ACTIVE IQ TECHNOLOGIES, INC.
2001 EMPLOYEE STOCK OPTION PLAN
1. Purpose. The purpose of the 2001 Employee Stock Option Plan (the
"Plan") of Active IQ Technologies, Inc. (the "Company") is to increase
shareholder value and to advance the interests of the Company by furnishing a
variety of economic incentives ("Incentives") designed to attract, retain and
motivate employees. Incentives may consist of opportunities to purchase or
receive shares of common stock, $0.01 par value, of the Company ("Common
Stock"), monetary payments or both on terms determined under this Plan.
2. Administration. The Plan shall be administered by the Board of
Directors or by a stock option committee (the "Committee") of the Board of
Directors of the Company. The Committee shall consist of not less than two
directors of the Company and shall be appointed from time to time by the board
of directors of the Company. Each member of the Committee shall be a
"disinterested person" within the meaning of Rule 16b-3 of the Securities
Exchange Act of 1934, and the regulations promulgated thereunder (the "1934
Act"). The board of directors of the Company may from time to time appoint
members of the Committee in substitution for, or in addition to, members
previously appointed, and may fill vacancies, however caused, in the Committee.
The Committee shall select one of its members as its chairman and shall hold its
meetings at such times and places as it shall deem advisable. A majority of the
Committee's members shall constitute a quorum. All action of the Committee shall
be taken by the majority of its members. Any action may be taken by a written
instrument signed by majority of the members and actions so taken shall be fully
effective as if it had been made by a majority vote at a meeting duly called and
held. The Committee may appoint a secretary, shall keep minutes of its meetings
and shall make such rules and regulations for the conduct of its business as it
shall deem advisable. The Committee shall have complete authority to award
Incentives under the Plan, to interpret the Plan, and to make any other
determination which it believes necessary and advisable for the proper
administration of the Plan. The Committee's decisions and matters relating to
the Plan shall be final and conclusive on the Company and its participants.
3. Eligible Participants. Employees of the Company or its subsidiaries
or affiliates and consultants or other independent contractors who provide
services to the Company or its subsidiaries or affiliates shall become eligible
to receive Incentives under the Plan when designated by the Committee.
Notwithstanding the foregoing, executive officers and directors of the Company
who are employees of the Company or its subsidiaries or affiliates are not
eligible to participate in the Plan. Participants may be designated individually
or by groups or categories (for example, by pay grade) as the Committee deems
appropriate. Participation by others and any performance objectives relating to
others may be approved by groups or categories (for example, by pay grade) and
authority to designate participants who are not officers and to set or modify
such targets may be delegated.
4. Types of Incentives. Incentives under the Plan may be granted in any
one or a combination of the following forms: (a) incentive stock options and
non-statutory stock options (Section 6); (b) stock appreciation rights ("SARs")
(Section 7); (c) stock awards (Section 8); (d) restricted stock (Section 8); (e)
performance shares (Section 9); and (f) cash awards (Section 10).
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5. Shares Subject to the Plan.
5.1. Number of Shares. Subject to adjustment as provided in
Section 11.6, the number of shares of Common Stock which may be
issued under the Plan shall not exceed 500,000 shares of Common Stock.
5.2. Cancellation. To the extent that cash in lieu of shares
of Common Stock is delivered upon the exercise of an SAR pursuant to
Section 7.4, the Company shall be deemed, for purposes of applying the
limitation on the number of shares, to have issued the greater of the
number of shares of Common Stock which it was entitled to issue upon
such exercise or on the exercise of any related option. In the event
that a stock option or SAR granted hereunder expires or is terminated
or canceled unexercised as to any shares of Common Stock, such shares
may again be issued under the Plan either pursuant to stock options,
SARs or otherwise. In the event that shares of Common Stock are issued
as restricted stock or pursuant to a stock award and thereafter are
forfeited or reacquired by the Company pursuant to rights reserved upon
issuance thereof, such forfeited and reacquired shares may again be
issued under the Plan, either as restricted stock, pursuant to stock
awards or otherwise. The Committee may also determine to cancel, and
agree to the cancellation of, stock options in order to make a
participant eligible for the grant of a stock option at a lower price
than the option to be canceled.
5.3. Type of Common Stock. Common Stock issued under the Plan
in connection with stock options, SARs, performance shares, restricted
stock or stock awards, may be authorized and unissued shares.
6. Stock Options. A stock option is a right to purchase shares of
Common Stock from the Company. Each stock option granted by the Committee under
this Plan shall be subject to the following terms and conditions:
6.1. Price. The option price per share shall be determined by
the Committee, subject to adjustment under Section 11.6.
6.2. Number. The number of shares of Common Stock subject to
the option shall be determined by the Committee, subject to adjustment
as provided in Section 11.6. The number of shares of Common Stock
subject to a stock option shall be reduced in the same proportion that
the holder thereof exercises a SAR if any SAR is granted in conjunction
with or related to the stock option.
6.3. Duration and Time for Exercise. Subject to earlier
termination as provided in Section 11.4, the term of each stock option
shall be determined by the Committee but shall not exceed ten years and
one day from the date of grant. Each stock option shall become
exercisable at such time or times during its term as shall be
determined by the Committee at the time of grant. The Committee may
accelerate the exercisability of any stock option. Subject to the
foregoing and with the approval of the Committee, all or any part of
the shares of Common Stock with respect to which the right to purchase
has accrued may be purchased by the Company at the time of such accrual
or at any time or times thereafter during the term of the option.
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6.4. Manner of Exercise. A stock option may be exercised, in
whole or in part, by giving written notice to the Company, specifying
the number of shares of Common Stock to be purchased and accompanied by
the full purchase price for such shares. The option price shall be
payable (a) in United States dollars upon exercise of the option and
may be paid by cash; uncertified or certified check; bank draft; (b) at
the discretion of the Committee, by delivery of shares of Common Stock
in payment of all or any part of the option price, which shares shall
be valued for this purpose at the Fair Market Value on the date such
option is exercised; or (c) at the discretion of the Committee, by
instructing the Company to withhold from the shares of Common Stock
issuable upon exercise of the stock option shares of Common Stock in
payment of all or any part of the option price, which shares shall be
valued for this purpose at the Fair Market Value or in such other
manner as may be authorized from time to time by the Committee. The
shares of Common Stock delivered by the participant pursuant to Section
6.4(b) must have been held by the participant for a period of not less
than six months prior to the exercise of the option, unless otherwise
determined by the Committee. Prior to the issuance of shares of Common
Stock upon the exercise of a stock option, a participant shall have no
rights as a shareholder.
6.5. Incentive Stock Options. Notwithstanding anything in the
Plan to the contrary, the following additional provisions shall apply
to the grant of stock options which are intended to qualify as
Incentive Stock Options (as such term is defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code")):
(a) The aggregate Fair Market Value (determined as of
the time the option is granted) of the shares of Common Stock
with respect to which Incentive Stock Options are exercisable
for the first time by any participant during any calendar year
(under all of the Company's plans) shall not exceed $100,000.
(b) Any Incentive Stock Option certificate authorized
under the Plan shall contain such other provisions as the
Committee shall deem advisable, but shall in all events be
consistent with and contain all provisions required in order
to qualify the options as Incentive Stock Options.
(c) All Incentive Stock Options must be granted
within ten years from the earlier of the date on which this
Plan was adopted by board of directors or the date this Plan
was approved by the shareholders.
(d) Unless sooner exercised, all Incentive Stock
Options shall expire no later than 10 years after the date of
grant.
(e) The option price for Incentive Stock Options
shall be not less than the Fair Market Value of the Common
Stock subject to the option on the date of grant.
(f) No Incentive Stock Options shall be granted to
any participant who, at the time such option is granted, would
own (within the meaning of Section 422 of the Code) stock
possessing more than 10% of the total combined voting power of
all classes of stock of the employer corporation or of its
parent or subsidiary corporation.
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7. Stock Appreciation Rights. An SAR is a right to receive, without
payment to the Company, a number of shares of Common Stock, cash or any
combination thereof, the amount of which is determined pursuant to the formula
set forth in Section 7.4. An SAR may be granted (a) with respect to any stock
option granted under this Plan, either concurrently with the grant of such stock
option or at such later time as determined by the Committee (as to all or any
portion of the shares of Common Stock subject to the stock option), or (b)
alone, without reference to any related stock option. Each SAR granted by the
Committee under this Plan shall be subject to the following terms and
conditions:
7.1. Number. Each SAR granted to any participant shall relate
to such number of shares of Common Stock as shall be determined by the
Committee, subject to adjustment as provided in Section 11.6. In the
case of an SAR granted with respect to a stock option, the number of
shares of Common Stock to which the SAR pertains shall be reduced in
the same proportion that the holder of the option exercises the related
stock option.
7.2. Duration. Subject to earlier termination as provided in
Section 11.4, the term of each SAR shall be determined by the Committee
but shall not exceed ten years and one day from the date of grant.
Unless otherwise provided by the Committee, each SAR shall become
exercisable at such time or times, to such extent and upon such
conditions as the stock option, if any, to which it relates is
exercisable. The Committee may in its discretion accelerate the
exercisability of any SAR.
7.3. Exercise. An SAR may be exercised, in whole or in part,
by giving written notice to the Company, specifying the number of SARs
which the holder wishes to exercise. Upon receipt of such written
notice, the Company shall, within 90 days thereafter, deliver to the
exercising holder certificates for the shares of Common Stock or cash
or both, as determined by the Committee, to which the holder is
entitled pursuant to Section 7.4.
7.4. Payment. Subject to the right of the Committee to deliver
cash in lieu of shares of Common Stock (which, as it pertains to
officers and directors of the Company, shall comply with all
requirements of the 1934 Act), the number of shares of Common Stock
which shall be issuable upon the exercise of an SAR shall be determined
by dividing:
(a) the number of shares of Common Stock as to which
the SAR is exercised multiplied by the amount of the
appreciation in such shares (for this purpose, the
"appreciation" shall be the amount by which the Fair Market
Value of the shares of Common Stock subject to the SAR on the
exercise date exceeds (1) in the case of an SAR related to a
stock option, the purchase price of the shares of Common Stock
under the stock option or (2) in the case of an SAR granted
alone, without reference to a related stock option, an amount
which shall be determined by the Committee at the time of
grant, subject to adjustment under Section 11.6); by
(b) the Fair Market Value of a share of Common Stock
on the exercise date.
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In lieu of issuing shares of Common Stock upon the exercise of
a SAR, the Committee may elect to pay the holder of the SAR cash equal
to the Fair Market Value on the exercise date of any or all of the
shares which would otherwise be issuable. No fractional shares of
Common Stock shall be issued upon the exercise of an SAR; instead, the
holder of the SAR shall be entitled to receive a cash adjustment equal
to the same fraction of the Fair Market Value of a share of Common
Stock on the exercise date or to purchase the portion necessary to make
a whole share at its Fair Market Value on the date of exercise.
8. Stock Awards and Restricted Stock. A stock award consists of the
transfer by the Company to a participant of shares of Common Stock, without
other payment therefor, as additional compensation for services to the Company.
A share of restricted stock consists of shares of Common Stock which are sold or
transferred by the Company to a participant at a price determined by the
Committee (which price shall be at least equal to the minimum price required by
applicable law for the issuance of a share of Common Stock) and subject to
restrictions on their sale or other transfer by the participant. The transfer of
Common Stock pursuant to stock awards and the transfer and sale of restricted
stock shall be subject to the following terms and conditions:
8.1. Number of Shares. The number of shares to be transferred
or sold by the Company to a participant pursuant to a stock award or as
restricted stock shall be determined by the Committee.
8.2. Sale Price. The Committee shall determine the price, if
any, at which shares of restricted stock shall be sold to a
participant, which may vary from time to time and among participants
and which may be below the Fair Market Value of such shares of Common
Stock at the date of sale.
8.3. Restrictions. All shares of restricted stock transferred
or sold hereunder shall be subject to such restrictions as the
Committee may determine, including, without limitation any or all of
the following:
(a) a prohibition against the sale, transfer, pledge
or other encumbrance of the shares of restricted stock, such
prohibition to lapse at such time or times as the Committee
shall determine (whether in annual or more frequent
installments, at the time of the death, disability or
retirement of the holder of such shares, or otherwise);
(b) a requirement that the holder of shares of
restricted stock forfeit, or (in the case of shares sold to a
participant) resell back to the Company at his or her cost,
all or a part of such shares in the event of termination of
his or her employment or consulting engagement during any
period in which such shares are subject to restrictions;
(c) such other conditions or restrictions as the
Committee may deem advisable.
8.4. Escrow. In order to enforce the restrictions imposed by
the Committee pursuant to Section 8.3, the participant receiving
restricted stock shall enter into an agreement with the Company setting
forth the conditions of the grant. Shares of restricted stock shall be
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registered in the name of the participant and deposited, together with
a stock power endorsed in blank, with the Company. Each such
certificate shall bear a legend in substantially the following form:
The transferability of this certificate and the shares of
Common Stock represented by it are subject to the terms and
conditions (including conditions of forfeiture) contained in
the 2001 Stock Option Plan of Lightica, Inc., (the "Company"),
and an agreement entered into between the registered owner and
the Company. A copy of the Plan and the agreement is on file
in the office of the secretary of the Company.
8.5. End of Restrictions. Subject to Section 11.5, at the end
of any time period during which the shares of restricted stock are
subject to forfeiture and restrictions on transfer, such shares will be
delivered free of all restrictions to the participant or to the
participant's legal representative, beneficiary or heir.
8.6. Shareholder. Subject to the terms and conditions of the
Plan, each participant receiving restricted stock shall have all the
rights of a shareholder with respect to shares of stock during any
period in which such shares are subject to forfeiture and restrictions
on transfer, including without limitation, the right to vote such
shares. Dividends paid in cash or property other than Common Stock with
respect to shares of restricted stock shall be paid to the participant
currently.
9. Performance Shares. A performance share consists of an award which
shall be paid in shares of Common Stock, as described below. The grant of
performance share shall be subject to such terms and conditions as the Committee
deems appropriate, including the following:
9.1. Performance Objectives. Each performance share will be
subject to performance objectives for the Company or one of its
operating units to be achieved by the end of a specified period. The
number of performance shares granted shall be determined by the
Committee and may be subject to such terms and conditions, as the
Committee shall determine. If the performance objectives are achieved,
each participant will be paid in shares of Common Stock or cash. If
such objectives are not met, each grant of performance shares may
provide for lesser payments in accordance with formulas established in
the award.
9.2. Not Shareholder. The grant of performance shares to a
participant shall not create any rights in such participant as a
shareholder of the Company, until the payment of shares of Common Stock
with respect to an award.
9.3. No Adjustments. No adjustment shall be made in
performance shares granted on account of cash dividends which may be
paid or other rights which may be issued to the holders of Common Stock
prior to the end of any period for which performance objectives were
established.
9.4. Expiration of Performance Share. If any participant's
employment or consulting engagement with the Company is terminated for
any reason other than normal retirement, death or disability prior to
the achievement of the participant's stated performance objectives, all
the participant's rights on the performance shares shall expire and
terminate unless otherwise determined by the Committee. In the event of
termination of employment or consulting by reason of death, disability,
or normal retirement, the Committee, in its own discretion may
determine what portions, if any, of the performance shares should be
paid to the participant.
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10. Cash Awards. A cash award consists of a monetary payment made by
the Company to a participant as additional compensation for his or her services
to the Company. Payment of a cash award will normally depend on achievement of
performance objectives by the Company or by individuals. The amount of any
monetary payment constituting a cash award shall be determined by the Committee
in its sole discretion. Cash awards may be subject to other terms and
conditions, which may vary from time to time and among participants, as the
Committee determines to be appropriate.
11. General.
11.1. Effective Date. The Plan will become effective on
August 1, 2001.
11.2. Duration. The Plan shall remain in effect until all
Incentives granted under the Plan have either been satisfied by the
issuance of shares of Common Stock or the payment of cash or been
terminated under the terms of the Plan and all restrictions imposed on
shares of Common Stock in connection with their issuance under the Plan
have lapsed. No Incentives may be granted under the Plan after the
tenth anniversary of the date the Plan is approved by the shareholders
of the Company.
11.3. Non-transferability of Incentives. No stock option may
be transferred, pledged or assigned by the holder thereof (except, in
the event of the holder's death, by will or the laws of descent and
distribution to the limited extent provided in the Plan or in the stock
option) or pursuant to a qualified domestic relations order as defined
by the Code or Title I of the Employee Retirement Income Security Act,
or the rules thereunder, and the Company shall not be required to
recognize any attempted assignment of such rights by any participant.
Notwithstanding the preceding sentence, stock options may be
transferred by the holder thereof to Employee's spouse, children,
grandchildren or parents (collectively, the "Family Members"), to
trusts for the benefit of Family Members, to partnerships or limited
liability companies in which Family Members are the only partners or
shareholders, or to entities exempt from federal income taxation
pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended. During a participant's lifetime, a stock option may be
exercised only by him or her, by his or her guardian or legal
representative or by the transferees permitted by the preceding
sentence.
11.4. Effect of Termination or Death. In the event that a
participant ceases to be an employee of or consultant to the Company
for any reason, including death, any Incentives may be exercised or
shall expire at such times as may be determined by the Committee.
11.5. Additional Condition. Notwithstanding anything in this
Plan to the contrary: (a) the Company may, if it shall determine it
necessary or desirable for any reason, at the time of award of any
Incentive or the issuance of any shares of Common Stock pursuant to any
Incentive, require the recipient of the Incentive, as a condition to
the receipt thereof or to the receipt of shares of Common Stock issued
pursuant thereto, to deliver to the Company a written representation of
present intention to acquire the Incentive or the shares of Common
Stock issued pursuant thereto for his or her own account for investment
and not for distribution; and (b) if at any time the Company further
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determines, in its sole discretion, that the listing, registration or
qualification (or any updating of any such document) of any Incentive
or the shares of Common Stock issuable pursuant thereto is necessary on
any securities exchange or under any federal or state securities or
blue sky law, or that the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in
connection with the award of any Incentive, the issuance of shares of
Common Stock pursuant thereto, or the removal of any restrictions
imposed on such shares, such Incentive shall not be awarded or such
shares of Common Stock shall not be issued or such restrictions shall
not be removed, as the case may be, in whole or in part, unless such
listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the
Company.
11.6. Adjustment. In the event of any merger, consolidation or
reorganization of the Company with any other corporation or
corporations, there shall be substituted for each of the shares of
Common Stock then subject to the Plan, including shares subject to
restrictions, options, or achievement of performance share objectives,
the number and kind of shares of stock or other securities to which the
holders of the shares of Common Stock will be entitled pursuant to the
transaction. In the event of any recapitalization, stock dividend,
stock split, combination of shares or other change in the Common Stock,
the number of shares of Common Stock then subject to the Plan,
including shares subject to restrictions, options or achievements of
performance shares, shall be adjusted in proportion to the change in
outstanding shares of Common Stock. In the event of any such
adjustments, the purchase price of any option, the performance
objectives of any Incentive, and the shares of Common Stock issuable
pursuant to any Incentive shall be adjusted as and to the extent
appropriate, in the discretion of the Committee, to provide
participants with the same relative rights before and after such
adjustment.
11.7. Incentive Plans and Agreements. Except in the case of
stock awards or cash awards, the terms of each Incentive shall be
stated in a plan or agreement approved by the Committee. The Committee
may also determine to enter into agreements with holders of options to
reclassify or convert certain outstanding options, within the terms of
the Plan, as Incentive Stock Options or as non-statutory stock options
and in order to eliminate SARs with respect to all or part of such
options and any other previously issued options.
11.8. Withholding.
(a) The Company shall have the right to withhold from
any payments made under the Plan or to collect as a condition
of payment, any taxes required by law to be withheld. At any
time when a participant is required to pay to the Company an
amount required to be withheld under applicable income tax
laws in connection with a distribution of Common Stock or upon
exercise of an option or SAR, the participant may satisfy this
obligation in whole or in part by electing (the "Election") to
have the Company withhold from the distribution shares of
Common Stock having a value up to the amount required to be
withheld. The value of the shares to be withheld shall be
based on the Fair Market Value of the Common Stock on the date
that the amount of tax to be withheld shall be determined
("Tax Date").
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(b) Each Election must be made prior to the Tax Date.
The Committee may disapprove of any Election, may suspend or
terminate the right to make Elections, or may provide with
respect to any Incentive that the right to make Elections
shall not apply to such Incentive. An Election is irrevocable.
11.9. No Continued Employment, Engagement or Right to
Corporate Assets. No participant under the Plan shall have any right,
because of his or her participation, to continue in the employ of the
Company for any period of time or to any right to continue his or her
present or any other rate of compensation. Nothing contained in the
Plan shall be construed as giving an employee, a consultant, such
persons' beneficiaries or any other person any equity or interests of
any kind in the assets of the Company or creating a trust of any kind
or a fiduciary relationship of any kind between the Company and any
such person.
11.10. Deferral Permitted. Payment of cash or distribution of
any shares of Common Stock to which a participant is entitled under any
Incentive shall be made as provided in the Incentive. Payment may be
deferred at the option of the participant if provided in the Incentive.
11.11. Amendment of the Plan. The Board may amend or
discontinue the Plan at any time. However, no such amendment or
discontinuance shall, subject to adjustment under Section 11.6, (a)
change or impair, without the consent of the recipient, an Incentive
previously granted, (b) increase the maximum number of shares of Common
Stock which may be issued to all participants under the Plan, (c)
change or expand the types of Incentives that may be granted under the
Plan, (d) change the class of persons eligible to receive Incentives
under the Plan, or (e) materially increase the benefits accruing to
participants under the Plan.
11.12. Immediate Acceleration of Incentives. Notwithstanding
any provision in this Plan or in any Incentive to the contrary, (a) the
restrictions on all shares of restricted stock award shall lapse
immediately, (b) all outstanding options and SAR's will become
exercisable immediately, and (c) all performance shares shall be deemed
to be met and payment made immediately, if subsequent to the effective
date of the Plan, any of the following events occur unless otherwise
determined by the board of directors and a majority of the "Continuing
Directors" (as defined below):
(1) any person or group of persons becomes the
beneficial owner of 50% or more of the aggregate number of all
equity securities of the Company entitled to vote for the
election of directors;
(2) a majority of the members of the board of
directors of the Company is replaced within the period of less
than two years by directors not nominated and approved by the
board of directors; or
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(3) the shareholders of the Company approve an
agreement to merge or consolidate with or into another
corporation (unless, after such merger or consolidation, the
former shareholders of the Company own 50% or more of the
successor entity's voting equity securities) or an agreement
to sell or otherwise dispose of all or substantially all of
the Company's assets (including a plan of liquidation).
For purposes of this Section 11.12, beneficial ownership by a
person or group of persons shall be determined in accordance with
Regulation 13D (or any similar successor regulation) promulgated by the
Securities and Exchange Commission pursuant to the 1934 Act. Beneficial
ownership of more than 50% of an equity security may be established by
any reasonable method, but shall be presumed conclusively as to any
person who files a Schedule 13D report with the Securities and Exchange
Commission reporting such ownership. If the restrictions and
forfeitability periods are eliminated by reason of clause (1) of this
Section 11.12, the limitations of this Plan shall not become applicable
again should the person cease to own 50% or more of any equity security
of the Company.
For purposes of this Section 11.12, "Continuing Directors" are
directors (a) who were in office prior to the time any of the events
described in clauses (1), (2) or (3) of this Section 11.12 occurred or
any person publicly announced an intention to acquire 25% or more of
any equity security of the Company, (b) directors in office for a
period of more than two years, and (c) directors nominated and approved
by the Continuing Directors.
11.13. Definition of Fair Market Value. For purposes of this
Plan, the "Fair Market Value" of a share of Common Stock at a specified date
shall, unless otherwise expressly provided in this Plan, be the amount which the
Committee or the board of directors of the Company determines in good faith to
be 100% of the fair market value of such a share as of the date in question;
provided, however, that notwithstanding the foregoing, if such shares are listed
on a U.S. securities exchange or are quoted on the Nasdaq National Market or
Nasdaq Small Cap Stock Market Systems ("Nasdaq"), then Fair Market Value shall
be determined by reference to the last sale price of a share of Common Stock on
such U.S. securities exchange or Nasdaq on the applicable date. If such U.S.
securities exchange or Nasdaq is closed for trading on such date, or if the
Common Stock does not trade on such date, then the last sale price used shall be
the one on the date the Common Stock last traded on such U.S. securities
exchange or Nasdaq.
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