Exhibit 10.1
ON THE GO HEALTHCARE, INC.
2007 STOCK OPTION PLAN
Article I.
Purposes of the Plan
The purposes of this Stock Option 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.
Article II.
Definitions
As used herein, the following definitions shall apply:
2.01
"Administrator" means the Board or any of the Committees
appointed
to administer the Plan.
2.02 "Applicable
Laws" means the legal requirements relating to the
administration of share incentive plans, if any, under
applicable
provisions of the U.S. federal securities laws, the U.S. state
corporate and securities laws, the Code, the rules of any
applicable
stock exchange or national market system, and the laws and rules
of
any jurisdiction outside the U.S. applicable to Options
including
Canadian laws, SARs or Restricted Shares granted to residents
therein.
2.03 "Board"
means the Board of Directors of the Company.
2.04 "Code"
means the U.S. Internal Revenue Code of 1986, as amended.
2.05 "Committee"
means any committee appointed by the Board to administer
the Plan, provided that the Committee shall consist of not fewer
than
two (2) members of the Board, and shall, following the
Registration
Date and, solely to the extent required to comply with Applicable
Laws,
be composed of "non-employee" directors within the meaning of
Rule 16b-3 as promulgated under the Exchange Act and "outside
directors" within the meaning of the Code. To the extent the Plan
is administered by the Board, the term "Committee" shall refer
to
the Board.
2.06 "Common
Share" means a share of US$0.0001 par value of the Company.
2.07 "Company"
means On the Go Healthcare, Inc., a company incorporated
under the laws of Delaware.
2.08
"Consultant" means any person (other than an Employee or 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
or any other selective persons the Administrator determines
provides,
directly or indirectly, bona fide value to the Company or any
Related
Entity.
2.09 "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:
<PAGE>
(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 Option Agreement).
An approved leave of absence shall include sick leave, maternity
leave,
or any other authorized personal leave.
2.10 "Corporate
Transaction" means any of the following transactions to which
the Company is a party:
(i) a merger or
consolidation or reorganization in which the Company
is not the surviving entity; or
(ii) the sale,
transfer or other disposition of all or substantially
all of the assets of the Company (including the share capital
of
the Company's Subsidiaries).
2.11 "Director"
means a member of the Board or the board of directors of any
Related Entity.
2.12
"Disability" means that an Optionee is permanently unable to carry
out
the responsibilities and functions of the position held by the
Optionee
by reason of any medically determinable physical or mental
impairment
as determined by the Administrator. An Optionee 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.
2.13 "Effective
Date" means the date on which a Grant of Options and/or SARs
and/or Restricted Shares shall take effect in accordance with
Option
Agreement.
2.14 "Employee"
means any person, including an Officer or Director, who is an
employee of the Company or any Related Entity. The payment of an
independent director's fee by the Company or a Related Entity
shall
not be sufficient to constitute "employment" of such person by
the
Company.
2.15 "Exchange
Act" means the U.S. Securities Exchange Act of 1934, as
amended.
2.16 "Fair
Market Value" means, as of any date, the value of Common Shares
as follows:
(a)
Where there exists a public market for the Common Shares, the
Fair
Market Value shall be:
(i) the closing
price for a Share for the last market trading
day prior to the time of the determination (or, if no
closing price was reported on that date, on the last
trading date on which a closing price was reported) on
the stock exchange determined by the Administrator to be
the primary market for the Common Shares or the Nasdaq
National Market, whichever is applicable; or
<PAGE>
(ii) if the Common
Shares are not traded on any such exchange,
or national market system, the average of the closing
bid and
asked prices of a Share on the Nasdaq Small
Cap Market for the day prior to the time of the
determination (or, if no such prices were reported on
that date, on the last date on which such prices were
reported), in each case, as reported in The Wall Street
Journal or such other source as the Administrator deems
reliable.
(b)
In the absence of an established market for the Common Shares
of
the type described in (a), above, the Fair Market Value thereof
shall be determined by the Administrator in good faith by
reference
to:
(i) the
valuation price made by an independent appraiser
appointed by the Administrator;
(ii) the placing price
of the latest private placement of the
Shares; and
(iii) the development of the Company's business operations
since such latest private placement.
2.17 "Grant" means the
number of Options and/or Stock Appreciation Rights
and/or Restricted Shares and/or Restricted Share Units granted to
an
Optionee at any time in accordance with Section 6 hereof.
2.18 "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 Optionee's household (other than a tenant or
employee), a trust in which these persons (or the Optionee) have
more
than
fifty percent (50%) of the beneficial interest, a foundation in
which these persons (or the Optionee) control the management of
assets, and any other entity in which these persons (or the
Optionee)
own
more than fifty percent (50%) of the voting interests.
2.19 "Liquidation
Event" means a complete dissolution or liquidation of the
Company.
2.20 "Non-Statutory
Stock Option" means an Option not intended to qualify as
an
Incentive Stock Option within the meaning of Section 422 of the
Code.
2.21 "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 or, to the extent
applicable, other Applicable Laws.
2.22 "Option" means an
option to purchase Shares pursuant to an Option
Agreement granted under the Plan.
2.23 "Optionee"
means an Employee, Director, or Consultant who receives a
Grant under the Plan.
2.24 "Option
Agreement" means the written agreement evidencing the grant of
an option and/or SARs and/or Restricted Shares executed by the
Company
and the Optionee, including any amendments thereto.
2.25 "Option
Period" means the period commencing on the Effective Date of a
Grant and ending no later than on the day prior to the tenth
anniversary of such Effective Date.
<PAGE>
2.26 "Parent"
means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code or, to the
extent
applicable, other Applicable Laws.
2.27 "Plan"
means this 2007 Stock Option Plan of On the Go Healthcare,
Inc.,
as set forth herein and as may be amended from time to time.
2.28
"Registration Date" means the first to occur of:
(a) the closing of the first sale to the general public of:
(i) the Common Shares;
or
(ii) the same class of securities of a successor corporation
(or its Parent) issued pursuant to a Corporate Transaction
in exchange for or in substitution of the Common Shares,
pursuant to a registration statement filed with and
declared effective by the Securities and Exchange
Commission under the Securities Act or an equivalent
thereof in a jurisdiction outside the U.S.;
and
(b) in the event of a Corporate Transaction, the date of the
consummation of the Corporate Transaction if the same class of
securities of the successor corporation (or its Parent) issuable
in
such Corporate Transaction shall have been sold to the general
public pursuant to a registration statement filed with and
declared
effective by the Securities and Exchange Commission under the
Securities Act or an equivalent thereof in a jurisdiction
outside
the U.S., on or prior to the date of consummation of such
Corporate
Transaction.
2.29 "Related
Entity" means any Parent, Subsidiary and any other corporation,
partnership, limited liability company or other business entity
in
which the Company, its Parent or a Subsidiary holds a
substantial
ownership interest, directly or indirectly.
2.30 "Securities
Act" means the U.S. Securities Act of 1933, as amended.
2.31 "SAR" means
a Stock Appreciation Right granted to an Optionee under
this Plan.
2.32 "Shares"
mean Common Shares of the Company.
2.33
"Subsidiary" means a "subsidiary corporation", whether now or
hereafter
existing, as defined in Section 424(f) of the Code or, to the
extent
applicable, other Applicable Laws.
Article III. Shares
Subject to the Plan
3.01 Subject to
the provisions of Section 10.01 below, the maximum aggregate
number of Shares with respect to which Grants may be made under
the
Plan
shall not exceed 17,000,000 shares.
<PAGE>
3.02 Any Shares
covered by a Grant (or portion of a Grant) which is forfeited
or
cancelled, expires or is settled in cash or otherwise, 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.
If any
unissued Shares are retained by the Company upon exercise of a
Grant in
order to satisfy the exercise price for such Grant or any
withholding
taxes due with respect to such Grant, such retained Shares subject
to
such
Grant shall become available for future issuance under the Plan
(unless the Plan has terminated). Shares that actually have been
issued under the Plan pursuant to a Grant shall not be returned
to
the
Plan and shall not become available for future issuance under
the
Plan.
Article IV.
Administration of the Plan
4.01 Plan
Administrator. The
Committee shall administer the Plan in
accordance with its terms.
4.02 Powers of
the Administrator.
Subject to Applicable Laws and the
provisions of the Plan (including any other powers given to the
Administrator hereunder), and except as otherwise provided by the
Board,
the
Administrator shall have the authority, in its discretion:
(a) to determine the eligibility of Grants, the classes of bands
and
the range of number of Shares covered in each Band, to
authorize
the Chief Executive Officer and Executive Management Team to
determine number of shares of each Grant;
(b)
to approve forms of Option Agreements for use under the Plan;
(c) to determine to grant Options with or without SARs;
(d) to determine the Exercise Price applicable to the Share
covered
by each Option;
(e) to determine the Option Period applicable thereto;
(f) to establish additional terms, conditions, rules or procedures
to
accommodate the rules or laws of applicable foreign
jurisdictions
and to afford Optionees favorable treatment under such rules or
laws; provided, however, that no Grant shall be granted under
any
such additional terms, conditions, rules or procedures with
terms
or conditions which are inconsistent with the provisions of the
Plan;
(g) to amend the terms of any outstanding Grant granted under the
Plan,
and to reduce the exercise price of any Option or SAR to the
then
current Fair Market Value if the Fair Market Value of the
Shares
covered by such Grant shall have declined since the date the
Grant
was granted and to make any other amendments or adjustments to
any
Grant that the Administrator determines, in its discretion and
under the authority granted to it under this Plan, to be
necessary
or advisable, provided that the exercise price shall never fall
below the nominal or par value of the Shares, and that any such
amendment or adjustment that would adversely affect the
Optionee's
rights under an outstanding Grant shall not be made without the
Optionee's written consent;
(h) to construe and interpret the terms of the Plan and Grants,
including without limitation, any notice of Grant or Option
Agreement, granted pursuant to the Plan; and
(j) to take such other action, not inconsistent with the terms of
the
Plan, as the Administrator deems appropriate.
<PAGE>
Article V.
Eligibility
Options may be granted to Employees, Directors, and Consultants.
An Employee,
Director, or Consultant who has been granted a Grant may, if
otherwise
eligible, be granted additional Grants. Grants may be granted to such
Employees, Directors, or Consultants who are residing in foreign
jurisdictions
as the Administrator may determine from time to time.
Article VI. Type
of Grants; Terms and Conditions of Grants
Grants under the Plan may consist of one or more of the following:
Options,
SARs, or Restricted Shares (which may be granted as Restricted
Share units).
Restricted Stock may be registered on a Form S-8 prior or
subsequent to any
grants. Awards of Restricted Shares may provide the Optionee with
dividends
or dividend equivalents and voting rights prior to vesting.
Additionally,
shares of common stock may be granted as free-trading shares if the
shares of
common stock are registered on a Form S-8. Each Grant shall be designated
in
the Option Agreement.
6.01 Options
(a) Option Designation. Options shall be designated as
Non-Statutory
Stock Option.
(b) Option Exercise Price. The exercise price of an Option
shall be
as follows:
(i) granted to a
person who, at the time of the grant of such
Non-Statutory Stock Option owns shares representing more
than ten percent (10%) of the voting power of all classes
of shares of the Company or any Parent or Subsidiary, the
per Share exercise price shall be not less than one
hundred percent (100%) of the Fair Market Value per
Share on the date of grant; or
(ii) granted to a person other
