EXHIBIT 4.1
ECOSYSTEM CORPORATION
2009 Stock Grant Plan
Article 1. Establishment and Purpose
1.1 Establishment of
the Plan. EcoSystem
Corporation, a Delaware
corporation (the "Company" or "EcoSystem"),
hereby establishes an incentive
compensation plan (the "Plan"), as set forth in this document.
1.2 Purpose of the Plan. The purpose
of the Plan is to promote the success
and enhance the value of the Company by
linking the personal interests of
Participants to those of the
Company's shareholders, and by
providing
Participants with an incentive for outstanding performance.
The Plan is further
intended to attract and retain the services of Participants upon
whose judgment,
interest, and special efforts the
successful operation of EcoSystem and its
subsidiaries is dependent.
1.3 Effective Date of the Plan. The Plan
shall become effective on July 29,
2009.
Article 2. Definitions
Whenever used in the Plan, the
following terms shall have the meanings set
forth below and, when the meaning is intended, the initial letter
of the word is
capitalized:
(a) "Award" means, individually or
collectively, a grant under this Plan of
Stock, Nonqualified Stock Options, Incentive Stock Options,
Restricted Stock, or
Performance Shares.
(b) "Award Agreement" means an
agreement which may be entered into by each
Participant and the Company, setting forth the terms and
provisions applicable
to Awards granted to Participants under this Plan.
(c) "Board" or "Board of Directors" means
the Company's Board of Directors.
(d) "Cause" shall mean
willful and gross misconduct on the part of
an
Eligible Person that is materially and demonstrably
detrimental to the Company
or any Subsidiary as determined by the Committee in its sole
discretion.
(e) "Change in
Control" shall be deemed to have
occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act),
other than (A) a person who on July 29, 2009 was the
beneficial owner of more
than 25% of the outstanding Shares, (B) a trustee or
other fiduciary holding
securities under an employee benefit plan of the
Company or (C) a corporation
owned directly or indirectly by the shareholders of the Company in
substantially
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the same proportions as their ownership of stock of the
Company, is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under
said 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, or (ii) during any
period of two (2) consecutive years,
individuals who at the beginning of
such period constitute the Board
of
Directors of the Company and any new Director
whose election by the Board of
Directors or nomination for election by the Company's
shareholders was approved
by a vote of at least two-thirds (2/3) of the Directors then still
in office who
either were Directors at the
beginning of the period or whose election or
nomination for election was previously so
approved, cease for any reason to
constitute a majority thereof, or (iii) the shareholders of
the Company approve
a merger or consolidation of the Company with any other
corporation, other than
a merger or consolidation which would result in the
voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by
remaining outstanding or by being converted
into voting securities of the
surviving entity) at least fifty-five percent
(55%) of the total voting power
represented by the voting securities of the Company or
such surviving entity
outstanding immediately after such merger or consolidation,
or the shareholders
of the Company approve a plan of complete
liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all
the Company's assets.
(f) "Code" means the Internal Revenue Code
of 1986, as amended from time to
time.
(g) "Committee" means the committee or
committees, as specified in Article
3, appointed by the Board to administer the
Plan with respect to grants of
Awards.
(h) "Consultant" means a natural
person under contract with the Company to
provide bona fide services to the Company which 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.
(i) "Director" means any individual
who is a member of the EcoSystem Board
of Directors.
(j) "Disability" shall mean
the Participant's inability to perform the
Participant's normal Employment functions due to
any medically determinable
physical or mental disability, which can
last or has lasted 12 months or is
expected to result in death.
(k) "Eligible Person" means an Employee,
Director or Consultant.
(l) "Employee" means any
officer or employee of the Company or of one of
the Company's Subsidiaries. Directors who are
not otherwise employed by the
Company shall not be considered Employees under this Plan.
(m) "Employment," with
reference to an Employee, means the condition of
being an officer or employee of
the Company or one of its Subsidiaries.
"Employment," with reference to a
Consultant, means the condition of being a
Consultant. "Employment," with reference to a Director,
means the condition of
being a Director. The change in
status of an Eligible Person among
the
categories of Employee, Director
and Consultant shall not be
deemed a
termination of Employment.
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(n) "Exchange Act" means the
Securities Exchange Act of 1934, as amended
from time to time, or any successor Act thereto.
(o) "Exercise Price" means the price at
which a Share may be purchased by a
Participant pursuant to an Option, as determined by the
Committee.
(p) "Fair Market Value"
shall mean (i) at such time as there are closing
prices quoted for the Shares, the closing price of Shares on
the relevant date,
or (if there were no sales on such date) the next preceding trading
date, all as
reported on the principal market for the Shares, or
(ii) at such time as there
is a public market quoted without closing prices, the
mean of the closing high
bid and low asked on the relevant date, as reported on the
principal market for
the Shares, or (iii) at such time as there is no public
market for the Shares,
the value determined from time to time by the Board of
Directors.
(q) "Incentive Stock Option"
or "ISO" means an option to purchase Shares
from EcoSystem, granted under this Plan,
which is designated as an Incentive
Stock Option and is intended to meet the
requirements of Section 422 of the
Code.
(r) "Insider" shall mean an
Eligible Person who is, on the relevant date,
an officer, director, or ten percent (10%) beneficial
owner of the Company, as
those terms are defined under Section 16 of the Exchange Act.
(s) "Nonqualified Stock
Option" or "NQSO" means the option to purchase
Shares from EcoSystem, granted under this Plan, which
is not intended to be an
Incentive Stock Option.
(t) "Option" or "Stock Option"
shall mean an Incentive Stock Option or a
Nonqualified Stock Option.
(u) "Participant" means a
person who holds an outstanding Award granted
under the Plan.
(v) "Performance Share" shall
mean an Award granted to an Eligible Person
pursuant to Article 8 herein.
(w) "Plan" means this 2009 Stock Grant
Plan.
(x) "Restricted Stock"
means an Award of Stock granted to an
Eligible
Person pursuant to Article 7 herein.
(y) "Restriction Period" means the period
during which Shares of Restricted
Stock are subject to restrictions or conditions under Article
7.
(z) "Shares" or "Stock" means the shares
of common stock of the Company.
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(aa) "Subsidiary" shall mean
any corporation in which the Company owns
directly, or indirectly through subsidiaries, more than
fifty percent (50%) of
the total combined voting power of all classes of
Stock, or any other entity
(including, but not limited to, partnerships and
joint ventures) in which the
Company owns more than fifty percent (50%) of the combined equity
thereof.
Article 3. Administration
3.1 The Committee. The Plan and all
Awards hereunder shall be administered
by one or more Committees of the Board as may be appointed by the
Board for this
purpose. The Board may appoint a Committee specifically
responsible for Awards
to Insiders (the "Disinterested
Committee") where each Director on
such
Disinterested Committee is a
"Non-Employee Director" (or any
successor
designation for determining who may administer
plans, transactions or awards
exempt under Section 16(b) of the Exchange Act),
as that term is used in Rule
16b-3 under the Exchange Act, as that rule may be modified from
time to time. If
no specific Committee is appointed by the Board, then the
Board in its entirety
shall be the Committee. Any Committee may be replaced by the Board
at any time.
3.2 Authority of the Committee. The
Committee shall have full power, except
as limited by law and subject to the provisions herein, to select
the recipients
of Awards; to determine the size and types of Awards; to determine
the terms and
conditions of such Awards in a manner consistent with the
Plan; to construe and
interpret the Plan and any agreement or instrument entered
into under the Plan;
to establish, amend, or
waive rules and regulations
for the Plan's
administration; and (subject to the provisions of
Article 10 herein) to amend
the terms and conditions of any outstanding Award to
the extent such terms and
conditions are within the discretion of the Committee
as provided in the Plan.
Further, the Committee shall make
all other determinations which may be
necessary or advisable for the administration of the Plan.
No Award may be
made under the Plan after December 31, 2014.
All determinations and
decisions made by the Committee pursuant to
the
provisions of the Plan and all related orders or resolutions
of the Board shall
be final, conclusive, and binding on all persons,
including the Company, its
stockholders, Eligible Persons,
Participants, and their
estates and
beneficiaries.
Subject to the terms of this Plan, the
Committee is authorized, and shall
not be limited in its discretion, to
use any of the Performance Criteria
specified herein in its determination of Awards under this
Plan.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject
to adjustment as provided in Section
4.3
herein, the number of Shares available for grant under the Plan
shall not exceed
two hundred million (200,000,000) Shares. The Shares granted under
this Plan may
be either authorized but unissued or reacquired Shares.
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Without limiting the discretion of the
Committee under this section, unless
otherwise provided by the Committee, the following rules will apply
for purposes
of the determination of the number of Shares available for
grant under the Plan
or compliance with the foregoing limits:
(a) The grant of Stock, a Stock
Option or a Restricted Stock Award shall
reduce the Shares available for grant under
the Plan by the number of Shares
subject to such Award. However, to the extent the
Participant uses previously
owned Shares to pay the Exercise Price or any taxes, or
Shares are withheld to
pay taxes, these Shares shall be available for regrant under the
Plan.
(b) With respect to Performance
Shares, the number of Performance Shares
granted under the Plan shall be deducted from the number of Shares
available for
grant under the Plan. The number of Performance Shares
which cannot be, or are
not, converted into Shares and
distributed to the Participant (after any
applicable tax withholding) following the end of the
Performance Period shall
increase the number of Shares available for regrant
under the Plan by an equal
amount.
4.2 Lapsed Awards. If
any Award granted under this Plan is
canceled,
terminates, expires, or lapses for any
reason, Shares subject to such Award
shall be again available for the grant of an Award under the
Plan.
4.3 Adjustments in
Authorized Plan Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation,
liquidation, Stock
dividend, split-up, Share combination,
or other change in the corporate
structure of the Company affecting the Shares, an
adjustment shall be made in
the number and class of Shares which may be delivered under the
Plan, and in the
number and class of and/or price of Shares subject to outstanding
Awards granted
under the Plan, and/or the number of outstanding
Options, Shares of Restricted
Stock, and Performance Shares
constituting outstanding Awards, as may
be
determined to be appropriate and
equitable by the Committee, in its sole
discretion, to prevent dilution or enlargement of rights.
Article 5. Stock Grant
5.1 Grant of Stock. Subject to the
terms and provisions of the Plan, the
Board of Directors, at any time and from time to time, may grant
Shares of Stock
to Eligible Persons in such amounts and upon such terms
and conditions as the
Board of Directors shall determine.
Article 6. Stock Options
6.1 Grant of Options.
Subject to the terms and provisions of the
Plan,
Options may be granted to Eligible Persons at any
time and from time to time,
and under such terms and conditions, as shall be
determined by the Committee.
The Committee shall have discretion in determining the number
of Shares subject
to Options granted to each Eligible Person. The Committee may grant
ISOs, NQSOs,
or a combination thereof. ISOs, however, may be
granted only to Employees and
only if this Plan is approved by the shareholders of the Company
within one year
after it is adopted by the Board of Directors.
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6.2 Form of Issuance.
Each Option grant may be issued in the form of an
Award Agreement and/or may be recorded on the books and
records of the Company
for the account of the Participant. If an Option is not issued in
the form of an
Award Agreement, then the Option shall be deemed
granted as determined by the
Committee. The terms and conditions of an Option shall be set forth
in the Award
Agreement, in the notice of the
issuance of the grant, or in such
other
documents as the Committee shall determine. Such
terms and conditions shall
include the Exercise Price, the duration of the Option, the
number of Shares to
which an Option pertains (unless otherwise
provided by the Committee, each
Option may be exercised to purchase one Share), and such other
provisions as the
Committee shall determine, including, but not limited
to whether the Option is
intended to be an ISO or a NQSO.
6.3 Exercise Price.
(a) Unless a greater Exercise
Price is determined by the Committee, the
Exercise Price for each ISO awarded
under this Plan shall be equal to one
hundred percent (100%) of the Fair
Market Value of a Share on the date the
Option is granted. If, however, the Eligible Person
owns stock possessing more
than ten percent (10%) of the total
combined voting power of all classes of
stock of the Company or of its parent or
subsidiary corporations, then the
Exercise Price of an ISO shall be not less than one hundred
ten percent (110%)
of the Fair Market Value of a Share on the date the Option is
granted.
(b) The Exercise Price of a NQSO
shall be determined by the Committee in
its sole discretion.
6.4 Duration of Options.
Each Option shall expire at such time as the
Committee shall determine at the time of grant (which
duration may be extended
by the Committee); provided, however, that no Option shall be
exercisable later
than the tenth (10th) anniversary date of its grant. If,
however, the Eligible
Person owns stock possessing more than ten percent
(10%) of the total combined
voting power of all classes of stock
of the Company or of its parent or
subsidiary corporations, then no Option shall
be
