EXHIBIT 4.1
LUNA TECHNOLOGIES INTERNATIONAL, INC.
INCENTIVE STOCK OPTION PLAN
1. Purpose. The purpose of the Incentive Stock Option Plan (the
"Plan") is to advance the interests of Luna Technologies International, Inc. and
any subsidiary corporation (hereinafter referred to as the "Company") and all of
its shareholders, by strengthening the Company's ability to attract and retain
in its employ individuals of training, experience, and ability, and to furnish
additional incentive to officers and valued employees upon whose judgment,
initiative, and efforts the successful conduct and development of its business
largely depends, by encouraging such officers and employees to become owners of
capital stock of the Company.
This will be effected through the granting of stock options as herein
provided, which options are intended to qualify as "Incentive Stock Options"
within the meaning of Section 422 of the Internal Revenue Code, as amended (the
"Code").
2. Definitions.
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(a) "Board" means the Board of Directors of the Company.
(b) "Committee" means the directors duly appointed to administer
the Plan.
(c) "Common Stock" means the Company's Common Stock.
(d) "Date of Grant" means the date on which an Option is granted
under the Plan.
(e) "Option" means an Option granted under the Plan.
(f) "Optionee" means a person to whom an Option, which has not
expired, has been granted under the Plan.
(g) "Successor" means the legal representative of the estate
of a deceased optionee or the person or persons who acquire the right to
exercise an Option by bequest or inheritance or by reason of the death of any
Optionee.
3. Administration of Plan. The Plan shall be administered by the
Company's Board of Directors or in the alternative, by a committee of two or
more directors appointed by the Board (the "Committee"). If a Committee should
be appointed, the Committee shall report all action taken by it to the Board.
The Committee shall have full and final authority in its discretion, subject to
the provisions of the Plan, to determine the individuals to whom and the time or
times at which Options shall be granted and the number of shares and purchase
price of Common Stock covered by each Option; to construe and interpret the
Plan; to determine the terms and provisions of the respective Option agreements,
which need not be identical, including, but without limitation, terms covering
the payment of the Option Price; and to make all other determinations and take
all other actions deemed necessary or advisable for the proper administration of
the Plan. All such actions and determinations shall be conclusively binding for
all purposes and upon all persons.
4. Common Stock Subject to Options. The aggregate number of shares
of the Company's Common Stock which may be issued upon the exercise of Options
granted under the Plan shall not exceed 200,000. The shares of Common Stock to
be issued upon the exercise of Options may be authorized but unissued shares,
shares issued and reacquired by the Company or shares bought on the market for
the purposes of the Plan. In the event any Option shall, for any reason,
terminate or expire or be surrendered without having been exercised in full, the
shares subject to such Option but not purchased thereunder shall again be
available for Options to be granted under the Plan.
The aggregate fair market value (determined as of the time any
option is granted) of the stock for which any employee may be granted options
which are first exercisable in any single calendar year under this Plan (and any
other plan of the Company meeting the requirements for Incentive Stock Option
Plans) shall not exceed $100,000.
5. Participants. Options will be granted only to persons who are
employees of the Company or subsidiaries of the Company and only in connection
with any such person's employment. The term "employees" shall include officers
as well as other employees, and the officers and other employees who are
directors of the Company. The Committee will determine the employees to be
granted options and the number of shares subject to each option.
6. Terms and Conditions of Options. Any Option granted under the
Plan shall be evidenced by an agreement executed by the Company and the
recipient and shall contain such terms and be in such form as the Committee may
from time to time approve, subject to the following limitations and conditions:
(a) Option Price. The purchase price of each option
shall not be less than 100% of the fair market value of the Company's common
stock at the time of the granting of the option provided, however, if the
optionee, at the time the option is granted, owns stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company, the
purchase price of the option shall not be less than 110% of the fair market
value of the stock at the time of the granting of the option.
(b) Period of Option. The maximum period for exercising
an option shall be 10 years from the date upon which the option is granted,
provided, however, if the optionee, at the time the option is granted, owns
stock possessing more than l0% of the total combined voting power of all classes
of stock of the Company, the maximum period for exercising an option shall be
five years from the date upon which the option is granted and provided further,
however, that these periods may be shortened in accordance with the provisions
of Paragraph 7 below.
Subject to the foregoing, the period during which each option may
be exercised, and the expiration date of each Option shall be fixed by the
Committee.
If an optionee shall cease to be employed by the Company due to
disability, as defined in Section 22(e)(3) of the Code, he may, but only within
the one year next succeeding such cessation of employment, exercise his option
to the extent that he was entitled to exercise it on the date of such cessation.
The Plan will not confer upon any optionee any right with respect to continuance
of employment by the Company, nor will it interfere in any way with his right,
or his employer's right, to terminate his employment at any time.
(c) Vesting of Shareholder Rights. Neither an Optionee
nor his successor shall have any rights as a shareholder of the Company until
the certificates evidencing the shares purchased are properly delivered to such
Optionee or his successor.
(d) Exercise of Option. Each Option shall be exercisable
from time to time during a period (or periods) determined by the Committee and
ending upon the expiration or termination of the Option; provided, however, the
Committee may, by the provisions of any Option Agreement, limit the number of
shares purchaseable thereunder in any period or periods of time during which the
Option is exercisable.
Options may be exercised in part from time to time during the option
period. The exercise of any option will be contingent upon compliance by the
Optionee (or purchaser acting pursuant to Section 6(b)) with the provisions of
Section 10 below and upon receipt by the Company of either (i) cash or certified
bank check payable to its order in the amount of the purchase price of such
shares (ii) shares of Company stock having a fair market value equal to the
purchase price of such shares, or (iii) a combination of (i) and (ii). If any
law or regulation requires the Company to take any action with respect to the
shares to be issued upon exercise of any option, then the date for delivery of
such stock shall be extended for the period necessary to take such action.
(e) Nontransferability of Option. No Option shall be
transferable or assignable by an Optionee, otherwise than by will or the laws of
descent and distribution and each Option shall be exercisable, during the
Optionee's lifetime, only by him. No Option shall be pledged or hypothecated in
any way and no Option shall be subject to execution, attachment, or similar
process except with the express consent of the Committee.
(f) Death of Optionee. In the event of the death of an
optionee while in the employ of the Company, the option theretofore granted
to him shall be exercisable only within the three months succeeding such death
and then only (i) by the person or persons to whom the optionee's rights under
the option shall pass by the optionee's will or by the laws of descent and
distribution, and (ii) if and to the extent that he was entitled to exercise the
option at the date of his death.
7. Assumed Options. In connection with any transaction to which
Section 424(a) of the Code is applicable, options may be granted pursuant hereto
in substitution of existing options or existing options may be assumed as
prescribed by that Section and any regulations issued thereunder.
Notwithstanding anything to the contrary contained in this Plan, options granted
pursuant to this Paragraph shall be at prices and shall contain such terms,
provisions, and conditions as may be determined by the Committee and shall
include such provisions and conditions as may be necessary to meet the
requirements of Section 424(a) of the Code.
8. Certain Dispositions of Shares. Any options granted pursuant to
this Plan shall be conditioned such that if, within the earlier of (i) the
two-year period beginning on the date of grant of an option or (ii) the one-year
period beginning on the date after which any share of stock is transferred to an
individual pursuant to his exercise of an option, such an individual makes a
disposition of such share of stock by way of sale, exchange, gift, transfer of
legal title, or otherwise, such individual shall promptly report such
disposition to the Company in writing and shall furnish to the Company such
details concerning such disposition as the Company may reasonably request.
9. Reclassification, Consolidation, or Merger. If and to the
extent that the number of issued shares of Common Stock of the Corporation shall
be increased or reduced by change in par value, split up, reclassification,
distribution of a dividend payable in stock, or the like, the number of shares
subject to Option and the Option price per share shall be proportionately
adjusted by the Committee, whose determination shall be conclusive. If the
Corporation is reorganized or consolidated or merged with another corporation,
an Optionee granted an Option hereunder shall be entitled to receive Options
covering shares of such reorganized, consolidated, or merged company in the same
proportion, at an equivalent price, and subject to the same conditions. The new
Option or assumption of the old Option shall not give Optionee additional
benefits which he did not have under the old Option, or deprive him of benefits
which he had under the old Option.
10. Restrictions on Issuing Shares. The exercise of each Option
shall be subject to the condition that if at any time the Company shall
determine in its discretion that the satisfaction of withholding tax or other
withholding liabilities, or that the listing, registration, or qualification of
any shares otherwise deliverable upon such exercise upon any securities exchange
or under any state or federal law, or that the consent or approval of any
regulatory body, is necessary or desirable as a condition of, or in connection
with, such exercise or the delivery or purchase of shares purchased thereto,
then in any such event, such exercise shall not be effective unless such
withholding, listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not acceptable to the
Company.
Unless the shares of stock covered by the Plan have been
registered with the Securities and Exchange Commission pursuant to Section 5 of
the Securities Act of l933, each optionee shall, by accepting an option,
represent and agree, for himself and his transferees by will or the laws of
descent and distribution, that all shares of stock purchased upon the exercise
of the option will be acquired for investment and not for resale or
distribution. Upon such exercise of any portion of an option, the person
entitled to exercise the same shall, upon request of the Company, furnish
evidence satisfactory to the Company (including a written and signed
representation) to the effect that the shares of stock are being acquired in
good faith for investment and not for resale or distribution. Furthermore, the
Company may, if it deems appropriate, affix a legend to certificates
representing shares of stock purchased upon exercise of options indicating that
such shares have not been registered with the Securities and Exchange Commission
and may so notify its transfer agent. Such shares may be disposed of by an
optionee in the following manner only: (l) pursuant to an effective registration
statement covering such resale or reoffer, (2) pursuant to an applicable
exemption from registration as indicated in a written opinion of counsel
acceptable to the Company, or (3) in a transaction that meets all the
requirements of Rule l44 of the Securities and Exchange Commission. If shares of
stock covered by the Plan have been registered with the Securities and Exchange
Commission, no such restrictions on resale shall apply, except in the case of
optionees who are directors, officers, or principal shareholders of the Company.
Such persons may dispose of shares only by one of the three aforesaid methods.
11. Use of Proceeds. The proceeds received by the Company from the
sale of Common Stock pursuant to the exercise of Options granted under the Plan
shall be added to the Company's general funds and used for general corporate
purposes.
l2. Amendment, Suspension, and Termination of Plan. The Board of
Directors may alter, suspend, or discontinue the Plan, but may not, without the
approval of a majority of those holders of the Company's Common Stock voting in
person or by proxy at any meeting of the Company's shareholders, make any
alteration or amendment thereof which operates to (a) make any material change
in the class of eligible employees as defined in Section 5, (b) extend the term
of the Plan or the maximum option periods provided in paragraph 6, (c) decrease
the minimum option price provided in paragraph 6, except as provided in
paragraph 9, or (d) materially increase the benefits accruing to employees
participating under this Plan.
Unless the Plan shall theretofore have been terminated by the
Board, the Plan shall terminate ten years after the effective date of the Plan.
No Option may be granted during any suspension or after the termination of the
Plan. No amendment, suspension, or termination of the Plan shall, without an
Optionee's consent, alter or impair any of the rights or obligations under any
Option theretofore granted to such Optionee under the Plan.
13. Limitations. Every right of action by any person receiving
options pursuant to this Plan against any past, present or future member of the
Board, or any officer or employee of the Company arising out of or in connection
with this Plan shall, irrespective of the place where such action may be brought
and irrespective of the place of residence of any such director, officer or
employee cease and be barred by the expiration of one year from the date of the
act or omission in respect of which such right of action arises.
14. Governing Law. The Plan shall be governed by the laws of
the State of Delaware.
l5. Expenses of Administration. All costs and expenses
incurred in the operation and administration of this Plan shall be borne by the
Company.