BANYAN CORPORATION
2008-2 STOCK AWARD PLA N
This Banyan Corporation 2008-2 Stock Award Plan (the "Plan") is
designed to retain directors, executives and selected employees and
reward them for making major contributions to the success of the
Company. These objectives are accomplished by making long-term
incentive awards under the Plan thereby providing Participants with
a proprietary interest in the growth and performance of the
Company.
1.
Definitions.
(a)
"Board" - The Board of Directors of the Company.
(b)
"Code" - The Internal Revenue Code of 1986, as amended from time to
time.
(c)
"Committee" - The Compensation Committee of the Company's Board, or
such other committee of the Board that is designated by the Board
to administer the Plan, composed of not less than two members of
the Board all of whom are disinterested persons, as contemplated by
Rule 16b-3 ("Rule 16b-3") promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(d)
"Company" - Banyan Corporation and its subsidiaries including
subsidiaries of subsidiaries.
(e)
"Exchange Act" - The Securities Exchange Act of 1934, as amended
from time to time.
(f)
"Fair Market Value" - The fair market value of the Company's issued
and outstanding Stock as determined in good faith by the Board or
Committee.
(g)
"Participant" - A director, officer, or employee of the Company to
whom an Award has been made under the Plan.
(h)
"Securities Act" - The Securities Act of 1933, as amended from time
to time.
(i)
"Stock Award Agreement" - An agreement between the Company and a
Participant that sets forth the terms, conditions and limitations
applicable to a Stock Award.
(j)
"Stock" - Authorized and issued or unissued shares of Common Stock,
no par value of the Company.
(k)
"Stock Award" - A Stock Award made under the Plan in stock or
denominated in units of stock for which the Participant is not
obligated to pay additional consideration.
2.
Administration . The Plan shall be administered by the
Board; provided however, that the Board may delegate such
administration to the Committee. Subject to the provisions of the
Plan, the Board and/or the Committee shall have authority to (a)
grant, in its discretion, Stock Awards; (b) determine in good faith
the Fair Market Value of the Stock covered by any Stock Award; (c)
determine which eligible persons shall receive Stock Awards and the
number of shares, restrictions, terms and conditions to be included
in such Stock Awards; (d) construe and interpret the Plan; (e)
promulgate, amend and rescind rules and regulations relating to its
administration, and correct defects, omissions and inconsistencies
in the Plan or any Stock Award; (f) consistent with the Plan and
with the consent of the Participant, as appropriate, amend any
outstanding Stock Award or amend the date thereof; (g) determine
the duration and purpose of leaves of absence which may be granted
to Participants without constituting termination of their
employment for the purpose of the Plan or any Stock Award; and (h)
make all other determinations necessary or advisable for the Plan's
administration. The interpretation and construction by the Board of
any provisions of the Plan or selection of Participants shall be
conclusive and final. No member of the Board or the Committee shall
be liable for any action or determination made in good faith with
respect to the Plan or any Stock Award made thereunder.
3.
Eligibility.
(a)
General . Any director, officer, or employee of the Company
is eligible to receive a Stock Award.
(b)
Consultants. Any Consultant to the Company may be a
Participant; provided, however, that the Consultant is a
natural person, provides bona fide services to the Company that are
not in connection with the offer or sale of securities in a
capital-raising transaction and do not directly or indirectly
promote or maintain a market for the Company’s securities;
and, provided, further, the Consultant otherwise is an
“employee” as defined in Section A 1 (a) of the General
Instructions to Form S-8 under the Securities Act.
4.
Stock.
(a)
Authorized Stock. Stock subject to Stock Awards may be
either unissued or reacquired Stock.
(b)
Number of Shares. Subject to adjustment as provided in
Section 5(i) of the Plan, the total number of shares of Stock which
may be granted directly by Stock Awards shall not exceed One
Hundred Seventy Five Million (175,000,000) shares. If any Stock
Award shall for any reason terminate or expire, any shares
allocated thereto upon such expiration or termination shall again
be available for Stock Awards with respect thereto under the Plan
as though no Stock Award had previously occurred with respect to
such shares.
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(c)
Reservation of Shares. The Company shall reserve and keep
available at all times during the term of the Plan such number of
shares as shall be sufficient to satisfy the requirements of the
Plan. If, after reasonable efforts, which efforts shall not include
the registration of the Plan or Stock Awards under the Securities
Act, the Company is unable to obtain authority from any applicable
regulatory body, which authorization is deemed necessary by legal
counsel for the Company for the lawful issuance of shares
hereunder, the Company shall be relieved of any liability with
respect to its failure to issue and sell the shares for which such
requisite authority was so deemed necessary unless and until such
authority is obtained.
5.
Stock Awards.
(a)
General Conditions. All or part of any Stock Award under the
Plan may be subject to conditions established by the Board or the
Committee, and set forth in the Stock Award Agreement, which may
include, but are not limited to, continuous service with the
Company, achievement of specific business objectives, increases in
specified indices, attaining growth rates and other comparable
measurements of Company performance. Such Awards may be based on
Fair Market Value or other specified valuation. All Stock Awards
will be made pursuant to the execution of a Stock Award Agreement
substantially in the form attached hereto as Exhibit A.
(b)
Insiders; Control Securities. Any Participant subject to
Section 16(a) of the Exchange Act (generally any dirctor, officer
or principal shareholder) shall comply with the requirements of
Section 16(b) of the Exchange Act (generally by holding the Stock
subject a Stock Award for at least six months from the date of the
Stock Award). The amount of securities of the Company that may be
sold by any Participant that holds “control securities”
and any other person with whom he or she is acting in concert for
the purpose of selling securities of the Company, may not exceed,
during any three month period, the amount specified in Rule 144(e)
of the General Rules and Regulations under the Securities Act
(generally one percent of the shares outstanding as shown by the
most recent report or statement published by the Company). The
Participant shall have the burden of proving to the satisfaction of
the Company, at Participant’s cost, any exemption to the
requirements of this paragraph, including any exemption pursuant to
Rule 16b-3 of the General Rules and Regulations under the Exchange
Act and any exception to Rule 144(e).
(c)
Cancellation and Rescission of Stock Awards. Unless the
Stock Award Agreement specifies otherwise, the Board or Committee,
as applicable, may cancel any unexpired, unpaid, or deferred Stock
Awards at any time if the Participant is not in compliance with all
other applicable provisions of the Stock Award Agreement, the Plan
and with the following conditions:
(i) A
Participant shall not render services for any organization or
engage directly or indirectly in any business which, in the
judgment of the chief executive officer of the Company or other
senior officer designated by the Board or Committee, is or becomes
competitive with the Company, or which organization or business, or
the
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rendering
of services to such organization or business, is or becomes
otherwise prejudicial to or in conflict with the interests of the
Company. For Participants whose employment has terminated, the
judgment of the chief executive officer shall be based on the
Participant's position and responsibilities while employed by the
Company, the Participant's post-employment responsibilities and
position with the other organization or business, the extent of
past, current and potential competition or conflict between the
Company and the other organization or business, the effect on the
Company's customers, suppliers and competitors and such other
considerations as are deemed relevant given the applicable facts
and circumstances. A Participant who has retired shall be free,
however, to purchase as an investment or
