Unassociated Document




Exhibit
4.2

 












INFINIUM
LABS, INC. 

2005
EMPLOYEE COMPENSATION PLAN

 

This
Infinium Labs, Inc. 2005
EMPLOYEE COMPENSATION PLAN (the
"Plan") is
designed to retain employees and reward them for making major contributions to
the success of the Company. These objectives are accomplished by making
incentive awards under the Plan thereby providing Participants with a
proprietary interest in the growth and performance of the Company.





	14.  	
      Definitions.








	(a)  	
      "Board" -
      The Board of Directors of the Company.








	(b)  	
      "Code" -
      The Internal Revenue Code of 1986, as amended from time to
      time.








	(c)  	
      "Committee" -
      The Compensation Committee of the Company's Board, or such other committee
      of the Board that is designated by the Board to administer the Plan,
      composed of not less than two members of the Board all of whom are
      disinterested persons, as contemplated by Rule 16b-3 ("Rule
      16b-3")
      promulgated under the Securities Exchange Act of 1934, as amended (the
      "Exchange
      Act").








	(d)  	
      "Company" -
      Infinium Labs, Inc. and its subsidiaries including subsidiaries of
      subsidiaries.








	(e)  	
      "Exchange Act" -
      The Securities Exchange Act of 1934, as amended from time to
      time.








	(f)  	
      "Fair
      Market Value" -
      The fair market value of the Company's issued and outstanding Stock as
      determined in good faith by the Board or
Committee.








	(g)  	
      "Grant" -
      The grant of any stock award to a Participant pursuant to such terms,
      conditions and limitations as the Committee may establish in order to
      fulfill the objectives of the Plan.








	(h)  	
      "Grant
      Agreement" -
      An agreement between the Company and a Participant that sets forth the
      terms, conditions and limitations applicable to a
Grant.








	(i)  	
      "Participant" -
      An outside consultants, professional and service provider of the Company
      to whom an Award has been made under the
Plan.








	(j)  	
      "Securities
      Act" -
      The Securities Act of 1933, as amended from time to
  time.








	(k)  	
      "Stock" -
      Authorized and issued or unissued shares of common stock of the
      Company.








	(l)  	
      "Stock
      Award" -
      A Grant made under the Plan in stock or denominated in units of stock for
      which the Participant is not obligated to pay additional
      consideration.








	15.  	
      Administration.




The Plan
shall be administered by the Board, provided however, that the Board may
delegate such administration to the Committee. Subject to the provisions of the
Plan, the Board and/or the Committee shall have authority to (a) grant, in its
discretion, Stock Awards; (b) determine in good faith the fair market value of
the Stock covered by any Grant; (c) determine which eligible persons shall
receive Grants and the number of shares, restrictions, terms and conditions to
be included in such Grants; (d) construe and interpret the Plan; (e) promulgate,
amend and rescind rules and regulations relating to its administration, and
correct defects, omissions and inconsistencies in the Plan or any Grant; (f)
consistent with the Plan and with the consent of the Participant, as
appropriate, amend any outstanding Grant; (g) determine the duration and purpose
of leaves of absence which may be granted to Participants without constituting
termination of their engagement for the purpose of the Plan or any Grant; and
(h) make all other determinations necessary or advisable for the Plan's
administration. The interpretation and construction by the Board of any
provisions of the Plan or selection of Participants shall be conclusive and
final. No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Grant made
thereunder.

 




















 


	16.  	
      Eligibility.







The
persons who shall be eligible to receive Grants shall be non-executive
employees, consultants and professionals of the Company.





	17.  	
      Stock.








	(a)  	
      Authorized
      Stock:
      Stock subject to Grants may be either unissued or reacquired
      Stock.








	(b)  	
      Number
      of Shares:
      Subject to adjustment as provided in Section 5(i) of the Plan, the total
      number of shares of Stock which may be purchased or granted directly by
      Stock Awards granted under the Plan shall not exceed Five Million
      (5,000,000) shares. If any Grant shall for any reason terminate or expire,
      any shares allocated thereto but remaining unvested shall again be
      available for Grants with respect thereto under the Plan as though no
      Grant had previously occurred with respect to such shares. Any shares of
      Stock issued pursuant to a Grant and repurchased pursuant to the terms
      thereof shall be available for future Grants as though not previously
      covered by a Grant.








	(c)  	
      Reservation
      of Shares:
      The Company shall reserve and keep available at all times during the term
      of the Plan such number of shares as shall be sufficient to satisfy the
      requirements of the Plan. If, after reasonable efforts, which efforts
      shall not include the registration of the Plan or Grants under the
      Securities Act, the Company is unable to obtain authority from any
      applicable regulatory body, which authorization is deemed necessary by
      legal counsel for the Company for the lawful issuance of shares hereunder,
      the Company shall be relieved of any liability with respect to its failure
      to issue and sell the shares for which such requisite authority was so
      deemed necessary unless and until such authority is
    obtained.








	18.  	
      Stock
      Awards.







All or
part of any Stock Award under the Plan may be subject to conditions established
by the Board or the Committee, and set forth in a Stock Award Agreement, which
may include, but are not limited to, continuous service with the Company,
achievement of specific business objectives, increases in specified indices,
attaining growth rates and other comparable measurements of Company performance.
Such Awards may be based on Fair Market Value or other specified valuation. All
Stock Awards will be made pursuant to the execution of a Stock Award
Agreement.





	(a)  	
      Conditions
      and Restrictions.
      Shares of Stock which Participants may receive as a Stock Award under a
      Stock Award Agreement may include such restrictions as the Board or
      Committee, as applicable, shall determine, including restrictions on
      transfer, repurchase rights, right of first refusal, and forfeiture
      provisions. When transfer of Stock is so restricted or subject to
      forfeiture provisions it is referred to as "Restricted
      Stock."
      Further, with Board or Committee approval, Stock Awards may be deferred,
      either in the form of installments or a future lump sum distribution. The
      Board or Committee may permit selected Participants to elect to defer
      distributions of Stock Awards in accordance with procedures established by
      the Board or Committee to assure that such deferrals comply with
      applicable requirements of the Code including, at the choice of
      Participants, the capability to make further deferrals for distribution
      after retirement. Any deferred distribution, whether elected by the
      Participant or specified by the Stock Award Agreement or by the Board or
      Committee, may require the payment be forfeited in accordance with the
      provisions of Section 5(c). Dividends or dividend equivalent rights may be
      extended to and made part of any Stock Award, subject to such terms,
      conditions and restrictions as the Board or Committee may
      establish.




 







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	(b)  	
      Cancellation
      and Rescission of Grants.
      Unless the Stock Award Agreement specifies otherwise, the Board or
      Committee, as applicable, may cancel any unvested or deferred Grants at
      any time if the Participant is not in compliance with all other applicable
      provisions of the Stock Award Agreement, the Plan and with the following
      conditions:








	(i)  	
      A
      Participant shall not render services for any organization or engage
      directly or indirectly in any business which, in the judgment of the chief
      executive officer of the Company or other senior officer designated by the
      Board or Committee, is or becomes competitive with the Company, or which
      organization or business, or the rendering of services to such
      organization or business, is or becomes otherwise prejudicial to or in
      conflict with the interests of the Company. For Participants whose
      engagement has terminated, the judgment of the chief executive officer
      shall be based on the Participant's position and responsibilities while
      employed by the Company, the Participant's post-engagement
      responsibilities and position with the other organization or business, the
      extent of past, current and potential competition or conflict between the
      Company and the other organization or business, the effect on the
      Company's customers, suppliers and competitors and such other
      considerations as are deemed relevant given the applicable facts and
      circumstances. A Participant who has retired shall be free, however, to
      purchase as an investment or otherwise, stock or other securities of such
      organization or business so long as they are listed upon a recognized
      securities exchange or traded over-the-counter, and such investment does
      not represent a substantial investment to the Participant or a greater
      than five percent (5%) equity interest in the organization or
      business.








	(ii)  	
      A
      Participant shall not, without prior written authorization from the
      Company, disclose to anyone outside the Company, or use in other than the
      Company's business, any confidential information or material relating to
      the business of the Company, acquired by the Participant either during or
      after engagement with the Company. 








	(iii)  	
      A
      Participant shall disclose promptly and assign to the Company all right,
      title and interest in any invention or idea, patentable or not, made or
      conceived by the Participant during engagement by the Company, relating in
      any manner to the actual or anticipated business, research or development
      work of the Company and shall do anything reasonably necessary to enable
      the Company to secure a patent where appropriate in the United States and
      in foreign countries.








	(iv)  	
      Upon
      exercise, payment or delivery pursuant to a Grant, the Participant shall
      certify on a form acceptable to the Committee that he or she is in
      compliance with the terms and conditions of the Plan.









	(c)  	
      Nonassignability.








	(i)  	
      Except
      pursuant to Section 5(e)(iii) and except as set forth in Section 5(d)(ii),
      no Grant or any other benefit under the Plan shall be assignable or
      transferable, or payable to, anyone other than the Participant to whom it
      was granted.








	(ii)  	
      Where
      a Participant terminates engagement and retains a Grant pursuant to
      Section 5(e)(ii) in order to assume a position with a governmental,
      charitable or educational institution, the Board or Committee, in its
      discretion and to the extent permitted by law, may authorize a third party
      (including but not limited to the trustee of a "blind" trust), acceptable
      to the applicable governmental or institutional authorities, the
      Participant and the Board or Committee, to act on behalf of the
      Participant with regard to such Awards.








	(d)  	
      Termination
      of Engagement. If
      the engagement or service to the Company of a Participant terminates,
      other than pursuant to any of the following provisions under this Section
      5(e), all unvested or deferred Stock Awards shall be cancelled
      immediately, unless the Stock Award Agreement provides otherwise:
      








	(i)  	
      Retirement
      Under a Company Retirement Plan.
      When a Participant's engagement terminates as a result of retirement in
      accordance with the terms of a Company retirement plan, the Board or
      Committee may permit Stock Awards to continue in effect beyond the date of
      retirement in accordance with the applicable Grant Agreement and vesting
      of any such Grants may be accelerated.




 







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	(ii)  	
      Rights
      in the Best Interests of the Company.
      When a Participant resigns from the Company and, in the judgment of the
      Board or Committee, the acceleration and/or continuation of outstanding
      Stock Awards would be in the best interests of the Company, the Board or
      Committee may (i) authorize, where appropriate, the acceleration and/or
      continuation of all or any part of Grants issued prior to such termination
      and (ii) permit the vesting of such Grants for such period as may be set
      forth in the applicable Grant Agreement, subject to earlier cancellation
      pursuant to Section 8 or at such time as the Board or Committee shall deem
      the continuation of all or any part of the Participant's Grants are not in
      the Company's best interest.








	(iii)  	
      Death
      or Disability of a Participant. 








	(1)  	
      In
      the event of a Participant's death, the Participant's estate or
      beneficiaries shall have a period up to the expiration date specified in
      the Grant Agreement within which to receive or exercise any outstanding
      Grant held by the Participant under such terms as may be specified in the
      applicable Grant Agreement. Rights to any such outstanding Grants shall
      pass by will or the laws of descent and distribution in the following
      order: (a) to beneficiaries so designated by the Participant; if none,
      then (b) to a legal representative of the Participant; if none, then (c)
      to the persons entitled thereto as determined by a court of competent
      jurisdiction. Grants so passing shall be made at such times and in such
      manner as if the Participant were living.








	(2)  	
      In
      the event a Participant is deemed by the Board or Committee to be unable
      to perform his or her usual duties by reason of mental disorder or medical
      condition which does not result from facts which would be grounds for
      termination for cause, Grants and rights to any such Grants may be paid to
      the Participant, if legally competent, or a committee or other legally
      designated guardian or representative if the Participant is legally
      incompetent by virtue of such disability.








	(3)  	
      After
      the death or disability of a Participant, the Board or Committee may in
      its sole discretion at any time (1) terminate restrictions in Grant
      Agreements; (2) accelerate any or all installments and rights; and (3)
      instruct the Company to pay the total of any accelerated payments in a
      lump sum to the Participant, the Participant's estate, beneficiaries or
      representative; notwithstanding that, in the absence of such termination
      of restrictions or acceleration of payments, any or all of the payments
      due under the Grant might ultimately have become payable to other
      beneficiaries.








	(4)  	
      In
      the event of uncertainty as to interpretation of or controversies
      concerning this Section 5, the determinations of the Board or Committee,
      as applicable, shall be binding and
conclusive.








	19.	Investment
      Intent. All Grants under the Plan are intended to be exempt from
      registration under the Securities Act provided by Rule 701 thereunder.
      Unless and until the sale and issuance of Stock subject to the Plan are
      registered under the Securities Act or shall be exempt pursuant to the
      rules promulgated thereunder, each Grant under the Plan shall provide that
      the purchases or other acquisitions of Stock thereunder shall be for
      investment purposes and not with a view to, or for resale in connection
      with, any distribution thereof. Further, unless the issuance and sale of
      the Stock have been registered under the Securities Act, each Grant shall
      provide that no shares shall be purchased upon the exercise of the rights
      under such Grant unless and until (i) all then applicable requirements of
      state and federal laws and regulatory agencies shall have been fully
      complied with to the satisfaction of the Company and its counsel, and (ii)
      if requested to do so by the Company, the person exercising the rights
      under the Grant shall (i) give written assurances as to knowledge and
      experience of such person (or a representative employed by such person) in
      financial and business matters and the ability of such person (or
      representative) to evaluate the merits and risks of receiving the Stock as
      compensation, and (ii) execute and deliver to the Company a letter of
      investment intent and/or such other form related to applicable exemptions
      from registration, all in such form and substance as the Company may
      require. If shares are issued upon exercise of any rights under a Grant
      without registration under the Securities Act, subsequent registration of
      such shares shall relieve the purchaser thereof of any investment
      restrictions or representations made upon the exercise of such
      rights.



 







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	20.	Amendment,
      Modification, Suspension or Discontinuance of the Plan. The Board may,
      insofar as permitted by law, from time to time, with respect to any shares
      at the time not subject to outstanding Grants, suspend or terminate the
      Plan or revise or amend it in any respect whatsoever, except that without
      the approval of the shareholders of the Company, no such revision or
      amendment shall (i) increase the number of shares subject to the Plan,
      (ii) decrease the price at which Grants may be granted, (iii) materially
      increase the benefits to Participants, or (iv) change the class of persons
      eligible to receive Grants under the Plan; provided, however, no such
      action shall alter or impair the rights and obligations under any Stock
      Award outstanding as of the date thereof without the written consent of
      the Participant thereunder. No Grant may be issued while the Plan is
      suspended or after it is terminated, but the rights and obligations under
      any Grant issued while the Plan is in effect shall not be impaired by
      suspension or termination of the
Plan.




 

In the
event of any change in the outstanding Stock by reason of a stock split, stock
dividend, combination or reclassification of shares, recapitalization, merger,
or similar event, the Board or the Committee may adjust proportionally (a) the
number of shares of Stock (i) reserved under the Plan, (ii) covered by
outstanding Stock Awards; (b) the Stock prices related to outstanding Grants;
and (c) the appropriate Fair Market Value and other price determinations for
such Grants. In the event of any other change affecting the Stock or any
distribution (other than normal cash dividends) to holders of Stock, such
adjustments as may be deemed equitable by the Board or the Committee, including
adjustments to avoid fractional shares, shall be made to give proper effect to
such event. In the event of a corporate merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation, the Board or the
Committee shall be authorized to issue or assume stock options, whether or not
in a transaction to which Section 424(a) of the Code applies, and other Grants
by means of substitution of new Grant Agreements for previously issued Grants or
an assumption of previously issued Grants.





	21.  	
      Tax
      Withholding. The Company shall have the right to deduct applicable taxes
      from any Grant payment and withhold, at the time of delivery or exercise
      of Stock Awards or vesting of shares under such Grants, an appropriate
      number of shares for payment of taxes required by law or to take such
      other action as may be necessary in the opinion of the Company to satisfy
      all obligations for withholding of such taxes. If Stock is used to satisfy
      tax withholding, such stock shall be valued based on the Fair Market Value
      when the tax withholding is required to be made.











 


	22.  	
      Availability
      of Information. During the term of the Plan and any additional period
      during which a Grant granted pursuant to the Plan shall be payable, the
      Company shall make available, not later than one hundred and twenty (120)
      days following the close of each of its fiscal years, such financial and
      other information regarding the Company as is required by the bylaws of
      the Company and applicable law to be furnished in an annual report to the
      shareholders of the Company. 










 


	23.  	
      Notice.
      Any written notice to the Company required by any of the provisions of the
      Plan shall be addressed to the chief personnel officer or to the chief
      executive officer of the Company, and shall become effective when it is
      received by the office of the chief personnel officer or the chief
      executive officer. 








	24.  	
      Indemnification
      of Board. In addition to such other rights or indemnifications as they may
      have as directors or otherwise, and to the extent allowed by applicable
      law, the members of the Board and the Committee shall be indemnified by
      the Company against the reasonable expenses, including attorneys' fees,
      actually and necessarily incurred in connection with the defense of any
      claim, action, suit or proceeding, or in connection with any appeal
      thereof, to which they or any of them may be a party by reason of any
      action taken, or failure to act, under or in connection with the Plan or
      any Grant granted thereunder, and against all amounts paid by them in
      settlement thereof (provided such settlement is approved by independent
      legal counsel selected by the Company) or paid by them in satisfaction of
      a judgment in any such claim, action, suit or proceeding, except in any
      case in relation to matters as to which it shall be adjudged in such
      claim, action, suit or proceeding that such Board or Committee member is
      liable for negligence or misconduct in the performance of his or her
      duties; provided that within sixty (60) days after institution of any such
      action, suit or Board proceeding the member involved shall offer the
      Company, in writing, the opportunity, at its own expense, to handle and
      defend the same. 










 


	25.  	
      Governing
      Law. The Plan and all determinations made and actions taken pursuant
      hereto, to the extent not otherwise governed by the Code or the securities
      laws of the United States, shall be governed by the law of the State of
      Delaware and construed accordingly. 




 







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	26.  	
      Termination
      Dates. The Plan shall terminate ten years later, subject to earlier
      termination by the Board pursuant to Section 7.





 


	 	 	 
	 	
      Infinium
      Labs, Inc.

      a
      Delaware corporation

	 
 	 
 	 
 
		By:  	/s/ 
	 	
      

    
	 	Its:



 

 







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