Exhibit 99.1
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ACTV, Inc.
2000 Stock Incentive Plan
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1. THE PLAN
a) Purpose. This ACTV, Inc. 2000 Stock Incentive Plan (the "Plan") is intended
to benefit the stockholders of ACTV (the "Company") by providing a means to
attract, retain and reward individuals who can and do contribute to the
longer-term financial success of the Company. Further, the recipients of
stock-based awards under the Plan should identify their success with that of the
Company's shareholders and therefore will be encouraged to increase their
proprietary interest in the Company.
b) Effective Date. To serve this purpose, the Plan will become effective upon
its approval by the affirmative vote of a majority of the votes cast at the
Company's 2000 Annual Meeting of Stockholders.
2. ADMINISTRATION
a) Committee. The Plan shall be administered by a Committee, appointed by the
Board of Directors of the Company (the "Board"), which shall consist of no less
than two of its members, all of whom shall not be employees of the Company (the
"Committee"). The Committee may delegate certain responsibilities and powers to
any executive officer or officers selected by it. Any such delegation may be
revoked by the Committee at any time.
b) Powers and Authority. The Committee's powers and authority include, but are
not limited to: (i) selecting individuals, who are either employees of the
Company and any subsidiary of the Company or other entity in which the Company
has a significant equity or other interest as determined by the Committee, or
non-employee members of the Board or independent consultants or other persons
who perform services for or on behalf of the Company, to receive awards; (ii)
determining the types and terms and conditions of all awards granted, including
performance and other earnout and/or vesting contingencies; (iii) permitting
transferability of awards to eligible third parties; (iv) interpreting the
Plan's provisions; and (v) administering the Plan in a manner that is consistent
with its purpose. The Committee's decision in carrying out the Plan and its
interpretation and construction of any provisions of the Plan or any award
granted or agreement or other instrument executed under it shall be final and
binding upon all persons. No members of the Board shall be liable for any action
or determination made in good faith in administering the Plan.
c) Award Prices. All awards denominated or made in shares of Common Stock of the
Company (the "Shares") shall use as the per Share price the last sale price of a
Share as reported by the principal exchange on which the Shares are
traded or listed for trading, on the applicable date as determined by the
Committee, or if Shares are not traded on such date, the last sale price on the
next preceding day on which such Shares are traded. The applicable date shall be
the day on which the award is granted (or other Plan transaction occurs), except
that the Committee may provide that the applicable date may be (i) the day on
which an award recipient was hired, promoted or such similar singular even
occurred, provided that the grant of such award occurs within 90 days following
such applicable date; or (ii) in the case of a stock option or stock
appreciation right granted retroactively in tandem with or as a substitution for
another previously granted stock option or stock appreciation right, the
applicable date for such prior award.
3. SHARES SUBJECT TO THE PLAN AND ADJUSTMENTS
a) Maximum Shares Available for Delivery. Subject to adjustments under Section
3(d), the maximum number of Shares that may be delivered to participants and
their beneficiaries under the Plan shall be equal to the sum of (i) 4,000,000;
and (ii) any Shares that are represented by awards previously granted whether
under a prior plan of the Company or otherwise, which are forfeited, expire or
are canceled without the delivery of Shares or which result in the forfeiture of
Shares back to the Company. In addition, any Shares delivered under the Plan or
any prior plan of the Company which are forfeited back to the Company because of
the failure to meet an award contingency or condition shall again be available
for delivery pursuant to new awards granted under the Plan. Any Shares covered
by an award (or portion of an award) granted under the Plan or any prior plan of
the Company, which is forfeited or canceled, expires or is settled in cash,
including the settlement of tax withholding obligations using Shares, shall be
deemed not to have been delivered for purposes of determining the maximum number
of Shares available for delivery under the Plan. Likewise, if any stock option
is exercised by tendering Shares, either actually or by attestation, to the
Company as full or partial payment for such exercise under this Plan or any
prior plan of the Company, only the number of Shares issued net of the Shares
tendered shall be deemed delivered for purposes of determining the maximum
number of Shares available for delivery under the Plan. Further, Shares issued
under the Plan through the settlement, assumption or substitution of outstanding
awards or obligations to grant future awards as a condition of the Company
acquiring another entity shall not reduce the maximum number of Shares available
for delivery under the Plan. In addition, shares available for delivery in
settlement of awards under the Plan may be increased by the Board by the number
of shares purchased or acquired by the Company using amounts equivalent to the
cash proceeds received by the company from the exercise of stock options,
granted under any plan of the Company, occurring after January 1, 2000.
b) Other Plan Limits. Subject to adjustment under Section 3(d), the following
additional maximums are imposed under the Plan. If a payment under Section 4(d)
is made in Shares, the value of such Shares for determining this maximum
individual payment amount will be the closing price of a Share on the first day
of the applicable performance period. A specified performance period for
purposes of this performance goal payment limit shall not
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exceed a sixty (60) consecutive month period.
c) Payment Shares. Subject to the overall limitation on the number of Shares
that may be delivered under the Plan, the Committee may, in addition to granting
awards under Section 4, use available Shares as the form of payment for
compensation, grants or rights earned or due under any other compensation plans
or arrangements of the Company, including those of any entity acquired by the
Company.
d) Adjustments for Corporate Transactions.
(i) The Committee may determine that a corporate transaction has
affected the price per Share such that an adjustment or adjustments to
outstanding awards are required to preserve (or prevent enlargement of)
the benefits or potential benefits intended at time of grant. For this
purpose a corporate transaction will include, but is not limited to,
any stock dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination or exchange of shares, or other similar
occurrence. In the event of such a corporate transaction, the Committee
shall, in such manner as the Committee deems equitable, adjust (i) the
number and kind of shares which may be delivered under the Plan
pursuant to Sections 3(a) and 3(b); (ii) the number and kind of shares
subject to outstanding awards; and (iii) the exercise price of
outstanding stock options and stock appreciation rights.
(ii) In the event that the Company is not the surviving company of a
merger, consolidation or amalgamation with another company, or in the
event of a liquidation or reorganization of the Company, and in the
absence of the surviving corporation's assumption of outstanding awards
made under the Plan, the Committee may provide for appropriate
adjustments and/or settlements of such grants either at the time of
grant or at a subsequent date. The Committee may also provide for
adjustments and/or settlements of outstanding awards as it deems
appropriate and consistent with the Plan's purpose in the event of any
other change-in-control of the Company.
4. TYPES OF AWARDS
a) General. An award may be granted singularly, in combination with another
award(s) or in tandem whereby exercise or vesting of one award held by a
participant cancels another award held by the participant. Subject to the
limitations of Section 2(c), an award may be granted as an alternative to or
replacement of an existing award under the Plan or under any other compensation
plans or arrangements of the Company, including the plan of any entity acquired
by the Company. The types of awards that may be granted under the Plan include:
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b) Stock Option. A stock option represents a right to purchase a specified
number of Shares during a specified period at a price per Share which is no less
than one hundred percent (100%) of the per Share amount stipulated by Section
2(c). A stock option may be in the form of an incentive stock option or in
another form that may or may not qualify for favorable federal income tax
treatment. The Shares covered by a stock option may be purchased by means of a
cash payment or such other means as the Committee may from time-to-time permit,
including (i) tendering (either actually or by attestation) Shares valued using
the market price at the time of exercise, (ii) authorizing a third party to sell
Shares (or a sufficient portion thereof) acquired upon exercise of a stock
option and to remit to the Company a sufficient portion of the sale proceeds to
pay for all the Shares acquired through such exercise and any tax withholding
obligations resulting from such exercise; (iii) by converting Shares subject to
Options granted hereunder having a value equal to the exercise price of the
Options being exercised on such terms and conditions as the Committee
determines; or (iv) any combination of the above.
c) Stock Appreciation Right. A stock appreciation right is a right to receive a
payment in cash, Shares or a combination, equal to the excess of the aggregate
market price at time of exercise of a specified number of Shares over the
aggregate exercise price of the stock appreciation right being exercised. The
longest term a stock appreciation right may be outstanding shall be 11 years.
Such exercise price shall be based on one hundred percent (100%) of the per
Share amount stipulated by Section 2(c).
d) Stock Award. A stock award is a grant of Shares or of a right to receive
Shares (or their cash equivalent or a combination of both) in the future. Stock
awards shall be earned and vest in accordance with provisions established by the
Committee and shall be governed by whatever conditions, restrictions and
contingencies the Committee shall determine. These may include continuous
service and/or the achievement of performance goals. The performance goals that
may be used by the Committee for such awards shall consist of: operating profits
(including EBITDA), net profits, earnings per share, profit returns and margins,
revenues, market share, shareholder return and/or value, stock price, working
capital and growth rates for each of the foregoing. Performance goals may be
measured solely on a corporate, subsidiary or business unit basis, or a
combination thereof. Further, performance criteria may reflect absolute entity
performance or a relative comparison of entity performance to the performance of
a peer group of entities or other external measure of the selected performance
criteria. Profit, earnings and revenues used for any performance goal
measurement shall exclude: gains or losses on operating asset sales or
dispositions; asset write-downs; litigation or claim judgments or settlements;
effect of changes in tax law or rate on deferred tax liabilities; accruals for
reorganization and restructuring programs; uninsured catastrophic property
losses; the cumulative effect of changes in accounting principles; and any
extraordinary non-recurring items as described in Accounting Principles Board
Opinion No. 30 and/or in management's discussion and analysis of financial
performance appearing in the Company's annual report to shareholders for the
applicable year.
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e) Cash Award. A cash award is a right denominated in cash or cash units to
receive a cash payment, based on the attainment of pre-established performance
goals and, subject to whatever vesting period and such other conditions,
restrictions and contingencies as the Committee shall determine. The performance
goals that may be used by the Committee for such awards shall be those set forth
in Section 4(d).
f) Deferred Stock Award. A Deferred Stock Award is a grant of Shares ("Deferred
Stock") to be received, under an award made pursuant to this Section 4(f) at the
end of a specified Deferral Period (as hereinafter defined). Deferred Stock may
be awarded either alone or in addition to or in tandem with other awards granted
under the Plan. The Committee shall determine the eligible persons to whom and
the time or times at which Deferred Stock shall be awarded, the number of shares
of Deferred Stock to be awarded to any person, the duration of the period (the
"Deferral Period") during which, and the conditions under which, receipt of the
Deferred Stock will be deferred, and all the other terms and conditions of the
awards. The Committee may condition the grant of the Deferred Stock upon the
attainment of specified Performance Objectives or such other factors or criteria
as the Committee shall determine. Each Deferred Stock award shall be subject to
the following terms and conditions:
(i) Subject to the provisions of this Plan and Deferred Stock agreement
referred to in Section 4(f)(vii) below, Deferred Stock awards may not
be sold, assigned, transferred, pledged or otherwise encumbered during
the Deferral Period. At the expiration of the Deferral Period (or the
Additional Deferral Period referred to in Section 4(f)(vi) below, where
applicable), share certificates shall be delivered to the participant,
or his legal representative, in a number equal to the shares of Stock
covered by the Deferred Stock award.
(ii) As determined by the Committee at the time of award, amounts equal
to any dividends declared during the Deferral Period (or the Additional
Deferral Period referred to in Section 4(f)(vi) below, where
applicable) with respect to the number of shares covered by a Deferred
Stock award may be paid to the participant currently or deferred and
deemed to be reinvested in additional Deferred Stock.
(iii) Subject to the provisions of the Deferred Stock agreement
referred to in Section 4(f)(vii) below and this Section 4, upon
termination of participant's employment with the Company or any
Subsidiary for any reason during the Deferral Period (or the Additional
Deferral Period referred to in Section 4(f)(b)(vi) below, where
applicable) for a given award, the Deferred Stock in question will vest
or be forfeited in accordance with the terms and conditions established
by the Committee at the time of grant.
(iv) The Committee may, after grant, accelerate the vesting of all or
any part of any Deferred Stock award and/or waive the deferral
limitations for all or any part of a Deferred Stock award.
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(v) In the event of hardship or other special circumstances of a
participant whose employment with the Company or any Parent or
Subsidiary is involuntarily terminated (other than for Cause (as
hereinafter defined)), the Board or the Committee, as the case may be,
may waive in whole or in part any or all of the remaining deferral
limitations imposed hereunder or pursuant to the Deferred Stock
agreement referred to in Section 4(f)(vii) below with respect to any
or all of the participant's Deferred Stock.
(vi) A participant may make a request to the Committee to defer the
receipt of an award (or an installment of an award) for an additional
specified period or until a specified date or until a specified event
(the "Additional Deferral Period"). Subject to any exceptions adopted
by the Committee such request must be made at least one year prior to
expiration of the Deferral Period for such Deferred Stock award (or
such installment).
(vii) Each Deferred Stock award shall be confirmed by, and shall be
subject to the terms of, an agreement executed by the Company and the
participant.
(viii) For purposes of this Plan, "Cause" shall mean (1) the conviction
of the participant of a felony under Federal law or the law of the
state in which such action occurred, or (2) engaging in conduct that
constitutes activity in competition with the Company. In addition, with
respect to an option granted to an employee of the Company or a
Subsidiary, for purposes of this Plan, "Cause" shall also include any
definition of "Cause" contained in any employment agreement between the
participant and the Company or Subsidiary, as the case may be.
5. AWARD SETTLEMENTS AND PAYMENTS
a) Dividends and Dividend Equivalents. An award may contain the right to receive
dividends or dividend equivalent payments that may be paid either currently or
credited to a participant's account. Any such crediting of dividends or dividend
equivalents or reinvestment in Shares may be subject to such conditions,
restrictions and contingencies as the Committee shall establish, including the
reinvestment of such credited amounts in Share equivalents.
b) Payments. Awards may be settled through cash payments, the delivery of
Shares, the granting of awards or combination thereof as the Committee shall
determine. Any award settlement, including payment deferrals, may be subject to
such conditions, restrictions and contingencies as the Committee shall
determine. The Committee may permit or require the deferral of any award
payment, subject to such rules and procedures as it may establish, which
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may include provisions for the payment or crediting of interest, or dividend
equivalents, including converting such credits into deferred Share equivalents.
6. PLAN AMENDMENT AND TERMINATION
a) Amendments. The Board may amend this Plan as it deems necessary and
appropriate to better achieve the Plan's purpose provided, however, that: (i)
the Share and other Award limitations set forth in Sections 3(a) and 3(b) cannot
be increased, (ii) the minimum stock option and stock appreciation right
exercise prices set forth in Sections 2(c) and 4(b) and (c) and the performance
measures set forth in Section 4(d) cannot be changed unless such a Plan
amendment is properly approved by the Company's stockholders.
b) Plan Suspension and Termination. The Board may suspend or terminate this Plan
at any time. Any such suspension or termination shall not of itself impair any
outstanding award granted under the Plan or the applicable participant's rights
regarding such award.
7. MISCELLANEOUS
(a) No Individual Rights. No person shall have any claim or right to be granted
an award under the Plan. Neither the Plan nor any action taken hereunder shall
be construed as giving any employee or other person any right to continue to be
employed by or to perform services for the Company, any subsidiary or related
entity. The right to terminate the employment of or performance of services by
any Plan participant at any time and for any reason is specifically reserved to
the employing entity.
b) Unfunded Plan. The Plan shall be unfunded and shall not create (or be
construed to create) a trust or a separate fund or funds. The Plan shall not
establish any fiduciary relationship between the Company and any participant or
beneficiary of a participant. To the extent any person holds any obligation of
the Company by virtue of an award granted under the Plan, such obligation shall
merely constitute a general unsecured liability of the Company and accordingly
shall not confer upon such person any right, title or interest in any assets of
the Company.
c) Other Benefit and Compensation Programs. Unless otherwise specifically
determined by the Committee, settlements of awards received by participants
under the Plan shall not be deemed a part of a participant's regular, recurring
compensation for purposes of calculating payments or benefits from any Company
benefit plan or severance program. Further, the Company may adopt other
compensation programs, plans or arrangements as it deems appropriate.
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d) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any award, and the Committee shall determine whether
cash shall be paid or transferred in lieu of any fractional Shares, or whether
such fractional Shares or any rights thereto shall be canceled.
e) Governing Law. The validity, construction and effect of the Plan and any
award, agreement or other instrument issued under it shall be determined in
accordance with the laws of the state of Delaware without reference to
principles of conflict of law.
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