EXHIBIT 4.1
PTS, INC.
EMPLOYEE STOCK INCENTIVE PLAN FOR THE YEAR 2005
1. General Provisions.
1.1 Purpose. This Stock Incentive Plan (the "Plan") is intended to
allow designated officers and employees (all of whom are sometimes collectively
referred to herein as the "Employees," or individually as the "Employee") of
PTS, Inc., a Nevada corporation (the "Company") and its Subsidiaries (as that
term is defined below) which they may have from time to time (the Company and
such Subsidiaries are referred to herein as the "Company") to receive certain
options (the "Stock Options") to purchase common stock of the Company, par
value $0.001 per share (the "Common Stock"), and to receive grants of the
Common Stock subject to certain restrictions (the "Awards"). As used in this
Plan, the term "Subsidiary" shall mean each corporation which is a "subsidiary
corporation" of the Company within the meaning of Section 424(f) of the
Internal Revenue Code of 1986, as amended (the "Code"). The purpose of this
Plan is to provide the Employees, who make significant and extraordinary
contributions to the long-term growth and performance of the Company, with
equity-based compensation incentives, and to attract and retain the Employees.
1.2 Administration.
1.2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of, or appointed by, the Board of Directors of the Company (the
"Board"). The Committee shall select one of its members as Chairman and shall
act by vote of a majority of a quorum, or by unanimous written consent. A
majority of its members shall constitute a quorum. The Committee shall be
governed by the provisions of the Company's Bylaws and of Nevada law applicable
to the Board, except as otherwise provided herein or determined by the Board.
1.2.2 The Committee shall have full and complete authority, in its
discretion, but subject to the express provisions of this Plan (a) to approve
the Employees nominated by the management of the Company to be granted Awards
or Stock Options; (b) to determine the number of Awards or Stock Options to be
granted to an Employee; (c) to determine the time or times at which Awards or
Stock Options shall be granted; (d) to establish the terms and conditions upon
which Awards or Stock Options may be exercised; (e) to remove or adjust any
restrictions and conditions upon Awards or Stock Options; (f) to specify, at
the time of grant, provisions relating to exercisability of Stock Options and
to accelerate or otherwise modify the exercisability of any Stock Options; and
(g) to adopt such rules and regulations and to make all other determinations
deemed necessary or desirable for the administration of this Plan. All
interpretations and constructions of this Plan by the Committee, and all of its
actions hereunder, shall be binding and conclusive on all persons for all
purposes.
1.2.3 The Company hereby agrees to indemnify and hold harmless each
Committee member and each Employee, and the estate and heirs of such Committee
member or Employee, against all claims, liabilities, expenses, penalties,
damages or other pecuniary losses, including legal fees, which such Committee
member or Employee, his estate or heirs may suffer as a result of his
responsibilities, obligations or duties in connection with this Plan, to the
extent that insurance, if any, does not cover the payment of such items. No
member of the Committee or the Board shall be liable for any action or
determination made in good faith with respect to this Plan or any Award or
Stock Option granted pursuant to this Plan.
1.3 Eligibility and Participation. The Employees eligible under this
Plan shall be approved by the Committee from those Employees who, in the
opinion of the management of the Company, are in positions which enable them to
make significant contributions to the long-term performance and growth of the
Company. In selecting the Employees to whom Award or Stock Options may be
granted, consideration shall be given to factors such as employment position,
duties and responsibilities, ability, productivity, length of service, morale,
interest in the Company and recommendations of supervisors.
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1.4 Shares Subject to this Plan. The maximum number of shares of the
Common Stock that may be issued pursuant to this Plan shall be 1,300,000,000
subject to adjustment pursuant to the provisions of Paragraph 4.1. If shares
of the Common Stock awarded or issued under this Plan are reacquired by the
Company due to a forfeiture or for any other reason, such shares shall be
cancelled and thereafter shall again be available for purposes of this Plan.
If a Stock Option expires, terminates or is cancelled for any reason without
having been exercised in full, the shares of the Common Stock not purchased
thereunder shall again be available for purposes of this Plan.
2. Provisions Relating to Stock Options.
2.1 Grants of Stock Options. The Committee may grant Stock Options in
such amounts, at such times, and to the Employees nominated by the management
of the Company as the Committee, in its discretion, may determine. Stock
Options granted under this Plan shall constitute "incentive stock options"
within the meaning of Section 422 of the Code, if so designated by the
Committee on the date of grant. The Committee shall also have the discretion
to grant Stock Options which do not constitute incentive stock options, and any
such Stock Options shall be designated non-statutory stock options by the
Committee on the date of grant. The aggregate Fair Market Value (determined as
of the time an incentive stock option is granted) of the Common Stock with
respect to which incentive stock options are exercisable for the first time by
any Employee during any one calendar year (under all plans of the Company and
any parent or subsidiary of the Company) may not exceed the maximum amount
permitted under Section 422 of the Code (currently, $100,000.00). Non-
statutory stock options shall not be subject to the limitations relating to
incentive stock options contained in the preceding sentence. Each Stock Option
shall be evidenced by a written agreement (the "Option Agreement") in a form
approved by the Committee, which shall be executed on behalf of the Company and
by the Employee to whom the Stock Option is granted, and which shall be subject
to the terms and conditions of this Plan. In the discretion of the Committee,
Stock Options may include provisions (which need not be uniform), authorized by
the Committee in its discretion, that accelerate an Employee's rights to
exercise Stock Options following a "Change in Control," upon termination of the
Employee's employment by the Company without "Cause" or by the Employee for
"Good Reason," as such terms are defined in Paragraph 3.1 hereof. The holder
of a Stock Option shall not be entitled to the privileges of stock ownership as
to any shares of the Common Stock not actually issued to such holder.
2.2 Purchase Price. The purchase price (the "Exercise Price") of
shares of the Common Stock subject to each Stock Option (the "Option Shares")
shall not be less than 85 percent of the Fair Market Value of the Common Stock
on the date of the grant of the option. For an Employee holding greater than
10 percent of the total voting power of all stock of the Company, either Common
or Preferred, the Exercise Price of an incentive stock option shall be at least
110 percent of the Fair Market Value of the Common Stock on the date of the
grant of the option. As used herein, "Fair Market Value" means the mean
between the highest and lowest reported sales prices of the Common Stock on the
New York Stock Exchange Composite Tape or, if not listed on such exchange, on
any other national securities exchange on which the Common Stock is listed or
on The Nasdaq Stock Market, or, if not so listed on any other national
securities exchange or The Nasdaq Stock Market, then the average of the bid
price of the Common Stock during the last five trading days on the OTC Bulletin
Board immediately preceding the last trading day prior to the date with respect
to which the Fair Market Value is to be determined. If the Common Stock is not
then publicly traded, then the Fair Market Value of the Common Stock shall be
the book value of the Company per share as determined on the last day of March,
June, September, or December in any year closest to the date when the
determination is to be made. For the purpose of determining book value
hereunder, book value shall be determined by adding as of the applicable date
called for herein the capital, surplus, and undivided profits of the Company,
and after having deducted any reserves theretofore established; the sum of
these items shall be divided by the number of shares of the Common Stock
outstanding as of said date, and the quotient thus obtained shall represent the
book value of each share of the Common Stock of the Company.
2.3 Option Period. The Stock Option period (the "Term") shall
commence on the date of grant of the Stock Option and shall be 10 years or such
shorter period as is determined by the Committee. Each Stock Option shall
provide that it is exercisable over its term in such periodic installments as
the
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Committee may determine, subject to the provisions of Paragraph 2.4.1.
Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") exempts persons normally subject to the reporting requirements of Section
16(a) of the Exchange Act (the "Section 16 Reporting Persons") pursuant to a
qualified employee stock option plan from the normal requirement of not selling
until at least six months and one day from the date the Stock Option is
granted.
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2.4 Exercise of Options.
2.4.1 Each Stock Option may be exercised in whole or in part (but not as
to fractional shares) by delivering it for surrender or endorsement to the
Company, attention of the Corporate Secretary, at the principal office of the
Company, together with payment of the Exercise Price and an executed Notice and
Agreement of Exercise in the form prescribed by Paragraph 2.4.2. Payment may
be made (a) in cash, (b) by cashier's or certified check, (c) by surrender of
previously owned shares of the Common Stock valued pursuant to Paragraph 2.2
(if the Committee authorizes payment in stock in its discretion), (d) by
withholding from the Option Shares which would otherwise be issuable upon the
exercise of the Stock Option that number of Option Shares equal to the exercise
price of the Stock Option, if such withholding is authorized by the Committee
in its discretion, or (e) in the discretion of the Committee, by the delivery
to the Company of the optionee's promissory note secured by the Option Shares,
bearing interest at a rate sufficient to prevent the imputation of interest
under Sections 483 or 1274 of the Code, and having such other terms and
conditions as may be satisfactory to the Committee. Subject to the provisions
of this Paragraph 2.4 and Paragraph 2.5, the Employee has the right to exercise
his or her Stock Options at the rate of at least 20 percent per year over five
years from the date the Stock Option is granted.
2.4.2 Exercise of each Stock Option is conditioned upon the agreement of
the Employee to the terms and conditions of this Plan and of such Stock Option
as evidenced by the Employee's execution and delivery of a Notice and Agreement
of Exercise in a form to be determined by the Committee in its discretion.
Such Notice and Agreement of Exercise shall set forth the agreement of the
Employee that (a) no Option Shares will be sold or otherwise distributed in
violation of the Securities Act of 1933, as amended (the "Securities Act") or
any other applicable federal or state securities laws, (b) each Option Share
certificate may be imprinted with legends reflecting any applicable federal and
state securities law restrictions and conditions, (c) the Company may comply
with said securities law restrictions and issue "stop transfer" instructions to
its Transfer Agent and Registrar without liability, (d) if the Employee is a
Section 16 Reporting Person, the Employee will furnish to the Company a copy of
each Form 4 or Form 5 filed by said Employee and will timely file all reports
required under federal securities laws, and (e) the Employee will report all
sales of Option Shares to the Company in writing on a form prescribed by the
Company.
2.4.3 No Stock Option shall be exercisable unless and until any
applicable registration or qualification requirements of federal and state
securities laws, and all other legal requirements, have been fully complied
with. At no time shall the total number of securities issuable upon exercise
of all outstanding options under this Plan, and the total number of securities
provided for under any bonus or similar plan or agreement of the Company exceed
a number of securities which is equal to 30 percent of the then outstanding
securities of the Company, unless a percentage higher than 30 percent is
approved by at least two-thirds of the outstanding securities entitled to vote.
The Company will use reasonable efforts to maintain the effectiveness of a
Registration Statement under the Securities Act for the issuance of Stock
Options and shares acquired thereunder, but there may be times when no such
Registration Statement will be currently effective. The exercise of Stock
Options may be temporarily suspended without liability to the Company during
times when no such Registration Statement is currently effective, or during
times when, in the reasonable opinion of the Committee, such suspension is
necessary to preclude violation of any requirements of applicable law or
regulatory bodies having jurisdiction over the Company. If any Stock Option
would expire for any reason except the end of its term during such a
suspension, then if exercise of such Stock Option is duly tendered before its
expiration, such Stock Option shall be exercisable and exercised (unless the
attempted exercise is withdrawn) as of the first day after the end of such
suspension. The Company shall have no obligation to file any Registration
Statement covering resales of Option Shares.
2.5 Continuous Employment. Except as provided in Paragraph 2.7 below,
an Employee may not exercise a Stock Option unless from the date of grant to
the date of exercise the Employee remains continuously in the employ of the
Company. For purposes of this Paragraph 2.5, the period of continuous
employment of an Employee with the Company shall be deemed to include (without
extending the term of
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the Stock Option) any period during which the Employee is on leave of
absence with the consent of the Company, provided that such leave of absence
shall not exceed three months and that the Employee returns to the employ of
the Company at the expiration of such leave of absence. If the Employee fails
to return to the employ of the Company at the expiration of such leave of
absence, the Employee's employment with the Company shall be deemed terminated
as of the date such leave of absence commenced. The continuous employment of
an Employee with the Company shall also be deemed to include any period during
which the Employee is a member of the Armed Forces of the United States,
provided that the Employee returns to the employ of the Company within 90 days
(or such longer period as may be prescribed by law) from the date the Employee
first becomes entitled to a discharge from military service. If an Employee
does not return to the employ of the Company within 90 days (or such longer
period as may be prescribed by law) from the date the Employee first becomes
entitled to a discharge from military service, the Employee's employment with
the Company shall be deemed to have terminated as of the date the Employee's
military service ended.
2.6 Restrictions on Transfer. Each Stock Option granted under this
Plan shall be transferable only by will or the laws of descent and
distribution. No interest of any Employee under this Plan shall be subject to
attachment, execution, garnishment, sequestration, the laws of bankruptcy or
any other legal or equitable process. Each Stock Option granted under this
Plan shall be exercisable during an Employee's lifetime only by the Employee or
by the Employee's legal representative.
2.7 Termination of Employment.
2.7.1 Upon an Employee's Retirement, Disability (both terms being
defined below) or death, (a) all Stock Options to the extent then presently
exercisable shall remain in full force and effect and may be exercised pursuant
to the provisions thereof, and (b) unless otherwise provided by the Committee,
all Stock Options to the extent not then presently exercisable by the Employee
shall terminate as of the date of such termination of employment and shall not
be exercisable thereafter. Unless employment is terminated for cause, as
defined by applicable law, the right to exercise in the event of termination of
employment, to the extent that the optionee is entitled to exercise on the date
the employment terminates as follows:
(i) At least six months from the date of termination if
termination was caused by death or disability.
(ii) At least 30 days from the date of termination if
termination was caused by other than death or disability.
2.7.2 Upon the termination of the employment of an Employee for any
reason other than those specifically set forth in Paragraph 2.7.1, (a) all
Stock Options to the extent then presently exercisable by the Employee shall
remain exercisable only for a period of 90 days after the date of such
termination of employment (except that the 90 day period shall be extended to
12 months if the Employee shall die during such 90 day period), and may be
exercised pursuant to the provisions thereof, including expiration at the end
of the fixed term thereof, and (b) unless otherwise provided by the Committee,
all Stock Options to the extent not then presently exercisable by the Employee
shall terminate as of the date of such termination of employment and shall not
be exercisable thereafter.
2.7.3 For purposes of this Plan:
(a) "Retirement" shall mean an Employee's retirement from the
employ of the Company on or after the date on which the Employee attains the
age of 65 years; and
(b) "Disability" shall mean total and permanent incapacity of
an Employee, due to physical impairment or legally established mental
incompetence, to perform the usual duties of the Employee's employment with the
Company, which disability shall be determined (i) on medical evidence by a
licensed physician designated by the Committee, or (ii) on evidence that the
Employee has become
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entitled to receive primary benefits as a disabled employee under the
Social Security Act in effect on the date of such disability.
3. Provisions Relating to Awards.
3.1 Grant of Awards. Subject to the provisions of this Plan, the
Committee shall have full and complete authority, in its discretion, but
subject to the express provisions of this Plan, to (1) grant Awards pursuant to
this Plan, (2) determine the number of shares of the Common Stock subject to
each Award (the "Award Shares"), (3) determine the terms and conditions (which
need not be identical) of each Award, including the consideration (if any) to
be paid by the Employee for such Common Stock, which may, in the Committee's
discretion, consist of the delivery of the Employee's promissory note meeting
the requirements of Paragraph 2.4.1, (4) establish and modify performance
criteria for Awards, and (5) make all of the determinations necessary or
advisable with respect to Awards under this Plan. Each Award under this Plan
shall consist of a grant of shares of the Common Stock subject to a restriction
period (after which the restrictions shall lapse), which shall be a period
commencing on the date the Award is granted and ending on such date as the
Committee shall determine (the "Restriction Period"). The Committee may
provide for the lapse of restrictions in installments, for acceleration of the
lapse of restrictions upon the satisfaction of such performance or other
criteria or upon the occurrence of such events as the Committee shall
determine, and for the early expiration of the Restriction Period upon an
Employee's death, Disability or Retirement as defined in Paragraph 2.7.3, or,
following a Change of Control, upon termination of an Employee's employment by
the Company without "Cause" or by the Employee for "Good Reason," as those
terms are defined herein. For purposes of this Plan:
"Change of Control" shall be deemed to occur (a) on the date the Company
first has actual knowledge that any person (as such term is used in Sections
13(d) and 14(d)(2) of the Exchange Act) has become the beneficial owner (as
defined in Rule 13(d)-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 80 percent or more of the combined
voting power of the Company's then outstanding securities, or (b) on the date
the stockholders of the Company approve (i) a merger of the Company with or
into any other corporation in which the Company is not the surviving
corporation or in which the Company survives as a subsidiary of another
corporation, (ii) a consolidation of the Company with any other corporation, or
(iii) the sale or disposition of all or substantially all of the Company's
assets or a plan of complete liquidation.
"Cause," when used with reference to termination of the employment of an
Employee by the Company for "Cause," shall mean:
(a) The Employee's continuing willful and material breach
of his duties to the Company, which will result or results in material harm to
the Company, after he receives a demand from the Chief Executive of the Company
specifying the manner in which he has willfully and materially breached such
duties, other than any such failure resulting from Disability of the Employee
or his resignation for "Good Reason," as defined herein; or
(b) The conviction of the Employee of a felony; or
(c) The Employee's commission of fraud in the course of
his employment with the Company, such as embezzlement or other material and
intentional violation of law against the Company; or
(d) The Employee's gross misconduct causing material harm
to the Company.
"Good Reason" shall mean any one or more of the following, occurring
following or in connection with a Change of Control and within 90 days prior to
the Employee's resignation, unless the Employee shall have consented thereto in
writing:
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(a) The assignment to the Employee of duties inconsistent
with his executive status prior to the Change of Control or a substantive
change in the officer or officers to whom he reports from the officer or
officers to whom he reported immediately prior to the Change of Control; or
(b) The elimination or reassignment of a majority of the
duties and responsibilities that were assigned to the Employee immediately
prior to the Change of Control; or
(c) A reduction by the Company in the Employee's annual
base salary as in effect immediately prior to the Change of Control; or
(d) The Company requiring the Employee to be based
anywhere outside a 35-mile radius from his place of employment immediately
prior to the Change of Control, except for required travel on the Company's
business to an extent substantially consistent with the Employee's business
travel obligations immediately prior to the Change of Control; or
(e) The failure of the Company to grant the Employee a
performance bonus reasonably equivalent to the same percentage of salary the
Employee normally received prior to the Change of Control, given comparable
performance by the Company and the Employee; or
(f) The failure of the Company to obtain a satisfactory
Assumption Agreement (as defined in Paragraph 4.13 of this Plan) from a
successor, or the failure of such successor to perform such Assumption
Agreement.
3.2 Incentive Agreements. Each Award granted under this Plan shall be
evidenced by a written agreement (an "Incentive Agreement") in a form approved
by the Committee and executed by the Company and the Employee to whom the Award
is granted. Each Incentive Agreement shall be subject to the terms and
conditions of this Plan and other such terms and conditions as the Committee
may specify.
3.3 Amendment, Modification and Waiver of Restrictions. The Committee
may modify or amend any Award under this Plan or waive any restrictions or
conditions applicable to the Award; provided, however, that the Committee may
not undertake any such modifications, amendments or waivers if the effect
thereof materially increases the benefits to any Employee, or adversely affects
the rights of any Employee without his consent.
3.4 Terms and Conditions of Awards. Upon receipt of an Award of
shares of the Common Stock under this Plan, even during the Restriction Period,
an Employee shall be the holder of record of the shares and shall have all the
rights of a stockholder with respect to such shares, subject to the terms and
conditions of this Plan and the Award.
3.4.1 Except as otherwise provided in this Paragraph 3.4, no shares of
the Common Stock received pursuant to this Plan shall be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of during the
Restriction Period applicable to such shares. Any purported disposition of
such Common Stock in violation of this Paragraph 3.4 shall be null and void.
3.4.2 If an Employee's employment with the Company terminates prior to
the expiration of the Restriction Period for an Award, subject to any
provisions of the Award with respect to the Employee's death, Disability or
Retirement, or Change of Control, all shares of the Common Stock subject to the
Award shall be immediately forfeited by the Employee and reacquired by the
Company, and the Employee shall have no further rights with respect to the
Award. In the discretion of the Committee, an Incentive Agreement may provide
that, upon the forfeiture by an Employee of Award Shares, the Company shall
repay to the Employee the consideration (if any) which the Employee paid for
the Award Shares on the grant of the Award. In the discretion of the
Committee, an Incentive Agreement may also provide that such repayment shall
include an interest factor on such consideration from the date of the grant of
the Award to the date of such repayment.
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3.4.3 The Committee may require under such terms and conditions as it
deems appropriate or desirable that (a) the certificates for the Common Stock
delivered under this Plan are to be held in custody by the Company or a person
or institution designated by the Company until the Restriction Period expires,
(b) such certificates shall bear a legend referring to the restrictions on the
Common Stock pursuant to this Plan, and (c) the Employee shall have delivered
to the Company a stock power endorsed in blank relating to the Common Stock.
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4. Miscellaneous Provisions.
4.1 Adjustments Upon Change in Capitalization.
4.1.1 The number and class of shares subject to each outstanding Stock
Option, the Exercise Price thereof (and the total price), the maximum number of
Stock Options that may be granted under this Plan, the minimum number of shares
as to which a Stock Option may be exercised at any one time, and the number and
class of shares subject to each outstanding Award, shall not be proportionately
adjusted in the event of any increase or decrease in the number of the issued
shares of the Common Stock which results from a split-up or consolidation of
shares, payment of a stock dividend or dividends exceeding a total of five
percent for which the record dates occur in any one fiscal year, a
recapitalization (other than the conversion of convertible securities according
to their terms), a combination of shares or other like capital adjustment, so
that (a) upon exercise of the Stock Option, the Employee shall receive the
number and class of shares the Employee would have received prior to any such
capital adjustment becoming effective, and (b) upon the lapse of restrictions
of the Award Shares, the Employee shall receive the number and class of shares
the Employee would have received prior to any such capital adjustment becoming
effective.
4.1.2 Upon a reorganization, merger or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation or in which the Company survives as a wholly-owned subsidiary of
another corporation, or upon a sale of all or substantially all of the property
of the Company to another corporation, or any dividend or distribution to
stockholders of more than 10 percent of the Company's assets, proportionate
adjustment or other provisions shall be made by the Company or other party to
such transaction so that there shall remain and/or be substituted for the
Option Shares and Award Shares provided for herein, the shares, securities or
assets which would have been issuable or payable in respect of or in exchange
for such Option Shares and Award Shares then remaining, as if the Employee had
been the owner of such shares as of the applicable date. Any securities so
substituted shall be subject to similar successive adjustments.
4.2 Withholding Taxes. The Company shall have the right at the time
of exercise of any Stock Option, the grant of an Award, or the lapse of
restrictions on Award Shares, to make adequate provision for any federal,
state, local or foreign taxes which it believes are or may be required by law
to be withheld with respect to such exercise (the "Tax Liability"), to ensure
the payment of any such Tax Liability. The Company may provide for the payment
of any Tax Liability by any of the following means or a combination of such
means, as determined by the Committee in its sole and absolute discretion in
the particular case (1) by requiring the Employee to tender a cash payment to
the Company, (2) by withholding from the Employee's salary, (3) by withholding
from the Option Shares which would otherwise be issuable upon exercise of the
Stock Option, or from the Award Shares on their grant or date of lapse of
restrictions, that number of Option Shares or Award Shares having an aggregate
Fair Market Value (determined in the manner prescribed by Paragraph 2.2) as of
the date the withholding tax obligation arises in an amount which is equal to
the Employee's Tax Liability or (4) by any other method deemed appropriate by
the Committee. Satisfaction of the Tax Liability of a Section 16 Reporting
Person may be made by the method of payment specified in clause (3) above only
if the following two conditions are satisfied:
(a) The withholding of Option Shares or Award Shares and
the exercise of the related Stock Option occur at least six months and one day
following the date of grant of such Stock Option or Award; and
(b) The withholding of Option Shares or Award Shares is
made either (i) pursuant to an irrevocable election (the "Withholding
Election") made by the Employee at least six months in advance of the
withholding of Options Shares or Award Shares, or (ii) on a day within a 10-day
"window period" beginning on the third business day following the date of
release of the Company's quarterly or annual summary statement of sales and
earnings.
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Anything herein to the contrary notwithstanding, a Withholding Election
may be disapproved by the Committee at any time.
4.3 Relationship to Other Employee Benefit Plans. Stock Options and
Awards granted hereunder shall not be deemed to be salary or other compensation
to any Employee for purposes of any pension, thrift, profit-sharing, stock
purchase or any other employee benefit plan now maintained or hereafter adopted
by the Company.
4.4 Amendments and Termination. The Board of Directors may at any
time suspend, amend or terminate this Plan. No amendment, except as provided
in Paragraph 3.3, or modification of this Plan may be adopted, except subject
to stockholder approval, which would (1) materially increase the benefits
accruing to the Employees under this Plan, (2) materially increase the number
of securities which may be issued under this Plan (except for adjustments
pursuant to Paragraph 4.1 hereof), or (3) materially modify the requirements as
to eligibility for participation in this Plan.
4.5 Successors in Interest. The provisions of this Plan and the
actions of the Committee shall be binding upon all heirs, successors and
assigns of the Company and of the Employees.
4.6 Other Documents. All documents prepared, executed or delivered in
connection with this Plan (including, without limitation, Option Agreements and
Incentive Agreements) shall be, in substance and form, as established and
modified by the Committee; provided, however, that all such documents shall be
subject in every respect to the provisions of this Plan, and in the event of
any conflict between the terms of any such document and this Plan, the
provisions of this Plan shall prevail.
4.7 Fairness of the Repurchase Price. In the event that the Company
repurchases securities upon termination of employment pursuant to this Plan,
either: (a) the price will not be less than the fair market value of the
securities to be repurchased on the date of termination of employment, and the
right to repurchase will be exercised for cash or cancellation of purchase
money indebtedness for the securities within 90 days of termination of the
employment (or in the case of securities issued upon exercise of options after
the date of termination, within 90 days after the date of the exercise), and
the right terminates when the Company's securities become publicly traded, or
(b) Company will repurchase securities at the original purchase price, provided
that the right to repurchase at the original purchase price lapses at the rate
of at least 20 percent of the securities per year over five years from the date
the option is granted (without respect to the date the option was exercised or
became exercisable) and the right to repurchase must be exercised for cash or
cancellation of purchase money indebtedness for the securities within 90 days
of termination of employment (or in case of securities issued upon exercise of
options after the date of termination, within 90 days after the date of the
exercise).
4.8 No Obligation to Continue Employment. This Plan and the grants
which might be made hereunder shall not impose any obligation on the Company to
continue to employ any Employee. Moreover, no provision of this Plan or any
document executed or delivered pursuant to this Plan shall be deemed modified
in any way by any employment contract between an Employee (or other employee)
and the Company.
4.9 Misconduct of an Employee. Notwithstanding any other provision of
this Plan, if an Employee commits fraud or dishonesty toward the Company or
wrongfully uses or discloses any trade secret, confidential data or other
information proprietary to the Company, or intentionally takes any other action
which results in material harm to the Company, as determined by the Committee,
in its sole and absolute discretion, the Employee shall forfeit all rights and
benefits under this Plan.
4.10 Term of Plan. No Stock Option shall be exercisable, or Award
granted, unless and until the Directors of the Company have approved this Plan
and all other legal requirements have been met. This Plan was adopted by the
Board effective March 4, 2005. No Stock Options or Awards may be granted under
this Plan after March 3, 2015.
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4.11 Governing Law. This Plan and all actions taken thereunder shall
be governed by, and construed in accordance with, the laws of the State of
Nevada.
4.12 Assumption Agreements. The Company will require each successor,
(direct or indirect, whether by purchase, merger, consolidation or otherwise),
to all or substantially all of the business or assets of the Company, prior to
the consummation of each such transaction, to assume and agree to perform the
terms and provisions remaining to be performed by the Company under each
Incentive Agreement and Stock Option and to preserve the benefits to the
Employees thereunder. Such assumption and agreement shall be set forth in a
written agreement in form and substance satisfactory to the Committee (an
"Assumption Agreement"), and shall include such adjustments, if any, in the
application of the provisions of the Incentive Agreements and Stock Options and
such additional provisions, if any, as the Committee shall require and approve,
in order to preserve such benefits to the Employees. Without limiting the
generality of the foregoing, the Committee may require an Assumption Agreement
to include satisfactory undertakings by a successor:
(a) To provide liquidity to the Employees at the end of
the Restriction Period applicable to the Common Stock awarded to them under
this Plan, or on the exercise of Stock Options;
(b) If the succession occurs before the expiration of any
period specified in the Incentive Agreements for satisfaction of performance
criteria applicable to the Common Stock awarded thereunder, to refrain from
interfering with the Company's ability to satisfy such performance criteria or
to agree to modify such performance criteria and/or waive any criteria that
cannot be satisfied as a result of the succession;
(c) To require any future successor to enter into an
Assumption Agreement; and
(d) To take or refrain from taking such other actions as
the Committee may require and approve, in its discretion.
4.12 Compliance with Rule 16b-3. Transactions under this Plan are
intended to comply with all applicable conditions of Rule 16b-3 promulgated
under the Exchange Act. To the extent that any provision of this Plan or
action by the Committee fails to so comply, it shall be deemed null and void,
to the extent permitted by law and deemed advisable by the Committee.
4.13 Information to Shareholders. The Company shall furnish to each of
its stockholders financial statements of the Company at least annually.
IN WITNESS WHEREOF, this Plan has been executed effective as of March 4,
2005.
PTS, INC.
By /s/ Peter Chin
Peter Chin, Chief Executive Officer
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