EXHIBIT 10(v)(a)
OPTIONABLE, INC.
2004 STOCK OPTION PLAN
ADOPTED DECEMBER 3, 2004
1. PURPOSE OF THE PLAN. The Optionable, Inc., 2004 Stock Option Plan (the
"Plan") is intended to advance the interests of Optionable, Inc. (the
"Company"), by inducing individuals, and eligible entities (as hereinafter
provided) of outstanding ability and potential to join and remain with, or
provide consulting or advisory services to, the Company, by encouraging and
enabling eligible employees, non-employee Directors, consultants, and advisors
to acquire proprietary interests in the Company, and by providing the
participating employees, non-employee Directors, consultants, and advisors with
an additional incentive to promote the success of the Company. This is
accomplished by providing for the granting of "Options", which term as used
herein includes both "Incentive Stock Options" and "Nonstatutory Stock Options"
(as hereinafter defined) to employees, non-employee Directors, consultants, and
advisors.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company (the "Board of Directors") or by a committee (the
"Committee") chosen by the Board of Directors. Except as herein specifically
provided, the interpretation and construction by the Board of Directors or the
Committee of any provision of the Plan or of any Option granted under it shall
be final and conclusive. The receipt of Options by Directors, or any members of
the Committee, shall not preclude their vote on any matters in connection with
the administration or interpretation of the Plan.
3. SHARES SUBJECT TO THE PLAN. The stock subject to Options granted under
the Plan shall be shares of the Company's Common Stock, par value $.0001 per
share (the "Common Stock"), whether authorized but unissued or held in the
Company's treasury, or shares purchased from stockholders expressly for use
under the Plan. The maximum number of shares of Common Stock which may be issued
pursuant to Options granted under the Plan shall not exceed in the aggregate
seven million five hundred thousand (7,500,000) shares, plus such number of
Common Stock shares issuable upon the exercise of Reload Options (as hereinafter
defined) granted under the Plan, subject to adjustment in accordance with the
provisions of Section 12 hereof. The Company shall at all times while the Plan
is in force reserve such number of shares of Common Stock as will be sufficient
to satisfy the requirements of all outstanding Options granted under the Plan.
In the event any Option granted under the Plan shall expire or terminate for any
reason without having been exercised in full or shall cease for any reason to be
exercisable in whole or in part, the un-purchased shares subject thereto shall
again be available for Options under the Plan.
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4. PARTICIPATION. The class of individual or entity that shall be eligible
to receive Options under the Plan shall be (a) with respect to Incentive Stock
Options described in Section 6 hereof, all employees (including officers) of
either the Company or any subsidiary corporation of the Company, and (b) with
respect to Nonstatutory Stock Options described in Section 7 hereof, all
employees (including officers) and non-employee Directors of, or consultants and
advisors to, either the Company or any subsidiary corporation of the Company;
provided, however, that Nonstatutory Stock Options shall not be granted to any
such consultants and advisors unless (i) bona fide services have been or are to
be rendered by such consultant or advisor and (ii) such services are not in
connection with the offer or sale of securities in a capital raising
transaction. For purposes of the Plan, for an entity to be an eligible entity,
it must be included in the definition of "employee" for purposes of a Form S-8
Registration Statement filed under the Securities Act of 1933, as amended (the
"Act"). The Board of Directors or the Committee, in its sole discretion, but
subject to the provisions of the Plan, shall determine the employees and
non-employee Directors of, and the consultants and advisors to, the Company and
its subsidiary corporations to whom Options shall be granted, and the number of
shares to be covered by each Option, taking into account the nature of the
employment or services rendered by the individuals or entities being considered,
their annual compensation, their present and potential contributions to the
success of the Company, and such other factors as the Board of Directors or the
Committee may deem relevant.
5. STOCK OPTION AGREEMENT. Each Option granted under the Plan shall be
authorized by the Board of Directors or the Committee, and shall be evidenced by
a Stock Option Agreement which shall be executed by the Company and by the
individual or entity to whom such Option is granted. The Stock Option Agreement
shall specify the number of shares of Common Stock as to which any Option is
granted, the period during which the Option is exercisable, the option price per
share thereof, and such other terms and provisions not inconsistent with this
Plan.
6. INCENTIVE STOCK OPTIONS. The Board of Directors or the Committee may
grant Options under the Plan, which Options are intended to meet the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), and which are subject to the following terms and conditions and
any other terms and conditions as may at any time be required by Section 422 of
the Code (referred to herein as an "Incentive Stock Option"):
(a) No Incentive Stock Option shall be granted to individuals other
than employees of the Company or of a subsidiary corporation of the Company;
(b) Each Incentive Stock Option under the Plan must be granted prior
to the date which is ten (10) years from the date the Plan initially was adopted
by the Board of Directors of the Company;
(c) The option price of the shares of Common Stock subject to any
Incentive Stock Option shall not be less than the fair market value of the
Common Stock at the time such Incentive Stock Option is granted; provided,
however, if an Incentive Stock Option is granted to an individual who owns, at
the time the Incentive Stock Option is granted, more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company or of a
parent or subsidiary corporation of the Company (a "Principal Stockholder"), the
option price of the shares subject to the Incentive Stock Option shall be at
least one hundred ten percent (110%) of the fair market value of the Common
Stock at the time the Incentive Stock Option is granted;
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(d) No Incentive Stock Option granted under the Plan shall be
exercisable after the expiration of ten (10) years from the date of its grant.
However, if an Incentive Stock Option is granted to a Principal Stockholder,
such Incentive Stock Option shall not be exercisable after the expiration of
five (5) years from the date of its grant. Every Incentive Stock Option granted
under the Plan shall be subject to earlier termination as expressly provided in
Section 12 hereof;
(e) For purposes of determining stock ownership under this Section
6, the attribution rules of Section 424(d) of the Code shall apply; and
(f) For purposes of the Plan, and except as otherwise provided
herein, fair market value shall be determined by the Board of Directors or the
Committee. If the Common Stock is listed on a national securities exchange or
traded on the over-the-counter market, fair market value shall be the closing
selling price or, if not available, the closing bid price or, if not available,
the high bid price of the Common Stock quoted on such exchange, or on the
over-the-counter market as reported by The NASDAQ Stock Market ("NASDAQ") or, if
the Common Stock is not listed on NASDAQ, then by the National Quotation Bureau,
Incorporated, as the case may be, on the day immediately preceding the day on
which the Option is granted or exercised, as the case may be, or, if there is no
selling or bid price on that day, the closing selling price, closing bid price,
or high bid price on the most recent day which precedes that day and for which
such prices are available.
7. NONSTATUTORY STOCK OPTIONS. The Board of Directors or the Committee may
grant Options under the Plan which are not intended to meet the requirements of
Section 422 of the Code, as well as Options which are intended to meet the
requirements of Section 422 of the Code but the terms of which provide that they
will not be treated as Incentive Stock Options (referred to herein as a
"Nonstatutory Stock Options"). Nonstatutory Stock Options which are not intended
to meet those requirements shall be subject to the following terms and
conditions:
(a) A Nonstatutory Stock Option may be granted to any individual or
entity eligible to receive an Option under the Plan pursuant to Section 4(b)
hereof;
(b) The option price of the shares of Common Stock subject to a
Nonstatutory Stock Option shall be determined by the Board of Directors or the
Committee, in its sole discretion, at the time of the grant of the Nonstatutory
Stock Option; provided, however, the option price shall not be less than one
hundred percent (100%) of the fair market value of a share of Common Stock on
the date of grant. For purposes of this Section 7(b), fair market value shall
mean, if the Common Stock is publicly traded, the closing trading price on the
day preceding the date of the grant; and
(c) A Nonstatutory Stock Option granted under the Plan may be of
such duration as shall be determined by the Board of Directors or the Committee
(subject to earlier termination as expressly provided in Section 11 hereof).
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8. RELOAD FEATURE. The Board of Directors or the Committee may grant
Options with a reload feature. A reload feature shall only apply when the option
price is paid by delivery of Common Stock (as set forth in Section 13(b)(ii)).
The Stock Option Agreement for the Options containing the reload feature shall
provide that the Option holder shall receive, contemporaneously with the payment
of the option price in shares of Common Stock, a reload stock option (the
"Reload Option") to purchase that number of shares of Common Stock equal to the
sum of (i) the number of shares of Common Stock used to exercise the Option, and
(ii) with respect to Nonstatutory Stock Options, the number of shares of Common
Stock used to satisfy any tax withholding requirement incident to the exercise
of such Nonstatutory Stock Option. The terms of the Plan applicable to the
Option shall be equally applicable to the Reload Option with the following
exceptions: (i) the option price per share of Common Stock deliverable upon the
exercise of the Reload Option, (A) in the case of a Reload Option which is an
Incentive Stock Option being granted to a Principal Stockholder, shall be one
hundred ten percent (110%) of the fair market value of a share of Common Stock
on the date of grant of the Reload Option, and (B) in the case of a Reload
Option which is an Incentive Stock Option being granted to a person other than a
Principal Stockholder or is a Nonstatutory Stock Option, shall be the fair
market value of a share of Common Stock on the date of grant of the Reload
Option; and (ii) the term of the Reload Option shall be equal to the remaining
option term of the Option (including a Reload Option) which gave rise to the
Reload Option. The Reload Option shall be evidenced by an appropriate amendment
to the Stock Option Agreement for the Option which gave rise to the Reload
Option. In the event the exercise price of an Option containing a reload feature
is paid by check and not in shares of Common Stock, the reload feature shall
have no application with respect to such exercise.
9. RIGHTS OF OPTION HOLDERS. The holder of any Option granted under the
Plan shall have none of the rights of a stockholder with respect to the stock
covered by his Option until such stock shall be transferred to him upon the
exercise of his Option and payment for the respective shares.
10. TRANSFERABILITY. No Option granted under the Plan shall be
transferable by the individual or entity to whom it was granted otherwise than
by will or the laws of descent and distribution, or other operation of law, and,
during the lifetime of such individual, shall not be exercisable by any other
person, but only by the optionee.
11. TERMINATION OF EMPLOYMENT OR DEATH.
(a) Subject to the terms of the Stock Option Agreement, if the
employment of an employee by, or the services of a non-employee Director for, or
consultant or advisor to, the Company or a subsidiary corporation of the Company
shall be terminated for cause or voluntarily by the employee, non-employee
Director, consultant, or advisor, then his or its Option shall expire forthwith.
Subject to the terms of the Stock Option Agreement, and except as provided in
subsections (b) and (c) of this Section 11, if such employment or services shall
terminate for any other reason, then such Option may be exercised at any time
within three (3) months after
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such termination, subject to the provisions of subsection (d) of this Section
11. For purposes of the Plan, the retirement of an individual either pursuant to
a pension or retirement plan adopted by the Company or at the normal retirement
date prescribed from time to time by the Company shall be deemed to be a
termination of such individual's employment other than voluntarily or for cause.
For purposes of this subsection (a), an employee, non-employee Director,
consultant, or advisor who leaves the employ or services of the Company to
become an employee or non-employee Director of, or a consultant or advisor to, a
subsidiary corporation of the Company or a corporation (or subsidiary or parent
corporation of the Company) which has assumed the Option of the Company as a
result of a corporate reorganization or the like shall not be considered to have
terminated his employment or services.
(b) Subject to the terms of the Stock Option Agreement, if the
holder of an Option under the Plan dies (i) while employed by, or while serving
as a non-employee Director for or a consultant or advisor to, the Company or a
subsidiary corporation of the Company, or (ii) within three (3) months after the
termination of his employment or services other than voluntarily by the employee
or non-employee Director, consultant or advisor, or for cause, then such Option
may, subject to the provisions of subsection (d) of this Section 11, be
exercised by the estate of the employee or non-employee Director, consultant or
advisor, or by a person who acquired the right to exercise such Option by
bequest or inheritance or by reason of the death of such employee or
non-employee Director, consultant or advisor at any time within one (1) year
after such death.
(c) Subject to the terms of the Stock Option Agreement, if the
holder of an Option under the Plan ceases employment or services because of
permanent and total disability [within the meaning of Section 22(e)(3) of the
Code] while employed by, or while serving as a non-employee Director for or
consultant or advisor to, the Company or a subsidiary corporation of the
Company, then such Option may, subject to the provisions of subsection (d) of
this Section 11, be exercised at any time within one (1) year after his
termination of employment, termination of Directorship or termination of
consulting or advisory services, as the case may be, due to the disability.
(d) An Option may not be exercised pursuant to this Section 11
except to the extent that the holder was entitled to exercise the Option at the
time of termination of employment, termination of Directorship, termination of
consulting or advisory services, or death, and in any event may not be exercised
after the expiration of the Option, except as provided herein.
(e) For purposes of this Section 11, the employment relationship of
an employee of the Company or of a subsidiary corporation of the Company will be
treated as continuing intact while he is on military or sick leave or other bona
fide leave of absence (such as temporary employment by the Government) if such
leave does not exceed ninety (90) days, or, if longer, so long as his right to
reemployment is guaranteed either by statute or by contract.
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12. EXERCISE OF OPTIONS.
(a) Unless otherwise provided in the Stock Option Agreement, any
Option granted under the Plan shall be exercisable in whole at any time, or in
part from time to time, prior to expiration. The Board of Directors or the
Committee, in its absolute discretion, may provide in any Stock Option Agreement
that the exercise of any Options granted under the Plan shall be subject (i) to
such condition or conditions as it may impose, including, but not limited to, a
condition that the holder thereof remain in the employ or service of, or
continue to provide consulting or advisory services to, the Company or a
subsidiary corporation of the Company for such period or periods from the date
of grant of the Option as the Board of Directors or the Committee, in its
absolute discretion, shall determine; and (ii) to such limitations as it may
impose, including, but not limited to, a limitation that the aggregate fair
market value of the Common Stock with respect to which Incentive Stock Options
are exercisable for the first time by any employee during any calendar year
(under all plans of the Company and its parent and subsidiary corporations)
shall not exceed one hundred thousand dollars ($100,000). In addition, in the
event that, under any Stock Option Agreement, the aggregate fair market value of
the Common Stock with respect to which Incentive Stock Options are exercisable
for the first time by any employee during any calendar year (under all plans of
the Company and its parent and subsidiary corporations) exceeds one hundred
thousand dollars ($100,000), the Board of Directors or the Committee may, when
shares are transferred upon exercise of such Options, designate those shares
which shall be treated as transferred upon exercise of an Incentive Stock Option
and those shares which shall be treated as transferred upon exercise of a
Nonstatutory Stock Option.
(b) An Option granted under the Plan shall be exercised by the
delivery by the holder thereof to the Company at its principal office (attention
of the Secretary) of written notice of the number of shares with respect to
which the Option is being exercised. Such notice shall be accompanied, or
followed within ten (10) days of delivery thereof, by payment of the full option
price of such shares, and payment of such option price shall be made by the
holder's delivery of (i) his check payable to the order of the Company; (ii)
previously acquired Common Stock, the fair market value of which shall be
determined as of the date of exercise; (iii) by "cash-less" exercise, if
cash-less exercise is otherwise permitted by the Stock Option Agreement; or (iv)
by the holder's delivery of any combination of the foregoing (i), (ii) and
(iii).
13. ADJUSTMENT UPON CHANGE IN CAPITALIZATION.
(a) In the event that the outstanding Common Stock is hereafter
changed by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares, reverse split, stock
dividend or the like, an appropriate adjustment shall be made by the Board of
Directors or the Committee in the aggregate number of shares available under the
Plan, in the number of shares and option price per share subject to outstanding
Options, and in any limitation on exerciseability referred to in Section
12(a)(ii) hereof which is set forth in outstanding Incentive Stock Options. If
the Company shall be reorganized, consolidated, or merged with another
corporation, the holder of an Option shall be entitled to receive, upon the
exercise of his Option, the same number and kind of
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shares of stock or the same amount of property, cash or securities as he would
have been entitled to receive upon the happening of any such corporate event as
if he had been, immediately prior to such event, the holder of the number of
shares covered by his Option; provided, however, that, in such event, the Board
of Directors or the Committee shall have the discretionary power to take any
action necessary or appropriate to prevent any Incentive Stock Option granted
hereunder which is intended to be an "incentive stock option" from being
disqualified as such under the then existing provisions of the Code or any law
amendatory thereof or supplemental thereto.
(b) Any adjustment in the number of shares shall apply
proportionately to only the unexercised portion of the Option granted hereunder.
If fractions of a share would result from any such adjustment, the adjustment
shall be revised to the next lower whole number of shares.
14. FURTHER CONDITIONS OF EXERCISE.
(a) Unless prior to the exercise of the Option the shares issuable
upon such exercise have been registered with the Securities and Exchange
Commission pursuant to the Act, the notice of exercise shall be accompanied by a
representation or agreement of the person or estate exercising the Option to the
Company to the effect that such shares are being acquired for investment
purposes and not with a view to the further distribution thereof, and such other
documentation as may be required by the Company, unless, in the opinion of
counsel to the Company, such representation, agreement or documentation is not
necessary to comply with the Act.
(b) The Company shall not be obligated to deliver any Common Stock
until it has been listed on each securities exchange or market on which the
Common Stock may then be listed or until there has been qualification under or
compliance with such federal or state laws, rules or regulations as the Company
may deem applicable. The Company shall use reasonable efforts to obtain such
listing, qualification, and compliance.
15. EFFECTIVENESS OF THE PLAN.The Plan shall become operative and in
effect on such date as shall be fixed by the Board of Directors of the Company,
in its sole discretion, following approval by a vote of the majority of the
holders of the outstanding voting common shares of the Company.
16. TERMINATION, MODIFICATION AND AMENDMENT.
(a) The Plan (but not the Options granted pursuant to the Plan)
shall terminate on a date within ten (10) years from the date of its adoption by
the Board of Directors of the Company, or sooner as hereinafter provided, and no
Option shall be granted after termination of the Plan.
(b) The Plan may, from time to time, be terminated, modified, or
amended by the affirmative vote of the holders of a majority of the outstanding
shares of capital stock of the Company present at a meeting of shareholders and
entitled to vote thereon (or, in the case of action by written consent, a
majority of the outstanding shares of capital stock of the Company entitled to
vote thereon).
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(c) The Board of Directors may at any time, on or before the
termination date referred to in Section 16(a) hereof, terminate the Plan, or
from time to time make such modifications or amendments to the Plan as it may
deem advisable; provided, however, that the Board of Directors shall not,
without approval by the affirmative vote of the holders of a majority of the
outstanding shares of capital stock of the Company present at a meeting of
shareholders and entitled to vote thereon (or, in the case of action by written
consent, a majority of the outstanding shares of capital stock of the Company
entitled to vote thereon), increase (except as otherwise provided by Section 13
hereof) the maximum number of shares as to which Incentive Stock Options may be
granted hereunder, change the designation of the employees or class of employees
eligible to receive Incentive Stock Options, or make any other change which
would prevent any Incentive Stock Option granted hereunder which is intended to
be an "incentive stock option" from disqualifying as such under the then
existing provisions of the Code or any law amendatory thereof or supplemental
thereto.
(d) No termination, modification, or amendment of the Plan may,
without the consent of the individual or entity to whom any Option shall have
been granted, adversely affect any rights previously conferred by such Option.
17. NOT A CONTRACT OF EMPLOYMENT. Nothing contained in the Plan or in any
Stock Option Agreement executed pursuant hereto shall be deemed to confer upon
any individual or entity to whom an Option is or may be granted hereunder any
right to remain in the employ or service of the Company or a subsidiary
corporation of the Company or any entitlement to any remuneration or other
benefit pursuant to any consulting or advisory arrangement.
18. USE OF PROCEEDS. The proceeds from the sale of shares pursuant to
Options granted under the Plan shall constitute general funds of the Company.
19. INDEMNIFICATION OF BOARD OF DIRECTORS OR COMMITTEE. In addition to
such other rights of indemnification as they may have, the members of the Board
of Directors or the Committee, as the case may be, shall be indemnified by the
Company to the extent permitted under applicable law against all costs and
expenses reasonably incurred by them in connection with any action, suit, or
proceeding to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any rights
granted thereunder and against all amounts paid by them in settlement thereof or
paid by them in satisfaction of a judgment of any such action, suit or
proceeding, except a judgment based upon a finding of bad faith. Upon the
institution of any such action, suit, or proceeding, the member or members of
the Board of Directors or the Committee, as the case may be, shall notify the
Company in writing, giving the Company an opportunity at its own cost to defend
the same before such member or members undertake to defend the same on his or
their own behalf.
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20. DEFINITIONS. For purposes of the Plan, the terms "parent corporation"
and "subsidiary corporation" shall have the meanings set forth in Sections
424(e) and 424(f) of the Code, respectively, and the masculine shall include the
feminine and the neuter as the context requires.
21. GOVERNING LAW. The Plan shall be governed by, and all questions
arising hereunder shall be determined in accordance with, the laws of the State
of New York.
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