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Exhibit 10.8
FLUX US CORP.
2003 STOCK OPTION PLAN
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TABLE OF CONTENTS
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Section 1.
Purpose....................................................
1
Section 2.
Definitions................................................
1
Section 3.
Stock Subject to This Plan.................................
2
Section 4.
Administration.............................................
3
Section 5.
Options and Eligible Participants..........................
4
Section 6.
Provisions Applicable to All Options.......................
4
Section 7.
Provisions applicable to ISOs Only.........................
6
Section 8.
Employment with Related Entities...........................
6
Section 9.
Termination of Relationship with Company...................
7
Section 10.
Options Not Transferable...................................
8
Section 11.
Changes in Company's Capital Structure.....................
8
Section 12.
Securities Regulation and Other Required Approvals.........
10
Section 13.
Withholding Tax Requirement................................
11
Section 14.
Status of Shareholder......................................
11
Section 15.
Rights and Relationships...................................
11
Section 16.
Amendment and Termination..................................
12
Section 17.
Applicable Law; Resolving Disputes.........................
12
Section 18.
Effectiveness of This Plan.................................
12
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FLUX US CORP.
2003 STOCK OPTION PLAN
SECTION 1. PURPOSE. The purpose of this Flux US Corp. 2003 Stock
Option
Plan (this "Plan") is to provide a means for Flux US Corp. (the
"Company") and
related entities to continue to attract, motivate and retain key
employees,
consultants and other independent contractors, and to provide these
individuals
with greater incentive for their service to the Company (and
related entities)
by linking their interests in the Company's success with those of
the Company
and its shareholders.
SECTION 2. DEFINITIONS. When used in this Plan the following terms
are
defined as set forth below:
"ADMINISTRATOR" has the meaning provided in Section 4.
"BOARD" means the Board of Directors of the Company.
"CAPITALIZATION CHANGE" has the meaning provided in Section
11.1.
"CAUSE" has the meaning provided in Section 9.1.2.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" has the meaning provided in Section 3.
"COMPANY" means Flux US Corp., a Delaware corporation
"EFFECTIVE DATE" has the meaning provided in Section 18.
"ELIGIBLE PARTICIPANTS" has the meaning provided in Section
5.2.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXERCISE PRICE" means the amount to be paid by an Optionee to
exercise an Option.
"FAIR MARKET VALUE" of a share of Class A Common Stock is the
fair
market value established in good faith by the Administrator, unless
one of the
following applies: (a) If the Class A Common Stock is listed on the
Nasdaq
National Market, then the Fair Market Value is the closing sales
price for the
Class A Common Stock as recorded by the Nasdaq National Market for
the
immediately preceding trading day; (b) if the Class A Common Stock
is listed on
the New York Stock Exchange, the American Stock Exchange or other
established
exchange, then the Fair Market Value is the closing sales price for
the Class A
Common Stock as such price is officially quoted in the composite
tape of
transactions on such exchange for the immediately preceding trading
day; (c) if
the Class A Common Stock is publicly traded but not on an
established exchange,
then the Fair Market Value is the closing sales price for the Class
A
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Common Stock as such price is officially listed on the NASD Over
the Counter
Bulletin Board System, or other applicable or successor system, for
the
immediately preceding trading day; or (d) if the Class A Common
Stock is
publicly traded but there is no reported closing sales price on the
applicable
exchange or system for the date in question, then such price on the
last
preceding date for which a closing sales price exists shall be
determinative of
Fair Market Value.
"GRANT DATE" means the date on which the Administrator completes
the
corporate action relating to the grant of an Option and all
conditions precedent
to the grant have been satisfied, provided that conditions relating
to
exercisability or vesting of an Option shall not defer the Grant
Date.
"ISO" or "Incentive Stock Option" has the meaning provided in
Section
5.1.
"NQSO" or "Nonqualified Stock Option" has the meaning provided
in
Section 5.1.
"OPTION" means an option granted pursuant to this Plan for the
purchase of shares of Common Stock.
"OPTION AGREEMENT" means a written agreement that details the
terms
and conditions of a particular Option.
"OPTIONEE" means an individual or entity who has received an
Option
under this Plan.
"PLAN" means this Flux US Corp. 2003 Stock Option Plan.
"RELATED ENTITY" means any entity that, directly or indirectly, is
in
control of, or is controlled by, or under common control with, the
Company.
"SALES EVENT" has the meaning provided in Section 11.2.1.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TOTAL DISABILITY" has the meaning provided in Section 9.2.
SECTION 3. STOCK SUBJECT TO THIS PLAN. The stock issuable under
this Plan
is the Company's Class A Common Stock, with voting rights, either
authorized but
unissued or reacquired by the Company (referred to hereafter as
either "Common
Stock" or "Class A Common Stock").
3.1 AMOUNT. Subject to adjustment under Section 11.1, the
maximum
amount of Common Stock that may be issued for Options under this
Plan is
12,000,000 shares, as such Class A Common Stock was constituted on
the Effective
Date.
3.2 RETURNED SHARES. If any outstanding Option expires, or is
exchanged, canceled or terminated for any reason without having
been exercised
or realized in full, then the
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unpurchased or unissued shares subject to such Options will again
be available
for issuance under this Plan. If the Company repurchases shares of
Class A
Common Stock issued pursuant to an Option, then the repurchased
shares will not
be available again for issuance under this Plan, unless the shares
relate to an
Option (or portion of an Option) that was exercised prior to
becoming vested,
which shares are then repurchased by the Company, for the
Optionee's Exercise
Price, in conjunction with the Optionee terminating employment or
services with
the Company prior to satisfaction of the underlying vesting
schedule, in which
case the repurchased shares will again be available for issuance
under this
Plan; provided, that the aggregate number of shares that may be
issued upon the
exercise of ISOs will in no event exceed 2,000,000, subject to
adjustment from
time to time as provided in Section 11.1.
SECTION 4. ADMINISTRATION.
4.1 ADMINISTRATOR. The Board of Directors of the Company will
administer this Plan, except to the extent that it delegates
administrative
responsibilities to a committee or subcommittee. The body charged
with
administering the Plan is referred to as the "Administrator."
Notwithstanding
the delegation of administrative authority, the Board has exclusive
authority to
(a) amend or terminate this Plan as provided in Section 16, and (b)
remove
members from and add members to a committee or subcommittee acting
as the
Administrator. The Administrator may further delegate
administrative duties to
those officers and managers of the Company as it so determines.
4.2 PROCEDURES. The Administrator may hold meetings at such times
and
places as it determines, and from time to time adopt and amend
rules and
regulations relating to the administration of this Plan, provided
that absent
the adoption of any formal rules, the acts of a majority of the
members of the
Administrator at a meeting, or acts approved in writing by all
Administrator
members, are valid acts of the Administrator.
4.3 RESPONSIBILITIES. Except as stated elsewhere in this Plan,
the
Administrator has full discretionary authority to determine all
matters relating
to Options, including but not limited to (a) the selection of
Eligible
Participants to receive Options, (b) the number of shares subject
to each
Option, (c) the Exercise Price to be paid for any Option, (d) any
vesting or
forfeiture schedule, (e) the acceleration of the exercise date, and
(f) the
extension of the exercise period. In exercising its authority to
set the terms
and conditions of an Option, and subject only to the limits of
applicable law,
the Administrator shall be under no obligation or duty to treat
similarly
situated Optionees in the same manner, and any action taken by the
Administrator
with respect to the grant of an Option to one individual shall in
no way
obligate the Administrator to take the same or similar action with
respect to
any other individual. The Administrator may exercise its discretion
in a manner
such that Options granted to individuals who are foreign nationals
or are
employed outside the United States contain terms and conditions
that are
different from the provisions otherwise anticipated in this Plan,
but which are
consistent with the tax and other laws of applicable foreign
jurisdictions and
consistent with the Company's objectives in establishing this
Plan.
4.4 PLAN CONSTRUCTION AND INTERPRETATION. Subject to Section 4.5,
the
Administrator may correct any defect, supply any omission, or
reconcile any
inconsistency (a)
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within this Plan, (b) between this Plan and any related agreement,
or (c)
between this Plan and any rule or regulation promulgated under this
Plan, in the
manner and to the extent the Administrator deems appropriate to
carry out this
Plan. The Administrator's interpretation or construction of any
such Plan
provision, related agreement, rule or regulation shall be final,
conclusive and
binding on all interested parties.
4.5 AMENDMENT OF OPTIONS. The Administrator may modify or amend
outstanding Options granted under this Plan. The modification or
amendment of an
outstanding Option shall not, without the consent of the Optionee,
impair,
diminish or terminate any of the rights of the Optionee or any of
the
obligations of the Company under the Option, except as otherwise
provided in
this Plan, or as required to comply with applicable law. Unless the
Optionee
agrees otherwise, any changes or adjustments made to outstanding
ISOs granted
under this Plan will be made in a manner so as not to constitute
a
"modification," as defined in Code Section 424(h), and so as not to
cause any
ISO to fail to continue to qualify under Code Section 422(b).
SECTION 5. OPTIONS AND ELIGIBLE PARTICIPANTS.
5.1 TYPES. Subject to Section 4, the Administrator may, from time
to
time, grant under this Plan (i) incentive stock options (also
referred to as
"ISOs"), as defined in Code Section 422, or (ii) options that do
not qualify as
ISOs (referred to as "nonqualified stock options" or "NQSOs"). ISOs
and NQSOs
may be granted singly or in combination.
5.2 ELIGIBLE PARTICIPANTS. The Administrator, as it determines
from
time to time, may grant Options to officers, directors and
employees of the
Company and its Related Entities. The Administrator may also grant
Options to
consultants, agents, advisors and independent contractors who
provide services
to the Company or its Related Entities, or both, provided that such
Option
recipients (a) are natural persons or an alter-ego entity, (b)
render bona fide
services that are not in connection with the offer and sale of the
Company's
securities in a capital-raising transaction and (c) render bona
fide services
that do not directly or indirectly promote or maintain a market for
the
Company's securities.
5.3 TERMS AND CONDITIONS. The terms and conditions of Options
granted
under this Plan need not be identical in any respect, even when
grants are made
simultaneously or to persons with the same or similar status.
SECTION 6. PROVISIONS APPLICABLE TO ALL OPTIONS. The provisions of
this
Section 6 apply to both ISOs and NQSOs.
6.1 OPTION
AGREEMENT. Each Option will be evidenced by an Option
Agreement that incorporates this Plan by reference and describes
the terms and
conditions of the Option. In particular, the Option Agreement will
specify the
number of shares of Common Stock that may be purchased, whether the
Option is an
ISO or a NQSO, the Option's expiration date, the schedule (if any)
under which
the Option may be exercised, the Exercise Price, and any other
terms,
conditions, restrictions, representations or warranties required by
the
Administrator.
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6.2 EXERCISE PRICE. The Administrator will determine the
Exercise
Price of NQSOs and ISOs, provided that subject to the requirements
of Section 7,
the per share Exercise Price with respect to an ISO will be at
least the Fair
Market Value of a share of the Common Stock as of the Grant
Date.
6.3 TERM. The term of each Option will be ten years from the
Grant
Date, unless a shorter period is required under Section 7 or the
Administrator
establishes a shorter period of time.
6.4 VESTING. To ensure the Company achieves the purposes and
receives
the benefits contemplated in this Plan, any Option granted under
this Plan
shall, unless the condition of this Section 6.4 is waived or
modified in the
Option Agreement or by action of the Administrator, be exercisable
according to
the following schedule:
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Period of Optionee's Continuous
Service Relationship
With the
Company or
Related Entity Portion of
Total Option
From The
Grant Date
That Is Exercisable
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Less than 1 year
0%
1 year
25%
2 years
50%
3 years
75%
After 4 Years
100%
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The Administrator may, in its complete discretion, provide in
an
Option Agreement (or addendum to a previously issued Option
Agreement) for the
Optionee's ability to exercise his or her Option prior to vesting,
provided that
the Company may require that such shares be held in escrow until
the Optionee
satisfies the applicable vesting schedule, that such shares be
subject to a
requirement that they may not be sold, gifted or otherwise
transferred prior to
vesting, and that if the Optionee terminates employment or other
service
relationship with the Company prior to satisfaction of the
applicable vesting
schedule, then the Company may (but will not be obligated to)
repurchase the
shares that relate to the unvested portion of the Option at the
time of
termination, with the Company's repurchase price being the
Optionee's original
Exercise Price. In connection with an Optionee's exercise of an
Option prior to
vesting, the Optionee may file an election under Code Section 83(b)
to
accelerate the tax consequence of the exercise.
6.5 EXERCISE. The Recipient may exercise Options by delivering
written
notice to the Administrator of the number of shares sought to be
exercised,
together with payment of the Exercise Price. The Administrator may
specify the
form of such notice and the manner of its delivery. Subject to any
vesting
schedule in the Option Agreement and to any additional holding
period required
by law, the Optionee may exercise each Option in whole or in part,
except that
only whole shares of Common Stock will be issued pursuant to the
exercise of any
Option.
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6.6 PAYMENT OF EXERCISE PRICE. An Optionee must pay the Exercise
Price
in full at the time of exercise. Payment of the Exercise Price
shall be in cash,
by bank certified or cashier's check or by personal check (unless
at the time of
exercise the Administrator in a particular case determines not to
accept a
personal check). The Administrator may det
