Attached files
file | filename |
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S-1 - LENDER TO LENDER FRANCHISE, INC | v198832_s1.htm |
EX-2.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex2-1.htm |
EX-3.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex3-1.htm |
EX-3.2 - LENDER TO LENDER FRANCHISE, INC | v198832_ex3-2.htm |
EX-10.4 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-4.htm |
EX-10.6 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-6.htm |
EX-21.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex21-1.htm |
EX-23.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex23-1.htm |
EX-14.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex14-1.htm |
EX-10.3 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-3.htm |
EX-10.5 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-5.htm |
EX-10.7 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-7.htm |
2010
EQUITY INCENTIVE PLAN
1. Purposes of the
Plan. The purposes of this 2010 Equity Incentive Plan
(the "Plan") are to attract
and retain the best available personnel for positions of substantial
responsibility, to provide additional incentives to Employees, Directors and
Consultants, and to promote the success of the Company and the Company's
Affiliates. Options granted under the Plan may be Incentive Stock
Options or Nonstatutory Stock Options, as determined by the Administrator at the
time of grant. Stock Purchase Rights, time vested and/or performance
vested Restricted Stock, Stock Appreciation Rights and Unrestricted Shares may
also be granted under the Plan.
2. Definitions. As
used herein, the following definitions shall apply:
"Administrator" means
the Board or a committee that has been delegated the responsibility of
administering the Plan in accordance with Section 4 of
the Plan.
"Affiliate" means any
Parent and/or Subsidiary.
"Applicable Laws"
means the requirements relating to the administration of equity compensation
plans under the applicable corporate and securities laws of any of the states in
the United States, U.S. federal securities laws, the Code, the rules
and regulations of any stock exchange or quotation system on which the Common
Stock is listed or quoted and the applicable laws of any foreign country or
jurisdiction where Awards are, or will be, granted under
the Plan.
"Award" means the
grant of an Option, a Stock Purchase Right, a Stock Appreciation Right, a Stock
Award and/or Unrestricted Shares.
"Board" means the
Board of Directors of the Company.
"Cause" means, unless
otherwise specifically provided in a Participant's Option Agreement, Stock
Purchase Agreement, Stock Appreciation Right Agreement or Stock Award Agreement,
a finding by the Administrator that the Participant's employment with or service
to the Company or any Affiliate was terminated due to one or more of the
following: (i) the Participant's use of alcohol or any unlawful controlled
substance to an extent that it interferes with the performance of the
Participant's duties; (ii) the Participant's commission of any act of
fraud, insubordination, misappropriation or personal dishonesty relating to or
involving the Company or any Affiliate in any material respect; (iii) the
Participant's gross negligence; (iv) the Participant's violation of any
express direction of the Company or of any Affiliate or any material violation
of any rule, regulation, policy or plan established by the Company or any
Affiliate from time to time regarding the conduct of its employees or its
business; (v) the Participant's disclosure or use of confidential
information of the Company or any Affiliate, other than as required in the
performance of the Participant's duties; (vi) actions by the Participant
that are determined by the Administrator to be clearly contrary to the best
interests of the Company and/or its Affiliates as determined in good faith by
the Administrator; (vii) the Participant's conviction of a crime
constituting a felony or any other crime involving moral turpitude; or (viii)
any other act or omission which, in the determination of the Administrator, is
materially detrimental to the business of the Company or of an Affiliate.
Notwithstanding the foregoing, if a Participant has entered into a written
employment or consulting agreement with the Company that specifies the
conditions or circumstances under which the Participant's service may be
terminated for cause, then the terms of such agreement shall apply for purposes
of determining whether "Cause" shall have occurred for purposes of
this Plan.
"Change in Control
Event" has the meaning set forth in Section 16(c).
"Code" means the
Internal Revenue Code of 1986, as amended.
"Committee" means a
committee of Directors appointed by the Board in accordance with Section 4 of
the Plan.
"Common Stock" means
the common stock, par value $0.0001 per share, of the Company.
"Company" means LENDER
TO LENDER FRANCHISE, INC., a Florida corporation.
"Consultant" means any
person, including an advisor, engaged by the Company or an Affiliate to render
services to such entity, other than an Employee or a Director.
"Director" means a
member of the Board or of the board of directors of
an Affiliate.
"Disability" means
total and permanent disability as defined in Section 22(e)(3) of
the Code.
"Employee" means any
person, including officers and Directors, serving as an employee of the Company
or an Affiliate. An individual shall not cease to be an Employee in
the case of (i) any leave of absence approved by the Company or
(ii) transfers between locations of the Company or between the Company, its
Parent, any Subsidiary or any successor. For purposes of an Option
initially granted as an Incentive Stock Option, if a leave of absence of more
than three months precludes such Option from being treated as an Incentive Stock
Option under the Code, such Option thereafter shall be treated as a Nonstatutory
Stock Option for purposes of this Plan. Neither service as a Director
nor payment of a director's fee by the Company shall be sufficient to constitute
"employment" by the Company.
"Fair Market Value"
means, as of any date, the value of Common Stock determined
as follows:
(i)
if the Common Stock is listed on any established stock exchange or a
national market system, including without limitation the NASDAQ National Market
or the NASDAQ Capital Market, the Fair Market Value of a Share shall be the
closing sales price of a Share (or the closing bid, if no such sales were
reported) as quoted on such exchange or system for the last market trading day
prior to the day of determination, as reported in The Wall Street
Journal or such other source as the Administrator
deems reliable;
(ii)
if the Common Stock is regularly quoted by a recognized securities
dealer but is not listed in the manner contemplated by clause (i) above,
the Fair Market Value of a Share shall be the mean between the high bid and low
asked prices for the Common Stock on the last market trading day prior to the
day of determination, as reported in The Wall Street Journal
or such other source as the Administrator deems
reliable; or
(iii) if
neither clause (i) above nor clause (ii) above applies, the Fair
Market Value shall be determined in good faith by the
Administrator.
"Incentive Stock
Option" means an Option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and the regulations
promulgated thereunder.
"Nonstatutory Stock
Option" means an Option not intended to qualify as an Incentive
Stock Option.
"Notice of Grant"
means a written or electronic notice evidencing certain terms and conditions of
an Award.
"Option" means a stock
option granted pursuant to the Plan.
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"Option Agreement"
means an agreement between the Company and an Optionee evidencing the terms and
conditions of an individual Option grant. Each Option Agreement shall
be subject to the terms and conditions of the Plan and the applicable Notice
of Grant.
"Optioned Stock" means
the Common Stock subject to an Option or Stock Purchase Right.
"Optionee" means the
holder of an outstanding Option or Stock Purchase Right granted under
the Plan.
"Parent" means a
"parent corporation" of the Company (or, in the context of Section 16(c) of
the Plan, of a successor corporation), whether now or hereafter existing, as
defined in Section 424(e) of the Code.
"Participant" shall
mean any Service Provider who holds an Option, a Stock Purchase Right, a Stock
Appreciation Right, a Stock Award or Unrestricted Shares granted or issued
pursuant to the Plan.
"Restricted Period"
has the meaning set forth in Section 12(a).
"Restricted Stock"
means shares of Common Stock acquired pursuant to a grant of a Stock Award under
Section 12 of the Plan.
"Rule 16b-3"
means Rule 16b-3 of the Exchange Act or any successor to such
Rule 16b-3, as such rule is in effect when discretion is being exercised
with respect to the Plan.
"Section 16(b)"
means Section 16(b) of the Exchange Act.
"Service Provider"
means an Employee, Director or Consultant.
"Share" means a share
of the Common Stock, as adjusted in accordance with Section 16 of
the Plan.
"Stock Appreciation
Right" means a right granted pursuant to Section 14 of the Plan, as
evidenced by a Notice of Grant. Stock Appreciation Rights may be
awarded either in tandem with Options ("Tandem Stock Appreciation
Rights") or on a stand-alone basis ("Nontandem Stock Appreciation
Rights").
"Stock Appreciation Right
Agreement" means an agreement between the Company and the grantee of a
Stock Appreciation Right, approved by the Administrator, evidencing the terms
and conditions of an individual Stock Appreciation Right grant. Each
Stock Appreciation Right Agreement shall be subject to the terms and conditions
of the Plan and the applicable Notice of Grant.
"Stock Award" means an
Award of Shares pursuant to Section 12 of the Plan.
"Stock Award
Agreement" means an agreement, approved by the Administrator, providing
the terms and conditions of a Stock Award. Each Stock Award Agreement
shall be subject to the terms and conditions of the Plan and the applicable
Notice of Grant.
"Stock Award Shares"
means Shares subject to a Stock Award.
"Stock Awardee" means
the holder of an outstanding Stock Award granted under
the Plan.
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"Stock Purchase
Agreement" means a written agreement between the Company and an Optionee,
approved by the Administrator, evidencing the terms and restrictions applicable
to stock purchased under a Stock Purchase Right. Each Stock Purchase
Agreement shall be subject to the terms and conditions of the Plan and the
applicable Notice of Grant.
"Stock Purchase
Awardee" means the holder of an outstanding Stock Purchase Right granted
under the Plan.
"Stock Purchase Right"
means the right to purchase Common Stock pursuant to Section 11 of the
Plan, as evidenced by a Notice of Grant.
"Stock Purchase Stock"
means shares of Common Stock acquired pursuant to a grant of a Stock Purchase
Right under Section 11 of the Plan.
"Subsidiary" means a
"subsidiary corporation" of the Company (or, in the context of
Section 16(c) of the Plan, of a successor corporation), whether now or
hereafter existing, as defined in Section 424(f) of
the Code.
"Substitute Options"
has the meaning set forth in Section 17.
Unrestricted Shares"
means a grant of Shares made on an unrestricted basis pursuant to
Section 13 of the Plan.
3. Subject to the
Plan. Subject to the provisions of Section 16 of the
Plan, the initial maximum number of shares of Common Stock that may be issued
under the Plan shall be 5,000,000 shares. For purposes of the
foregoing limitation, the shares of Common Stock underlying any Awards that are
forfeited, canceled, reacquired by the Company, satisfied without the issuance
of Common Stock or otherwise terminated (other than by exercise) shall be added
back to the number of shares of Common Stock available for issuance under the
Plan. Common Stock to be issued under the Plan may be either
authorized and unissued shares or shares held in treasury by
the Company.
4. Administration
of the Plan.
(a) Appointment
of Committee. The Plan shall be administered by the Board of
Directors or a Committee to be appointed by the Board. The Board
shall have the power to add or remove members of the Committee, from time to
time, and to fill vacancies thereon arising by resignation, death, removal, or
otherwise. Meetings shall be held at such times and places as shall
be determined by the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business, and the
vote of a majority of those members present at any meeting shall decide any
question brought before that meeting.
(b) Powers of the
Administrator. Subject to the provisions of the Plan, the
Administrator shall have the authority, in its discretion:
(i)
to determine the Fair Market Value;
(ii)
to select the Service Providers to whom Options, Stock
Purchase Rights, Stock Awards, Stock Appreciation Rights and Unrestricted Shares
may be granted hereunder;
(iii) to
determine the number of shares of Common Stock to be covered by each Award
granted hereunder;
(iv) to
approve forms of agreement for use under the Plan;
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(v) to
determine the terms and conditions, not inconsistent with the terms of the Plan,
of any Award granted hereunder and of any Option Agreement, Stock Purchase
Agreement, Stock Award Agreement and Stock Appreciation Right
Agreement. Such terms and conditions include, but are not limited to,
the exercise price, the time or times when Options or Stock Purchase Rights may
be exercised (which may be based on performance criteria), any vesting,
acceleration or waiver of forfeiture provisions, and any restriction or
limitation regarding any Option, Stock Purchase Right, Stock Award, Stock
Appreciation Right or grant of Unrestricted Shares or the Shares of Common Stock
relating thereto, based in each case on such factors as the Administrator, in
its sole discretion, shall determine;
(vi)
to construe and interpret the terms of the Plan,
Awards granted pursuant to the Plan and agreements entered into pursuant to
the Plan;
(vii)
to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(viii) to
modify or amend each Option or Stock Purchase Right (subject to
Section 19(c) of the Plan), including the discretionary authority to extend
the post-termination exercisability period of Options longer than otherwise
provided for in the Plan, provided, however, any such extension shall be
consistent with Code Section 422(a)(2) and other Applicable Laws;
(ix) to
allow Optionees to satisfy withholding tax obligations by having the Company
withhold from the Shares to be issued upon exercise of an Option that number of
Shares having a Fair Market Value equal to the amount required to be withheld,
provided that withholding is calculated at no less than the minimum statutory
withholding level. The Fair Market Value of the Shares to be withheld
shall be determined as of the date that the income resulting from exercise of
the Option is recognized by the Optionee. All determinations to have
Shares withheld for this purpose shall be made by the Administrator in
its discretion;
(x)
to authorize any person to execute on behalf of the Company any agreement
entered into pursuant to the Plan and any instrument required to effect the
grant of an Award previously granted by the Administrator; and
(xi) to
make all other determinations deemed necessary or advisable for purposes of
administering the Plan.
(c) Effect of Administrator's
Decision. The Administrator's decisions, determinations and
interpretations shall be final and binding on all holders of
Awards. Neither the Administrator, nor any member or delegate
thereof, shall be liable for any act, omission, interpretation, construction or
determination made in good faith in connection with the Plan, and each of the
foregoing shall be entitled in all cases to indemnification and reimbursement by
the Company in respect of any claim, loss, damage or expense (including without
limitation reasonable attorneys' fees) arising or resulting therefrom to the
fullest extent permitted by law and/or under any directors' and officers'
liability insurance coverage which may be in effect from time
to time.
5. Eligibility. Nonstatutory
Stock Options, Stock Purchase Rights, Stock Awards, Stock Appreciation Rights
and Unrestricted Shares may be granted to all Service
Providers. Incentive Stock Options may be granted only to
Employees. Notwithstanding anything contained herein to the contrary,
an Award may be granted to a person who is not then a Service Provider; provided, however, that the
grant of such Award shall be conditioned upon such person's becoming a Service
Provider at or prior to the time of the execution of the agreement evidencing
such Award.
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6. Limitations.
(a) Each
Option shall be designated in the applicable Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, if an Employee first becomes eligible in any
given year to exercise Incentive Stock Options for Shares having a Fair Market
Value in excess of $100,000, those Options representing the excess shall be
treated as Nonstatutory Stock Options. In the previous sentence,
"Incentive Stock Options" include Incentive Stock Options granted under any plan
of the Company or any Affiliate. For the purpose of deciding which
Options apply to Shares that "exceed" the $100,000 limit, Incentive Stock
Options shall be taken into account in the same order as granted. The
Fair Market Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(b) Neither
the Plan nor any Award nor any agreement entered into pursuant to the Plan shall
confer upon a Participant any right with respect to continuing the grantee's
relationship as a Service Provider with the Company or any Affiliate, nor shall
they interfere in any way with the Participant's right or the right of the
Company or any Affiliate to terminate such relationship at any time, with or
without cause.
7. Term of the
Plan. The Plan shall become effective upon approval by the
Company's shareholders and shall continue in effect for a term of ten
(10) years unless terminated earlier under Section 19 of
the Plan.
8. Term of
Options. The term of each Option shall be stated in the
applicable Option Agreement or, if not so stated, ten years from the date of
grant. However, in the case of an Incentive Stock Option granted to
an Optionee who, at the time the Incentive Stock Option is granted, owns,
directly or indirectly, stock representing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company and any
Parent or Subsidiary, the term of the Incentive Stock Option shall be five
(5) years from the date of grant or such shorter term as may be provided in
the applicable Option Agreement.
9. Option Exercise Price;
Exercisability.
(a) Exercise
Price. The per share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In
the case of an Incentive Stock Option:
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1)
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granted
to an Employee who, at the time the Incentive Stock Option is granted,
owns stock representing more than ten percent (10%) of the voting power of
all classes of stock of the Company and any Affiliate, the per Share
exercise price shall be not less than 110% of the Fair Market Value per
Share on the date of grant, or
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2)
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granted
to any Employee other than an Employee described in paragraph (A)
immediately above, the per Share exercise price shall be not less than
100% of the Fair Market Value per Share on the date
of grant.
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(ii) In
the case of a Nonstatutory Stock Option, the per Share exercise price shall be
not less than 100% of the Fair Market Value per Share on the date
of grant.
(iii) Notwithstanding
the foregoing, Options may be granted with a per Share exercise price of less
than 100% (or 110%, if clause (i)(A) above applies) of the Fair Market
Value per Share on the date of grant pursuant to a merger or other comparable
corporate transaction, but in no event shall Options be granted at a per Share
exercise price that would cause the Options to be deemed a deferral of
compensation under Code Section 409A.
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(b) Exercise Period and
Conditions. At the time that an Option is granted, the
Administrator shall fix the period within which the Option may be exercised and
shall determine any conditions that must be satisfied before the Option may
be exercised.
10. Exercise
of Options; Consideration.
(a) Procedure for Exercise; Rights as a
Shareholder. Any Option granted hereunder shall be exercisable
according to the terms of the Plan and at such times and under such conditions
as determined by the Administrator and set forth in the Option Agreement,
provided, however, that unless otherwise determined by the Administrator and
provided for in the Option Agreement, each Option shall vest and become
exercisable as to one-sixth (1/6) of the Shares subject to the Option on the
date that is six months after the date of grant, and as to an additional
one-sixth (1/6) of the Shares subject to the Option every six months thereafter
until fully vested and exercisable. Unless the Administrator provides otherwise,
vesting of Options granted hereunder shall be tolled during any unpaid leave of
absence. An Option may not be exercised for a fraction of a
Share. An Option shall be deemed exercised when the Company receives:
(i) written or electronic notice of exercise (in accordance with the
Option Agreement) from the person entitled to exercise the Option, and
(ii) full payment for the Shares with respect to which the Option is
exercised. Full payment may consist of any consideration and method
of payment authorized by the Administrator and permitted by the Option Agreement
and Section 10(f) of the Plan. Shares issued upon exercise of an
Option shall be issued in the name of the Optionee. Until the Shares
are issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such
Shares promptly after the Option is exercised. No adjustment will be
made for a dividend or other right for which the record date is prior to the
date the Shares are issued, except as provided in Section 16 of the
Plan. Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option
is exercised.
(b) Termination of Relationship as a
Service Provider. If an Optionee ceases to be a Service
Provider, other than as a result of the Optionee's death, Disability or
termination for Cause, the Optionee may exercise his or her Option within such
period of time as is specified in the Option Agreement to the extent that the
Option is vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Notice of
Grant). In the absence of a specified time in the Option Agreement
and except as otherwise provided in Sections 10(c), 10(d) and 10(e) of
this Plan, the Option shall remain exercisable for three months following the
Optionee's termination (but in no event later than the expiration of the
term of such Option). If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option in full within the
time specified by the Administrator, the unexercised portion of the Option shall
terminate, and the Shares covered by such unexercised portion of the Option
shall revert to the Plan. Notwithstanding anything contained herein
to the contrary, an Optionee who changes his or her status as a Service Provider
(e.g., from being an
Employee to being a Consultant) shall not be deemed to have ceased being a
Service Provider for purposes of this Section 10(b), nor shall a transfer
of employment among the Company and any Affiliate be considered a termination of
employment; provided, however, that if an
Optionee owning Incentive Stock Options ceases being an Employee but continues
as a Consultant, such Incentive Stock Options shall be deemed to be Nonstatutory
Stock Options three months after the date of such cessation.
(c) Disability of an
Optionee. If an Optionee ceases to be a Service Provider as a
result of the Optionee's Disability, the Optionee may exercise his or her Option
within such period of time as is specified in the Option Agreement to the extent
the Option is vested on the date of termination (but in no event later than
the expiration of the term of such Option as set forth in the Notice of
Grant). In the absence of a specified time in the Option Agreement,
the Option shall remain exercisable for twelve (12) months following the
Optionee's termination (but in no event later than the expiration of the
term of such Option). If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option in full within the
time specified herein, the unexercised portion of the Option shall terminate,
and the Shares covered by such unexercised portion of the Option shall revert to
the Plan.
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(d) Death of an
Optionee. If an Optionee dies while a Service Provider, the
Option may be exercised within such period of time as is specified in the Option
Agreement (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquires the right to exercise the Option by bequest or inheritance,
but only to the extent that the Option is vested on the date of
death. In the absence of a specified time in the Option Agreement,
the Option shall remain exercisable for twelve (12) months following the
Optionee's death (but in no event later than the expiration of the term of
such Option). If, at the time of death, the Optionee is not vested as
to his or her entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If the Option is not so exercised in
full within the time specified herein, the unexercised portion of the Option
shall terminate, and the Shares covered by the unexercised portion of such
Option shall revert to the Plan.
(e) Termination for
Cause. Unless otherwise provided in a Service Provider's
Option Agreement, if a Service Provider's relationship with the Company is
terminated for Cause, then such Service Provider shall have no right to exercise
any of such Service Provider's Options at any time on or after the effective
date of such termination. All Shares covered by such Options and not
acquired by exercise prior to the date of such termination shall revert to
the Plan.
(f) Form of
Consideration. The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the
Administrator shall determine the acceptable form of consideration at the time
of grant. Such consideration may consist
entirely of:
(i)
cash;
(ii) check;
(iii) other
Shares of the Company's capital stock which (A) have been owned by the
Optionee for more than six months on the date of surrender, and (B) have a
Fair Market Value on the date of surrender equal to the aggregate exercise price
of the Shares as to which said Option shall be exercised;
(iv) consideration
received by the Company under a cashless exercise program permitted by the
Administrator, including a cashless exercise program utilizing the services of a
single broker acceptable to the Administrator;
(v) a
reduction in the amount of any Company liability to the Optionee, including any
liability attributable to the Optionee's participation in any Company-sponsored
deferred compensation program or arrangement;
(vi) any
combination of the foregoing methods of payment; or
(vii)
such other consideration and method of payment for the issuance of
Shares to the extent permitted by Applicable Laws.
8
11. Stock
Purchase Rights.
(a) Rights to
Purchase. Stock Purchase Rights may be issued either alone, in
addition to, or in tandem with Options or other Awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator
determines that it will offer Stock Purchase Rights under the Plan, it shall
advise the Stock Purchase Awardee in writing or electronically, by means of a
Notice of Grant and/or a Stock Purchase Agreement in the form determined by the
Administrator, of the terms, conditions and restrictions related to the offer,
including the number of Shares that the Stock Purchase Awardee shall be entitled
to purchase and the price to be paid for such Shares. The offer shall
be accepted by execution of a Stock Purchase Agreement in a form determined by
the Administrator and payment of the applicable
purchase price.
(b) Repurchase
Option. Unless the Administrator determines otherwise, the
Stock Purchase Agreement shall grant the Company a repurchase option exercisable
upon the voluntary or involuntary termination of the Stock Purchase Awardee's
service with the Company for any reason (including death or
Disability). The purchase price for Shares repurchased pursuant to
the Stock Purchase Agreement shall be the original price paid by the Stock
Purchase Awardee and may be paid by cancellation of any indebtedness of the
Stock Purchase Awardee to the Company. The repurchase option shall
lapse at a rate determined by the Administrator; provided, however, that unless
otherwise determined by the Administrator, the restrictions shall lapse as to
one-sixth (1/6) of the Shares subject to the Stock Purchase Agreement on
the date that is six months after the date of grant, and as to an additional
one-sixth (1/6) of the Shares subject to the Stock Purchase Agreement every
six months thereafter.
(c) Other
Provisions. The Stock Purchase Agreement shall contain such
other terms, provisions and conditions not inconsistent with the Plan as may be
determined by the Administrator in its sole discretion.
(d) Rights as a
Shareholder. Once the Stock Purchase Right is exercised, the
Stock Purchase Awardee shall have the rights equivalent to those of a
shareholder, and shall be a shareholder when his or her purchase is entered upon
the records of the duly authorized transfer agent of the Company. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the Stock Purchase Right is exercised, except as provided
in Section 16 of the Plan.
(e) Code
§409A. Notwithstanding anything contained herein to the
contrary, Stock Purchase Rights shall not be awarded if the Administrator, on
the basis of advice of counsel, determines that the grant of such Stock Purchase
Rights would violate Section 409A of the Code.
12.
Stock
Awards. The Administrator may, in its sole discretion, grant
(or sell at par value or such higher purchase price as it determines)
Shares to any Service Provider, as defined herein, subject to such terms and
conditions, including vesting and/or performance conditions, as the
Administrator sets forth in a Stock Award Agreement evidencing such
grant. Stock Awards may be granted or sold in respect of past
services or other valid consideration or in lieu of any cash compensation
otherwise payable to such individual. The grant of Stock Awards shall
be subject to the following provisions:
(a) At
the time a Stock Award is made, the Administrator shall establish a vesting
period (the "Restricted Period") applicable to the Stock Award Shares
subject to such Stock Award or shall determine that such Stock Award is not
subject to any vesting requirements. Subject to the right of the
Administrator to establish a Restricted Period that extends vesting dates to
later or earlier dates than the dates provided in this sentence, the Restricted
Period of a Stock Award, if any, shall lapse as to one-sixth (1/6) of
the Shares subject to the Stock Award on the date that is six months after the
date of grant, and as to an additional one-sixth (1/6) of
the Shares subject to the Stock Award every six months thereafter until
unrestricted. The Administrator may, in its sole discretion, at the
time a grant is made, prescribe restrictions in addition to or in lieu of the
expiration of the Restricted Period, including the satisfaction of corporate or
individual performance objectives. The Administrator may provide that
all restrictions on Stock Award Shares shall lapse if certain performance
criteria are met and that, if such criteria are not met, that such restrictions
shall lapse if certain vesting conditions are satisfied. None of the
Stock Award Shares may be sold, transferred, assigned, pledged or otherwise
encumbered or disposed of during the Restricted Period applicable to such Stock
Award Shares or prior to the satisfaction of any other restrictions prescribed
by the Administrator with respect to such Stock Award Shares.
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(b) The
Company shall issue, in the name of each Service Provider to whom Stock Award
Shares have been granted, stock certificates representing the total number of
Stock Award Shares granted to such person, as soon as reasonably practicable
after the grant. The Company, at the direction of the Administrator,
shall hold such certificates, properly endorsed for transfer, for the Stock
Awardee's benefit until such time as the Stock Award Shares are forfeited to the
Company, or the restrictions lapse.
(c) Unless
otherwise provided by the Administrator, holders of Stock Award Shares shall
have the right to vote such Shares and have the right to receive any cash
dividends with respect to such Shares. All distributions, if any,
received by a Stock Awardee with respect to Stock Award Shares as a result of
any stock split, stock distribution, combination of shares, or other similar
transaction shall be subject to the restrictions of this
Section 12.
(d) Subject
to the terms of the applicable Stock Award Agreement, any Stock Award Shares
granted to a Service Provider pursuant to the Plan shall be forfeited if, prior
to the date on which all restrictions applicable to such Stock Award shall have
lapsed, the Stock Awardee voluntarily terminates employment with the Company or
its Affiliates or resigns or voluntarily terminates his consultancy arrangement
with the Company or its Affiliates or if the Stock Awardee's employment or
consultancy arrangement is terminated for Cause. If the Stock Awardee's
employment or consultancy arrangement terminates for any other reason, the Stock
Award Shares held by such person shall be forfeited, unless the Administrator,
in its sole discretion, shall determine otherwise. Upon such
forfeiture, the Stock Award Shares that are forfeited shall be retained in the
treasury of the Company and be available for subsequent awards under
the Plan.
(e) Upon
the satisfaction of the conditions prescribed by the Administrator with respect
to a particular Stock Award, the restrictions applicable to the related Stock
Award Shares shall lapse and, at the Stock Awardee's request, a stock
certificate for the number of Stock Award Shares with respect to which the
restrictions have lapsed shall be delivered, free of all such restrictions under
the Plan, to the Stock Awardee or his beneficiary or estate, as the case
may be.
13. Unrestricted
Shares. The Administrator may grant Unrestricted Shares in
accordance with the following provisions:
(a) The
Administrator may cause the Company to grant Unrestricted Shares to Service
Providers at such time or times, in such amounts and for such reasons as the
Administrator, in its sole discretion, shall determine. No payment
(other than the par value thereof, in the Administrator's discretion) shall be
required for Unrestricted Shares.
(b) The
Company shall issue, in the name of each Service Provider to whom Unrestricted
Shares have been granted, stock certificates representing the total number of
Unrestricted Shares granted to such individual, and shall deliver such
certificates to such Service Provider as soon as reasonably practicable after
the date of grant or on such later date as the Administrator shall determine at
the time of grant.
14. Stock Appreciation
Rights. The Administrator may grant Stock Appreciation Rights
in accordance with the following provisions:
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(a) Tandem
Stock Appreciation Rights may be awarded by the Administrator in connection with
any Option granted under the Plan, either at the time such Option is granted or
thereafter at any time prior to the exercise, termination or expiration of such
Option. The base price of any Tandem Stock Appreciation Rights shall
be not less than the Fair Market Value of a share of Common Stock on the date of
grant of the related Option. Nontandem Stock Appreciation Rights may
also be granted by the Administrator at any time. At the time of
grant of Nontandem Stock Appreciation Rights, the Administrator shall specify
the number of shares of Common Stock covered by such right and the base price of
shares of Common Stock to be used in connection with the calculation described
in Section 14(d). The base price of any Nontandem Stock
Appreciation Rights shall be not less than the Fair Market Value of a share of
Common Stock on the date of grant. Stock Appreciation Rights shall be
subject to such terms and conditions not inconsistent with the other provisions
of the Plan as the Administrator shall determine.
(b) Tandem
Stock Appreciation Rights shall be exercisable only to the extent that the
related Option is exercisable and shall be exercisable only for such period as
the Administrator may determine (which period may expire prior to the expiration
date of the related Option); provided, however, if no such period is specified,
a Tandem Stock Appreciation Right shall be exercisable only for the period that
the related Option is exercisable. Upon the exercise of all or a
portion of Tandem Stock Appreciation Rights, the related Option shall be
canceled with respect to an equal number of shares of Common
Stock. Shares of Common Stock subject to Options, or portions
thereof, surrendered upon exercise of Tandem Stock Appreciation Rights shall not
be available for subsequent awards under the Plan. Nontandem Stock
Appreciation Rights shall be exercisable during such period as the Administrator
shall determine.
(c) Tandem
Stock Appreciation Rights shall entitle the applicable Participant to surrender
to the Company unexercised the related Option, or any portion thereof, and,
subject to Section 14(f) to receive from the Company in exchange
therefore that number of shares of Common Stock having an aggregate Fair Market
Value equal to (A) the excess of (i) the Fair Market Value of one
(1) share of Common Stock as of the date the Tandem Stock Appreciation
Rights are exercised over (ii) the Option exercise price per share
specified in such Option, multiplied by (B) the number of shares of Common
Stock subject to the Option, or portion thereof, which is surrendered. In
addition, the Optionee shall be entitled to receive an amount equal to any
credit against the Option exercise price which would have been allowed had the
Option, or portion thereof, been exercised. Cash shall be delivered
in lieu of any fractional shares.
(d) The
exercise of Nontandem Stock Appreciation Rights shall, subject to
Section 14(f), entitle the recipient to receive from the Company that
number of shares of Common Stock having an aggregate Fair Market Value equal to
(A) the excess of (i) the Fair Market Value of one (1) share of
Common Stock as of the date on which the Nontandem Stock Appreciation Rights are
exercised over (ii) the base price of the shares covered by the Nontandem
Stock Appreciation Rights, multiplied by (B) the number of shares of Common
Stock covered by the Nontandem Stock Appreciation Rights, or the portion
thereof, being exercised. Cash shall be delivered in lieu of any fractional
shares.
(e) As
soon as is reasonably practicable after the exercise of any Stock Appreciation
Rights, the Company shall (i) issue, in the name of the recipient, stock
certificates representing the total number of full shares of Common Stock to
which the recipient is entitled pursuant to Section 14(c) and
Section 14(d) and cash in an amount equal to the Fair Market Value, as
of the date of exercise, of any resulting fractional shares, or (ii) if the
Administrator causes the Company to elect to settle all or part of its
obligations arising out of the exercise of the Stock Appreciation Rights in cash
pursuant to Section 14(f), deliver to the recipient an amount in cash
equal to the Fair Market Value, as of the date of exercise, of the shares of
Common Stock it would otherwise be obligated to deliver.
(f) The
Administrator, in its discretion, may cause the Company to settle all or any
part of its obligation arising out of the exercise of Stock Appreciation Rights
by the payment of cash in lieu of all or part of the shares of Common Stock it
would otherwise be obligated to deliver in an amount equal to the Fair Market
Value of such shares on the date of exercise.
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15. Non-Transferability. Unless
determined otherwise by the Administrator, an Option, Stock Appreciation Right,
Stock Purchase Right and Stock Award (until such time as all restrictions lapse)
may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in
any manner other than by will or by the laws of descent or distribution and, in
the case of an Option, Stock Appreciation Right or Stock Purchase Right, may be
exercised, during the lifetime of a Participant, only by the
Participant. If the Administrator makes an Award transferable, such
Award shall contain such additional terms and conditions as the Administrator
deems appropriate. Notwithstanding the foregoing, the Administrator,
in its sole discretion, may provide in the Option Agreement regarding a given
Option that the Optionee may transfer, without consideration for the transfer,
his or her Nonstatutory Stock Options to members of his or her immediate family,
to trusts for the benefit of such family members, or to partnerships in which
such family members are the only partners, provided that the transferee agrees
in writing with the Company to be bound by all of the terms and conditions of
this Plan and the applicable Option. During the period when Shares subject to
Stock Purchase Agreements and Stock Award Shares are restricted (by virtue
of vesting schedules or otherwise), such Shares may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution.
16. Adjustments
Upon Changes in Capitalization; Dissolution; Change in Control and
Other Events.
(a) Changes in
Capitalization. Subject to any required action by the
shareholders of the Company, the number of Shares of Common Stock covered by
each outstanding Option, Stock Purchase Right, Stock Award Agreement and Stock
Appreciation Right and the number of Shares of Common Stock that have been
authorized for issuance under the Plan but as to which no Awards have yet been
granted or that have been returned to the Plan upon cancellation or expiration
of an Option, Stock Purchase Right, Stock Award Agreement or Stock Appreciation
Right, as well as the price per share of Common Stock covered by each such
outstanding Option, Stock Purchase Right or Stock Appreciation Right, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Administrator, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of Shares
of Common Stock subject to an Award hereunder.
(b) Dissolution or
Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each holder of an
Award as soon as practicable prior to the effective date of such proposed
dissolution or liquidation. The Administrator in its discretion may
provide for an Optionee to have the right to exercise his or her Option or Stock
Appreciation Right and for a holder of a Stock Purchase Right to exercise his or
her Stock Purchase Right until ten (10) days prior to such transaction as
to all of the Shares covered thereby, including Shares as to which an applicable
Option or Stock Appreciation Right would not otherwise be
exercisable. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares purchased upon exercise of a
Stock Purchase Right or any restrictions as to any Stock Award shall lapse as to
all such Shares covered thereby, provided the proposed dissolution or
liquidation takes place at the time and in the manner
contemplated. To the extent it has not been previously exercised, an
Option, Stock Purchase Right or Stock Appreciation Right will terminate
immediately prior to the consummation of such proposed action.
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(c) Merger or Asset
Sale. In the event of a merger or consolidation of the Company
with or into another corporation or any other entity or the exchange of
substantially all of the outstanding stock of the Company for shares of another
entity or other property in which, after any such transaction the prior
shareholders of the Company own less than fifty percent (50%) of the voting
shares of the continuing or surviving entity, or in the event of the sale of all
or substantially all of the assets of the Company, (any such event, a
"Change of Control Event"), then, absent a provision to the contrary in any
particular Option Agreement, Restricted Stock Purchase Agreement, Stock Purchase
Right Agreement, Stock Appreciation Right Agreement or Stock Award
(in which case the terms of such shall supersede each of the provisions of
this Section 16(c) that are inconsistent with such Agreement or Award),
each outstanding Option, Stock Purchase Right, Restricted Stock, Stock
Appreciation Right and Stock Award shall be assumed or an equivalent option,
right, share or award substituted by the successor corporation or a parent or
subsidiary of the successor corporation. In the event that the Administrator
determines that the successor corporation or a parent or a subsidiary of the
successor corporation has refused to assume or substitute an equivalent option,
right, agreement or award for each outstanding Option, Stock Purchase Right,
Restricted Stock, Stock Appreciation Right and Stock Award, the awardee shall
fully vest in and have the right to exercise each outstanding Option, Stock
Appreciation Right and Stock Purchase Right as to all of the stock covered
thereby, including Shares that would not otherwise be vested or exercisable, and
all vesting periods under Restricted Stock Purchase Agreements and Stock Awards
shall be deemed to have been satisfied. If an Option, Stock Appreciation Right
and/or Stock Purchase Right becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a Change of Control, the
Administrator shall notify all awardees that all outstanding Options, Stock
Appreciation Rights and Stock Purchase Rights shall be fully exercisable for a
period of twenty (20) days from the date of such notice and that any
Options, Stock Appreciation Rights and Stock Purchase Rights that are not
exercised within such period shall terminate upon the expiration of such period.
For the purposes of this paragraph, all outstanding Options, Stock Appreciation
Rights and Stock Purchase Rights shall be considered assumed if, following the
consummation of the Change of Control, the Option, Stock Appreciation Right and
Stock Purchase Right confers the right to purchase or receive, for each Share
subject to the Option, Stock Appreciation Right or Stock Purchase Right
immediately prior to the consummation of the Change of Control, the
consideration (whether stock, cash, or other property) received in the Change of
Control by holders of Common Stock for each Share held on the effective date of
the transaction (and if holders were offered a choice of consideration, the
type chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the Change of Control is not
solely common stock of the successor corporation or its parent, the
Administrator may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option, Stock
Appreciation Right or Stock Purchase Right, for each Share subject to the
Option, Stock Appreciation Right or Stock Purchase Right, to be solely common
stock of the successor corporation or its parent or subsidiary equal in fair
market value to the per share consideration received by holders of Common Stock
in the Change of Control.
17. Substitute
Options. In the event that the Company, directly or
indirectly, acquires another entity, the Board may authorize the issuance of
stock options ("Substitute Options") to the individuals performing services for
the acquired entity in substitution of stock options previously granted to those
individuals in connection with their performance of services for such entity
upon such terms and conditions as the Board shall determine, taking into account
the conditions of Code Section 424(a), as from time to time amended or
superseded, in the case of a Substitute Option that is intended to be an
Incentive Stock Option. Shares of capital stock underlying Substitute Stock
Options shall not constitute Shares issued pursuant to this Plan for
any purpose.
18. Date of Grant. The
date of grant of an Option, Stock Purchase Right, Stock Award, Stock
Appreciation Right or Unrestricted Share shall be, for all purposes, the date on
which the Administrator makes the determination granting such Option, Stock
Purchase Right, Stock Award, Stock Appreciation Right or Unrestricted Share, or
such other later date as is determined by the Administrator. Notice
of the determination shall be provided to each grantee within a reasonable time
after the date of such grant.
19. Amendment
and Termination of the Plan.
(a) Amendment and
Termination. The Board may at any time amend, alter, suspend
or terminate the Plan.
(b) Shareholder
Approval. The Company shall obtain shareholder approval of any
Plan amendment to the extent necessary to comply with
Applicable Laws.
(c) Effect of Amendment or
Termination. No amendment, alteration, suspension or
termination of the Plan shall adversely affect the rights of any Participant
with respect to an outstanding Award, unless mutually agreed otherwise between
the Participant and the Administrator, which agreement shall be in writing and
signed by the Participant and the Company. Termination of the Plan
shall not affect the Administrator's ability to exercise the powers granted to
it hereunder with respect to Awards granted under the Plan prior to the date of
such termination.
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20. Conditions
Upon Issuance of Shares.
(a) Legal
Compliance. Shares shall not be issued in connection with the
grant of any Stock Award or Unrestricted Share or the exercise of any Option,
Stock Appreciation Right or Stock Purchase Right unless such grant or the
exercise of such Option, Stock Appreciation Right or Stock Purchase Right and
the issuance and delivery of such Shares shall comply with
Applicable Laws.
(b) Investment
Representations. As a condition to the grant of any Award or
the exercise of any Option, Stock Appreciation Right or Stock Purchase Right,
the Company may require the person receiving such Award or exercising such
Option, Stock Appreciation Right or Stock Purchase Right to represent and
warrant at the time of any such exercise or grant that the applicable Shares are
being acquired only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required.
(c) Additional
Conditions. The Administrator shall have the authority to
condition the grant of any Award or rights in such other manner that the
Administrator determines to be appropriate, provided that such condition is not
inconsistent with the terms of the Plan. Such conditions may include,
among other things, obligations of recipients to execute lock-up agreements and
shareholder agreements in the future. The Administrator may implement
such measures as the Administrator deems appropriate to determine whether Shares
acquired as a result of the exercise of an Incentive Stock Option have been the
subject of a "disqualifying disposition" for federal income tax purposes,
including requiring the Optionee to hold such Shares in his or her own name and
requiring that the Optionee notify the Administrator of any such "disqualifying
disposition."
(d) Trading Policy
Restrictions. Option, Stock Appreciation Right and Stock
Purchase Right exercises and other Awards under the Plan shall be subject to the
terms and conditions of any insider trading policy established by the Company or
the Administrator.
21. Inability to Obtain
Authority. The inability of the Company to obtain authority
from any regulatory body having jurisdiction over the Company, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
22. Reservation of
Shares. The Company, during the term of this Plan, will at all
times reserve and keep available such number of Shares as shall be sufficient to
satisfy the requirements of the Plan.
23. Shareholder
Approval. The Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months after the date the
Plan is adopted, or earlier as required by the rules of the stock exchange
governing trading of the Company's stock. Such shareholder approval
shall be obtained in the manner and to the degree required under
Applicable Laws.
24. Withholding; Notice of
Sale. The Company shall be entitled to withhold from any
amounts payable to an Employee any amounts, which the Company determines, in its
discretion, are required to be withheld under any Applicable Law as a result of
any action taken by a holder of an Award.
25. Governing Law. This
Plan shall be governed by the laws of the state of Florida, without regard to
conflict of law principles.
14