EXHIBIT 4.5
CEPTOR CORPORATION
2004 INCENTIVE PLAN
(Adopted December 9, 2004)
1. PURPOSE OF THE PLAN.
This 2004 Incentive Stock Plan (the "Plan") is intended as an
incentive, to retain in the employ of and as directors, officers, consultants,
advisors and employees to Ceptor Corporation, a Florida corporation (the
"Company") and any subsidiary of the Company, within the meaning of Section
424(f) of the United States Internal Revenue Code of 1986, as amended (the
"Code"), persons of training, experience and ability, to attract new directors,
officers, consultants, advisors and employees whose services are considered
valuable, to encourage the sense of proprietorship and to stimulate the active
interest of such persons in the development and financial success of the Company
and its Subsidiaries.
It is further intended that certain options granted pursuant to
the Plan shall constitute incentive stock options within the meaning of Section
422 of the Code (the "Incentive Options") while certain other options granted
pursuant to the Plan shall be nonqualified stock options (the "Nonqualified
Options"). Incentive Options and Nonqualified Options are hereinafter referred
to collectively as "Options." The terms, provisions, conditions and limitations
of the Plan shall be construed and interpreted consistent with the Company's
intent as stated in this Section 1.
2. ADMINISTRATION OF THE PLAN.
The Board of Directors of the Company (the "Board") may
administer the Plan directly or appoint and maintain as administrator of the
Plan a Committee (the "Committee") consisting of two or more directors that
shall serve at the pleasure of the Board. The Committee, subject to Sections 3
and 5 hereof, shall have full power and authority to designate recipients of
Options and restricted stock ("Restricted Stock") and to determine the terms and
conditions of the respective Option and Restricted Stock (which need not be
identical) and to interpret the provisions and supervise the administration of
the Plan. The Committee shall have the authority, without limitation, to
designate which Options granted under the Plan shall be Incentive Options and
which shall be Nonqualified Options. To the extent any Option does not qualify
as an Incentive Option, it shall constitute a separate Nonqualified Option.
Subject to the provisions of the Plan, the Committee shall
interpret the Plan and all Options and Restricted Stock granted under the Plan,
shall make such rules as it deems necessary for the proper administration of the
Plan, shall make all other determinations necessary or advisable for the
administration of the Plan and shall correct any defects or supply any omission
or reconcile any inconsistency in the Plan or in any Options or Restricted Stock
granted under the Plan in the manner and to the extent that the Committee deems
desirable to carry into effect the Plan or any Options or Restricted Stock. The
act or determination of a majority of the Committee shall be the act or
determination of the Committee and any decision reduced to writing and signed by
all of the members of the Committee shall be fully effective as if it had been
made by a majority at a meeting duly held. Subject to the provisions of the
Plan, any action taken or determination made by the Committee pursuant to this
and the other Sections of the Plan shall be conclusive on all parties.
In the event that for any reason the Committee is unable to act,
or if there shall be no such Committee, then the Plan shall be administered by
the Board, and references herein to the Committee (except in the proviso to this
sentence) shall be deemed to be references to the Board.
3. DESIGNATION OF OPTIONEES AND GRANTEES.
The persons eligible for participation in the Plan as recipients
of Options (the "Optionees") or Restricted Stock (the "Grantees" and together
with Optionees, the "Participants") shall include directors, officers and
employees of, and subject to their meeting the eligibility requirements of Rule
701 promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), consultants, vendors, joint venture partners, and advisors to, the
Company or any subsidiary; provided that Incentive Options may only be granted
to employees of the Company and the subsidiaries. In selecting Optionees and
Grantees, and in determining the number of shares to be covered by each Option
or share of Restricted Stock granted to Optionees or Grantees, the Committee may
consider any factors it deems relevant, including without limitation, the office
or position held by the Optionee or Grantee or the Optionee or Grantee's
relationship to the Company, the Optionee or Grantee's degree of responsibility
for and contribution to the growth and success of the Company or any Subsidiary,
the Optionee or Grantee's length of service, promotions and potential. An
Optionee or Grantee who has been granted an Option or Restricted Stock hereunder
may be granted an additional Option or Options, or Restricted Stock if the
Committee shall so determine. William Pursley, Chairman and CEO of the Company,
shall not be eligible for awards under the Plan prior to April 1, 2005.
4. STOCK RESERVED FOR THE PLAN.
Subject to adjustment as provided in Section 8 hereof, a total
of 2,268,377 shares of the Company's Common Stock, $0.0001 par value per share
(the "Stock"), shall be subject to the Plan. The shares of Stock subject to the
Plan shall consist of unissued shares, treasury shares or previously issued
shares held by any Subsidiary of the Company, and such amount of shares of Stock
shall be and is hereby reserved for such purpose. Any of such shares of Stock
that may remain unsold and that are not subject to outstanding Options at the
termination of the Plan shall cease to be reserved for the purposes of the Plan,
but until termination of the Plan the Company shall at all times reserve a
sufficient number of shares of Stock to meet the requirements of the Plan.
Should any Option or Restricted Stock expire or be canceled prior to its
exercise or vesting in full or should the number of shares of Stock to be
delivered upon the exercise or vesting in full of an Option or Restricted Stock
be reduced for any reason, the shares of Stock theretofore subject to such
Option or Restricted Stock may be subject to future Options under the Plan,
except where such reissuance is inconsistent with the provisions of Section
162(m) of the Code.
2
5. TERMS AND CONDITIONS OF OPTIONS.
Options granted under the Plan shall be subject to the following
conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable:
(a) OPTION PRICE. The purchase price of each share of Stock
purchasable under an Incentive Option shall be determined by the Committee at
the time of grant, but shall not be less than 100% of the Fair Market Value (as
defined below) of such share of Stock on the date the Option is granted;
PROVIDED, HOWEVER, that with respect to an Optionee who, at the time such
Incentive Option is granted, owns (within the meaning of Section 424(d) of the
Code) more than 10% of the total combined voting power of all classes of stock
of the Company or of any Subsidiary, the purchase price per share of Stock shall
be at least 110% of the Fair Market Value per share of Stock on the date of
grant. The exercise price for each Option shall be subject to adjustment as
provided in Section 8 below. "Fair Market Value" means the price as determined
by the Committee in a manner consistent with the provisions of the Code.
(b) OPTION TERM. The term of each Option shall be fixed by the
Committee, but no Option shall be exercisable more than ten years after the date
such Option is granted and in the case of an Incentive Option granted to an
Optionee who, at the time such Incentive Option is granted, owns (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or of any Subsidiary, no
such Incentive Option shall be exercisable more than five years after the date
such Incentive Option is granted.
(c) EXERCISABILITY. Subject to Section 5(k) hereof, Options
shall be exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee at the time of grant.
Upon the occurrence of a "Change in Control" (as hereinafter
defined), the Committee may accelerate the vesting and exercisability of
outstanding Options, in whole or in part, as determined by the Committee in its
sole discretion. In its sole discretion, the Committee may also determine that,
upon the occurrence of a Change in Control, each outstanding Option shall
terminate within a specified number of days after notice to the Optionee
thereunder, and each such Optionee shall receive, with respect to each share of
Company Stock subject to such Option, an amount equal to the excess of the Fair
Market Value of such shares immediately prior to such Change in Control over the
exercise price per share of such Option; such amount shall be payable in cash,
in one or more kinds of property (including the property, if any, payable in the
transaction) or a combination thereof, as the Committee shall determine in its
sole discretion.
For purposes of the Plan, a Change in Control shall be deemed to
have occurred if:
(i) a tender offer (or series of related offers) shall be
made and consummated for the ownership of 50% or more of the
outstanding voting securities of the Company, unless as a result
of such tender offer more than 50% of the outstanding voting
3
securities of the surviving or resulting corporation shall be
owned in the aggregate by the stockholders of the Company (as of
the time immediately prior to the commencement of such offer),
any employee benefit plan of the Company or its Subsidiaries,
and their affiliates;
(ii) the Company shall be merged or consolidated with
another corporation, unless as a result of such merger or
consolidation more than 50% of the outstanding voting securities
of the surviving or resulting corporation shall be owned in the
aggregate by the stockholders of the Company (as of the time
immediately prior to such transaction), any employee benefit
plan of the Company or its Subsidiaries, and their affiliates;
(iii) the Company shall sell substantially all of its
assets to another corporation that is not wholly owned by the
Company, unless as a result of such sale more than 50% of such
assets shall be owned in the aggregate by the stockholders of
the Company (as of the time immediately prior to such
transaction), any employee benefit plan of the Company or its
Subsidiaries and their affiliates; or
(iv) a Person (as defined below) shall acquire 50% or more
of the outstanding voting securities of the Company (whether
directly, indirectly, beneficially or of record), unless as a
result of such acquisition more than 50% of the outstanding
voting securities of the surviving or resulting corporation
shall be owned in the aggregate by the stockholders of the
Company (as of the time immediately prior to the first
acquisition of such securities by such Person), any employee
benefit plan of the Company or its Subsidiaries, and their
affiliates.
For purposes of this Section 5(c), ownership of voting
securities shall take into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date hereof)
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In
addition, for such purposes, "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof; however, a Person shall not include (A) the Company or any of its
Subsidiaries; (B) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Subsidiaries; (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities; or (D) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportion as their
ownership of stock of the Company.
(d) METHOD OF EXERCISE. Options to the extent then exercisable
may be exercised in whole or in part at any time during the option period, by
giving written notice to the Company specifying the number of shares of Stock to
be purchased, accompanied by payment in full of the purchase price, in cash, or
by check or such other instrument as may be acceptable to the Committee. As
determined by the Committee, in its sole discretion, at or after grant, payment
in full or in part may be made at the election of the Optionee (i) in the form
of Stock owned by the Optionee (based on the Fair Market Value of the Stock on
the trading day before the Option is exercised) which is not the subject of any
pledge or security interest, (ii) in the form of shares of Stock withheld by the
Company from the shares of Stock otherwise to be received with such withheld
shares of Stock having a Fair Market Value on the date of exercise equal to the
4
exercise price of the Option, or (iii) by a combination of the foregoing,
provided that the combined value of all cash and cash equivalents and the Fair
Market Value of any shares surrendered to the Company is at least equal to such
exercise price and except with respect to (ii) above, such method of payment
will not cause a disqualifying disposition of all or a portion of the Stock
received upon exercise of an Incentive Option. An Optionee shall have the right
to dividends and other rights of a stockholder with respect to shares of Stock
purchased upon exercise of an Option at such time as the Optionee (i) has given
written notice of exercise and has paid in full for such shares and (ii) has
satisfied such conditions that may be imposed by the Company with respect to the
withholding of taxes.
(e) NON-TRANSFERABILITY.
(i) Except as provided in Section 5(e)(ii) hereof, during
the lifetime of an Optionee, only the Optionee (or, in the event
of legal incapacity or incompetence, the Optionee's guardian or
legal representative) may exercise an Option. Except as provided
in Section 5(e)(ii) hereof, no Option shall be assignable or
transferable by the Optionee to whom it is granted, other than
by will or the laws of descent and distribution.
(ii) A Optionee may Transfer (as defined in Section
5(e)(iii) below) all or part of an Option that is not an
Incentive Stock Option by gift or domestic relations order to
any "family member" (as that term is defined under Rule
701(c)(3) of the Securities Act, as amended or any successor
provision of law); provided, that (x) there shall be no
consideration for any such Transfer and (y) subsequent Transfers
of transferred Options shall be prohibited except those made in
accordance with this Section 5(e)(ii) or by will or the laws of
descent and distribution and otherwise in compliance with
applicable U.S. federal and state and foreign securities laws.
Following any permitted Transfer hereunder, any transferred
Option shall continue to be subject to the same terms and
conditions as were applicable immediately prior to such
Transfer, provided that for purposes of this Section 5(e)(ii)
the term "Optionee" shall be deemed to refer to the transferee
and the transferee shall agree to be bound by the terms and
conditions of the Options and this Plan. The events of
termination of the employment or other relationship of Section
5(i) hereof shall continue to be applied with respect to the
original Optionee, following which the Option shall be
exercisable by the transferee only to the extent and for the
periods specified in Section 5(g), 5(h), 5(i), or 5(j) hereof.
(iii) Except pursuant to the laws of descent and
distribution, Optionee shall not sell or in any other way,
directly or indirectly, transfer, assign, distribute, pledge,
hypothecate, encumber, gift or otherwise alienate or dispose of
(collectively, "Transfer") any Stock issued pursuant to the
exercise of an Option (whether now owned or hereafter acquired
pursuant to such exercise), or any right or interest therein,
whether voluntarily or involuntarily, by operation of law, court
order, foreclosure, marital property division or otherwise,
except (a) in compliance with all applicable U.S. federal and
state and foreign securities laws and (b) with the written
consent of the Company. Notwithstanding the foregoing, the
6
Optionee may Transfer such Stock by gift or domestic relations
order to any "family member" (as that term is defined under Rule
701(c)(3) of the Securities Act, as amended from time to time)
without obtaining the written consent of the Company; provided,
that (i) such Transfer shall be in compliance with all
applicable U.S. federal and state and foreign securities laws;
(ii) there shall be no consideration for any such Transfer; and
(iii) the transferee shall agree not to Transfer such Stock
except in accordance with this Section 5(e)(iii). Any attempted
Transfer of Stock acquired pursuant to the exercise of an Option
that is not permitted in accordance with this Section 5(e)(iii)
shall be void and of no further force and effect and shall not
be registered on the books of the Company. The provisions of
this Section 5(e)(iii) will be of no further force or effect
upon the earlier of: (x) the first date on which Shares are held
of record by more than five hundred (500) persons and are
registered pursuant to an effective registration statement filed
with the United States Securities and Exchange Commission; (y)
the consummation of a firm commitment underwritten public
offering, pursuant to an effective registration statement under
the Securities Act, as amended from time to time; or (z) a sale
of the Company to, or merger of the Company with, a company
subject to the reporting requirements of the Exchange Act, as
amended from time to time.
(f) NO RIGHTS AS A STOCKHOLDER. No Optionee (or other person
having the right to exercise such award) shall have any of the rights of a
stockholder of the Company with respect to shares subject to such award until
the issuance of a stock certificate to such person for such shares. Except as
otherwise provided herein, no adjustment shall be made for dividends,
distributions or other rights (whether ordinary or extraordinary, and whether in
cash, securities or other property) for which the record date is prior to the
date such stock certificate is issued.
(g) TERMINATION BY DEATH. Unless otherwise determined by the
Committee, if any Optionee's employment with or service to the Company or any
Subsidiary terminates by reason of death, the Option may thereafter be
exercised, to the extent then exercisable (or on such accelerated basis as the
Committee shall determine at or after grant), by the legal representative of the
estate or by the legatee of the Optionee under the will of the Optionee, for a
period of one year after the date of such death or until the expiration of the
stated term of such Option as provided under the Plan, whichever period is
shorter.
(h) TERMINATION BY REASON OF DISABILITY. Unless otherwise
determined by the Committee, if any Optionee's employment with or service to the
Company or any Subsidiary terminates by reason of total and permanent
disability, any Option held by such Optionee may thereafter be exercised, to the
extent it was exercisable at the time of termination due to Disability (or on
such accelerated basis as the Committee shall determine at or after grant), but
may not be exercised after 90 days after the date of such termination of
employment or service or the expiration of the stated term of such Option,
whichever period is shorter; PROVIDED, HOWEVER, that, if the Optionee dies
within such 90-day period, any unexercised Option held by such Optionee shall
thereafter be exercisable to the extent to which it was exercisable at the time
of death for a period of one year after the date of such death or for the stated
term of such Option, whichever period is shorter.
6
(i) TERMINATION BY REASON OF RETIREMENT. Unless otherwise
determined by the Committee, if any Optionee's employment with or service to the
Company or any Subsidiary terminates by reason of Normal or Early Retirement (as
such terms are defined below), any Option held by such Optionee may thereafter
be exercised to the extent it was exercisable at the time of such Retirement (or
on such accelerated basis as the Committee shall determine at or after grant),
but may not be exercised after 90 days after the date of such termination of
employment or service or the expiration of the stated term of such Option,
whichever period is shorter; provided, however, that, if the Optionee dies
within such 90-day period, any unexercised Option held by such Optionee shall
thereafter be exercisable, to the extent to which it was exercisable at the time
of death, for a period of one year after the date of such death or for the
stated term of such Option, whichever period is shorter.
For purposes of this paragraph (i), "Normal Retirement" shall
mean retirement from active employment with the Company or any Subsidiary on or
after the normal retirement date specified in the applicable Company or
Subsidiary pension plan or if no such pension plan, age 65, and "Early
Retirement" shall mean retirement from active employment with the Company or any
Subsidiary pursuant to the early retirement provisions of the applicable Company
or Subsidiary pension plan or if no such pension plan, age 55.
(j) OTHER TERMINATION. Unless otherwise determined by the
Committee, if any Optionee's employment with or service to the Company or any
Subsidiary terminates for any reason other than death, Disability or Normal or
Early Retirement, the Option shall thereupon terminate, except that the portion
of any Option that was exercisable on the date of such termination of employment
or service may be exercised for the lesser of 90 days after the date of
termination or the balance of such Option's term if the Optionee's employment or
service with the Company or any Subsidiary is terminated by the Company or such
Subsidiary without cause (the determination as to whether termination was for
cause to be made by the Committee). The transfer of an Optionee from the employ
of or service to the Company to the employ of or service to a Subsidiary, or
vice versa, or from one Subsidiary to another, shall not be deemed to constitute
a termination of employment or service for purposes of the Plan.
(k) LIMIT ON VALUE OF INCENTIVE OPTION. The aggregate Fair
Market Value, determined as of the date the Incentive Option is granted, of
Stock for which Incentive Options are exercisable for the first time by any
Optionee during any calendar year under the Plan (and/or any other stock option
plans of the Company or any Subsidiary) shall not exceed $100,000.
(l) INCENTIVE OPTION SHARES. A grant of an Incentive Option
under this Plan shall provide that (a) the Optionee shall be required as a
condition of the exercise to furnish to the Company any payroll (employment) tax
required to be withheld, and (b) if the Optionee makes a disposition, within the
meaning of Section 424(c) of the Code and regulations promulgated thereunder, of
any share or shares of Stock issued to him upon exercise of an Incentive Option
granted under the Plan within the two-year period commencing on the day after
the date of the grant of such Incentive Option or within a one-year period
commencing on the day after the date of transfer of the share or shares to him
pursuant to the exercise of such Incentive Option, he shall, within 10 days
after such disposition, notify the Company thereof and immediately deliver to
the Company any amount of United States federal, state and local income tax
withholding required by law.
7
6. TERMS AND CONDITIONS OF RESTRICTED STOCK.
Restricted Stock may be granted under this Plan aside from, or
in association with, any other award and shall be subject to the following
conditions and shall contain such additional terms and conditions (including
provisions relating to the acceleration of vesting of Restricted Stock upon a
Change of Control), not inconsistent with the terms of the Plan, as the
Committee shall deem desirable:
(a) GRANTEE RIGHTS. A Grantee shall have no rights to an award
of Restricted Stock unless and until Grantee accepts the award within the period
prescribed by the Committee and, if the Committee shall deem desirable, makes
payment to the Company in cash, or by check or such other instrument as may be
acceptable to the Committee. After acceptance and issuance of a certificate or
certificates, as provided for below, the Grantee shall have the rights of a
stockholder with respect to Restricted Stock subject to the non-transferability
and forfeiture restrictions described in Section 6(d) below.
(b) ISSUANCE OF CERTIFICATES. The Company shall issue in the
Grantee's name a certificate or certificates for the shares of Common Stock
associated with the award promptly after the Grantee accepts such award.
(c) DELIVERY OF CERTIFICATES. Unless otherwise provided, any
certificate or certificates issued evidencing shares of Restricted Stock shall
not be delivered to the Grantee until such shares are free of any restrictions
specified by the Committee at the time of grant.
(d) FORFEITABILITY, NON-TRANSFERABILITY OF RESTRICTED STOCK.
Shares of Restricted Stock are forfeitable until the terms of the Restricted
Stock grant have been satisfied. Shares of Restricted Stock are not transferable
until the date on which the Committee has specified such restrictions has
lapsed. Unless otherwise provided, distributions in the form of dividends or
otherwise of additional shares or property in respect of shares of Restricted
Stock shall be subject to the same restrictions as such shares of Restricted
Stock.
(e) CHANGE OF CONTROL. Upon the occurrence of a Change in
Control, the Committee may accelerate the vesting of outstanding Restricted
Stock, in whole or in part, as determined by the Committee in its sole
discretion.
(f) TERMINATION OF EMPLOYMENT. In the event the Grantee ceases
to be an employee or otherwise associated with the Company with the consent of
the Committee, or upon his death, Retirement or disability, the restrictions
imposed under this Section 6 shall lapse with respect to such number of shares
theretofore awarded to him as shall be determined by the Committee, but, in no
event, less than a number equal to the product of (i) a fraction the numerator
of which is the number of completed months elapsed after the date of award of
the Restricted Stock to the Grantee to the date of termination and the
denominator of which is the number of months in the Restriction Period and (ii)
the number of shares of Restricted Stock. As to any Restricted Stock then
remaining, all such Restricted Stock shall be forfeited.
In the event the Grantee ceases to be an employee or otherwise
associated with the Company for any other reason, all shares of Restricted Stock
theretofore awarded to him which are still subject to restrictions shall be
forfeited and the Company shall have the right to complete the blank stock
8
power; PROVIDED, HOWEVER, that the Committee may provide, by rule or regulation
or in any Award agreement that restrictions or forfeiture conditions relating to
shares of Restricted Stock will be waived in whole or in part in the event of
termination resulting from specified causes, and the Committee may in other
cases waive in whole or in part restrictions or forfeiture conditions relating
to Restricted Stock.
7. TERM OF PLAN.
No Option or Restricted Stock shall be granted pursuant to the
Plan on the date which is ten years from the effective date of the Plan, but
Options theretofore granted may extend beyond that date.
8. CAPITAL CHANGE OF THE COMPANY.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in corporate structure
affecting the Stock, the Committee shall make an appropriate and equitable
adjustment in the number and kind of shares reserved for issuance under the Plan
and in the number and option price of shares subject to outstanding Options
granted under the Plan, to the end that after such event each Optionee's
proportionate interest shall be maintained as immediately before the occurrence
of such event. The Committee shall, to the extent feasible, make such other
adjustments as may be required under the tax laws so that any Incentive Options
previously granted shall not be deemed modified within the meaning of Section
424(h) of the Code. Appropriate adjustments shall also be made in the case of
outstanding Restricted Stock granted under the Plan.
9. PURCHASE FOR INVESTMENT.
Unless the Options and shares covered by the Plan have been
registered under the Securities Act, or the Company has determined that such
registration is unnecessary, each person exercising or receiving Options or
Restricted Stock under the Plan may be required by the Company to give a
representation in writing that he is acquiring the securities for his own
account for investment and not with a view to, or for sale in connection with,
the distribution of any part thereof.
10. TAXES.
(a) The Company may make such provisions as it may deem
appropriate, consistent with applicable law, in connection with any Options or
Restricted Stock granted under the Plan with respect to the withholding of any
taxes (including income or employment taxes) or any other tax matters.
(b) If any Grantee, in connection with the acquisition of
Restricted Stock, makes the election permitted under Section 83(b) of the Code
(that is, an election to include in gross income in the year of transfer the
amounts specified in Section 83(b)), such Grantee shall notify the Company of
the election with the Internal Revenue Service pursuant to regulations issued
under the authority of Code Section 83(b).
9
(c) If any Grantee shall make any disposition of shares of Stock
issued pursuant to the exercise of an Incentive Option under the circumstances
described in Section 421(b) of the Code (relating to certain disqualifying
dispositions), such Grantee shall notify the Company of such disposition within
10 days hereof.
11. FORM OF PAYMENT UNDER AWARDS.
Subject to the terms of the Plan and any applicable Award
agreement, payments or transfers to be made by the Company upon the grant or
exercise of an Award may be made in such forms as the Committee shall determine
at or after the time of grant, including, without limitation, cash, shares,
other Awards, or other property, or any combination thereof, and may be made in
a single payment or transfer, in installments, or on a deferred basis, in each
case in accordance with rules and procedures established by the Committee. Such
rules and procedures may include, without limitation, provisions for the payment
or crediting of reasonable interest on installment or deferred payments or the
grant or crediting in respect of installment or deferred payments denominated in
shares.
12. CONDITIONS ON AWARDS.
In the event that the employment of a Grantee holding any Option
or Restricted Stock under the Plan shall terminate with the consent of the
Committee or by reason of retirement or disability, the rights of such
Participant to any such Option, or shares shall be subject to the conditions
that until any such Option is exercised, or any such Restricted Stock is earned,
he shall (i) not engage, either directly or indirectly, in any manner or
capacity as advisor, principal, agent, partner, officer, director, employee,
member of any association or otherwise, in any business or activity which is at
the time competitive with any business or activity conducted by the Company and
(ii) be available, unless he shall have died, at reasonable times for
consultations at the request of the Company's management with respect to phases
of the business with which he was actively connected during his employment, but
such consultations shall not (except in the case of a Participant whose active
service was outside of the United States of America) or during usual vacation
periods or periods of illness or other incapacity. In the event that either of
the above conditions is not fulfilled or the Optionee or Grantee breaches any
agreement with the company, then all rights to any unexercised option or shares
held as of the date of the breach of condition shall be immediately forfeited
and such option shall expire and Restricted Stock cancelled or reverted to the
Company or grantor of such option or shares in accordance with its terms. Any
determination by the Committee, which shall act upon the recommendation of the
Chairman, that the Participant is, or has, engaged in a competitive business or
activity as aforesaid or has not been available for consultations or breached
any agreement as aforesaid shall be conclusive.
In the event of any conduct by Grantee in contravention of any
non-compete, non-raid of employees, customers or suppliers or confidentiality
clause of any agreement or understanding with Grantee, or a material breach of
the policy of the Company with respect to trade secrets, confidential
information, competition or other terms or conditions of employment or other
willful misconduct or disparaging remarks concerning the Company, all
obligations of the Company to issue shares upon the exercise of any Option and
10
any Restricted Stock shall immediately terminate and any such Option or
Restricted Stock shall be canceled and forfeited and shall be of no further
force and effect.
13. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of December 9, 2004 and shall
terminate November 30, 2014; PROVIDED, HOWEVER, that the Plan has heretofer been
approved by majority vote of the Company's stockholders.
14. AMENDMENT AND TERMINATION.
The Board may amend, suspend, or terminate the Plan, except that
no amendment shall be made that would impair the rights of any Optionee or
Grantee under any Option or Restricted Stock theretofore granted without the
Optionee or Grantee's consent, and except that no amendment shall be made which,
without the approval of the stockholders of the Company would:
(a) materially increase the number of shares that may be issued
under the Plan, except as is provided in Section 8;
(b) materially increase the benefits accruing to the Optionees
or Grantees under the Plan;
(c) materially modify the requirements as to eligibility for
participation in the Plan;
(d) decrease the exercise price of an Incentive Option to less
than 100% of the Fair Market Value per share of Stock on the date of grant
thereof or the exercise price of a Nonqualified Option to less than 80% of the
Fair Market Value per share of Stock on the date of grant thereof; or
(e) extend the term of any Option beyond that provided for in
Section 5(b).
The Committee may amend, suspend or terminate the Plan or amend
the terms of any Option or Restricted Stock theretofore granted, prospectively
or retroactively, but no such amendment shall impair the rights of any Optionee
or Grantee without the Optionee or Grantee's consent. The Committee may also
substitute new Options or Restricted Stock for previously granted Options or
Restricted Stock including options granted under other plans applicable to the
participant and previously granted Options having higher option prices, upon
such terms as the Committee may deem appropriate.
15. GOVERNMENT REGULATIONS.
The Plan, and the grant and exercise of Options or Restricted
Stock hereunder, and the obligation of the Company to sell and deliver shares
under such Options and Restricted Stock shall be subject to all applicable laws,
rules and regulations, and to such approvals by any governmental agencies,
national securities exchanges and interdealer quotation systems as may be
required.
11
16. GENERAL PROVISIONS.
(a) CERTIFICATES. All certificates for shares of Stock delivered
under the Plan shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations
and other requirements of the Securities and Exchange Commission, or other
securities commission having jurisdiction, any applicable Federal or state
securities law, any stock exchange or interdealer quotation system upon which
the Stock is then listed or traded and the Committee may cause a legend or
legends to be placed on any such certificates to make appropriate reference to
such restrictions.
(b) EMPLOYMENT MATTERS. Neither the adoption of the Plan nor any
grant or award under the Plan shall confer upon any Optionee or Grantee of the
Company or any Subsidiary any right to continued employment or, in the case of
an Optionee or Grantee who is a director, continued service as a director, with
the Company or a Subsidiary, as the case may be, nor shall it interfere in any
way with the right of the Company or any Subsidiary to terminate the employment
of any of its employees, the service of any of its directors or the retention of
any of its consultants or advisors at any time.
(c) LIMITATION OF LIABILITY. No member of the Board or the
Committee, or 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 in good faith with respect to the Plan, and all
members of the Board or the Committee and each and any officer or employee 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.
(d) REGISTRATION OF STOCK. Notwithstanding any other provision
in the Plan, no Option may be exercised unless and until the Stock to be issued
upon the exercise thereof has been registered under the Securities Act and
applicable state securities laws, or are, in the opinion of counsel to the
Company, exempt from such registration in the United States. The Company shall
not be under any obligation to register under applicable federal or state
securities laws any Stock to be issued upon the exercise of an Option granted
hereunder in order to permit the exercise of an Option and the issuance and sale
of the Stock subject to such Option, although the Company may in its sole
discretion register such Stock at such time as the Company shall determine. If
the Company chooses to comply with such an exemption from registration, the
Stock issued under the Plan may, at the direction of the Committee, bear an
appropriate restrictive legend restricting the transfer or pledge of the Stock
represented thereby, and the Committee may also give appropriate stop transfer
instructions with respect to such Stock to the Company's transfer agent.
17. NON-UNIFORM DETERMINATIONS.
The Committee's determinations under the Plan, including,
without limitation, (i) the determination of the Participants to receive awards,
(ii) the form, amount and timing of such awards, (iii) the terms and provisions
of such awards and (ii) the agreements evidencing the same, need not be uniform
and may be made by it selectively among Participants who receive, or who are
12
eligible to receive, awards under the Plan, whether or not such Participants are
similarly situated.
18. GOVERNING LAW.
The validity, construction, and effect of the Plan and any rules
and regulations relating to the Plan shall be determined in accordance with the
internal laws of the State of Florida, without giving effect to principles of
conflicts of laws, and applicable federal law.
CEPTOR CORPORATION
December 9, 2004
