EXHIBIT 4.5
THESTREET.COM, INC.
1998 STOCK INCENTIVE PLAN
AS AMENDED AND RESTATED AS OF JULY 12, 2000
SECTION 1 Purposes
The purpose of TheStreet.com, Inc. 1998 Stock Incentive Plan, as
amended and restated as of July 12, 2000 (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:
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(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 6,900,000. 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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