EXHIBIT 3.3
ALLIANCE DISTRIBUTORS HOLDING INC. 2004 STOCK PLAN
1. ARTICLE I General
1.1. Purpose. The purpose of the Plan is to provide additional incentive
to officers, directors, employees and others who render services to
Alliance Distributors Holding Inc. ("Corporation"). It is intended that
Awards granted under the Plan strengthen the desire of such persons to
join and remain in the employ of the Corporation, or otherwise render
services to the Corporation, and stimulate their efforts on behalf of the
Corporation.
1.2. Term. No Award shall be granted under the Plan after the close of
business on the day immediately preceding the 10-year anniversary of the
adoption of the plan. Subject to other applicable provisions of the Plan,
all Awards made under the Plan prior to such termination of the Plan shall
remain in effect until such Awards have been satisfied or terminated in
accordance with the Plan and the terms of such Awards.
1.3. Shares Subject to the Plan. Subject to adjustments as provided in
Article IX, the number of shares of Stock that may be delivered, purchased
or used for reference purposes (with respect to SARs or Stock Units) with
respect to Awards granted under the Plan shall be 10,000,000 shares. If
any Award, or portion of an Award, under the Plan expires or terminates
unexercised, becomes unexercisable or is forfeited or otherwise
terminated, surrendered or canceled as to any shares without the delivery
of shares of Stock or other consideration, the shares subject to such
Award shall thereafter be available for further Awards under the Plan.
2. ARTICLE II Definitions; For purposes of the Plan, the following terms
shall be defined as set forth below.
2.1. Administrator means the Special Stock Option Committee or any other
committee which is designated by the Board as the "Administrator."
2.2. Award means any Stock Options (including ISOs and NSOs), SARs
(including free-standing and tandem SARs), Restricted Stock Awards, Stock
Units, or any combination of the foregoing granted pursuant to the Plan,
except, however, when the term is being used under the Plan with respect
to a particular category of grant in which case it shall only refer to
that particular category of grant.
2.3. Board means the Board of Directors of the Corporation.
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2.4. Code means the Internal Revenue Code of 1986, as amended.
2.5. Fair Market Value of the Stock on any given date means the average of
the high and low price of a share of Stock, as traded on a national
securities exchange.
2.6. Grant Agreement means the agreement between the Corporation and the
Participant pursuant to which the Corporation authorizes an Award
hereunder. Each Grant Agreement entered into between the Corporation and a
Participant with respect to an Award granted under the Plan shall contain
such provisions, consistent with the provisions of the Plan, as may be
established by the Administrator.
2.7. Grant Date means the date on which the Administrator formally acts to
grant an Award to a Participant or such other date as the Administrator
shall so designate at the time of taking such formal action.
2.8. ISO means any Stock Option designated and qualified as an "incentive
stock option" as defined in Code section 422.
2.9. NSO means any Option that is not an ISO.
2.10. Option means any option to purchase shares of Stock granted under
Article V.
2.11. Parent means a corporation, whether now or hereafter existing,
within the meaning of the definition of "parent corporation" provided in
Code section 424(e), or any successor to such definition.
2.12. Participant means any person to whom any Award is granted pursuant
to the Plan.
2.13. Restricted Stock Award means any Award of shares of restricted Stock
granted pursuant to Article VII of the Plan.
2.14. SAR means a stock appreciation right, as awarded under Article VI.
2.15.Stock means the voting common stock of the Corporation, subject to
adjustments pursuant to the Plan.
2.16. Stock Unit means credits to a bookkeeping reserve account solely for
accounting purposes, where the amount of the credit shall equal the Fair
Market Value of a share of Stock on the date of grant (unless the
Administrator provides otherwise in the Grant Agreement) and which shall
be subsequently increased or decreased to reflect the Fair Market Value of
a share of Stock. Stock Units do not require segregation of any of the
Corporation's assets. Stock Units are awarded under Article VII.
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2.17. Subsidiary means any corporation or other entity (other than the
Corporation) in any unbroken chain of corporations or other entities,
beginning with the Corporation, if each of the corporations or entities
(other than the last corporation or entity in the unbroken chain) owns
stock or other interests possessing 50% or more of the economic interest
or the total combined voting power of all classes of stock or other
interests in one of the other corporations or entities in the chain.
3. ARTICLE III Administration
3.1. General. The Plan shall be administered by the Administrator. The
Administrator's determinations under the Plan (including without
limitation determinations of the persons to receive Awards, the
form, amount and timing of such Awards, the terms and provisions of
such Awards and the agreements evidencing same) need not be uniform
and may be made by the Administrator selectively among persons who
receive, or are eligible to receive, Awards under the Plan, whether
or not such persons are similarly situated.
3.2. Duties. The Administrator shall have full power and authority to
administer and interpret the Plan and to adopt such rules,
regulations, agreements, guidelines and instruments for the
administration of the Plan and for the conduct of its business as
the Administrator deems necessary or advisable, all within the
Administrator's sole and absolute discretion. The Administrator
shall have full power and authority to take all other actions
necessary to carry out the purpose and intent of the Plan,
including, but not limited to, the authority to:
3.2.1. construe the Plan and any Award under the Plan;
3.2.2.subject to Section 4.1, select the persons to whom Awards may be
granted and the time or times at which Awards shall be granted;
3.2.3.determine the number of shares of Stock to be covered by or used
for reference purposes for any Award;
3.2.4.determine and modify from time to time the terms and conditions,
including restrictions, of any Award (including provisions that
would allow for cashless exercise of Awards and/or reduction in the
exercise price of outstanding Awards) and to approve the form of
written instrument evidencing Awards;
3.2.5.accelerate the time or times at which an Award becomes vested or
when an Award may be exercised or becomes payable and to waive or
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accelerate the lapse, in whole or in part, of any restriction or
condition with respect to such Award, including, but not limited to,
any restriction or condition with respect to the vesting or
exercisability of an Award following a Participant's termination of
employment or death;
3.2.6.impose limitations on Awards, including limitations on transfer and
repurchase provisions; and
3.2.7.modify, extend or renew outstanding Awards, or accept the surrender
of outstanding Awards and substitute new Awards.
4. ARTICLE IV Eligibility and Participation
4.1. Eligibility. The persons eligible to participate in the Plan are
officers, directors, employees of the Corporation or its Subsidiaries and
others that render services to the Corporation or its Subsidiaries.
5. ARTICLE V Stock Options
5.1. General. Subject to the other applicable provisions of the Plan, the
Administrator may from time to time grant to eligible Participants Awards
of ISOs or NSOs. The ISO or NSO Awards granted shall be subject to the
following terms and conditions.
5.2. Grant of Option. The grant of an Option shall be evidenced by a Grant
Agreement, executed by the Corporation and the Participant, describing the
number of shares of Stock subject to the Option, whether the Option is an
ISO or NSO, the Exercise Price of the Option, the vesting period for the
Option and such other terms and conditions that the Administrator deems,
in it sole discretion, to be appropriate, provided that such terms and
conditions are not inconsistent with the Plan.
5.3. Price. The price per share payable upon the exercise of each Option
(the "Exercise Price") shall be determined by the Administrator and set
forth in the Grant Agreement; provided, however, that in the case of ISOs,
the Exercise Price shall not be less than 100% of the Fair Market Value of
the shares on the Grant Date.
5.4. Payment. Options may be exercised in whole or in part by payment of
the Exercise Price of the shares to be acquired in accordance with the
provisions of the Grant Agreement, and/or such rules and regulations as
the Administrator may prescribe, and/or such determinations, orders, or
decisions as the Administrator may make.
5.5. Terms of Options. The term during which each Option may be exercised
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shall be determined by the Administrator; provided, however, that in no
event shall an ISO be exercisable more than ten years from the date it is
granted.
5.6. Reload Options. The terms of an Option may provide for the automatic
grant of a new Option Award when the Exercise Price of the Option and/or
any related tax withholding obligation is paid by tendering shares of
Stock.
5.7. Restrictions on ISOs. ISO Awards granted under the Plan shall comply
in all respects with Code section 422 and, as such, shall meet the
following additional requirements:
5.7.1. Grant Date. An ISO must be granted within ten (10) years of the
earlier of the Plan's adoption by the Board of Directors or approval by
the Corporation's shareholders.
5.7.2. Exercise Price and Term. The Exercise Price of an ISO shall not be
less than 100% of the Fair Market Value of the shares on the date the
Option is granted and the term of the Option shall not exceed ten (10)
years. Notwithstanding the immediately preceding sentence, the Exercise
Price of any ISO granted to a Participant who owns, within the meaning of
Code section 422(b)(6), after application of the attribution rules in Code
section 424(d), more than ten percent (10%) of the total combined voting
power of all classes of shares of the Corporation, or its Parent or
Subsidiary corporations, shall not be less than 110% of the Fair Market
Value of the Stock on the Grant Date and the term of such ISO shall not
exceed five (5) years.
5.7.3. Maximum Grant. The aggregate Fair Market Value (determined as of
the Grant Date) of shares of Stock with respect to which all ISOs first
become exercisable by any Participant in any calendar year under this or
any other plan of the Corporation and its Parent and Subsidiary
corporations may not exceed $100,000 or such other amount as may be
permitted from time to time under Code section 422. To the extent that
such aggregate Fair Market Value shall exceed $100,000, or other
applicable amount, such Options shall be treated as NSOs. In such case,
the Corporation may designate the shares of Stock that are to be treated
as stock acquired pursuant to the exercise of an ISO by issuing a separate
certificate for such shares and identifying the certificate as ISO shares
in the stock transfer records of the Corporation.
5.7.4. Participant. ISOs shall only be issued to employees of the
Corporation, or of a Parent or Subsidiary of the Corporation.
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5.7.5. Tandem Options Prohibited. An ISO may not be granted in tandem with
a NSO in such a manner that the exercise of one affects a Participant's
right to exercise the other.
5.7.6. Designation. No option shall be an ISO unless so designated by the
Administrator at the time of grant or in the Grant Agreement evidencing
such Option.
5.8. Exercisability. Options shall be exercisable as provided in the Grant
Agreement.
5.9. Transferability. ISOs shall be non-transferable. Except as provided
in the Grant Agreement, NSOs shall not be assignable or transferable by
the Participant, except by will or by the laws of descent and
distribution.
6. ARTICLE VI Stock Appreciation Rights
6.1. Award of SARs. Subject to the other applicable provisions of the
Plan, the Administrator may at any time and from time to time grant SARs
to eligible Participants, either on a free-standing basis (without regard
to or in addition to the grant of an Option) or on a tandem basis (related
to the grant of an underlying Option).
6.2. Restrictions on Tandem SARs. ISOs may not be surrendered in
connection with the exercise of a tandem SAR unless the Fair Market Value
of the Stock subject to the ISO is greater than the Exercise Price for
such ISO. SARs granted in tandem with Options shall be exercisable only to
the same extent and subject to the same conditions as the related Options
are exercisable. The Administrator may, in its discretion, prescribe
additional conditions to the exercise of any such tandem SAR.
6.3. Amount of Payment Upon Exercise of SARs. A SAR shall entitle the
Participant to receive, subject to the provisions of the Plan and the
Grant Agreement, a payment having an aggregate value equal to the product
of (i) the excess of (A) the Fair Market Value on the exercise date of one
share of Stock over (B) the base price per share specified in the Grant
Agreement, times (ii) the number of shares specified by the SAR, or
portion thereof, which is exercised. In the case of exercise of a tandem
SAR, such payment shall be made in exchange for the surrender of the
unexercised related Option (or any portions thereof which the Participant
from time to time determines to surrender for this purpose).
6.4. Form of Payment Upon Exercise of SARs. Payment by the Corporation of
the amount receivable upon any exercise of a SAR may be made by the
delivery of Stock or cash, or any combination of Stock and cash, as
determined in the sole discretion of the Administrator.
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6.5. Transferability. SARs shall be transferable only as provided in the
Grant Agreement.
7. ARTICLE VII; Restricted Stock and Stock Units
7.1. Grants. Subject to the other applicable provisions of the Plan, the
Administrator may grant Restricted Stock or Stock Units to
Participants in such amounts and for such consideration, including
no consideration or such minimum consideration as may be required by
law, as it determines. Such Awards shall be made pursuant to a Grant
Agreement.
7.2. Terms and Conditions. A Restricted Stock Award entitles the
recipient to acquire shares of Stock and a Stock Unit Award entitles
the recipient to be paid the Fair Market Value of the Stock on the
exercise date. Stock Units may be settled in Stock, cash or a
combination thereof, as determined by the Administrator. Restricted
Stock Awards and Stock Unit Awards are subject to vesting periods
and other restrictions and conditions as the Administrator may
include in the Grant Agreement.
7.3. Restricted Stock.
7.3.1.The Grant Agreement for each Restricted Stock Award shall specify
the applicable restrictions on such shares of Stock, the duration of
such restrictions, and the times at which such restrictions shall
lapse with respect to all or a specified number of shares of Stock
that are part of the Award. Notwithstanding the foregoing, the
Administrator may reduce or shorten the duration of any restriction
applicable to any shares of Stock awarded to any Participant under
the Plan.
7.3.2.Share certificates with respect to restricted shares of Stock may
be issued at the time of grant of the Restricted Stock Award,
subject to forfeiture if the restrictions do not lapse, or upon
lapse of the restrictions. If share certificates are issued at the
time of grant of the Restricted Stock Award, the certificates shall
bear an appropriate legend with respect to the restrictions
applicable to such Restricted Stock Award (as described in Section
11.1) or, alternatively, the Participant may be required to deposit
the certificates with the Corporation during the period of any
restriction thereon and to execute a blank stock power or other
instrument of transfer.
7.3.3.The extent of the Participant's rights as a shareholder with
respect to the Restricted Stock shall be specified in the Grant
Agreement.
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7.4. Stock Units.
7.4.1. The grant of Stock Units shall be evidenced by a Grant Agreement
that states the number of Stock Units evidenced thereby and the terms and
conditions of such Stock Units.
7.4.2. Stock Units may be exercised in the manner described in the Grant
Agreement.
7.4.3. The extent of the Participant's rights as a shareholder with
respect to the Stock Units shall be specified in the Grant Agreement.
7.5. Transferability. Unvested Restricted Stock Awards or Stock Units may
not be sold, assigned, transferred, pledged or otherwise encumbered or
disposed of except as specifically provided in the Grant Agreement.
8. ARTICLE VIII Tax Withholding
8.1. Corporation's Right to Demand Payment for Withholding.
8.2. Subject to subparagraph 8.3, as a condition to taking any action
otherwise required under the Plan or any Grant Agreement, the Corporation
shall have the right to require assurance that the Participant will remit
to the Corporation when required an amount sufficient to satisfy federal,
state and local tax withholding requirements. The Administrator may permit
such withholding obligations to be satisfied through cash payment by the
Participant, through the surrender of shares of Stock which the
Participant already owns or through the surrender of shares of Stock to
which the Participant is otherwise entitled under the Plan or through any
other method determined by the Administrator.
8.3. If a Participant makes a disposition of shares of Stock acquired upon
the exercise of an ISO within either two (2) years after the Option was
granted or one (1) year after its exercise by the Participant, the
Participant shall promptly notify the Corporation and the Corporation
shall have the right to require the Participant to pay to the Corporation
an amount sufficient to satisfy federal, state and local tax withholding
requirements.
9. ARTICLE IX Corporate Transactions
9.1. Adjustments Due to Special Circumstances.
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9.1.1. In the event of any change in the capital structure or business of
the Corporation by reason of any stock dividend or extraordinary dividend,
stock split or reverse stock split, recapitalization, reorganization,
merger, consolidation, split-up, combination or exchange of shares,
non-cash distributions with respect to its outstanding Stock,
reclassification of the Corporation's capital stock, any sale or transfer
of all or part of the Corporation's assets or business, or any similar
change affecting the Corporation's capital structure or business or the
capital structure of any business of any Subsidiary, as determined by the
Administrator, if the Administrator determines that an adjustment is
equitable, then the Administrator may make such adjustments as it deems
equitable with respect to the Plan and Awards, including, without
limitation, in: (i) the number of shares of Stock that can be granted or
used for reference purposes pursuant to the Plan; (ii) the number and kind
of shares or other securities subject to any then outstanding Awards under
the Plan; and (iii) the exercise price, base price, or purchase price
applicable to outstanding Awards under the Plan. The adjustment by the
Administrator shall be final, binding and conclusive.
9.1.2. The Administrator may cancel outstanding Awards, but not
outstanding Stock or Restricted Stock Awards, in connection with any
merger, consolidation of the Corporation, or any sale or transfer of all
or part of the Corporation's assets or business, or any similar event. The
Administrator may determine to pay no compensation whatsoever for any
canceled Awards that are not in-the-money (as hereinafter defined) or for
any canceled Awards to the extent not vested. The Corporation shall
provide payment in cash or other property for the in-the-money value of
the vested portion of Awards that are in-the-money and that are canceled
as aforesaid. Awards are "in-the-money" only to the extent of their then
realizable market value, without taking into account the potential future
increase in the value of the Award (whether under Black-Scholes-type
formulas or otherwise). The opinion by the Administrator of the
in-the-money value of any Award shall be final, binding and conclusive.
9.2. Substitution of Options. In the event that, by reason of a corporate
merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Board shall authorize the issuance or
assumption of a stock option or stock options in a transaction to which
Code section 424(a) applies, then, notwithstanding any other provision of
the Plan, the Administrator may grant options upon such terms and
conditions as it may deem appropriate for the purpose of assumption of the
old option, or substitution of a new option for the old option, in
conformity with the provisions of Code section 424(a) and the rules and
regulations thereunder, as they may be amended from time to time.
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10. ARTICLE X Amendment and Termination
10.1. Amendment. The Board may amend the Plan at any time and from time to
time, provided that (i) no amendment shall deprive any person of any
rights granted under the Plan before the effective date of such amendment,
without such person's consent; and (ii) amendments may be subject to
shareholder approval to the extent needed to comply with applicable law
and stock exchange requirements.
10.2. Termination. The Board reserves the right to terminate the Plan in
whole or in part at any time, without the consent of any person granted
any rights under the Plan.
11. ARTICLE XI Miscellaneous
11.1. Restrictive Legends. The Corporation may at any time place legends
referencing any restrictions described in the Grant Agreement and any
applicable federal or state securities law restrictions on all
certificates representing shares of Stock underlying an Award.
11.2. Compliance with Governmental Regulations. Notwithstanding any
provision of the Plan or the terms of any Grant Agreement entered into
pursuant to the Plan, the Corporation shall not be required to issue any
shares hereunder prior to registration of the shares subject to the Plan
under the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, if such registration shall be necessary, or
before compliance by the Corporation or any Participant with any other
provisions of either of those acts or of regulations or rulings of the
Securities and Exchange Commission thereunder, or before compliance with
other federal and state laws and regulations and rulings thereunder,
including the rules of any applicable securities exchange or quotation
system.
11.3. No Guarantee of Employment. Participation in this Plan shall not be
construed to confer upon any Participant the legal right to be retained in
the employ of the Corporation or give any person any right to any payment
whatsoever, except to the extent of the benefits provided for hereunder.
11.4. Governing Law. The provisions of this Plan shall be governed by,
construed and administered in accordance with applicable federal law;
provided, however, that to the extent not in conflict with federal law,
this Plan shall be governed by, construed and administered under the laws
of Delaware, other than its laws respecting choice of law.
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11.5. Severability. If any provision of the Plan shall be held invalid,
the remainder of this Plan shall not be affected thereby and the remainder
of the Plan shall continue in force.
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