EXHIBIT 10.1
PHANTOM FIBER CORPORATION
2005 STOCK OPTION, SAR AND STOCK BONUS CONSULTANT PLAN
ARTICLE 1
GENERAL PROVISIONS
1.1 PURPOSE. The purpose of the Phantom Fiber Corporation 2005 Stock Option, SAR
and Stock Bonus Consultant Plan (the "Plan") shall be to retain and compensate
independent consultants (the "Participants") of Phantom Fiber Corporation (the
"Company") and its subsidiaries, if any, by way of granting (i) non-qualified
stock options ("Stock Options"), (ii) non-qualified stock options with stock
appreciation rights attached ("Stock Option SAR's"), and (iii) stock bonuses.
Directors, officers and employees of the Company are not eligible to participate
in this Plan. In addition, no person shall be a Participant in this Plan in
consideration for consulting or other services related to capital raising
activities for the Company or related to any stock promotion activities for the
Company. For the purpose of this Plan, Stock Option SAR's are sometimes
collectively herein called "SAR's;" and Stock Options. The Stock Options to be
granted are intended to be "non-qualified stock options" as described in
Sections 83 and 421 of the Code. Furthermore, under the Plan, the terms "parent"
and "subsidiary" shall have the same meaning as set forth in Subsections (e) and
(f) of Section 425 of the Code unless the context herein clearly indicates to
the contrary.
1.2 GENERAL. The terms and provisions of this Article I shall be applicable to
Stock Options and SAR's unless the context herein clearly indicates to the
contrary.
1.3 ADMINISTRATION OF THE PLAN. The Plan shall be administered by the Stock Plan
Committee (the "Committee") appointed by the Board of Directors (the "Board") of
the Company and consisting of at least one member from the Board. The members of
the Committee shall serve at the pleasure of the Board. The Committee shall have
the power where consistent with the general purpose and intent of the Plan to
(i) modify the requirements of the Plan to conform with the law or to meet
special circumstances not anticipated or covered in the Plan, (ii) suspend or
discontinue the Plan, (iii) establish policies and (iv) adopt rules and
regulations and prescribe forms for carrying out the purposes and provisions of
the Plan including the form of any "stock option agreements" ("Stock Option
Agreements"). Unless otherwise provided in the Plan, the Committee shall have
the authority to interpret and construe the Plan, and determine all questions
arising under the Plan and any agreement made pursuant to the Plan. Any
interpretation, decision or determination made by the Committee shall be final,
binding and conclusive. A majority of the Committee shall constitute a quorum,
and an act of the majority of the members present at any meeting at which a
quorum is present shall be the act of the Committee.
1.4 SHARES SUBJECT TO THE PLAN. Shares of stock ("Stock") covered by Stock
Options, SAR's, and stock bonuses shall consist of 17,500,000 shares of the
Common Stock, $.001 par value, of the Company. Either authorized and unissued
shares or treasury shares may be delivered pursuant to the Plan. If any Option
for shares of Stock, granted to a Participant lapses, or is otherwise
terminated, the Committee may grant Stock Options, SAR's and stock bonuses for
such shares of Stock to other Participants. However, neither Stock Options nor
SAR's shall be granted again for shares of Stock which have been subject to
SAR's which are surrendered in exchange for cash or shares of Stock issued
pursuant to the exercise of SAR's as provided in Article II hereof.
1.5 PARTICIPATION IN THE PLAN. The Committee shall determine from time to time
those Participants who are to be granted Stock Options, SAR's and stock bonuses
and the number of shares of Stock covered thereby.
1.6 DETERMINATION OF FAIR MARKET VALUE. As used in the Plan, "fair market value"
shall mean on any particular day (i) if the Stock is listed or admitted for
trading on any national securities exchange or the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotation System, the
last sale price, or if no sale occurred, the mean between the closing high bid
and low asked quotations, for such day of the Stock on the principal securities
exchange on which shares of Stock are listed, (ii) if Stock is not traded on any
national securities exchange but is quoted on the National Association of
Securities Dealers, Inc., Automated Quotation System, the NASD electronic
bulletin board, or any similar system of automated dissemination of quotations
or securities prices in common use, the mean between the closing high bid and
low asked quotations for such day of the Stock on such system, (iii) if neither
clause (i) nor (ii) is applicable, the mean between the high bid and low asked
quotations for the Stock as reported by the National Quotation Bureau,
Incorporated if at least two securities dealers have inserted both bid and asked
quotations for shares of the Stock on at least five (5) of the ten (10)
preceding days, (iv) in lieu of the above, if actual transactions in the shares
of Stock are reported on a consolidated transaction reporting system, the last
sale price of the shares of Stock on such system or, (v) if none of the
conditions set forth above is met, the fair market value of shares of Stock as
determined by the Board. Provided, for purposes of determining "fair market
value" of the Common Stock of the Company, such value shall be determined
without regard to any restriction other than a restriction which will never
lapse.
1.7 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The aggregate number of shares
of Stock under Stock Options granted under the Plan, the Option Price and the
total number of shares of Stock which may be purchased by a Participant on
exercise of a Stock Option shall be approximately adjusted by the Committee to
reflect any recapitalization, stock split, merger, consolidation,
reorganization, combination, liquidation, stock dividend or similar transaction
involving the Company except that a dissolution or liquidation of the Company or
a merger or consolidation in which the Company is not the surviving or the
resulting corporation, shall cause the Plan and any Stock Option, or SAR granted
thereunder, to terminate upon the effective date of such dissolution,
liquidation, merger or consolidation. Provided, that for the purposes of this
Section 1.7, if any merger, consolidation or combination occurs in which the
Company is not the surviving corporation and is the result of a mere change in
the identity, form or place of organization of the Company accomplished in
accordance with Section 368(a)(1)(F) of the Code, then, such event will not
cause a termination. Appropriate adjustment may also be made by the Committee in
the terms of a SAR to reflect any of the foregoing changes.
1.8 AMENDMENT AND TERMINATION OF THE PLAN. The Plan shall terminate at midnight,
January 30, 2007, but prior thereto may be altered, changed, modified, amended
or terminated by written amendment approved by the Board. Provided, that no
action of the Board may, without the approval of the Board of Directors,
increase the aggregate number of shares of Stock which may be purchased under
Stock Options, SAR's or stock bonuses granted under the Plan; or withdraw the
administration of the Plan from the Committee. Except as provided in this
Article I, no amendment, modification or termination of the Plan shall in any
manner adversely affect any Stock Option or SAR theretofore granted under the
Plan without the consent of the affected Participant.
1.9 EFFECTIVE DATE. The Plan shall be effective January 31, 2005.
1.10 SECURITIES LAW REQUIREMENTS. The Company shall have no liability to issue
or transfer any Stock hereunder unless the issuance of such shares would comply
with any applicable federal or state securities laws or any other applicable law
or regulations thereunder.
1.11 SEPARATE CERTIFICATES. Separate certificates representing the Common Stock
of the Company to be delivered to a Participant upon the exercise of any Stock
Option, or SAR will be issued to such Participant.
1.12 PAYMENT FOR STOCK; RECEIPT OF STOCK OR CASH IN LIEU OF PAYMENT.
(A) PAYMENT FOR STOCK. Payment for shares of Stock acquired under this
Plan shall be made in full and in cash or check made payable to the Company.
Provided, payment for shares of Stock purchased under this Plan may also be made
in Common Stock of the Company or a combination of cash and Common Stock of the
Company in the event that the purchase of shares is pursuant to the exercise of
rights under an SAR attached to the Option and which is exercisable on the date
of exercise of the Option. In the event that Common Stock of the Company is
utilized in consideration for the purchase of Stock upon the exercise of a Stock
Option, then, such Common Stock shall be valued at the "fair market value" as
defined in Section 1.6 of the Plan.
(B) RECEIPT OF STOCK OR CASH IN LIEU OF PAYMENT. Furthermore, a
Participant may exercise an Option without payment of the Option Price in the
event that the exercise is pursuant to rights under an SAR attached to the
Option and which is exercisable on the date of exercise of the Option. In the
event an Option with an SAR attached is exercised without payment of the Option
Price, the Participant shall be entitled to receive either (i) a cash payment
from the Company equal to the excess of the total fair market value of the
shares of Stock on such date as determined with respect to which the Option is
being exercised over the total cash Option Price of such shares of Stock as set
forth in the Option or (ii) that number of whole shares of Stock as is
determined by dividing (A) an amount equal to the fair market value per share of
Stock on the date of exercise into (B) an amount equal to the excess of the
total fair market value of the shares of Stock on such date with respect to
which the Option is being exercised over the total cash Option Price of such
shares of Stock as set forth in the Option, and fractional shares will be
rounded to the next lowest number and the Participant will receive cash in lieu
thereof.
1.13 INCURRENCE OF DISABILITY. A Participant shall be deemed to have terminated
consulting and incurred a disability ("Disability") if such Participant suffers
a physical or mental condition which, in the judgment of the Committee, totally
and permanently prevents a Participant from engaging in any substantial gainful
consulting with the Company or a subsidiary.
1.14 GRANTS OF OPTIONS AND STOCK OPTION AGREEMENT. Each Stock Option and/or SAR
granted under this Plan shall be evidenced by the minutes of a meeting of the
Committee or by the written consent of the Committee and by a written Stock
Option Agreement effective on the date of grant and executed by the Company and
the Participant. Each Option granted hereunder shall contain such terms,
restrictions and conditions as the Committee may determine, which terms,
restrictions and conditions may or may not be the same in each case.
1.15 USE OF PROCEEDS. The proceeds received by the Company from the sale of
Stock pursuant to the exercise of Options granted under the Plan shall be added
to the Company's general funds and used for general corporate purposes.
1.16 NON-TRANSFERABILITY OF OPTIONS. Except as otherwise herein provided, any
Option or SAR granted shall not be transferable otherwise than by will or the
laws of descent and distribution, and the Option may be exercised, during the
lifetime of the Participant, only by him or her. More particularly (but without
limiting the generality of the foregoing), the Option and/or SAR may not be
assigned, transferred (except as provided above), pledged or hypothecated in any
way, shall not be assignable by operation of law and shall not be subject to
execution, attachment, or similar process. Any attempted assignment, transfer,
pledge, hypothecation, or other disposition of the Option and/or SAR contrary to
the provisions hereof shall be null and void and without effect.
1.17 ADDITIONAL DOCUMENTS ON DEATH OF PARTICIPANT. No transfer of an Option
and/or SAR by the Participant by will or the laws of descent and distribution
shall be effective to bind the Company unless the Company shall have been
furnished with written notice and an unauthenticated copy of the will and/or
such other evidence as the Committee may deem necessary to establish the
validity of the transfer and the acceptance by the successor to the Option
and/or SAR of the terms and conditions of such Option and/or SAR.
1.18 CHANGES IN CONSULTANT RELATIONSHIPS. So long as the Participant shall
continue to be a consultant of the Company or any one of its subsidiaries, any
Option granted to him or her shall not be affected by any change of duties or
position. Nothing in the Plan or in any Stock Option Agreement which relates to
the Plan shall confer upon any Participant any right to continue as a consultant
of the Company or of any of its subsidiaries, or interfere in any way with the
right of the Company or any of its subsidiaries to terminate the consulting
arrangement at any time.
1.19 SHAREHOLDER RIGHTS. No Participant shall have a right as a shareholder with
respect to any shares of Stock subject to an Option prior to the purchase of
such shares of Stock by exercise of the Option.
1.20 RIGHT TO EXERCISE UPON COMPANY CEASING TO EXIST. Where dissolution or
liquidation of the Company or any merger consolidation or combination in which
the Company is not the surviving corporation occurs, the Participant shall have
the right immediately prior to such dissolution, liquidation, merger,
consolidation or combination, as the case may be, to exercise, in whole or in
part, his or her then remaining Options whether or not then exercisable, but
limited to that number of shares that can be acquired without causing the
Participant to have an "excess parachute payment" as determined under Section
280G of the Code determined by taking into account all of Participant's
"parachute payments" determined under Section 280G of the Code. Provided, the
foregoing notwithstanding, after the Participant has been afforded the
opportunity to exercise his or her then remaining Options as provided in this
Section 1.21, and to the extent such Options are not timely exercised as
provided in this Section 1.21, then, the terms and provisions of this Plan and
any Stock Option Agreement will thereafter continue in effect, and the
Participant will be entitled to exercise any such remaining and unexercised
Options in accordance with the terms and provisions of this Plan and such Stock
Option Agreement as such Options thereafter become exercisable. Provided
further, that for the purposes of this Section 1.21, if any merger,
consolidation or combination occurs in which the Company is not the surviving
corporation and is the result of a mere change in the identity, form, or place
of organization of the Company accomplished in accordance with Section
368(a)(1)(F) of the Code, then, such event shall not cause an acceleration of
the exercisability of any such Options granted hereunder.
1.21 ASSUMPTION OF OUTSTANDING OPTIONS AND SAR'S. To the extent permitted by the
then applicable provisions of the Code, any successor to the Company succeeding
to, or assigned the business of, the Company as the result of or in connection
with a corporate merger, consolidation, combination, reorganization or
liquidation transaction shall assume Options and SAR's outstanding under the
Plan or issue new Options and/or SAR's in place of outstanding Options and/or
SAR's under the Plan, as determined in its sole discretion.
ARTICLE II
TERMS OF STOCK OPTIONS AND EXERCISE
2.1 GENERAL TERMS.
(A) GRANT AND TERMS FOR STOCK OPTIONS. Stock Options shall be granted
by the Committee on the following terms and conditions: No Stock Option shall be
exercisable within six months from the date of grant (except as specifically
provided in Subsection 2.l(c) hereof, with regard to the death or Disability of
a Participant), nor more than five years after the date of grant. Subject to
such limitation, the Committee shall have the discretion to fix the period (the
"Option Period") during which any Stock Option may be exercised. Stock Options
granted shall not be transferable except by will or by the laws of descent and
distribution, Stock Options shall be exercisable only by the Participant while
actively retained as a consultant by the Company or a subsidiary, except that
(i) any such Stock Option granted and which is otherwise exercisable, may be
exercised by the personal representative of a deceased Participant within 12
months after the death of such Participant (but not beyond the Option Period of
such Stock Option), (ii) if a Participant terminates his position as a
consultant with the Company or a subsidiary on account of Retirement, such
Participant may exercise any Stock Option which is otherwise exercisable at any
time within three months of such date of termination and (iii) if a Participant
terminates his position as a consultant with the Company or a subsidiary on
account of incurring a Disability, such Participant may exercise any Stock
Option which is otherwise exercisable at any time within 12 months of such date
of termination. If a Participant should die during the applicable three-month or
12-month period following the date of such Participant's termination on account
of Disability, the rights of the personal representative of such deceased
Participant as such relate to any Stock Options granted to such deceased
Participant shall be governed in accordance with Subsection 2.1(a)(i) of this
Article II.
(B) OPTION PRICE. The option price ("Option Price") for shares of Stock
subject to a Stock Option shall be determined by the Committee, but in no event
shall the Option Price of Stock Options be less than 85% of the "fair market
value" of the Stock on the date of grant.
(C) ACCELERATION OF OTHERWISE UNEXERCISABLE STOCK OPTION ON DEATH,
DISABILITY OR OTHER SPECIAL CIRCUMSTANCES. The Committee, in its sole
discretion, may permit (i) a Participant who terminates his position as a
consultant due to a Disability, (ii) the personal representative of a deceased
Participant, or (iii) any other Participant who terminates his position as a
consultant upon the occurrence of special circumstances (as determined by the
Committee) to exercise and purchase (within three months of such date of
termination of consulting arrangement, or 12 months in the case of a deceased or
disabled Participant; all or any part of the shares subject to Stock Option on
the date of the Participant's Disability, death, or as the Committee otherwise
so determines, notwithstanding that all installments, if any, with respect to
such Stock Option, had not accrued on such date. Provided, such discretionary
authority of the Committee shall not be exercised with respect to any Stock
Option (or portion thereof) if the applicable six-month waiting period for
exercise had not expired except in the event of the death or disability of the
Participant when the personal representative of the deceased Participant or the
disabled Participant may, with the consent of the Committee, exercise such Stock
Option notwithstanding the fact that the applicable six-month waiting period had
not yet expired.
(D) NUMBER OF STOCK OPTIONS GRANTED. Participants may be granted more
than one Stock Option. In making any such determination, the Committee shall
obtain the advice and recommendation of the officers of the Company or a
subsidiary which have supervisory authority over such Participants. The granting
of a Stock Option under the Plan shall not affect any outstanding Stock Option
previously granted to a Participant under the Plan.
(E) NOTICE OF EXERCISE STOCK OPTION. Upon exercise of a stock option, a
Participant shall give written notice to the Secretary of the Company, or other
officer designated by the Committee, at the Company's principal executive
office. No Stock shall be issued to any Participant until the Company receives
full payment for the Stock purchased, if applicable, and any required state and
federal withholding taxes.
ARTICLE III
SAR'S
3.1 GENERAL TERMS.
(A) GRANT AND TERMS OF SAR'S. The Committee may grant SAR's to
Participants in connection with Stock Options granted under the Plan. SAR's
shall not be exercisable (i) earlier than six months from the date of grant
except as specifically provided in Subsection 3.l(b) hereof in the case of the
death or Disability of a Participant, and (ii) shall terminate at such time as
the Committee determines and shall be exercised only upon surrender of the
related Stock Option and only to the extent that the related Stock Option (or
the portion thereof as to which the SAR is exercisable) is exercised. SAR's may
be exercised only by the Participant while actively engaged as a consultant by
the Company or a subsidiary except that (i) any SAR's previously granted to a
Participant which are otherwise exercisable may be exercised, with the approval
of the Committee, by the personal representative of a deceased Participant, even
if such death should occur within six months of the date of grant (but not
beyond the expiration date of such SAR), and (ii) if a Participant terminates
his position as a consultant with the Company or a subsidiary, as the case may
be, on account of incurring a Disability, such Participant may exercise any
SAR's which are otherwise exercisable, with the approval of the Committee,
anytime within 12 months of termination by Disability. If a Participant should
die during the applicable three-month period following the applicable 12 month
period following the date of termination on account of Disability, the rights of
the personal representative of such deceased Participant as such relate to any
SAR's granted to such deceased Participant shall be governed in accordance with
(i) of the second sentence of this Subsection 3.l(a) of this Article III. The
applicable SAR shall (i) terminate upon the termination of the underlying Stock
Option, as the case may be, (ii) only be transferable at the same time and under
the same conditions as the underlying Stock Option is transferable, (iii) only
be exercised when the underlying Stock Option is exercised, and (iv) may be
exercised only if there is a positive spread between the Option Price, as
applicable and the "fair market value" of the Stock for which the SAR is
exercised.
(B) ACCELERATION OF OTHERWISE UNEXERCISABLE SAR'S UPON DEATH,
DISABILITY OR OTHER SPECIAL CIRCUMSTANCES. The Committee, in its sole
discretion, may permit (i) a Participant who terminates his position as a
consultant with the Company or a subsidiary due to a Disability, (ii) the
personal representative of such deceased Participant, or (iii) any other
Participant who terminates employment as a consultant with the Company or a
subsidiary upon the occurrence of special circumstances (as determined by the
Committee) to exercise (within 12 months in the case of a disabled or deceased
Participant) all or any part of any such SAR's previously granted to such
Participant as of the date of such Participant's Disability, death, or as the
Committee otherwise so determines, notwithstanding that all installments, if any
with respect to such SAR's, had not accrued on such date. Provided, such
discretionary authority of the Committee may not be exercised with respect to
any SAR (or portion thereof if the applicable six-month waiting period for
exercise had not expired as of such date, except (i) in the event of the
Disability of the Participant or (ii) the death of the Participant, when such
disabled Participant or the personal representative of such deceased Participant
may, with the consent of the Committee, exercise such SAR's notwithstanding the
fact that the applicable six-month waiting period had not yet expired.
(C) FORM OF PAYMENT OF SAR'S. The Participant may request the method
and combination of payment upon the exercise of a SAR; however, the Committee
has the final authority to determine whether the value of the SAR shall be paid
in cash or shares of Stock or both. Upon exercise of a SAR, the holder is
entitled to receive the excess amount of the "fair market value" of the Stock
(as of the date of exercise) for which the SAR is exercised over the Option
Price, as applicable, under the related Stock Option, as the case may be. All
applicable federal and state withholding taxes will be paid by the Participant
to the Company upon the exercise of a SAR since the excess amount described
above will be required to be included within taxable income in accordance with
Sections 61 and 83 of the Code.
Phantom Fiber Corporation
By: /s/ Jeffrey Halloran
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Jeffrey Halloran, President
Date Plan adopted and approved by the Board
of Directors: January 31, 2005