EXHIBIT 4.7
iCURIE, INC.
2005 STOCK INCENTIVE PLAN
1. ESTABLISHMENT, PURPOSE AND TYPES OF AWARDS
iCURIE, INC., a Nevada corporation (the "Company"), hereby establishes the
iCURIE, INC. 2005 STOCK INCENTIVE PLAN (the "Plan"). The purpose of the Plan is
to promote the long-term growth and profitability of the Company by (i)
providing key people with incentives to improve stockholder value and to
contribute to the growth and financial success of the Company through their
future services, and (ii) enabling the Company to attract, retain and reward the
best-available persons.
The Plan permits the granting of stock options (including incentive stock
options qualifying under Code section 422 and nonstatutory stock options), stock
appreciation rights, restricted or unrestricted stock awards, phantom stock,
performance awards, other stock-based awards, or any combination of the
foregoing.
2. DEFINITIONS
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Administrator" means the Board or the committee(s) or
officer(s) appointed by the Board that have authority to administer the
Plan as provided in Section 3 hereof.
(b) "Affiliate" means any entity, whether now or hereafter existing,
which controls, is controlled by, or is under common control with, the
Company (including, but not limited to, joint ventures, limited liability
companies, and partnerships). For this purpose, "control" shall mean
ownership of 50% or more of the total combined voting power or value of
all classes of stock or interests of the entity.
(c) "Award" means any stock option, stock appreciation right, stock
award, phantom stock award, performance award, or other stock-based award.
(d) "Board" means the Board of Directors of the Company.
(e) "Change in Control" means: (i) the acquisition (other than from
the Company) in one or more transactions by any Person, as defined in this
Section 2(e), of the beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended)
of 50% or more of (A) the then outstanding shares of the securities of the
Company, or (B) the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the election of
directors (the "Company Voting Stock"); (ii) the closing of a sale or
other conveyance of all or substantially all of the assets of the Company;
or (iii) the effective time of any merger, share exchange, consolidation,
or other business combination involving the Company if immediately after
such transaction persons who hold a majority of the outstanding voting
securities entitled to vote generally in the election of directors of the
surviving entity (or the entity owning 100% of such surviving entity) are
not persons who, immediately prior to such transaction, held the Company
Voting Stock; provided, however, that a Change in Control shall not
include a public offering of capital stock of the Company and provided,
further, that for purposes of any Award or subplan that constitutes a
"nonqualified deferred compensation plan," within the meaning of Code
section 409A, the Administrator, in its discretion, may specify a
different definition of Change in Control in order to comply with the
provisions of Code section 409A.
For purposes of this Section 2(e), a "Person" means any individual,
entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended, other than: employee benefit
plans sponsored or maintained by the Company and by entities controlled by
the Company or an underwriter of the Common Stock in a registered public
offering.
(f) "Code" means the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
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(g) "Common Stock" means shares of common stock of the Company, par
value of $0.001 per share.
(h) "Fair Market Value" means, with respect to a share of the
Company's Common Stock for any purpose on a particular date, the value
determined by the Administrator in good faith. However, if the Common
Stock is listed or quoted for trading on a national exchange or market,
"Fair Market Value" means, as applicable, (i) either the closing price or
the average of the high and low sale price on the relevant date, as
determined in the Administrator's discretion, quoted on the New York Stock
Exchange, the American Stock Exchange, or the Nasdaq National Market; (ii)
the last sale price on the relevant date quoted on the Nasdaq SmallCap
Market; (iii) the average of the high bid and low asked prices on the
relevant date quoted on the Nasdaq OTC Bulletin Board Service or by the
National Quotation Bureau, Inc. or a comparable service as determined in
the Administrator's discretion; or (iv) if the Common Stock is not quoted
by any of the above, the average of the closing bid and asked prices on
the relevant date furnished by a professional market maker for the Common
Stock, or by such other source, selected by the Administrator. If no
public trading of the Common Stock occurs on the relevant date but the
shares are so listed, then Fair Market Value shall be determined as of the
next preceding date on which trading of the Common Stock does occur. For
all purposes under this Plan, the term "relevant date" as used in this
Section 2(h) means either the date as of which Fair Market Value is to be
determined or the next preceding date on which public trading of the
Common Stock occurs, as determined in the Administrator's discretion.
(i) "Grant Agreement" means a written document memorializing the
terms and conditions of an Award granted pursuant to the Plan and which
shall incorporate the terms of the Plan.
3. ADMINISTRATION
(a) Administration of the Plan. The Plan shall be administered by
the Board or by such committee or committees as may be appointed by the
Board from time to time. To the extent allowed by applicable state law,
the Board by resolution may authorize an officer or officers to grant
Awards (other than Stock Awards) to other officers and employees of the
Company and its Affiliates, and, to the extent of such authorization, such
officer or officers shall be the Administrator.
(b) Powers of the Administrator. The Administrator shall have all
the powers vested in it by the terms of the Plan, such powers to include
authority, in its sole and absolute discretion, to grant Awards under the
Plan, prescribe Grant Agreements evidencing such Awards and establish
programs for granting Awards.
The Administrator shall have full power and authority to take all
other actions necessary to carry out the purpose and intent of the Plan,
including, but not limited to, the authority to: (i) determine the
eligible persons to whom, and the time or times at which Awards shall be
granted; (ii) determine the types of Awards to be granted; (iii) determine
the number of shares to be covered by or used for reference purposes for
each Award; (iv) impose such terms, limitations, restrictions and
conditions upon any such Award as the Administrator shall deem
appropriate; (v) modify, amend, extend or renew outstanding Awards, or
accept the surrender of outstanding Awards and substitute new Awards
(provided however, that, except as provided in Section 6 or 7(d) of the
Plan, any modification that would materially adversely affect any
outstanding Award shall not be made without the consent of the holder);
(vi) accelerate or otherwise change the time in which an Award may be
exercised or becomes payable and to waive or accelerate the lapse, in
whole or in part, of any restriction or condition with respect to such
Award, including, but not limited to, any restriction or condition with
respect to the vesting or exercisability of an Award following termination
of any grantee's employment or other relationship with the Company;
provided, however, that no such waiver or acceleration of lapse
restrictions shall be made with respect to a performance-based stock award
granted to an executive officer of the Company if such waiver or
acceleration is inconsistent with Code section 162(m); (vii) establish
objectives and conditions, if any, for earning Awards and determining
whether Awards will be paid after the end
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of a performance period; and (viii) for any purpose, including but not
limited to, qualifying for preferred tax treatment under foreign tax laws
or otherwise complying with the regulatory requirements of local or
foreign jurisdictions, to establish, amend, modify, administer or
terminate sub-plans, and prescribe, amend and rescind rules and
regulations relating to such sub-plans.
The Administrator shall have full power and authority, in its sole
and absolute discretion, to administer, construe and interpret the Plan,
Grant Agreements and all other documents relevant to the Plan and Awards
issued thereunder, to establish, amend, rescind and interpret such rules,
regulations, agreements, guidelines and instruments for the administration
of the Plan and for the conduct of its business as the Administrator deems
necessary or advisable, and to correct any defect, supply any omission or
reconcile any inconsistency in the Plan or in any Award in the manner and
to the extent the Administrator shall deem it desirable to carry it into
effect.
(c) Non-Uniform Determinations. The Administrator's determinations
under the Plan (including without limitation, determinations of the
persons to receive Awards, the form, amount and timing of such Awards, the
terms and provisions of such Awards and the Grant Agreements evidencing
such Awards) need not be uniform and may be made by the Administrator
selectively among persons who receive, or are eligible to receive, Awards
under the Plan, whether or not such persons are similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no
member of the Administrator shall be liable for any action taken or
decision made in good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by
the Company's charter and by-laws, the members of the Administrator shall
be indemnified by the Company in respect of all their activities under the
Plan.
(f) Effect of Administrator's Decision. All actions taken and
decisions and determinations made by the Administrator on all matters
relating to the Plan pursuant to the powers vested in it hereunder shall
be in the Administrator's sole and absolute discretion and shall be
conclusive and binding on all parties concerned, including the Company,
its stockholders, any participants in the Plan and any other employee,
consultant, or director of the Company, and their respective successors in
interest.
4. SHARES AVAILABLE FOR THE PLAN; MAXIMUM AWARDS
Subject to adjustments as provided in Section 7(d) of the Plan, the shares
of Common Stock that may be issued with respect to Awards granted under the Plan
shall not exceed an aggregate of 9,803,380 shares of Common Stock. The Company
shall reserve such number of shares for Awards under the Plan, subject to
adjustments as provided in Section 7(d) of the Plan. If any Award, or portion of
an Award, under the Plan expires or terminates unexercised, becomes
unexercisable or is forfeited or otherwise terminated, surrendered or canceled
as to any shares, or if any shares of Common Stock are repurchased by or
surrendered to the Company in connection with any Award (whether or not such
surrendered shares were acquired pursuant to any Award), or if any shares are
withheld by the Company, the shares subject to such Award and the repurchased,
surrendered and withheld shares shall thereafter be available for further Awards
under the Plan; provided, however, that any such shares that are surrendered to
or repurchased or withheld by the Company in connection with any Award or that
are otherwise forfeited after issuance shall not be available for purchase
pursuant to incentive stock options intended to qualify under Code section 422.
Such per-individual limit shall not be adjusted to effect a restoration of
shares of Common Stock with respect to which the related Award is terminated,
surrendered or canceled.
5. PARTICIPATION
Participation in the Plan shall be open to all employees, officers, and
directors of, and other individuals providing bona fide services to or for, the
Company, or of any Affiliate of the Company, as may be selected by the
Administrator from time to time. The Administrator may also grant Awards to
individuals in connection with hiring, retention or otherwise, prior to the date
the individual first performs services for
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the Company or an Affiliate, provided that such Awards shall not become vested
or exercisable prior to the date the individual first commences performance of
such services.
6. AWARDS
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards, concurrently with or with respect to outstanding
Awards. All Awards are subject to the terms and conditions provided in the Grant
Agreement. The Administrator may permit or require a recipient of an Award to
defer such individual's receipt of the payment of cash or the delivery of Common
Stock that would otherwise be due to such individual by virtue of the exercise
of, payment of, or lapse or waiver of restrictions respecting, any Award. If any
such payment deferral is required or permitted, the Administrator shall, in its
sole discretion, establish rules and procedures for such payment deferrals.
(a) Stock Options. The Administrator may from time to time grant to
eligible participants Awards of incentive stock options as that term is
defined in Code section 422 or nonstatutory stock options; provided,
however, that Awards of incentive stock options shall be limited to
employees of the Company or of any current or hereafter existing "parent
corporation" or "subsidiary corporation," as defined in Code sections
424(e) and (f), respectively, of the Company and any other individuals who
are eligible to receive incentive stock options under the provisions of
Code section 422. Options intended to qualify as incentive stock options
under Code section 422 must have an exercise price at least equal to Fair
Market Value as of the date of grant, but nonstatutory stock options may
be granted with an exercise price less than Fair Market Value. No stock
option shall be an incentive stock option unless so designated by the
Administrator at the time of grant or in the Grant Agreement evidencing
such stock option.
(b) Stock Appreciation Rights. The Administrator may from time to
time grant to eligible participants Awards of Stock Appreciation Rights
("SAR"). An SAR entitles the grantee to receive, subject to the provisions
of the Plan and the Grant Agreement, a payment having an aggregate value
equal to the product of (i) the excess of (A) the Fair Market Value on the
exercise date of one share of Common Stock over (B) the base price per
share specified in the Grant Agreement, times (ii) the number of shares
specified by the SAR, or portion thereof, which is exercised. The base
price per share specified in the Grant Agreement shall not be less than
the lower of the Fair Market Value on the grant date or the exercise price
of any tandem stock option Award to which the SAR is related. Payment by
the Company of the amount receivable upon any exercise of an SAR may be
made by the delivery of Common Stock or cash, or any combination of Common
Stock and cash, as determined in the sole discretion of the Administrator.
If upon settlement of the exercise of an SAR a grantee is to receive a
portion of such payment in shares of Common Stock, the number of shares
shall be determined by dividing such portion by the Fair Market Value of a
share of Common Stock on the exercise date. No fractional shares shall be
used for such payment and the Administrator shall determine whether cash
shall be given in lieu of such fractional shares or whether such
fractional shares shall be eliminated.
(c) Stock Awards. The Administrator may from time to time grant
restricted or unrestricted stock Awards to eligible participants in such
amounts, on such terms and conditions, and for such consideration,
including no consideration or such minimum consideration as may be
required by law, as it shall determine. A stock Award may be paid in
Common Stock, in cash, or in a combination of Common Stock and cash, as
determined in the sole discretion of the Administrator.
(d) Phantom Stock. The Administrator may from time to time grant
Awards to eligible participants denominated in stock-equivalent units
("phantom stock") in such amounts and on such terms and conditions as it
shall determine. Phantom stock units granted to a participant shall be
credited to a bookkeeping reserve account solely for accounting purposes
and shall not require a segregation of any of the Company's assets. An
Award of phantom stock may be settled in Common Stock, in cash, or in a
combination of Common Stock and cash, as determined in the sole discretion
of the Administrator. Except as otherwise provided in the applicable Grant
Agreement, the grantee shall not have the rights of a stockholder with
respect to
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any shares of Common Stock represented by a phantom stock unit solely as a
result of the grant of a phantom stock unit to the grantee.
(e) Performance Awards. The Administrator may, in its discretion,
grant performance awards which become payable on account of attainment of
one or more performance goals established by the Administrator.
Performance awards may be paid by the delivery of Common Stock or cash, or
any combination of Common Stock and cash, as determined in the sole
discretion of the Administrator. Performance goals established by the
Administrator may be based on the Company's or an Affiliate's operating
income or one or more other business criteria selected by the
Administrator that apply to an individual or group of individuals, a
business unit, or the Company or an Affiliate as a whole, over such
performance period as the Administrator may designate.
(f) Other Stock-Based Awards. The Administrator may from time to
time grant other stock-based awards to eligible participants in such
amounts, on such terms and conditions, and for such consideration,
including no consideration or such minimum consideration as may be
required by law, as it shall determine. Other stock-based awards may be
denominated in cash, in Common Stock or other securities, in
stock-equivalent units, in stock appreciation units, in securities or
debentures convertible into Common Stock, or in any combination of the
foregoing and may be paid in Common Stock or other securities, in cash, or
in a combination of Common Stock or other securities and cash, all as
determined in the sole discretion of the Administrator.
7. MISCELLANEOUS
(a) Withholding of Taxes. Grantees and holders of Awards shall pay
to the Company or its Affiliate, or make provision satisfactory to the
Administrator for payment of, any taxes required to be withheld in respect
of Awards under the Plan no later than the date of the event creating the
tax liability. The Company or its Affiliate may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind
otherwise due to the grantee or holder of an Award. In the event that
payment to the Company or its Affiliate of such tax obligations is made in
shares of Common Stock, such shares shall be valued at Fair Market Value
on the applicable date for such purposes and shall not exceed in amount
the minimum statutory tax withholding obligation.
(b) Loans. To the extent otherwise permitted by law, the Company or
its Affiliate may make or guarantee loans to grantees to assist grantees
in exercising Awards and satisfying any withholding tax obligations.
(c) Transferability. Except as otherwise determined by the
Administrator, and in any event in the case of an incentive stock option
or a stock appreciation right granted with respect to an incentive stock
option, no Award granted under the Plan shall be transferable by a grantee
otherwise than by will or the laws of descent and distribution. Unless
otherwise determined by the Administrator in accord with the provisions of
the immediately preceding sentence, an Award may be exercised during the
lifetime of the grantee, only by the grantee or, during the period the
grantee is under a legal disability, by the grantee's guardian or legal
representative.
(d) Adjustments for Corporate Transactions and Other Events.
(i) Stock Dividend, Stock Split and Reverse Stock Split. In
the event of a stock dividend of, or stock split or
reverse stock split affecting, the Common Stock, (A) the
maximum number of shares of such Common Stock as to
which Awards may be granted under this Plan and the
maximum number of shares with respect to which Awards
may be granted during any one fiscal year of the Company
to any individual, as provided in Section 4 of the Plan,
and (B) the number of shares covered by and the exercise
price and other terms of outstanding Awards, shall,
without further action of the Board, be adjusted to
reflect such event. The Administrator may make
adjustments, in its discretion, to address the treatment
of fractional shares and fractional cents that arise
with respect
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to outstanding Awards as a result of the stock dividend,
stock split or reverse stock split.
(ii) Non-Change in Control Transactions. Except with respect
to the transactions set forth in Section 7(d)(i), in the
event of any change affecting the Common Stock, the
Company or its capitalization, by reason of a spin-off,
split-up, dividend, recapitalization, merger,
consolidation or share exchange, other than any such
change that is part of a transaction resulting in a
Change in Control of the Company, the Administrator, in
its discretion and without the consent of the holders of
the Awards, may make (A) appropriate adjustments to the
maximum number and kind of shares reserved for issuance
or with respect to which Awards may be granted under the
Plan, in the aggregate and with respect to any
individual during any one fiscal year of the Company, as
provided in Section 4 of the Plan; and (B) any
adjustments in outstanding Awards, including but not
limited to modifying the number, kind and price of
securities subject to Awards.
(iii) Change in Control Transactions. In the event of any
transaction resulting in a Change in Control of the
Company, outstanding stock options and other Awards that
are payable in or convertible into Common Stock under
this Plan will terminate upon the effective time of such
Change in Control unless provision is made in connection
with the transaction for the continuation or assumption
of such Awards by, or for the substitution of the
equivalent awards of, the surviving or successor entity
or a parent thereof. In the event of such termination,
the holders of stock options and other Awards under the
Plan will be permitted, immediately before the Change in
Control, to exercise or convert all portions of such
stock options or other Awards under the Plan that are
then exercisable or convertible or which become
exercisable or convertible upon or prior to the
effective time of the Change in Control.
(iv) Unusual or Nonrecurring Events. The Administrator is
authorized to make, in its discretion and without the
consent of holders of Awards, adjustments in the terms
and conditions of, and the criteria included in, Awards
in recognition of unusual or nonrecurring events
affecting the Company, or the financial statements of
the Company or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles,
whenever the Administrator determines that such
adjustments are appropriate in order to prevent dilution
or enlargement of the benefits or potential benefits
intended to be made available under the Plan.
(e) Substitution of Awards in Mergers and Acquisitions. Awards may
be granted under the Plan from time to time in substitution for awards
held by employees, officers, consultants or directors of entities who
become or are about to become employees, officers, consultants or
directors of the Company or an Affiliate as the result of a merger or
consolidation of the employing entity with the Company or an Affiliate, or
the acquisition by the Company or an Affiliate of the assets or stock of
the employing entity. The terms and conditions of any substitute Awards so
granted may vary from the terms and conditions set forth herein to the
extent that the Administrator deems appropriate at the time of grant to
conform the substitute Awards to the provisions of the awards for which
they are substituted.
(f) Termination, Amendment and Modification of the Plan. The Board
may terminate, amend or modify the Plan or any portion thereof at any
time. Except as otherwise determined by the Board, termination of the Plan
shall not affect the Administrator's ability to exercise the powers
granted to it hereunder with respect to Awards granted under the Plan
prior to the date of such termination.
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(g) Non-Guarantee of Employment or Service. Nothing in the Plan or
in any Grant Agreement thereunder shall confer any right on an individual
to continue in the service of the Company or shall interfere in any way
with the right of the Company to terminate such service at any time with
or without cause or notice and whether or not such termination results in
(i) the failure of any Award to vest; (ii) the forfeiture of any unvested
or vested portion of any Award; and/or (iii) any other adverse effect on
the individual's interests under the Plan.
(h) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and a grantee or any other
person. To the extent that any grantee or other person acquires a right to
receive payments from the Company pursuant to an Award, such right shall
be no greater than the right of any unsecured general creditor of the
Company.
(i) Governing Law. The validity, construction and effect of the
Plan, of Grant Agreements entered into pursuant to the Plan, and of any
rules, regulations, determinations or decisions made by the Administrator
relating to the Plan or such Grant Agreements, and the rights of any and
all persons having or claiming to have any interest therein or thereunder,
shall be determined exclusively in accordance with applicable federal laws
and the laws of the State of Nevada, without regard to its conflict of
laws principles.
(j) Effective Date; Termination Date. The Plan is effective as of
the date on which the Plan is adopted by the Board, subject to approval of
the stockholders within twelve months before or after such date. No Award
shall be granted under the Plan after the close of business on the day
immediately preceding the tenth anniversary of the effective date of the
Plan, or if earlier, the tenth anniversary of the date this Plan is
approved by the stockholders. Subject to other applicable provisions of
the Plan, all Awards made under the Plan prior to such termination of the
Plan shall remain in effect until such Awards have been satisfied or
terminated in accordance with the Plan and the terms of such Awards.
PLAN APPROVAL
Date Approved by the Board: July 8, 2005
Date Approved by the Stockholders: July 8, 2005
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APPENDIX A
PROVISIONS FOR CALIFORNIA RESIDENTS
With respect to Awards granted to California residents prior to a public
offering of capital stock of the Company that is effected pursuant to a
registration statement filed with, and declared effective by, the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and only to
the extent required by applicable law, the following provisions shall apply
notwithstanding anything in the Plan or a Grant Agreement to the contrary:
1. Stock appreciation rights Awards under Section 6(b) of the Plan or phantom
stock Awards under Section 6(d) of the Plan, which may be settled in shares of
Company stock, shall not be issued to California residents.
2. With respect to any Award granted in the form of a stock option pursuant to
Section 6(a) of the Plan:
(a) The Award shall provide an exercise price which is not less than 85%
of the Fair Market Value of the underlying security at the time the option
is granted, except that the price shall be not less than 110% of the Fair
Market Value in the case of any person who owns securities possessing more
than 10% of the total combined voting power (as defined in Section 194.5
of the California Corporations Code) of all classes of securities of the
issuer or its parent or subsidiaries possessing voting power.
(b) The exercise period shall be no more than 120 months from the date the
option is granted.
(c) The options shall be non-transferable other than by will, by the laws
of descent and distribution, or, if and to the extent permitted under the
Grant Agreement, as permitted by Rule 701 of the Securities Act of 1933,
as amended (17 C.F.R. 230.701).
(d) The Award recipient shall have the right to exercise at the rate of at
least 20% per year over 5 years from the date the option is granted,
subject to reasonable conditions such as continued employment. However, in
the case of an option granted to officers, directors, managers or
consultants of the Company or the issuer of the underlying security or any
of its affiliates, the option may become fully exercisable, subject to
reasonable conditions such as continued employment, at any time or during
any period established by the issuer of the option or the issuer of the
underlying security or any of its affiliates.
(e) Unless employment is terminated for "cause" as defined by applicable
law, the terms of the Plan or Grant Agreement, or a contract of
employment, the right to exercise the option in the event of termination
of employment, to the extent that the Award recipient is entitled to
exercise on the date employment terminates, will be as follows:
(1) At least 6 months from the date of termination if termination
was caused by death or disability.
(2) At least 30 days from the date of termination if termination was
caused by other than death or disability.
3. With respect to an Award, granted pursuant to Section 6(c) of the Plan, that
provides the Award recipient the right to purchase stock:
(a) The Award shall provide a purchase price which is not less than 85% of
the Fair Market Value of the security at the time the Award recipient is
granted the right to purchase securities under the Grant Agreement, or at
the time the purchase is consummated; or, not less than 100% of the Fair
Market Value of the security either at the time the Award recipient is
granted the right to purchase securities under the Grant Agreement, or at
the time the purchase is consummated, in the case of any person who owns
securities possessing more than 10% of the total combined
A-1
voting power (as defined in Section 194.5 of the California Corporations
Code) of all classes of securities of the issuer or its parent or
subsidiaries possessing voting power.
(b) The Award shall be non-transferable other than by will, by the laws of
descent and distribution, or, if and to the extent permitted under the
Grant Agreement, as permitted by Rule 701 of the Securities Act of 1933,
as amended (17 C.F.R. 230.701).
4. The Plan shall have a termination date of not more than 10 years from the
date the Plan is adopted by the Board or the date the Plan is approved by the
security holders, whichever is earlier.
5. Security holders representing a majority of the Company's outstanding
securities entitled to vote must approve the Plan within 12 months before or
after the date the Plan is adopted. Any option exercised or any securities
purchased before security holder approval is obtained must be rescinded if
security holder approval is not obtained within 12 months before or after the
Plan is adopted. Such securities shall not be counted in determining whether
such approval is obtained.
6. At the discretion of the Administrator, the Company may reserve to itself
and/or its assignee(s) in the Grant Agreement or any applicable stock
restriction agreement a right to repurchase securities held by an Award
recipient upon such Award recipient's termination of employment at any time
within 90 days after such Award recipient's termination date (or in the case of
securities issued upon exercise of an option after the termination date, within
90 days after the date of such exercise) for cash or cancellation of purchase
money indebtedness, at:
(A) no less than the Fair Market Value of such securities as of the date
of the Award recipient's termination of employment, provided, that such
right to repurchase securities terminates when the Company's securities
have become publicly traded; or
(B) the Award recipient's original purchase price, provided, that such
right to repurchase securities at the original purchase price lapses at
the rate of at least 20% of the securities per year over 5 years from the
date the option is granted (without respect to the date the option was
exercised or became exercisable).
The securities held by an officer, director, manager or consultant of the
Company or an affiliate may be subject to additional or greater restrictions.
7. The Company will provide financial statements to each Award recipient
annually during the period such individual has Awards outstanding, or as
otherwise required under Section 260.140.46 of Title 10 of the California Code
of Regulations. Notwithstanding the foregoing, the Company will not be required
to provide such financial statements to Award recipients when issuance is
limited to key employees whose services in connection with the Company assure
them access to equivalent information.
8. The Company will comply with Section 260.140.1 of Title 10 of the California
Code of Regulations with respect to the voting rights of Common Stock and
similar equity securities.
9. The Plan is intended to comply with Section 25102(o) of the California
Corporations Code. Any provision of this Plan which is inconsistent with Section
25102(o), including without limitation any provision of this Plan that is more
restrictive than would be permitted by Section 25102(o) as amended from time to
time, shall, without further act or amendment by the Board, be reformed to
comply with the provisions of Section 25102(o). If at any time the Administrator
determines that the delivery of Common Stock under the Plan is or may be
unlawful under the laws of any applicable jurisdiction, or federal or state
securities laws, the right to exercise an Award or receive shares of Common
Stock pursuant to an Award shall be suspended until the Administrator determines
that such delivery is lawful. The Company shall have no obligation to effect any
registration or qualification of the Common Stock under federal or state laws.
A-2