EXHIBIT 4.1
CARBONICS CAPITAL CORPORATION
2009 Stock and Stock Option Plan
Article 1. Establishment and Purpose
1.1 Establishment of the Plan.
Carbonics Capital Corporation, a Delaware
corporation (the "Company" or "Carbonics
Capital"), hereby establishes an
incentive compensation plan (the "Plan"), as set forth in this
document.
1.2 Purpose of the Plan. The purpose
of the Plan is to promote the success
and enhance the value of the Company by
linking the personal interests of
Participants to those of the
Company's shareholders, and by
providing
Participants with an incentive for outstanding performance.
The Plan is further
intended to attract and retain the services of Participants upon
whose judgment,
interest, and special efforts the successful operation of
Carbonics Capital and
its subsidiaries is dependent.
1.3 Effective Date of the Plan. The Plan
shall become effective on October
1, 2009.
Article 2. Definitions
Whenever used in the Plan, the
following terms shall have the meanings set
forth below and, when the meaning is intended, the initial letter
of the word is
capitalized:
(a) "Award" means,
individually or collectively, a grant under this Plan
of Stock,
Stock Options, or Restricted Stock.
(b) "Award Agreement" means an
agreement which may be entered into by each
Participant and the Company, setting forth the terms
and provisions
applicable
to Awards granted to Participants under this Plan.
(c) "Board" or
"Board of Directors" means the
Company's Board of
Directors.
(d) "Cause" shall mean
willful and gross misconduct on the part of
an
Eligible
Person that is materially and demonstrably detrimental to the
Company or
any Subsidiary as determined by the Committee in its
sole
discretion.
(e) "Change in
Control" shall be deemed to have
occurred if (i) any
"person" (as such term is used in Sections
13(d) and 14(d) of the
Exchange
Act), other than (A) a person who on October 1, 2009 was
the
beneficial owner of more than 25% of the
outstanding Shares, (B) a
trustee or other fiduciary holding
securities under an employee
benefit plan of the Company or (C) a corporation
owned directly or
indirectly
by the shareholders of the Company in
substantially the
same
proportions as their ownership of stock of the
Company, is or
becomes the "beneficial owner" (as defined in
Rule 13d-3 under said
Act), directly or
indirectly, of securities of
the Company
representing fifty percent (50%) or more of the
total voting power
represented
by the Company's then outstanding voting
securities, or
(ii) during
any period of two (2) consecutive years, individuals
who
at the
beginning of such period constitute the Board of
Directors of
the
Company and any new Director whose
election by the Board of
Directors or
nomination for election by the Company's shareholders was
approved by
a vote of at least two-thirds (2/3) of the Directors then
still in
office who either were Directors at the
beginning of the
period or
whose election or nomination for election was previously
so
approved, cease for any reason to constitute a
majority thereof, or
(iii)
the shareholders of the
Company approve a merger or
consolidation of the Company with any other corporation,
other than a
merger or
consolidation which would result in the voting securities of
the
Company outstanding immediately prior
thereto continuing to
represent
(either by remaining outstanding or by being converted
into
voting
securities of the surviving entity) at least fifty-five percent
(55%) of the
total voting power represented by the voting
securities
of the
Company or such surviving entity outstanding immediately
after
such
merger or consolidation, or the
shareholders of the Company
approve a
plan of complete liquidation of the Company or an
agreement
for the sale
or disposition by the Company of all or substantially all
the
Company's assets.
(f) "Code" means the Internal
Revenue Code of 1986, as amended from time
to time.
(g) "Committee" means the committee
or committees, as specified in Article
3,
appointed by the Board to administer the Plan
with respect to
grants of
Awards.
(h) "Consultant" means a natural
person under contract with the Company to
provide bona
fide services to the Company which are not in connection
with the
offer or sale of securities in a capital-raising
transaction
and do not
directly or indirectly promote or maintain a market for the
Company's
securities.
(i) "Director" means
any individual who is a member of the
Carbonics
Capital
Board of Directors.
(j) "Disability" shall mean
the Participant's inability to perform the
Participant's normal Employment
functions due to any medically
determinable physical or mental
disability, which can last or has
lasted 12
months or is expected to result in death.
(k) "Eligible Person" means an
Employee, Director or Consultant.
(l) "Employee" means any
officer or employee of the Company or of one of
the
Company's Subsidiaries. Directors who are not otherwise
employed
by the
Company shall not be considered Employees under this Plan.
(m) "Employment," with
reference to an Employee, means the condition of
being
an officer or employee of
the Company or one of its
Subsidiaries. "Employment," with reference to a Consultant,
means the
condition of
being a Consultant. "Employment," with
reference to a
Director, means the condition of being a
Director. The change in
status
of an Eligible Person among the
categories of Employee,
Director and Consultant shall
not be deemed a termination of
Employment.
(n) "Exchange Act" means the
Securities Exchange Act of 1934, as amended
from time to
time, or any successor Act thereto.
(o) "Exercise Price" means the
price at which a Share may be purchased by
a
Participant pursuant to an Option, as determined by the
Committee.
(p) "Insider" shall mean an
Eligible Person who is, on the relevant date,
an
officer, director, or ten percent (10%)
beneficial owner of the
Company, as those terms are defined under Section 16 of
the Exchange
Act.
(q) "Option" or "Stock
Option" shall mean an option to purchase
Shares
granted
hereunder.
(r) "Participant" means a
person who holds an outstanding Award granted
under the
Plan.
(s) "Plan" means this 2009 Stock and
Stock Option Plan.
(t) "Restricted Stock"
means an Award of Stock granted to an
Eligible
Person
pursuant to Article 7 herein.
(u) "Restriction
Period" means the period during
which Shares of
Restricted Stock are subject to
restrictions or conditions under
Article
7.
(v) "Shares" or "Stock" means the
shares of common stock of the Company.
(w) "Subsidiary" shall mean
any corporation in which the Company
owns
directly, or
indirectly through subsidiaries, more than fifty percent
(50%) of the
total combined voting power of all classes of Stock,
or
any
other entity (including, but not limited
to, partnerships and
joint
ventures) in which the Company owns more than
fifty percent
(50%) of the
combined equity thereof.
Article 3. Administration
3.1 The Committee. The Plan and all
Awards hereunder shall be administered
by one or more Committees of the Board as may be appointed by the
Board for this
purpose. The Board may appoint a Committee specifically
responsible for Awards
to Insiders (the "Disinterested
Committee") where each Director on
such
Disinterested Committee is a
"Non-Employee Director" (or any
successor
designation for determining who may administer
plans, transactions or awards
exempt under Section 16(b) of the Exchange Act),
as that term is used in Rule
16b-3 under the Exchange Act, as that rule may be modified from
time to time. If
no specific Committee is appointed by the Board, then the
Board in its entirety
shall be the Committee. Any Committee may be replaced by the Board
at any time.
3.2 Authority of the Committee. The
Committee shall have full power, except
as limited by law and subject to the provisions herein, to select
the recipients
of Awards; to determine the size and types of Awards; to determine
the terms and
conditions of such Awards in a manner consistent with the
Plan; to construe and
interpret the Plan and any agreement or instrument entered
into under the Plan;
to establish, amend, or
waive rules and regulations
for the Plan's
administration; and to amend the terms and conditions of any
outstanding Award
to the extent such terms and conditions
are within the discretion of the
Committee as provided in the Plan. Further, the
Committee shall make all other
determinations which may be necessary or advisable for the
administration of the
Plan.
No Award may be made under the Plan after
December 31, 2014.
All determinations and
decisions made by the Committee pursuant to
the
provisions of the Plan and all related orders or resolutions
of the Board shall
be final, conclusive, and binding on all persons,
including the Company, its
stockholders, Eligible Persons,
Participants, and their
estates and
beneficiaries.
Subject to the terms of this Plan, the
Committee is authorized, and shall
not be limited in its discretion, to
use any of the Performance Criteria
specified herein in its determination of Awards under this
Plan.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject
to adjustment as provided in Section
4.3
herein, the number of Shares available for grant under the Plan
shall not exceed
one hundred million (100,000,000) Shares. The Shares granted under
this Plan may
be either authorized but unissued or reacquired Shares.
4.2 Lapsed Awards. If
any Award granted under this Plan is
canceled,
terminates, expires, or lapses for any
reason, Shares subject to such Award
shall be again available for the grant of an Award under the
Plan.
4.3 Adjustments in
Authorized Plan Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation,
liquidation, Stock
dividend, split-up, Share combination,
or other change in the corporate
structure of the Company affecting the Shares, an
adjustment shall be made in
the number and class of Shares which may be delivered under the
Plan, and in the
number and class of and/or price of Shares subject to outstanding
Awards granted
under the Plan, and/or the
number of outstanding Options and
Shares of
Restricted Stock constituting outstanding
Awards, as may be determined to be
appropriate and equitable by the Committee, in its sole
discretion, to prevent
dilution or enlargement of rights.
Article 5. Stock Grant
5.1 Grant of Stock. Subject to the
terms and provisions of the Plan, the
Board of Directors, at any time and from time to time, may grant
Shares of Stock
to Eligible Persons in such amounts and upon such terms
and conditions as the
Board of Directors shall determine.
Article 6. Stock Options
6.1 Gr
