Exhibit
10.1
AMERICAN LITHIUM MINERALS,
INC.
2009 STOCK PLAN
1.
Purpose .
The purpose of this plan (the "Plan") is
to secure for American Lithium Minerals, Inc. (the "Corporation")
and its stockholders the benefits arising from capital stock
ownership by employees, officers and directors of, and consultants
or advisors to, the Corporation and its subsidiary corporations who
are expected to contribute to the Corporation's future growth and
success. The Plan permits grants of options to purchase
shares of Common Stock, $0.001 par value per share, of the
Corporation (“Common Stock”) and awards of shares of
Common Stock that are restricted as provided in Section 12
(“Restricted Shares”). Those provisions of the
Plan which make express reference to Section 422 of the Internal
Revenue Code of 1986, as amended or replaced from time to time (the
"Code"), shall apply only to Incentive Stock Options (as that term
is defined in the Plan).
2.
Type of Options and
Administration .
(a)
Types of Options
. Options granted pursuant to the
Plan shall be authorized by action of the Board of Directors of the
Corporation (or a Committee designated by the Board of Directors)
and may be either incentive stock options ("Incentive Stock
Options") meeting the requirements of Section 422 of the Code or
non-statutory options which are not intended to meet the
requirements of Section 422 of the Code.
(b)
Administration . The Plan will be administered by the Board of
Directors of the Corporation, whose construction and interpretation
of the terms and provisions of the Plan shall be final and
conclusive. The Board of Directors may in its sole discretion
grant Restricted Shares and options to purchase shares of Common
Stock and issue shares upon exercise of such options as provided in
the Plan. The Board shall have authority, subject to the
express provisions of the Plan, to construe the respective option
and Restricted Share agreements and the Plan, to prescribe, amend
and rescind rules and regulations relating to the Plan, to
determine the terms and provisions of the respective option and
Restricted Share agreements, which need not be identical, and to
make all other determinations in the judgment of the Board of
Directors necessary or desirable for the administration of the
Plan. The Board of Directors may correct any defect or supply
any omission or reconcile any inconsistency in the Plan or in any
option or Restricted Share agreement in the manner and to the
extent it shall deem expedient to carry the Plan into effect and it
shall be the sole and final judge of such expediency. No
director or person acting pursuant to authority delegated by the
Board of Directors shall be liable for any action or determination
under the Plan made in good faith. The Board of Directors
may, to the full extent permitted by or consistent with applicable
laws or regulations (including, without limitation, applicable
state law and Rule 16b-3 promulgated under the Securities Exchange
Act of 1934 (the "Exchange Act"), or any successor rule ("Rule
16b-3")), delegate any or all of its powers under the Plan to a
committee (the "Committee") appointed by the Board of Directors,
and if the Committee is so appointed all references to the Board of
Directors in the Plan shall mean and relate to such Committee with
respect to the powers so delegated. Any director to whom an
option or stock grant is awarded shall be ineligible to vote upon
his or her option or stock grant, but such option or stock grant
may be awarded any such director by a vote of the remainder of the
directors, except as limited below.
(c)
Applicability of Rule 16b-3
. Those provisions of the Plan
which make express reference to Rule 16b-3 shall apply to the
Corporation only at such time as the Corporation's Common Stock is
registered under the Exchange Act, and then only to such persons as
are required to file reports under Section 16(a) of the Exchange
Act (a "Reporting Person").
(d)
Compliance with Section 162(m) of the
Code . Section 162(m) of
the Code, added by the Omnibus Budget Reconciliation Act of 1993,
generally limits the tax deductibility to publicly held companies
of compensation in excess of $1,000,000 paid to certain
“covered employees” (“Covered Employees”).
It is the Corporation’s intention to preserve the
deductibility of such compensation to the extent it is reasonably
practicable and to the extent it is consistent with the
Corporation’s compensation objectives. For purposes of
this Plan, Covered Employees of the Corporation shall be those
employees of the Corporation described in Section 162(m)(3) of the
Code.
(e)
Special Provisions Applicable to
Options Granted to Covered Employees . In order for the full value of options
granted to Covered Employees to be deductible by the Corporation
for federal income tax purposes, the Corporation may intend for
such options to be treated as “qualified performance based
compensation” as described in Treas. Reg. §1.162-27(e)
(or any successor regulation). In such case, options granted
to Covered Employees shall be subject to the following additional
requirements:
(i)
such options and rights shall be granted
only by a committee comprised solely of two or more “outside
directors”, within the meaning of Treas. Reg. §
1.162.27(e)(3); and
(ii)
the exercise price of such options shall
in no event be less than the Fair Market Value (as defined below)
of the Common Stock as of the date of grant of such
options.
(f)
Section 409A of the Code
. The Board of Directors may only
grant those awards that either comply with the applicable
requirements of Section 409A of the Code, or do not result in the
deferral of compensation within the meaning of Section 409A of the
Code.
3.
Eligibility .
(a)
(a)
General . Options and Restricted Shares may be granted
to persons who are, at the time of grant, in a Business
Relationship (as defined below) with the Corporation;
provided , that Incentive Stock Options may only be granted
to individuals who are employees of the Corporation (within the
meaning of Section 3401(c) of the Code). A person who has
been granted an option or Restricted Shares may, if he or she is
otherwise eligible, be granted additional options or Restricted
Shares if the Board of Directors shall so determine. For
purposes of the Plan, “Business Relationship” means
that a person is serving the Corporation, its parent, if
applicable, or any of its subsidiaries, if applicable, in the
capacity of an employee, officer, director, advisor or
consultant.
(b)
Grant of Options to Reporting
Persons . From and after
the registration of the Common Stock of the Corporation under the
Exchange Act, the selection of a director or an officer who is a
Reporting Person (as the terms "director" and "officer" are defined
for purposes of Rule 16b-3) as a recipient of an option or
Restricted Shares, the timing of the option or Restricted Share
grant, the exercise price of the option and the number of
Restricted Shares or shares subject to the option shall be
determined either (i) by the Board of Directors, or (ii) by a
committee consisting of two or more "Non-Employee Directors" having
full authority to act in the matter. For the purposes of the
Plan, a director shall be deemed to be a "Non-Employee Director"
only if such person qualifies as a "Non-Employee Director" within
the meaning of Rule 16b-3, as such term is interpreted from time to
time.
4.
Stock Subject to Plan
.
The stock subject to options granted
under the Plan or grants of Restricted Shares shall be shares of
authorized but unissued or reacquired Common Stock. Subject
to adjustment as provided in Section 16 below, the maximum number
of shares of Common Stock of the Corporation (“Shares”)
which may be issued and sold under the Plan is five million Shares.
If any Restricted Shares shall be reacquired by the
Corporation, forfeited or an option granted under the Plan shall
expire, terminate or is canceled for any reason without having been
exercised in full, the forfeited Restricted Shares or unpurchased
Shares subject to such option shall again be available for
subsequent option or Restricted Share grants under the Plan.
Subject to adjustment in accordance with Section 16:
(a)
No more than an aggregate of
4,000,000 Shares may be issued under Stock Options during
the term of the Plan;
(b)
No Shares may be issued in the form of
Restricted Shares during the term of the Plan; and
(c)
The maximum number of Shares with respect
to which options may be granted to any one person during any fiscal
year of the Corporation may not exceed 5% of the
Corporation’s issued and outstanding shares at the time of
grant.
These limits shall be applied and
construed consistently with Section 162(m) of the Code.
5.
Forms of Option and Restricted Share
Agreements .
As a condition to the grant of Restricted
Shares or an option under the Plan, each recipient of Restricted
Shares or an option shall execute an option or Restricted Share or
Stock Option agreement in such form not inconsistent with the Plan
as may be approved by the Board of Directors. Such Option or
Restricted Share agreements may differ among recipients.
6.
Purchase Price .
(a)
General . The purchase price per Share deliverable upon
the exercise of an option shall be determined by the Board of
Directors at the time of grant of such option; provided ,
however , that the exercise price of an option shall not be
less than 100% of the Fair Market Value (as hereinafter defined) of
a Share, at the time of grant of such option, or not less than 110%
of such Fair Market Value in the case of an Incentive Stock Option
described in Section 11(b). "Fair Market Value" of a Share as
of a specified date for the purposes of the Plan shall mean the
closing price of a Share on the principal securities exchange on
which such Shares are traded on the day immediately preceding the
date as of which Fair Market Value is being determined, or on the
next preceding date on which such Shares are traded if no shares
were traded on such immediately preceding day, or if the Shares are
not traded on a securities exchange, Fair Market Value shall be
deemed to be the average of the high bid and low asked prices of
the Shares in the over-the-counter market on the day immediately
preceding the date as of which Fair Market Value is being
determined or on the next preceding date on which such high bid and
low asked prices were recorded. In no case shall Fair Market
Value be determined with regard to restrictions other than
restrictions which, by their terms, will never lapse. The
Board of Directors may also permit optionees, either on a selective
or aggregate basis, to simultaneously exercise options and sell the
Shares thereby acquired, pursuant to a brokerage or similar
arrangement, approved in advance by the Board of Directors, and to
use the proceeds from such sale as payment of the purchase price of
such shares.
(b)
Payment of Purchase Price
. Options granted under the Plan
may provide for the payment of the exercise price by delivery of
cash or a check to the order of the Corporation in an amount equal
to the exercise price of such options, or, to the extent provided
in the applicable option agreement, (i) by delivery to the
Corporation of Shares having a Fair Market Value on the date of
exercise equal in amount to the exercise price of the options being
exercised, (ii) through any cashless exercise feature that may be
included in the option agreement covering a particular option
grant, (iii) by any other means which the Board of Directors
determines are consistent with the purpose of the Plan and with
applicable laws and regulations (including, without limitation, the
provisions of Rule 16b-3 and Regulation T promulgated by the
Federal Reserve Board) or (iv) by any combination of such methods
of payment.
7.
Option Period .
Subject to earlier termination as
provided in the Plan, each option and all rights thereunder shall
expire on such date as determined by the Board of Directors and set
forth in the applicable option agreement, provided , that
such date shall not be later than (10) ten years after the date on
which the option is granted.
8.
Exercise of Options
.
Each option granted under the Plan shall
be exercisable either in full or in installments at such time or
times and during such period as shall be set forth in the option
agreement evidencing such option, subject to the provisions of the
Plan. No option granted to a Reporting Person for purposes of
the Exchange Act, however, shall be exercisable during the first
six months after the date of grant. Subject to the
requirements in the immediately preceding sentence, if an option is
not at the time of grant immediately exercisable, the Board of
Directors may (i) in the agreement evidencing such option, provide
for the acceleration of the exercise date or dates of the subject
option upon the occurrence of specified events, and/or (ii) at any
time prior to the complete termination of an option, accelerate the
exercise date or dates of such option, unless it would cause an
option that otherwise qualified as an Incentive Stock Option to
lose Incentive Stock Option treatment by application of Section
422(d)(1) of the Code and Section 11(c) of the Plan.
9.
Non-transferability of
Options .
No option granted under this Plan shall
be assignable or otherwise transferable by the optionee except by
will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code or Title
I of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), or the rules thereunder. An
option may be exercised during the lifetime of the optionee only by
the optionee. In the event an optionee dies during his
employment by the Corporation or any of its subsidiaries, or during
the three-month period following the date of termination of such
employment, his option shall thereafter be exercisable, during the
period specified to the full extent to which such option was
exercisable by the optionee at the time of his death during the
periods set forth in Section 10 or 11(d). If any optionee
should attempt to dispose of or encumber his or her options, other
than in accordance with the applicable terms of this Plan or the
applicable option agreement, his or her interest in such options
shall terminate.
10.
Effect of Termination of Employment or
Other Relationship .
Except as provided in Section 11(d) with
respect to Incentive Stock Options, and subject to the provisions
of the Plan and the applicable option agreement, an optionee may
exercise an option (but only to the extent such option was
exercisable at the time of termination of the optionee’s
employment or other relationship with the Corporation) at any time
within three (3) months following the termination of the optionee's
employment or other relationship with the Corporation or within one
(1) year if such termination was due to the death or disability of
the optionee, but, except in the case of the optionee's death, in
no event later than the expiration date of the Option. If the
termination of the optionee's employment is for cause or is
otherwise attributable to a breach by the optionee of an employment
or confidentiality or non-disclosure agreement, the option shall
expire immediately upon such termination. The Board of
Directors shall have the power to determine what constitutes a
termination for cause or a breach of an employment or
confidentiality or non-disclosure agreement, whether an optionee
has been terminated for cause or has breached such an agreement,
and the date upon which such termination for cause or breach
occurs. Any such determinations shall be final and conclusive
and binding upon the optionee.
11.
Incentive Stock Options
.
Options granted under the Plan which are
intended to be Incentive Stock Options shall be subject to the
following additional terms and conditions:
(a)
Express Designation
. All Incentive Stock Options
granted under the Plan shall, at the time of grant, be specifically
designated as such in the option agreement covering such Incentive
Stock Options.
(b)
10% Stockholder
. If any employee to whom an
Incentive Stock Option is to be granted under the Plan is, at the
time of the grant of such option, the owner of stock possessing
more than 10% of the total combined voting power of all classes of
stock of the Corporation (after taking into account the attribution
of stock ownership rules of Section 424(d) of the Code), then the
following special provisions shall be applicable to the Incentive
Stock Option granted to such individual:
(i)
The purchase price per share of the
Common Stock subject to such Incentive Stock Option shall not be
less than 110% of the Fair Market Value of one share of Common
Stock at the time of grant; and
(ii)
the option exercise period shall not
exceed five years from the date of grant.
(c)
Dollar Limitation
. For so long as the Code shall so
provide, options granted to any employee under the Plan (and any
other incentive stock option plans of the Corporation) which are
intended to constitute Incentive Stock Options shall not constitute
Incentive Stock Options to the extent that such options, in the
aggregate, become exercisable for the first time in any one
calendar year for shares of Common Stock with an aggregate Fair
Market Value, as of the respective date or da
