AMAZON BIOTECH, INC.
2005 STOCK INCENTIVE PLAN
1.
Purpose. The purpose of the 2005 Stock Incentive Plan of Amazon
Biotech, Inc. is to further align the
interests of employees, directors and
non-employee Consultants with those of the
stockholders by providing incentive
compensation opportunities tied to the
performance of the Common Stock and by
promoting increased ownership of the Common
Stock by such individuals. The Plan
is also intended to advance the interests
of the Company and its stockholders by
attracting, retaining and motivating key
personnel upon whose judgment,
initiative and effort the successful
conduct of the Company's business is
largely dependent.
2.
Definitions. Wherever the following capitalized terms are used in
the
Plan, they shall have the meanings
specified below:
"Affiliate" means (i) any entity that would be treated as an
"affiliate" of the Company for purposes of Rule 12b-2 under the
Exchange
Act and
(ii) any joint venture or other entity in which the Company has
a
direct or
indirect beneficial ownership interest representing at least
one-third
(1/3) of the aggregate voting power of the equity interests of
such
entity or one-third (1/3) of the aggregate fair market value of
the
equity
interests of such entity, as determined by the Committee.
"Award" means an award of a Stock Option, Stock Award, or
Restricted
Stock
Award granted under the Plan.
"Award Agreement" means a written or electronic agreement
entered
into
between the Company and a Participant setting forth the terms
and
conditions
of an Award granted to a Participant.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Company's common stock, $0.001 par
value
per
share.
"Committee" means the Compensation Committee of the Board, or
such
other
committee of the Board appointed by the Board to administer the
Plan, or
if no such committee exists, the Board.
"Company" means Amazon Biotech, Inc., a Utah corporation.
"Consultant" means any person which is a consultant or advisor
to
the
Company and which is a natural person and who provides bona
fide
services
to the Company which are not in connection with the offer or
sale
of
securities in a capital-raising transaction for the Company, and do
not
directly
or indirectly promote or maintain a market for the Company's
securities.
"Date of Grant" means the date on which an Award under the Plan
is
made by
the Committee, or such later date as the Committee may specify
to
be the
effective date of an Award.
"Disability" means a Participant being considered "disabled"
within
the
meaning of Section 409A(a)(2)(C) of the Code, unless otherwise
provided
in an Award Agreement.
"Eligible Person" means any person who is an employee of the
Company
or any
Affiliate or any person to whom an offer of employment with the
Company or
any Affiliate is extended, as determined by the Committee, or
any person
who is a Non-Employee Director, or any person who is Consultant
to the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"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
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securities exchange on which the Company's 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 Company's 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 Company's 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
Company's common stock outstanding as of said date, and the
quotient thus
obtained shall represent the book value of each share of the
Company's
common stock.
"Incentive Stock Option" means a Stock Option granted under
Section
6 hereof
that is intended to meet the requirements of Section 422 of the
Code and
the regulations thereunder.
"Non-Employee Director" means any member of the Board who is not
an
employee
of the Company.
"Nonqualified Stock Option" means a Stock Option granted under
Section 6
hereof that is not an Incentive Stock Option.
"Participant" means any Eligible Person who holds an
outstanding
Award
under the Plan.
"Plan" means the 2005 Stock Incentive Plan of Amazon Biotech,
Inc.
as set
forth herein, as amended from time to time.
"Restricted Stock Award" means a grant of shares of Common Stock
to
an
Eligible Person under Section 8 hereof that are issued subject to
such
vesting
and transfer restrictions as the Committee shall determine and
set
forth in
an Award Agreement.
"Service" means a Participant's employment with the Company or
any
Affiliate
or a Participant's service as a Non-Employee Director with the
Company,
as applicable.
"Stock Award" means a grant of shares of Common Stock to an
Eligible
Person
under Section 7 hereof that are issued free of transfer
restrictions and forfeiture conditions.
"Stock Option" means a contractual right granted to an Eligible
Person
under Section 6 hereof to purchase shares of Common Stock at
such
time and
price, and subject to such conditions, as are set forth in the
Plan and
the applicable Award Agreement.
3.
Administration.
3.1
Committee Members. The Plan shall be administered by a
Committee
comprised of one or more members of the
Board, or if no such committee exists,
the Board.
3.2
Committee Authority. The Committee shall have such powers and
authority as may be necessary or
appropriate for the Committee to carry out its
functions as described in the Plan. Subject
to the express limitations of the
Plan, the Committee shall have authority in
its discretion to determine the
Eligible Persons to whom, and the time or
times at which, Awards may be granted,
the number of shares, units or other rights
subject to each Award, the exercise,
base or purchase price of an Award (if
any), the time or times at which an Award
will become vested, exercisable or payable,
the performance goals and other
conditions of an Award, the duration of the
Award, and all other terms of the
Award. Subject to the terms of the Plan,
the Committee shall have the authority
to amend the terms of an Award in any
manner that is not inconsistent with the
Plan, provided that no such action shall
adversely affect the rights of a
Participant with respect to an outstanding
Award without the Participant's
consent. The Committee shall also have
discretionary authority to interpret the
Plan, to make factual determinations under
the Plan, and to make all other
determinations necessary or advisable for
Plan administration, including,
without limitation, to correct any defect,
to supply any omission or to
reconcile any inconsistency in the Plan or
any Award Agreement hereunder. The
Committee may prescribe, amend, and rescind
rules and regulations relating to
the Plan. The Committee's determinations
under the Plan need not be uniform and
may be made by the Committee selectively
among Participants and Eligible
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Persons, whether or not such persons are
similarly situated. The Committee
shall, in its discretion, consider such
factors as it deems relevant in making
its interpretations, determinations and
actions under the Plan including,
without limitation, the recommendations or
advice of any officer or employee of
the Company or such attorneys, consultants,
accountants or other advisors as it
may select. All interpretations,
determinations and actions by the Committee
shall be final, conclusive, and binding
upon all parties.
3.3
Delegation of Authority. The Committee shall have the right, from
time
to time, to delegate to one or more
officers of the Company the authority of the
Committee to grant and determine the terms
and conditions of Awards granted
under the Plan, subject to the requirements
of state law and such other
limitations as the Committee shall
determine. In no event shall any such
delegation of authority be permitted with
respect to Awards to any members of
the Board or to any Eligible Person who is
subject to Rule 16b-3 under the
Exchange Act or Section 162(m) of the Code.
The Committee shall also be
permitted to delegate, to any appropriate
officer or employee of the Company,
responsibility for performing certain
ministerial functions under the Plan. In
the event that the Committee's authority is
delegated to officers or employees
in accordance with the foregoing, all
provisions of the Plan relating to the
Committee shall be interpreted in a manner
consistent with the foregoing by
treating any such reference as a reference
to such officer or employee for such
purpose. Any action undertaken in
accordance with the Committee's delegation of
authority hereunder shall have the same
force and effect as if such action was
undertaken directly by the Committee and
shall be deemed for all purposes of the
Plan to have been taken by the
Committee.
4. Shares
Subject to the Plan.
4.1
Maximum Share Limitations. Subject to Section 4.3 hereof, the
maximum
aggregate number of shares of Common Stock
that may be issued and sold under all
Awards granted under the Plan shall be
Three Million (3,000,000) shares. Shares
of Common Stock issued and sold under the
Plan may be either authorized but
unissued shares or shares held in the
Company's treasury. To the extent that any
Award involving the issuance of shares of
Common Stock is forfeited, cancelled,
returned to the Company for failure to
satisfy vesting requirements or other
conditions of the Award, or otherwise
terminates without an issuance of shares
of Common Stock being made thereunder, the
shares of Common Stock covered
thereby will no longer be counted against
the foregoing maximum share
limitations and may again be made subject
to Awards under the Plan pursuant to
such limitations. Any Awards or portions
thereof that are settled in cash and
not in shares of Common Stock shall not be
counted against the foregoing maximum
share limitations.
4.2
Adjustments. If there shall occur any change with respect to
the
outstanding shares of Common Stock by
reason of any recapitalization,
reclassification, stock dividend,
extraordinary dividend, stock split, reverse
stock split or other distribution with
respect to the shares of Common Stock, or
any merger, reorganization, consolidation,
combination, spin-off or other
similar corporate change, or any other
change affecting the Common Stock, the
Committee may, in the manner and to the
extent that it deems appropriate and
equitable to the Participants and
consistent with the terms of the Plan, cause
an adjustment to be made in (i) the maximum
number and kind of shares provided
in Section 4.1 hereof, (ii) the number and
kind of shares of Common Stock, or
other rights subject to then outstanding
Awards, (iii) the exercise or base
price for each share or other right subject
to then outstanding Awards, and (iv)
any other terms of an Award that are
affected by the event. Notwithstanding the
foregoing, in the case of Incentive Stock
Options, any such adjustments shall,
to the extent practicable, be made in a
manner consistent with the requirements
of Section 424(a) of the Code.
4.3
Anti-Dilution. Notwithstanding anything contained in the Plan to
cover
the contrary, including any adjustments
discussed in this Section 4, the maximum
aggregate number of shares of Common Stock
that may be issued and sold under all
Awards granted under the Plan shall be
anti-dilutive in the event of a reverse
stock split by the Company and shall not
result in any reduction in the number
of shares available and authorized under
the Plan at the effective time of such
reverse stock split(s).
5.
Participation and Awards.
5.1
Designations of Participants. All Eligible Persons are eligible to
be
designated by the Committee to receive
Awards and become Participants under the
Plan. The Committee has the authority, in
its discretion, to determine and
designate from time to time those Eligible
Persons who are to be granted Awards,
the types of Awards to be granted and the
number of shares of Common Stock or
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units subject to Awards granted under the
Plan. In selecting Eligible Persons to
be Participants and in determining the type
and amount of Awards to be granted
under the Plan, the Committee shall
consider any and all factors that it deems
relevant or appropriate.
5.2
Determination of Awards. The Committee shall determine the terms
and
conditions of all Awards granted to
Participants in accordance with its
authority under Section 3.2 hereof. An
Award may consist of one type of right or
benefit hereunder or of two or more such
rights or benefits granted in tandem or
in the alternative. In the case of any
fractional share or unit resulting from
the grant, vesting, payment or crediting of
dividends or dividend equivalents
under an Award, the Committee shall have
the discretionary authority to (i)
disregard such fractional share or unit,
(ii) round such fractional share or
unit to the nearest lower or higher whole
share or unit, or (iii) convert such
fractional share or unit into a right to
receive a cash payment. To the extent
deemed necessary by the Committee, an Award
shall be evidenced by an Award
Agreement as described in Section 11.1
hereof.
6. Stock
Options.
6.1 Grant
of Stock Options. A Stock Option may be granted to any Eligible
Person selected by the Committee. Subject
to the provisions of Section 6.8
hereof and Section 422 of the Code, each
Stock Option shall be designated, in
the discretion of the Committee, as an
Incentive Stock Option or as a
Nonqualified Stock Option.
6.2
Exercise Price. The exercise price per share of a Stock Option
shall
not be less than 85 percent of the Fair
Market Value of the shares of Common
Stock on the Date of Grant, provided that
the Committee may in its discretion
specify for any Stock Option an exercise
price per share that is higher than the
Fair Market Value on the Date of Grant,
except that the price shall not be less
than 110 percent of the Fair Market Value
in the case of any person who owns
securities possessing more than 10 percent
of the total combined voting power of
all classes of securities of the
Company.
6.3
Vesting of Stock Options. The Committee shall in its discretion
prescribe the time or times at which, or
the conditions upon which, a Stock
Option or portion thereof shall become
vested and/or exercisable, and may
accelerate the vesting or exercisability of
any Stock Option at any time,
provided, however, that any Stock Option
shall vest at the rate of at least
twenty percent (20%) per year over five (5)
years from the date the Stock Option
is granted, subject to reasonable
conditions as may be provided for in the Award
Agreement. However, in the case of a Stock
Option granted to officers,
Non-employee Directors, managers or
Consultants of the Company, the Stock Option
may become fully exercisable, subject to
reasonable conditions, at anytime or
during any period established by the
Company. The requirements for vesting and
exercisability of a Stock Option may be
based on the continued Service of the
Participant with the Company or its
Affiliates for a specified time period (or
periods) or on the attainment of specified
performance goals established by the
Committee in its discretion.
6.4 Term
of Stock Options. The Committee shall in its discretion
prescribe
in an Award Agreement the period during
which a vested Stock Option may be
exercised, provided that the maximum term
of a Stock Option shall be ten years
from the Date of Grant. Except as otherwise
provided in this Section 6 or as
otherwise may be provided by the Committee,
no Stock Option issued to an
employee or a Non-Employee Director of the
Company may be exercised at any time
during the term thereof unless the employee
or a Non-Employee Director
Participant is then in the Service of the
Company or one of its Affiliates.
6.5
Termination of Service. Subject to Section 6.8 hereof with respect
to
Incentive Stock Options, the Stock Option
of any Participant whose Service with
the Company or one of its Affiliates is
terminated for any reason shall
terminate on the earlier of (A) the date
that the Stock Option expires in
accordance with its terms or (B) unless
otherwise provided in an Award
Agreement, and except for termination for
cause (as described in Section 10.2
hereof), the expiration of the applicable
time period following termination of
Service, in accordance with the following:
(1) twelve months if Service ceased
due to Disability, (2) eighteen months if
Service ceased at a time when the
Participant is eligible to elect immediate
commencement of retirement benefits
at a specified retirement age under a
pension plan to which the Company or any
of its Affiliates had made contributions,
(3) eighteen months if the Participant
died while in the Service of the Company or
any of its Affiliates, or (iv) three
months if Service ceased for any other
reason. During the foregoing applicable
period, except as otherwise specified in
the Award Agreement or in the event
Service was terminated by the death of the
Participant, the Stock Option may be
exercised by such Participant in respect of
the same number of shares of Common
Stock, in the same manner, and to the same
extent as if he or she had remained
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in the continued Service of the Company or
any Affiliate during the first three
months of such period; provided that no
additional rights shall vest after such
three months. The Committee shall have
authority to determine in each case
whether an authorized leave of absence
shall be deemed a termination of Service
for purposes hereof, as well as the effect
of a leave of absence on the vesting
and exercisability of a Stock Option.
Unless otherwise provided by the
Committee, if an entity ceases to be an
Affiliate of the Company or otherwise
ceases to be qualified under the Plan or if
all or substantially all of the
assets of an Affiliate of the Company are
conveyed (other than by encumbrance),
such cessation or action, as the case may
be, shall be deemed for purposes
hereof to be a termination of the
Service.
6.6 Stock
Option Exercise; Tax Withholding. Subject to such terms and
conditions as shall be specified in an
Award Agreement, a Stock Option may be
exercised in whole or in part at any time
during the term thereof by notice in
the form required by the Company, together
with payment of the aggregate
exercise price therefor and applicable
withholding tax. Payment of the exercise
price shall be made in the manner set forth
in the Award Agreement, unless
otherwise provided by the Committee: (i) in
cash or by cash equivalent
acceptable to the Committee, (ii) by
payment in shares of Common Stock that have
been held by the Participant for at least
six months (or such period as the
Committee may deem appropriate, for
accounting purposes or otherwise) valued at
the Fair Market Value of such shares on the
date of exercise, (iii) through an
open-market, broker-assisted sales
transaction pursuant to which the Company is
promptly delivered the amount of proceeds
necessary to satisfy the exercise
price, (iv) by a combination of the methods
described above or (v) by such other
method as may be approved by the Committee
and set forth in the Award Agreement.
In addition to and at the time of payment
of the exercise price, the Participant
shall pay to the Company the full amount of
any and all applicable income tax,
employment tax and other amounts required
to be withheld in connection with such
exercise, payable under such of the methods
described above for the payment of
the exercise price as may be approved by
the Committee and set forth in the
Award Agreement.
6.7 Limited
Transferability of Nonqualified Stock Options. All Stock
Options shall be nontransferable except (i)
upon the Participant's death, in
accordance with Section 11.2 hereof or (ii)
in the case of Nonqualified Stock
Options only, for the transfer of all or
part of the Stock Option to a
Participant's "family member" (as defined
for purposes of the Form S-8
registration statement under the Securities
Act of 1933), as may be approved by
the Committee in its discretion at the time
of proposed transfer. The transfer
of a Nonqualified Stock Option may be
subject to such terms and conditions as
the Committee may in its discretion impose
from time to time. Subsequent
transfers of a Nonqualified Stock Option
shall be prohibited other than in
accordance with Section 11.2 hereof.
6.8
Additional
Rules
