ALPHATRADE.COM 2008 Incentive Stock Plan
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THIS ALPHATRADE.COM 2008 INCENTIVE STOCK PLAN (the "Plan") is designed
to retain directors, executives and selected employees and consultants and
reward them for making major contributions to the success of the Company. These
objectives are accomplished by making long-term incentive awards under the Plan
thereby providing Participants with a proprietary interest in the growth and
performance of the Company.
1. Definitions.
(a) "Board" - The Board of Directors of the Company.
(b)"Code" - The Internal Revenue Code of 1986, as amended from time to
time.
(c)"Committee" - The Compensation Committee of the Company's Board, or
such other committee of the Board that is designated by the Board to
administer the Plan, composed of not less than two members of the Board
all of whom are disinterested persons, as contemplated by Rule 16b-3
("Rule 16b-3") promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(d)"Company" - Alphatrade.com and its subsidiaries including subsidiaries
of subsidiaries.
(e)"Exchange Act" - The Securities Exchange Act of 1934, as amended from
time to time.
(f)"Fair Market Value" - The fair market value of the Company's issued and
outstanding Stock as determined in good faith by the Board or Committee.
(g)"Grant" - The grant of any form of stock option, stock award, or stock
purchase offer, whether granted singly, in combination or in tandem, to
a Participant pursuant to such terms, conditions and limitations as the
Committee may establish in order to fulfill the objectives of the Plan.
(h)"Grant Agreement" - An agreement between the Company and a Participant
that sets forth the terms, conditions and limitations applicable to a
Grant.
(i)"Option" - Either an Incentive Stock Option, in accordance with Section
422 of Code, or a Nonstatutory Option, to purchase the Company's Stock
that may be awarded to a Participant under the Plan. A Participant who
receives an award of an Option shall be referred to as an "Optionee."
(j)"Participant" - A director, officer, employee or consultant of the
Company to whom an Award has been made under the Plan.
(k)"Restricted Stock Purchase Offer" - A Grant of the right to purchase a
specified number of shares of Stock pursuant to a written agreement
issued under the Plan.
Exhibit 10.1 - 1
(l)"Securities Act" - The Securities Act of 1933, as amended from time to
time.
(m)"Stock" - Authorized and issued or unissued shares of common stock of
the Company.
(n)"Stock Award" - A Grant made under the Plan in stock or denominated in
units of stock for which the Participant is not obligated to pay
additional consideration.
2. Administration. The Plan shall be administered by the Board, provided
however, that the Board may delegate such administration to the Committee.
Subject to the provisions of the Plan, the Board and/or the Committee shall
have authority to (a) grant, in its discretion, Incentive Stock Options in
accordance with Section 422 of the Code, or Nonstatutory Options, Stock
Awards or Restricted Stock Purchase Offers; (b) determine in good faith the
fair market value of the Stock covered by any Grant; (c) determine which
eligible persons shall receive Grants and the number of shares,
restrictions, terms and conditions to be included in such Grants; (d)
construe and interpret the Plan; (e) promulgate, amend and rescind rules
and regulations relating to its administration, and correct defects,
omissions and inconsistencies in the Plan or any Grant; (f) consistent with
the Plan and with the consent of the Participant, as appropriate, amend any
outstanding Grant or amend the exercise date or dates thereof; (g)
determine the duration and purpose of leaves of absence which may be
granted to Participants without constituting termination of their
employment for the purpose of the Plan or any Grant; and (h) make all other
determinations necessary or advisable for the Plan's administration. The
interpretation and construction by the Board of any provisions of the Plan
or selection of Participants shall be conclusive and final. No member of
the Board or the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Grant made thereunder.
3. Eligibility.
(a)General: The persons who shall be eligible to receive Grants shall be
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directors, officers, employees or consultants to the Company. The term
consultant shall mean any person, other than an employee, who is engaged
by the Company to render services and is compensated for such services.
An Optionee may hold more than one Option. Any issuance of a Grant to an
officer or director of the Company subsequent to the first registration
of any of the securities of the Company under the Exchange Act shall
comply with the requirements of Rule 16b-3.
(b)Incentive Stock Options: Incentive Stock Options may only be issued to
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employees of the Company. Incentive Stock Options may be granted to
officers or directors, provided they are also employees of the Company.
Payment of a director's fee shall not be sufficient to constitute
employment by the Company.
The Company shall not grant an Incentive Stock Option under
the Plan to any employee if such Grant would result in such employee
holding the right to exercise for the first time in any one calendar
Exhibit 10.1 - 2
year, under all Incentive Stock Options granted under the Plan or any
other plan maintained by the Company, with respect to shares of Stock
having an aggregate fair market value, determined as of the date of the
Option is granted, in excess of $100,000. Should it be determined that
an Incentive Stock Option granted under the Plan exceeds such maximum
for any reason other than a failure in good faith to value the Stock
subject to such option, the excess portion of such option shall be
considered a Nonstatutory Option. To the extent the employee holds two
(2) or more such Options which become exercisable for the first time in
the same calendar year, the foregoing limitation on the exercisability
of such Option as Incentive Stock Options under the Federal tax laws
shall be applied on the basis of the order in which such Options are
granted. If, for any reason, an entire Option does not qualify as an
Incentive Stock Option by reason of exceeding such maximum, such Option
shall be considered a Nonstatutory Option.
(c)Nonstatutory Option: The provisions of the foregoing Section 3(b) shall
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not apply to any Option designated as a "Nonstatutory Option" or which
sets forth the intention of the parties that the Option be a
Nonstatutory Option.
(d)Stock Awards and Restricted Stock Purchase Offers: The provisions of
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this Section 3 shall not apply to any Stock Award or Restricted Stock
Purchase Offer under the Plan.
4. Stock.
(a)Authorized Stock: Stock subject to Grants may be either unissued or
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reacquired Stock.
(b)Number of Shares: Subject to adjustment as provided in Section 5(i) of
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the Plan, the total number of shares of Stock which may be purchased or
granted directly by Options, Stock Awards or Restricted Stock Purchase
Offers, or purchased indirectly through exercise of Options granted
under the Plan shall not exceed Seven Million Eight Hundred Fifteen
Thousand (7,815,000) shares. If any Grant shall for any reason terminate
or expire, any shares allocated thereto but remaining unpurchased upon
such expiration or termination shall again be available for Grants with
respect thereto under the Plan as though no Grant had previously
occurred with respect to such shares. Any shares of Stock issued
pursuant to a Grant and repurchased pursuant to the terms thereof shall
be available for future Grants as though not previously covered by a
Grant.
(c)Reservation of Shares: The Company shall reserve and keep available at
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all times during the term of the Plan such number of shares as shall be
sufficient to satisfy the requirements of the Plan. If, after reasonable
efforts, which efforts shall not include the registration of the Plan or
Grants under the Securities Act, the Company is unable to obtain
authority from any applicable regulatory body, which authorization is
Exhibit 10.1 - 3
deemed necessary by legal counsel for the Company for the lawful
issuance of shares hereunder, the Company shall be relieved of any
liability with respect to its failure to issue and sell the shares for
which such requisite authority was so deemed necessary unless and until
such authority is obtained.
(d)Application of Funds: The proceeds received by the Company from the
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sale of Stock pursuant to the exercise of Options or rights under Stock
Purchase Agreements will be used for general corporate purposes.
(e)No Obligation to Exercise: The issuance of a Grant shall impose no
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obligation upon the Participant to exercise any rights under such Grant.
5. Terms and Conditions of Options. Options granted hereunder shall be
evidenced by agreements between the Company and the respective Optionees,
in such form and substance as the Board or Committee shall from time to
time approve. The form of Incentive Stock Option Agreement attached hereto
as Exhibit A and the three forms of a Nonstatutory Stock Option Agreement
for employees, for directors and for consultants, attached hereto as
Exhibit B-1, Exhibit B-2 and Exhibit B-3, respectively, shall be deemed to
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be approved by the Board. Option agreements need not be identical, and in
each case may include such provisions as the Board or Committee may
determine, but all such agreements shall be subject to and limited by the
following terms and conditions:
(a)Number of Shares: Each Option shall state the number of shares to which
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it pertains.
(b) Exercise Price: Each Option shall state the exercise price.
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(c)Medium and Time of Payment: The exercise price shall become immediately
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due upon exercise of the Option and shall be paid in cash or check made
payable to the Company. Should the Company's outstanding Stock be
registered under Section 12(g) of the Exchange Act at the time the
Option is exercised, then the exercise price may also be paid as
follows:
(i) in shares of Stock held by the Optionee for the requisite period
necessary to avoid a charge to the Company's earnings for financial
reporting purposes and valued at Fair Market Value on the exercise
date, or
(ii) through a special sale and remittance procedure pursuant to which
the Optionee shall concurrently provide irrevocable written
instructions (a) to a Company designated brokerage firm to effect
the immediate sale of the purchased shares and remit to the
Company, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate exercise price payable for
Exhibit 10.1 - 4
the purchased shares plus all applicable Federal, state and local
income and employment taxes required to be withheld by the Company
by reason of such purchase and (b) to the Company to deliver the
certificates for the purchased shares directly to such brokerage
firm in order to complete the sale transaction.
At the discretion of the Board, exercisable either at the time
of Option grant or of Option exercise, the exercise price may also be
paid (i) by Optionee's delivery of a promissory note in form and
substance satisfactory to the Company and permissible under applicable
securities rules and bearing interest at a rate determined by the Board
in its sole discretion, but in no event less than the minimum rate of
interest required to avoid the imputation of compensation income to the
Optionee under the Federal tax laws, or (ii) in such other form of
consideration permitted by the State of Oklahoma corporations law as
may be acceptable to the Board.
(d)Term and Exercise of Options: Any Option granted to an employee of the
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Company shall become exercisable over a period of no longer than ten
(10) years. No Option shall be exercisable, in whole or in part, prior
to one (1) year from the date it is granted unless the Board shall
specifically determine otherwise, as provided herein. In no event shall
any Option be exercisable after the expiration of ten (10) years from
the date it is granted. Unless otherwise specified by the Board or the
Committee in the resolution authorizing such Option, the date of grant
of an Option shall be deemed to be the date upon which the Board or the
Committee authorizes the granting of such Option.
Each Option shall be exercisable to the nearest whole share,
in installments or otherwise, as the respective Option agreements may
provide. During the lifetime of an Optionee, the Option shall be
exercisable only by the Optionee and shall not be assignable or
transferable by the Optionee, and no other person shall acquire any
rights therein. To the extent not exercised, installments (if more than
one) shall accumulate, but shall be exercisable, in whole or in part,
only during the period for exercise as stated in the Option agreement,
whether or not other installments are then exercisable.
(e)Termination of Status as Employee, Consultant or Director: If
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Optionee's status as an employee shall terminate for any reason other
than Optionee's disability or death, then Optionee (or if the Optionee
shall die after such termination, but prior to exercise, Optionee's
personal representative or the person entitled to succeed to the Option)
shall have the right to exercise the portions of any of Optionee's
Incentive Stock Options which were exercisable as of the date of such
termination, in whole or in part, not less than 30 days nor more than
three (3) months after such termination (or, in the event of
"termination for good cause" as that term is defined in Nevada case law
related thereto, or by the terms of the Plan or the Option Agreement or
an employment agreement, the Option shall automatically terminate as of
the termination of employment as to all shares covered by the Option).
Exhibit 10.1 - 5
With respect to Nonstatutory Options granted to employees,
directors or consultants, the Board may specify such period for
exercise, not less than 30 days (except that in the case of
"termination for cause" or removal of a director, the Option shall
automatically terminate as of the termination of employment or services
as to shares covered by the Option, following termination of employment
or services as the Board deems reasonable and appropriate. The Option
may be exercised only with respect to installments that the Optionee
could have exercised at the date of termination of employment or
services. Nothing contained herein or in any Option granted pursuant
hereto shall be construed to affect or restrict in any way the right of
the Company to terminate the employment or services of an Optionee with
or without cause.
(f)Disability of Optionee: If an Optionee is disabled (within the meaning
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of Section 22(e)(3) of the Code) at the time of termination, the three
(3) month period set forth in Section 5(e) shall be a period, as
determined by the Board and set forth in the Option, of not less than
six months nor more than one year after such termination.
(g)Death of Optionee: If an Optionee dies while employed by, engaged as a
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consultant to, or serving as a Director of the Company, the portion of
such Optionee's Option which was exercisable at the date of death may be
exercised, in whole or in part, by the estate of the decedent or by a
person succeeding to the right to exercise such Option at any time
within (i) a period, as determined by the Board and set forth in the
Option, of not less than six (6) months nor more than one (1) year after
Optionee's death, which period shall not be more, in the case of a
Nonstatutory Option, than the period for exercise following termination
of employment or services, or (ii) during the remaining term of the
Option, whichever is the lesser. The Option may be so exercised only
with respect to installments exercisable at the time of Optionee's death
and not previously exercised by the Optionee.
(h)Nontransferability of Option: No Option shall be transferable by the
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Optionee, except by will or by the laws of descent and distribution.
(i)Recapitalization: Subject to any required action of shareholders, the
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number of shares of Stock covered by each outstanding Option, and the
exercise price per share thereof set forth in each such Option, shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of Stock of the Company resulting from a stock split,
stock dividend, combination, subdivision or reclassification of shares,
or the payment of a stock dividend, or any other increase or decrease in
the number of such shares affected without receipt of consideration by
the Company; provided, however, the conversion of any convertible
securities of the Company shall not be deemed to have been "effected
without receipt of consideration" by the Company.
In the event of a proposed dissolution or liquidation of the
Company, a merger or consolidation in which the Company is not the
Exhibit 10.1 - 6
surviving entity, or a sale of all or substantially all of the assets
or capital stock of the Company (collectively, a "Reorganization"),
unless otherwise provided by the Board, this Option shall terminate
immediately prior to such date as is determined by the Board, which
date shall be no later than the consummation of such Reorganization. In
such event, if the entity which shall be the surviving entity does not
tender to Optionee an offer, for which it has no obligation to do so,
to substitute for any unexercised Option a stock option or capital
stock of such surviving of such surviving entity, as applicable, which
on an equitable basis shall provide the Optionee with substantially the
same economic benefit as such unexercised Option, then the Board may
grant to such Optionee, in its sole and absolute discretion and without
obligation, the right for a period commencing thirty (30) days prior to
and ending immediately prior to the date determined by the Board
pursuant hereto for termination of the Option or during the remaining
term of the Option, whichever is the lesser, to exercise any unexpired
Option or Options without regard to the installment provisions of
Paragraph 6(d) of the Plan; provided, that any such right granted shall
be granted to all Optionees not receiving an offer to receive
substitute options on a consistent basis, and provided further, that
any such exercise shall be subject to the consummation of such
Reorganization.
Subject to any required action of shareholders, if the Company
shall be the surviving entity in any merger or consolidation, each
outstanding Option thereafter shall pertain to and apply to the
securities to which a holder of shares of Stock equal to the shares
subject to the Option would have been entitled by reason of such merger
or consolidation.
In the event of a change in the Stock of the Company as
presently constituted, which is limited to a change of all of its
authorized shares without par value into the same number of shares with
a par value, the shares resulting from any such change shall be deemed
to be the Stock within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock
or securities of the Company, such adjustments shall be made by the
Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided in this Section 5(i), the
Optionee shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any
stock dividend or any other increase or decrease in the number of
shares of stock of any class, and the number or price of shares of
Stock subject to any Option shall not be affected by, and no adjustment
shall be made by reason of, any dissolution, liquidation, merger,
consolidation or sale of assets or capital stock, or any issue by the
Company of shares of stock of any class or securities convertible into
shares of stock of any class.
The Grant of an Option pursuant to the Plan shall not affect
in any way the right or power of the Company to make any adjustments,
reclassifications, reorganizations or changes in its capital or
business structure or to merge, consolidate, dissolve, or liquidate or
to sell or transfer all or any part of its business or assets.
Exhibit 10.1 - 7
(j)Rights as a Shareholder: An Optionee shall have no rights as a
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shareholder with respect to any shares covered by an Option until the
effective date of the issuance of the shares following exercise of such
Option by Optionee. No adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the
date such stock certificate is issued, except as expressly provided in
Section 5(i) hereof.
(k)Modification, Acceleration, Extension, and Renewal of Options: Subject
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to the terms and conditions and within the limitations of the Plan, the
Board may modify an Option, or, once an Option is exercisable,
accelerate the rate at which it may be exercised, and may extend or
renew outstanding Options granted under the Plan or accept the surrender
of outstanding Options (to the extent not theretofore exercised) and
authorize the granting of new Options in substitution for such Options,
provided such action is permissible under Section 422 of the Code and
applicable state securities rules. Notwithstanding the provisions of
this Section 5(k), however, no modification of an Option shall, without
the consent of the Optionee, alter to the Optionee's detriment or impair
any rights or obligations under any Option theretofore granted under the
Plan.
(l)Exercise Before Exercise Date: At the discretion of the Board, the
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Option may, but need not, include a provision whereby the Optionee may
elect to exercise all or any portion of the Option prior to the stated
exercise date of the Option or any installment thereof. Any shares so
purchased prior to the stated exercise date shall be subject to
repurchase by the Company upon termination of Optionee's employment as
contemplated by Section 5(n) hereof prior to the exercise date stated in
the Option and such other restrictions and conditions as the Board or
Committee may deem advisable.
(m)Other Provisions: The Option agreements authorized under the Plan shall
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contain such other provisions, including, without limitation,
restrictions upon the exercise of the Options, as the Board or the
Committee shall deem advisable. Shares shall not be issued pursuant to
the exercise of an Option, if the exercise of such Option or the
issuance of shares thereunder would violate, in the opinion of legal
counsel for the Company, the provisions of any applicable law or the
rules or regulations of any applicable governmental or administrative
agency or body, such as the Code, the Securities Act, the Exchange Act,
applicable state securities rules, Oklahoma corporation law, and the
rules promulgated under the foregoing or the rules and regulations of
any exchange upon which the shares of the Company are listed. Without
limiting the generality of the foregoing, the exercise of each Option
shall be subject to the condition that if at any time the Company shall
determine that (i) the satisfaction of withholding tax or other similar
liabilities, or (ii) the listing, registration or qualification of any
shares covered by such exercise upon any securities exchange or under
any state or federal law, or (iii) the consent or approval of any
Exhibit 10.1 - 8
regulatory body, or (iv) the perfection of any exemption from any such
withholding, listing, registration, qualification, consent or approval
is necessary or desirable in connection with such exercise or the
issuance of shares thereunder, then in any such event, such exercise
shall not be effective unless such withholding, listing registration,
qualification, consent, approval or exemption shall have been effected,
obtained or perfected free of any conditions not acceptable to the
Company.
(n)Repurchase Agreement: The Board may, in its discretion, require as a
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condition to the Grant of an Option hereunder, that an Optionee execute
an agreement with the Company, in form and substance satisfactory to the
Board in its discretion ("Repurchase Agreement"), (i) restricting the
Optionee's right to transfer shares purchased under such Option without
first offering such shares to the Company or another shareholder of the
Company upon the same terms and conditions as provided therein; and (ii)
providing that upon termination of Optionee's employment with the
Company, for any reason, the Company (or another shareholder of the
Company, as provided in the Repurchase Agreement) shall have the right
at its discretion (or the discretion of such other shareholders) to
purchase and/or redeem all such shares owned by the Optionee on the date
of termination of his or her employment at a price equal to: (A) the
fair value of such shares as of such date of termination; or (B) if such
repurchase right lapses at 20% of the number of shares per year, the
original purchase price of such shares, and upon terms of payment
permissible under applicable state securities rules; provided that in
the case of Options or Stock Awards granted to officers, directors,
consultants or affiliates of the Company, such repurchase provisions may
be subject to additional or greater restrictions as determined by the
Board or Committee.
6. Stock Awards and Restricted Stock Purchase Offers.
(a) Types of Grants.
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(i) Stock Award. All or part of any Stock Award under the Plan may be
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subject to conditions established by the Board or the Committee,
and set forth in the Stock Award Agreement, which may include, but
are not limited to, continuous service with the Company,
achievement of specific business objectives, increases in specified
indices, attaining growth rates and other comparable measurements
of Company performance. Such Awards may be based on Fair Market
Value or other specified valuation. All Stock Awards will be made
pursuant to the execution of a Stock Award Agreement substantially
in the form attached hereto as Exhibit C.
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(ii) Restricted Stock Purchase Offer. A Grant of a Restricted Stock
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Purchase Offer under the Plan shall be subject to such (i) vesting
contingencies related to the Participant's continued association
with the Company for a specified time and (ii) other specified
conditions as the Board or Committee shall determine, in their sole
Exhibit 10.1 - 9
discretion, consistent with the provisions of the Plan. All
Restricted Stock Purchase Offers shall be made pursuant to a
Restricted Stock Purchase Offer substantially in the form attached
hereto as Exhibit D.
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(b)Conditions and Restrictions. Shares of Stock which Participants may
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receive as a Stock Award under a Stock Award Agreement or Restricted
Stock Purchase Offer under a Restricted Stock Purchase Offer may include
such restrictions as the Board or Committee, as applicable, shall
determine, including restrictions on transfer, repurchase rights, right
of first refusal, and forfeiture provisions. When transfer of Stock is
so restricted or subject to forfeiture provisions it is referred to as
"Restricted Stock". Further, with Board or Committee approval, Stock
Awards or Restricted Stock Purchase Offers may be deferred, either in
the form of installments or a future lump sum distribution. The Board or
Committee may permit selected Participants to elect to defer
distributions of Stock Awards or Restricted Stock Purchase Offers in
accordance with procedures established by the Board or Committee to
assure that such deferrals comply with applicable requirements of the
Code including, at the choice of Participants, the capability to make
further deferrals for distribution after retirement. Any deferred
distribution, whether elected by the Participant or specified by the
Stock Award Agreement, Restricted Stock Purchase Offers or by the Board
or Committee, may require the payment be forfeited in accordance with
the provisions of Section 6(c). Dividends or dividend equivalent rights
may be extended to and made part of any Stock Award or Restricted Stock
Purchase Offers denominated in Stock or units of Stock, subject to such
terms, conditions and restrictions as the Board or Committee may
establish.
(c)Cancellation and Rescission of Grants. Unless the Stock Award Agreement
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or Restricted Stock Purchase Offer specifies otherwise, the Board or
Committee, as applicable, may cancel any unexpired, unpaid, or deferred
Grants at any time if the Participant is not in compliance with all
other applicable provisions of the Stock Award Agreement or Restricted
Stock Purchase Offer, or the Plan.
(d) Nonassignability.
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(i) Except pursuant to Section 6(e)(iii) and except as set forth in
Section 6(d)(ii), no Grant or any other benefit under the Plan
shall be assignable or transferable, or payable to or exercisable
by, anyone other than the Participant to whom it was granted.
(ii) Where a Participant terminates employment and retains a Grant
pursuant to Section 6(e)(ii) in order to assume a position with a
governmental, charitable or educational institution, the Board or
Committee, in its discretion and to the extent permitted by law,
may authorize a third party (including but not limited to the
trustee of a "blind" trust), acceptable to the applicable
governmental or institutional authorities, the Participant and the
Exhibit 10.1 - 10
Board or Committee, to act on behalf of the Participant with regard
to such Awards.
(e)Termination of Employment. If the employment or service to the Company
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of a Participant terminates, other than pursuant to any of the following
provisions under this Section 6(e), all unexercised, deferred and unpaid
Stock Awards or Restricted Stock Purchase Offers shall be cancelled
immediately, unless the Stock Award Agreement or Restricted Stock
Purchase Offer provides otherwise:
(i) Retirement Under a Company Retirement Plan. When a Participant's
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employment terminates as a result of retirement in accordance with
the terms of a Company retirement plan, the Board or Committee may
permit Stock Awards or Restricted Stock Purchase Offers to continue
in effect beyond the date of retirement in accordance with the
applicable Grant Agreement and the exercisability and vesting of
any such Grants may be accelerated.
(ii) Rights in the Best Interests of the Company. When a Participant
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resigns from the Company and, in the judgment of the Board or
Committee, the acceleration and/or continuation of outstanding
Stock Awards or Restricted Stock Purchase Offers would be in the
best interests of the Company, the Board or Committee may (i)
authorize, where appropriate, the acceleration and/or continuation
of all or any part of Grants issued prior to such termination and
(ii) permit the exercise, vesting and payment of such Grants for
such period as may be set forth in the applicable Grant Agreement,
subject to earlier cancellation pursuant to Section 9 or at such
time as the Board or Committee shall deem the continuation of all
or any part of the Participant's Grants are not in the Company's
best interest.
(iii)Death or Disability of a Participant.
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(1)In the event of a Participant's death, the Participant's estate
or beneficiaries shall have a period up to the expiration date
specified in the Grant Agreement within which to receive or
exercise any outstanding Grant held by the Participant under
such terms as may be specified in the applicable Grant
Agreement. Rights to any such outstanding Grants shall pass by
will or the laws of descent and distribution in the following
order: (a) to beneficiaries so designated by the Participant; if
none, then (b) to a legal representative of the Participant; if
none, then (c) to the persons entitled thereto as determined by
a court of competent jurisdiction. Grants so passing shall be
made at such times and in such manner as if the Participant were
living.
(2)In the event a Participant is deemed by the Board or Committee
to be unable to perform his or her usual duties by reason of
mental disorder or medical condition which does not result from
Exhibit 10.1 - 11
facts which would be grounds for termination for cause, Grants
and rights to any such Grants may be paid to or exercised by the
Participant, if legally competent, or a committee or other
legally designated guardian or representative if the Participant
is legally incompetent by virtue of such disability.
(3)After the death or disability of a Participant, the Board or
Committee may in its sole discretion at any time (1) terminate
restrictions in Grant Agreements; (2) accelerate any or all
installments and rights; and (3) instruct the Company to pay the
total of any accelerated payments in a lump sum to the
Participant, the Participant's estate, beneficiaries or
representative; notwithstanding that, in the absence of such
termination of restrictions or acceleration of payments, any or
all of the payments due under the Grant might ultimately have
become payable to other beneficiaries.
(4)In the event of uncertainty as to interpretation of or
controversies concerning this Section 6, the determinations of
the Board or Committee, as applicable, shall be binding and
conclusive.
7. Investment Intent. All Grants under the Plan are intended to be exempt from
registration under the Securities Act provided by Rule 701 thereunder.
Unless and until the granting of Options or sale and issuance of Stock
subject to the Plan are registered under the Securities Act or shall be
exempt pursuant to the rules promulgated thereunder, each Grant under the
Plan shall provide that the purchases or other acquisitions of Stock
thereunder shall be for investment purposes and not with a view to, or for
resale in connection with, any distribution thereof. Further, unless the
issuance and sale of the Stock have been registered under the Securities
Act, each Grant shall provide that no shares shall be purchased upon the
exercise of the rights under such Grant unless and until (i) all then
applicable requirements of state and federal laws and regulatory agencies
shall have been fully complied with to the satisfaction of the Company and
its counsel, and (ii) if requested to do so by the Company, the person
exercising the rights under the Grant shall (i) give written assurances as
to knowledge and experience of such person (or a representative employed by
such person) in financial and business matters and the ability of such
person (or representative) to evaluate the merits and risks of exercising
the Option, and (ii) execute and deliver to the Company a letter of
investment intent and/or such other form related to applicable exemptions
from registration, all in such form and substance as the Company may
require. If shares are issued upon exercise of any rights under a Grant
without registration under the Securities Act, subsequent registration of
such shares shall relieve the purchaser thereof of any investment
restrictions or representations made upon the exercise of such rights.
8. Amendment, Modification, Suspension or Discontinuance of the Plan. The
Board may, insofar as permitted by law, from time to time, with respect to
any shares at the time not subject to outstanding Grants, suspend or
terminate the Plan or revise or amend it in any respect whatsoever, except
that without the approval of the shareholders of the Company, no such
revision or amendment shall (i) increase the number of shares subject to
the Plan, (ii) decrease the price at which Grants may be granted, (iii)
materially increase the benefits to Participants, or (iv) change the class
Exhibit 10.1 - 12
of persons eligible to receive Grants under the Plan; provided, however, no
such action shall alter or impair the rights and obligations under any
Option, or Stock Award, or Restricted Stock Purchase Offer outstanding as
of the date thereof without the written consent of the Participant
thereunder. No Grant may be issued while the Plan is suspended or after it
is terminated, but the rights and obligations under any Grant issued while
the Plan is in effect shall not be impaired by suspension or termination of
the Plan.
In the event of any change in the outstanding Stock by reason of a
stock split, stock dividend, combination or reclassification of shares,
recapitalization, merger, or similar event, the Board or the Committee may
adjust proportionally (a) the number of shares of Stock (i) reserved under
the Plan, (ii) available for Incentive Stock Options and Nonstatutory
Options and (iii) covered by outstanding Stock Awards or Restricted Stock
Purchase Offers; (b) the Stock prices related to outstanding Grants; and
(c) the appropriate Fair Market Value and other price determinations for
such Grants. In the event of any other change affecting the Stock or any
distribution (other than normal cash dividends) to holders of Stock, such
adjustments as may be deemed equitable by the Board or the Committee,
including adjustments to avoid fractional shares, shall be made to give
proper effect to such event. In the event of a corporate merger,
consolidation, acquisition of property or stock, separation, reorganization
or liquidation, the Board or the Committee shall be authorized to issue or
assume stock options, whether or not in a transaction to which Section
424(a) of the Code applies, and other Grants by means of substitution of
new Grant Agreements for previously issued Grants or an assumption of
previously issued Grants.
9. Tax Withholding. The Company shall have the right to deduct applicable
taxes from any Grant payment and withhold, at the time of delivery or
exercise of Options, Stock Awards or Restricted Stock Purchase Offers or
vesting of shares under such Grants, an appropriate number of shares for
payment of taxes required by law or to take such other action as may be
necessary in the opinion of the Company to satisfy all obligations for
withholding of such taxes. If Stock is used to satisfy tax withholding,
such stock shall be valued based on the Fair Market Value when the tax
withholding is required to be made.
10. Availability of Information. During the term of the Plan and any additional
period during which a Grant granted pursuant to the Plan shall be
exercisable, the Company shall make available, not later than one hundred
and twenty (120) days following the close of each of its fiscal years, such
financial and other information regarding the Company as is required by the
bylaws of the Company and applicable law to be furnished in an annual
report to the shareholders of the Company.
11. Notice. Any written notice to the Company required by any of the provisions
of the Plan shall be addressed to the chief personnel officer or to the
chief executive officer of the Company, and shall become effective when it
is received by the office of the chief personnel officer or the chief
executive officer.
12. Indemnification of Board. In addition to such other rights or
indemnifications as they may have as directors or otherwise, and to the
Exhibit 10.1 - 13
extent allowed by applicable law, the members of the Board and the
Committee may be indemnified by the Company against the reasonable
expenses, including attorneys' fees, actually and necessarily incurred in
connection with the defense of any claim, action, suit or proceeding, or in
connection with any appeal thereof, to which they or any of them may be a
party by reason of any action taken, or failure to act, under or in
connection with the Plan or any Grant granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is
approved by independent legal counsel selected by the Company) or paid by
them in satisfaction of a judgment in any such claim, action, suit or
proceeding, except in any case in relation to matters as to which it shall
be adjudged in such claim, action, suit or proceeding that such Board or
Committee member is liable for negligence or misconduct in the performance
of his or her duties; provided that within sixty (60) days after
institution of any such action, suit or Board proceeding the member
involved shall offer the Company, in writing, the opportunity, at its own
expense, to handle and defend the same.
13. Governing Law. The Plan and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by the Code or the
securities laws of the United States, shall be governed by the law of the
State of Nevada and construed accordingly.
14. Effective and Termination Dates. The Plan shall become effective on the
date it is approved by the Board. If the Plan is not approved by the
holders of a majority of the shares of Stock within one (1) year from the
date it is adopted and approved by the Board of Directors of the Company,
all stock options granted hereunder shall be deemed non-statutory options.
The Plan shall terminate ten years later, subject to earlier termination by
the Board pursuant to Section 8.
The foregoing Alphatrade.com 2008 INCENTIVE STOCK PLAN (consisting of
15 pages, including this page) was duly adopted and approved by the Board of
Directors on August , 2008
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Exhibit 10.1 - 14