plan,
as amended and restated as of November 1, 1999 (the "Plan") is to enable
TheStreet.com, Inc. (the "Company") and its Related Companies (as defined below)
to attract, retain and reward employees, directors and consultants and
strengthen the existing mutuality of interests between such persons and the
Company's stockholders by offering such persons an equity interest in the
Company. For purposes of the Plan, a "Related Company" means any corporation,
partnership, joint venture or other entity in which the Company owns, directly
or indirectly, at least a 20% beneficial ownership interest.
SECTION 2 Types of Awards
Awards under the Plan may be in the form of (i) Stock Options;
(ii) Restricted Stock; and/or (iii) Tax Offset Payments.
SECTION 3 Administration
3.1 The Plan shall be administered by the Compensation
Committee of the Company's Board of Directors (the "Board") or such other
committee of directors as the Board shall designate (the "Committee"), which
shall consist of not less than two directors. The members of the Committee shall
serve at the pleasure of the Board.
3.2 The Committee shall have the following authority with
respect to awards under the Plan: to grant awards; to adopt, alter and repeal
such administrative rules, guidelines and practices governing the Plan as it
shall deem advisable; to interpret the terms and provisions of the Plan and any
award granted under the Plan; and to otherwise supervise the administration of
the Plan. In particular, and without limiting its authority and powers, the
Committee shall have the authority:
(1) to determine whether and to what extent any award
or combination of awards will be granted hereunder;
(2) to select the employees, directors or consultants
to whom awards will be granted;
(3) to determine the number of shares of the common
stock of the Company (the "Stock") to be covered by each award granted
hereunder subject to the limitations contained herein;
(4) to determine the terms and conditions of any
award granted hereunder, including, but not limited to, any vesting or
other restrictions based on such performance objectives (the
"Performance Objectives") and such other factors as the Committee may
establish, and to determine whether the Performance Objectives and
other terms and conditions of the award are satisfied;
(5) to determine the treatment of awards upon an
award holder's retirement, disability, death, termination for cause or
other termination of employment or service;
(6) to determine that amounts equal to the amount of
any dividends declared with respect to the number of shares covered by
an award (i) will be paid to the employee currently or (ii) will be
deferred and deemed to be reinvested or (iii) will otherwise be
credited to the employee, or that the employee has no rights with
respect to such dividends;
(7) to amend the terms of any award, prospectively or
retroactively; provided, however, that no amendment shall impair the
rights of the award holder without his or her written consent; and
(8) to substitute new Stock Options for previously
granted Stock Options, or for options granted under other plans or
agreements, in each case including previously granted options having
higher option prices.
3.3 The Committee shall have the right to designate awards as
"Performance Awards." The grant or vesting of a Performance Award shall be
subject to the achievement of Performance Objectives established by the
Committee based on one or more of the following criteria, in each case applied
to the Company on a consolidated basis and/or to a business unit and which the
Committee may use
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as an absolute measure, as a measure of improvement relative to prior
performance, or as a measure of comparable performance relative to a peer group
of companies: sales, operating profits, operating profits before interest
expense and taxes, net earnings, earnings per share, return on equity, return on
assets, return on invested capital, total shareholder return, cash flow, debt to
equity ratio, market share, stock price, economic value added, and market value
added.
3.4 All determinations made by the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons, including the
Company and Plan participants.
SECTION 4 Stock Subject to Plan
4.1 The total number of shares of Stock which may be issued
under the Plan shall be 4,400,000. Such shares may consist of authorized but
unissued shares or treasury shares.
4.2 To the extent a Stock Option terminates without having
been exercised, or shares awarded are forfeited, the shares subject to such
award shall again be available for distribution in connection with future awards
under the Plan. Shares of Stock equal in number to the shares surrendered in
payment of the option price, and shares of Stock which are withheld in order to
satisfy federal, state or local tax liability, shall not count against the above
limit, and shall again be available for grants under the Plan.
4.3 No employee shall be granted Stock Options, Restricted
Stock, or any combination thereof with respect to more than 1,000,000 shares of
Stock in any fiscal year (subject to adjustment as provided in Section 4.4). No
employee shall be granted a Tax Offset Payment in any fiscal year with respect
to more than the number of shares of Stock covered by awards granted to such
employee in such fiscal year.
4.4 In the event of any merger, reorganization, consolidation,
sale of substantially all assets, recapitalization, Stock dividend, Stock split,
spin-off, split-up, split-off, distribution of assets or other change in
corporate structure affecting the Stock, a substitution or adjustment, as may be
determined to be appropriate by the Committee or the Board in its sole
discretion, shall be made in the aggregate number of shares reserved for
issuance under the Plan, the number of shares as to which awards may be granted
to any individual in any fiscal year, the number of shares subject to
outstanding awards and the amounts to be paid by award holders or the
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Company, as the case may be, with respect to outstanding awards; provided,
however, that no such adjustment shall increase the aggregate value of any
outstanding award.
SECTION 5 Eligibility
Employees, directors, and consultants of the Company or a
Related Company are eligible to be granted awards under the Plan. Only employees
are eligible to be granted Incentive Stock Options. The participants under the
Plan shall be selected from time to time by the Committee, in its sole
discretion, from among those eligible.
SECTION 6 Stock Options
6.1 The Stock Options awarded to employees under the Plan may
be of two types: (i) Incentive Stock Options within the meaning of Section 422
of the Code or any successor provision thereto; and (ii) Non-Qualified Stock
Options. To the extent that any Stock Option does not qualify as an Incentive
Stock Option, it shall constitute a Non-Qualified Stock Option.
6.2 Subject to the following provisions, Stock Options awarded
under the Plan shall be in such form and shall have such terms and conditions as
the Committee may determine:
(1) OPTION PRICE. The option price per share of Stock
purchasable under a Stock Option shall be determined by the Committee,
and may be less than the fair market value of the Stock on the date of
the award of the Stock Option. For purposes of the Plan, "fair market
value" shall mean the closing price of a share of Stock on the NASDAQ
National Market on the trading day immediately preceding the date of
grant.
(2) OPTION TERM. The term of each Stock Option shall
be fixed by the Committee.
(3) EXERCISABILITY. Stock Options shall be
exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee. The Committee may
waive such exercise provisions or accelerate the exercisability of the
Stock Option at any time in whole or in part.
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(4) METHOD OF EXERCISE. Stock Options may be
exercised in whole or in part at any time during the option period by
giving written notice of exercise, in such manner as may be determined
by the Company, specifying the number of shares to be purchased,
accompanied by payment of the purchase price. Payment of the purchase
price shall be made in such manner as the Committee may provide in the
award, which may include cash (including cash equivalents), delivery of
shares of Stock already owned by the optionee or subject to awards
hereunder, "cashless exercise", any other manner permitted by law
determined by the Committee, or any combination of the foregoing. If
the Committee determines that a Stock Option may be exercised using
shares of Restricted Stock, then unless the Committee provides
otherwise, the shares received upon the exercise of a Stock Option
which are paid for using Restricted Stock shall be restricted in
accordance with the original terms of the Restricted Stock award.
(5) NO STOCKHOLDER RIGHTS. An optionee shall have
neither rights to dividends or other rights of a stockholder with
respect to shares subject to a Stock Option until the optionee has
given written notice of exercise and has paid for such shares.
(6) SURRENDER RIGHTS. The Committee may provide that
options may be surrendered for cash upon any terms and conditions set
by the Committee.
(7) NON-TRANSFERABILITY. Unless otherwise provided by
the Committee, (i) Stock Options shall not be transferable by the
optionee other than by will or by the laws of descent and distribution,
and (ii) during the optionee's lifetime, all Stock Options shall be
exercisable only by the optionee or by his or her guardian or legal
representative.
(8) TERMINATION OF EMPLOYMENT. Following the
termination of an optionee's employment with the Company or a Related
Company, the Stock Option shall be exercisable to the extent determined
by the Committee. The Committee may provide different post-termination
exercise provisions with respect to termination of employment for
different reasons. The Committee may provide that, notwithstanding the
option term fixed pursuant to Section 6.2(b), a Stock Option which is
outstanding on the date of an optionee's death shall remain outstanding
for an additional period after the date of such death.
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6.3 Notwithstanding the provisions of Section 6.2, no
Incentive Stock Option shall (i) have an option price which is less than 100% of
the fair market value of the Stock on the date of the award of the Incentive
Stock Option, (ii) be exercisable more than ten years after the date such
Incentive Stock Option is awarded, or (iii) be awarded more than ten years after
May 6, 1998, the original effective date of the Plan. No Incentive Stock Option
granted to an employee who owns more than 10% of the total combined voting power
of all classes of stock of the Company or any of its parent or subsidiary
corporations, as defined in Section 424 of the Code, shall (A) have an option
price which is less than 110% of the fair market value of the Stock on the date
of award of the Incentive Stock Option or (B) be exercisable more than five
years after the date such Incentive Stock Option is awarded.
SECTION 7 Restricted Stock
Subject to the following provisions, all awards of Restricted
Stock to employees shall be in such form and shall have such terms and
conditions as the Committee may determine:
(1) The Restricted Stock award shall specify the
number of shares of Restricted Stock to be awarded, the price, if any,
to be paid by the recipient of the Restricted Stock and the date or
dates on which, or the conditions upon the satisfaction of which, the
Restricted Stock will vest. The grant and/or the vesting of Restricted
Stock may be conditioned upon the completion of a specified period of
service with the Company or a Related Company, upon the attainment of
specified Performance Objectives or upon such other criteria as the
Committee may determine.
(2) Stock certificates representing the Restricted
Stock awarded to an employee shall be registered in the employee's
name, but the Committee may direct that such certificates be held by
the Company or its designee on behalf of the employee. Except as may be
permitted by the Committee, no share of Restricted Stock may be sold,
transferred, assigned, pledged or otherwise encumbered by the employee
until such share has vested in accordance with the terms of the
Restricted Stock award. At the time Restricted Stock vests, a
certificate for such vested shares shall be delivered to the employee
(or his or her designated beneficiary in the event of death), free of
all restrictions.
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(3) The Committee may provide that the employee shall
have the right to vote or receive dividends on Restricted Stock. Unless
the Committee provides otherwise, Stock received as a dividend on, or
in connection with a stock split of, Restricted Stock shall be subject
to the same restrictions as the Restricted Stock.
(4) Except as may be provided by the Committee, in
the event of an employee's termination of employment before all of his
or her Restricted Stock has vested, or in the event any conditions to
the vesting of Restricted Stock have not been satisfied prior to any
deadline for the satisfaction of such conditions set forth in the
award, the shares of Restricted Stock which have not vested shall be
forfeited, and the Committee may provide that (i) any purchase price
paid by the employee shall be returned to the employee or (ii) a cash
payment equal to the Restricted Stock's fair market value on the date
of forfeiture, if lower, shall be paid to the employee.
(5) The Committee may waive, in whole or in part, any
or all of the conditions to receipt of, or restrictions with respect
to, any or all of the employee's Restricted Stock.
SECTION 8 Tax Offset Payments
The Committee may provide for a Tax Offset Payment by the
Company to an employee with respect to one or more awards granted under the
Plan. The Tax Offset Payment shall be in an amount specified by the Committee,
which shall not exceed the amount necessary to pay the federal, state, local and
other taxes payable with respect to the applicable award and the receipt of the
Tax Offset Payment, assuming that the employee is taxed at the maximum tax rate
applicable to such income. The Tax Offset Payment shall be paid solely in cash.
SECTION 9 Tax Withholding
Each award holder shall, no later than the date as of which
the value of an award first becomes includible in such person's gross income for
applicable tax purposes, pay, pursuant to such arrangements as the Company may
establish from time to time, any federal, state, local or other taxes of any
kind required by law to be withheld with respect to the award. The obligations
of the Company under the Plan shall be conditional on such payment, and the
Company (and, where applicable, any Related Company), shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment of
any kind otherwise due to the employee.
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SECTION 10 Amendments and Termination
The Plan is of unlimited duration. The Board may discontinue
the Plan at any time and may amend it from time to time. No amendment or
discontinuation of the Plan shall adversely affect any award previously granted
without the award holder's written consent. Amendments may be made without
stockholder approval except as required to satisfy regulatory requirements.
SECTION 11 Change of Control
11.1 In the event of a Change of Control, if so determined by
the Committee and specifically documented in either a special form of agreement
at the time of grant or an amendment to an existing agreement, in each case on
an individual-by-individual basis:
(1) all or a portion (as determined by the Committee)
of outstanding Stock Options awarded to such individual under the Plan
shall become fully exercisable and vested; and
(2) the restrictions applicable to all or a portion
(as determined by the Committee) of any outstanding Restricted Stock
awards under the Plan held by such individual shall lapse and such
shares shall be deemed fully vested.
11.2 A "Change of Control" means the happening of any
of the following:
(1) the acquisition by any person or group deemed a
person under Sections 3(a)(9) and 13(d)(3) of the Securities Exchange
Act of 1934 (the "Exchange Act") (other than the Company and its
subsidiaries as determined immediately prior to that date) of
beneficial ownership, directly or indirectly (with beneficial ownership
determined as provided in Rule 13d-3, or any successor rule, under the
Exchange Act), of a majority of the total combined voting power of all
classes of stock of the Company having the right under ordinary
circumstances to vote at an election of the Board of Directors of the
Company, if such person or group deemed a person prior to such
acquisition was not a beneficial owner of at least five percent (5%) of
such total combined voting power of the Company;
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(2) the election to the Board of Directors of the
Company of members as a result of which a majority of the Board of
Directors shall consist of persons who are not members of the Board of
Directors as of the date of grant;
(3) the date of approval by the stockholders of the
Company of an agreement providing for the merger or consolidation of
the Company with another corporation or other entity where (x)
stockholders of the Company immediately prior to such merger or
consolidation would not beneficially own following such merger or
consolidation shares entitling such stockholders to a majority of all
votes (without consolidation of the rights of any class of stock to
elect directors by a separate class vote) to which all stockholders of
the surviving corporation would be entitled in the election of
directors, or (y) where the members of the Board of Directors,
immediately prior to such merger or consolidation, would not,
immediately after such merger or consolidation, constitute a majority
of the board of directors of the surviving corporation; or
(4) the sale of all or substantially all of the
assets of the Company.
SECTION 12 General Provisions
12.1 If at any time the Committee determines that the delivery
of Common Stock under the Plan is or may be unlawful under the laws of any
applicable jurisdiction, the right to exercise any Stock Option or receive any
Restricted Stock shall be suspended until the Committee determines that such
delivery is lawful. The Company shall have no obligation to effect any
registration of qualification of the Common Stock under federal or state laws.
12.2 Any person exercising a Stock Option or receiving
Restricted Stock shall make such representations (including representations to
the effect that such person will not dispose of the Common Stock so acquired in
violation of federal and state securities laws) and furnish such information as
may, in the opinion of counsel for the Company, be appropriate to permit the
Company to issue the Common Stock in compliance with applicable federal and
state securities laws. The Committee may refuse to permit the exercise of such
Stock Option or delivery of such Restricted Stock until such representations and
information have been provided.
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12.3 The Company may place an appropriate legend evidencing
any transfer restrictions on all shares of Common Stock issued under the Plan
and may issue stop transfer instructions in respect thereof.
12.4 Nothing set forth in this Plan shall prevent the Board
from adopting other or additional compensation arrangements. Neither the
adoption of the Plan nor any award hereunder shall confer upon any employee of
the Company, or of a Related Company, any right to continued employment or
service as a director or consultant.
12.5 Determinations by the Committee under the Plan relating
to the form, amount, and terms and conditions of awards need not be uniform, and
may be made selectively among persons who receive or are eligible to receive
awards under the Plan, whether or not such persons are similarly situated.
12.6 No member of the Board or the Committee, nor any officer
or employee of the Company acting on behalf of the Board or the Committee, shall
be personally liable for any action, determination or interpretation taken or
made with respect to the Plan, and all members of the Board or the Committee and
all officers or employees of the Company acting on their behalf shall, to the
extent permitted by law, be fully indemnified and protected by the Company in
respect of any such action, determination or interpretation.
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