Exhibit 4.1
BACH-HAUSER, INC.
STOCK PLAN
(Amended 09/01/2004)
SECTION 1. INTRODUCTION
1.1 Establishment. Effective as provided in Section 17,
Bach-Hauser, Inc., a Nevada corporation (the "Company"), hereby
establishes this plan of stock-based compensation incentives for
selected Eligible Participants of the Company or any Affiliated
Corporation. This Plan shall be known as the Stock Plan (the
"Plan").
1.2 Purpose. The purpose of this Plan is to promote the
best interest of the Company, and its stockholders by providing a
means of non-cash remuneration to selected Eligible Participants
who contribute most to the operating progress and earning power
of the Company.
SECTION 2. DEFINITIONS
The following definitions shall be applicable to the terms
used in this Plan:
2.1 "Affiliated Corporation" means any corporation that is
now or shall be during the term of this Plan either a parent
corporation with respect to the Company or a subsidiary
corporation with respect to the Company (within the meaning of
Sections 424(e) and (f), respectively, of the Internal Revenue
Code;
2.2 "Code" means the Internal Revenue Code of 1986, as it
may be amended from time to time.
2.3 "Committee" means a committee designated by the Board
of Directors to administer this Plan or, if no committee is so
designated, the Board of Directors. Any Committee member who is
also an Eligible Participant may receive an Option or Stock Award
only if he abstains from voting in favor of a grant to himself,
and the grant is determined and approved by the remaining
Committee members. The Board of Directors, in its sole
discretion, may at any time remove any member of the Committee
and appoint another Director to fill any vacancy on the
Committee.
2.4 "Common Stock" means the Company's $.001 par value
common stock.
2.5 "Company" means Bach-Hauser, Inc., a Nevada
corporation, and any subsidiary or Affiliated Corporation.
2.6 "Effective Date" means the effective date of this Plan,
as set forth in Section 17 hereof.
2.7 "Eligible Participant" means any employee, director,
officer, consultant, or advisor of the Company who is determined
(in accordance with the provisions of Section 4 hereof) to be
eligible to receive an Option or Stock Award hereunder.
2.8 "Option" means the grant to an Eligible Participant of
a right to acquire shares of Common Stock.
2.9 "Plan" means this Stock Plan, adopted on January 13,
2004, as amended.
2.10 "Stock Award" means the grant to an Eligible
Participant of shares of Common Stock issuable directly under
this Plan rather than upon exercise of an Option.
Wherever appropriate, words used in this Plan in the
singular may mean the plural, the plural may mean the singular,
and the masculine may mean the feminine.
SECTION 3. ADOPTION AND ADMINISTRATION OF THIS PLAN.
Upon adoption by the Company's Board of Directors, this Plan
became effective as of January 13, 2004. In the absence of
contrary action by the Board of Directors, and except for action
taken by the Committee pursuant to Section 4 in connection with
the determination of Eligible Participants, any action taken by
the Committee or by the Board of Directors with respect to the
implementation, interpretation or administration of this Plan
shall be final, conclusive and binding.
SECTION 4. ELIGIBILITY AND AWARDS
The Committee shall determine at any time and from time to
time after the effective date of this Plan: (i) the Eligible
Participants; (ii) the number of shares of Common Stock issuable
directly or to be granted pursuant to an Option; (iii) the price
per share at which each Option may be exercised, in cash or
cancellation of fees for services for which the Company is
liable, if applicable, or the value per share if a direct issue
of stock pursuant to a Stock Award; and (iv) the terms on which
each Option may be granted. Such determination may from time to
time be amended or altered at the sole discretion of the
Committee. Notwithstanding the provisions of Section 3 hereof, no
such determination by the Committee shall be final, conclusive
and binding upon the Company unless and until the Board of
Directors has approved the same; provided, however, that if the
Committee is composed of a majority of the persons then
comprising the Board of Directors of the Company, such approval
by the Board of Directors shall not be necessary.
SECTION 5. GRANT OF OPTION OR STOCK AWARD
Subject to the terms and provisions of this Plan, the terms
and conditions under which an Option or Stock Award may be
granted to an Eligible Participant shall be set forth in a
written agreement (i.e., a Consulting Agreement, Services
Agreement, Fee Agreement, or Employment Agreement) or, if an
Option, a written Grant of Option in the form attached hereto as
Exhibit A (which may contain such modifications thereto and such
other provisions as the Committee, in its sole discretion, may
determine).
SECTION 6. TOTAL NUMBER OF SHARES OF COMMON STOCK
The total number of shares of Common Stock reserved for
issuance by the Company either directly as Stock Awards or
underlying Options granted under this Plan shall not be more
than two hundred million (200,000,000). The total number of
shares of Common Stock reserved for such issuance may be
increased only by a resolution adopted by the Board of Directors
and amendment of this Plan. Such Common Stock may be authorized
and unissued or reacquired Common Stock of the Company.
SECTION 7. COST BASIS AND PURCHASE PRICE OF SHARES OF COMMON
STOCK
The negotiated cost basis of stock issued directly as a
Stock Award or the exercise price for each Option to purchase
shares of Common Stock shall be as determined by the Committee,
it being understood that the price so determined by the Committee
may vary from one Eligible Participant to another. In computing
the negotiated direct issue price as a Stock Award or the Option
exercise price per share of Common Stock, the Committee shall
take into consideration, among other factors, the restrictions
set forth in Section 11 hereof.
SECTION 8. TERMS AND CONDITIONS OF OPTIONS
The Committee shall determine the terms and conditions of
each Option granted to Eligible Participants, which terms shall
be set forth in writing. The terms and conditions so set by the
Committee may vary from one Eligible Participant to another. In
the event that all the Committee approves an Option permitting
deferred payments, the Eligible Participant's obligation to pay
for such Common Stock may be evidenced by a promissory note
executed by such Eligible Participant and containing such
modifications thereto and such other provisions as the Committee,
in its sole discretion, may determine.
SECTION 9. DELIVERY OF SHARES OF COMMON STOCK
The Company shall deliver to each Eligible Participant such
number of shares of Common Stock as such Eligible Participant is
entitled to receive pursuant to a Stock Award or elects to
purchase upon exercise of the Option. Such shares, which shall be
fully paid and nonassessable upon the issuance thereof (unless a
portion or all of the purchase price shall be paid on a deferred
basis) shall be represented by a certificate or certificates
registered in the name of the Eligible Participant and stamped
with an appropriate legend referring to the restrictions thereon,
if any. Subject to the terms and provisions of the Nevada Revised
Statutes and the written agreement to which he is a party, an
Eligible Participant shall have all the rights of a stockholder
with respect to such shares, including the right to vote the
shares and to receive all dividends or other distributions paid
or made with respect thereto (except to the extent such Eligible
Participant defaults under a promissory note, if any, evidencing
the deferred purchase price for such shares), provided that such
shares shall be subject to the restrictions hereinafter set
forth. In the event of a merger or consolidation to which the
Company is a party, or of any other acquisition of a majority of
the issued and outstanding shares of Common Stock of the Company
involving an exchange or a substitution of stock of an acquiring
corporation for Common Stock of the Company, or of any transfer
of all or substantially all of the assets of the Company in
exchange for stock of an acquiring corporation, a determination
as to whether the stock of the acquiring corporation so received
shall be subject to the restrictions set forth in Section 11
shall be made solely by the acquiring corporation.
SECTION 10. RIGHTS OF EMPLOYEES; ELIGIBLE PARTICIPANTS
10.1 Employment. Nothing contained in this Plan or in
any Option or Stock Award granted under this Plan shall confer
upon any Eligible Participant any right with respect to the
continuation of his or her employment by the Company or any
Affiliated Corporation, or interfere in any way with the right of
the Company or any Affiliated Corporation, subject to the terms
of any separate employment agreement to the contrary, at any time
to terminate such employment or to increase or decrease the
compensation of the Eligible Participant from the rate in
existence at the time of the grant of an Option or Stock Award.
Whether an authorized leave of absence, or absence in military or
government service, shall constitute termination of employment
shall be determined by the Committee at the time.
10.2 Non-transferability. No right or interest of any
Eligible Participant in an Option or Stock Award shall be
assignable or transferable during the lifetime of the Eligible
Participant, either voluntarily or involuntarily, or subjected to
any lien, directly or indirectly, by operation of law, or
otherwise, including execution, levy, garnishment, attachment,
pledge or bankruptcy. However, the Board of Directors may, in its
sole discretion, permit transfers to family members if and to the
extent such transfers are permissible under applicable securities
laws. In the event of an Eligible Participant's death, an
Eligible Participant's rights and interest in an Option or Stock
Award shall be transferable by testamentary will or the laws of
descent and distribution, and delivery of any shares of Common
Stock due under this Plan shall be made to, and exercise of any
Options may be made by, the Eligible Participant's legal
representatives, heirs or legatees. If in the opinion of the
Committee a person entitled to payments or to exercise rights
with respect to this Plan is unable to care for his or her
affairs because of mental condition, physical condition, or age,
payment due such person may be made to, and such rights shall be
exercised by, such person's guardian, conservator or other legal
personal representative upon furnishing the Committee with
evidence satisfactory to the Committee of such status.
SECTION 11. GENERAL RESTRICTIONS
11.1 Investment Representations. The Company may
require any person to whom an Option or Stock Award is granted,
as a condition of exercising such Option, or receiving such Stock
Award, to give written assurances in substance and form
satisfactory to the Company and its counsel to the effect that
such person is acquiring the Common Stock subject to the Option
or Stock Award for his or her own account for investment and not
with any present intention of selling or otherwise distributing
the same, and to such other effects as the Company deems
necessary or appropriate in order to comply with federal and
applicable state securities laws.
11.2 Restrictions on Transfer of Common Stock. The
shares of Common Stock issuable directly as a Stock Award or upon
exercise of an Option may not be offered for sale, sold or
otherwise transferred except pursuant to an effective
registration statement or pursuant to an exemption from
registration, the availability of which is to be established to
the satisfaction of the Company, and any certificates
representing shares of Common Stock will bear a legend to that
effect. However, the Company may, in the sole discretion of the
Board of Directors, register with the Securities and Exchange
Commission some or all of the shares of Common Stock reserved for
issuance under this Plan. Special resale restrictions may,
however, continue to apply to officers, directors, control
shareholders and affiliates of the Company and such persons will
be required to obtain an opinion of counsel as regards their
ability to resell shares received pursuant to this Plan.
11.3 Compliance with Securities Laws. Each Option or
Stock Award shall be subject to the requirement that if at any
time counsel to the Company shall determine that the listing,
registration or qualification of the shares of Common Stock
subject to such Option or Stock Award upon any securities
exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, is necessary as
a condition of, or in connection with, the issuance or purchase
of shares thereunder, such Option or Stock Award may not be
accepted or exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained on conditions acceptable to the Committee.
Nothing herein shall be deemed to require the Company to apply
for or to obtain such listing, registration or qualification.
11.4 Changes in Accounting Rules. Notwithstanding any
other provision of this Plan to the contrary, if, during the term
of this Plan, any changes in the financial or tax accounting
rules applicable to Options or Stock Awards shall occur that, in
the sole judgment of the Committee, may have a material adverse
effect on the reported earnings, assets or liabilities of the
Company, the Committee shall have the right and power to modify
as necessary, or cancel, any then outstanding and unexercised
Options.
SECTION 12. COMPLIANCE WITH TAX REQUIREMENTS
Each Eligible Participant shall be liable for payment of all
applicable federal, state and local income taxes incurred as a
result of the receipt of a Stock Award or an Option, the exercise
of an Option, and the sale of any shares of Common Stock received
pursuant to a Stock Award or upon exercise of an Option. The
Company may be required, pursuant to applicable tax regulations,
to withhold taxes for an Eligible Participant, in which case the
Company's obligations to deliver shares of Common Stock upon the
exercise of any Option granted under this Plan or pursuant to any
Stock Award, shall be subject to the Eligible Participant's
satisfaction of all applicable federal, state and local income
and other income tax withholding requirements.
SECTION 13. PLAN BINDING UPON ASSIGNS OR TRANSFEREES
In the event that, at any time or from time to time, any
Option or Stock Award is assigned or transferred to any party
(other than the Company) pursuant to the provisions of Section
10.2 hereof, such party shall take such Option or Stock Award
pursuant to all provisions and conditions of this Plan, and, as a
condition precedent to the transfer of such interest, such party
shall agree (for and on behalf of himself or itself, his or its
legal representatives and his or its transferees and assigns) in
writing to be bound by all provisions of this Plan.
SECTION 14. COSTS AND EXPENSES
All costs and expenses with respect to the adoption,
implementation, interpretation and administration of this Plan
shall be borne by the Company.
SECTION 15. CHANGES IN CAPITAL STRUCTURE OF THE COMPANY
Appropriate adjustments shall be made to the number of
shares of Common Stock issuable pursuant to an incomplete or
pending Stock Award that has not yet been delivered or upon
exercise of any Options and the exercise price thereof in the
event of: (i) a subdivision or combination of any of the shares
of capital stock of the Company; (ii) a dividend payable in
shares of capital stock of the Company; (iii) a reclassification
of any shares of capital stock of the Company; or (iv) any other
change in the capital structure of the Company.
SECTION 16. PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Board, upon recommendation of the Committee or at its
own initiative, at any time may terminate and at any time and
from time to time and in any respect, may amend or modify this
Plan, including:
(a) Increase the total amount of Common Stock that may
be awarded under this Plan, except as provided in Section 15
of this Plan;
(b) Change the classes of persons from which Eligible
Participants may be selected or materially modify the
requirements as to eligibility for participation in this
Plan;
(c) Increase the benefits accruing to Eligible
Participants; or
(d) Extend the duration of this Plan.
Any Option or other Stock Award granted to a Eligible
Participant prior to the date this Plan is amended, modified or
terminated will remain in effect according to its terms unless
otherwise agreed upon by the Eligible Participant; provided,
however, that this sentence shall not impair the right of the
Committee to take whatever action it deems appropriate under
Section 11 or Section 15. The termination or any modification or
amendment of this Plan shall not, without the consent of a
Eligible Participant, affect his rights under an Option or other
Stock Award previously granted to him.
SECTION 17. EFFECTIVE DATE OF THIS PLAN
17.1 Effective Date. This Plan is effective as of
January 13, 2004, the date it was adopted by the Board of
Directors of the Company.
17.2 Duration of this Plan. This Plan shall terminate
at midnight on January 12, 2009, which is the day before the
fifth anniversary of the Effective Date, and may be extended
thereafter or terminated prior thereto by action of the Board of
Directors; and no Option or Stock Award shall be granted after
such termination. Options and Stock Awards outstanding at the
time of this Plan's termination may continue to be exercised, or
become free of restrictions, in accordance with their terms.
SECTION 18. BURDEN AND BENEFIT
The terms and provisions of this Plan shall be binding upon,
and shall inure to the benefit of, each Eligible Participant, his
executives or administrators, heirs, and personal and legal
representatives.
This Amended Stock Plan is dated as of the 1st day of
September, 2004.
BACH-HAUSER, INC.
By: /s/ Peter Preston
Peter Preston, President
EXHIBIT A
FORM OF
GRANT OF OPTION PURSUANT TO THE
BACH-HAUSER, INC.
STOCK PLAN
Bach-Hauser, Inc., a Nevada corporation (the "Company"),
hereby grants to ________________________________ ("Optionee") an
Option to purchase ___________ shares of common stock, $.001 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 Stock Plan (the "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 25
Toronto Street, Suite 200, Toronto, Ontario M5C 2R1. This Grant
of Option 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.
Unless otherwise set forth in a separate written agreement,
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
written agreement, vested options must be exercised within six
months after the date of termination (other than for cause),
notwithstanding the Expiration Date set forth below.
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, signed by Optionee; and (ii) payment of
the Purchase Price pursuant to the terms of this Grant of Option
and the Plan. Any portion of this Grant of Option that is not
exercised on or before 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 received by the Company.
This Option shall be considered validly exercised once
payment therefor has cleared the banking system or the Company
has issued a credit memo for services in the appropriate amount,
or receives a duly executed acceptable promissory note, if the
Option is granted with deferred payment, and the Company has
received written notice of such exercise. If payment is not
received within two business days after the date the notice is
received, the Company may deem the notice to be invalid.
If Optionee fails to exercise this Option in accordance with
this Grant of Option, then this Grant of Option shall terminate
and have no force and effect, in which event the Company 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 Nevada, 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 within the County of Clark, State of Nevada.
The shares of common stock issuable upon exercise of the
Option (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.
This Grant of Option relates to options granted on
____________________, _____.
BACH-HAUSER, INC.
BY THE BOARD OF DIRECTORS
OR A SPECIAL COMMITTEE THEREOF
NOT FOR EXECUTION
By:________________________
OPTIONEE:
NOT FOR EXECUTION
______________________
GRANT OF OPTION PURSUANT TO THE
BACH-HAUSER, INC.
STOCK PLAN
OPTIONEE:
OPTIONS GRANTED:
PURCHASE PRICE: $______ per Share
DATE OF GRANT:
EXERCISE PERIOD: __________________ to __________________
VESTING SCHEDULE:
OPTION ON
# SHARES DATE VESTED (ASSUMING CONTINUED EMPLOYMENT, ETC.)
___________ _____________
___________ _____________
___________ _____________
___________ _____________
___________ _____________
___________ _____________
___________ _____________
EXERCISED TO DATE: ________________, INCLUDING THIS EXERCISE
BALANCE TO BE EXERCISED: _______________
==================================================================
NOTICE OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF THE OPTION)
TO: Bach-Hauser, 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 Bach-Hauser, 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 Notice of Exercise of like tenor for the appropriate
balance of the shares, or a portion thereof, purchasable under
the Grant of Option pursuant to the Stock Plan, be delivered to
Optionor when and as appropriate.
OPTIONEE:
NOT FOR EXECUTION
Dated:________________ _______________________