EXHIBIT 4.1
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CROSS ATLANTIC COMMODITIES, INC.
2008 EMPLOYEE AND CONSULTANT STOCK INCENTIVE PLAN
AS ADOPTED JULY 31, 2008
1.
PURPOSE.
The purpose of this Plan is to provide incentives to attract,
retain
and motivate eligible persons and consultants whose present and
potential
contributions are important to the success of the Company, its
Parent and
Subsidiaries, by offering them an opportunity to participate in the
Company's
future performance through awards of Options, Restricted Stock and
Stock
Bonuses. Capitalized terms not defined in the text are defined in
Section 2.
2.
DEFINITIONS.
As used in this Plan, the following terms will have the
following
meanings:
"AWARD" means any award under this Plan, including any Option,
Restricted Stock or Stock Bonus.
"AWARD AGREEMENT" means, with respect to each Award, the signed
written
agreement between the Company and the Participant setting forth the
terms and
conditions of the Award.
"BOARD" means the Board of Directors of the Company.
"CAUSE" means any cause, as defined by applicable law, for the
termination of a Participant's employment with the Company or a
Parent or
Subsidiary of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" means Cross
Atlantic Commodities, a Nevada corporation, or
any successor corporation.
"DEBT OBLIGATION" means any obligation of the Company to a
Participant
(including an Insider) for consulting and/or employee services
rendered to the
Company.
"DISABILITY" means a disability, whether temporary or
permanent,
partial or total, as determined by the Board.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
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"EXCHANGE PRICE" means the price at which Shares are exchanged
with
holders of Debt Obligations.
"EXERCISE PRICE" means the price at which a holder of an Option
may
purchase the Shares issuable upon exercise of the Option.
"FAIR MARKET
VALUE" means, as of any date, the value of an Option to
purchase a share of the Company's Common Stock determined as
follows:
(a) if such
Common Stock is publicly traded and is then
listed on a national securities exchange, its closing
price on the date of determination on the principal
national securities exchange on which the Common
Stock is listed or admitted to trading as reported in
The Wall Street Journal;
(b) if such
Common Stock is quoted on the NASDAQ National
Market, its closing price on the NASDAQ National
Market on the date of determination as reported in
The Wall Street Journal;
(c) if such
Common Stock is publicly traded but is not
listed or admitted to trading on a national
securities exchange, the average of the closing bid
and asked prices on the date of determination as
reported by Bloomberg, L.P.;
(d) in the
case of an Award made on the Effective Date,
the price per share at which shares of the Company's
Common Stock are initially offered for sale to the
public by the Company's underwriters in the initial
public offering of the Company's Common Stock
pursuant to a registration statement filed with the
SEC under the Securities Act; or
(e) if none of the
foregoing is applicable, by the Board
in good faith.
"INSIDER" means an officer or director of the Company or any
other
person whose transactions in the Company's Common Stock are subject
to Section
16 of the Exchange Act.
"OPTION" means an award of an option to purchase Shares pursuant
to
Section 6.
"PARENT" means any corporation (other than the Company) in an
unbroken
chain of corporations ending with the Company if each of such
corporations other
than the Company owns stock possessing 50% or more of the total
combined voting
power of all classes of stock in one of the other corporations in
such chain.
"PARTICIPANT" means a person who receives an Award under this
Plan.
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"PERFORMANCE FACTORS" means the factors selected by the Board, in
its
sole and absolute discretion, from among the following measures to
determine
whether the performance goals applicable to Awards have been
satisfied:
(a) Net
revenue and/or net revenue growth;
(b) Earnings
before income taxes and amortization and/or
earnings before income taxes and amortization growth;
(c) Operating
income and/or operating income growth;
(d) Net income
and/or net income growth;
(e) Earnings
per share and/or earnings per share growth;
(f) Total
stockholder return and/or total stockholder
return growth;
(g) Return on
equity;
(h) Operating
cash flow return on income;
(i) Adjusted
operating cash flow return on income;
(j) Economic
value added; and
(k) Individual
confidential business objectives.
"PERFORMANCE PERIOD" means the period of service determined by
the
Board, not to exceed five years, during which years of service or
performance is
to be measured for Restricted Stock Awards or Stock Bonuses.
"PLAN" means this Cross Atlantic Commodities, Inc. 2008 Employee
and
Consultant Stock Incentive Plan, as amended from time to time.
"RESTRICTED STOCK AWARD" means an award of Shares pursuant to
Section
7.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means shares of the Company's Common Stock reserved
for
issuance under this Plan, as adjusted pursuant to Sections 3 and
19, and any
successor security.
"STOCK BONUS" means an award of Shares, or cash in lieu of
Shares,
pursuant to Section 8.
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"SUBSIDIARY" means any corporation (other than the Company) in
an
unbroken chain of corporations beginning with the Company if each
of the
corporations other than the last corporation in the unbroken chain
owns stock
possessing 50% or more of the total combined voting power of all
classes of
stock in one of the other corporations in such chain.
"TERMINATION" or "TERMINATED" means, for purposes of this Plan
with
respect to a Participant, that the Participant has for any reason
ceased to
provide services as an employee, officer, director, consultant,
independent
contractor, or advisor to the Company or a Parent or Subsidiary of
the Company.
An employee will not be deemed to have ceased to provide services
in the case of
(i) sick leave, (ii) military leave, or (iii) any other leave of
absence
approved by the Company, provided that such leave is for a period
of not more
than 90 days, unless reemployment upon the expiration of such leave
is
guaranteed by contract or statute or unless provided otherwise
pursuant to a
formal policy adopted from time to time by the Company and issued
and
promulgated to employees in writing. In the case of any employee on
an approved
leave of absence, the Board may make such provisions respecting
suspension of
vesting of the Award while on leave from the employ of the Company
or a
Subsidiary as it may deem appropriate, except that in no event may
an Option be
exercised after the expiration of the term set forth in the Option
agreement.
The Board will have sole discretion to determine whether a
Participant has
ceased to provide services and the effective date on which the
Participant
ceased to provide services ("TERMINATION DATE").
"UNVESTED SHARES" means "Unvested Shares" as defined in the
Award
Agreement.
"VESTED SHARES" means "Vested Shares" as defined in the Award
Agreement.
3.
SHARES SUBJECT TO THE PLAN.
3.1 NUMBER OF SHARES AVAILABLE. Subject to Sections 3.2 and 19,
the
total aggregate number of Shares reserved and available for grant
and issuance
pursuant to this Plan will be 100,000,000 plus Shares that are
subject to: (a)
issuance upon exercise of an Option but cease to be subject to such
Option for
any reason other than exercise of such Option; (b) an Award granted
hereunder
but forfeited or repurchased by the Company at the original issue
price; and (c)
an Award that otherwise terminates without Shares being issued. At
all times the
Company shall reserve and keep available a sufficient number of
Shares as shall
be required to satisfy the requirements of all outstanding Options
granted under
this Plan and all other outstanding but unvested Awards granted
under this Plan.
3.2 ADJUSTMENT OF SHARES. In the event that the number of
outstanding
shares is changed by a stock dividend, recapitalization, stock
split, reverse
stock split, subdivision, combination, reclassification or similar
change in the
capital structure of the Company without consideration, then (a)
the number of
Shares reserved for issuance under this Plan, (b) the Exercise
Prices of and
number of Shares subject to outstanding Options, and (c) the number
of Shares
subject to other outstanding Awards will be proportionately
adjusted, subject to
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any required action by the Board or the stockholders of the Company
and
compliance with applicable securities laws; provided, however, that
fractions of
a Share will not be issued but will either be replaced by a cash
payment equal
to the Fair Market Value of such fraction of a Share or will be
rounded up to
the nearest whole Share, as determined by the Board.
3.3 LIMITATION ON TOTAL NUMBER OF SHARES ISSUABLE UNDER THE PLAN.
In
order to comply with the California Code of Regulations (assuming
the Company
has Participants residing in the State of California), the Company
will insure
that at no time shall the total number of Shares issuable under
this Plan and
upon the exercise of all outstanding options and the total number
of shares
provided for under this Plan and any other Company plan or
agreement of the
Company exceed the applicable percentage as calculated in
accordance with the
conditions and exclusions of regulation 260.140.45 of Rules of the
California
Corporations Commissioner.
4.
ELIGIBILITY.
ISOs (as defined in Section 6 below) may be granted only to
employees
(including officers and directors who are also employees) of the
Company or of a
Parent or Subsidiary of the Company. All other Awards may be
granted to
employees, officers, directors, consultants, independent
contractors and
advisors of the Company or any Parent or Subsidiary of the Company;
provided
such consultants, contractors and advisors render bona fide
services not in
connection with the offer and sale of securities in a
capital-raising
transaction.
5.
ADMINISTRATION.
5.1 BOARD AUTHORITY. This Plan will be administered by the
Board.
Subject to the general purposes, terms and conditions of this Plan,
the Board
will have full power to implement and carry out this Plan. Without
limitation,
the Board will have the authority to:
(a) construe
and interpret this Plan, any Award Agreement
and any other agreement or document executed pursuant
to this Plan;
(b) prescribe,
amend and rescind rules and regulations
relating to this Plan or any Award;
(c) select
persons to receive Awards;
(d) determine
the form and terms of Awards;
(e) determine
the number of Shares or other consideration
subject to Awards;
(f) determine
whether Awards will be granted singly, in
combination with, in tandem with, in replacement of,
or as alternatives to, other Awards under this Plan
or any other incentive or compensation plan of the
Company or any Parent or Subsidiary of the Company;
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(g) grant
waivers of Plan or Award conditions;
(h) determine
the vesting, ability to exercise and
payment of Awards;
(i) correct
any defect, supply any omission or reconcile
any inconsistency in this Plan, any Award or any
Award Agreement;
(j) determine
whether an Award has been earned;
and
(k) make all
other determinations necessary or advisable
for the administration of this Plan.
5.2 BOARD DISCRETION. Any determination made by the Board with
respect
to any Award will be made at the time of grant of the Award or,
unless in
contravention of any express term of this Plan or Award, at any
later time, and
such determination will be final and binding on the Company and on
all persons
having an interest in any Award under this Plan. The Board may
delegate to one
or more officers of the Company the authority to grant an Award
under this Plan
to Participants who are not Insiders of the Company.
6.
OPTIONS.
The Board may grant Options to eligible persons and will
determine
whether such Options will be Incentive Stock Options within the
meaning of the
Code ("ISO") or Nonqualified Stock Options ("NQSOS"), the number of
Shares
subject to the Option, the Exercise Price of the Option, the period
during which
the Option may be exercised, and all other terms and conditions of
the Option,
subject to the following:
6.1 FORM OF OPTION GRANT. Each Option granted under this Plan will
be
evidenced by an Award Agreement that will expressly identify the
Option as an
ISO or an NQSO (hereinafter referred to as the "STOCK OPTION
AGREEMENT"), and
will be in such form and contain such provisions (which need not be
the same for
each Participant) as the Board may from time to time approve, and
which will
comply with and be subject to the terms and conditions of this
Plan.
6.2 DATE OF GRANT. The date of grant of an Option will be the date
on
which the Board makes the determination to grant such Option,
unless otherwise
specified by the Board. The Stock Option Agreement and a copy of
this Plan will
be delivered to the Participant within a reasonable time after the
granting of
the Option.
6.3 EXERCISE PERIOD. Options may be exercisable within the times
or
upon the events determined by the Board as set forth in the Stock
Option
Agreement governing such Option; provided, however, that no Option
will be
exercisable after the expiration of ten (10) years from the date
the Option is
granted; and provided further that no ISO granted to a person who
directly or by
attribution owns more than ten percent (10%) of the total combined
voting power
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of all classes of stock of the Company or of any Parent or
Subsidiary of the
Company ("TEN PERCENT STOCKHOLDER") will be exercisable after the
expiration of
five (5) years from the date the ISO is granted. The Board also may
provide for
Options to become exercisable at one time or from time to time,
periodically or
otherwise, in such number of Shares or percentage of Shares as the
Board
determines. All Options granted hereunder shall grant the
Participants the right
to exercise their Options at the rate of at least 20% per year for
five years,
subject to the continued employment of the Participant by the
Company.
6.4 EXERCISE PRICE. The Exercise Price of an Option will be
determined
by the Board when the Option is granted and may be not less than
85% of the Fair
Market Value of the Shares on the date of grant; provided that: (a)
the Exercise
Price of an ISO will be not less than 100% of the Fair Market Value
of the
Shares on the date of grant; and (b) the Exercise Price of any ISO
granted to a
Ten Percent Stockholder will not be less than 110% of the Fair
Market Value of
the Shares on the date of grant. Payment for the Shares purchased
may be made in
accordance with Section 9 of this Plan.
6.5 METHOD OF EXERCISE. Options may be exercised only by delivery
to
the Company of a written stock option exercise agreement ("EXERCISE
AGREEMENT")
in a form approved by the Board, (which need not be the same for
each
Participant), stating the number of Shares being purchased, the
restrictions
imposed on the Shares purchased under such Exercise Agreement, if
any, and such
representations and agreements regarding Participant's investment
intent and
access to information and other matters, if any, as may be required
or desirable
by the Company to comply with applicable securities laws, together
with payment
in full of the Exercise Price for the number of Shares being
purchased.
6.6 TERMINATION. Notwithstanding the exercise periods set forth in
the
Stock Option Agreement, exercise of an Option will always be
subject to the
following:
(a) If the Participant's service is Terminated for any reason
except death or Disability, then the Participant may exercise such
Participant's
Options only to the extent that such Options would have been
exercisable upon
the Termination Date no later than three (3) months after the
Termination
Date(or such shorter or longer time period not exceeding five (5)
years as may
be determined by the Board, with any exercise beyond three (3)
months after the
Termination Date deemed to be an NQSO), but in any event, no later
than the
expiration date of the Options.
(b) If the Participant's service is Terminated because of
Participant's death or Disability (or the Participant dies within
three (3)
months after a Termination other than for Cause or because of
Participant's
Disability), then Participant's Options may be exercised only to
the extent that
such Options would have been exercisable by Participant on the
Termination Date
and must be exercised by Participant (or Participant's legal
representative or
authorized assignee) no later than twelve (12) months after the
Termination Date
(or such shorter or longer time period not exceeding five (5) years
as may be
determined by the Board, with any such exercise beyond (i) three
(3) months
after the Termination Date when the Termination is for any reason
other than the
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Participant's death or Disability, or (ii) twelve (12) months after
the
Termination Date when the Termination is for Participant's death or
Disability,
deemed to be an NQSO), but in any event no later than the
expiration date of the
Options.
(c) Notwithstanding the provisions in paragraph 6.6(a) above,
if a Participant's service is Terminated for Cause, neither the
Participant, the
Participant's estate nor such other person who may then hold the
Option shall be
entitled to exercise any Option with respect to any Shares
whatsoever, after
Termination, whether or not after Termination the Participant may
receive
payment from the Company or Subsidiary for vacation p
