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EXHIBIT 4.1
M.B.A. HOLDINGS, INC.
2004-B
EMPLOYEE STOCK INCENTIVE PLAN
1. General Provisions.
1.1 Purpose.
This 2004-B Stock Incentive Plan (the "Plan") is intended to
allow designated
officers and employees (all of whom are sometimes collectively referred to
herein as the "Employees," or individually as the "Employee") of M.B.A.
Holdings, Inc., a Nevada corporation (the Company") and its
Subsidiaries (as
that term is defined below) which they may have from time to
time (the Company
and such Subsidiaries are referred to herein as the "Company") to receive
certain options (the "Stock Options") to purchase common stock
of the Company,
no par value, stated value $0.0001 per share
(the "Common Stock").
As used in
this Plan, the term "Subsidiary" shall mean each corporation which is a
"subsidiary corporation" of the Company within
the meaning of Section 424(f) of
the Internal Revenue Code of 1986, as amended
(the Code"). The
purpose of this
Plan is to provide the Employees, who make significant and extraordinary
contributions to the long-term growth and performance of the Company, with
equity-based compensation incentives, and
to attract and retain the Employees.
1.2
Administration.
1.2.1 The Plan
shall be administered
by the Compensation Committee (the
"Committee") of, or appointed by, the Board of Directors of the Company (the
"Board"). The Committee shall select one of its members as
Chairman and shall
act by vote of a majority of a quorum, or by unanimous written consent. A
majority of its members shall constitute a quorum. The Committee shall be
governed by the provisions of the Company's
Bylaws and of Nevada
law applicable
to the Board, except as otherwise provided
herein or determined by the Board.
1.2.2
The Committee shall have full and complete authority, in its
discretion, but subject to the express
provisions
of this Plan (a) to
approve
the Employees nominated by the management
of the Company to be granted Awards or
Stock Options; (b) to determine the number of Awards or Stock
Options to be
granted to an Employee; (c) to determine the time or times at which Awards
or
Stock Options shall be granted; to
establish the terms and conditions upon which
Awards or Stock Options may be exercised; (d) to remove or adjust any
restrictions and conditions upon Awards or
Stock Options; (e) to specify, at the
time of grant, provisions relating to exercisability of Stock Options and to
accelerate or otherwise modify the
exercisability of any Stock Options; and (f)
to adopt such rules and regulations and to
make all other determinations deemed
necessary or desirable for the
administration of this Plan. All interpretations
and constructions of this Plan by the Committee, and all of its actions
hereunder, shall be binding and conclusive
on all persons for all purposes.
1.2.3
The Company hereby agrees to indemnify and hold harmless each
Committee member and each Employee,
and the estate and
heirs of such Committee
member or Employee, against all claims, liabilities, expenses, penalties,
damages or other pecuniary losses, including legal fees, which such Committee
member or Employee, his estate or heirs may suffer as a result of his
responsibilities, obligations or duties in connection with this Plan, to the
extent that insurance, if any, does not cover the payment of such items.
No
member of the Committee or the Board shall be liable for any action or
determination made in good faith with
respect to this Plan or any Award or Stock
Option granted pursuant to this Plan.
1.3 Eligibility
and Participation.
The Employees eligible under this Plan shall be approved
by the Committee from
those Employees who, in the opinion of the
management of the
Company, are in
positions which enable them to make
significant
contributions to the
long-term
performance and growth of the Company.
In selecting the
Employees to whom Award
or Stock Options may be granted,
consideration shall be given to factors such as
employment position, duties and
responsibilities,
ability, productivity, length
of service, morale, interest in the Company
and recommendations of supervisors.
1.4 Shares
Subject to this Plan.
The maximum number of shares of the Common
Stock that may be issued pursuant to
this Plan shall be 80,000,000 subject to adjustment pursuant to the provisions
of Paragraph 4.1. If shares of the Common
Stock awarded or issued under this
Plan are reacquired by the Company due to a
forfeiture or for any other reason,
such shares shall be cancelled and thereafter shall again be available for
purposes of this Plan. If a Stock Option
expires, terminates or is cancelled for
any reason without having been exercised in
full, the shares of the Common Stock
not purchased thereunder shall again be
available for purposes of this Plan.
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2. Provisions Relating to Stock
Options.
2.1 Grants of
Stock Options.
The Committee may grant Stock Options in
such amounts, at such times, and to the
Employees nominated by the management of the
Company as the
Committee, in its
discretion, may determine. Stock Options granted under this Plan shall
constitute "incentive stock options" within the meaning of Section 422
of the
Code, if so designated by the Committee on the date of grant.
The Committee
shall also have the discretion to grant Stock
Options which do not
constitute
incentive stock options, and any such Stock Options shall be designated
non-statutory stock options by the
Committee on the date of grant. The aggregate
Fair Market Value (determined as of the time an incentive stock option is
granted) of the Common Stock with respect
to which incentive
stock options are
exercisable for the first time by any
Employee during any one calendar year
(under all plans of the Company and any
parent or subsidiary of the Company) may
not exceed the maximum amount permitted
under Section 422 of the Code currently,
$100,000.00). Non-statutory stock options shall not be subject to the
limitations relating to incentive stock options contained in the preceding
sentence. Each Stock Option shall be evidenced by a written agreement (the
"Option Agreement") in a form approved by
the Committee, which shall be executed
on behalf of the Company and by the Employee to whom the Stock Option is
granted, and which shall be subject to the
terms and conditions of this Plan. In
the discretion of the Committee, Stock Options may include
provisions
(which
need not be uniform), authorized by the Committee in its discretion, that
accelerate an Employee's rights to exercise
Stock Options following a "Change in
Control," upon termination of the Employee's
employment by the
Company without
"Cause" or by the Employee for "Good Reason," as such terms are defined in
Paragraph 3.1 hereof. The holder of a Stock Option shall
not be entitled to the
privileges of stock ownership as to any shares of the
Common Stock not actually
issued to such holder.
2.2 Purchase
Price.
The purchase price (the "Exercise
Price") of shares of
the Common Stock subject
to each Stock Option (the "Option
Shares") shall not be
less than 85 percent of
the Fair Market Value of the Common Stock on the date of exercise. For an
Employee holding greater than 10 percent of
the total voting power of all stock
of the Company, either Common or Preferred,
the Exercise Price of
an incentive
stock option shall be at least 110 percent of the Fair Market Value of the
Common Stock on the date of the
grant of the
option. As used herein, "Fair
Market Value" means the mean between the highest and lowest reported sales
prices of the Common Stock on the New York
Stock Exchange
Composite Tape or, if
not listed on such exchange, on any other national securities
exchange on which
the Common Stock is listed or on The Nasdaq
Stock Market,
or, if not so
listed
on any other national securities exchange or The Nasdaq Stock
Market, then the
average of the bid price of the Common
Stock during the last five trading
days
on the OTC Bulletin Board immediately preceding the last trading day
prior to
the date with respect to which the Fair
Market Value is to be determined. If the
Common Stock is not then publicly traded, then the Fair Market Value of the
Common Stock shall be the book value of the
Company per share as
determined on
the last day of March, June, September, or December in any year closest to
the
date when the determination is to be made. For the purpose of
determining book
value hereunder, book value shall be determined by
adding as of the applicable
date called for herein the capital, surplus, and undivided profits of the
Company, and after having deducted any
reserves theretofore established; the sum
of these items shall be divided by the number of shares of the Common
Stock
outstanding as of said date, and the
quotient thus obtained shall represent the
book value of each share of the Common
Stock of the Company.
2.3 Option
Period.
The Stock Option period (the "Term") shall
commence on the date
of grant of the
Stock Option and shall be 10 years or such
shorter period as is
determined
by
the Committee. Each Stock Option shall provide
that it is exercisable
over its
term in such periodic installments as the Committee may determine,
subject to
the provisions of Paragraph 2.4.1.
Section 16(b) of the
Securities Exchange Act
of 1934, as amended (the "Exchange Act")
exempts persons normally subject to the
reporting requirements of Section 16(a) of the Exchange Act (the
"Section 16
Reporting Persons") pursuant to a qualified
employee stock option plan from the
normal requirement of not selling until at
least six months and one day from the
date the Stock Option is granted.
2.4 Exercise of
Options.
2.4.1 Each Stock
Option may be exercised in whole or in part (but not as to
fractional shares) by delivering it for
surrender or endorsement to the Company,
attention of the Corporate Secretary, at the principal office of the Company,
together with payment of the Exercise Price
and an executed Notice and Agreement
of Exercise in the form prescribed by
Paragraph 2.4.2.
Payment may be made
(a)
in cash, (b) by cashier's or certified
check, (c) by surrender of previously
owned shares of the Common Stock valued pursuant to Paragraph 2.2 (if the
Committee authorizes payment in stock in its
discretion),
(d) by withholding
from the Option Shares which would otherwise be issuable upon the exercise of
the Stock Option that number of Option
Shares equal to the exercise price of the
Stock Option, if such withholding is authorized by the Committee in its
discretion, or (e) in the discretion of the
Committee,
by the delivery to
the
Company of the optionee's promissory note
secured by the Option Shares, bearing
interest at a rate sufficient to prevent the imputation of interest under
Sections 483 or 1274 of the Code,
and having such other
terms and conditions as
may be satisfactory to the Committee. Subject to the provisions of this
Paragraph 2.4 and Paragraph 2.5, the Employee has the right to
exercise his or
her Stock Options at the rate of at least 20
percent per year over five years
from the date the Stock Option is
granted.
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2.4.2
Exercise of each Stock
Option is conditioned
upon the agreement
of
the Employee to the terms and conditions of this Plan and of such Stock
Option
as evidenced by the Employee's execution and delivery of a Notice
and Agreement
of Exercise in a form to be determined by
the Committee in its discretion. Such
Notice and Agreement of Exercise shall set forth the agreement of
the Employee
that (a) no Option Shares will be sold or
otherwise distributed
in violation of
the Securities Act of 1933, as amended (the "Securities Act") or any other
applicable federal or state securities laws,
(b) each Option Share
certificate
may be imprinted with legends reflecting any applicable federal and state
securities law restrictions and conditions,
(c) the Company may comply with said
securities law restrictions and issue "stop transfer" instructions to its
Transfer Agent and Registrar without
liability, (d) if the Employee is a Section
16 Reporting Person, the Employee will furnish to the Company a copy
of each
Form 4 or Form 5 filed by said Employee and will timely file all reports
required under federal securities laws, and (e) the Employee will report
all
sales of Option Shares to the Company in writing on a form
prescribed
by the
Company.
2.4.3 No Stock
Option shall be exercisable unless and until any
applicable
registration or qualification requirements
of federal and state securities laws,
and all other legal requirements, have been fully complied with. At no time
shall the total number of securities
issuable upon exercise
of all outstanding
options under this Plan, and the total number of securities
provided for under
any bonus or similar plan or agreement of the Company exceed a number of
securities which is equal to 30 percent of
the then outstanding
securities of
the Company, unless a percentage higher than 30
percent is approved by at least
two-thirds of the outstanding securities entitled to vote. The
Company will use
reasonable efforts to maintain the
effectiveness
of a Registration
Statement
under the Securities Act for the issuance of Stock
Options and shares
acquired
thereunder, but there may be times when no
such Registration
Statement will be
currently effective. The exercise of Stock Options may
be temporarily suspended
without liability to the Company during times when no such Registration
Statement is currently effective, or during times when, in the reasonable
opinion of the Committee, such suspension is necessary to
preclude violation of
any requirements of applicable law or
regulatory bodies having jurisdiction over
the Company. If any Stock Option would expire
for any reason except
the end of
its term during such a suspension, then if
exercise of such Stock Option is duly
tendered before its expiration, such Stock Option shall be exercisable and
exercised (unless the attempted exercise is
withdrawn) as of the first day after
the end of such suspension. The Company shall have no obligation to file any
Registration Statement covering resales of
Option Shares.
2.4.4
The Committee, in its discretion, may permit an Employee to
immediately exercise his Stock Options
without executing a promissory note as
payment of the Exercise Price pursuant to
paragraph 2.4.1 above,
if the Company
has made an arrangement with the Employee' stock brokerage
firm to transfer 85%
of the selling price of the Employee's Option Shares to the Company. The
Exercise Price for such Option Shares shall
be equal to said 85% of the selling
price of the Option Shares. If the Employee
agrees in writing to sell his Option
Shares within 30 days of the date of the
Stock Option grant,
the Company, upon
instructions from the Committee,
shall order the
Company's stock transfer agent
to transfer the Option Shares in the
Employee's name to the Employee's brokerage
firm.
2.5 Continuous
Employment
Except as provided in Paragraph 2.7 below,
an Employee may not
exercise a Stock
Option unless from the date of grant
to the date of exercise the Employee
remains continuously in the employ of the Company. For purposes of this
Paragraph 2.5, the period of continuous employment of an Employee with the
Company shall be deemed to include (without extending the term of the Stock
Option) any period during which the Employee is on leave of absence
with the
consent of the Company, provided that such leave of absence
shall not exceed
three months and that the Employee returns to the employ of the
Company at the
expiration of such leave of absence. If the Employee fails to return to the
employ of the Company at the expiration of
such leave of absence, the Employee's
employment with the Company shall be deemed
terminated as of the date such leave
of absence comme
