Exhbit 10.1
DECISIONPOINT SYSTEMS, INC.
2009
INCENTIVE STOCK PLAN
This
DECISIONPOINT SYSTEMS, Inc. 2009 Incentive Stock Plan
(the " Plan ") is designed to
retain directors, executives and selected employees and consultants
and reward them for making 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.
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" Board " - The Board of
Directors of the Company.
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" Change in Control " -
Means, and shall be deemed to have occurred upon the occurrence of,
any one of the following events:
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The acquisition in one transaction
by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership (within the meaning of Rule l3d-3 promulgated
under the Exchange Act) of shares or other securities (as defined
in Section 3(a)(10) of the Exchange Act) representing 51% or more
of outstanding Stock of the Company; provided, however, that a
Change in Control as defined in this clause (1) shall not be deemed
to occur in connection with any acquisition by the Company, an
employee benefit plan of the Company or any Person who immediately
prior to the effective date of this Plan is a holder of Stock (a
"Current Stockholder") so long as such acquisition does not result
in any Person other than the Company, such employee benefit plan or
such Current Stockholder beneficially owning shares or securities
representing 51% or more of the outstanding; or
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Any election has occurred of persons
as directors of the Company that causes two-thirds or more of the
Board to consist of persons other than (i) persons who, were
members of the Board on the effective date of this Plan and (ii)
persons who were nominated by the Board for election as members of
the Board at a time when at least two-thirds of the Board consisted
of persons who were members of the Board on the effective date of
this Plan; provided, however, that any person nominated for
election by the Board when at least two-thirds of the members of
the Board are persons described in subclause (i) or (ii) and
persons who were themselves previously nominated in accordance with
this clause (2) shall, for this purpose, be deemed to have been
nominated by a Board composed of persons described in subclause
(ii); or
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Approval by the stockholders of the
Company of a reorganization, merger, consolidation or similar
transaction (a "Reorganization Transaction"), in each case, unless,
immediately following such Reorganization Transaction, more than
50% of, respectively, the outstanding shares of common stock (or
similar equity security) of the corporation or other entity
resulting from or surviving such Reorganization Transaction and the
combined voting power of the securities of such corporation or
other entity entitled to vote generally in the election of
directors, is then beneficially owned, directly or indirectly, by
the individuals and entities who were the respective beneficial
owners of the outstanding Stock immediately prior to such
Reorganization Transaction in substantially the same proportions as
their ownership of the outstanding Stock immediately prior to such
Reorganization Transaction; or
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Approval by the stockholders of the
Company of (i) a complete liquidation or dissolution of the Company
or (ii) the sale or other disposition of all or substantially all
of the assets of the Company to a corporation or other entity,
unless, with respect to such corporation or other entity,
immediately following such sale or other disposition more than 50%
of, respectively, the outstanding shares of common stock (or
similar equity security) of such corporation or other entity and
the combined voting power of the securities of such corporation or
other entity entitled to vote generally in the election of
directors, is then beneficially owned, directly or indirectly, by
the individuals and entities who were the respective beneficial
owners of the outstanding Stock immediately prior to such sale or
disposition in substantially the same proportions as their
ownership of the outstanding Stock immediately prior to such sale
or disposition.
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" Code " - The Internal
Revenue Code of 1986, as amended from time to time.
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" 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 who 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 ").
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" Company " –
DecisionPoint Systems, Inc. and its subsidiaries including
subsidiaries of subsidiaries.
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" Exchange
Act " - The Securities Exchange Act of 1934, as amended from
time to time.
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" 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.
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" Grant " - The grant of any
form of stock option, stock award, or stock purchase offer, whether
granted singly, in combination, or in tandem, to a Participant
pursuant to such terms, conditions and limitations as the Committee
may establish in order to fulfill the objectives of the
Plan.
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" Grant Agreement " - An
agreement between the Company and a Participant that sets forth the
terms, conditions and limitations applicable to a Grant.
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" Option " - Either an
Incentive Stock Option, in accordance with Section 422 of Code, or
a Nonstatutory Option, to purchase the Company's Stock that may be
awarded to a Participant under the Plan. A Participant who receives
an award of an Option shall be referred to as an " Optionee
."
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" Participant " - A director,
officer, employee or consultant of the Company to whom an Award has
been made under the Plan.
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" Restricted Stock Purchase
Offer " - A Grant of the right to purchase a specified number
of shares of Stock pursuant to a written agreement issued under the
Plan.
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" Securities Act " - The
Securities Act of 1933, as amended from time to time.
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" Stock " - Authorized and
issued or unissued shares of common stock of the
Company.
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" Stock Award " - A Grant
made under the Plan in stock or denominated in units of stock for
which the Participant is not obligated to pay additional
consideration.
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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, Incentive Stock Options
in accordance with Section 422 of the Code, or Nonstatutory
Options, Stock Awards or Restricted Stock Purchase Offers; (b)
determine in good faith the fair market value of the Stock covered
by any Grant; (c) determine which eligible persons shall receive
Grants and the number of shares, restrictions, terms and conditions
to be included in such Grants; (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 Grant; (f) consistent with the
Plan and with the consent of the Participant, as appropriate, amend
any outstanding Grant or amend the exercise date or dates 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 Grant; 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 Grant made thereunder.
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General: The persons who shall be eligible to
receive Grants shall be directors, officers, employees or
consultants to the Company. The term consultant shall mean any
person, other than an employee, who is engaged by the Company to
render services and is compensated for such services. An Optionee
may hold more than one Option. Any issuance of a Grant to an
officer or director of the Company subsequent to the first
registration of any of the securities of the Company under the
Exchange Act shall comply with the requirements of Rule
16b-3.
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Incentive Stock
Options: Incentive Stock Options may only be
issued to employees of the Company. Incentive Stock Options may be
granted to officers or directors, provided they are also employees
of the Company. Payment of a director's fee shall not be sufficient
to constitute employment by the Company.
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The Company shall not grant an
Incentive Stock Option under the Plan to any employee if such Grant
would result in such employee holding the right to exercise for the
first time in any one calendar year, under all Incentive Stock
Options granted under the Plan or any other plan maintained by the
Company, with respect to shares of Stock having an aggregate fair
market value, determined as of the date the Option is granted, in
excess of $100,000. Should it be determined that an Incentive Stock
Option granted under the Plan exceeds such maximum for any reason
other than a failure in good faith to value the Stock subject to
such option, the excess portion of such option shall be considered
a Nonstatutory Option. To the extent the employee holds two (2) or
more such Options which become exercisable for the first time in
the same calendar year, the foregoing limitation on the
exercisability of such Option as Incentive Stock Options under the
Federal tax laws shall be applied on the basis of the order in
which such Options are granted. If, for any reason, an entire
Option does not qualify as an Incentive Stock Option by reason of
exceeding such maximum, such Option shall be considered a
Nonstatutory Option.
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Nonstatutory Option:
The provisions of the
foregoing Section 3(b) shall not apply to any Option designated as
a " Nonstatutory Option " or which sets forth the intention
of the parties that the Option be a Nonstatutory Option.
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Stock Awards and Restricted Stock
Purchase Offers: The provisions of this Section 3
shall not apply to any Stock Award or Restricted Stock Purchase
Offer under the Plan.
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Authorized Stock:
Stock subject to Grants may be
either unissued or reacquired Stock.
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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 purchased or granted directly by Options,
Stock Awards or Restricted Stock Purchase Offers, or purchased
indirectly through exercise of Options granted under the Plan shall
not exceed One Million (1,000,000). If any Grant shall
for any reason terminate or expire, any shares allocated thereto
but remaining unpurchased upon such expiration or termination shall
again be available for Grants with respect thereto under the Plan
as though no Grant had previously occurred with respect to such
shares. Any shares of Stock issued pursuant to a Grant and
repurchased pursuant to the terms thereof shall be available for
future Grants as though not previously covered by a
Grant.
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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 Grants
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.
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Application of Funds
: The proceeds received by the
Company from the sale of Stock pursuant to the exercise of Options
or rights under Stock Purchase Agreements will be used for general
corporate purposes.
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No Obligation to
Exercise : The
issuance of a Grant shall impose no obligation upon the Participant
to exercise any rights under such Grant.
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Terms and Conditions of Options.
Options granted hereunder shall be evidenced by agreements between
the Company and the respective Optionees, in such form and
substance as the Board or Committee shall from time to time
approve. The form of Incentive Stock Option Agreement attached
hereto as Exhibit A and the three forms of a Nonstatutory
Stock Option Agreement for employees, for directors and for
consultants, attached hereto as Exhibit B-1, Exhibit
B-2 and Exhibit B-3, respectively, shall be deemed to be
approved by the Board. Option agreements need not be identical, and
in each case may include such provisions as the Board or Committee
may determine, but all such agreements shall be subject to and
limited by the following terms and conditions:
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Number of Shares:
Each Option shall state the number
of shares to which it pertains.
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Exercise Price:
Each Option shall state the
exercise price, which shall be determined as follows:
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Any Incentive Stock Option granted
to a person who at the time the Option is granted owns (or is
deemed to own pursuant to Section 424(d) of the Code) stock
possessing more than ten percent (10%) of the total combined voting
power or value of all classes of stock of the Company ("Ten Percent
Holder") shall have an exercise price of no less than 110% of the
Fair Market Value of the Stock as of the date of grant;
and
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Incentive Stock Options granted to a person who
at the time the Option is granted is not a Ten Percent Holder shall
have an exercise price of no less than 100% of the Fair Market
Value of the Stock as of the date of grant.
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For the purposes of this Section 5(b), the Fair
Market Value shall be as determined by the Board in good faith,
which determination shall be conclusive and binding; provided
however, that if there is a public market for such Stock, the Fair
Market Value per share shall be the average of the bid and asked
prices (or the closing price if such stock is listed on the NASDAQ
National Market System or Small Cap Issue Market) on the date of
grant of the Option, or if listed on a stock exchange, the closing
price on such exchange on such date of grant.
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Medium and Time of
Payment: The
exercise price shall become immediately due upon exercise of the
Option and shall be paid in cash or check made payable to the
Company. Should the Company's outstanding Stock be registered under
Section 12(g) of the Exchange Act at the time the Option is
exercised, then the exercise price may also be paid as
follows:
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in shares of Stock held by the Optionee for the
requisite period necessary to avoid a charge to the Company's
earnings for financial reporting purposes and valued at Fair Market
Value on the exercise date, or
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through a special sale and
remittance procedure pursuant to which the Optionee shall
concurrently provide irrevocable written instructions (a) to a
Company designated brokerage firm to effect the immediate sale of
the purchased shares and remit to the Company, out of the sale
proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased shares
plus all applicable Federal, state and local income and employment
taxes required to be withheld by the Company by reason of such
purchase and (b) to the Company to deliver the certificates for the
purchased shares directly to such brokerage firm in order to
complete the sale transaction.
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At the discretion of the Board, exercisable
either at the time of Option grant or of Option exercise, the
exercise price may also be paid (i) by Optionee's delivery of a
promissory note in form and substance satisfactory to the Company
and permissible under applicable securities rules and bearing
interest at a rate determined by the Board in its sole discretion,
but in no event less than the minimum rate of interest required to
avoid the imputation of compensation income to the Optionee under
the Federal tax laws, or (ii) in such other form of consideration
permitted by the Delaware corporations law as may be acceptable to
the Board.
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Term and Exercise of
Options: Any
Option granted to an employee of the Company shall become
exercisable over a period of no longer than five (5) years. In no
event shall any Option be exercisable after the expiration of ten
(10) years from the date it is granted, and no Incentive Stock
Option granted to a Ten Percent Holder shall, by its terms, be
exercisable after the expiration of five (5) years from the date of
the Option. Unless otherwise specified by the Board or the
Committee in the resolution authorizing such Option, the date of
grant of an Option shall be deemed to be the date upon which the
Board or the Committee authorizes the granting of such
Option.
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Each Option shall be exercisable to
the nearest whole share, in installments or otherwise, as the
respective Option agreements may provide. During the lifetime of an
Optionee, the Option shall be exercisable only by the Optionee and
shall not be assignable or transferable by the Optionee, and no
other person shall acquire any rights therein. To the extent not
exercised, installments (if more than one) shall accumulate, but
shall be exercisable, in whole or in part, only during the period
for exercise as stated in the Option agreement, whether or not
other installments are then exercisable.
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Termination of Status as
Employee, Consultant or Director: If Optionee's status as an employee
shall terminate for any reason other than Optionee's disability or
death, then Optionee (or if the Optionee shall die after such
termination, but prior to exercise, Optionee's personal
representative or the person entitled to succeed to the Option)
shall have the right to exercise the portions of any of Optionee's
Incentive Stock Options which were exercisable as of the date of
such termination, in whole or in part, within 30 days after such
termination (or, in the event of " termination for good
cause " as that term is defined in Delaware case law related
thereto, or by the terms of the Plan or the Option Agreement or an
employment agreement, the Option shall automatically terminate as
of the termination of employment as to all shares covered by the
Option).
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With respect to Nonstatutory
Options granted to employees, directors or consultants, the Board
may specify such period for exercise, not less than 30 days (except
that in the case of " termination for cause " or removal of
a director), the Option shall automatically terminate as of the
termination of employment or services as to shares covered by the
Option, following termination of employment or services as the
Board deems reasonable and appropriate. The Option may be exercised
only with respect to installments that the Optionee could have
exercised at the date of termination of employment or services.
Nothing contained herein or in any Option granted pursuant hereto
shall be construed to affect or restrict in any way the right of
the Company to terminate the employment or services of an Optionee
with or without cause.
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Disability of
Optionee: If
an Optionee is disabled (within the meaning of Section 22(e)(3) of
the Code) at t
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