ARTWORK AND BEYOND, INC.
2001 STOCK OPTION PLAN
ARTICLE ONE
GENERAL PROVISIONS
I. Purpose of the Plan
Artwork and Beyond, Inc. 2001 Stock Option Plan (the "Plan")
is intended to assist Artwork and Beyond, Inc., a Delaware corporation (the
"Company"), and any entity which controls, is controlled by, or is under common
control with the Company ("Related Entities") in recruiting and retaining
employees, directors, officers, agents, consultants, independent contractors and
advisors (collectively, "Participants"), and in compensating Participants by
enabling them to participate in the future success of the Company and the
Related Entities and to associate their interests with those of the Company and
its stockholders.
Capitalized terms used and not otherwise defined shall have
the meanings assigned to such terms in the attached Appendix.
II. Structure of the Plan
Pursuant to the Plan, eligible persons may, at the discretion
of the Administrator, be granted options ("Stock Options") to purchase shares of
the Company's Common Stock, $.001 par value (the "Common Stock"). The Stock
Options granted under the Plan are intended to be either incentive stock options
("Incentive Stock Options") within the meaning of Section 422A of the Internal
Revenue Code of 1986, as amended ("Code"), or options that do not meet the
requirements of Incentive Stock Options ("Non-Statutory Stock Options").
III. Administration of the Plan
A. The Plan shall be administered by the Administrator. The
Administrator shall have authority to grant Stock Options upon such terms (not
inconsistent with the provisions of the Plan) as the Administrator may consider
appropriate. Such terms may include conditions (in addition to those contained
in this Plan) on the exercisability, transferability or forfeitability of all or
any part of a Stock Option, including, by way of example and not limitation,
requirements that the Participant complete a specified period of employment with
or service to the Company or a Related Entity, that the Company achieve a
specified level of financial performance or that the Company achieve a specified
level of financial return. Notwithstanding any such conditions, the
Administrator may, in its discretion, accelerate the time at which a Stock
Option may be exercised, transferred or become nonforfeitable. The Administrator
shall have the absolute discretion to determine whether specific grants shall be
of Incentive Stock Options or Non-Statutory Stock Options. In addition, the
Administrator shall have complete authority to determine Fair Market Value, to
interpret all provisions of the Plan, to prescribe the form of the documents
evidencing the grant of Stock Options under the Plan ("Agreements"), to adopt,
amend, and rescind rules and regulations pertaining to the administration of the
Plan and to make all other determinations necessary or advisable for the
administration of this Plan. The express grant in the Plan of any specific power
to the Administrator shall not be construed as limiting any power or authority
of the Administrator. Any decision made, or action taken, by the Administrator
or in connection with the administration of the Plan shall be final and
conclusive. Neither the Administrator nor any member of the Board shall be
liable for any act done in good faith with respect to the Plan, any Agreements
or Stock Options. All expenses of administering this Plan shall be borne by the
Company.
B. The Board, in its discretion, may appoint a committee of
the Board and delegate to such committee all or part of the Board's authority
and duties with respect to the Plan. The Board may revoke or amend the terms of
a delegation at any time but such action shall not invalidate any prior actions
of the Board's delegate or delegates that were consistent with the terms of the
Plan.
IV. Eligibility
A. The persons eligible to participate in the Plan are as
follows:
(i) Employees, directors and officers of the Company or any
Related Entity;
(ii) non-employee members of the Board or non-employee
members of the board of directors of any Related Entity; and
(iii) consultants agents and other independent advisors who
provide services to the Company or to any Related Entity.
V. Stock Subject to the Plan
A. Shares Issued. Upon the exercise of a Stock Option, the
Company may issue to the Participant (or the Participant's broker if the
Participant so directs), shares of Common Stock from its authorized but unissued
Common Stock or reacquired Common Stock.
B. Aggregate Limit. The maximum aggregate number of shares of
Common Stock that may be issued under the Plan shall not exceed 450,000 shares.
C. Reallocation of Shares. If a Stock Option is terminated, in
whole or in part, for any reason other than its exercise, the number of shares
of Common Stock allocated to the Stock Option or portion thereof may be
reallocated to other Stock Options to be granted under the Plan. Unvested shares
issued under the Plan and subsequently repurchased by the Company, at the option
exercise or direct issue price paid per share, pursuant to the Company's
repurchase rights under the Plan, shall be added back to the number of shares of
Common Stock reserved for issuance under the Plan and shall accordingly be
available for reissuance through one or more subsequent Stock Options under the
Plan.
D. Stock Split; Recapitalization. Should any change be made to
the Common Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class, without the Company's receipt of
consideration, appropriate adjustments shall be made to (i) the maximum number
of shares of Common Stock issuable under the Plan and (ii) the number of shares
of Common Stock and the exercise price per share in effect under each
outstanding Stock Option, in order to prevent the dilution or enlargement of
benefits thereunder. The adjustments determined by the Administrator shall be
final, binding and conclusive. In no event shall any such adjustments be made in
connection with the conversion of one or more outstanding shares of the
Company's preferred stock into shares of Common Stock.
ARTICLE TWO
STOCK OPTION GRANTS
I. Stock Option Terms
Each Stock Option shall be evidenced by an Agreement,
consisting of one or more documents in the form approved by the Administrator;
provided, however, that each such document shall comply with the terms specified
below. Each Agreement evidencing an Incentive Stock Option, shall, in addition,
be subject to the provisions of the Plan applicable to Incentive Stock Options.
A. Exercise Price.
1. The exercise price per share for Common Stock purchased
upon the exercise of a Non-Statutory Stock Option shall be determined by the
Administrator on the date of grant.
2. The exercise price per share of Common Stock purchased upon
the exercise of an Incentive Stock Option shall be such amount as the
Administrator shall, in its best judgement, determine to be not be less than the
Fair Market Value on the date the Incentive Stock Option is granted, provided,
however, that in the case of an Incentive Stock Option granted to a Participant
who, at the time such Incentive Stock Option is granted owns stock of the
Company or a Related Entity possessing more than ten percent (10%) of the
aggregate voting power of all classes of stock of the Company or such Related
Entity ("10% Stockholder"), the exercise price per share of Common Stock
purchased upon the exercise of such Incentive Stock Option shall be such amount
as the Administrator shall, in its best judgement, determine to be not less than
one-hundred and ten percent (110%) of the Fair Market Value on the date such
Incentive Stock Option is granted.
3. Unless otherwise provided by the Agreement, the exercise
price shall become immediately due upon exercise of a Stock Option and shall,
subject to the provisions of Section I of Article Three and the Agreement, be
payable in cash or check made payable to the Company.
4. Cashless Exercise. Should the Common Stock be registered
under Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") at the time a Stock Option is exercised, then the exercise price
may also be paid as follows:
(i) in shares of Common Stock held for the requisite
period necessary to avoid a charge to the Company's earnings for
financial reporting purposes and valued at Fair Market Value on the
exercise date, or
(ii) to the extent the option is exercised for vested
shares, through a special sale and remittance procedure pursuant to
which the Participant shall concurrently provide irrevocable
instructions (A) to a Company-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the Company, out of
the sale proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased shares
plus all applicable Federal, state and local income and employment
taxes required to be withheld by the Company by reason of such exercise
and (B) to the Company to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is
utilized, payment of the exercise price for the purchased shares must be made on
the Exercise Date.
B. Effect of Termination of Service.
1. The following provisions shall govern the exercise of any
Stock Options held by a Participant at the time of cessation of Service or
death:
(i) Should the Participant cease to remain in Service
for any reason other than death, Disability or Misconduct, then the
Participant shall have a period of three (3) months following the date
of such cessation of Service during which to exercise each outstanding
Stock Option held by such Participant.
(ii) Should Participant's Service terminate by reason
of Disability, then the Participant shall have a period of six (6)
months following the date of such cessation of Service during which to
exercise each outstanding Stock Option held by such Participant.
(iii) If the Participant dies while holding an
outstanding Stock Option, then the personal representative of his or
her estate or the person or persons to whom the Stock Option is
transferred pursuant to the Participant's will or the laws of descent
and distribution shall have a period of six (6) month following the
date of the Participant's death during which to exercise each
outstanding Stock Option previously held by such Participant.
(iv) Under no circumstances, however, shall any such
Stock Option be exercisable after the specified expiration of the
option term.
(v) During the applicable post-Service exercise
period, the Stock Option may not be exercised in the aggregate for more
than the number of vested shares for which the Stock Option is
exercisable on the date of the Participant's cessation of Service. Upon
the expiration of the applicable post-Service exercise period or (if
earlier) upon the expiration of the option term, the Stock Option shall
terminate and cease to be outstanding for any vested shares for which
the Stock Option has not been exercised. However, the Stock Option
shall, immediately upon the Participant's cessation of Service,
terminate and cease to be outstanding with respect to any and all
option shares for which the Stock Option is not otherwise at the time
exercisable or in which the Participant is not otherwise at that time
vested.
(vi) Should Participant's Service be terminated for
Misconduct, then all outstanding Stock Options held by the Participant
shall terminate immediately and cease to remain outstanding.
2. The Administrator shall have the discretion, exercisable
either at the time a Stock Option is granted or at any time while the Stock
Option remains outstanding, to:
(i) extend the period of time for which the Stock
Option is to remain exercisable, following Participant's cessation of
Service or death, from the limited period otherwise in effect for that
Stock Option to such greater period of time as the Administrator shall
deem appropriate, but in no event beyond the expiration of the option
term; and/or
(ii) permit the Stock Option to be exercised, during
the applicable post-Service exercise period, not only with respect to
the number of vested shares of Common Stock for which such Stock Option
is exercisable at the time of the Participant's cessation of Service
but also with respect to one or more additional installments in which
the Participant would have vested under the Stock Option had the
Participant continued in Service.
C. Stockholder Rights. The holder of an option shall have no
stockholder rights with respect to the shares subject to
the option until such person shall have exercised the
option, paid the exercise price and become the record
holder of the purchased shares.
D. Unvested Shares. The Administrator shall have the
discretion to grant Stock Options which are exercisable for
unvested shares of Common Stock. Should the Participant
cease Service while holding such unvested shares, the
Company shall have the right to repurchase, at the exercise
price paid per share, any or all of those unvested shares.
The terms upon which such repurchase right shall be
exercisable (including the period and procedure for
exercise and the appropriate vesting schedule for the
purchased shares) shall be established by the Administrator
and set forth in the document evidencing such repurchase
right.
E. Limited Transferability of Stock Options. During the
lifetime of the Participant, the option shall be
exercisable only by the Participant and shall not be
assignable or transferable other than by will or by the
laws of descent and distribution following the
Participant's death.
II. Incentive Stock Options
The terms specified below shall be applicable to all Incentive
Stock Options. Except as modified by the provisions of this Section II, all the
provisions of Articles One, Two and Three shall be applicable to Incentive Stock
Options. Stock Options which are specifically designated as Non-Statutory Stock
Options shall not be subject to the terms of this Section II.
A. Eligibility. Incentive Stock Options may only be granted to
Employees.
B. Exercise Price. The exercise price per share shall not be
less than one hundred percent (100%) of the Fair Market Value per share of
Common Stock on the option grant date, provided, however, that in the case of an
Incentive Stock Option granted to a 10% Stockholder, the exercise price per
share of Common Stock purchased upon the exercise of such Incentive Stock Option
shall be such amount as the Administrator shall, in its best judgement,
determine to be not less than one-hundred and ten percent (110%) of the Fair
Market Value on the date such Incentive Stock Option is granted.
C. Dollar Limitation. The aggregate Fair Market Value of the
shares of Common Stock (determined as of the respective date or dates of grant)
for which one or more Stock Options granted to any Employee under the Plan (or
any other option plan of the Company or any Related Entity) may for the first
time become exercisable as Incentive Stock Options during any one (1) calendar
year shall not exceed the sum of One Hundred Thousand Dollars ($100,000). To the
extent the Employee holds two (2) or more such Stock Options which become
exercisable for the first time in the same calendar year, the foregoing
limitation on the exercisability of such options as Incentive Stock Options
shall be applied on the basis of the order in which such Stock Options are
granted.
D. Term of Incentive Stock Options. The maximum period in
which an Incentive Stock Option shall be exercisable shall be ten (10) years
from the date of grant, provided, however, that if any Employee to whom an
Incentive Stock Option is granted is a 10% Stockholder, then the option term
shall not exceed five (5) years measured from the option grant date.
III. Corporate Transaction
A. The shares subject to each Stock Option outstanding under
the Plan at the time of a Corporate Transaction shall automatically vest in full
so that each such Stock Option shall, immediately prior to the effective date of
the Corporate Transaction, become fully exercisable for all of the shares of
Common Stock at the time subject to that Stock Option and may be exercised for
any or all of those shares as fully-vested shares of Common Stock. However, the
shares subject to an outstanding Stock Option shall not vest on such an
accelerated basis if and to the extent:
(i) such Stock Option is assumed by the successor
Company (or parent thereof) in the Corporate Transaction and any
repurchase rights of the Company with respect to the unvested option
shares are concurrently to be assigned to such successor Company (or
parent thereof) or (ii) such Stock Option is to be replaced with a cash
incentive program of the successor Company (or parent thereof) which
preserves the spread existing on the unvested option shares at the time
of the Corporate Transaction and provides for subsequent payout in
accordance with the same vesting schedule applicable to those unvested
option shares or (iii) the acceleration of such Stock Option is subject
to other limitations imposed by the Administrator at the time of the
option grant.
B. All outstanding repurchase rights shall also terminate
automatically, and the shares of Common Stock subject to those terminated rights
shall immediately vest in full, in the event of any Corporate Transaction,
except to the extent: (i) those repurchase rights are assigned to the successor
Company (or parent thereof) in connection with such Corporate Transaction or
(ii) such accelerated vesting is precluded by other limitations imposed by the
Administrator at the time the repurchase right is issued.
C. Immediately following the consummation of the Corporate
Transaction, all outstanding Stock Options shall terminate and cease to be
outstanding, except to the extent assumed by the successor Company (or parent
thereof).
D. Each Stock Option which is assumed in connection with a
Corporate Transaction shall be appropriately adjusted, immediately after such
Corporate Transaction, to apply to the number and class of securities which
would have been issuable to the Participant in consummation of such Corporate
Transaction had the Stock Option been exercised immediately prior to such
Corporate Transaction. Appropriate adjustments shall also be made to (i) the
number and class of securities available for issuance under the Plan following
the consummation of such Corporate Transaction and (ii) the exercise price
payable per share under each outstanding Stock Option, provided, however, that
the aggregate exercise price payable for such securities shall remain the same.
E. The Administrator shall have the discretion, exercisable
either at the time a Stock Option is granted or at any time while a Stock Option
remains outstanding, to structure one or more Stock Options so that those Stock
Options shall automatically accelerate and vest in full (and any repurchase
rights of the Company with respect to the unvested shares subject to those Stock
Options shall immediately terminate) upon the occurrence of a Corporate
Transaction, whether or not those Stock Options are to be assumed in the
Corporate Transaction.
F. The Administrator shall also have full power and authority,
exercisable either at the time the Stock Option is granted or at any time while
the Stock Option remains outstanding, to structure such Stock Option so that the
shares subject to that Stock Option will automatically vest on an accelerated
basis should the Participant's Service terminate by reason of an Involuntary
Termination within a designated period (not to exceed eighteen (18) months)
following the effective date of any Corporate Transaction in which the Stock
Option is assumed and the repurchase rights applicable to those shares do not
otherwise terminate. Any Stock Option so accelerated shall remain exercisable
for the fully-vested option shares until the expiration or sooner termination of
the option term. In addition, the Administrator may provide that one or more of
the Company's outstanding repurchase rights with respect to shares held by the
Participant at the time of such Involuntary Termination shall immediately
terminate on an accelerated basis, and the shares subject to those terminated
rights shall accordingly vest at that time.
G. The portion of any Incentive Stock Option accelerated in
connection with a Corporate Transaction shall remain exercisable as an Incentive
Stock Option only to the extent the applicable One Hundred Thousand Dollar
limitation is not exceeded. To the extent such dollar limitation is exceeded,
the accelerated portion of such Incentive Stock Option shall be exercisable as a
Non-Statutory Option under the Code.
H. The grant of Stock Options under the Plan shall in no way
affect the right of the Company to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
IV. Cancellation and Regrant of Stock Options
The Administrator shall have the authority to effect, at any
time and from time to time, with the consent of the affected Participants, the
cancellation of any or all outstanding Stock Options under the Plan and to grant
in substitution therefor new Stock Options covering the same or different number
of shares of Common Stock but with an exercise price per share based on the Fair
Market Value per share of Common Stock on the new option grant date.
ARTICLE THREE
MISCELLANEOUS
I. Financing
The Administrator may permit any Participant to pay the option
exercise price upon exercise of a Stock Option by delivering a full-recourse,
interest bearing promissory note payable in one or more installments and secured
by the purchased shares. The terms of any such promissory note (including the
interest rate and the terms of repayment) shall be established by the
Administrator in its sole discretion. In no event may the maximum credit
available to the Participant exceed the sum of (i) the aggregate option exercise
price (less the par value of those shares) plus (ii) any Federal, state and
local income and employment tax liability incurred by the Participant in
connection with the option exercise.
II. Effective Date and Term of Plan
A. The Plan shall become effective on the date on which it is
adopted by the Board (the "Effective Date"), provided, however, that if the Plan
is not approved by a vote of the stockholders of the Company within twelve (12)
months after the Effective Date, the Plan and any Benefits granted under the
Plan shall terminate.
B. The Plan shall terminate upon the earliest of (i) May 31,
2011, (ii) the date on which all shares of Common Stock available for issuance
under the Plan shall have been issued as vested shares or (iii) the termination
of all outstanding Stock Options in connection with a Corporate Transaction.
Upon such Plan termination, all Stock Options and unvested stock issuances
outstanding under the Plan shall continue to have full force and effect in
accordance with the provisions of the Agreements.
III. Amendment of the Plan
A. The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects. However, no such
amendment or modification shall adversely affect the rights and obligations with
respect to Stock Options or unvested stock issuances at the time outstanding
under the Plan unless the Participant or the Participant consents to such
amendment or modification. In addition, certain amendments may require
stockholder approval pursuant to applicable laws and regulations.
B. Stock Options may be granted under the Plan which are in
excess of the number of shares of Common Stock then available for issuance under
the Plan, provided any excess shares actually issued shall be held in escrow
until there is obtained stockholder approval of an amendment sufficiently
increasing the number of shares of Common Stock available for issuance under the
Plan. If such stockholder approval is not obtained within twelve (12) months
after the date the first such excess grants are made, then (i) any unexercised
Stock Options granted on the basis of such excess shares shall terminate and
cease to be outstanding and (ii) the Company shall promptly refund to the
Participants the exercise or purchase price paid for any excess shares issued
under the Plan and held in escrow, together with interest (at the applicable
Short Term Federal Rate) for the period the shares of Common Stock were held in
escrow, and such shares shall thereupon be automatically cancelled and cease to
be outstanding.
IV. Use of Proceeds
Any cash proceeds received by the Company from the sale of
shares of Common Stock under the Plan shall be used for general corporate
purposes.
V. Withholding
The Company's obligation to deliver shares of Common Stock
upon the exercise of any Stock Options under the Plan shall be subject to the
satisfaction of all applicable Federal, state and local income and employment
tax withholding requirements.
VI. Regulatory Approvals
The implementation of the Plan, the granting of any Stock
Options under the Plan and the issuance of any shares of Common Stock upon the
exercise of any Stock Option shall be subject to the Company's procurement of
all approvals and permits required by regulatory authorities having jurisdiction
over the Plan and the Stock Options granted under it.
VII. No Employment or Service Rights
Nothing in the Plan shall confer upon a Participant any right
to continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Company (or any Related Entity
employing or retaining a Participant), which rights are hereby expressly
reserved, to terminate a Participant's Service at any time for any reason, with
or without cause.
APPENDIX
The following definitions shall be in effect under the Plan:
A. Board shall mean the Company's Board of Directors.
B. Committee shall mean a committee of two (2) or more Board
members appointed by the Board to exercise one or more administrative functions
under the Plan.
C. Corporate Transaction shall mean either of the following
stockholder-approved transactions to which the Company is a party:
(i) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined voting
power of the Company's outstanding securities are transferred to a
person or persons different from the persons holding those securities
immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all
or substantially all of the Company's assets in complete liquidation or
dissolution of the Company.
D. Disability shall mean the inability of the Participant to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment and shall be determined by the
Administrator on the basis of such medical evidence as the Administrator deems
warranted under the circumstances.
E. Employee shall mean an individual who is in the employ of
the Company (or any Related Entity), subject to the control and direction of the
employer entity as to both the work to be performed and the manner and method of
performance.
F. Fair Market Value per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the
Nasdaq National Market, the SmallCap Market or the OTC Bulletin Board,
then the Fair Market Value shall be the closing selling price per share
of Common Stock on the date in question, as such price is reported on
the Nasdaq National Market, the SmallCap Market or the OTC Bulletin
Board, as the case may be. If there is no closing selling price for the
Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such
quotation exists.
(ii) If the Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question on the Stock
Exchange determined by the Administrator to be the primary market for
the Common Stock, as such price is officially quoted in the composite
tape of transactions on such exchange. If there is no closing selling
price for the Common Stock on the date in question, then the Fair
Market Value shall be the closing selling price on the last preceding
date for which such quotation exists.
i
(iii) If the Common Stock is at the time neither
listed on any Stock Exchange nor traded on the Nasdaq National Market
or SmallCap Market or the OTC Bulletin Board, then the Fair Market
Value shall be determined by the Administrator after taking into
account such factors as the Administrator shall deem appropriate.
G. Involuntary Termination shall mean the termination of the
Service of any individual which occurs by reason of:
(i) such individual's involuntary dismissal or
discharge by the Company for reasons other than Misconduct, or
(ii) such individual's voluntary resignation
following (A) a change in his or her position with the Company which
materially reduces his or her duties and responsibilities or the level
of management to which he or she reports, or (B) a reduction in his or
her level of compensation (including base salary, fringe benefits and
target bonuses under any corporate-performance based bonus or incentive
programs) by more than thirty percent (30%).
H. Misconduct shall mean the commission of any act of fraud,
embezzlement or dishonesty by a Participant, any unauthorized use or disclosure
by such person of confidential information or trade secrets of the Company (or
any Related Entity), or any other intentional misconduct by such person
adversely affecting the business or affairs of the Company (or any Related
Entity) in a material manner. The foregoing definition shall not be deemed to be
inclusive of all the acts or omissions which the Company (or any Related Entity)
may consider as grounds for the dismissal or discharge of any Participant,
Participant or other person in the Service of the Company (or any Related
Entity).
I. Administrator shall mean either the Board or the Committee
acting in its capacity as administrator of the Plan.
J. Service shall mean the provision of services to the Company
(or any Related Entity) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor, except to the extent otherwise specifically provided in the documents
evidencing the option grant.
K. Stock Exchange shall mean either the American Stock
Exchange or the New York Stock Exchange.
L. 10% Stockholder shall mean the owner of stock (as
determined under Code Section 424(d)) possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company (or any
Related Entity).
ii