ACCESS POWER, INC.
STOCK OPTION PLAN
TABLE OF CONTENTS
Page
Purpose 1
Definitions 1
Administration 3
Eligibility 4
Stock 4
Terms and Conditions 4
Incentive Stock Options and Nonqualified stock Options 6
Termination of Options 7
Amendment and Termination of the Plan 8
No Obligation to Exercise Option 8
Effective Date; Duration of the Plan 8
Effect of Plan 9
(i)
ACCESS POWER, INC.
STOCK OPTION PLAN
1. PURPOSE
1.1 The purpose of the Access Power, Inc. Stock Option Plan is
to provide an incentive to key Employees of the Company and its
Affiliates who are in a position to contribute materially to expanding
and improving the Company's profits, to aid in attracting and
retaining Employees of outstanding ability, and to encourage ownership
of Shares by Employees.
2. DEFINITIONS
2.1 For purposes of the Plan the following terms shall have the
definition which is attributed to them, unless another definition is
clearly indicated by a particular usage and context.
(a) "AFFILIATES" means a Subsidiary or a Parent.
(b) "BOARD" means the Company's Board of Directors.
(c) "CODE" means the Internal Revenue Code of 1986, as
amended.
(d) "COMMITTEE" means the Plan Committee appointed by the
Board pursuant to Section 3.1 hereof.
(e) "COMPANY" means Access Power, Inc. and successors
thereto.
(f) "EFFECTIVE DATE OF EXERCISE" means the later of (i) the
date on which the Company has received a written notice of exercise of
an Option and full payment of the purchase price from the Optionee, or
(ii) the effective date of exercise set forth in written notice.
(g) "EFFECTIVE DATE OF GRANT" means the date on which the
Committee makes an award of an Option.
(h) "EMPLOYEE" means any individual who performs services
for the Company or an Affiliate and is considered to be an employee on
the regular payroll of the Company or an Affiliate.
(i) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(j) "FAIR MARKET VALUE" means on, or with respect to, any
given date:
(k)
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(i) If the Shares are listed on a national stock
exchange, the closing market price of such Shares as reported on
the composite tape for issues listed on such exchange on such
date or, if no trades shall have been reported for such date, on
the next preceding date on which there were trades reported;
provided, that if no such quotations shall have been made within
the ten business days preceding such date, Fair Market Value
shall be determined under (iii) below.
(ii) If the Shares are not listed on a national stock
exchange but are traded on the over the counter market, the mean
between the closing dealer bid and asked price of such Shares as
reported by the National Association of Securities Dealers
through their Automated Quotation System for such date, or if no
quotations shall have been made on such date, on the next
preceding date on which there were quotations; provided, that, if
no such quotations shall have been made within the ten business
days preceding such date, Fair Market Value shall be determined
under (iii) below.
(iii) If (i) and (ii) do not apply, the fair market
value of a Share without regard to any control premium or
discount for lack of control (except as otherwise required by
Code Section 422) as determined by the Committee in good faith.
(l) "INCENTIVE STOCK OPTION" shall have the same meaning as given to
that term by Code Section 422 and any regulations or rulings
promulgated thereunder.
(m) "NONQUALIFIED STOCK OPTION" means any Option granted under the
Plan which is not considered an Incentive Stock Option.
(n) "OPTION" means the right to purchase from the Company a stated
number of Shares at a specified price. The Option may be granted to
an Employee subject to the terms of this Plan, and such other
conditions and restrictions as the Committee deems appropriate. Each
Option shall be designated by the Committee to be either an Incentive
Stock Option or a Nonqualified Stock Option.
(o) "OPTION PRICE" means the purchase price per Share subject to an
Option and shall be fixed by the Committee, which, with respect to an
Incentive Stock Option, shall not be less than 100% of the Fair Market
Value of a Share on the Effective Date of Grant and with respect to a
Nonqualified Stock Option, shall not be less than the par value of a
Share on the Effective Date of Grant.
(p) "OPTIONEE" means an Employee who has been awarded an Option under
the Plan.
(q)
(r) "OPTIONED SHARES" means Shares subject to outstanding Options.
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(s) "PARENT" shall mean any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company if, at the
time of a granting of an Option, each of the corporations (other than
the Company) owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain within the meaning of Code Section 424(e) and any
regulations or rulings promulgated thereunder.
(t) "PERMANENT AND TOTAL DISABILITY" shall have the same meaning as
given to that term by Code Section 22(e)(3) and any regulations or
rulings promulgated thereunder.
(u) "PLAN" means Access Power, Inc. Stock Option Plan, as evidenced
herein and as amended from time to time.
(v) "SEC RULE 16B-3" means Rule 16b-3 of the Securities and Exchange
Commission promulgated under the Exchange Act.
(w) "SHARE" means one share of the $.001 par value common stock of
the Company.
(x) "SUBSIDIARY" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of the
granting of an Option, each of the corporations (other than the last
corporation) in the unbroken chain owns stock possessing 50% or more
of the total combined voting power of all classes of stock in one of
the other corporations in such chain, within the meaning of Code
Section 424(f) and any regulations or rulings promulgated thereunder.
3. ADMINISTRATION
3.1 The Plan shall be administered by the Committee. The Committee
shall be comprised of not less than two of the then members of the
Board. The members of the Committee shall be appointed by the Board.
At the time the Company is subject to the Exchange Act, the members of
the Committee shall be disinterested persons within the meaning of
Rule 16b-3, unless the Board decides otherwise. The Board may from
time to time remove members from or add members to the Committee.
Vacancies on the Committee, howsoever caused, shall be filled by the
Board. If at any time, there are no members of the Committee, the
Board shall serve as the Committee.
3.2 The action of a majority of the Committee at which a quorum is
present, or acts reduced to or so approved in writing by a majority of
the Committee, shall be the valid acts of the Committee.
3.3
3.4 The Committee shall from time to time at its discretion designate
the key Employees who shall be granted Options, determine the number
of shares to be granted to each, determine the term of each option,
and determine whether the Option is an Incentive Stock Option or
Nonqualified Stock Option and the general terms of the Option.
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3.5 The interpretation and construction by the Committee of any
provisions of the Plan or of any Option granted under it and all
actions of the Committee shall be final and binding on all parties
hereto. 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 Option granted under it.
4. ELIGIBILITY
4.1 Each Optionee shall be an Employee who is a key Employee of the
Company or an Affiliate, as selected by the Committee in its sole
tdiscretion from time to time.
4.2 Except as provided in Section 7.2(a), no Incentive Stock Option
shall be granted to any individual who owns, directly or indirectly,
stock representing more than 10% of the total combined voting power of
all classes of stock of the Company or an Affiliate.
5. STOCK
5.1 The aggregate number of Shares with respect to which Options may
be granted pursuant to the Plan shall not exceed 1,000,000 Shares.
The maximum number of Shares with respect to which Options may be
granted under the Plan to any one Employee shall not exceed 250,000
Shares.
5.2 In the event that any outstanding Option under the Plan expires
or is terminated for any reason, the Optioned Shares subject to that
option may again be available for an Option under the Plan.
6. TERMS AND CONDITIONS
6.1 Options granted pursuant to the Plan shall be authorized by the
Committee under terms and conditions approved by the Committee and
shall be evidenced by agreements in such form as the Committee shall
from time to time approve, which agreements shall contain or shall be
subject to the following terms and conditions, whether or not such
terms and conditions are specifically included therein:
(a) NUMBER OF SHARES. Each Option shall state the number of Shares
to which it pertains.
(b) DATE. Each Option shall state the Effective Date of Grant.
(c) OPTION PRICE. Each Option shall state the Option Price.
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(d) METHOD AND TIME OF PAYMENT. The Option Price shall be payable on
the exercise of the Option and shall be paid in cash; in Shares,
including Shares acquired pursuant to the Plan; or part in cash and
part in Shares. Shares transferred in payment of the Option Price
shall be valued as of date of transfer based on the Fair Market Value.
The Committee may restrict the use of Shares as payment upon exercise.
(e) TRANSFER OF OPTION. No Option shall be transferable by the
Optionee, except by will or the laws of descent and distribution upon
the Optionee's death and subject to any other limitations of the Plan.
(f) RECAPITALIZATION. The number of Optioned Shares and the Option
Price shall be correspondingly adjusted in order to give effect to
changes made in the number of outstanding Shares as a result of a
merger, consolidation, reorganization, recapitalization,
reclassification, combination, stock dividend, stock split, or other
relevant change.
(g) RIGHTS AS A SHAREHOLDER. An Optionee shall have no rights as a
shareholder with respect to any Optioned Shares until the date of the
issuance of a stock certificate to him for such Shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate
is issued, except as provided in Section 6.1(f).
(h) INVESTMENT PURPOSE.
(i) The Company shall not be obligated to sell or
issue any Shares pursuant to any Option unless the Shares with
respect to which the Option is being exercised are in the opinion
of the Company's legal counsel at that time effectively
registered or exempt from registration under the Securities Act
of 1933, as amended.
(ii) Notwithstanding anything in the Plan to the
contrary, the Company may require as a condition to exercise any
Option a representation by the Optionee that the purchases of
Shares thereunder shall be for investment purposes and not with a
view for resale or distribution.
(i) DURATION OF OPTION. Subject to specific provisions relating to
Incentive Stock Options set forth in Section 7, each Option shall be
for a term of up to ten (10) years from the Effective Date of Grant as
determined in the sole discretion of the Committee.
(j) OTHER PROVISIONS. Options authorized under the Plan may contain
any other provisions or restrictions as the Committee in its sole and
absolute discretion shall deem advisable including but not limited to
offering Options in tandem with or reduced by other options or
employee benefits and reducing one award by the exercise of another
option or benefit. The Company may place such restriction legends on
stock certificates representing the Shares as the Company, in its sole
discretion, deems necessary or appropriate to reflect restrictions
under the securities laws or this Plan.
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6.2 CONTINUOUS EMPLOYMENT. Nothing contained in this Plan or in any
Option granted pursuant to it shall confer upon any Employee any right
to continue in the employ of the Company, or an Affiliate, as the case
may be, or to interfere in any way with the right of the Company or an
Affiliate to terminate employment at any time. So long as a holder of
an Option shall continue to be an Employee of the Company or an
Affiliate, the Option shall not be affected by any change of the
Employee's duties or position.
6.3 EXERCISE OF OPTIONS. Any person entitled to exercise an Option
may do so in whole or in part by delivering to the Company, attention
Corporate Secretary, at its principal office a written notice of
exercise. The written notice shall specify the number of Shares for
which an Option is being exercised and shall be accompanied by full
payment of the Option Price for the Shares being purchased. During
the Optionee's lifetime, an Option may be exercised only by the
Optionee, or on his behalf by the Optionee's guardian or legal
representative.
7. INCENTIVE STOCK OPTIONS AND NONQUALIFIED STOCK OPTIONS
7.1 The Committee in its sole discretion may designate whether an
Option is to be considered an Incentive Stock Option or a Nonqualified
Stock Option. The Committee may grant both an Incentive Stock Option
and a Nonqualified Stock Option to the same individual. However,
where both an Incentive Stock Option and a Nonqualified Stock Option
are awarded at one time, such Options shall be deemed to have been
awarded in separate grants, shall be clearly identified, and in no
event will the exercise of one such Option affect the right to
exercise the other such Option except to the extent the Committee
determines in writing otherwise.
7.2 Any option designated by the Committee as an Incentive Stock
Option will be subject to the general provisions applicable to all
Options granted under the Plan. In addition, the Incentive Stock
Option shall be subject to the following specific provisions:
(a) At the time the Incentive Stock Option is granted, if the
Employee owns, directly or indirectly, stock representing more than
10% of the total combined voting power of all classes of stock of the
Company then:
(i) The Option Price must equal at least 110% of the
Fair Market Value on the Effective Date of Grant of the Shares
subject to the Option; and
(ii) The term of the Option shall not be greater than
five years from the Effective date of Grant.
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(b) The aggregate Fair Market Value of Shares (determined at the
Effective Date of Grant) with respect to which Incentive Stock Options
granted by the Company, a Parent or Subsidiary can be exercised by an
Employee for the first time in any one calendar year shall not exceed
$100,000.
7.3 If any Option is not granted, exercised, or held pursuant to the
provisions noted immediately above, it will be considered to be a
Nonqualified Stock Option to the extent that any or all of the grant
is in conflict with these restrictions.
8. TERMINATION OF OPTIONS
8.1 An Option may be terminated as follows:
(a) During the period of continuous employment with the Company or
Subsidiary, an Option will be terminated only if it has been fully
exercised or it has expired by its terms.
(b) In the event of termination of employment for any reason, the
Option will terminate upon the earlier of (i) the full exercise of the
Option, (ii) the expiration of the Option by its terms, or (iii)
except as provided in Section 8.1(c), no more than three years (3
months for Incentive Stock Options) following the date of employment
termination. For purposes of the Plan, a leave of absence approved by
the Company shall not be deemed to be termination of employment except
with respect to an Incentive Stock Option as required to comply with
Code Section 422 and the regulations issued thereunder.
(c) If an Optionee's employment terminates by reason of death or
Permanent and Total Disability prior to the termination of an Option,
such Option may be exercised to the extent that the Optionee shall
have been entitled to exercise it at the time of death or Permanent
and Total Disability, as the case may be, by the Optionee, the estate
of the Optionee or the person or persons to whom the Option may have
been transferred by will or by the laws of descent and distribution
for the period set forth in the Option, but no more than three years
following the date of such death or Permanent and Total Disability,
provided, however, with respect to an Incentive Stock Option, such
right must be exercised, if at all, within
(d)
one year after the date of such death or Permanent and Total
Disability.
8.2 Except as otherwise expressly provided in the written agreement
with the Optionee referred to in Section 6, and except as provided in
this Section, in no event will the continuation of the term of an
Option beyond the date of termination of employment allow the
Employee, or his beneficiaries or heirs, to accrue additional rights
under the Plan, or to purchase more Shares through the exercise of an
Option than could have been purchased on the day that employment was
terminated.
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9. AMENDMENT AND TERMINATION OF THE PLAN
9.1 The Plan may be amended by the Board, without Shareholder
approval, at any time in any respect, unless Shareholder approval of
the amendment in question is required under Florida law, the Code and,
when applicable, any exemption from Section 16 of the Exchange Act
(including without limitation SEC Rule 16b-3) for which the Company
intends Section 16 persons to qualify, any national securities
exchange system on which the Shares are then listed or reported, by
any regulatory body having jurisdiction with respect to the Plan, or
any other applicable laws, rules or regulations.
9.2 When the Company is subject to the Exchange Act, the Plan
provisions that determine the amount, price and timing of the option
grants to Section 16 persons may not be amended more than once every
six months, other than to comport with changes in the Code, the
Employee Retierment Income Security Act of 1974, or rules thereunder,
unless the Company's legal counsel determines that such restriction on
amendments is not necessary to secure or maintain any exemptions from
Section 16 of the Exchange Act for which the Company intends Section
16 persons to qualify.
9.3 The Plan may be terminated at any time by the Board.
9.4 No amendment to the Plan will alter or impair any Option granted
under the Plan without the consent of the holders thereof.
10. NO OBLIGATION TO EXERCISE OPTION
The granting of an option shall impose no obligation upon the
Optionee to exercise such option.
11. EFFECTIVE DATE; DURATION OF THE PLAN
11.1 The Plan shall become effective as of June 15, 1997. The
effectiveness of the Plan is subject to the condition that it shall
have been approved by the shareholders of the Company within twelve
months after its adoption. Unless such approval by the shareholders
shall have been obtained, this Plan and any Option granted pursuant
thereto shall be null and void and without effect.
11.2
11.3 No Option may be granted after the tenth anniversary of the
earlier of the date the Plan is adopted or the date the Plan is
approved by shareholders.
12. EFFECT OF PLAN
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The granting of an option pursuant to the Plan shall not give the
Optionee any right to similar grants in future years or any right to
be retained in the employ of the Company or an Affiliate, but an
Optionee shall remain subject to discharge to the same extent as if
the Plan were not in effect.
This Plan is adopted effective as of June 15, 1997.
ACCESS POWER, INC.
By:________________________________
Its
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