Exhibit 99.1
VIASPACE GREEN ENERGY
INC.
2009 STOCK INCENTIVE
PLAN
1.
Purposes of the Plan . The purposes of this Stock
Incentive Plan are to attract and retain the best available
personnel, to provide additional incentive to Employees, Directors
and Consultants and to promote the success of the Company’s
business.
2.
Definitions . As used herein, the following
definitions shall apply:
(a) “
Administrator ” means the Board or any of the
Committees appointed to administer the Plan.
(b) “
Affiliate ” and “ Associate ” shall
have the respective meanings ascribed to such terms in
Rule 12b-2 promulgated under the Exchange Act.
(c) “
Applicable Laws ” means the legal requirements
relating to the administration of stock incentive plans, if any,
under applicable provisions of federal securities laws, state
corporate and securities laws, the Code, the rules of any
applicable stock exchange or national market system, and the rules
of any foreign jurisdiction applicable to Awards granted to
residents therein.
(d) “
Assumed ” means that (i) pursuant to a Corporate
Transaction defined in Section (p)(i), (p)(ii) or (p)(iii) or
a Related Entity Disposition, the contractual obligations
represented by the Award are assumed by the successor entity or its
Parent in connection with the Corporate Transaction or Related
Entity Disposition or (ii) pursuant to a Corporate Transaction
defined in Section (p)(iv) or 2(q)(v), the Award is affirmed
by the Company. The Award shall not be deemed
“Assumed” for purposes of terminating the Award (in the
case of a Corporate Transaction) and the termination of the
Continuous Service of the Grantee (in the case of a Related Entity
Disposition) if pursuant to a Corporate Transaction or a Related
Entity Disposition the Award is replaced with a comparable award
with respect to shares of capital stock of the successor entity or
its Parent. The determination of Award comparability
shall be made by the Administrator and its determination shall be
final, binding and conclusive.
(e) “
Award ” means the grant of an Option, SAR, Dividend
Equivalent Right, Restricted Stock, Performance Unit, Performance
Share, or other right or benefit under the Plan.
(f) “
Award Agreement ” means the written agreement
evidencing the grant of an Award executed by the Company and the
Grantee, including any amendments thereto.
(g) “
Board ” means the Board of Directors of the
Company.
(h) “
Change in Control ” means a change in
ownership or control of the Company effected through either of the
following transactions:
(i) the
direct or indirect acquisition by any person or related group of
persons (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that
directly or indirectly controls, is controlled by, or is under
common control with, the Company) of beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company’s outstanding securities pursuant
to a tender or exchange offer made directly to the Company’s
stockholders which a majority of the Continuing Directors who are
not Affiliates or Associates of the offeror do not recommend such
stockholders accept, or
(ii) a
change in the composition of the Board over a period of thirty-six
(36) months or less such that a majority of the Board members
(rounded up to the next whole number) ceases, by reason of one or
more contested elections for Board membership, to be comprised of
individuals who are Continuing Directors.
(i) “
Code ” means the Internal Revenue Code of 1986, as
amended.
(j) “
Committee ” means any committee appointed by the Board
to administer the Plan.
(k) “
Common Stock ” means the ordinary shares of the
Company.
(l) “
Company ” means VIASPACE Green Energy Inc.,
an international company organized under the laws of
the British Virgin Islands.
(m) “
Consultant ” means any person (other than an Employee
or a Director, solely with respect to rendering services in such
person’s capacity as a Director) who is engaged by the
Company or any Related Entity to render consulting or advisory
services to the Company or such Related Entity.
(n) “
Continuing Directors ” means members of the Board who
either (i) have been Board members continuously for a period
of at least thirty-six (36) months or (ii) have been Board
members for less than thirty-six (36) months and were elected or
nominated for election as Board members by at least a majority of
the Board members described in clause (i) who were still in
office at the time such election or nomination was approved by the
Board.
(o) “
Continuous Service ” means that the provision of
services to the Company or a Related Entity in any capacity of
Employee, Director or Consultant, is not interrupted or
terminated. Continuous Service shall not be considered
interrupted in the case of (i) any approved leave of absence,
(ii) transfers among the Company, any Related Entity, or any
successor, in any capacity of Employee, Director or Consultant, or
(iii) any change in status as long as the individual remains
in the service of the Company or a Related Entity in any capacity
of Employee, Director or Consultant (except as otherwise provided
in the Award Agreement). An approved leave of absence
shall include sick leave, military leave, or any other authorized
personal leave. For purposes of each Incentive Stock
Option granted under the Plan, if such leave exceeds ninety (90)
days, and reemployment upon expiration of such leave is not
guaranteed by statute or contract, then the Incentive Stock Option
shall be treated as a Non-Qualified Stock Option on the day three
(3) months and one (1) day following the expiration of such
ninety (90) day period.
(p) “
Corporate Transaction ” means any of the following
transactions:
(i)
a merger or consolidation in which the Company is not the surviving
entity, except for a transaction the principal purpose of which is
to change the state in which the Company is
incorporated;
(ii)
the sale, transfer or other disposition of
all or substantially all of the assets of the Company (including
the capital stock of the Company’s subsidiary
corporations);
(iii) the
complete liquidation or dissolution of the Company;
(iv) any
reverse merger in which the Company is the surviving entity but in
which securities possessing more than fifty percent (50%) of the
total combined voting power of the Company’s outstanding
securities are transferred to a person or persons different from
those who held such securities immediately prior to such merger;
or
(v) acquisition
in a single or series of related transactions by any person or
related group of persons (other than the Company or by a
Company-sponsored employee benefit plan) of beneficial ownership
(within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of the total
combined voting power of the Company’s outstanding securities
but excluding any such transaction or series of related
transactions that the Administrator determines shall not be a
Corporate Transaction.
(q) “
Covered Employee ” means an Employee who is a
“covered employee” under Section 162(m)(3) of the
Code.
(r)
“ Director ” means a
member of the Board or the board of directors of any Related
Entity.
(s) “
Disability ” means as defined under the long-term
disability policy of the Company or the Related Entity to which the
Grantee provides services regardless of whether the Grantee is
covered by such policy. If the Company or the Related
Entity to which the Grantee provides service does not have a
long-term disability plan in place, “Disability” means
that a Grantee is unable to carry out the responsibilities and
functions of the position held by the Grantee by reason of any
medically determinable physical or mental impairment for a period
of not less than ninety (90) consecutive days. A Grantee
will not be considered to have incurred a Disability unless he or
she furnishes proof of such impairment sufficient to satisfy the
Administrator in its discretion.
(t)
“ Dividend Equivalent Right
” means a right entitling the Grantee to compensation
measured by dividends paid with respect to Common Stock.
(u) “
Employee ” means any person, including an Officer or
Director, who is an employee of the Company or any Related
Entity. The payment of a director’s fee by the
Company or a Related Entity shall not be sufficient to constitute
“employment” by the Company.
(v) “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
(w) “
Fair Market Value ” means, as of any date, the value
of Common Stock determined as follows:
(i)
If the Common Stock is listed
on any established stock exchange or a national market system,
including without limitation the Nasdaq Global Market or the Nasdaq
Capital Market of the Nasdaq Stock Market, its Fair Market Value
shall 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 date of determination (or, if no closing sales price
or closing bid was reported on that date, as applicable, on the
last trading date such closing sales price or closing bid was
reported), as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(ii)
If the Common Stock is regularly
quoted on an automated quotation system (including the OTC Bulletin
Board) or by a recognized securities dealer, but selling prices are
not reported, the Fair Market Value of a share of Common Stock
shall be the mean between the high bid and low asked prices for the
Common Stock on the date of determination (or, if no such prices
were reported on that date, on the last date such prices were
reported), as reported in The Wall Street Journal or such other
source as the Administrator deems reliable; or
(iii) In
the absence of an established market for the Common Stock of the
type described in (i) and (ii), above, the Fair Market Value
thereof shall be determined by the Administrator in good
faith.
(x) “
Grantee ” means an Employee, Director or Consultant
who receives an Award under the Plan.
(y) “
Immediate Family ” means any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse,
former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing
the Grantee’s household (other than a tenant or employee), a
trust in which these persons (or the Grantee) have more than fifty
percent (50%) of the beneficial interest, a foundation in which
these persons (or the Grantee) control the management of assets,
and any other entity in which these persons (or the Grantee) own
more than fifty percent (50%) of the voting interests.
(z) “
Incentive Stock Option ” means an Option intended to
qualify as an incentive stock option within the meaning of
Section 422 of the Code
(aa) “
Non-Qualified Stock Option ” means an Option not
intended to qualify as an Incentive Stock Option.
(bb) “
Officer ” means a person who is an officer of the
Company or a Related Entity within the meaning of Section 16
of the Exchange Act and the rules and regulations promulgated
thereunder.
(cc) “
Option ” means an option to purchase Shares pursuant
to an Award Agreement granted under the Plan.
(dd) “
Parent ” means a “parent corporation”,
whether now or hereafter existing, as defined in
Section 424(e) of the Code.
(ee) “
Performance-Based Compensation ” means compensation
qualifying as “performance-based compensation” under
Section 162(m) of the Code.
(ff) “
Performance Shares ” means Shares or an Award
denominated in Shares which may be earned in whole or in part upon
attainment of performance criteria established by the
Administrator.
(gg) “
Performance Units ” means an Award which may be earned
in whole or in part upon attainment of performance criteria
established by the Administrator and which may be settled for cash,
Shares or other securities or a combination of cash, Shares or
other securities as established by the Administrator.
(hh) “
Plan ” means this 2009 Stock Incentive
Plan.
(ii) “
Related Entity ” means any Parent or Subsidiary of the
Company and any business, corporation, partnership, limited
liability company or other entity in which the Company or a Parent
or a Subsidiary of the Company holds a substantial ownership
interest, directly or indirectly.
(jj) “
Related Entity Disposition ” means the sale,
distribution or other disposition by the Company or a Parent or a
Subsidiary of the Company of all or substantially all of the
interests of the Company or a Parent or a Subsidiary of the Company
in any Related Entity effected by a sale, merger or consolidation
or other transaction involving that Related Entity or the sale of
all or substantially all of the assets of that Related Entity,
other than any Related Entity Disposition to the Company or a
Parent or a Subsidiary of the Company.
(kk) “
Restricted Stock ” means Shares issued under the Plan
to the Grantee for such consideration, if any, and subject to such
restrictions on transfer, rights of first refusal, repurchase
provisions, forfeiture provisions, and other terms and conditions
as established by the Administrator.
(ll) “
Rule 16b-3 ” means Rule 16b-3 promulgated
under the Exchange Act or any successor thereto.
(mm) “
SAR ” means a stock appreciation right entitling the
Grantee to Shares or cash compensation, as established by the
Administrator, measured by appreciation in the value of Common
Stock.
(nn) “
Share ” means a share of the Common Stock.
(oo) “
Subsidiary ” means a “subsidiary
corporation”, whether now or hereafter existing, as defined
in Section 424(f) of the Code.
3.
Stock Subject to the Plan .
(a) Subject
to the provisions of Section 10, below, the maximum aggregate
number of Shares which may be issued pursuant to all Awards
(including Incentive Stock Options) is 1,400,000 Shares (the
“Maximum Award Shares”); provided, however, that
effective as of January 1, 2010 and each January 1 thereafter
during the term of the Plan, the Maximum Award Shares will be
modified to be equal to 16.28% percent of the total number of
shares of Common Stock issued and outstanding as of the close of
business on the immediately preceding December 31, which is the
last day of the Company’s fiscal year; provided, further that
no such modification shall occur if such calculation would result
in a decrease in the Maximum Award Shares. The Shares to
be issued pursuant to Awards may be authorized, but unissued, or
reacquired Common Stock.
(b) Any
Shares covered by an Award (or portion of an Award) which is
forfeited or canceled, expires or is settled in cash, shall be
deemed not to have been issued for purposes of determining the
maximum aggregate number of Shares which may be issued under the
Plan. Shares that actually have been issued under the
Plan pursuant to an Award shall not be returned to the Plan and
shall not become available for future issuance under the Plan,
except that if unvested Shares are forfeited, or repurchased by the
Company at their original purchase price, such Shares shall become
available for future grant under the Plan.
4.
Administration of the Plan .
(a)
Plan Administrator .
(i)
Administration with Respect to Directors and Officers
. With respect to grants of Awards to Directors or
Employees who are also Officers or Directors of the Company, the
Plan shall be administered by (A) the Board or (B) a
Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the Applicable Laws and
to permit such grants and related transactions under the Plan to be
exempt from Section 16(b) of the Exchange Act in accordance
with Rule 16b-3. Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise
directed by the Board.
(ii)
Administration With Respect to Consultants and Other
Employees . With respect to grants of Awards to
Employees or Consultants who are neither Directors nor Officers of
the Company, the Plan shall be administered by (A) the Board or (B)
a Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the Applicable
Laws. Once appointed, such Committee shall continue to
serve in its designated capacity until otherwise directed by the
Board. The Board may authorize one or more Officers to
grant such Awards and may limit such authority as the Board
determines from time to time.
(iii)
Administration With Respect to Covered Employees
. Notwithstanding the foregoing, as of and after the
date that the exemption for the Plan under Section 162(m) of
the Code expires, as set forth in Section 18 herein ,
grants of Awards to any Covered Employee intended to qualify as
Performance-Based Compensation shall be made only by a Committee
(or subcommittee of a Committee) which is comprised solely of two
or more Directors eligible to serve on a committee making Awards
qualifying as Performance-Based Compensation. In the
case of such Awards granted to Covered Employees, references to the
“Administrator” or to a “Committee” shall
be deemed to be references to such Committee or
subcommittee.
(iv)
Administration Errors . In the event an Award is
granted in a manner inconsistent with the provisions of this
subsection (a), such Award shall be presumptively valid as of
its grant date to the extent permitted by the Applicable
Laws.
(b)
Powers of the Administrator . Subject to
Applicable Laws and the provisions of the Plan (includ
