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TO THE AGREEMENT AND PLAN OF MERGER DATED MARCH 27,
2008 AMONG ATC, AMI AND ATC SUB
2008 Incentive Stock Option Plan
ANGSTROM TECHNOLOGIES CORP. 2008 STOCK INCENTIVE
PLAN
1.
Purposes of the Plan . The purposes of
this Angstrom Technologies Corp. 2008 Stock Incentive Plan are to
attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to
Employees and Consultants, and to promote the success of the
Company's business. Awards granted under the Plan may be
Incentive Stock Options, Nonqualified Stock Options, Restricted
Stock Awards, Performance Units, Performance Shares or Stock
Appreciation Rights.
2.
Definitions . As used herein, the
following definitions shall apply:
(a)
“ Administrator ” means the
Board or any Committee or person as shall be administering the
Plan, in accordance with Section 4 of the Plan.
(b)
“ Applicable Law ” means the
legal requirements relating to the administration of the Plan under
applicable federal, state, local and foreign corporate, tax and
securities laws, and the rules and requirements of any stock
exchange or quotation system on which the Common Stock is listed or
quoted.
(c)
“ Award ” means an Option, Stock
Appreciation Right, Restricted Stock Award, Performance Unit or
Performance Share granted under the Plan.
(d)
“ Award Agreement ” means a
written agreement by which an Award is evidenced.
(e)
“ Board ” means the Board of
Directors of the Company.
(f)
“ Change in Control ” means the
happening of any of the following:
(i)
When any “person,” as such term is used
in Sections 13(d) and 14(d) of the Exchange Act (other than the
Company, a Subsidiary or a Company employee benefit plan, including
any trustee of such plan acting as trustee) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50 percent or more of the combined voting power of the
Company's then outstanding securities; or
(ii)
The occurrence of a transaction requiring
shareholder approval, and involving the sale of all or
substantially all of the assets of the Company or the merger of the
Company with or into another corporation.
(g)
“ Change in Control Price ”
means, as determined by the Board,
(i) the highest Fair Market Value of a Share within
the 60-day period immediately preceding the date of determination
of the Change in Control Price by the Board (the “60-Day
Period”), or
(ii) the highest price paid or offered per Share,
as determined by the Board, in any bona fide transaction or bona
fide offer related to the Change in Control of the Company, at any
time within the 60-Day Period, or
(iii) some lower price as the Board, in its sole
and absolute discretion, determines to be a reasonable estimate of
the fair market value of a Share.
(h)
“ Code ” means the Internal
Revenue Code of 1986, as amended.
(i)
“ Committee ” means a Committee
appointed by the Board in accordance with Section 4 of the
Plan.
(j)
“ Common Stock ” means the
Common Stock, $.001 value, of Angstrom Technologies Corp.
(k)
“ Company ” means Angstrom
Technologies Corp., a Nevada corporation.
(l)
“ Consultant ” means any person,
including an advisor or broker, engaged by the Company or a Parent
or Subsidiary to render services and who is compensated for such
services, including without limitation non-Employee Directors who
are paid only a director's fee by the Company or who are
compensated by the Company for their services as non-Employee
Directors. In addition, as used herein, “consulting
relationship” shall be deemed to include service by a
non-Employee Director as such.
(m)
“ Continuous Status as an Employee or
Consultant ” means that the employment or consulting
relationship is not interrupted or terminated by the Company, any
Parent or Subsidiary. Continuous Status as an Employee or
Consultant shall not be considered interrupted in the case of (i)
any leave of absence approved in writing by the Board, an Officer,
or a person designated in writing by the Board or an Officer as
authorized to approve a leave of absence, including sick leave,
military leave, or any other personal leave; provided, however,
that for purposes of Incentive Stock Options, any such leave may
not exceed 90 days, unless reemployment upon the expiration of such
leave is guaranteed by contract (including certain Company
policies) or statute, or (ii) transfers between locations of the
Company or between the Company, a Parent, a Subsidiary or successor
of the Company; or (iii) a change in the status of the Grantee from
Employee to Consultant or from Consultant to Employee.
(n)
“ Covered Stock ” means the
Common Stock subject to an Award.
(o)
“ Date of Grant ” means the date
on which the Administrator makes the determination granting the
Award, or such other later date as is determined by the
Administrator. Notice of the determination shall be provided to
each Grantee within a reasonable time after the Date of Grant.
(p)
“ Date of Termination ” means
the date on which a Grantee’s Continuous Status as an
Employee or Consultant terminates.
(q)
“ Director ” means a member of
the Board.
(r)
“ Disability ” means total and
permanent disability as defined in Section 22(e)(3) of the
Code.
(s)
“ Employee ” means any person,
including Officers and Directors, employed by the Company or any
Parent or Subsidiary of the Company. Neither service as a Director
nor payment of a director's fee by the Company shall be sufficient
to constitute “employment” by the Company.
(t)
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
(u)
“ Fair Market Value ” means, as
of any date, the value of Common Stock determined as follows:
(i)
If the Common Stock is then listed on a national
securities exchange, the Fair Market Value of a Share of Common
Stock shall be the closing sales price for such stock as quoted on
such exchange on the day of determination, or, if there was no sale
of Shares of Common Stock on such date, for the last preceding date
on which there was a sale of Shares of Common Stock on such
exchange, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(ii)
If the Common Stock is not then listed on a
national securities exchange but is then traded on an
over-the-counter market, 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 day of determination, or, if there was
not bid and asked quotation on such date, for the last preceding
date on which there was a bid and asked quotation for the Common
Stock in such market, as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
(iii)
In the absence of an established market for the
Common Stock, the Fair Market Value shall be determined in good
faith by the Administrator, in accordance with Section 409A of the
Code.
(v)
“ Grantee ” means an individual
who has been granted an Award.
(w)
“ Incentive Stock Option ” means
an Option intended to qualify as an incentive stock option within
the meaning of Section 422 of the Code and the regulations
promulgated thereunder.
(x)
“ Mature Shares ” means Shares
for which the holder thereof has good title, free and clear of all
liens and encumbrances, and that such holder either (i) has held
for at least six months or (ii) has purchased on the open
market.
(y)
“ Nonqualified Stock Option ”
means an Option not intended to qualify as an Incentive Stock
Option.
(z)
“ Officer ” means a person who
is an officer of the Company within the meaning of Section 16 of
the Exchange Act and the rules and regulations promulgated
thereunder.
(aa)
“ Option ” means a stock option
granted under the Plan.
(bb)
“ Parent ” means a corporation,
whether now or hereafter existing, in an unbroken chain of
corporations ending with the Company if each of the corporations
other than the Company holds at least 50 percent of the voting
shares of one of the other corporations in such chain.
(cc)
“ Performance Period ” means the
time period during which the performance goals established by the
Administrator with respect to a Performance Unit or Performance
Share, pursuant to Section 9 of the Plan, must be met.
(dd)
“ Performance Share ” has the
meaning set forth in Section 9 of the Plan.
(ee)
“ Performance Unit ” has the
meaning set forth in Section 9 of the Plan.
(ff)
“ Plan ” means this Angstrom
Technologies Corp. 2008 Stock Incentive Plan, as it may be amended
from time to time.
(gg)
“ Restricted Stock Award ” means
Shares that are awarded to a Grantee pursuant to Section 8 of the
Plan.
(hh)
“ Rule 16b-3 ” means Rule 16b-3
promulgated under the Exchange Act or any successor to Rule 16b-3,
as in effect when discretion is being exercised with respect to the
Plan.
(ii)
“ Share ” means a share of the
Common Stock, as adjusted in accordance with Section 11 of the
Plan.
(jj)
“ Stock Appreciation Right ” or
“ SAR ” has the meaning set forth in Section 7
of the Plan.
(kk)
“ Subsidiary ” means a
corporation, domestic or foreign, of which not less than 50 percent
of the voting shares are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
3.
Stock Subject to the Plan . Subject to
the provisions of Section 11 of the Plan and except as otherwise
provided in this Section 3, the maximum aggregate number of Shares
that may be subject to Awards under the Plan since the Plan became
effective is 10 ,000,000 Shares, provided, however, that not
more than 1,200,000 Shares may be subject to Awards that are
Incentive Stock Options. The Shares may be authorized, but
unissued, or reacquired Common Stock.
If an Award expires or becomes unexercisable
without having been exercised in full the remaining Shares that
were subject to the Award shall become available for future Awards
under the Plan (unless the Plan has terminated).
4.
Administration of the Plan .
(a)
Procedure .
(i)
Multiple Administrative Bodies . The
Plan may be administered by different bodies with respect to
different groups of Employees and Consultants. Except as
provided below, the Plan shall be administered by (A) the Board or
(B) a committee designated by the Board and constituted to satisfy
Applicable Law.
(ii)
Rule 16b-3 . To the extent the Board
considers it desirable for transactions relating to Awards to be
eligible to qualify for an exemption under Rule 16b-3, the
transactions contemplated under the Plan shall be structured to
satisfy the requirements for exemption under Rule 16b-3.
(iii)
Section 162(m) of the Code .
To the extent the Board considers it desirable for
compensation delivered pursuant to Awards to be eligible to qualify
for an exemption from the limit on tax deductibility of
compensation under Section 162(m) of the Code, the transactions
contemplated under the Plan shall be structured to satisfy the
requirements for exemption under Section 162(m) of the Code.
(iv)
Authorization of Officers to Grant Options .
In accordance with Applicable Law, the Board may, by a
resolution adopted by the Board, authorize one or more Officers to
designate Officers and Employees (excluding the Officer so
authorized) to be Grantees of Options and determine the number of
Options to be granted to such Officers and Employees; provided,
however, that the resolution adopted by the Board so authorizing
such Officer or Officers shall specify the total number and the
terms (including the exercise price, which may include a formula by
which such price may be determined) of Options such Officer or
Officers may so grant.
(b)
Powers of the Administrator . Subject
to the provisions of the Plan, and in the case of a Committee or an
Officer, subject to the specific duties delegated by the Board to
such Committee or Committee, the Administrator shall have the
authority, in its sole and absolute discretion:
(i)
to determine the Fair Market Value of the Common
Stock, in accordance with Section 2(u) of the Plan;
(ii)
to select the Consultants and Employees to whom
Awards will be granted under the Plan;
(iii)
to determine whether, when, to what extent and in
what types and amounts Awards are granted under the Plan;
(iv)
to determine the number of shares of Common Stock
to be covered by each Award granted under the Plan;
(v)
to determine the forms of Award Agreements, which
need not be the same for each grant or for each Grantee, for use
under the Plan;
(vi)
to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Award granted under
the Plan. Such terms and conditions, which need not be the
same for each grant or for each Grantee, include, but are not
limited to, the exercise price, the time or times when Options and
SARs may be exercised (which may be based on performance criteria),
the extent to which vesting is suspended during a leave of absence,
any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Award or the shares of
Common Stock relating thereto, based in each case on such factors
as the Administrator shall determine;
(vii)
to construe and interpret the terms of the Plan and
Awards;
(viii)
to prescribe, amend and rescind rules and
regulations relating to the Plan, including, without limiting the
generality of the foregoing, rules and regulations relating to the
operation and administration of the Plan to accommodate the
specific requirements of local and foreign laws and procedures;
(ix)
to modify or amend each Award (subject to Section
13 of the Plan);
(x)
to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Award
previously granted by the Administrator;
(xi)
to determine the terms and restrictions applicable
to Awards;
(xii)
to make such adjustments or modifications to Awards
granted to Grantees who are Employees of foreign Subsidiaries as
are advisable to fulfill the purposes of the Plan or to comply with
Applicable Law;
(xiii)
to delegate its duties and responsibilities under
the Plan with respect to sub-plans applicable to foreign
Subsidiaries, except its duties and responsibilities with respect
to Employees who are also Officers or Directors subject to Section
16(b) of the Exchange Act; and
(xiv)
to make all other determinations deemed necessary
or advisable for administering the Plan.
(c)
Effect of Administrator's Decision .
The Administrator's decisions, determinations and
interpretations shall be final and binding on all Grantees and any
other holders of Awards.
5.
Eligibility and General Conditions of Awards
.
(a)
Eligibility . Awards other than
Incentive Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to
Employees. If otherwise eligible, an Employee or Consultant who has
been granted an Award may be granted additional Awards.
(b)
Maximum Term . Subject to the
following provision, the term during which an Award may be
outstanding shall not extend more than ten years after the Date of
Grant, and shall be subject to earlier termination as specified
elsewhere in the Plan or Award Agreement.
(c)
Award Agreement . To the extent not
set forth in the Plan, the terms and conditions of each Award,
which need not be the same for each grant or for each Grantee,
shall be set forth in an Award Agreement.
(d)
Termination of Employment or Consulting
Relationship . In the event that a Grantee's Continuous
Status as an Employee or Consultant terminates (other than upon the
Grantee's death or Disability), then, unless otherwise provided by
the Award Agreement, and subject to Section 11 of the Plan:
(i)
the Grantee may exercise his or her unexercised
Option or SAR, but only within such period of time as is determined
by the Administrator, and only to the extent that the Grantee was
entitled to exercise it at the Date of Termination (but in no event
later than the expiration of the term of such Option or SAR as set
forth in the Award Agreement). In the case of an Incentive
Stock Option, the Administrator shall determine such period of time
(in no event to exceed three months from the Date of Termination)
when the Option is granted. If, at the Date of Termination,
the Grantee is not entitled to exercise his or her entire Option or
SAR, the Shares covered by the unexercisable portion of the Option
or SAR shall revert to the Plan. If, after the Date of
Termination, the Grantee does not exercise his or her Option or SAR
within the time specified by the Administrator, the Option or SAR
shall terminate, and the Shares covered by such Option or SAR shall
revert to the Plan;
(ii)
the Grantee’s Restricted Stock Awards, to the
extent forfeitable immediately before the Date of Termination,
shall thereupon automatically be forfeited;
(iii)
the Grantee’s Restricted Stock Awards that
were not forfeitable immediately before the Date of Termination
shall promptly be settled by delivery to the Grantee of a number of
unrestricted Shares equal to the aggregate number of the
Grantee’s vested Restricted Stock Awards;
(iv)
any Performance Shares or Performance Units with
respect to which the Performance Period has not ended as of the
Date of Termination shall terminate immediately upon the Date of
Termination.
(e)
Disability of Grantee . In the event
that a Grantee’s Continuous Status as an Employee or
Consultant terminates as a result of the Grantee's Disability,
then, unless otherwise provided by the Award Agreement:
(i)
the Grantee may exercise his or her unexercised
Option or SAR at any time within 12 months from the Date of
Termination, but only to the extent that the Grantee was entitled
to exercise the Option or SAR at the Date of Termination (but in no
event later than the expiration of the term of the Option or SAR as
set forth in the Award Agreement). If, at the Date of
Termination, the Grantee is not entitled to exercise his or her
entire Option or SAR, the Shares covered by the unexercisable
portion of the Option or SAR shall revert to the Plan. If,
after the Date of Termination, the Grantee does not exercise his or
her Option or SAR within the time specified herein, the Option or
SAR shall terminate, and the Shares covered by such Option or SAR
shall revert to the Plan.
(ii)
the Grantee’s Restricted Stock Awards, to the
extent forfeitable immediately before the Date of Termination,
shall thereupon automatically be forfeited;
(iii)
the Grantee’s Restricted Stock Awards that
were not forfeitable immediately before the Date of Termination
shall promptly be settled by delivery to the Grantee of a number of
unrestricted Shares equal to the aggregate number of the
Grantee’s vested Restricted Stock Awards;
(iv)
any Performance Shares or Performance Units with
respect to which the Performance Period has not ended as of the
Date of Termination shall terminate immediately upon the Date of
Termination.
(f)
Death of Grantee . In the event of the
death of an Grantee, then, unless otherwise provided by the Award
Agreement,
(i)
the Grantee’s unexercised Option or SAR may
be exercised at any time within 12 months following the date of
death (but in no event later than the expiration of the term of
such Option or SAR as set forth in the Award Agreement), by the
Grantee's estate or by a person who acquired the right to exercise
the Option or SAR by bequest or inheritance, but only to the extent
that the Grantee was entitled to exercise the Option or SAR at the
date of death. If, at the time of death, the Grantee was not
entitled to exercise his or her entire Option or SAR, the Shares
covered by the unexercisable portion of the Option or SAR shall
immediately revert to the Plan. If, after death, the
Grantee's estate or a person who acquired the right to exercise the
Option or SAR by bequest or inheritance does not exercise the
Option or SAR within the time specified herein, the Option or SAR
shall terminate, and the Shares covered by such Option or SAR shall
revert to the Plan.
(ii)
the Grantee’s Restricted Stock Awards, to the
extent forfeitable immediately before the date of death, shall
thereupon automatically be forfeited;
(iii)
the Grantee’s Restricted Stock Awards that
were not forfeitable immediately before the date of death shall
promptly be settled by delivery to the Grantee’s estate or a
person who acquired the right to hold the Stock Grant by bequest or
inheritance, of a number of unrestricted Shares equal to the
aggregate number of the Grantee’s vested Restricted Stock
Awards;
(iv)
any Performance Shares or Performance Units with
respect to which the Performance Period has not ended as of the
date of death shall terminate immediately upon the date of
death.
(g)
Nontransferability of Awards .
(i)
Except as provided in Section 5(g)(iii) below, each
Award, and each right under any Award, shall be exercisable only by
the Grantee during the Grantee’s lifetime, or, if permissible
under Applicable Law, by the Grantee’s guardian or legal
representative.
(ii)
Except as provided in Section 5(g)(iii) below, no
Award (prior to the time, if applicable, Shares are issued in
respect of such Award), and no right under any Award, may be
assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Grantee otherwise than by will or by
the laws of descent and distribution (or in the case of Restricted
Stock Awards, to the Company) and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance shall
be void and unenforceable against the Company or any Subsidiary;
provided, that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale,
transfer or encumbrance.
(iii)
To the extent and in the manner permitted by
Applicable Law, and to the extent and in the manner permitted by
the Administrator, and subject to such terms and conditions as may
be prescribed by the Administrator, a Grantee may transfer an Award
to:
(A)
a 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 of the Grantee (including adoptive
relationships);
(B)
any person sharing the employee’s household
(other than a tenant or employee);
(C)
a trust in which persons described in (A) and (B)
have more than 50 percent of the beneficial interest;
(D)
a foundation in which persons described in (A)
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