Exhibit 10.1
BUSINESS DEVELOPMENT SOLUTIONS, INC.
2009 EQUITY INCENTIVE PLAN
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1.
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Purposes of the
Plan . Business
Development Solutions, Inc., a Delaware corporation (the “
Company ”) hereby establishes the BUSINESS DEVELOPMENT
SOLUTIONS, INC. 2009 EQUITY INCENTIVE PLAN (the “ Plan
”). The purposes of this Plan are to promote the long- term
growth and profitability of the Company and its Affiliates by
stimulating the efforts of Employees, Directors and Consultants of
the Company and its Affiliates who are selected to be participants,
aligning the long-term interests of participants with those of
stockholders, heightening the desire of participants to continue in
working toward and contributing to the success of the Company,
attracting and retaining the best available personnel for positions
of substantial responsibility, and generally providing additional
incentive for them to promote the success of the Company’s
business through the grant of Awards of or pertaining to shares of
the Company’s Common Stock. The Plan permits the grant of
Incentive Stock Options, Nonstatutory Stock Options, Restricted
Stock, Restricted Stock Units, Stock Appreciation Rights,
Performance Units, Performance Shares and Stock Grants as the
Administrator may determine.
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2.
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Definitions
. The following definitions will
apply to the terms in the Plan:
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“
Administrator ” means the Board or any of its
Committees as will be administering the Plan, in accordance with
Section 4 .
“
Affiliate ” means any corporation, partnership,
limited liability company, limited liability partnership, business
trust, or other entity or person controlling, controlled by or
under common control of the Company, as determined by the
Administrator in its sole discretion. For purposes of this defined
term, “control” means having the power to direct or
appoint the management of a company and “controlled” or
“controlling” shall have correlative meanings. The term
“Affiliate” shall include any business venture in which
the Company has a direct or indirect significant interest, as
determined by the Administrator in its sole discretion.
“
Applicable Laws ” means the requirements relating to
the administration of equity-based awards under U.S. state
corporate laws, U.S. federal and state securities laws, the Code,
any stock exchange or quotation system on which the Common Stock is
listed or quoted and the applicable laws of any foreign country or
jurisdiction where Awards are, or will be, granted under the
Plan.
“
Award ” means, individually or collectively, a grant
under the Plan of Options, SARs, Restricted Stock, Restricted Stock
Units, Stock Grants, Performance Units or Performance
Shares.
“ Award
Agreement ” means the written or electronic agreement
setting forth the terms and provisions applicable to each Award
granted under the Plan. The Award Agreement is subject to the terms
and conditions of the Plan.
“ Board
” means the Board of Directors of the Company.
“ Change in
Control ” means the occurrence of any of the following
events:
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(i)
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Any “person” (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule
13d-3
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of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the
Company's then outstanding voting securities; provided however,
that for purposes of this subsection, the following shall not
constitute a Change in Control: (1) any acquisition of securities
directly from the Company other than an acquisition by virtue of
the exercise of a conversion privilege unless the security being so
converted was itself acquired directly from the Company; (2) any
acquisition by the Company; or (3) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the
Company or any entity controlled by the Company or
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(ii)
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A change in the composition of
the Board occurring within a two-year period, as a result of which
fewer than a majority of the directors are Incumbent Directors.
“ Incumbent Directors ” means directors who
either (A) are Directors as of the effective date of the Plan, or
(B) are elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the Directors at the
time of such election or nomination (except where such election or
nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the
Company);
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(iii)
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The consummation of the sale,
transfer or other disposition by the Company of all or
substantially all of the Company's assets, except with respect to a
sale, transfer or other disposition of assets to a Parent,
Subsidiary, or Affiliate;
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(iv)
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The consummation of a merger or
consolidation of the Company with or into any other person, unless
securities possessing more than 50% of the total combined voting
power of the survivor’s or acquiror’s outstanding
securities (or the securities of any parent thereof) are held by a
person or persons who directly or indirectly held securities
possessing more than 50% of the total combined voting power of the
Company’s outstanding securities immediately prior to that
transaction.
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For avoidance of
doubt, a transaction will not constitute a Change in Control if:
(i) its sole purpose is to change the state of the Company’s
incorporation, or (ii) its sole purpose is to create a holding
company that will be owned in substantially the same proportions by
the persons who held the Company’s securities immediately
before such transaction.
“
Code ” means the Internal Revenue Code of 1986, as
amended. Any reference in the Plan to a section of the Code will be
a reference to any successor or amended section of the
Code.
“
Committee ” means a committee or subcommittee of
Directors or of other individuals satisfying Applicable Laws
appointed by the Board in accordance with Section 4
hereof.
“ Common
Stock ” means the common stock of the Company.
“
Company ” means Business Development Solutions, Inc.,
a Delaware corporation, or any successor thereto. For purposes of
the Plan, the term “Company” shall include any present
or future Parent and Subsidiary.
“
Consultant ” means any person, including an advisor,
engaged by the Company or any Affiliate of the Company to render
services to such entity.
“ Covered
Employee ” means an employee who is a “covered
employee” within the meaning of Section 162(m) of the
Code.
“
Designated Beneficiary ” means the beneficiary
designated by a Participant, in a manner determined by the
Administrator, to receive amounts due or exercise rights of the
Participant in the event of the Participant’s death or, in
the absence of an effective designation by a Participant, the
Participant’s estate.
“
Director ” means a member of the Board or any board of
directors (or similar governing authority) of any Affiliate,
including a non-employee Director.
“
Employee ” means any person, including Officers and
Directors, employed by the Company or any Affiliate of the Company.
Neither service as a Director nor payment of a director's fee by
the Company will be sufficient to constitute
“employment” by the Company.
“ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended.
“ Fair
Market Value ” means, as of any date, the value of Common
Stock determined as follows:
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(i)
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If the Common Stock is listed on
any established stock exchange or a national market system,
including without limitation, any division or subdivision of the
Nasdaq Stock Market, its Fair Market Value will be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system on the day of
determination or, if no closing price is reported on that date, the
closing price on the next preceding date for which a closing price
is reported, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable; or
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(ii)
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If the Common Stock is regularly
quoted by a recognized securities dealer but selling prices are not
reported, including without limitation quotation through the over
the counter bulletin board (“ OTCBB ”) quotation
service administered by the Financial Industry Regulatory Authority
(“ FINRA ”), the Fair Market Value of a Share
will be the mean between the high bid and low asked prices for the
Common Stock on the day of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems
reliable; or
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(iii)
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In the absence of an established
stock exchange or a national market system for, or regular
quotation by a recognized securities dealer of, the Common Stock,
OR IF THE ADMINISTRATOR DETERMINES IN ITS SOLE DISCRETION THAT THE
SHARES ARE TOO THINLY TRADED FOR FAIR MARKET VALUE TO BE DETERMINED
PURSUANT TO CLAUSES (i) OR (ii) ABOVE, the Fair Market Value will
be determined in good faith by the Administrator, and to the extent
Section 15 applies (a) with respect to ISOs, the Fair Market Value
shall be determined in a manner consistent with Code Section 422 or
(b) with respect to NSOs or SARs, the Fair Market Value shall be
determined in a manner consistent with Code Section
409A.
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“ Grant
Date ” means, for all purposes, the date on which the
Administrator determines to grant an Award, or such other later
date as is determined by the Administrator, provided that the
Administrator cannot grant an Award prior to the date the material
terms of the Award are established. Notice of the
Administrator’s determination to grant an Award will be
provided to each Participant within a reasonable time after the
Grant Date.
“
Incentive Stock Option” or “ISO ” means an
Option that by its terms qualifies and is otherwise intended to
qualify as an incentive stock option within the meaning of Section
422 of the Code and the regulations promulgated
thereunder.
“
Nonstatutory Stock Option” or “NSO ” means
an Option that by its terms does not qualify or is not intended to
qualify as an ISO.
“
Officer ” means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder.
“ Option
” means a stock option granted pursuant to the
Plan.
“ Optionee
” means the holder of an outstanding Option.
“
Parent ” means a “parent corporation,”
whether now or hereafter existing, as defined in Section 424(e) of
the Code.
“
Participant ” means the holder of an outstanding
Award.
“
Performance Period ” means, in respect of a
Performance Share or Performance Unit or Qualified
Performance-Based Awards, the time period during which the
performance objectives or other vesting provisions must be
met.
“
Performance Share ” means an Award denominated in
Shares which may vest in whole or in part upon attainment of
performance goals or other vesting criteria as the Administrator
may determine pursuant to Section 10 .
“
Performance Unit ” means an Award which may vest in
whole or in part upon attainment of performance goals or other
vesting criteria as the Administrator may determine and which may
be settled for cash, Shares or other securities or a combination of
the foregoing pursuant to Section 10 .
“ Period
of Restriction ” means the period during which Shares of
Restricted Stock or Restricted Stock Units are subject to
forfeiture.
“ Plan
” means this 2009 Equity Incentive Plan.
“
Qualified Performance-Based Award ” means an Award
intended to qualify as “performance-based compensation”
under Section 162(m) of the Code.
“
Restricted Stock ” means Shares awarded to a
Participant subject to forfeiture in accordance with Section
7 .
“
Restricted Stock Unit ” means the right to receive one
Share at or after the end of the Period of Restriction, which right
is subject to forfeiture in accordance with Section 8 of the
Plan.
“ Securities
Act ” means the Securities Act of 1933, as
amended.
“ Service
Provider ” means an Employee, Director or
Consultant.
“ Share
” means a share of the Common Stock, as adjusted in
accordance with Section 13 .
“ Stock
Appreciation Right ” or “ SAR ” means
the right to receive payment from the Company in an amount no
greater than the excess of the Fair Market Value of a Share at the
date the SAR is exercised over a specified price fixed by the
Administrator in the Award Agreement, which shall not be less than
the Fair Market Value of a Share on the Grant Date. In the case of
a SAR which is granted in connection with an Option, the specified
price shall be the Option exercise price.
“ Stock
Grant ” means the grant of Shares not subject to risk of
forfeiture or restrictions on transferability.
“
Subsidiary ” means a “subsidiary
corporation,” whether now or hereafter existing, as defined
in Section 424(f) of the Code.
“ Ten
Percent Owner ” means any Service Provider who is, on the
grant date of an ISO, the owner of Shares (determined with
application of ownership attribution rules of Section 424(d)) of
the Code possessing more than 10% of the total combined voting
power of all classes of stock of the Company, or any Parent or
Subsidiaries.
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3.
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Stock Subject to the
Plan .
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a.
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Stock Subject to the
Plan . Subject to the
provisions of Section 13 , the maximum aggregate number of
Shares that may be issued under the Plan is four million
(4,000,000) Shares. The Shares may be authorized but unissued, or
reacquired Common Stock.
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b.
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Lapsed Awards
. If an Award expires or becomes
unexercisable without having been exercised in full or, with
respect to Restricted Stock, Restricted Stock Units, Performance
Shares or Performance Units, is forfeited in whole or in part to
the Company, the unpurchased, forfeited or unissued Shares (as the
case may be) which were subject to the Award will become available
for future grant or sale under the Plan (unless the Plan has
terminated). With respect to SARs, only Shares actually issued
pursuant to an SAR will cease to be available under the Plan; all
remaining Shares subject to the SARs will remain available for
future grant or sale under the Plan (unless the Plan has
terminated). Shares that have actually been issued under the Plan
under any Award will not be returned to the Plan and will not
become available for future distribution under the Plan; provided,
however, that if Shares issued pursuant to Awards of Restricted
Stock, Restricted Stock Units, Performance Shares or Performance
Units are forfeited to the Company, such Shares will become
available for future grant under the Plan. Shares that are
exchanged by a Participant or withheld by the Company to pay the
full or partial exercise price of an Award or to satisfy tax
withholding obligations with respect to an Award will become
available for future grant or sale under the Plan. To the extent an
Award under the Plan is paid out in cash rather than Shares, such
cash payment will not result in reducing the number of Shares
available for issuance under the Plan. To the extent required by
Section 162(m) of the Code, Shares subject to Awards that are
cancelled shall not be available for future grant or sale under the
Plan.
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c.
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Share Reserve
. The Company, during the term of
this Plan, will at all times reserve and keep available such number
of Shares as will be sufficient to satisfy the requirements of the
Plan.
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4.
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Administration of the
Plan .
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a.
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Procedure
. The Plan shall be administered by
the Board or a Committee (or Committees) appointed by the Board,
which Committee shall be constituted to comply with Applicable
Laws. If and so long as the Common Stock is registered under
Section 12(b) or 12(g) of the Exchange Act, the Board shall
consider in selecting the Administrator and the membership of any
committee acting as Administrator the requirements regarding: (i)
“nonemployee directors” within the meaning of Rule
16b-3 under the Exchange Act; (ii) “independent
directors” as described in the listing requirements for any
stock exchange on which Shares are listed; and (iii) Section
15(b)(i) of the Plan, if the Company grants any Qualified
Performance-Based Award. The Board may delegate the responsibility
for administering the Plan with respect to designated classes of
eligible Participants to different committees consisting of two or
more members of the Board, subject to such limitations as the Board
or the Administrator deems appropriate. Committee members shall
serve for such term as the Board may determine, subject to removal
by the Board at any time.
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b.
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Powers of the
Administrator . Subject
to the provisions of the Plan and the approval of any relevant
authorities, and in the case of a Committee, subject to the
specific duties delegated by the Board to such Committee, the
Administrator will have the authority, in its
discretion:
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i.
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to determine the Fair Market
Value;
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ii.
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to select the Service Providers
to whom Awards may be granted hereunder;
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iii.
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to determine the type of Award
and number of Shares to be covered by each Award granted
hereunder;
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iv.
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to approve forms of agreement for
use under the Plan;
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v.
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to determine the terms and
conditions, not inconsistent with the terms of the Plan, of any
Award granted hereunder. Such terms and conditions include, but are
not limited to, the exercise price, the time or times when Awards
may be exercised (which may be based on continued employment,
continued service or performance criteria), any vesting
acceleration (whether by reason of a Change of Control or
otherwise) or waiver of forfeiture, and any restriction or
limitation regarding any Award or the Shares relating thereto,
based in each case on such factors as the Administrator, in its
sole discretion, will determine;
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vi.
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to construe and interpret the
terms of the Plan and Awards granted pursuant to the Plan,
including the right to construe disputed or doubtful Plan and Award
provisions;
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vii.
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to prescribe, amend and rescind
rules and regulations relating to the Plan;
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viii.
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to modify or amend each Award to
the extent any modification or amendment is consistent with the
terms of the Plan, and does not materially impair the rights of any
Participant unless mutually agreed otherwise between the
Participant and the Administrator, which agreement must be in
writing and signed by the Participant and the Company;
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ix.
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to allow Participants to satisfy
withholding tax obligations in such manner as prescribed in
Section 14 ;
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x.
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to authorize any person to
execute on behalf of the Company any instrument required to effect
the grant of an Award previously granted by the
Administrator;
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xi.
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to delay issuance of Shares or
suspend Participant’s right to exercise an Award as deemed
necessary to comply with Applicable Laws;
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xii
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to the extent permitted by
Applicable Laws, to delegate, as it may deem appropriate, to one or
more executive officers of the Company the authority to grant
Awards to Service Providers who are not Officers and Directors, and
exercise such other powers under the Plan as the Administrator may
determine, in accordance with such guidelines as the Administrator
shall set forth at any time or from time to time; and
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xiii.
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to make all other determinations
deemed necessary or advisable for administering the
Plan.
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c.
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Effect of Administrator's
Decision . The
Administrator’s decisions, determinations and interpretations
will be final and binding on all Participants and any other holders
of Awards. Any decision or action taken or to be taken by the
Administrator, arising out of or in connection with the
construction, administration, interpretation and effect of the Plan
and of its rules and regulations, shall, to the maximum extent
permitted by Applicable Laws, be within its absolute discretion
(except as otherwise specifically provided in the Plan) and shall
be final, binding and conclusive upon the Company, all Participants
and any person claiming under or through any
Participant.
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5.
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Authorization of
Grants
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a.
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Eligibility
. NSOs, Restricted Stock, Restricted
Stock Units, SARs, Performance Units and Performance Shares may be
granted to Service Providers either alone or in combination with
any other Awards. ISOs may be granted as specified in Section
15(a) to employees of the Company, and of any Parent or
Subsidiary.
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b.
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General Terms of
Awards . Each grant of an
Award shall be subject to all applicable terms and conditions of
the Plan (including but not limited to any specific terms and
conditions applicable to that type of Award set out in the
following Sections), and such other terms and conditions, not
inconsistent with the terms of the Plan, as the Administrator may
prescribe. Any additional terms of an Award shall be set forth in
an agreement evidencing the Award by and between the Company and
the Participant.
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c.
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Vesting Conditions
. The Administrator may impose
vesting schedules, limitations on transferability and forfeiture
conditions on any Award granted under this Plan as the
Administrator in its sole discretion may deem advisable or
appropriate, on the basis of such conditions, including but not
limited to, achievement of Company-wide, business unit, or
individual goals (including, but not limited to, continued status
as a Service Provider), or any other basis the Administrator may
determine in its discretion and provide for in the applicable Award
Agreement. The Administrator, in its discretion, may accelerate the
time at which any such restrictions will lapse or be removed. The
Administrator may, in its discretion, also provide for such
complete or partial exceptions to an employment or service
restriction as it deems equitable.
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d.
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Effect of Termination of
Employment, Etc . Except
as otherwise provided in Section 13, unless the Administrator in
its sole discretion shall at any time determine otherwise with
respect to any Award, if the Participant’s employment or
other association with the Company and its Affiliates ends for any
reason, including because of the Participant’s employer
ceasing to be an Affiliate, (a) any outstanding Option or SAR of
the Participant shall cease to be exercisable in any respect not
later than 90 days following that event and, for the period it
remains exercisable following that event, shall be exercisable only
to the extent exercisable at the date of that event, and (b) any
other outstanding Award of the Participant shall be forfeited or
otherwise subject to return to or repurchase by the Company on the
terms specified in the applicable Award Agreement. Military or sick
leave or other bona fide leave shall not be deemed a termination of
employment or other association, provided that it does not
exceed the longer of ninety (90) days or the period during which
the absent Participant’s reemployment rights, if any, are
guaranteed by statute or by contract.
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a.
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Grant of Options
. Subject to the terms and
conditions of the Plan, the Administrator, at any time and from
time to time, may grant Options to Service Providers in such
amounts as the Administrator will determine in its sole discretion.
The Administrator may grant NSOs, ISOs, or any combination of the
two. ISOs shall be granted in accordance with Section 15(a)
of the Plan.
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b.
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Option Award
Agreement . Each Option
shall be evidenced by an Award Agreement that shall specify the
type of Option granted, the Option price, the exercise date, the
term of the Option, the number of Shares to which the Option
pertains, vesting criteria and such other terms and conditions
(which need not be identical among Participants) as the
Administrator shall determine in its sole discretion. If the Award
Agreement does not specify that the Option is to be treated as an
ISO, the Option shall be deemed a NSO.
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c.
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Exercise Price
. The per Share exercise price for
the Shares to be issued pursuant to exercise of an Option will be
no less than the Fair Market Value per Share on the Grant
Date.
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d.
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Term of Options
. The term of each Option will be
stated in the Award Agreement. Unless terminated sooner in
accordance with the remaining provisions of this Section 6 ,
no Option shall be exercisable on or after the tenth anniversary of
the Grant Date.
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e.
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Time and Form of
Payment .
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i.
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Exercise Date
. Each Award Agreement shall specify
how and when Shares covered by an Option may be purchased. The
Award Agreement may specify waiting periods, the dates on which
Options become exercisable or “vested” and, subject to
the termination provisions of the Option, exercise periods. The
Administrator may accelerate the exercisability of any Option or
portion thereof.
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ii.
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Exercise of Option
. Any Option granted hereunder will
be exercisable according to the terms of the Plan and at such times
and under such conditions as determined by the Administrator and
set forth in the Award Agreement. An Option may not be exercised
for a fraction of a Share. An Option will be deemed exercised when
the Company receives: (1) notice of exercise (in such form as the
Administrator shall specify from time to time) from the person
entitled to exercise the Option, and (2) full payment for the
Shares with respect to which the Option is exercised (together with
all applicable withholding taxes). Full payment may consist of any
consideration and method of payment authorized by the Administrator
and permitted by the Award Agreement and the Plan (together with
all applicable withholding taxes). Shares issued upon exercise of
an Option will be issued in the name of the Optionee or, if
requeste
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