DINEWISE, INC.2006 STOCK OPTION PLANStock Option Agreement |
|
|
You are currently viewing: This Stock Option Agreement involves
DINEWISE, INC.. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Stock Option Agreement by:
DINEWISE, INC.2006
STOCK OPTION PLAN
ARTICLE I
Establishment, Purpose, and Duration
1.1 Establishment of the Plan . Dinewise, a Nevada Corporation (the “Company”), hereby establishes an incentive compensation plan for the Company and its Subsidiaries to be known as the “2006 Stock Option Plan”, as set forth in this document. Unless otherwise defined herein, all capitalized terms shall have the meanings set forth in Section 2.1 herein. The Plan permits the grant of Non-Qualified Stock Options to Employees, Non-Employee Directors, and Consultants.
The Plan was adopted by the Board of Directors of the Company on November 13, 2006, and shall become effective on November 13, 2006 (the “Effective Date”). Awards under the Plan may not be granted prior to the Effective Date of the Plan.
1.2 Purpose of the Plan . The purpose of the Plan is to promote the success of the Company and its Subsidiaries by providing incentives to certain Employees, Non-Employee Directors and Consultants that will promote the identification of their personal interest with the long-term financial success of the Company and with growth in shareholder value. The Plan is designed to provide flexibility to the Company and its Subsidiaries, in its ability to motivate, attract, and retain the services of qualified persons upon whose judgment, interest, and effort the successful conduct of its operation is largely dependent.
1.3 Duration of the Plan . The Plan shall commence on the Effective Date, as described in Section 1.1 herein, and shall remain in effect, subject to the right of the Board of Directors to terminate the Plan at any time pursuant to Article IX herein, until November 12, 2016, at which time it shall terminate except with respect to Awards made prior to, and outstanding on, that date which shall remain valid in accordance with their terms.
ARTICLE II
Definitions
2.1 Definitions . Except as otherwise defined in the Plan, the following terms shall have the meanings set forth below:
|
|
(a) “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 under the Exchange Act. |
|
|
(b) “Agreement” means a written agreement implementing the grant of each Award signed by an authorized officer or director of the Company and by the Participant. |
|
|
(c) “Award” or “Grant” means, individually or collectively, a grant under the Plan of Non-Qualified Stock Options. |
|
|
(d) “Award Date” or “Grant Date” means the date on which an Award is made by the Committee under the Plan. |
|
|
(e) “Beneficial Owner” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act. |
|
|
(f) “Board” or “Board of Directors” means the Board of Directors of the Company, unless otherwise indicated. |
|
|
(g) “Change in Control” shall be deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied: |
|
|
(i) any Person (other than the Company, any Subsidiary of the Company, a trustee or other fiduciary holding securities under any employee benefit plan of the Company or any shareholder of the Company who or which, as of the Effective Date, is a Beneficial Owner, directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company’s then outstanding securities), who or which, together with all Affiliates and Associates of such Person, is or becomes, by means other than a direct purchase from the Company, the Beneficial Owner, directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company’s then outstanding securities; or |
|
|
(ii) Any shareholder of the Company who or which, as of the Effective Date, is a Beneficial Owner, directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company’s then outstanding securities or any of its Subsidiaries or Affiliates or Associates is or becomes, by means other than a direct purchase from the Company, the Beneficial Owner, directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company’s then outstanding securities. |
|
|
(iii) if, at any time after the Effective Date, the composition of the Board of Directors of the Company shall change such that a majority of the Board of the Company shall no longer consist of Continuing Directors; or |
|
|
(iv) if at any time, (A) the Company shall consolidate with, or merge with, any other Person and the Company shall not be the continuing or surviving corporation, (B) any Person shall consolidate with or merge with the Company, and the Company shall be the continuing or surviving corporation and, in connection therewith, all or part of the outstanding Stock shall be changed into or exchanged for stock or other securities of any other Person or cash or any other property, (C) the Company shall be a party to a statutory share exchange with any other Person after which the Company is a subsidiary of any other Person, or (D) the Company shall sell or otherwise transfer 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons. |
|
|
(h) “Code” means the Internal Revenue Code of 1986, as amended from time to time. |
|
|
(i) “Committee” means the committee appointed by the Board to administer the Plan pursuant to Article III herein, all of the members of which shall be “non-employee directors” as defined in Rule 16b-3, as amended, under the Exchange Act, or any similar or successor rule, and “outside directors” within the meaning of Section 162(m)(4)(C)(i) of the Code. If no Committee has been appointed by the Board, the Committee shall mean the Board of Directors. |
|
|
(j) “Company” means Dinewise, Inc., or any successor thereto as provided in Article XI herein. |
|
|
(k) “Consultant” means an individual who provided significant services to the Company. |
|
|
(l) “Continuing Directors” means the individuals who constitute the Board on the Effective Date (the “Incumbent Board”) and any person becoming a director subsequent to the Effective Date whose nomination for election was approved by a vote of at least three-quarters (3/4) of the directors comprising the Incumbent Board. |
2
|
|
(m) “Employee” means a current or prospective officer or other employee of the Company or its Subsidiaries (including any corporation, partnership, limited liability company or joint venture which becomes a Subsidiary after the adoption of the Plan by the Board). |
|
|
(n) “Exchange Act” means the Securities Exchange Act of 1934, as amended. |
|
|
(o) “Fair Market Value” of a Share means the mean between the high and low sales price of the Stock on the relevant date if it is a trading date, or if not, on the most recent date on which the Stock was traded prior to such date, as reported by the OTC Bulletin Board or such other markets on which the Company’s Stock is then traded, or if, in the opinion of the Committee, this method is inapplicable or inappropriate for any reason, the fair market value as determined pursuant to a reasonable method adopted by the Committee in good faith for such purpose. |
|
|
(p) “Non-Employee Director” means an individual who is a member of the Board of the Company or a Subsidiary on the applicable Award Date and who is not an employee of the Company or a Subsidiary (including any corporation, partnership, limited liability company or joint venture which becomes a Subsidiary after the adoption of the Plan by the Board). |
|
|
(q) “Non-Qualified Stock Option” or “NQSO” means an option to purchase Stock, granted under Article VI herein, which is not intended to be an incentive stock option within the meaning of Section 422 of the Code. |
|
|
(r) “Option” means a Non-Qualified Stock Option. |
|
|
(s) “Participant” means an Employee, Non-Employee Director or Consultant who is granted an Award under the Plan. |
|
|
(t) “Person” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d). |
|
|
(u) “Plan” means the Dinewise, Inc. 2006 Stock Option Plan, as described and as hereafter from time to time amended. |
|
|
(v) “Stock” or “Shares” means the common stock of the Company. |
|
|
(w) “Subsidiary” means any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code (“Section 424(f) Corporation”) and any partnership, limited liability company or joint venture in which either the Company or a Section 424(f) Corporation is at least a fifty percent (50%) equity participant. |
3
ARTICLE III
Administration
3.1 The Committee . The Plan shall be administered by the Committee, which shall have all powers necessary or desirable for such administration. The express grant in the Plan of any specific power to the Committee shall not be construed as limiting any power or authority of the Committee. In addition to any other powers and subject to the provisions of the Plan, the Committee shall have the following specific powers: (i) to determine the terms and conditions upon which the Awards may be made and exercised; (ii) to determine all terms and provisions of each Agreement, which need not be identical; (iii) to construe and interpret the Agreements and the Plan; (iv) to establish, amend, or waive rules or regulations for the Plan’s administration; (v) to accelerate the exercisability of any Award or the termination of any restrictions imposed under the Plan; and (vi) to make all other determinations and take all other actions necessary or advisable for the administration of the Plan.
The Chairman of the Committee and such other directors and officers of the Company as shall be designated by the Committee are hereby authorized to execute Agreements on behalf of the Company and to cause them to be delivered to the recipients of Awards.
In the event that the terms of any Award provide that it may be exercised only during employment or service or within a specified period of time after termination of employment or service, the Committee may decide to what extent leaves of absence for governmental or military service, illness, temporary disability, or other reasons shall not be deemed interruptions of employment or service or continuous employment or service.
Subject to limitations under applicable law, the Committee is authorized in its discretion to issue Awards and/or accept notices, elections, consents and/or other forms or communications by Participants by electronic or similar means, including, without limitation, transmissions through e-mail, voice mail, recorded messages on electronic telephone systems, and other permissible methods, on such basis and for such purposes as it determines from time to time.
A majority of the entire Committee shall constitute a quorum and the action of a majority of the members present at any meeting at which a quorum is present (in person or as otherwise permitted by applicable law), or acts approved in writing by a majority of the Committee without a meeting, shall be deemed the action of the Committee.
3.2 Selection of Participants . The Committee shall have the authority to grant Awards under the Plan, from time to time, to such Employees, Non-Employee Directors and/or Consultants as may be selected by it to be Participants. Each Award shall be evidenced by an Agreement.
3.3 Decisions Binding . All determinations and decisions made by the Board or the Committee pursuant to the provisions of the Plan shall be final, conclusive, and binding.
3.4 Requirements of Rule 16b-3 . Notwithstanding any other provision of the Plan, the Board or the Committee may impose such conditions on any Award, and amend the Plan in any such respects, as may be required to satisfy the requirements of Rule 16b-3, as amended (or any successor or similar rule), under the Exchange Act, if applicable.
Any provision of the Plan to the contrary notwithstanding, and except to the extent the Committee determines otherwise: (i) transactions by and with respect to officers and directors of the Company who are subject to Section 16(b) of the Exchange Act (hereafter, “Section 16 Persons”) shall comply with any applicable conditions of Rule 16b-3; and (ii) every provision of the Plan shall be administered, interpreted, and construed to carry out the foregoing provisions of this sentence.
4
3.5 Indemnification of the Committee . In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Company against reasonable expenses, including attorneys’ fees, actually and reasonably incurred in connection with
