Exhibit 4.1
MED GEN, INC.
NONQUALIFIED STOCK OPTION PLAN
The purpose of the Med Gen, Inc. Non-Qualified Stock Option Plan (the
"Plan") is to provide (i) designated employees of Med Gen, Inc. (the
"Company") and its subsidiaries, (ii) certain Key Advisors (as defined
in Section 4(a)) who perform services for the Company or its
subsidiaries and (iii) non-employee members of the Board of Directors
of the Company (the "Board") with the opportunity to receive grants of
nonqualified stock options. The Company believes that the Plan will
encourage the participants to contribute materially to the growth of
the Company, thereby benefiting the Company's shareholders, and will
align the economic interests of the participants with those of the
shareholders.
1. Administration
(a) Committee. The Plan shall be administered and interpreted by the
Board of Directors or a committee appointed by the Board (the Board of
Directors in such capacity or any committee appointed by the Board of
Directors is referred to hereafter as the "Committee"). The Committee
as appointed by the Board shall consist of two or more persons
appointed by the Board, all of whom may or may not be "outside
directors" as defined under section 162(m) of the Internal Revenue
Code of 1986, as amended (the "Code") and related Treasury regulations
and may be "non-employee directors" as defined under Rule 16b-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Committee Authority. The Committee shall have the sole authority
to (i) determine the individuals to whom grants shall be made under
the Plan, (ii) determine the type, size and terms of the grants to be
made to each such individual, (iii) determine the time when the grants
will be made and the duration of any applicable exercise or
restriction period, including the criteria for exercisability and the
acceleration of exercisability and (iv) deal with any other matters
arising under the Plan.
(c) Committee Determinations. The Committee shall have full power and
authority to administer and interpret the Plan, to make factual
determinations and to adopt or amend such rules, regulations,
agreements and instruments for implementing the Plan and for the
conduct of its business as it deems necessary or advisable, in its
sole discretion. The Committee's interpretations of the Plan and all
determinations made by the Committee pursuant to the powers vested in
it hereunder shall be conclusive and binding on all persons having any
interest in the Plan or in any awards granted hereunder. All powers of
the Committee shall be executed in its sole discretion, in the best
interest of the Company, not as a fiduciary, and in keeping with the
objectives of the Plan and need not be uniform as to similarly
situated individuals.
2. Grants
Awards under the Plan will consist of grants of nonqualified stock
options as described in Section 5 ("Nonqualified Stock Options,"
?Options? or ?Grants.?) All Grants shall be subject to the terms and
conditions set forth herein and to such other terms and conditions
consistent with this Plan as the Committee deems appropriate and as
are specified in writing by the Committee to the individual in a grant
instrument (the "Grant Instrument") or an amendment to the Grant
Instrument. In the event there is an inconsistency between the terms
of the Grant Instrument and the terms of the Plan, the terms of the
Plan shall govern. The Committee shall approve the form and
provisions of each Grant Instrument. Grants under a particular Section
of the Plan need not be uniform as among the grantees.
3. Shares Subject to the Plan
(a) Shares Authorized. Subject to the adjustment specified below, the
aggregate number of shares of common stock of the Company ("Company
Stock") that may be issued or transferred under the Plan is 10,000,000
shares. The maximum aggregate number of shares of Company Stock that
shall be subject to Grants made under the Plan to any individual
during any calendar year shall be as determined by the Committee
("Award Limit"). The shares may be authorized but unissued shares of
Company Stock or reacquired shares of Company Stock, including shares
purchased by the Company on the open market for purposes of the Plan.
If and to the extent Options granted under the Plan terminate, expire,
or are canceled, forfeited, exchanged or surrendered without having
been exercised, the shares subject to such Grants shall again be
available for purposes of the Plan. However, to the extent Section
162(m) of the Code requires, such shares continue to be counted
against the Award Limit.
Adjustments. If there is any change in the number or kind of shares
of Company Stock outstanding (i) by reason of a stock dividend,
spinoff, recapitalization, stock split or combination or exchange of
shares, (ii) by reason of a merger, reorganization or consolidation in
which the Company is the surviving corporation, (iii) by reason of a
reclassification or change in par value, or (iv) by reason of any
other extraordinary or unusual event affecting the outstanding Company
Stock as a class without the Company's receipt of consideration, or if
the value of outstanding shares of Company Stock is substantially
reduced as a result of a spinoff or the Company's payment of an
extraordinary dividend or distribution, the maximum number of shares
of Company Stock available for Grants, the maximum number of shares of
Company Stock that any individual participating in the Plan may be
granted in any year, the number of shares covered by outstanding
Grants, the kind of shares issued under the Plan, and the price per
share or the applicable market value of such Grants shall be
appropriately adjusted by the Committee to reflect any increase or
decrease in the number of, or change in the kind or value of, issued
shares of Company Stock to preclude, to the extent practicable, the
enlargement or dilution of rights and benefits under such Grants;
provided, however, that any fractional shares resulting from such
adjustment shall be eliminated. Any adjustments determined by the
Committee shall be final, binding and conclusive.
With respect to Options which are granted to participants, the
compensation of whom could be subject to limitation under Section
162(m) of the Code and which are intended to qualify as performance-
based compensation under Section 162(m)(4)(C), no adjustment or action
described in this Section 3(b) or in any other provision of the Plan
shall be authorized to the extent that such adjustment or action would
cause the option to fail to qualify under Section 162(m)(4)(C), or any
successor provisions thereto. Furthermore, no adjustment or action
shall be authorized to the extent the adjustment or action would
result in short-swing profits liability under Section 16 or violate
the exemptive conditions of Rule 16b-3 unless the Committee determines
that the Option or other award is not to comply with such exemptive
conditions. The number of shares of Company Stock subject to any
Option shall always be rounded to the next whole number.
4. Eligibility for Participation
(a) Eligible Persons. All employees of the Company and its
subsidiaries ("Employees"), including Employees who are officers or
members of the Board, and members of the Board who are not Employees
("Non-Employee Directors") shall be eligible to participate in the
Plan. Key advisors and consultants who perform services to the Company
or any of its subsidiaries ("Key Advisors") shall be eligible to
participate in the Plan if the Key Advisors render bona fide services
and such services are not in connection with the offer or sale of
securities in a capital-raising transaction.
(b) Selection of Grantees. The Committee shall select the Employees,
Non-Employee Directors and Key Advisors to receive Grants and shall
determine the number of shares of Company Stock subject to a
particular Grant in such manner as the Committee determines.
Employees, Key Advisors and Non-Employee Directors who receive Grants
under this Plan shall hereinafter be referred to as "Grantees."
5. Granting of Options
(a) Number of Shares. The Committee shall determine the number of
shares of Company Stock that will be subject to each Grant of Options
to Employees, Non-Employee Directors and Key Advisors.
(b) Type of Option. All Options granted under this Plan will be Non-
Qualified Stock Options.
(c) Option Term. The Committee shall determine the term of each
Option. The term of any Option shall not exceed ten years from the
date of grant.
(d) Vesting and Exercisability of Options. Options shall vest and
become exercisable in accordance with such terms and conditions,
consistent with the Plan, as may be determined by the Committee and
specified in the Grant Instrument or an amendment to the Grant
Instrument. The Committee may accelerate the vesting and/or
exercisability of any or all outstanding Options at any time for any
reason. Options may, at the discretion of the Committee, be exercised
prior to vesting, provided that the optionee grants the Company a
right to repurchase any unvested shares at the exercise price upon
termination of the optionee?s service to the Company.
(e) Termination of Employment, Disability or Death.
(i) Except as provided below, an Option may only be
exercised while the Grantee is employed by or otherwise providing
service to the Company as an Employee, Key Advisor or member of the
Board. In the event that a Grantee ceases to be employed by the
Company for any reason other than a "disability", or "termination for
cause", any Option which is otherwise exercisable by the Grantee shall
terminate unless exercised within one hundred eighty days after the
date on which the Grantee ceases to be employed by the Company (or
within such other period of time as may be specified in a Grant
Instrument), but in any event no later than the date of expiration of
the Option term. Any of the Grantee's Options that are not otherwise
exercisable as of the date on which the Grantee ceases to be employed
by the Company shall terminate as of such date (unless specified to
the contrary in a Grant Instrument).
(ii) In the event the Grantee ceases to be employed by
the Company on account of a ?termination for cause? by the Company,
the unvested portion of any Option held by the Grantee shall
terminate on the date on which the Grantee ceases to be employed by
the Company. Any of the Grantee's Options which are not otherwise
exercisable as of the date on which the Grantee ceases to be employed
by the Company shall terminate as of such date.
(iii) In the event the Grantee ceases to be employed by
the Company because the Grantee is "disabled", any Option which is
otherwise exercisable by the Grantee shall terminate unless exercised
within one year after the date on which the Grantee ceases to be
employed by the Company (or within such other period of time as may be
specified in a Grant Instrument), but in any event no later than the
date of expiration of the Option term. Any of the Grantee's Options
which are not otherwise exercisable as of the date on which the
Grantee ceases to be employed by the Company shall terminate as of
such date (unless specified to the contrary in a Grant Instrument).
(iv) If the Grantee dies while employed by the Company
or within 90 days after the date on which the Grantee ceases to be
employed on account of a termination of employment specified in
Section 5(e)(i) above (or within such other period of time as may be
specified in a Grant Instrument), any Option that is otherwise
exercisable by the Grantee shall terminate unless exercised within one
year after the date on which the Grantee ceases to be employed by the
Company (or within such other period of time as may be specified in a
Grant Instrument), but in any event no later than the date of
expiration of the Option term. Any of the Grantee's Options that are
not otherwise exercisable as of the date on which the Grantee ceases
to be employed by the Company shall terminate as of such date (unless
specified to the contrary in a Grant Instrument).
(v) For purposes of Sections 5(e) and 6:
(A) "Company," when used in the phrase "employed by the
Company," shall mean the Company and its parent and subsidiary
corporations.
(B) "Employed by the Company" shall mean employment or
service as an Employee, Key Advisor or member of the Board (so
that, for purposes of exercising Options and satisfying
conditions with respect to Restricted Stock, a Grantee shall not
be considered to have terminated employment or service until the
Grantee ceases to be an Employee, Key Advisor and member of the
Board), unless the Committee determines otherwise.
(C) "Disability" shall mean a Grantee's becoming disabled
within the meaning of section 22(e)(3) of the Code or otherwise
as defined in an employment consultant or other agreement between
the Company and the Grantee.
(D) "Termination for cause" shall mean, except to the
extent specified otherwise by the Committee or otherwise as
defined in an employment, consultant or other agreement between
the Company and the Grantee, a finding by the Committee that the
Grantee has breached his or her employment, service,
noncompetition, nonsolicitation or other similar contract with
the Company, or has been engaged in disloyalty to the Company,
including, without limitation, fraud, embezzlement, theft,
commission of a felony or dishonesty in the course of his or her
employment or service, or has disclosed trade secrets or
confidential information of the Company to persons not entitled
to receive such information. A Grant Instrument may provide that
in the event a Grantee's employment is terminated for cause, in
addition to the immediate termination of all Grants, the Grantee
shall automatically forfeit all shares underlying any exercised
portion of an Option, upon refund by the Company of the Exercise
Price paid by the Grantee for such shares, and any option gain
realized by the Grantee from exercising all or a portion of an
Option within the two-year period prior to the event shall be
paid by the Grantee to the Company.
(E) Exercise of Options. A Grantee may exercise an Option
that has become exercisable, in whole or in part, by delivering a
notice of exercise to the Company with payment of the Exercise
Price. The Grantee shall pay the Exercise Price for an Option as
specified by the Committee (x) in cash, (y) with the approval of
the Committee, by delivering shares of Company Stock owned by the
Grantee for the period necessary to avoid a charge to the
Company's earnings for financial reporting purposes (including
Company Stock acquired in connection with the exercise of an
Option, subject to such restrictions as the Committee deems
appropriate) and having a Fair Market Value on the date of
exercise equal to the Exercise Price or (z) by such other method
as the Committee may approve, including payment through a broker
in accordance with procedures permitted by Regulation T of the
Federal Reserve Board. Shares of Company Stock used to exercise
an Option shall have been held by the Grantee for the requisite
period of time to avoid adverse accounting consequences to the
Company with respect to the Option. The Grantee shall pay the
Exercise Price and the amount of any withholding tax due
(pursuant to Section 7) at the time of exercise.
7. Withholding of Taxes
(a) Required Withholding. All Grants under the Plan shall be subject
to applicable federal (including FICA), state and local tax
withholding requirements. The Company shall have the right to deduct
from all Grants paid in cash, or from other wages paid to the Grantee,
any federal, state or local taxes required by law to be withheld with
respect to such Grants. In the case of Options and other Grants paid
in Company Stock, the Company may require the Grantee or other person
receiving such shares to pay to the Company the amount of any such
taxes that the Company is required to withhold with respect to such
Grants, or the Company may deduct from other wages paid by the Company
the amount of any withholding taxes due with respect to such Grants.
(b) Election to Withhold Shares. If the Committee so permits, a
Grantee may elect to satisfy the Company's income tax withholding
obligation with respect to an Option or Restricted Stock paid in
Company Stock by having shares withheld up to an amount that does not
exceed the Grantee's maximum marginal tax rate for federal (including
FICA), state and local tax liabilities. The election must be in a form
and manner prescribed by the Committee and shall be subject to the
prior approval of the Committee.
8. Transferability of Grants
(a) Nontransferability of Grants. Except as provided below, only the
Grantee may exercise rights under a Grant during the Grantee's
lifetime. A Grantee may not transfer those rights except by will or by
the laws of descent and distribution, and then only if and to the
extent permitted in any specific case by the Committee, pursuant to a
domestic relations order (as defined under the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the
regulations there under). When a Grantee dies, the personal
representative or other person entitled to succeed to the rights of
the Grantee ("Successor Grantee") may exercise such rights. A
Successor Grantee must furnish proof satisfactory to the Company of
his or her right to receive the Grant under the Grantee's will or
under the applicable laws of descent and distribution.
(b) Transfer of Nonqualified Stock Options. Notwithstanding the
foregoing, the Committee may provide, in a Grant Instrument, that a
Grantee may transfer Nonqualified Stock Options to family members or
other persons or entities according to such terms as the Committee may
determine; provided that (1) the Grantee receives no consideration for
the transfer of an Option, (2) such transfers complies with all
applicable laws (including, but not limited to federal securities laws
requirements, specifically any requirements for options registered on
Form S-8 registration statements, state securities laws, Florida
corporate law, etc and (3) the transferred Option shall continue to be
subject to the same terms and conditions as were applicable to the
Option immediately before the transfer.
9. Reorganization of the Company.
(a) Reorganization. As used herein, a "Change of Control" shall be
deemed to have occurred upon the consummation of any of the following
transactions: (i) any merger or consolidation of the Company or other
transaction (other than sales of equity by the Company for the purpose
of raising cash for its own account) where the shareholders of the
Company immediately prior to such transaction will not beneficially
own immediately after such transaction shares entitling such
shareholders to more than 50% of all votes to which all shareholders
of the surviving corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock
to elect directors by a separate class vote); or (ii) the sale or
other disposition of all or substantially all of the assets of the
Company.
(b) Assumption of Grants. Upon a Change of Control where the Company
is not the surviving corporation (or survives only as a subsidiary of
another corporation), the Company shall provide that either (i) all
outstanding Options that are not exercised shall be assumed by, or
replaced with comparable options or rights by, the surviving
corporation, (ii) the Company or the surviving company shall pay to
each Grantee an amount equal to the product of (x) the number of
Options then vested and exercisable, multiplied by (ii) the Fair
Market Value per share less the Exercise Price per Option, or (iii)
the Committee may, in its sole discretion, accelerate the vesting of
some or all of the Grants.
(c) Notice and Acceleration. Upon a Change of Control, the Company
shall provide each Grantee who has outstanding Grants with written
notice of such Change of Control. The Committee may, in its sole
discretion, provide in a Grant Instrument that upon a Change of
Control (i) all outstanding Options shall automatically accelerate and
become fully exercisable, and (ii) the restrictions and conditions on
all outstanding Restricted Stock shall immediately lapse. If the
Committee does not provide such terms in the Grant Instrument, a
Change of Control will not impact a Grant.
10. Limitations on Issuance or Transfer of Shares.
No Company Stock shall be issued or transferred in connection with any
Grant hereunder unless and until all legal requirements applicable to
the issuance or transfer of such Company Stock have been complied with
to the satisfaction of the Committee. The Committee shall have the
right to condition any Grant made to any Grantee hereunder on such
Grantee's undertaking in writing to comply with such restrictions on
his or her subsequent disposition of such shares of Company Stock as
the Committee shall deem necessary or advisable as a result of any
applicable law, regulation or official interpretation thereof, and
certificates representing such shares may be legended to reflect any
such restrictions. Certificates representing shares of Company Stock
issued or transferred under the Plan will be subject to such stop-
transfer orders and other restrictions as may be required by
applicable laws, regulations and interpretations, including any
requirement that a legend be placed thereon.
11. Amendment and Termination of the Plan
(a) Amendment. The Board may amend or terminate the Plan at any
time; provided, however, that the Board shall not amend the Plan
without shareholder approval if such approval is required by Section
l62(m) of the Code.
(b) Termination of Plan. The Plan shall terminate on January 10,
2011, the day immediately preceding the tenth anniversary of its
effective date, unless the Plan is terminated earlier by the Board or
is extended by the Board with the approval of the shareholders.
(c) Termination and Amendment of Outstanding Grants. The terms of an
Outstanding Grant may be amended at any time. The term within which
the option may be exercised may be increased or decreased in the
exercise price may be increased or decreased. A termination or
amendment of the Plan that occurs after a Grant is made shall not
materially impair the rights of a Grantee unless the Grantee consents.
The termination of the Plan shall not impair the power and authority
of the Committee with respect to an outstanding Grant. Whether or not
the Plan has terminated, an outstanding Grant may be terminated or
amended in accordance with the Plan or, may be amended by agreement of
the Company and the Grantee consistent with the Plan.
(d) Governing Document. The Plan shall be the controlling document.
No other statements, representations, explanatory materials or
examples, oral or written, may amend the Plan in any manner. The Plan
shall be binding upon and enforceable against the Company and its
successors and assigns.
12. Funding of the Plan
This Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other
segregation of assets to assure the payment of any Grants under this
Plan. In no event shall interest be paid or accrued on any Grant,
including unpaid installments of Grants.
13. Rights of Participants
Nothing in this Plan shall entitle any Employee, Key Advisor or other
person to any claim or right to be granted a Grant under this Plan.
Neither this Plan nor any action taken hereunder shall be construed as
giving any individual any rights to be retained by or in the employ of
the Company or any other employment rights.
14. No Fractional Shares.
No fractional shares of Company Stock shall be issued or delivered
pursuant to the Plan or any Grant. The Committee shall determine
whether cash, other awards or other property shall be issued or paid
in lieu of such fractional shares or whether such fractional shares or
any rights thereto shall be forfeited or otherwise eliminated.
15. Headings.
Section headings are for reference only. In the event of a conflict
between a title and the content of a Section, the content of the
Section shall control.
16. Effective Date of the Plan
(a) Effective Date. The Plan shall be effective as of September 13,
2004.
(b) Public Offering. The provisions of the Plan that refer to a
Public Offering, or that refer to, or are applicable to persons
subject to, Section 16 of the Exchange Act or section 162(m) of the
Code, shall be effective for so long as such stock is so registered.
17. Miscellaneous
(a) Grants in Connection with Corporate Transactions and Otherwise.
Nothing contained in this Plan shall be construed to (i) limit the
right of the Committee to make Grants under this Plan in connection
with the acquisition, by purchase, lease, merger, consolidation or
otherwise, of the business or assets of any corporation, firm or
association, including Grants to employees thereof who become
Employees of the Company, or for other proper corporate purposes, or
(ii) limit the right of the Company to grant stock options or make
other awards outside of this Plan. Without limiting the foregoing, the
Committee may make a Grant to an employee of another corporation who
becomes an Employee by reason of a corporate merger, consolidation,
acquisition of stock or property, reorganization or liquidation
involving the Company or any of its subsidiaries in substitution for a
stock option or restricted stock grant made by such corporation. The
terms and conditions of the substitute grants may vary from the terms
and conditions required by the Plan and from those of the substituted
stock incentives. The Committee shall prescribe the provisions of the
substitute grants.
(b) Loans. The Committee may, in its discretion, extend a loan in
connection with the exercise or receipt of a grant under this Plan.
The terms and conditions of any such loan shall be set by the
Committee.
(c) Compliance with Law. The Plan, the exercise of Options and the
obligations of the Company to issue or transfer shares of Company
Stock under Grants shall be subject to all applicable laws and to
approvals by any governmental or regulatory agency as may be required.
With respect to persons subject to section 16 of the Exchange Act, it
is the intent of the Company that the Plan and all transactions under
the Plan comply with all applicable provisions of Rule 16b-3 or its
successors under the Exchange Act. The Committee may revoke any Grant
if it is contrary to law or modify a Grant to bring it into compliance
with any valid and mandatory government regulation. The Committee may
also adopt rules regarding the withholding of taxes on payments to
Grantees. The Committee may, in its sole discretion, agree to limit
its authority under this Section.
(d) Governing Law. The validity, construction, interpretation and
effect of the Plan and Grant Instruments issued under the Plan shall
exclusively be governed by and determined in accordance with the law
of the State of Florida, without regard to conflicts of laws
principles.
Dated as of September 13, 2004.
Med Gen, Inc.
By:________________________________
Paul S. Mitchell
President