MONEY4GOLD HOLDINGS, INC. 2008 EQUITY INCENTIVE PLAN

Exhibit 4.1

 

MONEY4GOLD HOLDINGS, INC.

2008 EQUITY INCENTIVE PLAN

 

 

1.

Scope of Plan; Definitions .

 

(a)

This 2008 Equity Incentive Plan (the “Plan”) is intended to advance the interests of Money4Gold Holdings, Inc. (the “Company”) by enhancing the ability of the Company to attract and retain qualified employees, consultants, Officers, directors, by creating incentives and rewards for their contributions to the success of the Company. This Plan will provide to (a) Officers and other employees of the Company opportunities to purchase common stock (“Common Stock”) of the Company pursuant to Options granted hereunder which qualify as incentive stock options (“ISOs”) under Section 422(b) of the Internal Revenue Code of 1986 (the “Code”), (b) directors, Officers, employees and consultants of the Company opportunities to purchase Common Stock in the Company pursuant to options granted hereunder which do not qualify as ISOs (“Non-Qualified Options”); (c) directors, Officers, employees and consultants of the Company opportunities to receive shares of Common Stock of the Company which normally are subject to restrictions on sale (“Restricted Stock”); (d) directors, Officers, employees and consultants of the Company opportunities to receive grants of stock appreciation rights (“SARs”); and (e) directors, Officers, employees and consultants of the Company opportunities to receive grants of restricted stock units (“RSUs”). ISOs, Non-Discretionary Options and Non-Qualified Options are referred to hereafter as “Options.” Options, Restricted Stock, RSUs and SARs are sometimes referred to hereafter collectively as “Stock Rights.” Any of the Options and/or Stock Rights may in the Compensation Committee’s discretion be issued in tandem to one or more other Options and/or Stock Rights to the extent permitted by law.

 

This Plan is intended to comply in all respects with Rule 16b-3 (“Rule 16b-3”) and its successor rules as promulgated under Section 16(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) for participants who are subject to Section 16 of the Exchange Act. To the extent any provision of the Plan or action by the Plan administrators fails to so comply, it shall be deemed null and void to the extent permitted by law and deemed advisable by the Plan administrators. Provided , however , such exercise of discretion by the Plan administrators shall not interfere with the contract rights of any grantee. In the event that any interpretation or construction of the Plan is required, it shall be interpreted and construed in order to ensure, to the maximum extent permissible by law, that such grantee does not violate the short-swing profit provisions of Section 16(b) of the Exchange Act and that any exemption available under Rule 16b-3 or other rule is available.

 

(b)

For purposes of the Plan, capitalized words and terms shall have the following meaning:

 

“Board” means the board of directors of the Company.

 

“Bulletin Board” shall mean the Over-the-Counter Bulletin Board.

 

“Chairman” means the chairman of the Board.

 

 

“Change of Control” means the occurrence of any of the following events: (i) 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 of the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities; (ii)  the consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets in a transaction which requires shareholder approval under applicable state law; or (iii) the consummation of 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 or its parent) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.

 

“Code” shall have the meaning given to it in Section 1(a).

 

“Common Stock” shall have the meaning given to it in Section 1(a).

 

“Company” shall have the meaning given to it in Section 1(a) and also includes a corporation which is a subsidiary corporation with respect to the Company within the meaning of Section 425(f) of the Code.

 

“Compensation Committee” means the stock option committee of the Board, if any, which shall consist of two or more members of the Board, each of whom shall be both an “outside director” within the meaning of Section 162(m) of the Code and a “non-employee director” within the meaning of Rule 16b-3.  All references in this Plan to the Compensation Committee shall mean the Board when (i) there is no Compensation Committee or (ii) the Board has retained the power to administer this Plan.

 

“Disability” means “permanent and total disability” as defined in Section 22(e)(3) of the Code or successor statute.

 

“Disqualifying Disposition” means any disposition (including any sale) of Common Stock underlying an ISO before the later of (i) two years after the date of employee was granted the ISO or (ii) one year after the date the employee acquired Common Stock by exercising the ISO.

 

“Exchange Act” shall have the meaning given to it in Section 1(a).

 

“Fair Market Value” shall be determined as of the Trading Day on or the last Trading Day before the date a Stock Right is granted and shall mean:

 

(1)

the closing price on the principal market if the Common Stock is listed on a national securities exchange or the Bulletin Board.

 

 

2

 

 

 (2)

if the Company’s shares are not listed on a national securities exchange or the Bulletin Board, then the closing price if reported or the average bid and asked price for the Company’s shares as published by Pink Sheets LLC;

 

(3)

if there are no prices available under clauses (1) or (2), then Fair Market Value shall be based upon the average closing bid and asked price as determined following a polling of all dealers making a market in the Company’s Common Stock; or

 

(4)

if there is no regularly established trading market for the Company’s Common Stock, the Fair Market Value shall be established by the Board or the Compensation Committee taking into consideration all relevant factors including the most recent price at which the Company’s Common Stock was sold.

 

“ISO” shall have the meaning given to it in Section 1(a).

 

“Non-Discretionary Options” shall have the meaning given to it in Section 1(a).

 

“Non-Qualified Options” shall have the meaning given to it in Section 1(a).

 

“Officers” means a person who is an executive officer of the Company and is required to file ownership reports under Section 16(a) of the Exchange Act.

 

“Options” shall have the meaning given to it in Section 1(a).

 

“Plan” shall have the meaning given to it in Section 1(a).

 

“Restricted Stock” shall have the meaning contained in Section 1(a).

 

“RSU” shall have the meaning given to it in Section 1(a).

 

“Rule 16b-3” shall have the meaning given to it in Section 1(a).

 

“SAR” shall have the meaning given to it in Section 1(a).

 

“Securities Act” means the Securities Act of 1933.

 

“Stock Rights” shall have the meaning given to it in Section 1(a).

 

“Trading Day” shall mean a day on which the New York Stock Exchange is open for business.

 

“Transaction” has the meaning defined by Section 14(c).

 

 

 

 

 

3

 

 

2.

Administration of the Plan .

 

(a)

The Plan may be administered by the entire Board or by the Compensation Committee. Once appointed, the Compensation Committee shall continue to serve until otherwise directed by the Board. A majority of the members of the Compensation Committee shall constitute a quorum, and all determinations of the Compensation Committee shall be made by the majority of its members present at a meeting. Any determination of the Compensation Committee under the Plan may be made without notice or meeting of the Compensation Committee by a writing signed by all of the Compensation Committee members. Subject to ratification of the grant of each Stock Right by the Board (but only if so required by applicable state law), and subject to the terms of the Plan, the Compensation Committee shall have the authority to (i) determine the employees of the Company (from among the class of employees eligible under Section 3 to receive ISOs) to whom ISOs may be granted, and to determine (from among the class of individuals and entities eligible under Section 3 to receive Non-Qualified Options, Restricted Stock, RSUs and SARs) to whom Non-Qualified Options, Restricted Stock, RSUs and SARs may be granted; (ii) determine when Stock Rights may be granted; (iii) determine the exercise prices of Stock Rights other than Restricted Stock and RSUs, which shall not be less than the Fair Market Value; (iv) determine whether each Option granted shall be an ISO or a Non-Qualified Option; (v) determine when Stock Rights shall become exercisable, the duration of the exercise period and when each Stock Right shall vest; (vi) determine whether restrictions such as repurchase options are to be imposed on shares subject to or issued in connection with Stock Rights, and the nature of such restrictions, if any, and (vii) interpret the Plan and promulgate and rescind rules and regulations relating to it. The interpretation and construction by the Compensation Committee of any provisions of the Plan or of any Stock Right granted under it shall be final, binding and conclusive unless otherwise determined by the Board. The Compensation Committee may from time to time adopt such rules and regulations for carrying out the Plan as it may deem best.

 

No members of the Compensation Committee or the Board shall be liable for any action or determination made in good faith with respect to the Plan or any Stock Right granted under it. No member of the Compensation Committee or the Board shall be liable for any act or omission of any other member of the Compensation Committee or the Board or for any act or omission on his own part, including but not limited to the exercise of any power and discretion given to him under the Plan, except those resulting from his own gross negligence or willful misconduct.

 

(b)

The Compensation Committee may select one of its members as its chairman and shall hold meetings at such time and places as it may determine. All references in this Plan to the Compensation Committee shall mean the Board if no Compensation Committee has been appointed. From time to time the Board may increase the size of the Compensation Committee and appoint additional members thereof, remove members (with or without cause) and appoint new members in substitution therefor, fill vacancies however caused or remove all members of the Compensation Committee and thereafter directly administer the Plan.

 

(c)

Stock Rights may be granted to members of the Board, whether such grants are in their capacity as directors, Officers or consultants. All grants of Stock Rights to

 

4

 

 

members of the Board shall in all other respects be made in accordance with the provisions of this Plan applicable to other eligible persons. Members of the Board who are either (i) eligible for Stock Rights pursuant to the Plan or (ii) have been granted Stock Rights may vote on any matters affecting the administration of the Plan or the grant of any Stock Rights pursuant to the Plan.

 

(d)

In addition to such other rights of indemnification as he may have as a member of the Board, and with respect to administration of the Plan and the granting of Stock Rights under it, each member of the Board and of the Compensation Committee shall be entitled without further act on his part to indemnification from the Company for all expenses (including advances of litigation expenses, the amount of judgment and the amount of approved settlements made with a view to the curtailment of costs of litigation) reasonably incurred by him in connection with or arising out of any action, suit or proceeding, including any appeal thereof, with respect to the administration of the Plan or the granting of Stock Rights under it in which he may be involved by reason of his being or having been a member of the Board or the Compensation Committee, whether or not he continues to be such member of the Board or the Compensation Committee at the time of the incurring of such expenses; provided , however , that such indemnity shall be subject to the limitations contained in any Indemnification Agreement between the Company and the Board member or Officer. The foregoing right of indemnification shall inure to the benefit of the heirs, executors or administrators of each such member of the Board or the Compensation Committee and shall be in addition to all other rights to which such member of the Board or the Compensation Committee would be entitled to as a matter of law, contract or otherwise.

 

(e)

The Board may delegate the powers to grant Stock Rights to Officers to the extent permitted by the laws of the Company’s state of incorporation.

 

3.

Eligible Employees and Others .

 

(a)

(i)

ISOs may be granted to any employee of the Company or any Related Corporation. Those Officers and directors of the Company who are not employees may not be granted ISOs under the Plan. ISOs may not be granted unless this Plan has been approved by the Company’s shareholders within one year after it has been adopted by the Board.

 

(ii)

Subject to compliance with Rule 16b-3 and other applicable securities laws, Non-Qualified Options, Restricted Stock, RSUs and SARs may be granted to any director (whether or not an employee), Officers, employees or consultants of the Company or any Related Corporation.

 

(iii)

The Compensation Committee may take into consideration a recipient’s individual circumstances in determining whether to grant an ISO, a Non-Qualified Option, Restricted Stock, RSUs or a SAR. Granting of any Stock Right to any individual or entity shall neither entitle that individual or entity to, nor disqualify him from participation in, any other grant of Stock Rights.

 

 

5

 

 

(b)

All directors of the Company who are not employees or beneficial owners of 10% or more of the Common Stock of the Company shall automatically receive the following grant of Non-Qualified Options as appropriate:

 

(i)

Initial Grants. On the date on which this Plan is approved by the Board or a person is first elected or appointed, whether elected by the shareholders of the Company or appointed by the Board to fill a Board vacancy, each non-employee director, except Neil McDermott, shall receive an automatic grant of Non-Qualified Options and Restricted Stock (or RSUs if selected by the director with such delivery deferral as the director may select) based upon Fair Market Value.  In lieu of Restricted Stock or RSUs, the director may elect to receive Non-Qualified Options for the entire grant.  

 

   

(ii)

Annual Grants. On July 1 ^st of each year, each non-employee director shall receive an automatic grant of Non-Qualified Options and Restricted Stock (or RSUs if selected by the director with such delivery deferral as the director may select) based upon Fair Market Value.  In lieu of Restricted Stock or RSUs, the director may elect to receive Non-Qualified Options for the entire grant.  

 

 

(iii)

Vesting. All initial grants under this Section 3(b) shall vest annually in equal increments over a three-year period following the date of the automatic grant, subject to service in the capacity in which the grant is received on the applicable vesting dates.  Any fractional vesting shall be rounded up one or two times, as applicable. All annual grants shall vest 12 months following the date of grant, subject to service with the Company in the capacity in which the grant is received on the applicable vesting dates.

     

       

(iv)

All grants of Non-Qualified Options under this Section 3(b) shall be exercisable for a period of five years unless otherwise provided by the Board.

 

(v)

All grants of Non-Qualified Options under this Section 3(b) are subject to adjustment under Section 14.

 

(c)

The exercise price of the Options or SARs under Section 3 shall be Fair Market Value or such higher price as may be established by the Compensation Committee, the Board or by the Code.

 

6

 

 

 

4.

Common Stock . The Common Stock subject to Stock Rights shall be authorized but unissued shares of Common Stock, par value $0.0001, or shares of Common Stock reacquired by the Company in any manner, including purchase, forfeiture or otherwise. The aggregate number of shares of Common Stock which may be issued pursuant to the Plan is 8,000,000 subject to adjustment as provided in Section 14. Any such shares may be issued under ISOs, Non-Qualified Options, Restricted Stock, RSUs or SARs, so long as the number of shares so issued does not exceed the limitations in this Section. If any Stock Rights granted under the Plan shall expire or terminate for any reason without having been exercised in full or shall cease for any reason to be exercisable in whole or in part, or if the Company shall reacquire any unvested shares, the unpurchased shares subject to such Stock Rights and any unvested shares so reacquired by the Company shall again be available for grants under the Plan.

 

5.

Granting of Stock Rights .

 

(a)

The date of grant of a Stock Right under the Plan will be the date specified by the Board or Compensation Committee at the time it grants the Stock Right; provided , however , that such date shall not be prior to the date on which the Board or Compensation Committee acts to approve the grant. The Board or Compensation Committee shall have the right, with the consent of the optionee, to convert an ISO granted under the Plan to a Non-Qualified Option pursuant to Section 17.

 

(b)

Except for automatic grants