EXHIBIT 4
USCORP
2002 STOCK OPTION PLAN
ARTICLE I
PURPOSE
USCorp (the "Company") has established this "USCorp 2002 Stock Option Plan" in
order to encourage the acquisition of a proprietary interest in the Company by
certain key employees and directors of the Company and its affiliates, and by
certain consultants, advisors and other persons who provide services to the
Company and its affiliates. Such a proprietary interest in the Company will
provide such persons with a direct stake in the future welfare of the Company
and strengthen their commitment to remain employed by or associated with the
Company and its affiliates. It is also expected that the Plan will encourage
qualified persons to seek and accept employment by or association with the
Company and its affiliates. To accomplish the foregoing, the Plan contemplates
the grant of Incentive Stock Options and Nonqualified Stock Options (all as
hereinafter defined) to such persons.
ARTICLE II
DEFINITIONS
Section 2.1 Definitions. Whenever used in this Plan, the following terms shall
have the respective meanings set forth in this Section 2.1.
"Affiliate" means a corporation which is a parent corporation or a subsidiary
corporation (within the meaning of Section 424 of the Code) with respect to the
Company.
"Associate" means a person who is associated with the Company as a Director, or
as a consultant, advisor or other service provider but who is not an Employee.
"Board" means the board of directors of the Company.
"Business Day" means any day on which banks within the State of Nevada are
required to be opened for business.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Board; provided, however, that if a committee has been
delegated authority pursuant to Section 3.1 to manage and administer the Plan,
then Committee means such committee.
"Director" means a member of the Board.
"Disability" means, with respect to a Participant, any medically determinable
physical or mental impairment that the Committee, on the basis of competent
medical evidence, reasonably determines has rendered or will render the
Participant permanently and totally disabled within the meaning of Section
422(c)(6) of the Code.
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"Employee" means a person who performs services as an employee (within the
meaning of Section 3401(c)(6) of the Code) of the Company or of an Affiliate.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or any
corresponding provisions of any subsequent Federal securities law.
"Exercise Period" means, with respect to an Option, the period during which such
Option may be exercised as determined pursuant to Section 6.2.
"Fair Market Value" means, with respect to Shares subject to an Option, on any
given date, the value of the Shares or Options as determined pursuant to Section
6.6.
"Incentive Stock Option" means an option granted pursuant to the Plan that is
intended to satisfy the requirements of Section 422(b) of the Code.
"Non-Employee Director" means a Director who comes within the definition of
"non-employee director" under Rule 16b-3(b)(3) under the Exchange Act or any
rule substituted therefor.
"Nonqualified Stock Option" means an option granted pursuant to the Plan other
than an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonqualified Stock Option, as the
case may be. "Option Agreement" means, with respect to any person who has been
granted an Option, a written agreement (including any amendment or supplement
thereto) between the Company and such person.
"Option Price" means, with respect to an Option, the price determined pursuant
to Section 6.1 at which Shares subject to such Option may be purchased.
"Option Value" means, with respect to an Option, on any given date the amount by
which the aggregate Fair Market Value of the Shares subject to such Option on
such date exceeds the product obtained by multiplying the number of Shares
subject to such Option by the Option Price.
"Participant" means an Employee or an Associate who receives an Option.
"Plan" means the USCorp 2002 Stock Option Plan, as set forth herein and as may
be amended.
"Retirement" means, if applicable, the termination of employment or association
due to retirement after either ten years of employment or association or under a
retirement plan of the Company, in each instance with the consent of the
Committee.
"Securities Act" means the Securities Act of 1933, as amended, or any
corresponding provisions of any subsequent Federal securities law.
"Share" means a share of the Company's common stock described in Section 5.1.
"Ten-Percent Shareholder" means, at any time an Option is granted, an individual
who owns (or is considered to own under the attribution rules contained in
Section 424(d) of the Code) stock possessing more than ten percent of the total
combined voting power of all classes of stock of the Company or of any
Affiliate.
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"Termination Date" means, with respect to a Participant, the date on which such
Participant's status as an Employee or Associate terminates for any reason.
Section 2.2 Rules of Construction. Unless the context otherwise requires or
unless otherwise defined herein,
(i) a term shall have the meaning assigned to it in Section 2.1,
(ii) all references to section numbers shall be to sections of the Plan,
(iii) all references to the "Company" shall include any successor thereto,
(iv) all references to "employment" or "association" of a Participant shall be
to his status as an "Employee" or "Associate," respectively, of one or more of
the Company and its Affiliates,
(v) "or" shall not be exclusive,
(vi) words in the singular shall include the plural, and vice-versa, and
(vii) words in the masculine gender shall include the feminine and neuter, and
vice-versa.
ARTICLE III
ADMINISTRATION
Section 3.1 Administration. The Plan shall be administered by the Committee,
which may be the Compensation Committee of the Board or such other committee of
the Board, comprised only of Non-Employee Directors and consisting of at least
three Directors to which the Board may delegate the authority to administer the
Plan.
Section 3.2 Committee Action. In administering the Plan, the Committee shall
follow any general guidelines not inconsistent with the Plan established by the
Board and may adopt rules and regulations for carrying out the Plan. The
Committee may consult with counsel, who may be counsel to the Company, and shall
not incur any liability for any action taken in good faith in reliance upon the
advice of counsel. The interpretation and decision made by the Committee with
regard to any question arising under the Plan or under any Option Agreement
entered into in connection with the Plan shall be final and conclusive on all
persons participating or eligible to participate in the Plan.
Section 3.3 Responsibilities of Committee. Subject to the terms and conditions
of the Plan and such limitations as the Board from time to time may impose, the
Committee shall be responsible for the overall management and administration of
the Plan and shall have such authority as shall be necessary or appropriate in
order to carry out its responsibilities, including, without limitation, the
authority to:
(i) grant Options to such persons at such times as it deems advisable,
(ii) determine the terms of such Options to be included in grants and the number
of Options,
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(iii) prescribe the terms of the Option Agreements evidencing such Options, and
(iv) adopt rules and regulations and prescribe forms for the operation and
administration of the Plan.
Section 3.4 Compliance with Section 16 of the Exchange Act. It is the intent of
the Company that the Plan and any Options granted hereunder be interpreted in a
manner so that the Plan and any Options granted hereunder to Participants
satisfy the applicable requirements of Rule 16b-3 promulgated under the Exchange
Act, so that each Participant, to the maximum extent practicable, will be
entitled to the benefits of Rule 16b-3 or other exemptions provided pursuant to
the rules adopted under Section 16 of the Exchange Act, and will not be
subjected to the "short-swing" liability provisions of Section 16 of the
Exchange Act. If any provision of the Plan or of any Option granted hereunder
would otherwise frustrate or conflict with the intent expressed in this Section
3.4, that provision to the extent possible shall be interpreted and deemed
amended so as to avoid such conflict. To the extent of any remaining
irreconcilable conflict with such intent, such provision shall be deemed void as
applicable to such persons.
ARTICLE IV
ELIGIBILITY AND PARTICIPATION
Employees and Associates are eligible to participate in the Plan, without regard
to length of employment or association; provided, however, that an Associate
shall not be eligible to receive Incentive Stock Options. The Committee shall
determine whether and when an Employee or Associate shall become a Participant
and shall determine the numbers of Shares for which Options shall be granted to
such person; provided, however, that if such person is a Director and the
Committee does not consist of the Board, then the Board shall ratify such grant
and the terms thereof in order for such grant to be effective. An Employee or
Associate shall be a Participant with respect to any Shares subject to an Option
only if he or she executes an Option Agreement with respect to such Shares in
such form as the Committee may prescribe.
ARTICLE V
STOCK SUBJECT TO PLAN; OPTION AGREEMENTS
Section 5.1 Stock Subject to Plan. The stock to be offered and delivered under
the Plan, pursuant to the exercise of an Option, shall be shares of the
Company's authorized common stock, par value $0.01, and may be unissued shares
or reacquired shares, as the Committee from time to time may determine. The
aggregate number of Shares to be reserved under the Plan shall not exceed
2,045,856, subject to adjustment as set forth in Article VIII. If, during the
term of the Plan, an Option expires or terminates for any reason prior to the
exercise thereof in full, the Shares subject to such Option but not delivered
shall thereafter be available for grants hereunder. The Shares subject to an
Option that is exercised shall be charged against the aggregate number of Shares
available under the Plan.
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Section 5.2 Option Agreements. The grant of each Option shall be evidenced by a
written Option Agreement executed by the Company and the Participant which
shall, among other things:
(i) designate such Option as either an Incentive Stock Option or a Nonqualified
Stock Option,
(ii) specify the number of Shares subject to such Option,
(iii) specify the Option Price for the Shares subject to such Option and the
period during which such Option may be exercised,
(iv) set forth specifically or incorporate by reference the applicable
provisions of the Plan, and
(v) contain such other terms and conditions not inconsistent with the Plan as
the Committee may prescribe.
ARTICLE VI
TERMS OF OPTIONS
Section 6.1 Option Price. The Option Price of Shares subject to an Option that
may be purchased upon exercise of an Option shall be such amount as may be
determined by the Committee at the time the Option is granted; provided,
however, that:
(i) the Option Price of any Option shall not be less than the Fair Market Value
of such Shares on the date such Option is granted, or less than one hundred and
ten percent of the Fair Market Value of such Shares in the case of an Incentive
Stock Option granted to a Ten-Percent Shareholder and
(ii) the Option Price of any Option granted within one year after the effective
date of the Registration Statement shall not be less than the greater of the
Initial Public Offering Price and the Fair Market Value on the date of grant.
Section 6.2 Exercise Period. Except as otherwise provided in Sections 6.3 and
6.4, an Option shall vest and be exercisable during such Exercise Period as may
be determined by the Committee in its sole discretion on the date the Option is
granted. Notwithstanding anything to the contrary contained in the Plan, the
Exercise Period for an Incentive Stock Option shall not exceed ten years from
the date such Option is granted, or five years from the date such option is
granted in the case of an Incentive Stock Option granted to a Ten-Percent
Shareholder.
Section 6.3 Exercise Upon Change in Control. An Option shall automatically
become vested and shall be immediately exercisable in full upon the occurrence
of any of the following events:
(i) any person (within the meaning of Section 13(d) of the Exchange Act) other
than the Company or an Affiliate shall, after the Effective Date, become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company representing thirty percent or more of the combined
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voting power of the Company's then outstanding voting securities as a result of
a tender or exchange offer or open market purchases (privately negotiated or
otherwise), unless such ownership by such person has been approved by the Board
immediately prior to the acquisition of such securities by such person;
(ii) the shareholders of the Company approve (A) an agreement to merge or
consolidate with or into another entity pursuant to which the Company is not the
survivor, (B) an agreement to sell or otherwise dispose of all or substantially
all of the Company's assets, or (C) a plan to liquidate the Company; provided,
however, that the Board may determine that Options shall not automatically vest
upon approval of any such agreement or plan; or
(iii) at any time during a period of two consecutive years (not including any
period prior to the adoption of the Plan), individuals who at the beginning of
such period constitute the Board cease for any reason to constitute at least a
majority thereof, unless the election or the nomination for election by the
Company's shareholders of each new director during such two-year period is
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period.
Section 6.4 Exercise Upon Termination. If a Participant's employment or
association with the Company or an Affiliate terminates for any reason other
than for cause, Options granted to such Participant that are exercisable on his
Termination Date shall remain exercisable
(i) until the expiration of three months (or such other time as shall be
determined by the Committee in its sole discretion on the date the Option is
granted) from such Termination Date, if such termination occurs for a reason
other than the Participant's death, Disability or Retirement, or
(ii) the expiration of twelve months (or such other time as shall be determined
by the Committee in its sole discretion on the date the Option is granted) from
such Termination Date, if such termination occurs on account of the
Participant's death, Disability or Retirement. No Option shall be exercisable by
a Participant after termination of employment or association for cause. This
Section 6.4 shall not apply to a Participant who continues to be an Employee or
Associate of the Company or any Affiliate. Notwithstanding anything to the
contrary contained in this Section 6.4, no Option shall be exercisable in whole
or in part after the expiration date of the Option or more than ten years after
the date of grant of such Option.
Section 6.5 Limitations on Incentive Stock Options. Except as otherwise provided
under the Code, to the extent that the aggregate Fair Market Value (determined
at the time the Option is granted) of Shares with respect to which Incentive
Stock Options are exercisable for the first time by a Participant during a
calendar year (under all stock option plans of the Company and its Affiliates)
exceeds $100,000, such Options shall be treated as Nonqualified Stock Options.
Incentive Stock Options shall not be issued to any person who is not an
Employee.
Section 6.6 Fair Market Value. The Fair Market Value on any given date of Shares
subject to an Option shall be the closing price of the Shares on the principal
national securities exchange on which the Shares are traded on the day
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immediately preceding the date as of which Fair Market Value is being
determined, or on the next preceding date on which the Shares are traded if no
Shares were traded on such immediately preceding day. If the Shares are not
traded on a securities exchange but are quoted in the over-the-counter market,
then the Fair Market shall be deemed to be the average of the high bid and low
asked prices of the Shares in the over-the-counter market on the day immediately
preceding the date as of which Fair Market Value is being determined or on the
next preceding date on which such high bid and low asked prices were recorded as
reported by a generally accepted reporting service. If the Shares are not
publicly traded, Fair Market Value shall be determined in good faith by the
Board or the Committee. In no event shall Fair Market Value be less than the par
value of the Shares.
Section 6.7 Whole or Partial Exercise. Except as otherwise provided in Article
VI or as specifically stated in an Option Agreement, an Option may be exercised
in whole or in part at any time during the Exercise Period.
ARTICLE VII
EXERCISE OF OPTIONS
Section 7.1 Payment for Shares. Upon the exercise of an Option by a Participant,
the Company shall cause the purchased Shares to be issued only when it shall
have received the full Option Price therefor paid in cash or, if permitted by
applicable law and set forth in the applicable Option Agreement, with Shares, or
by surrender of currently exercisable Options, or such other property (not
inconsistent with the terms of the Plan) or a combination of cash, Shares and
Options to be valued at the Fair Market Value thereof on the date of exercise,
and such other property at its fair market value as determined by the Committee.
If payment is made by delivery to the Company of Shares owned by the
Participant, any Shares so delivered shall have been beneficially owned by the
Participant for a period of not less than six months prior to the date of
exercise and such Shares shall be in proper form for transfer and accompanied by
all requisite stock transfer tax stamps or cash in lieu thereof. If payment is
made by surrender to the Company of Options owned by the Participant, such
Options shall have an Option Value equal to the Option Price of the Shares as to
which the Option is being exercised.
Section 7.2 Nontransferability. Any Option granted under the Plan shall be
nontransferable except by will or by the laws of descent and distribution. In
the event of any such transfer, the entire Option shall be transferred to the
same person or entity. During the lifetime of a Participant, any Option granted
to such Participant may be exercised only by the Participant. No right or
interest of a Participant in any Option shall be subject to any lien, obligation
or liability whatsoever.
Section 7.3 Fractional Shares. In no event shall an Option be exercisable for or
with respect to a fractional share.
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ARTICLE VIII
ADJUSTMENTS FOR CHANGES IN CAPITALIZATION, ETC.
In the event of any change in the outstanding Shares through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
split-up, split-off, spin-off, combination or exchange of shares of the
Company's stock, or other like change in the capital structure of the Company,
an adjustment shall be made to each outstanding Option granted hereunder such
that each such Option shall thereafter be exercisable for such securities, cash
and/or other property as would have been received in respect of the Shares
subject to such Option had it been exercised in full immediately prior to such
change, and such adjustment shall be made successively each time any such change
shall occur. The term "Shares" after any such change shall refer to the
securities, cash and/or property then receivable upon exercise of an Option. In
addition, in the event of any such change, the Committee shall make any further
adjustment as may be appropriate to the maximum number of Shares subject to the
Plan, and the number of Shares and Option Price of Shares subject to outstanding
Options, as shall be equitable to prevent dilution or enlargement of rights
under any Option. Notwithstanding the foregoing provisions of this Article VIII
(i) each such adjustment with respect to an Incentive Stock Option shall comply
with the rules of Section 424(a) of the Code, and
(ii) in no event shall any adjustment be made which would render any Incentive
Stock Option granted hereunder other than an "incentive stock option" within the
meaning of Section 422 of the Code.
ARTICLE I X
COMPLIANCE WITH LAW
No Option shall be exercisable, no Shares shall be delivered, and no payment
shall be made under the Plan except in compliance with all Federal and state
laws and regulations (including, without limitation, withholding tax
requirements and federal and state securities laws and the regulations) and
rules of all securities exchanges or self-regulatory organizations on which the
Shares may be listed or traded. The Company shall have the right to rely on an
opinion of counsel as to such compliance. Any certificate issued to evidence
Shares for which an Option is exercised may bear such legends and statements as
the Committee upon advice of counsel may deem advisable to assure compliance
with Federal and state laws and regulations. No Option shall be exercisable, nor
shall Shares nor certificates therefor be issued, under the Plan until the
Company has obtained such consent or approval as the Committee may deem
advisable from any regulatory bodies having jurisdiction over such matters.
ARTICLE X
MISCELLANEOUS
Section 10.1 Effect on Employment. Neither the adoption of the Plan or its
operation, nor any documents describing or referring to the Plan (or any part
hereof) shall confer upon any person any right to continue as an Employee or
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Associate of the Company or any Affiliate or in any way affect any right or
power of the Company or any Affiliate to terminate the employment of any
Employee or the association of any Associate at any time without assigning a
reason therefor.
Section 10.2 Unfunded Plan. The Plan, insofar as it provides for grants, shall
be unfunded, and the Company shall not be required to segregate any assets that
may at any time be represented by grants under the Plan. Any liability of the
Company to any person with respect to any grant under the Plan shall be based
solely upon any contractual obligations that may be created pursuant to the
Plan. No such obligation of the Company shall be deemed to be secured by any
pledge of, or other encumbrance on, any property of the Company.
Section 10.3 Use of Proceeds. The proceeds received by the Company from the sale
of Shares pursuant to the Plan shall be used for general corporate purposes.
Section 10.4 Rights as a Shareholder. A Participant shall have no rights with
respect to any Share until the Participant shall have become a holder of record
of such Share, and the Participant shall not be entitled to any dividends or
distributions or other rights in respect of such Share for which the record date
is prior to the date on which the Participant shall have become the holder of
record therefor, except as otherwise provided in Article VIII.
Section 10.5 Construction. Headings are given to the articles and sections of
the Plan solely as a convenience to facilitate reference and shall not in any
way affect the meaning of the Plan.
Section 10.6 Applicable Law. The Plan shall be governed and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Nevada.
ARTICLE XI
AMENDMENT; TERMINATION; EFFECTIVE DATE
Section 11.1 Amendment and Termination. The Board may amend or terminate the
Plan at any time or from time to time; provided, however, that no amendment
shall without all required approvals with respect thereto
(i) increase (except as provided by Article VIII) the maximum number of shares
as to which Options may be granted under the Plan, or
(ii) materially modify the requirements in Article IV as to eligibility for
participation in the Plan. Any provision of the Plan to the contrary
notwithstanding, no termination or amendment of the Plan may, without the
consent of the individual to whom an Option shall have been previously granted,
adversely affect the rights conferred by such Option. The Board may amend the
terms of any Option at any time or from time to time with the consent of the
holder of such Option; provided, however, that no Option may be amended to
reduce the Option Price thereof.
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Section 11.2 Duration of the Plan. Unless terminated earlier pursuant to Section
11.1, the Plan shall terminate upon the expiration of ten years from the earlier
of the date of its adoption by the Board or the date on which the Plan is
approved by the shareholders of the Company, and no Option shall be granted
after termination of the Plan.
Section 11.3 Effective Date. The Plan shall become effective upon its adoption
by the Board, subject to the approval by the affirmative vote of the holders of
a majority of the outstanding shares of Common Stock of the Company present, in
person, or by proxy, at a shareholders meeting duly held within one year
following adoption of the Plan by the Board. All options granted prior to the
date of such shareholder approval shall be subject to such approval and No
Option shall be exercisable and no Shares shall be delivered until such approval
shall have been received.
Adopted by the Board of Directors at a Special Meeting held for such purpose on
April 8, 2002.
In witness of the unanimous resolution thereof, I do hereby, of even date
herewith, to this Corporate Resolution, affix my hand and seal.
/s/Spencer Eubank
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Spencer Eubank, Secretary
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