Exhibit 4.5
THEGLOBE.COM, INC.
2003 SALES REPRESENTATIVE
STOCK OPTION PLAN
1. Purpose.
The purpose of this Plan is to strengthen theglobe.com, inc., a
Delaware corporation (the "Company"), by providing an incentive to certain
Consultants who have been engaged by, or who are the principals of certain
Consultants who have been engaged by, the Company or voiceglo Holdings, Inc., a
Subsidiary of the Company ("voiceglo"), as sales representatives ("Sales
Representatives"), with a view toward encouraging them to devote their abilities
and industry to the success of the Company's business enterprise. It is intended
that this purpose be achieved by extending to certain Sales Representatives
(including future Sales Representatives) of voiceglo an added long-term
incentive for high levels of performance and extraordinary efforts through the
grant of Nonqualified Stock Options (as such term is defined below).
2. Definitions.
For purposes of the Plan:
2.1 "Board" means the Board of Directors of the Company.
2.2 "Cause" means any act or omission by the Optionee or the Optionee's
employees or agents that (i) is, in voiceglo's sole determination, fraudulent,
dishonest or disloyal to voiceglo or its affiliates or (ii) constitutes a
violation of law or a breach by the Optionee of the Optionee's obligations under
the Sales Representative Agreement.
2.3 "Change in Capitalization" means any increase or reduction in the
number of Shares, or any change (including, but not limited to, in the case of a
spin-off, dividend or other distribution in respect of Shares, a change in
value) in the Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company or another corporation or any
extraordinary distribution in respect of Shares, by reason of a
reclassification, recapitalization, merger, consolidation, reorganization,
spin-off, split-up, issuance of warrants or rights or debentures, stock
dividend, stock split or reverse stock split, cash dividend, property dividend,
combination or exchange of shares, repurchase of shares, change in corporate
structure or otherwise.
2.4 "Code" means the Internal Revenue Code of 1986, as amended.
2.5 "Committee" means a committee, as described in Section 3.1,
appointed by the Board from time to time to administer the Plan and to perform
the functions set forth herein.
2.6 "Company" means theglobe.com, inc., a Delaware corporation.
2.7 "Consultant" means any consultant or advisor that qualifies as an
"employee" within the meaning of the rules applicable to Form S-8, as in effect
from time to time, of the Securities Act.
2.8 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.9 "Fair Market Value" on any date means the closing sales prices of
the Shares on such date on the principal national securities exchange on which
such Shares are listed or admitted to trading, or, if such Shares are not so
listed or admitted to trading, the average of the per Share closing bid price
and per Share closing asked price on such date as quoted on the National
Association of Securities Dealers Automated Quotation System or such other
market in which such prices are regularly quoted (including without limitation
for this purpose, the Over the Counter Bulletin Board (OTCBB)), or, if there
have been no published bid or asked quotations with respect to Shares on such
date, the Fair Market Value shall be the value established by the Board in good
faith.
2.10 "Nonemployee Director" means a director of the Company who is a
"nonemployee director" within the meaning of Rule 16b-3 promulgated under the
Exchange Act.
2.11 "Nonqualified Stock Option" means an Option which is not an
incentive stock option as provided in Section 422 of the Code.
2.12 "Nonqualified Stock Option Agreement" means the written agreement
between the Company and an Optionee evidencing the grant of an Option and
setting forth the terms and conditions thereof.
2.13 "Option" means a Nonqualified Stock Option.
2.14 "Optionee" means a person to whom an Option has been granted under
the Plan.
2.15 "Plan" means this theglobe.com, inc. 2003 Sales Representative
Stock Option Plan, as amended from time to time.
2.16 "Pooling Transaction" means an acquisition of the Company in a
transaction which is intended to be treated as a "pooling of interests" under
generally accepted accounting principles.
2.17 "Securities Act" means the Securities Act of 1933, as amended.
2.18 "Sales Representative Agreement" means the written agreement
between the Company or voiceglo and an Optionee setting forth the terms and
conditions of an Optionee's status as a Sales Representative of the Company or
voiceglo.
2.19 "Shares" means the Common Stock, par value $0.001 per share, of
the Company.
2.20 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
2.21 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a transaction to which Section 424(a)of the
Code applies.
3. Administration.
3.1 The Plan shall be administered by the Committee, which shall hold
meetings at such times as may be necessary for the proper administration of the
Plan. The Committee shall keep minutes of its meetings. A quorum shall consist
of not fewer than two (2) members of the Committee and a majority of a quorum
may authorize any action. Any decision or determination reduced to writing and
signed by a majority of all of the members of the Committee shall be as fully
effective as if made by a majority vote at a meeting duly called and held. The
Committee shall consist of at least two (2) Directors and may consist of the
entire Board; provided, however, that if the Committee consists of less than the
entire Board, each member shall be a Nonemployee Director. For purposes of the
preceding sentence, if one or more members of the Committee is not a Nonemployee
Director but recuses himself or herself or abstains from voting with respect to
a particular action taken by the Committee, then the Committee, with respect to
that action, shall be deemed to consist only of the members of the Committee who
have not recused themselves or abstained from voting.
3.2 No member of the Committee shall be liable for any action, failure
to act, determination or interpretation made in good faith with respect to the
Plan or any transaction hereunder. The Company hereby agrees to indemnify each
member of the Committee for all costs and expenses and, to the extent permitted
by applicable law, any liability incurred in connection with defending against,
responding to, negotiating for the settlement of or otherwise dealing with any
claim, cause of action or dispute of any kind arising in connection with any
actions in administering the Plan or in authorizing or denying authorization to
any transaction hereunder.
3.3 Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time to:
(a) determine those eligible individuals to whom Options shall
be granted under the Plan and the number of such Options to be granted and to
prescribe the terms and conditions (which need not be identical) of each such
Option, including the exercise price per Share subject to each Option, and make
any amendment or modification to any Agreement consistent with the terms of the
Plan;
(b) to construe and interpret the Plan and any agreements
granted hereunder and to establish, amend and revoke rules and regulations for
the administration of the Plan, including, but not limited to, correcting any
defect or supplying any omission, or reconciling any inconsistency in the Plan
or in any agreement, in the manner and to the extent it shall deem necessary or
advisable, including so that the Plan complies with Rule 16b-3 under the
Exchange Act, the Code to the extent applicable and other applicable law, and
otherwise to make the Plan fully effective. All decisions and determinations by
the Committee in the exercise of this power shall be final, binding and
conclusive upon the Company, its Subsidiaries, the Optionees, and all other
persons having any interest therein;
3
(c) to exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan; and
(d) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of the
Company with respect to the Plan.
4. Stock Subject to the Plan; Grant Limitations.
4.1 The maximum number of Shares that may be made the subject of
Options granted under the Plan is 1,000,000. Upon a Change in Capitalization,
the maximum number of Shares referred to in this Section 4.1 shall be adjusted
in number and kind pursuant to Section 8. The Company shall reserve for the
purposes of the Plan, out of its authorized but unissued Shares or out of Shares
held in the Company's treasury, or partly out of each, such number of Shares as
shall be determined by the Board.
4.2 Upon the granting of an Option, the number of Shares available
under Section 4.1 for the granting of further Options shall be reduced by the
number of Shares in respect of which the Option is granted; provided, however,
that if any Option is exercised by tendering Shares, either actually or by
attestation, to the Company as full or partial payment of the exercise price,
the maximum number of Shares available under Section 4.1 shall be increased by
the number of Shares so tendered.
4.3 Whenever any outstanding Option or portion thereof expires, is
canceled, is settled in cash (including the settlement of tax withholding
obligations using Shares) or is otherwise terminated for any reason without
having been exercised or payment having been made in respect of the entire
Option, the Shares allocable to the expired, canceled, settled or otherwise
terminated portion of the Option may again be the subject of Options granted
hereunder.
5. Option Grants for Eligible Individuals.
5.1 Authority of Committee. Subject to the provisions of the Plan, the
Committee shall have full and final authority to confirm eligibility of those
individuals who will receive Options, and the terms and conditions of the grant
to such eligible individuals shall be set forth in a Nonqualified Stock Option
Agreement.
5.2 Exercise Price. The purchase price or the manner in which the
exercise price is to be determined for Shares under each Option shall be
determined by the Committee and set forth in the Nonqualified Stock Option
Agreement.
4
5.3 Maximum Duration. Options granted hereunder shall be for such term
as the Committee shall determine, provided that no Option shall be exercisable
after the expiration of ten (10) years from the date it is granted; provided,
however, that the Committee may provide that an Option may, upon the death of
the Optionee, be exercised for up to one (1) year following the date of the
Optionee's death even if such period extends beyond ten (10) years from the date
the Option is granted. The Committee may, subsequent to the granting of any
Option, extend the term thereof, but in no event shall the term as so extended
exceed the maximum term provided for in the preceding sentence.
5.4 Vesting. Subject to Section 6.4 and 6.5, each Option shall become
exercisable in such installments (which need not be equal) and at such times as
may be designated by the Committee and set forth in the Nonqualified Stock
Option Agreement. To the extent not exercised, installments shall accumulate and
be exercisable, in whole or in part, at any time after becoming exercisable, but
not later than the date the Option expires. The Committee may accelerate the
exercisability of any Option or portion thereof at any time.
5.5 Deferred Delivery of Option Shares. The Committee may, in its
discretion, permit Optionees to elect to defer the issuance of Shares upon the
exercise of one or more Nonqualified Stock Options granted pursuant to the Plan.
The terms and conditions of such deferral shall be determined at the time of the
grant of the Option or thereafter and shall be set forth in the Nonqualified
Stock Option Agreement evidencing the grant.
6. Terms and Conditions Applicable to All Options.
6.1 Non-Transferability. No Option shall be transferable by the
Optionee otherwise than by will or by the laws of descent and distribution or
pursuant to a domestic relations order (within the meaning of Rule 16a-12
promulgated under the Exchange Act), and an Option shall be exercisable during
the lifetime of such Optionee only by the Optionee or his or her guardian or
legal representative.
6.2 Method of Exercise. The exercise of an Option shall be made only by
a written notice delivered in person or by mail to the Secretary of the Company
at the Company's principal executive office, specifying the number of Shares to
be exercised and, to the extent applicable, accompanied by payment therefor and
otherwise in accordance with the Nonqualified Stock Option Agreement pursuant to
which the Option was granted. The exercise price for any Shares purchased
pursuant to the exercise of an Option shall be paid, as determined by the
Committee in its discretion, in either of the following forms (or any
combination thereof): (a) cash or (b) the transfer, either actually or by
attestation, to the Company of Shares upon such terms and conditions as
determined by the Committee. In addition, to the extent set forth in a
Non-Qualified Stock Option Agreement or otherwise agreed to in writing by the
Committee in any particular case, Options may be exercised through a registered
broker-dealer pursuant to such cashless exercise procedures which are, from time
to time, deemed acceptable by the Committee. Any Shares transferred to the
Company (or withheld upon exercise) as payment of the exercise price under an
Option shall be valued at their Fair Market Value on the day preceding the date
of exercise of such Option. If requested by the Committee, the Optionee shall
deliver the Agreement evidencing the Option to the Secretary of the Company who
shall endorse thereon a notation of such exercise and return such Agreement to
the Optionee. No fractional Shares (or cash in lieu thereof) shall be issued
upon exercise of an Option and the number of Shares that may be purchased upon
exercise shall be rounded to the nearest number of whole Shares.
5
6.3 Rights of Optionees. No Optionee shall be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (a) the Option
shall have been exercised pursuant to the terms thereof, (b) the Company shall
have issued and delivered Shares to the Optionee, and (c) the Optionee's name
shall have been entered as a stockholder of record on the books of the Company.
Thereupon, the Optionee shall have full voting, dividend and other ownership
rights with respect to such Shares, subject to such terms and conditions as may
be set forth in the applicable Agreement.
6.4 Effect of Certain Transactions.
(a) In the event of a merger or consolidation of the Company
with or into another entity, or the sale of all or substantially all of the
assets of the Company (each, an "Extraordinary Transaction"), each outstanding
Option shall be assumed, or an equivalent option shall be substituted, by the
Successor Corporation; provided, however, that, unless otherwise determined by
the Committee, such Options shall remain subject to all of the conditions and
restrictions which were applicable to such Options prior to such assumption or
substitution. In the event that the Successor Corporation refuses to or does not
assume the Option or substitute an equivalent option therefore, the Optionee
shall have the right to exercise the Option as to all of the Shares subject to
the Option as described below, including Shares as to which it would not
otherwise be exercisable (a "Transaction Acceleration").
(b) Notwithstanding anything to the contrary contained in
Section 6.4(a), in the event of a Transaction Acceleration, or in the event that
the Committee determines to accelerate the exercisability of any Options in
connection with any transaction involving the Company or its capital stock
pursuant to Section 5.4, the Committee may, in its sole discretion, authorize
the redemption of the unexercised portion of the Option for a consideration per
share of Common Stock equal to the excess of (i) the consideration payable per
share of Common Stock in connection with such transaction, over (ii) the
purchase price per Share payable pursuant to the Option.
(c) If an Option is exercisable in lieu of assumption or
substitution by the Successor Corporation in an Extraordinary Transaction, the
Secretary shall notify the Optionee that the Option shall be fully exercisable
for a period of fifteen (15) days (or such other greater period as shall be
determined by the Committee) from the date of such notice (an "Acceleration
Notice"), and the Option shall terminate upon the expiration of such period. Any
such Acceleration Notice may be given either before or after the consummation of
the Extraordinary Transaction. If such an Acceleration Notice is given and the
Extraordinary Transaction is consummated, your Stock Options, shall terminate on
date specified in such notice. If the Extraordinary Transaction is abandoned or
otherwise not consummated, then (i) any Options which were exercised after
receipt of the Acceleration Notice but before such abandonment or termination,
together with (ii) any Options which vested solely by operation of the
provisions of this subparagraph 6.4(c), shall be annulled and be of no further
force or effect. In that event, the number of unexercised Options and the option
vesting provisions in effect prior to such Extraordinary Transaction, as set
forth in the applicable Non-Qualified Stock Option Agreement shall be
reinstituted, as of the date of such abandonment or termination. For the
purposes of this paragraph, an Option shall be considered assumed or an
equivalent option shall be considered substituted therefor if, following the
Extraordinary Transaction, the option confers the right to purchase or receive
upon exercise, for each Share subject to the Option immediately prior to the
Extraordinary Transaction, the consideration (whether stock, cash, or other
securities or property) received in the Extraordinary Transaction for each Share
held on the effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the holders of a
majority of the outstanding Shares).
6
6.5 Death of an Optionee. Unless otherwise provided in the Nonqualified
Stock Option Agreement of a particular Optionee, upon the death of any Optionee
no further Options shall thereafter vest and, as to those Options, if any, that
had vested prior to the date of death, such options may be exercised until the
later of (i) the balance of the original term for exercise of such Options as
set forth in the Non-Qualified Stock Option Agreement and (ii) one (1) year
following the date of the Optionee's death even if such 1 year period extends
beyond the original expiration date of the Option.
7. Effect of a Termination of Optionee under the Sales Representative
Agreement.
Subject to Section 6.5 hereof, the Non-Qualified Stock Option
Agreement evidencing the grant of each Option shall set forth the terms and
conditions applicable to such Option upon a termination of the Optionee's
engagement as a Sales Representative of voiceglo.
8. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to (i) the
maximum number and class of Shares or other stock or securities with respect to
which Options may be granted under the Plan, (ii) the number and class of Shares
or other stock or securities which are subject to outstanding Options granted
under the Plan and the exercise price therefor, if applicable.
(b) If, by reason of a Change in Capitalization, an Optionee
shall be entitled to exercise an Option with respect to new, additional or
different shares of stock or securities, such new, additional or different
shares shall thereupon be subject to all of the conditions, restrictions and
performance criteria which were applicable to the Shares subject to the Option
prior to such Change in Capitalization.
9. Effect of Liquidation.
Except as otherwise provided in a Non-Qualified Stock Option
Agreement, in the event of the liquidation or dissolution of the Company (a
"Liquidation"), the Plan and the Options issued hereunder shall continue in
effect in accordance with their respective terms, except that following a
Liquidation each Optionee shall be entitled to receive in respect of each Share
subject to any outstanding Options, upon exercise of any Option, the same number
and kind of stock, securities, cash, property or other consideration that each
holder of a Share was entitled to receive in the Liquidation in respect of a
Share; provided, however, that such stock, securities, cash, property, or other
consideration shall remain subject to all of the conditions, restrictions and
performance criteria which were applicable to the Options prior to such
Liquidation. For purposes of this Section 9, neither the merger or consolidation
of the Company with or into another entity, nor the sale of all or substantially
all of the assets of the Company shall constitute a Liquidation.
7
10. Interpretation.
The Plan is intended to comply with Rule 16b-3 promulgated
under the Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Non-Qualified Stock Option Agreement in a manner
consistent therewith. Any provisions inconsistent with such rule shall be
inoperative and shall not affect the validity of the Plan.
11. Pooling Transactions.
Notwithstanding anything contained in the Plan or any
Non-Qualified Stock Option Agreement to the contrary, in the event of a
transaction which is also intended to constitute a Pooling Transaction, the
Committee shall take such actions, if any, as are specifically recommended by an
independent accounting firm retained by the Company to the extent reasonably
necessary in order to assure that the Pooling Transaction will qualify as such,
including but not limited to (a) deferring the vesting, exercise, payment,
settlement or lapsing of restrictions with respect to any Option, (b) providing
that the payment or settlement in respect of any Option be made in the form of
cash, Shares or securities of a successor or acquirer of the Company, or a
combination of the foregoing, and (c) providing for the extension of the term of
any Option to the extent necessary to accommodate the foregoing, but not beyond
the maximum term permitted for any Option.
12. Termination and Amendment of the Plan or Modification of Options.
12.1 Plan Amendment or Termination. The Plan shall terminate on the day
preceding the tenth anniversary of the date of its adoption by the Board and no
Option may be granted thereafter. The Board may sooner terminate the Plan and
the Board may at any time and from time to time amend, modify or suspend the
Plan; provided, however, that:
(a) no such amendment, modification, suspension or termination
shall impair or adversely alter any Options theretofore granted under the Plan,
except with the consent of the Optionee, nor shall any amendment, modification,
suspension or termination deprive any Optionee of any Shares or their equivalent
which he or she may have acquired through or as a result of the Plan; and
(b) to the extent required under any applicable law, regulation or
exchange requirement, no amendment shall be effective unless approved by the
stockholders of the Company in accordance with applicable law, regulation or
exchange requirement.
8
12.2 Modification of Options. No modification of an Option shall
adversely alter or impair any rights or obligations under the Option without the
consent of the Optionee.
13. Non-Exclusivity of the Plan.
The adoption of the Plan by the Board shall not be construed
as amending, modifying or rescinding any previously approved incentive
arrangement or as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific cases.
14. Limitation of Liability.
As illustrative of the limitations of liability of the
Company,but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(a) give any person any right to be granted an Option other
than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(c) limit in any way the right of voiceglo to terminate the
Optionee's status, or the status of the entity of which the Optionee is a
principal, as a Sales Representative pursuant to the terms of the applicable
Sales Representative Agreement; or
(d) be evidence of any agreement or understanding, expressed
or implied, that the Company, voiceglo or any other Subsidiary will employ or
engage any person at any particular rate of compensation or for any particular
period of time.
15. Regulations and Other Approvals; Governing Law.
15.1 Except as to matters of federal law, the Plan and the rights of
all persons claiming hereunder shall be construed and determined in accordance
with the laws of the State of Delaware without giving effect to conflicts of
laws principles thereof.
15.2 The obligation of the Company to sell or deliver Shares with
respect to Options granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
15.3 The Board may make such changes as may be necessary or appropriate
to comply with the rules and regulations of any government authority.
15.4 Each Option is subject to the requirement that, if at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of Shares issuable pursuant to the Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or the issuance of
Shares, no Options shall be granted or payment made or Shares issued, in whole
or in part, unless listing, registration, qualification, consent or approval has
been effected or obtained free of any conditions as acceptable to the Committee.
9
15.5 Notwithstanding anything contained in the Plan or any
Non-Qualified Stock Option Agreement to the contrary, in the event that the
disposition of Shares acquired pursuant to the Plan is not covered by a then
current registration statement under the Securities Act and is not otherwise
exempt from such registration, such Shares shall be restricted against transfer
to the extent required by the Securities Act and Rule 144 or other regulations
thereunder. The Committee may require any individual receiving Shares pursuant
to an Option granted under the Plan, as a condition precedent to receipt of such
Shares, to represent and warrant to the Company in writing that the Shares
acquired by such individual are acquired without a view to any distribution
thereof and will not be sold or transferred other than pursuant to an effective
registration thereof under said Act or pursuant to an exemption applicable under
the Securities Act or the rules and regulations promulgated thereunder. The
certificates evidencing any of such Shares shall be appropriately amended to
reflect their status as restricted securities as aforesaid.
16. Miscellaneous.
16.1 Multiple Agreements. The terms of each Option may differ from
other Options granted under the Plan at the same time, or at some other time.
The Committee may also grant more than one Option to a given eligible individual
during the term of the Plan, either in addition to, or in substitution for, one
or more Options previously granted to that eligible individual.
16.2 Withholding of Taxes.
At such times as an Optionee recognizes taxable income in
connection with the receipt of Shares hereunder (a "Taxable Event"), the
Optionee shall pay to the Company an amount equal to the federal, state and
local income taxes and other amounts as may be required by law to be withheld by
the Company in connection with the Taxable Event (the "Withholding Taxes") prior
to the issuance of such Shares. The Company shall have the right to deduct from
any payment of cash to an Optionee an amount equal to the Withholding Taxes in
satisfaction of the obligation to pay Withholding Taxes. The Committee may
provide in the Nonqualified Stock Option Agreement, at the time of grant or at
any time thereafter, that the Optionee, in satisfaction of the obligation to pay
Withholding Taxes, may elect to have withheld a portion of the Shares then
issuable to him or her having an aggregate Fair Market Value equal to the
Withholding Taxes.
16.3 Effective Date. The effective date of the Plan shall be the date
of its adoption and approval by the Board, or such later date as the Board may
shall specify.
10