QUEST MINERALS & MINING
CORP.
2009 CALIFORNIA STOCK INCENTIVE
PLAN
1. Purpose.
The purpose of the
2009 California Stock Incentive Plan of Quest Minerals and Mining
Corp. is to further align the interests of employees, directors and
non-employee Consultants with those of the stockholders by
providing incentive compensation opportunities tied to the
performance of the Common Stock and by promoting increased
ownership of the Common Stock by such individuals. The
Plan is also intended to advance the interests of the Company and
its stockholders by attracting, retaining and motivating key
personnel upon whose judgment, initiative and effort the successful
conduct of the Company’s business is largely
dependent.
2. Definitions.
Wherever the
following capitalized terms are used in the Plan, they shall have
the meanings specified below:
“Affiliate” means (i) any entity that would be treated as an
“affiliate” of the Company for purposes of Rule 12b-2
under the Exchange Act and (ii) any joint venture or other entity
in which the Company has a direct or indirect beneficial ownership
interest representing at least one-third (1/3) of the aggregate
voting power of the equity interests of such entity or one-third
(1/3) of the aggregate fair market value of the equity interests of
such entity, as determined by the Committee.
“Award” means an award of a Stock Option, Stock Award,
or Restricted Stock Award granted under the Plan.
“Award Agreement”
means a written or electronic
agreement entered into between the Company and a Participant
setting forth the terms and conditions of an Award granted to a
Participant.
“Board” means the Board of Directors of the
Company.
“Code” means the Internal Revenue Code of 1986, as
amended.
“Common Stock”
means the Company’s common
stock, $0.001 par value per share.
“Committee” means the Compensation Committee of the Board,
or such other committee of the Board appointed by the Board to
administer the Plan, or if no such committee exists, the
Board.
“Company” means Quest Minerals and Mining Corp., a Utah
corporation.
“Consultant” means any person which is a consultant or
advisor to the Company and which is a natural person and who
provides bona fide services to the Company which are not in
connection with the offer or sale of securities in a
capital-raising transaction for the Company, and do not directly or
indirectly promote or maintain a market for the Company’s
securities.
“Date of Grant”
means the date on which an Award
under the Plan is made by the Committee, or such later date as the
Committee may specify to be the effective date of an
Award.
“Disability” means a Participant being considered
“disabled” within the meaning of Section 409A(a)(2)(C)
of the Code, unless otherwise provided in an Award
Agreement.
“Eligible Person”
means any person who is a resident
of the State of California and who is an employee of the
Company or any Affiliate or any person to whom an offer of
employment with the Company or any Affiliate is extended, as
determined by the Committee, or any person who is a Non-Employee
Director, or any person who is Consultant to the
Company..
“Exchange Act”
means the Securities Exchange Act of
1934, as amended.
“Fair Market Value”
means the mean between the highest
and lowest reported sales prices of the Common Stock on the New
York Stock Exchange Composite Tape or, if not listed on such
exchange, on any other national securities exchange on which the
Company’s common stock is listed or on The Nasdaq Stock
Market, or, if not so listed on any other national securities
exchange or The Nasdaq Stock Market, then the average of the bid
price of the Company’s common stock during the last five
trading days on the OTC Bulletin Board immediately preceding the
last trading day prior to the date with respect to which the Fair
Market Value is to be determined. If the
Company’s common stock is not then publicly traded, then the
Fair Market Value of the Common Stock shall be the book value of
the Company per share as determined on the last day of March, June,
September, or December in any year closest to the date when the
determination is to be made. For the purpose of
determining book value hereunder, book value shall be determined by
adding as of the applicable date called for herein the capital,
surplus, and undivided profits of the Company, and after having
deducted any reserves theretofore established; the sum of these
items shall be divided by the number of shares of the
Company’s common stock outstanding as of said date, and the
quotient thus obtained shall represent the book value of each share
of the Company’s common stock.
“Incentive Stock Option”
means a Stock Option granted under
Section 6 hereof that is intended to meet the requirements of
Section 422 of the Code and the regulations thereunder.
“Non-Employee Director”
means any member of the Board who is
not an employee of the Company.
“Nonqualified Stock
Option” means a
Stock Option granted under Section 6 hereof that is not an
Incentive Stock Option.
“Participant”
means any Eligible Person who holds
an outstanding Award under the Plan.
“Plan” means the 2009 California Stock Incentive Plan
of Quest Minerals and Mining Corp. as set forth herein, as amended
from time to time.
“Restricted Stock Award”
means a grant of shares of Common
Stock to an Eligible Person under Section 8 hereof that is issued
subject to such vesting and transfer restrictions as the Committee
shall determine and set forth in an Award Agreement.
“Service” means a Participant’s employment with the
Company or any Affiliate or a Participant’s service as a
Non-Employee Director with the Company, as applicable.
“Stock Award”
means a grant of shares of Common
Stock to an Eligible Person under Section 7 hereof that are issued
free of transfer restrictions and forfeiture conditions.
“Stock Option”
means a contractual right granted to
an Eligible Person under Section 6 hereof to purchase shares of
Common Stock at such time and price, and subject to such
conditions, as are set forth in the Plan and the applicable Award
Agreement.
3.1 Committee
Members. The Plan shall be administered
by a Committee comprised of one or more members of the Board, or if
no such committee exists, the Board.
3.2 Committee
Authority. The Committee shall have such
powers and authority as may be necessary or appropriate for the
Committee to carry out its functions as described in the
Plan. Subject to the express limitations of the Plan,
the Committee shall have authority in its discretion to determine
the Eligible Persons to whom, and the time or times at which,
Awards may be granted, the number of shares, units or other rights
subject to each Award, the exercise, base or purchase price of an
Award (if any), the time or times at which an Award will become
vested, exercisable or payable, the performance goals and other
conditions of an Award, the duration of the Award, and all other
terms of the Award. Subject to the terms of the Plan,
the Committee shall have the authority to amend the terms of an
Award in any manner that is not inconsistent with the Plan,
provided that no such action shall adversely affect the rights of a
Participant with respect to an outstanding Award without the
Participant’s consent. The Committee shall
also have discretionary authority to interpret the Plan, to make
factual determinations under the Plan, and to make all other
determinations necessary or advisable for Plan administration,
including, without limitation, to correct any defect, to supply any
omission or to reconcile any inconsistency in the Plan or any Award
Agreement hereunder. The Committee may prescribe,
amend, and rescind rules and regulations relating to the
Plan. The Committee’s determinations under the
Plan need not be uniform and may be made by the Committee
selectively among Participants and Eligible Persons, whether or not
such persons are similarly situated. The Committee
shall, in its discretion, consider such factors as it deems
relevant in making its interpretations, determinations and actions
under the Plan including, without limitation, the recommendations
or advice of any officer or employee of the Company or such
attorneys, consultants, accountants or other advisors as it may
select. All interpretations, determinations and
actions by the Committee shall be final, conclusive, and binding
upon all parties.
3.3 Delegation of
Authority. The Committee shall have the
right, from time to time, to delegate to one or more officers of
the Company the authority of the Committee to grant and determine
the terms and conditions of Awards granted under the Plan, subject
to the requirements of state law and such other limitations as the
Committee shall determine. In no event shall any such
delegation of authority be permitted with respect to Awards to any
members of the Board or to any Eligible Person who is subject to
Rule 16b-3 under the Exchange Act or Section 162(m) of the
Code. The Committee shall also be permitted to delegate,
to any appropriate officer or employee of the Company,
responsibility for performing certain ministerial functions under
the Plan. In the event that the Committee’s
authority is delegated to officers or employees in accordance with
the foregoing, all provisions of the Plan relating to the Committee
shall be interpreted in a manner consistent with the foregoing by
treating any such reference as a reference to such officer or
employee for such purpose. Any action undertaken in
accordance with the Committee’s delegation of authority
hereunder shall have the same force and effect as if such action
was undertaken directly by the Committee and shall be deemed for
all purposes of the Plan to have been taken by the
Committee.
4. Shares Subject
to the Plan.
4.1 Maximum Share
Limitations. Subject to Section 4.3 hereof,
the maximum aggregate number of shares of Common Stock that may be
issued and sold under all Awards granted under the Plan shall be
two hundred fifty nine million (259,000,000)
shares. Shares of Common Stock issued and sold under the
Plan may be either authorized but unissued shares or shares held in
the Company’s treasury. To the extent that
any Award involving the issuance of shares of Common Stock is
forfeited, cancelled, returned to the Company for failure to
satisfy vesting requirements or other conditions of the Award, or
otherwise terminates without an issuance of shares of Common Stock
being made thereunder, the shares of Common Stock covered thereby
will no longer be counted against the foregoing maximum share
limitations and may again be made subject to Awards under the Plan
pursuant to such limitations. Any Awards or portions
thereof that are settled in cash and not in shares of Common Stock
shall not be counted against the foregoing maximum share
limitations.
4.2 Adjustments.
If there shall
occur any change with respect to the outstanding shares of Common
Stock by reason of any recapitalization, reclassification, stock
dividend, extraordinary dividend, stock split, reverse stock split
or other distribution with respect to the shares of Common Stock,
or any merger, reorganization, consolidation, combination, spin-off
or other similar corporate change, or any other change affecting
the Common Stock, the Committee may, in the manner and to the
extent that it deems appropriate and equitable to the Participants
and consistent with the terms of the Plan, cause an adjustment to
be made in (i) the maximum number and kind of shares provided in
Section 4.1 hereof, (ii) the number and kind of shares of Common
Stock, or other rights subject to then outstanding Awards, (iii)
the exercise or base price for each share or other right subject to
then outstanding Awards, and (iv) any other terms of an Award that
are affected by the event. Notwithstanding the
foregoing, in the case of Incentive Stock Options, any such
adjustments shall, to the extent practicable, be made in a manner
consistent with the requirements of Section 424(a) of the
Code.
4.3 Anti-Dilution
. Notwithstanding
anything contained in the Plan to cover the contrary, including any
adjustments discussed in this Section 4, the maximum aggregate
number of shares of Common Stock that may be issued and sold under
all Awards granted under the Plan shall be anti-dilutive in the
event of a reverse stock split by the Company and shall not result
in any reduction in the number of shares available and authorized
under the Plan at the effective time of such reverse stock
split(s).
5. Participation
and Awards.
5.1 Designations of
Participants. All Eligible Persons are
eligible to be designated by the Committee to receive Awards and
become Participants under the Plan. The Committee has
the authority, in its discretion, to determine and designate from
time to time those Eligible Persons who are to be granted Awards,
the types of Awards to be granted and the number of shares of
Common Stock or units subject to Awards granted under the
Plan. In selecting Eligible Persons to be Participants
and in determining the type and amount of Awards to be granted
under the Plan, the Committee shall consider any and all factors
that it deems relevant or appropriate.
5.2 Determination of
Awards. The Committee shall determine
the terms and conditions of all Awards granted to Participants in
accordance with its authority under Section 3.2
hereof. An Award may consist of one type of right or
benefit hereunder or of two or more such rights or benefits granted
in tandem or in the alternative. In the case of any
fractional share or unit resulting from the grant, vesting, payment
or crediting of dividends or dividend equivalents under an Award,
the Committee shall have the discretionary authority to (i)
disregard such fractional share or unit, (ii) round such fractional
share or unit to the nearest lower or higher whole share or unit,
or (iii) convert such fractional share or unit into a right to
receive a cash payment. To the extent deemed
necessary by the Committee, an Award shall be evidenced by an Award
Agreement as described in Section 11.1 hereof.
6.1 Grant of Stock
Options. A Stock Option may be granted
to any Eligible Person selected by the
Committee. Subject to the provisions of Section 6.8
hereof and Section 422 of the Code, each Stock Option shall be
designated, in the discretion of the Committee, as an Incentive
Stock Option or as a Nonqualified Stock Option.
6.2 Exercise
Price. The exercise price per share
of a Stock Option shall not be less than 85 percent of the Fair
Market Value of the shares of Common Stock on the Date of Grant,
provided that the Committee may in its discretion specify for any
Stock Option an exercise price per share that is higher than the
Fair Market Value on the Date of Grant, except that the price shall
not be less than 110 percent of the Fair Market Value in the case
of any person who owns securities possessing more than 10 percent
of the total combined voting power of all classes of securities of
the Company.
6.3 Vesting of Stock
Options. The Committee shall in its
discretion prescribe the time or times at which, or the conditions
upon which, a Stock Option or portion thereof shall become vested
and/or exercisable, and may accelerate the vesting or
exercisability of any Stock Option at any time, provided, however,
that any Stock Option shall vest at the rate of at least twenty
percent (20%) per year over five (5) years from the date the Stock
Option is granted, subject to reasonable conditions as may be
provided for in the Award Agreement. However, in
the case of a Stock Option granted to officers, Non-employee
Directors, managers or Consultants of the Company, the Stock Option
may become fully exercisable, subject to reasonable conditions, at
anytime or during any period established by the
Company. The requirements for vesting and
exercisability of a Stock Option may be based on the continued
Service of the Participant with the Company or its Affiliates for a
specified time period (or periods) or on the attainment of
specified performance goals established by the Committee in its
discretion.
6.4 Term of Stock
Options. The Committee shall in its
discretion prescribe in an Award Agreement the period during which
a vested Stock Option may be exercised, provided that the maximum
term of a Stock Option shall be ten years from the Date of
Grant. Except as otherwise provided in this
Section 6 or as otherwise may be provided by the Committee, no
Stock Option issued to an employee or a Non-Employee Director of
the Company may be exercised at any time during the term thereof
unless the employee or a Non-Employee Director Participant is then
in the Service of the Company or one of its Affiliates.
6.5 Termination of
Service. Subject to Section 6.8 hereof
with respect to Incentive Stock Options, the Stock Option of any
Participant whose Service with the Company or one of its Affiliates
is terminated for any reason shall terminate on the earlier of (A)
the date that the Stock Option expires in accordance with its terms
or (B) unless otherwise provided in an Award Agreement, and except
for termination for cause (as described in Section 10.2 hereof),
the expiration of the applicable time period following termination
of Service, in accordance with the following: (1) twelve months if
Service ceased due to Disability, (2) eighteen months if Service
ceased at a time when the Participant is eligible to elect
immediate commencement of retirement benefits at a specified
retirement age under a pension plan to which the Company or any of
its Affiliates had made contributions, (3) eighteen months if the
Participant died while in the Service of the Company or any of its
Affiliates, or (iv) three months if Service ceased for any other
reason. During the foregoing applicable period, except
as otherwise specified in the Award Agreement or in the event
Service was terminated by the death of the Participant, the Stock
Option may be exercised by such Participant in respect of the same
number of shares of Common Stock, in the same manner, and to the
same extent as if he or she had remained in the continued Service
of the Company or any Affiliate during the first three months of
such period; provided that no additional rights shall vest after
such three months. The Committee shall have authority to
determine in each case whether an authorized leave of absence shall
be deemed a termination of Service for purposes hereof, as well as
the effect of a leave of absence on the vesting and exercisability
of a Stock Option. Unless otherwise provided by the
Committee, if an entity ceases to be an Affiliate of the Company or
otherwise ceases to be qualified under the Plan or if all or
substantially all of the assets of an Affiliate of the Company are
conveyed (other than by encumbrance), such cessation or action, as
the case may be, shall be deemed for purposes hereof to be a
termination of the Service.
6.6 Stock Option
Exercise; Tax Withholding. Subject to such terms and
conditions as shall be specified in an Award Agreement, a Stock
Option may be exercised in whole or in part at any time during the
term thereof by notice in the form required by the Company,
together with payment of the aggregate exercise price therefor and
applicable withholding tax. Payment of the exercise
price shall be made in the manner set forth in the Award Agreement,
unless otherwise provided by the Committee: (i) in cash or by cash
equivalent acceptable to the Committee, (ii) by payment in shares
of Common Stock that have been held by the Participant for at least
six months (or such period as the Committee may deem appropriate,
for accounting purposes or otherwise) valued at the Fair Market
Value of such shares on the date of exercise, (iii) through an
open-market, broker-assisted sales transaction pursuant to which
the Company is promptly delivered the amount of proceeds necessary
to satisfy the exercise price, (iv) by a combination of the methods
described above or (v) by such other method as may be approved by
the Committee and set forth in the Award Agreement. In
addition to and at the time of payment of the exercise price, the
Participant shall pay to the Company the full amount of any and all
applicable income tax, employment tax and other amounts required to
be withheld in connection with such exercise, payable under such of
the methods described above for the payment of the exercise price
as may be approved by the Committee and set forth in the Award
Agreement.
6.7 Limited
Transferability of Nonqualified Stock
Options. All Stock Options shall be
nontransferable except (i) upon the Participant’s death, in
accordance with Section 11.2 hereof or (ii) in the case of
Nonqualified Stock Options only, for the transfer of all or part of
the Stock Option to a Participant’s “family
member” (as defined for purposes of the Form S-8 registration
statement under the Securities Act of 1933), as may be approved by
the Committee in its discretion at the time of proposed
transfer. The transfer of a Nonqualified Stock Option
may be subject to such terms and conditions as the Committee may in
its dis
