OREGON MINERAL TECHNOLOGIES, INC.
2010 STOCK OPTIONS AND AWARDS PLAN
1. Purpose. The purpose of the Oregon Mineral Technologies, Inc.
(OMT) 2010 Stock Options and Awards Plan (the "Plan") is to provide a
means through which OMT, a Wyoming corporation (the "Company"), and its
subsidiaries, if any, may attract, retain and motivate employees,
directors, persons affiliated with the Company and persons providing
services to the company and to provide a means whereby such persons can
acquire and maintain stock ownership, thereby strengthening their
concern for the welfare of the Company. A further purpose of the Plan
is to provide such participants with additional incentive and reward
opportunities designed to enhance the profitable growth and increase
stockholder value of the Company. Accordingly, the Plan provides for
granting Incentive Stock Options, options that do not constitute
Incentive Stock Options, Stock Appreciation Rights, Restricted Stock
Awards, Phantom Stock Awards, or any combination of the foregoing, as
is best suited to the particular circumstances as provided herein.
2. Definitions. The following definitions shall be applicable
throughout the Plan unless specifically modified by any paragraph:
(a) "Affiliates" means any "parent corporation" of the Company
and any "subsidiary" of the Company within the meaning of Code Sections
424(e) and (f), respectively, and any entity which directly or
indirectly through one or more intermediaries controls, is controlled
by, or is under common control with the Company.
(b) "Award" means, individually or collectively, any Option,
Restricted Stock Award, Phantom Stock Award or Stock Appreciation
Right.
(c) "Board" means the Board of Directors of the Company.
(d) "Change of Control" means the occurrence of any of the
following events: (i) the Company shall not be the surviving entity in
any merger, consolidation or other reorganization (or survives only as
a subsidiary of an entity other than a previously wholly- owned
subsidiary of the Company), (ii) the Company sells, leases or exchanges
all or substantially all of its assets to any other person or entity
(other than a wholly-owned subsidiary of the Company), (iii) the
Company is to be dissolved and liquidated, (iv) any person or entity,
including a "group" as contemplated by Section 13(d)(3) of the 1934
Act, acquires or gains ownership or control (including, without
limitation, power to vote) of more than 50% of the outstanding shares
of the Company's voting stock (based upon voting power), or (v) as a
result of or in connection with a contested election of directors, the
persons who were directors of the Company before such election shall
cease to constitute a majority of the Board.
(e) "Change of Control Value" shall mean (i) the per share
price offered to stockholders of the Company in any merger,
consolidation, reorganization, sale of assets or dissolution
transaction, (ii) the price per share offered to stockholders of the
Company in any tender offer or exchange offer whereby a Change of
Control takes place, or (iii) if a Change of Control occurs other than
pursuant (i) or (ii) above, the Fair Market Value per share of the
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shares into which Awards are exercisable, as determined by the
Committee, whichever is applicable. In the event that the
consideration offered to stockholders of the Company consists of
anything other than cash, the Committee shall determine the fair cash
equivalent of the portion of the consideration offered which is other
than cash.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
Reference in the Plan to any section of the Code shall be deemed to
include any amendments or successor provisions to any section and any
regulations under such section.
(g) "Committee" means the Board or any Compensation Committee
of the Board which shall be constituted (i) as to permit the Plan to
comply with Rule 16b-3, and (ii) solely of "outside directors," within
the meaning of Section 162(m) of the Code and applicable interpretive
authority thereunder.
(h) "Company" means Oregon Mineral Technologies, Inc.
(i) "Director" means an individual elected to the Board by
the stockholders of the Company or by the Board under applicable
corporate law who is serving on the Board on the date the Plan is
adopted by the Board or is elected to the Board after such date.
(j) An "employee" means any person (including an officer or a
Director) in an employment relationship with the Company or any parent
or subsidiary corporation (as defined in Section 424 of the Code).
(k) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(l) "Fair Market Value" means, as of any specified date, the
mean of the high and low sales prices of the Stock (i) reported by any
interdealer quotation system on which the Stock is quoted on that date
or (ii) if the Stock is listed on a national stock exchange, reported
on the stock exchange composite tape on that date; or, in either case,
if no prices are reported on that date, on the last preceding date on
which such prices of the Stock are so reported. If the Stock is traded
over the counter at the time a determination of its Fair Market Value
is required to be made hereunder, its fair market value shall be deemed
to be equal to the average between the reported high and low or closing
bid and asked prices of Stock on the most recent date on which Stock
was publicly traded. In the event Stock is not publicly traded at the
time a determination of its value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee
in such manner as it deems appropriate.
(m) "Holder" means a Participant who has been granted an Award.
(n) "Incentive Stock Option" means an incentive stock option
within the meaning of Section 422(b) of the Code.
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(o) "Nonqualified Stock Option" means an option granted under
Section 7 of the Plan to purchase Stock that does not constitute an
Incentive Stock Option.
(p) "Option" means an Award granted under Section 7 of the Plan
and includes both Incentive Stock Options to purchase Stock and
Nonqualified Stock Options to purchase Stock.
(q) "Option Agreement" means a written agreement between the
Company and a Holder with respect to an Option.
(r) "Participant" means individually or collectively, an
employee, member of the Board of Directors or person affiliated with
the Company or any of its Affiliates, or persons providing services to
the compay who participates in the Plan.
(s) "Phantom Stock Award" means an Award granted under Section
10 of the Plan.
(t) "Phantom Stock Award Agreement" means a written agreement
between the Company and a Holder with respect to a Phantom Stock Award.
(u) "Reload Option" means the grant of a new Option to a Holder
who exercises an Option(s) as provided in Section 7(f) of the Plan.
(v) "Restricted Stock Agreement" means a written agreement
between the Company and a Holder with respect to a Restricted Stock
Award.
(w) "Restricted Stock Award" means an Award granted under
Section 9 of the Plan.
(x) "Rule 16b-3" means Rule 16b-3 promulgated by the Securities
and Exchange Commission under the 1934 Act, as such may be amended from
time to time, and any successor rule, regulation or statute fulfilling
the same or a similar function.
(y) "Spread" means, in the case of a Stock Appreciation Right,
an amount equal to the excess, if any, of the Fair Market Value of a
share of Stock on the date such right is exercised over the price
designated in such Stock Appreciation Right.
(z) "Stock" means the Common Stock par value, $.01 per share,
of the Company.
(aa) "Stock Appreciation Right" means an Award granted under
Section 8 of the Plan.
(bb) "Stock Appreciation Rights Agreement" means a written
agreement between the Company and a Holder with respect to an Award of
Stock Appreciation Rights.
3. Effective Date and Term. The Plan shall be effective upon its
adoption by the Board, provided that the Plan has been or is approved
by the stockholders of the Company within twelve months of its adoption
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by the Board. No further Awards may be granted under the Plan on or
after the date which is ten years following the effective date. The
Plan shall remain in effect until all Awards granted under the Plan
have been satisfied or expired.
4. Administration. The Plan shall be administered by the Board or by
the Committee as authorized by the Board (hereinafter where the term
"Committee" is used "Board" shall be substituted, if no Committee has
been established). Subject to the provisions of the Plan, the
Committee shall have sole authority, in its discretion, to determine
which Participant shall receive an Award, the time or times when such
Award shall be made, whether an Incentive Stock Option, Nonqualified
Option or Stock Appreciation Right shall be granted, the number of
shares of Stock which may be issued under each Option, Stock
Appreciation Right or Restricted Stock Award, and the value of each
Phantom Stock Award. In making such determinations the Committee may
take into account the nature of the services rendered by the respective
Participants, their present and potential contributions to the
Company's success and such other factors as the Committee in its
discretion shall deem relevant. The Committee shall have such
additional powers as are delegated to it by the other provisions of the
Plan. Subject to the express provisions of the Plan, the Committee is
authorized to construe the Plan and the respective agreements executed
thereunder, to prescribe such rules and regulations relating to the
Plan as it may deem advisable to carry out the Plan, and to determine
the terms, restrictions and provisions of each Award, including such
terms, restrictions and provisions as shall be requisite in the
judgment of the Committee to cause designated Options to qualify as
Incentive Stock Options, and to make all other determinations necessary
or advisable for administering the Plan. The Committee may correct any
defect or supply any omission or reconcile any inconsistency in any
agreement relating to an Award in the manner and to the extent it shall
deem expedient to carry it into effect. The determinations of the
Committee on the matters referred to in this Section 4 shall be
conclusive.
5. Shares Subject to the Plan. Subject to Section 11, the aggregate
number of shares of Stock that may be issued under the Plan shall be
2,000,000 shares. The Stock to be offered pursuant to the grant of an
Award may be authorized but unissued Stock or Stock previously issued
and outstanding and reacquired by the Company. Shares of Stock shall be
deemed to have been issued under the Plan only to the extent actually
issued and delivered pursuant to an Award. To the extent that an Award
lapses or the rights of its Holder terminate or the Award is paid in
cash, any shares of Stock subject to such Award shall again be
available for the grant of an Award. Separate stock certificates shall
be issued by the Company for those shares acquired pursuant to the
exercise of an Incentive Stock Option and for those shares acquired
pursuant to the exercise of a Nonqualified Stock Option.
6. Eligibility. Awards may be granted only to persons who, at the
time of grant, are employees, members of the Board or persons
affiliated with the Company or any of its Affiliates or persons
providing services to the company. An Award may be granted on more
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than one occasion to the same person, and, subject to the limitations
set forth in the Plan, such Award may include an Incentive Stock Option
or a Nonqualified Stock Option, a Stock Appreciation Right, a
Restricted Stock Award, a Phantom Stock Award or any combination
thereof.
7. Stock Options.
(a) Option Period. The term of each Option shall be as
specified by the Committee at the date of grant.
(b) Limitations on Exercise of Option. An Option shall be
exercisable in whole or in such installments and at such times as
determined by the Committee.
(c) Special Limitations on Incentive Stock Options. Incentive
Stock Options may only be granted to employees of the Company and a
parent or subsidiary thereof which is an Affiliate. To the extent that
the aggregate Fair Market Value (determined at the time the respective
Incentive Stock Option is granted) of Stock with respect to which
Incentive Stock Options are exercisable for the first time by an
individual during any calendar year (under all "incentive stock option"
plans of the Company and its parent and subsidiary corporations)
exceeds $100,000, the Incentive Stock Options covering shares of Stock
in excess of $100,000 (but not Incentive Stock Options covering Stock
up to $100,000) shall be treated as Nonqualified Stock Options as
determined by the Committee. The Committee shall determine, in
accordance with applicable provisions of the Code, Treasury Regulations
and other administrative pronouncements, which of an optionee's
Incentive Stock Options will not constitute Incentive Stock Options
because of such limitation and shall notify the optionee of such
determination as soon as practicable after such determination. No
Incentive Stock Option shall be granted to an individual if, at the
time the Option is granted, such individual owns stock possessing more
than 10% of the total combined voting power of all classes of stock of
the Company or of its parent or subsidiary corporation, within the
meaning of Section 422(b)(6) of the Code, unless (i) at the time such
Option is granted the option price is at least 110% of the Fair Market
Value of the Stock subject to the Option and (ii) such Option by its
terms is not exercisable after the expiration of five years from the
date of grant.
(d) Option Agreement. Each Option shall be evidenced by an
Option Agreement in such form and containing such provisions not
inconsistent with the provisions of the Plan as the Committee from time
to time shall approve, including, without limitation, provisions to
qualify an Incentive Stock Option under Section 422 of the Code. An
Option Agreement may provide for the payment of the option price, in
whole or in part, by the delivery of a number of shares of Stock (plus
cash if necessary) having a Fair Market Value equal to such option
price. Payment in full or in part may also be made by reduction in the
number of shares of Stock issuable upon the exercise of an Option,
based on the Fair Market Value of the shares of Stock on the date the
Option is exercised. Each Option Agreement shall provide that the
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Option may not be exercised earlier than 90 days from the date of grant
and shall specify the effect of termination of employment or service on
the exercisability of the Option. Moreover, an Option Agreement may
provide for a "cashless exercise" of the Option by establishing
procedures whereby the Holder, by a properly-executed written notice,
directs (i) an immediate market sale or margin loan respecting all or a
part of the shares of Stock to which he is entitled upon exercise
pursuant to an extension of credit by the Company to the Holder of the
option price, (ii) the delivery of the shares of Stock from the Company
directly to a brokerage firm and (iii) the delivery of the option price
from the sale or margin loan proceeds from the brokerage firm directly
to the Company. Such Option Agreement may also include, without
limitation, provisions relating to (i) vesting of Options, subject to
the provisions hereof accelerating such vesting on a Change of Control,
(ii) tax matters (including provisions (y) permitting the delivery of
additional shares of Stock or the withholding of shares of Stock from
those acquired upon exercise to satisfy federal or state income tax
withholding requirements and (z) dealing with any other applicable
employee wage withholding requirements), and (iii) any other matters
not inconsistent with the terms and provisions of this Plan that the
Committee shall in its sole discretion determine. The terms and
conditions of the respective Option Agreements need not be identical.
(e) Option Price and Payment. The price at which a share of
Stock may be purchased upon exercise of an Option shall be determined
by the Committee, but such purchase price shall not be less than, in
the case of Incentive Stock Options, the Fair Market Value of Stock
subject to an Option on the date the Option is granted and (ii) such
purchase price shall be subject to adjustment as provided in Section
11. The Option or portion thereof may be exercised by delivery of an
irrevocable notice of exercise to the Company. The purchase price of
the Option or portion thereof shall be paid in full in the manner
prescribed by the Committee.
(f) Reload Options. The Committee shall have the authority to
and, in its sole discretion may, specify at or after the time of grant
of a Nonqualified Stock Option, that a Holder shall be automatically
granted a Reload Option in the event such Holder exercises all or part
of an original option ("Original Option") within two years of the date
of grant of the Original Option, by means of, in accordance with
Section 7(d) of this Plan, (i) a cashless exercise, (ii) a reduction in
the number of shares of Stock issuable upon such exercise sufficient to
pay the purchase price and the applicable withholding taxes, based on
the Fair Market Value of the shares of Stock on the date the Option is
exercised, or (iii) surrendering to the Company already owned shares of
Stock in full or partial payment of the purchase price under the
Original Option and the applicable withholding taxes. The grant of
Reload Options shall be subject to the availability of shares of Stock
under this Plan at the time of exercise of the Original Option and to
the limits provided for in Section 5 of this Plan. The Committee shall
have the authority to determine the terms of any Reload Options
granted.
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(g) Stockholder Rights and Privileges. The Holder shall be
entitled to all the privileges and rights of the stockholder only with
respect to such shares of Stock as have been purchased under the Option
and for which certificates of stock have been registered in the
Holder's name.
(h) Options and Rights in Substitution for Stock Options Granted
by Other Corporations. Options and Stock Appreciation Rights may be
granted under the Plan from time to time in substitution for stock
options held by individuals employed by corporations who become
employees as a result of a merger or consolidation of the employing
corporation with the Company or any subsidiary, or the acquisition by
the Company or a subsidiary of the assets of the employing corporation,
or the acquisition by the Company or a subsidiary of stock of the
employing corporation with the result that such employing corporation
becomes a subsidiary.
8. Stock Appreciation Rights.
(a) Stock Appreciation Rights. A Stock Appreciation Right is
the right to receive an amount equal to the Spread with respect to a
share of Stock upon the exercise of such Stock Appreciation Right.
Stock Appreciation Rights may be granted in connection with the grant
of an Option, in which case the Option Agreement will provide that the
Stock Appreciation Right shall be cancelled when and to the extent the
related Option is exercised and that exercise of Stock Appreciation
Rights will result in the surrender of the right to purchase the shares
under the Option as to which the Stock Appreciation Rights were
exercised. Alternatively, Stock Appreciation Rights may be granted
independently of Options in which case each Award of Stock Appreciation
Rights shall be evidenced by a Stock Appreciation Rights Agreement
which shall contain such terms and conditions as may be approved by the
Committee. The Spread with respect to a Stock Appreciation Right shall
be payable in cash, shares of Stock with a Fair Market Value equal to
the Spread or in a combination of cash and shares of Stock, at the
election of the Holder. With respect to Stock Appreciation Rights that
are subject to Section 16 of the 1934 Act, however, the Committee
shall, except as provided in Section 11(c), retain sole discretion (i)
to determine the form in which payment of the Stock Appreciation Right
will be made (i.e., cash, securities or a combination thereof) or (ii)
to approve an election by a Holder to receive cash in full or partial
settlement of Stock Appreciation Rights. Each Stock Appreciation
Rights Agreement shall provide that the Stock Appreciation Rights may
not be exercised earlier than 30 days from the date of grant and shall
specify the effect of termination of employment on the exercisability
of the Stock Appreciation Rights.
(b) Other Terms and Conditions. At the time of such Award, the
Committee, may in its sole discretion, prescribe additional terms,
conditions or restrictions relating to Stock Appreciation Rights,
including but not limited to rules pertaining to termination of
employment (by retirement, disability, death or otherwise) or
termination of service of a Holder prior to the expiration of such
Stock Appreciation Rights. Such additional terms, conditions or
restrictions shall be set forth in the Stock Appreciation Rights
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Agreement made in conjunction with the Award. Such Stock Appreciation
Rights Agreements may also include, without limitation, provisions
relating to (i) vesting of Awards, subject to the provisions hereof
accelerating vesting on a Change of Control, (ii) tax matters
(including provisions covering applicable wage withholding
requirements), and (iii) any other matters not inconsistent with the
terms and provisions of this Plan, that the Committee shall in its sole
discretion determine. The terms and conditions of the respective Stock
Appreciation Rights Agreements need not be identical.
(c) Award Price. The award price of each Stock Appreciation
Right shall be determined by the Committee, but such award price (i)
shall not be less than the Fair Market Value of a share of Stock on the
date the Stock Appreciation Right is granted (or such greater exercise
price as may be required if such Stock Appreciation Right is granted in
connection with an Incentive Stock Option that must have an exercise
price equal to 110% of the Fair Market Value of the Stock on the date
of grant pursuant to Section 7(c)), and (ii) shall be subject to
adjustment as provided in Section 11.
(d) Exercise Period. The term of each Stock Appreciation Right
shall be as specified by the Committee at the date of grant.
(e) Limitations on Exercise of Stock Appreciation Right. A
Stock Appreciation Right shall be exercisable in whole or in such
installments and at such times as determined by the Committee.
9. Restricted Stock Awards.
(a) Forfeiture Restrictions to be established by the Committee.
Shares of Stock that are the subject of a Restricted Stock Award shall
be subject to restrictions on disposition by the Holder and an
obligation of the Holder to forfeit and surrender the shares to the
Company under certain circumstances (the "Forfeiture Restrictions").
The Forfeiture Restrictions shall be determined by the Committee in its
sole discretion, and the Committee may provide that the Forfeiture
Restrictions shall lapse upon (i) the attainment of business objectives
established by the Committee that are based on (1) the price of a share
of Stock, (2) the Company's earnings per share, (3) the Company's
revenue, (4) the revenue of a business unit of the Company designated
by the Committee, (5) the return on stockholders' equity achieved by
the Company, (6) the Company's pre-tax cash flow from operations, or
(7) similar criteria established by the Committee, (ii) the Holder's
continued employment with the Company for a specified period of time,
or (iii) other measurements of individual, business unit or Company
performance. Each Restricted Stock Award may have different Forfeiture
Restrictions, in the discretion of the Committee. The Forfeiture
Restrictions applicable to a particular Restricted Stock Award shall
not be changed except as permitted by Section 9(b) or Section 11.
(b) Other Terms and Conditions. Stock awarded pursuant to a
Restricted Stock Award shall be represented by a stock certificate
registered in the name of the Holder of such Restricted Stock Award.
The Holder shall have the right to receive dividends with respect to
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Stock subject to a Restricted Stock Award, to vote Stock subject
thereto and to enjoy all other stockholder rights, except that (i) the
Holder shall not be entitled to delivery of the stock certificate until
the Forfeiture Restrictions shall have expired, (ii) the Company shall
retain custody of the Stock until the Forfeiture Restrictions shall
have expired, (iii) the Holder may not sell, transfer, pledge,
exchange, hypothecate or otherwise dispose of the Stock until the
Forfeiture Restrictions shall have expired, and (iv) a breach of the
terms and conditions established by the Committee pursuant to the
Restricted Stock Agreement, shall cause a forfeiture of the Restricted
Stock Award. At the time of such Award, the Committee may, in its sole
discretion, prescribe additional terms, conditions or restrictions
relating to Restricted Stock Awards, including, but not limited to,
rules pertaining to the termination of employment (by retirement,
disability, death or otherwise) or termination of service of a Holder
prior to expiration of the Forfeiture Restrictions. Such additional
terms, conditions or restrictions shall be set forth in a Restricted
Stock Agreement made in conjunction with the Award. Such Restricted
Stock Agreement may also include, without limitation, provisions
relating to (i) subject to the provisions hereof accelerating vesting
on a Change of Control, vesting of Awards, (ii) tax matters (including
provisions (y) covering any applicable employee wage withholding
requirements and (z) prohibiting an election by the Holder under
Section 83(b) of the Code), and (iii) any other matters not
inconsistent with the terms and provisions of this Plan that the
Committee shall in its sole discretion determine. The terms and
conditions of the respective Restricted Stock Agreements need not be
identical.
(c) Payment for Restricted Stock. The Committee shall determine
the amount and form of any payment for Stock received pursuant to a
Restricted Stock Award, provided that in the absence of such a
determination, a Holder shall not be required to make any payment for
Stock received pursuant to a Restricted Stock Award, except to the
extent otherwise required by law.
(d) Agreements. At the time any Award is made under this
Section 9, the Company and the Holder shall enter into a Restricted
Stock Agreement setting forth each of the matters as the Committee may
determine to be appropriate. The terms and provisions of the
respective Restricted Stock Agreements need not be identical.
10. Phantom Stock Awards.
(a) Phantom Stock Awards. Phantom Stock Awards are rights to
receive an amount equal to the Fair Market Value of Stock over a
specified period of time, which vest over a period of time or upon the
occurrence of an event (including without limitation a Change of
Control) as established by the Committee, without payment of any
amounts by the Holder thereof (except to the extent otherwise required
by law). Each Phantom Stock Award may have a maximum value established
by the Committee at the time of such Award.
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(b) Award Period. The Committee shall establish, with respect
to and at the time of each Phantom Stock Award, a period over which or
the event upon which the Award shall vest with respect to the Holder.
(c) Awards Criteria. In determining the value of Phantom Stock
Awards, the Committee shall take into account a Participant's
responsibility level, performance, potential, other Awards and such
other considerations as it deems appropriate.
(d) Payment. Following the end of the vesting period for a
Phantom Stock Award, the Holder of a Phantom Stock Award shall be
entitled to receive payment of an amount, not exceeding the maximum
value of the Phantom Stock Award, based on the then vested value of the
Award. Payment of a Phantom Stock Award may be made in cash, Stock or a
combination thereof as determined by the Committee. Payment shall be
made in a lump sum or in installments as prescribed by the Committee in
its sole discretion. Any payment to be made in Stock shall be based on
the Fair Market Value of the Stock on the payment date. Cash dividend
equivalents may be paid during or after the vesting period with respect
to a Phantom Stock Award, as determined by the Committee and as
provided in the Phantom Stock Award Agreement. If a payment of cash is
to be made on a deferred basis, the Committee shall establish whether
interest shall be credited, the rate thereof and any other terms and
conditions applicable thereto.
(e) Termination of Employment or Service. A Phantom Stock Award
shall terminate if the Holder does not remain continuously in the
employ or in the service of the Company at all times during the
applicable vesting period, except as may be otherwise determined by the
Committee or as set forth in the Award at the time of grant.
(f) Agreements. At the time any Award is made under this
Section 10, the Company and the Holder shall enter into a Phantom Stock
Award Agreement setting forth each of the matters contemplated hereby
and such matters described in this Section 10 as the Committee may
determine to be appropriate. The terms and provisions of the
respective agreements need not be identical.
11. Recapitalization and Reorganization.
(a) The shares with respect to which Awards may be granted are
shares of Stock as presently constituted, but if, and whenever, prior
to the expiration of an Award theretofore granted, the Company shall
effect a subdivision or consolidation by the Company of the shares of
Stock, then the number of shares of Stock with respect to which such
Award may thereafter be exercised or satisfied, as applicable, (i) in
the event of an increase in the number of outstanding shares, shall be
proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the
number of outstanding shares, shall be proportionately reduced, and the
purchase price per share shall be proportionately increased.
(b) If the Company recapitalizes or otherwise changes its
capital structure, thereafter upon any exercise or satisfaction, as
applicable, of an Award theretofore granted, the Holder shall be
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entitled to (or entitled to purchase, if applicable) under such Award,
in lieu of the number of shares of Stock then covered by such Award,
the number and class of shares of stock and securities to which the
Holder would have been entitled pursuant to the terms of the
recapitalization if, immediately prior to such recapitalization, the
Holder had been the holder of record of the number of shares of Stock
then covered by such Award.
(c) In the event of a Change of Control, all outstanding Awards
shall immediately vest and become exercisable or satisfiable, as
applicable. The Committee, in its discretion, may determine that upon
the occurrence of a Change of Control, each Award other than an Option
outstanding hereunder shall terminate within a specified number of days
after notice to the Holder, and such Holder shall receive, with respect
to each share of Stock subject to such Award, cash in an amount equal
to the excess, if any, of the Change of Control Value over the exercise
price, if any, applicable to the Award. Further, in the event of a
Change of Control, the Committee, in its discretion shall act to effect
one or more of the following alternatives with respect to outstanding
Options, which may vary among individual Holders and which may vary
among Options held by any individual Holder: (i) determine a limited
period of time on or before a specified date (before or after such
Change of Control) after which specified date all unexercised Options
and all rights of Holders thereunder shall terminate, (2) require the
mandatory surrender to the Company by selected Holders of some or all
of the outstanding Options held by such Holders (irrespective of
whether such Options are then exercisable under the provisions of the
Plan) as of a date, before or after such Change of Control, specified
by the Committee, in which event the Committee shall thereupon cancel
such Options and the Company shall pay to each Holder an amount of cash
per share equal to the excess, if any, of the Change of Control Value
of the shares subject to such Option over the exercise price(s) under
such Options for such shares, (3) make such adjustments to Options then
outstanding as the Committee deems appropriate to reflect such Change
of Control (provided, however, that the Committee may determine in its
sole discretion that no adjustment is necessary to Options then
outstanding) or (4) provide that thereafter upon any exercise of an
Option theretofore granted the Holder shall be entitled to purchase
under such Option, in lieu of the number of shares of Stock then
covered by such Option the number and class of shares of stock or other
securities or property (including, without limitation, cash) to which
the Holder would have been entitled pursuant to the terms of the
agreement of merger, consolidation or sale of assets and dissolution
if, immediately prior to such merger, consolidation or sale of assets
and dissolution the Holder has been the holder of record of the number
of shares of Stock then covered by such Option. The provisions
contained in this paragraph shall not terminate any rights of the
Holder to further payments pursuant to any other agreement with the
Company following a Change of Control.
(d) In the event of changes in the outstanding Stock by reason
of recapitalization, reorganizations, mergers, consolidations,
combinations, exchanges or other relevant changes in capitalization
occurring after the date of the grant of any Award and not otherwise
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provided for by this Section 11, any outstanding Awards and any
agreements evidencing such Awards shall be subject to adjustment by the
Committee at its discretion as to the number and price of shares of
Stock or other consideration subject to such Awards. In the event of
any such change in the outstanding Stock, the aggregate number of
shares available under the Plan may be appropriately adjusted by the
Committee, whose determination shall be conclusive.
(e) The existence of the Plan and the Awards granted hereunder
shall not affect in any way the right or power of the Board or the
stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's
capital structure or its business, any merger or consolidation of the
Company, any issue of debt or equity securities ahead of or affecting
Stock or the rights thereof, the dissolution or liquidation of the
Company or any sale, lease, exchange or other disposition of all or any
part of its assets or business or any other corporate act or
proceeding.
(f) Any adjustment provided for in Subparagraphs (a), (b), (c)
or (d) above shall be subject to any required stockholder action.
(g) Except as hereinbefore expressly provided, the issuance by
the Company of shares of stock of any class or securities convertible
into shares of stock of any class, for cash, property, labor or
services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefore or the granting of any later Awards under the Plan
or any other stock plan, or upon conversion of shares of obligations of
the Company convertible into such shares or other securities, and in
any case whether or not for fair value, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number
of shares of Stock subject to Awards theretofore granted or the
purchase price per share, if applicable.
12. Amendment and Termination. The Board in its discretion may
terminate the Plan at any time with respect to any shares for which
Awards have not theretofore been granted. The Board shall have the
right to alter or amend the Plan or any part thereof from time to time;
provided that no change in any Award theretofore granted may be made
which would impair the rights of the Holder without the consent of the
Holder (unless such change is required in order to cause the benefits
under the Plan to qualify as performance-based compensation within the
meaning of Section 162(m) of the Code and applicable interpretive
authority thereunder).
13. Miscellaneous.
(a) No Right to An Award. Neither the adoption of the Plan by
the Company nor any action of the Board or the Committee shall be
deemed to give a Participant any right to be granted an Award to
purchase Stock, a right to a Stock Appreciation Right, a Restricted
Stock Award or a Phantom Stock Award or any of the rights hereunder
except as may be evidenced by an Award or by an Option Agreement, Stock
Appreciation Rights Agreement, Restricted Stock Agreement or Phantom
13
Stock Award Agreement on behalf of the Company, and then only to the
extent and on the terms and conditions expressly set forth therein. The
Plan shall be unfunded. The Company shall not be required to establish
any special or separate fund or to make any other segregation of funds
or assets to assure the payment of any Award.
(b) No Employment Rights Conferred. Nothing contained in the
Plan shall (i) confer upon any Participant any right to continue as an
employee or person affiliated with the Company or any subsidiary or
(ii) interfere in any way with the right of the Company or any
subsidiary to terminate his or her employment or consulting arrangement
at any time.
(c) Other Laws; Withholding. The Company shall not be obligated
to issue any Stock pursuant to any Award granted under the Plan at any
time when the shares covered by such Award have not been registered
under the Securities Act of 1933 and such other state and federal laws,
rules or regulations as the Company or the Committee deems applicable
and, in the opinion of legal counsel for the Company, there is no
exemption from the registration requirements of such laws, rules or
regulations available for the issuance and sale of such shares. No
fractional shares of Stock shall be delivered, nor shall any cash in
lieu of fractional shares be paid. The Company shall have the right to
deduct in connection with all Awards any taxes required by law to be
withheld and to require any payments required to enable it to satisfy
its withholding obligations.
(d) No Restriction on Corporate Action. Nothing contained in
the Plan shall be construed to prevent the Company or any subsidiary
from taking any corporate action which is deemed by the Company or such
subsidiary to be appropriate or in its best interest, whether or not
such action would have an adverse effect on the Plan or any Award made
under the Plan. No Participant, beneficiary or other person shall have
any claim against the Company or any subsidiary as a result of any such
action.
(e) Restrictions on Transfer. Except as otherwise determined by
the Committee in cases other than in connection with Incentive Stock
Options, an Award shall not be transferable otherwise than by will or
the laws of descent and distribution or pursuant to a "qualified
domestic relations order" as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the
rules thereunder, and shall be exercisable during the Holder's lifetime
only by such Holder or the Holder's guardian or legal representative.
(f) Rule 16b-3. It is intended that the Plan and any grant of
an Award made to a person subject to Section 16 of the 1934 Act meet
all of the requirements of Rule 16b-3. If any provision of the Plan or
any such Award would disqualify the Plan or such Award under, or would
otherwise not comply with, Rule 16b-3, such provision or Award shall be
construed or deemed amended to conform to Rule 16b-3.
14
(g) Section 162(m). If the Plan is subject to Section 162(m) of
the Code, it is intended that the Plan comply fully with and meet all
the requirements of Section 162(m) of the Code so that Options and
Stock Appreciation Rights granted hereunder and, if determined by the
Committee, Restricted Stock Awards, shall constitute "performance-
based" compensation within the meaning of such section. If any
provision of the Plan would disqualify the Plan or would not otherwise
permit the Plan to comply with Section 162(m) as so intended, such
provision shall be construed or deemed amended to conform to the
requirements or provisions of Section 162(m); provided that no such
construction or amendment shall have an adverse effect on the economic
value to a Holder of any Award previously granted hereunder.
(h) Governing Law. This Plan shall be construed in accordance
with the laws of the State of Wyoming.
14. Burden and Benefit
The terms and provisions of this Plan shall be binding upon, and shall
inure to the benefit of, each Participant, his executives or
administrators, heirs, and personal and legal representatives.
Dated the day of 2010.
Oregon Mineral Technologies, Inc.
By: /s/
- --------------------------
C. Douglas Hamilton, President
ATTEST:
/s/
- ---------------------------------
C. Douglas Hamilton, Secretary
EXHIBIT A
FORM OF
GRANT OF OPTION PURSUANT TO THE
OREGON MINERAL TECHNOLOGIES, INC.
2010 STOCK OPTIONS AND AWARDS PLAN
Oregon Mineral Technologies, Inc. , a Wyoming corporation (the
"Company"), hereby grants to ________________________________
("Optionee") an option to purchase ___________ shares of common stock,
$.01 par value (the "Shares") of the Company at the purchase price of
$______ per share (the "Purchase Price") in accordance with and subject
to the terms and conditions of the Oregon Mineral Technologies 2010
Stock Options and Awards Plan. This option is exercisable in whole or
in part, and upon payment in cash or cancellation of fees, or other
form of payment acceptable to the Company, to the offices of the
Company at __________________________--. This Grant of Option form
supersedes and replaces any prior notice of option grant, description
of vesting terms or similar documents previously delivered to Optionee
for options granted on the date stated below.
In the event that Optionee's employee or consultant status with the
Company or any of its subsidiaries ceases or terminates for any reason
whatsoever, including, but not limited to, death, disability, or
voluntary or involuntary cessation or termination, this Grant of Option
shall terminate with respect to any portion of this Grant of Option
that has not vested prior to the date of cessation or termination of
employee or consultant status, as determined in the sole discretion of
the Company. In the event of termination for cause, this Grant of
Option shall immediately terminate in full with respect to any un-
exercised options, and any vested but un-exercised options shall
immediately expire and may not be exercised. Unless otherwise set forth
in a separate employment or consulting agreement, vested options must
be exercised within one (1) year after the date of termination (other
than for cause), notwithstanding the Expiration Date set forth above.
Subject to the preceding paragraph, this Grant of Option, or any
portion hereof, may be exercised only to the extent vested per the
attached schedule, and must be exercised by Optionee no later than
______________________ (the "Expiration Date") by (i) notice in
writing, sent by facsimile copy to the Company at its address set forth
above; and (ii) payment of the Purchase Price of a minimum of $1,000
(unless the Purchase price for the exercise of all vested options
available to be exercised totals less than $1,000) pursuant to the
terms of this Grant of Option and the Company's Employee Benefit and
Consulting Services Compensation Plan. Any portion of this Grant of
Option that is not exercised on or before to the Expiration Date shall
lapse. The notice must refer to this Grant of Option, and it must
specify the number of shares being purchased, and recite the
consideration being paid therefor. Notice shall be deemed given on the
date on which the notice is delivered to the Company by facsimile
transmission bearing an authorized signature of Optionee.
This Option shall be considered validly exercised once payment
therefore has cleared the banking system or the Company has issued a
credit memo for services in the appropriate amount, or receives a duly
16
executed acceptable promissory note, if the Option is granted with
deferred payment, and the Company has received written notice of such
exercise.
If Optionee fails to exercise this Option in accordance with this
Agreement, then this Agreement shall terminate and have no force and
effect, in which event Optionor and Optionee shall have no liability to
each other with respect to this Grant of Option.
This Option may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
The validity, construction and enforceability of this Grant of Option
shall be construed under and governed by the laws of the State of
Wyoming, without regard to its rules concerning conflicts of laws, and
any action brought to enforce this Grant of Option or resolve any
controversy, breach or disagreement relative hereto shall be brought
only in a court of competent jurisdiction in the State of Wyoming.
Unless otherwise set forth in a separate employment or consulting
agreement, the shares of stock issuable upon exercise of the Option
(the "Underlying Shares") are not subject to adjustment due to any
changes in the capital structure of the Company as set forth in Section
15 of the Plan. Further, the Underlying Shares may not be sold,
exchanged, assigned, transferred or permitted to be transferred,
whether voluntarily, involuntarily or by operation of law, delivered,
encumbered, discounted, pledged, hypothecated or otherwise disposed of
until (i) the Underlying Shares have been registered with the
Securities and Exchange Commission pursuant to an effective
registration statement on Form S-8, or such other form as may be
appropriate, in the discretion of the Company; or (ii) an Opinion of
Counsel, satisfactory to the Company, has been received, which opinion
sets forth the basis and availability of any exemption for resale or
transfer from federal or state securities registration requirements.
The Underlying Shares ___________________ [insert appropriate language:
"have" or "have not"] been registered with the Securities and Exchange
Commission pursuant to a registration statement on Form S-8.
This Grant of Option relates to options granted on____________________,
20___.
Oregon Mineral Technologies, Inc.
BY THE BOARD OF DIRECTORS OR A SPECIAL COMMITTEE THEREOF
NOT FOR EXECUTION
By:
----------------------------
NOT FOR EXECUTION
By:
----------------------------
NOT FOR EXECUTION
By:
----------------------------
OPTIONEE:
NOT FOR EXECUTION
- -----------------------------------------
- -----------------------------------------
Oregon Mineral Technologies, Inc.
2010 Stock Options and Awards Plan
Grant of Option Pursuant to the Oregon Mineral Technologies, Inc., 2010
Stock Options and Awards Plan.
OPTIONEE: -----------------------------
OPTIONS GRANTED: -----------------------------
PURCHASE PRICE: $ per Share
------
DATE OF GRANT: -----------------------------
EXERCISE PERIOD: to
------------ -----------
EXERCISED TO DATE: INCLUDING THIS EXERCISE
-------------
BALANCE TO BE EXERCISED:
-------------
FORM OF SUBSCRIPTION
(TO BE SIGNED ONLY UPON EXERCISE OF THE OPTION)
TO: Oregon Mineral Technologies, Inc. ("Optionor")
The undersigned, the holder of the Option described above, hereby
irrevocably elects to exercise the purchase rights represented by such
Option for, and to purchase thereunder, ___________ shares of the
Common Stock of Oregon Mineral Technologies, Inc., and herewith makes
payment of _____________ therefor. Optionee requests that the
certificates for such shares be issued in the name of Optionee and be
delivered to Optionee at the address of
_______________________________________________________________________
_________________________________________________________________, and
if such shares shall not be all of the shares purchasable hereunder,
represents that a new Subscription of like tenor for the appropriate
balance of the shares, or a portion thereof, purchasable under the
Grant of Option pursuant to the Oregon Mineral Technologies, Inc. 2010
Stock Options and Awards Plan, be delivered to Optionor when and as
appropriate.
OPTIONEE:
NOT FOR EXECUTION
Dated:
------------------------- -------------------------------
18