FINDEX ACQUISITION CORP.
STOCK INCENTIVE PLAN
1. PURPOSE. The purpose of this Stock Incentive Plan (the "Plan") is to
advance the interests of FINdex Acquisition Corp. (the "Company") and
its stockholders by providing deferred stock incentives in addition to
current compensation to certain key executives, certain directors and
key employees of the Company and of its subsidiaries who contribute
significantly to the long-term performance and growth of the Company
and such subsidiaries. As used in this Plan, subsidiary includes parent
of the Company and any subsidiary of the Company within the meaning of
Sections 425(e) and (f) of the Internal Revenue Code of 1986, as
amended ("Code"), respectively.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company (the "Board of Directors") or a committee of
the Board of Directors duly authorized and given authority by the Board
of Directors to administer the Plan (the Board of Directors or such
duly authorized committee hereinafter referred to as the "Board"), as
such is from time to time constituted.
The Board shall have all the powers vested in it by the terms of the
Plan, such powers to include exclusive authority (within the limitation
described herein) to select the employees to be granted Awards under
the Plan, to determine the type, size and terms of the Awards to be
made to each employee selected, to determine the time when Awards will
be granted, and to prescribe the form of the instruments evidencing
Awards made under the Plan. The Board shall be authorized to interpret
the Plan and the Awards granted under the Plan, to establish, amend and
rescind any rules and regulations relating to the Plan, and to make any
other determinations which it believes necessary or advisable for the
administration of the Plan. The Board may correct any defect or supply
any omission or reconcile any inconsistency in the Plan or in any Award
in the Manner and to the extent the Board deems desirable to carry it
into effect. Any decision of the Board in the administration of the
Plan, as described herein, shall be final and conclusive. The Board may
act only by a majority of its members in office, except that the
members thereof may authorize anyone or more of their number of any
officer of the Company to execute and deliver documents on behalf of
the Board. No member of the Board shall be liable for anything done or
omitted to be done by him or by any other member of the Board in
connection with the Plan, except for his own willful misconduct or as
expressly provided by statute.
3. PARTICIPATION. Subject to the provisions of the Plan, the Board
shall have exclusive power to select the directors and officers and
other key employees of the Company and its subsidiaries participating
in the Plan to be granted Awards under the Plan.
4. AWARDS UNDER THE PLAN.
(a) Type of Awards. Awards under the Plan may be of three types: (i)
"Nonqualified Stock Options" or "Incentive Stock Options," (ii)
"Stock Appreciation Rights" attached to Stock Options, or (iii)
"Restricted Stock." Stock Options are rights to purchase shares
of Common Stock of the Company having a par value of $.001 per
share (the "Common Stock"). Stock Appreciation Rights are rights
to receive, without payment to the Company, cash and/or shares of
Common Stock in lieu of the purchase of shares of Common Stock
under the Stock Option to which the Stock Appreciation Rights are
subject to the terms, conditions and restrictions specified in
Paragraph 5. Restricted Stock is a share of Common Stock which is
subject to the repurchase option and the other terms, conditions
and restrictions described in Paragraph 6.
(b) Maximum Number of Shares That May Be Issued. There may be issued
under the Plan (as Restricted Stock or pursuant to the exercise
of Stock Options or Stock Appreciation Rights) an aggregate of
9,000,000 shares of Common Stock, subject to adjustment as
provided in Paragraph 7. In addition to Common Stock actually so
issued, there shall be deemed to have been issued pursuant to the
Plan (and therefore no longer available in connection with
Awards) a number of shares equal to the aggregate of the number
of shares of Common Stock under option in respect of which Stock
Appreciation Rights granted pursuant to subparagraph 5(t) shall
have been exercised minus the number of shares of Common Stock,
if any, issued upon exercise of such Stock Appreciation Rights.
Common Stock issued pursuant to the Plan may be either authorized
but unissued shares or reacquired shares, or both. If any Common
Stock issued as Restricted Stock shall be repurchased pursuant to
the option described in Paragraph 6 below, or if any Common Stock
issued under the Plan shall be reacquired pursuant to
restrictions imposed at the time of issuance, such shares may
again be issued under the Plan.
(c) Rights with Respect to Common Stock.
(i) An employee to whom an Award of Restricted Stock has been
made shall have, after issuance to him of a certificate for
the number of shares of Common Stock awarded and prior to
the expiration of the Restricted Period or the earlier
repurchase of such shares of Common Stock as herein
provided, ownership of such shares of Common Stock,
including the right to vote the same and to receive
dividends thereon, subject however, to the options,
restrictions and limitations imposed thereon pursuant to the
Plan.
(ii) An employee to whom an Award of Stock Option or Stock
Appreciation Rights is made (and any person succeeding to
such an employee's rights pursuant to the Plan) shall have
no rights as a stockholder with respect to any shares of
Common Stock issuable pursuant to any such Stock Option or
Stock Appreciation Rights until the date of the issuance of
a stock certificate to him for such shares. Except as
provided in Paragraph 8, no adjustment shall be made for
dividends, distributions or other rights (whether ordinary
or extraordinary, and whether in cash, securities or other
property) for which the record date is prior to the date
such stock certificate is issued.
(d) Exercise of Options and Stock Appreciation Rights: Expiration of
Restrictions Applicable to Restricted Stock. Options and Stock
Appreciation Rights shall be subject to such terms and conditions
upon exercisability as the Board may determine consistent with
the provisions of this Plan. Repurchase and other restrictions
applicable to Restricted Stock shall be such as are determined in
the discretion of the Board consistent with the provisions of the
Plan. The Board may determine to permit any Option granted
hereunder to be exercisable immediately upon the date of grant or
any time thereafter. The Board may determine to permit any Stock
Appreciation Right granted hereunder to be exercisable not less
than six months after the initial award of the Option containing,
or the amendment or supplementation of any existing Option
Agreement adding the Stock Appreciation Right; provided, however,
that this limitation shall not apply in the event of death or
disability. The Board may determine that there shall be no
restrictions applicable to Restricted Stock awarded under the
Plan.
5. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS. The Board may grant Stock
Options (to which may but need not be attached Stock Appreciation
Rights as specified in subparagraph 5(f). Each Stock Option (referred
to herein as an "Option") granted under the Plan shall be evidenced by
an instrument in such form as the Board shall prescribe from time to
time in accordance with the Plan and shall comply with the following
terms and conditions (and with such other terms and conditions,
including but not limited to restrictions upon the Option or the shares
of Common Stock issuable upon exercise thereof, as the Board, in its
discretion, shall establish):
(a) The Option price shall be determined by the Board at the time
the Option is granted and shall not be less than the par value
of such shares of Common stock.
(b) The Board will determine the number of shares of Common Stock
to be subject to each Option. The number of shares of Common
Stock subject to an outstanding Option will be reduced on a
share for share basis to the extent that shares of Common
Stock under such Option are used to calculate the cash and/or
shares of Common Stock received pursuant to exercise of a
Stock Appreciation Right attached to such Option.
(c) The Option shall not be transferable by the optionee other
than by will or the laws of descent and distribution, and
shall be exercisable during his lifetime only to him.
(d) The Board will determine the conditions and terms governing
the exercise of granted Options; provided, however that no
Option shall be exercisable:
(i) after the expiration of ten years from the date it is
granted and may be exercised during the period prior
to its expiration only at such time or times as the
Board may establish;
(ii) unless payment in United States dollars by cash or
check is made for the shares being acquired thereby
in full at the time of exercise, or at the option of
the holder of such Option, in Common Stock
theretofore owned by such holder (or any combination
of cash and Common Stock).
For purposes of determining the amount, if any, of the
purchase price satisfied by payment of Common Stock under
clause (ii) above, such Common Stock shall be valued at its
fair market value on the date of exercise. Fair market value
means the fair market value of one share of Common Stock on
the date in question, which is deemed to be the mean between
the highest and lowest sales prices per share of Common Stock
on any national stock exchange upon which Common Stock is
listed, or if Common Stock is not listed on any national stock
exchange, the mean between the highest closing bid and lowest
closing asked prices for Common Stock as reported by the
National Association of Securities Dealers NASDAQ System, or
if not reported by such system, the mean between the closing
bid and asked prices as quoted by such quotation source as
shall be designated by the Board on that date. If there shall
have been no sale on the date in question, fair market value
shall be determined by reference the last preceding date on
which such a sale or sales were so reported. If the Common
Stock is not listed or admitted to trading on the New York
Stock Exchange, any National Securities Exchange quoted on the
NASDAQ National Markets Systems or in the over-the-counter
market, then, the fair market value shall be as set by, or in
a manner established by, the Board of Directors of the
Corporation in good faith. Any Common Stock delivered in
satisfaction of all or a portion of the purchase price shall
be appropriately endorsed for transfer and assigned to the
Company. The Board may, in its discretion and to the extent
permitted by the laws of the State of Delaware determine to
permit the holder of an Option to satisfy the purchase price
of the shares as to which an Option is exercised by delivery
of the Option holder's promissory note, such note to be
subject to such terms and conditions as the Board may
determine. The Board may, in its discretion and to the extent
permitted by the laws of the State of Delaware, determine to
cause the Company to lend to the holder of an Option, funds on
such terms and conditions as the Board may determine to be
appropriate, sufficient for the holder of an Option to pay the
purchase price of the shares as to which an Option is to be
exercised.
(e) If any person to whom an Option has been granted shall die
holding an Option which has not been fully exercised, his
executors, administrators, heirs or distributees, as the case
may be, may, at any time within one year after the date of
such death (but in no event after the Option has expired under
the provisions of subparagraph 5(d)(i) hereon, exercise the
Option with respect to any shares as to which the decedent
could have exercised the Option at the time of his death.
(f) If the Board, in its discretion, so determines, there may be
attached to the Option a Stock Appreciation Right which shall
be subject to such terms and conditions, not inconsistent with
the Plan, as the Board shall impose, including the following:
(i) A Stock Appreciation Right may be exercised only to the
extent that the option to which it is attached is at
the time exercisable. However, if the option to which
the Stock Appreciation Right is attached is exercisable
and if the optionee is at the relevant time an officer
or director of the Company who is required to file
reports pursuant to Section 16(a) of the Securities
Exchange Act of 1934, as amended ("Exchange Act")
("Covered Participant") -the Stock Appreciation Right
may, subject to the approval of the Board, be
exercised, under such terms and conditions as may be
specified by the Board;
(ii) A Stock Appreciation Right shall entitle the optionee (
or any person entitled to act under the provisions of
subparagraph 5(e) hereunder to surrender unexercised
the Option to which the Stock Appreciation Right is
attached (or any portion of such Option) to the Company
and to receive from the Company in exchange therefor
that number of shares of Common Stock having an
aggregate value equal to (or, in the discretion of the
Board, less than) the excess of the value of one share
over the option price per share times the number of
shares subject to the option, or portion thereof, which
is so surrendered. The Company shall be entitled to
elect to settle its obligation arising out of the
exercise of a Stock Appreciation Right, by the payment
of cash equal to the aggregate value of the shares it
would otherwise be obligated to deliver or partly by
the payment of cash and partly by the delivery of
shares of Common Stock. Any such election shall be made
within 15 business days after the receipt by the Board
of written notice of the exercise of the Stock
Appreciation Right. The value of a share of Common
Stock for this purpose shall be the fair market value
thereon on the last business day next preceding the
date of the election to exercise the Stock Appreciation
Right;
(iii) No fractional shares shall be delivered under this
subparagraph 5(f) but in lieu thereof a cash adjustment
shall be made.
(g) The Option agreement evidencing any incentive stock option
granted under this Plan shall provide that if the optionee makes
a disposition, within the meaning of Section 425(c) of the code
and the regulations promulgated thereunder, of any share or
shares of Common Stock issued to him pursuant to his exercise of
an Option granted under this Plan within the two-year period
commencing on the day after the date of the granting of such
Option or within a one-year period commencing on the day after
the date of transfer of the share or shares to him pursuant to
the exercise of such Option, he shall, within ten days of such
disposition, notify the Company thereof and immediately deliver
to the Company any amount of federal income tax withholding
required by law.
6. RESTRICTED STOCK. Each Award of Restricted Stock under the Plan shall
be evidenced by an instrument in such form as the Board shall prescribe
from time to time in accordance with the Plan and shall comply with the
following terms and conditions (and with such other terms and
conditions as the Board, in its discretion, shall establish):
(a) The Board shall determine the number of shares of Common Stock to
be issued to a participant pursuant to the Award.
(b) Shares of Common Stock issued to a participant in accordance with
the Award may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the laws
of descent and distribution, for such period as the Board shall
determine, from the date on which the Award is granted (the
"Restricted Period"). The Company will have the option to
repurchase the shares subject to the Award at such price as the
Board shall have fixed, in its sole discretion, when the Award
was made, which option will be exercisable at such times and upon
the occurrence of such events as the Board shall establish when
the Award is granted or if, on or prior to the expiration of the
Restricted Period or the earlier lapse of the Option, the
participant has not paid to the Company an amount equal to any
Federal, State or local income or other taxes which the Company
determines is required to be withheld in respect of such shares.
Such option shall be exercisable on such terms, in such manner
and during such period as shall be determined by the Board when
the Award is made. Certificates for shares of Common Stock issued
pursuant to Restricted Stock Awards shall bear an appropriate
legend referring to the foregoing Option and other restrictions
and to the fact that the shares are partly paid. Any attempt to
dispose of any such shares of Common Stock in contravention of
the foregoing Option and other restrictions shall be null and
void and without effect. If shares of Common Stock issued
pursuant to a Restricted Stock Award shall be repurchased
pursuant to the Option described above, the participant, or in
the event of his death, his personal representative, shall
forthwith deliver to the Secretary of the Company the
certificates for the shares of Common Stock awarded to the
participant, accompanied by such instruments of transfer, if any,
as may reasonably be required by the Secretary of the Company. If
the Option described above is not exercised by the company during
such period as is specified by the Board when the Award is made,
such Option and the restrictions imposed pursuant to the first
sentence of this subparagraph 6(b) shall terminate and be of no
further force and effect.
7. STOCK DIVIDENDS, STOCK SPLITS, REORGANIZATIONS AND CERTAIN OTHER
CORPORATION TRANSACTIONS.
(a) Exercise of Corporate Powers. The existence of outstanding awards
of Options, Stock Appreciation Rights or Restricted Stock shall
not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalization, reorganization or other changes in the
Company's capital structure or its business or any merger or
consolidation of the Company, or any issue of bonds, debentures,
preferred or prior preference stocks ahead of or affecting the
Company's shares of Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any
other corporate act or proceeding whether of a similar character
or otherwise.
(b) Recapitalization of the Company. If, while there are Options,
Stock Appreciation Rights or Restricted Stock outstanding, the
Company shall effect any subdivision or consolidation of shares
of Common Stock or other capital readjustment, the payment of a
stock dividend, stock split, combination of shares or
recapitalization or other increase or reduction in the number of
shares of Common Stock outstanding, without receiving
compensation therefore in money, services or property, then the
number of shares of Common Stock available under the Plan and the
number of Options, Stock Appreciation Rights or Restricted Stock
which may thereafter be exercised shall (i) in the event of an
increase in the number of shares outstanding, be proportionately
increased and the fair market value of the Options, Stock
Appreciation Rights or Restricted Stock awarded as of the date of
the award shall be proportionately reduced; and (ii) in the event
of a reduction in the number of shares outstanding, be
proportionately reduced, and the fair market value of the
Options, Stock Appreciation Rights or Restricted Stock awarded as
of the date of the Award shall be proportionately increased.
(c) Reorganization of the Company. If the Company is reorganized, or
merged or consolidated or a party to a plan of exchange with
another corporation pursuant to which reorganization, merger,
consolidation or plan of exchange stockholders of the Company
receive any shares of Common Stock or other securities, or if the
Company shall distribute securities of another corporation to its
stockholders, each Participant shall be entitled to receive in
lieu of the number of unexercised Options, Stock Appreciation
Rights or Restricted Stock at the date of award, to which such
holder would have been entitled pursuant to the terms of the
agreement of merger of consolidation, if immediately prior to
such merger or consolidation such holder had been the holder of
record of a number of shares of Common Stock equal to the number
of the unexercised Options or Stock Appreciation Rights
previously awarded to him, and Restricted Stock shall be treated
the same as unrestricted outstanding shares of Common Stock;
provided, that, anything herein contained to the contrary
notwithstanding, upon the dissolution or liquidation of the
Company or upon any merger or consolidation of the Company where
it is not the surviving corporation, each Participant shall be
entitled to a benefit as though he had become fully vested in all
Options, Stock Appreciation Rights and Restricted Stock
previously awarded to him and then outstanding under this Plan,
and had terminated employment with the Company immediately prior
to or concurrently with such dissolution or liquidation or merger
or consolidation.
(d) Issue of Common Stock by the Company. Except as hereinabove
expressly provided, the issue by the Company of shares of stock
of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services, either
upon direct sale or upon the exercise of rights or warrants to
subscribe therefore, or upon any conversion of shares or
obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number of, or fair market
value of, any Options or Stock Appreciation Rights then
outstanding under previous awards but holders of Restricted Stock
shall be treated the same as the holders of outstanding
unrestricted shares of Common Stock .
(e) Change In Control. The Board may, in its sole discretion, provide
that an Option or Stock Appreciation Right shall become fully
exercisable or that a share of Restricted Stock shall be free of
any restrictions upon a Change in Control of the Company (as
defined in the next sentence). "Change in Control" of the Company
shall be conclusively deemed to have occurred if (and only it)
any of the following shall have taken place: (i) a change in
control is reported by the Company in response to either Item
6(e) of Schedule 14(a) of Regulation 14(a) promulgated under the
Exchange Act or Item I of Form 8-K promulgated under the Exchange
Act; (ii) any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
forty percent or more of the combined voting power of the
company's then outstanding securities; or (iii) following the
election or removal of directors, a majority of the Board of
Directors consists of individuals who were not members of the
Board of Directors two years before such election or removal,
unless the election of each director who was not a director at
the beginning of such two-year period has been approved in
advance by directors representing at least a majority of the
directors then in office who were directors at the beginning of
the two-year period.
(f) Change in Authorized Common Stock. In the event that the
number of shares of Common Stock which the corporation is
authorized to issue pursuant to its Certificate of
Incorporation is increased or decreased, the aggregate maximum
number of shares of Common Stock which may be issued under the
Plan specified in paragraph 4(b) shall be increased or
decreased proportionately.
8. DESIGNATIONS OF BENEFICIARY BY PARTICIPANT. A participant may name a
beneficiary to receive any payment to which he may be entitled in
respect of Awards under the Plan in the event of his death, on a form
to be provided by the Board. A participant may change his beneficiary
from time to time in the same manner. If no designated beneficiary is
living on the date on which any amount becomes payable to a
participant's beneficiary, such payment will be made to the
participant's executors or administrators, and the term "beneficiary"
as used in the Plan shall include such person or persons.
9. TAXES.
(a) The Company may make such provisions as it deems appropriate for
the withholding of any taxes which it determines is required in
connection with any Options or Stock Appreciation Rights or
Restricted Stock granted under this Plan.
(b) Notwithstanding the terms of subparagraph 9(a), any participant
may pay all or any portion of the taxes required or allowed to be
withheld by the Company if paid to him in connection with the
exercise of an Option, Stock Appreciation Right or vesting of any
Award of Restricted Stock by electing to have the Company
withhold shares of Common Stock, or by delivering previously
owned shares of Common Stock, having a fair market value,
determined in accordance with subparagraph 5(d), equal to the
amount required to be withheld or paid. A Participant must take
the foregoing election on or before the date that the amount of
tax to be withheld is determined ("Tax Date"). Such elections are
irrevocable and subject to disapproval by the Board. Elections by
Covered Participants are subject to the following additional
restrictions: (i) such election may not be made within six months
of the grant of the Award, provided that this limitation shall
not apply in the event of death or disability, and (ii) such
election must be made either six months or more prior to the Tax
Date or in a Window Period (as defined herein). Where the Tax
Date in respect of an Award is deferred until after exercise or
expiration of restrictions and the Covered Participant elects
share withholding, the full amount of shares of Common Stock will
be issued or transferred to him upon exercise of the Option or
exercise of the Stock Appreciation Right or expiration of
restrictions of the Restricted Stock, as the case may be, but the
Covered Participant shall be unconditionally obligated to tender
back to the Company the number of shares necessary to discharge
the Company's withholding obligation or his estimated tax
obligation on the Tax Date. As used herein, Window Period means
the period commencing on the third business day following the
Company's release of a quarterly or annual summary statement of
sales and earnings and ending on the twelfth business day
following such release.
10. MISCELLANEOUS PROVISIONS.
(a) No employee or other person shall have any claim or right to
be granted an Award under the Plan. Neither the Plan nor any
action taken hereunder shall be construed as giving any
employee any right to be retained in the employ of the Company
or any subsidiary.
(b) A participant's rights and interest under the Plan may not be
assigned or transferred in whole or in part either directly or
by operation of law or otherwise (except in the event of a
participant's death), including but not by way of limitation,
execution, levy, garnishment, attachment, pledge, bankruptcy
or in any other manner and no such right or interest of any
participant in the Plan shall be subject to any obligation or
liability of such participant.
(c) No shares of Common Stock shall be issued hereunder unless
counsel for the Company shall be satisfied that such issuance
will be in compliance with applicable federal and state
securities laws.
(d) The expenses of the Plan shall be borne by the Company.
(e) The Plan shall be unfunded. The Company shall not be required
to establish any special or separate fund or make any other
segregation of assets to assure the payment of any Award under
the Plan and payment of Awards shall be subordinate to the
claims of the Company's general creditors.
By accepting any Award or other benefit under the Plan, each
participant and each person claiming under or through him
shall be conclusively deemed to have indicated his acceptance
and ratification of, and consent to, any action taken under
the Plan by the Company or the Board.
11. AMENDMENT OR DISCONTINUANCE. The Plan may be amended at any time and
from time to time by the Board of Directors but no amendment which
increases the aggregate number of shares of Common Stock which may be
issued pursuant to the Plan shall be effective unless and until the
same is approved by the stockholders of the Company. No amendment of
the Plan shall adversely affect any right of any participant with
respect to any Award theretofore granted without such participant's
written consent.
12. TERMINATION. This Plan shall terminate upon the earlier of the
following dates or events to occur:
(a) upon the adoption of a resolution of the Board of Directors
terminating the Plan; or
(b) ten years from the date hereof
No termination of the Plan shall alter or impair any of the rights or
obligations of any person, without his consent, under any Award
theretofore granted under the Plan.
13. STOCKHOLDER ADOPTION. The Plan is approved and adopted by the
stockholders of the Company by written consent in the manner required by the
laws of the State of Delaware as of March 1, 1999.
FINDEX ACQUISITION CORP.