EXHIBIT 4.1
CARBONICS CAPITAL CORPORATION
2008 Stock and Stock Option Plan
Article 1. Establishment and Purpose
1.1 Establishment of the Plan. Carbonics Capital Corporation, a Delaware
corporation (the "Company" or "Carbonics Capital"), hereby establishes an
incentive compensation plan (the "Plan"), as set forth in this document.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the success
and enhance the value of the Company by linking the personal interests of
Participants to those of the Company's shareholders, and by providing
Participants with an incentive for outstanding performance. The Plan is further
intended to attract and retain the services of Participants upon whose judgment,
interest, and special efforts the successful operation of Carbonics Capital and
its subsidiaries is dependent.
1.3 Effective Date of the Plan. The Plan shall become effective on March
20, 2008.
Article 2. Definitions
Whenever used in the Plan, the following terms shall have the meanings set
forth below and, when the meaning is intended, the initial letter of the word is
capitalized:
(a) "Award" means, individually or collectively, a grant under this Plan
of Stock, Stock Options, or Restricted Stock.
(b) "Award Agreement" means an agreement which may be entered into by each
Participant and the Company, setting forth the terms and provisions
applicable to Awards granted to Participants under this Plan.
(c) "Board" or "Board of Directors" means the Company's Board of
Directors.
(d) "Cause" shall mean willful and gross misconduct on the part of an
Eligible Person that is materially and demonstrably detrimental to the
Company or any Subsidiary as determined by the Committee in its sole
discretion.
(e) "Change in Control" shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than (A) a person who on March 20, 2008 was the
beneficial owner of more than 25% of the outstanding Shares, (B) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or (C) a corporation owned directly or
indirectly by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the total voting power
represented by the Company's then outstanding voting securities, or
(ii) during any period of two (2) consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of
the Company and any new Director whose election by the Board of
Directors or nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds (2/3) of the Directors then
still in office who either were Directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least fifty-five percent
(55%) of the total voting power represented by the voting securities
of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the shareholders of the Company
approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all
the Company's assets.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
(g) "Committee" means the committee or committees, as specified in Article
3, appointed by the Board to administer the Plan with respect to
grants of Awards.
(h) "Consultant" means a natural person under contract with the Company to
provide bona fide services to the Company which are not in connection
with the offer or sale of securities in a capital-raising transaction
and do not directly or indirectly promote or maintain a market for the
Company's securities.
(i) "Director" means any individual who is a member of the Carbonics
Capital Board of Directors.
(j) "Disability" shall mean the Participant's inability to perform the
Participant's normal Employment functions due to any medically
determinable physical or mental disability, which can last or has
lasted 12 months or is expected to result in death.
(k) "Eligible Person" means an Employee, Director or Consultant.
(l) "Employee" means any officer or employee of the Company or of one of
the Company's Subsidiaries. Directors who are not otherwise employed
by the Company shall not be considered Employees under this Plan.
(m) "Employment," with reference to an Employee, means the condition of
being an officer or employee of the Company or one of its
Subsidiaries. "Employment," with reference to a Consultant, means the
condition of being a Consultant. "Employment," with reference to a
Director, means the condition of being a Director. The change in
status of an Eligible Person among the categories of Employee,
Director and Consultant shall not be deemed a termination of
Employment.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor Act thereto.
(o) "Exercise Price" means the price at which a Share may be purchased by
a Participant pursuant to an Option, as determined by the Committee.
(p) "Insider" shall mean an Eligible Person who is, on the relevant date,
an officer, director, or ten percent (10%) beneficial owner of the
Company, as those terms are defined under Section 16 of the Exchange
Act.
(q) "Option" or "Stock Option" shall mean an option to purchase Shares
granted hereunder.
(r) "Participant" means a person who holds an outstanding Award granted
under the Plan.
(s) "Plan" means this 2008 Stock and Stock Option Plan.
(t) "Restricted Stock" means an Award of Stock granted to an Eligible
Person pursuant to Article 7 herein.
(u) "Restriction Period" means the period during which Shares of
Restricted Stock are subject to restrictions or conditions under
Article 7.
(v) "Shares" or "Stock" means the shares of common stock of the Company.
(w) "Subsidiary" shall mean any corporation in which the Company owns
directly, or indirectly through subsidiaries, more than fifty percent
(50%) of the total combined voting power of all classes of Stock, or
any other entity (including, but not limited to, partnerships and
joint ventures) in which the Company owns more than fifty percent
(50%) of the combined equity thereof.
Article 3. Administration
3.1 The Committee. The Plan and all Awards hereunder shall be administered
by one or more Committees of the Board as may be appointed by the Board for this
purpose. The Board may appoint a Committee specifically responsible for Awards
to Insiders (the "Disinterested Committee") where each Director on such
Disinterested Committee is a "Non-Employee Director" (or any successor
designation for determining who may administer plans, transactions or awards
exempt under Section 16(b) of the Exchange Act), as that term is used in Rule
16b-3 under the Exchange Act, as that rule may be modified from time to time. If
no specific Committee is appointed by the Board, then the Board in its entirety
shall be the Committee. Any Committee may be replaced by the Board at any time.
3.2 Authority of the Committee. The Committee shall have full power, except
as limited by law and subject to the provisions herein, to select the recipients
of Awards; to determine the size and types of Awards; to determine the terms and
conditions of such Awards in a manner consistent with the Plan; to construe and
interpret the Plan and any agreement or instrument entered into under the Plan;
to establish, amend, or waive rules and regulations for the Plan's
administration; and to amend the terms and conditions of any outstanding Award
to the extent such terms and conditions are within the discretion of the
Committee as provided in the Plan. Further, the Committee shall make all other
determinations which may be necessary or advisable for the administration of the
Plan.
No Award may be made under the Plan after December 31, 2014.
All determinations and decisions made by the Committee pursuant to the
provisions of the Plan and all related orders or resolutions of the Board shall
be final, conclusive, and binding on all persons, including the Company, its
stockholders, Eligible Persons, Participants, and their estates and
beneficiaries.
Subject to the terms of this Plan, the Committee is authorized, and shall
not be limited in its discretion, to use any of the Performance Criteria
specified herein in its determination of Awards under this Plan.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3
herein, the number of Shares available for grant under the Plan shall not exceed
ten million (10,000,000) Shares. The Shares granted under this Plan may be
either authorized but unissued or reacquired Shares.
4.2 Lapsed Awards. If any Award granted under this Plan is canceled,
terminates, expires, or lapses for any reason, Shares subject to such Award
shall be again available for the grant of an Award under the Plan.
4.3 Adjustments in Authorized Plan Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, Stock
dividend, split-up, Share combination, or other change in the corporate
structure of the Company affecting the Shares, an adjustment shall be made in
the number and class of Shares which may be delivered under the Plan, and in the
number and class of and/or price of Shares subject to outstanding Awards granted
under the Plan, and/or the number of outstanding Options and Shares of
Restricted Stock constituting outstanding Awards, as may be determined to be
appropriate and equitable by the Committee, in its sole discretion, to prevent
dilution or enlargement of rights.
Article 5. Stock Grant
5.1 Grant of Stock. Subject to the terms and provisions of the Plan, the
Board of Directors, at any time and from time to time, may grant Shares of Stock
to Eligible Persons in such amounts and upon such terms and conditions as the
Board of Directors shall determine.
Article 6. Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to Eligible Persons at any time and from time to time,
and under such terms and conditions, as shall be determined by the Committee.
The Committee shall have discretion in determining the number of Shares subject
to Options granted to each Eligible Person.
6.2 Form of Issuance. Each Option grant may be issued in the form of an
Award Agreement and/or may be recorded on the books and records of the Company
for the account of the Participant. If an Option is not issued in the form of an
Award Agreement, then the Option shall be deemed granted as determined by the
Committee. The terms and conditions of an Option shall be set forth in the Award
Agreement, in the notice of the issuance of the grant, or in such other
documents as the Committee shall determine. Such terms and conditions shall
include the Exercise Price, the duration of the Option, the number of Shares to
which an Option pertains (unless otherwise provided by the Committee, each
Option may be exercised to purchase one Share), and such other provisions as the
Committee shall determine.
6.3 Exercise Price. The Exercise Price of an Option shall be determined by
the Committee in its sole discretion.
6.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time of grant (which duration may be extended
by the Committee); provided, however, that no Option shall be exercisable later
than the tenth (10th) anniversary date of its grant. If, however, the Eligible
Person owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of its parent or
subsidiary corporations, then no Option shall be exercisable later than the
fifth (5th) anniversary date of its grant.
6.5 Vesting of Options. Options shall vest at such times and under such
terms and conditions as determined by the Committee; provided, however, unless a
different vesting period is provided by the Committee at or before the grant of
an Option, the Options will vest on the first anniversary of the grant.
6.6 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall in each instance approve, which need not be the same for
each grant or for each Participant.
Options shall be exercised by delivery of a written notice (including
e-mail and telecopies) to the Secretary of the Company (or, if so provided by
the Company, to its designated agent), which notice shall be irrevocable,
setting forth the exact number of Shares with respect to which the Option is
being exercised and including with such notice payment of the Exercise Price.
When Options have been transferred, the Company or its designated agent may
require appropriate documentation that the person or persons exercising the
Option, if other than the Participant, has the right to exercise the Option. No
Option may be exercised with respect to a fraction of a Share.
6.7 Termination of Employment. Unless otherwise provided by the Committee,
the following limitations on exercise of Options shall apply upon termination of
Employment:
(a) Termination by Death or Disability. In the event the Employment of a
Participant shall terminate by reason of death or Disability, all
outstanding Options granted to that Participant shall immediately vest
as of the date of termination of Employment and may be exercised, if
at all, no more than three (3) years from the date of the termination
of Employment, unless the Options, by their terms, expire earlier.
(b) Termination for Cause. If the Employment of a Participant shall be
terminated by the Company for Cause, all outstanding Options held by
the Participant shall immediately be forfeited to the Company and no
additional exercise period shall be allowed, regardless of the vested
status of the Options.
(c) Retirement or Other Termination of Employment. If the Employment of a
Participant shall terminate for any reason other than the reasons set
forth in (a) or (b) above, all outstanding Options which are vested as
of the effective date of termination of Employment may be exercised,
if at all, no more than thirty (30) days from the date of termination
of Employment, unless the Options, by their terms, expire earlier. In
the event of the death of the Participant after termination of
Employment, this paragraph (c) shall still apply and not paragraph
(a), above.
(d) Options not Vested at Termination. Except as provided in paragraph (a)
above, all Options held by the Participant which are not vested on or
before the effective date of termination of Employment shall
immediately be forfeited to the Company (and shall once again become
available for grant under the Plan).
(e) Notwithstanding the foregoing, the Committee may, in its sole
discretion, establish different terms and conditions pertaining to the
effect of termination of Employment, but no such modification shall
shorten the terms of Options issued prior to such modification.
6.9 Restrictions on Exercise and Transfer of Options. Unless otherwise
provided by the Committee:
(a) During the Participant's lifetime, the Participant's Options shall be
exercisable only by the Participant or by the Participant's guardian
or legal representative. After the death of the Participant, an Option
shall only be exercised by the holder thereof (including, but not
limited to, an executor or administrator of a decedent's estate) or
his guardian or legal representative.
(b) No Option shall be transferable except: (i) in the case of the
Participant, only upon the Participant's death; and (ii) in the case
of any holder after the Participant's death, only by will or by the
laws of descent and distribution.
6.10 Competition. Notwithstanding anything in this Article 6 to the
contrary, in the event the Committee determines, in its sole discretion, that a
Participant is engaging in activity competitive with the Company, any
Subsidiary, or any business in which any of the foregoing have a substantial
interest (the "Carbonics Capital Businesses"), the Committee may cancel any
Option granted to such Participant, whether or not vested, in whole or in part.
Such cancellation shall be effective as of the date specified by the Committee.
Competitive activity shall mean any business or activity if a substantially
similar business activity is being carried on by a Carbonics Capital Business,
including, but not limited to, representing or providing consulting services to
any person or entity that is engaged in competition with a Carbonics Capital
Business or that takes a position adverse to a Carbonics Capital Business.
However, competitive activity shall not include, among other things, owning a
nonsubstantial interest as a shareholder in a competing business.
Article 7. Restricted Stock
7.1 Grant of Restricted Stock. Subject to the terms and provisions of the
Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock to Eligible Persons in such amounts and upon such terms and
conditions as the Committee shall determine.
7.2 Restricted Stock Agreement. The Committee may require, as a condition
to an Award, that a recipient of a Restricted Stock Award enter into a
Restricted Stock Award Agreement, setting forth the terms and conditions of the
Award. In lieu of a Restricted Stock Award Agreement, the Committee may provide
the terms and conditions of an Award in a notice to the Participant of the
Award, on the Stock certificate representing the Restricted Stock, in the
resolution approving the Award, or in such other manner as it deems appropriate.
7.3 Transferability. Except as otherwise provided in this Article 7, the
Shares of Restricted Stock granted herein may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the end of the applicable
Restriction Period established by the Committee, if any.
7.4 Other Restrictions. The Committee may impose such other conditions
and/or restrictions on any Shares of Restricted Stock granted pursuant to the
Plan as it may deem advisable including, without limitation, a requirement that
Participants pay a stipulated purchase price for each Share of Restricted Stock
and/or restrictions under applicable Federal or state securities laws; and may
legend the certificates representing Restricted Stock to give appropriate notice
of such restrictions.
The Company shall also have the right to retain the certificates
representing Shares of Restricted Stock in the Company's possession until such
time as all conditions and/or restrictions applicable to such Shares have been
satisfied.
7.5 Removal of Restrictions. Except as otherwise provided in this Article
7, Shares of Restricted Stock covered by each Restricted Stock grant made under
the Plan shall become freely transferable by the Participant after the last day
of the Restriction Period and completion of all conditions to vesting, if any.
However, unless otherwise provided by the Committee, the Committee, in its sole
discretion, shall have the right to immediately waive all or part of the
restrictions and conditions with regard to all or part of the Shares held by any
Participant at any time.
7.6 Voting Rights, Dividends and Other Distributions. During the
Restriction Period, Participants holding Shares of Restricted Stock granted
hereunder may exercise full voting rights and shall receive all regular cash
dividends paid with respect to such Shares. Except as provided in the following
sentence, in the sole discretion of the Committee, other cash dividends and
other distributions paid to Participants with respect to Shares of Restricted
Stock may be subject to the same restrictions and conditions as the Shares of
Restricted Stock with respect to which they were paid. If any such dividends or
distributions are paid in Shares, the Shares shall be subject to the same
restrictions and conditions as the Shares of Restricted Stock with respect to
which they were paid.
7.7 Termination of Employment Due to Death or Disability. In the event the
Employment of a Participant shall terminate by reason of death or Disability,
unless otherwise provided by the Committee prior to or at the time of the Award,
all Restriction Periods and all restrictions imposed on outstanding Shares of
Restricted Stock held by the Participant shall immediately lapse and the
Restricted Stock shall immediately become fully vested as of the date of
termination of Employment.
7.8 Termination of Employment for Other Reasons. If the Employment of a
Participant shall terminate for any reason other than those specifically set
forth in Section 7.7 herein, all Shares of Restricted Stock held by the
Participant which are not vested as of the effective date of termination of
Employment immediately shall be forfeited and returned to the Company.
Article 8. Employee Matters
8.1 Employment Not Guaranteed. Nothing in the Plan shall interfere with or
limit in any way the right of the Company or any Subsidiary to terminate any
Participant's Employment at any time, nor confer upon any Participant any right
to continue in the employ of the Company or one of its Subsidiaries.
8.2 Participation. No Eligible Person shall have the right to be selected
to receive an Award under this Plan, or, having been so selected, to be selected
to receive a future Award.
8.3 Claims and Appeals. Any claim under the Plan by a Participant or anyone
claiming through a Participant shall be presented to the Committee. Any person
whose claim under the Plan has been denied may, within sixty (60) days after
receipt of notice of denial, submit to the Committee a written request for
review of the decision denying the claim. The Committee shall determine
conclusively for all parties all questions arising in the administration of the
Plan.
Article 9. Amendment, Modification, and Termination
9.1 Amendment, Modification, and Termination. The Board of Directors alone
shall have the right to alter, amend or revoke the Plan or any part thereof at
any time and from time to time, provided, however, that the Board of Directors
may not, without the approval of the holders of a majority of the voting Shares,
make any alteration or amendment to the Plan which changes the aggregate number
of shares of Common Stock which may be issued under the Plan, extend the term of
the Plan, or change the employees or class of employees eligible to receive
Awards thereunder. The Board may at any time suspend or terminate the Plan in
whole or in part.
9.2 Awards Previously Granted. No termination, amendment, or modification
of the Plan shall adversely affect in any material way any Award previously
granted under the Plan, without the written consent of the Participant holding
such Award.
Article 10. Change in Control
Upon the occurrence of a Change in Control:
(a) Any and all Options granted hereunder immediately shall become vested
and exercisable;
(b) Any Restriction Periods and all restrictions imposed on Restricted
Shares shall lapse and they shall immediately become fully vested.
Article 11 Withholding
11 1 Tax Withholding. The Company shall deduct or withhold an amount
sufficient to satisfy Federal, state, and local taxes (including the
Participant's employment tax obligations) required by law to be withheld with
respect to any taxable event arising or as a result of this Plan ("Withholding
Taxes").
11.2 Share Withholding. With respect to withholding required upon the
exercise of Options, upon the lapse of restrictions on Restricted Stock, or upon
any other taxable event hereunder involving the transfer of Stock to a
Participant, the Company shall withhold Stock having a Fair Market Value on the
date the tax is to be determined in an amount equal to the Withholding Taxes on
such Stock. Any fractional Share remaining after the withholding shall be
withheld as additional Federal withholding.
11.3 Payment In Lieu of Share Withholding. In any situation in which the
Company would be required to withhold Stock pursuant to ss.11.2 above, the
Participant may, in lieu of all or part of such withholding, remit to the
Company an amount in cash sufficient to satisfy the federal, state and local
withholding tax requirements or may direct the Company to withhold from other
amounts payable to the Participant, including salary.
Article 12. Successors
All obligations of the Company under the Plan, with respect to Awards
granted hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
Article 13. Legal Construction
13.1 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
13.2 Requirements of Law. The granting of Awards and the issuance of Shares
under the Plan shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national securities
exchanges as may be required.
13.3 Securities Law Compliance. With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act. To the extent any provision of
the plan or action by the Committee fails to comply with a condition of Rule
16b-3 or its successors, it shall not apply to the Insiders or transactions
thereby.
13.4 Governing Law. To the extent not preempted by Federal law, the Plan,
and all agreements hereunder, shall be construed in accordance with and governed
by the laws of the State of Delaware.
* * * * *