Exhibit
4.8 Form of Marani Brands, Inc. 2008 Stock Option Plan, dated
May 8, 2008
MARANI BRANDS, INC.
2008 STOCK OPTION PLAN
20,000,000 Shares of Common Stock
Adopted as of May ___, 2008
1.
PURPOSES.
(a)
Opportunity to Purchase Stock .
The purpose of the Plan is to provide a means by which selected key
Employees, Directors and Consultants of the Company and its
Affiliates may be given an opportunity to purchase stock of the
Company. The Company, by means of the Plan, seeks to retain the
services of persons who are now Employees of the Company and its
Affiliates, to secure and retain the services of new Employees,
Directors and Consultants and to provide incentives for such
Employees, Directors and Consultants to exert maximum efforts for
the success of the Company and its Affiliates.
(b)
Incentive and Nonstatutory Options .
The Company intends that the Options issued under the Plan shall,
in the discretion of the Committee, be either Incentive Stock
Options or Nonstatutory Stock Options. All Options shall be
separately designated Incentive Stock Options or Nonstatutory Stock
Options at the time of grant.
2.
DEFINITIONS.
(a)
“Affiliate”
means any parent corporation or subsidiary corporation of the
Company, as those terms are defined in Sections 424(e) and (f)
respectively, of the Code, whether such corporations are now
or hereafter existing.
(b)
“Board”
means the Board of Directors of the Company.
(c)
“Business”
means (i) the importing, marketing, selling and distributing
alcohol beverage products including, without limitation,
distilled alcohol products, wine and brandy and (ii) any other
businesses engaged in currently or in the future by the
Company or any of its Subsidiaries.
(d)
“Cause”
shall mean (i) the material breach by the Optionee of any
Option Agreement or any covenant of confidentiality,
non-disclosure, non-solicitation or noncompetition between the
Optionee and the Company or any Affiliate; (ii) the
Optionee’s material misrepresentation in connection with
the business of the Company or any Affiliate which is
materially detrimental to the best interests of the Company or
any Affiliate; (iii) the Optionee’s conviction of, or
plea of guilty or
nolo contendere to,
a felony; (iv) any material act or omission by the Optionee during
his or her employment with the Company or any Affiliate involving
willful malfeasance or gross negligence in the performance of the
Participant’s duties to the Company or any such Affiliate; or
(v) any other similar act or omission by the Optionee during his or
her employment with the Company or any Affiliate which provides the
Company or such Affiliate with a ground for terminating the
Optionee’s employment for cause under the employment law of
the state in which the Company’s or such Affiliate’s
principal place of business is located.
(e)
“Code”
means the Internal Revenue Code of 1986, as
amended.
(f)
“Committee”
means the Board of Directors of the Company unless a separate
committee has been appointed by the Board in accordance with
Section 3(c) of the Plan.
(g)
“Common
Stock” means the common stock, par value $.001 per
share, of the Company.
(h)
“Company”
means Marani Brands, Inc., a Nevada corporation.
(i)
“Consultant”
means Person who is a party to a written consulting agreement
with the Company or one of its Affiliates.
(j)
“Continuous
Status as an Employee” means the employment or
relationship as an Employee is not interrupted or terminated
with the Company and all Affiliates. Continuous Status as an
Employee shall not be considered interrupted in the case of:
(i) any sick leave, military leave, or any other bona fide
leave of absence approved by the Committee; or (ii) transfers
between locations of the Company or between the Company and
its Affiliates on one hand and their successors on the other
hand. For purposes of each Incentive Stock Option granted
under the Plan, if such leave exceeds three (3) months, and
reemployment upon expiration of such leave is not guaranteed
by statute or contract, then the Incentive Stock Option shall
be treated as a Nonstatutory Stock Option on the day three (3)
months and one (1) day following the expiration of such three
(3) month period. Such Nonstatutory Stock Option shall be
subject to all other terms and conditions of the Plan. The
previous two sentences shall not apply, however, to an
Employee whose employment or relationship as an Employee is
interrupted or terminated as a result of such Employee’s
death or disability (as defined in Section 22(e)(3) of the
Code) and to the extent such Incentive Stock Option is
exercised within 180 days after the date of such interruption
or termination, but if and only if such exercise is otherwise
permitted under this Plan.
(k)
“Director”
means a member of the Board.
(l)
“Disability”
means the inability of an Employee to perform his or her
duties to the Company and its Affiliates for a period of four
(4) consecutive months or for an aggregate of more than six
(6) months in any twelve-month period as a result of physical
or mental illness or incapacity, as determined by the
Committee.
(m)
“Employee”
means any person, including Officers and Directors, employed
by the Company or any Affiliate and who is considered an
employee of the Company under applicable law. Neither service
as a Director, nor payment of a Director’s fee by the
Company nor serving the Company as a Consultant shall be
sufficient to constitute “employment” by the
Company.
(n)
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
(o)
“Fair
Market Value” means, as of any date, the value of the
Common Stock determined as follows:
(i)
If
the Common Stock is listed on any established stock exchange
or a national market system, including, without limitation,
The Global Market System of the NASDAQ Stock Market, the Fair
Market Value of a share of Common Stock shall be the closing
sales price for such stock on the date of determination (or,
if no such price is reported on such date, such price as
reported on the nearest preceding day) as quoted on such
system or exchange (or the exchange with the greatest volume
of trading in the Common Stock), as reported in
The Wall Street Journal or
such other source as the Committee deems reliable;
(ii)
If
the Common Stock is quoted on the NASDAQ Stock Market (but not
on the Global Market System thereof) or is regularly quoted by
a recognized securities dealer but selling prices are not
reported, the Fair Market Value of a share of Common Stock
shall be the mean of the closing bid and asked prices for the
Common Stock on the date of determination (or, if such prices
are not reported on such date, such prices as reported on the
nearest preceding date), as reported in
The Wall Street Journal or
such other source as the Committee deems reliable; or
(iii)
If
the Fair Market Value is not determined pursuant to (i) or
(ii) above, then the Fair Market Value shall be determined in
good faith by the Committee in accordance with the
requirements of Section 409A of the Code.
(p)
“Incentive
Stock Option” means an Option qualifying as an incentive
stock option within the meaning of Section 422 of the Code and
the regulations promulgated thereunder.
(q)
“Non-Employee
Director” means a Director who is considered to be a
“non-employee director” in accordance with Section
(b)(3)(i) of Rule 16b-3, and any other applicable rules,
regulations and interpretations of the Securities and Exchange
Commission, and who is considered to be an “outside
director” within the meaning of Section 162(m) of the
Code.
(r)
“Nonstatutory
Stock Option” means an Option not qualifying as an
Incentive Stock Option.
(s)
“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.
(t)
“Option”
means a stock option granted pursuant to the
Plan.
(u)
“Option
Agreement” means a written agreement between the Company
and an Optionee evidencing the terms and conditions of an
individual Option grant which shall be in such form as the
Company may require in connection with the grant of an Option.
Each Option Agreement shall be subject to the terms and
conditions of the Plan.
(v)
“Optioned
Shares” means with respect to any Option the Shares
subject to the Option.
(w)
“Optionee”
means any person who holds an outstanding Option.
(x)
“Person”
means an individual or entity.
(y)
“Plan”
means this Marani Brands, Inc. 2008 Stock Option
Plan.
(z)
“Prime
Rate” means the annual rate of interest designated as
the “prime rate” in the listing of “Money
Rates” as published from time to time in
The Wall Street Journal ,
or if such publication is discontinued, the rate published as the
“prime rate” or “base rate” from time to
time by any similar or successor publication designated by the
Board of Directors of the Company.
(aa)
“Rule
16b-3” means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3.
(bb)
“Sale”
means the sale of the Business to a third party (other than an
Affiliate of the Partnership or the Company) pursuant to which
such party acquires (i) all or substantially all of the
outstanding shares of Common Stock, (ii) all or substantially
all of the assets of the Company and its Subsidiaries (taken
as a whole), or (iii) the Common Stock or assets of the
Company by way of merger.
(cc)
“Securities
Act” means the Securities Act of 1933, as
amended.
(dd)
“Shares”
means shares of Common Stock, as adjusted in accordance with
Section 10.
(ee)
“Vest”
has the meaning specified in Section 6(g).
3.
ADMINISTRATION.
(a)
Administration .
The Plan shall be administered by the Committee.
(b)
Powers .
The Committee shall have the power, subject to, and within the
limitations of, the express provisions of the Plan to:
(i)
grant
Options;
(ii)
determine
the Fair Market Value per Share;
(iii)
determine,
in accordance with Section 6 of the Plan, the exercise price
per Share at which Options may be exercised (the
“Exercise Price”);
(iv)
determine
the Employees, Directors and Consultants to whom, and the time
or times at which, Options shall be granted, the number of
Optioned Shares subject to each Option, the vesting of such
Options and whether such Options shall be Incentive Stock
Options, Nonstatutory Stock Options, or any combination
thereof;
(v)
determine
the terms and provisions of each Option granted (which need
not be identical) and the forms of Option Agreements, if any,
and, subject to Section 12, to modify or amend any outstanding
Option;
(vi)
determine
whether an Optionee must execute and deliver a Stockholder
Agreement in connection with the exercise by the Optionee of
his or her Option and determine the terms and provisions of
each Stockholder Agreement (which need not be
identical);
(vii)
accelerate
the exercise date of any outstanding Option;
(viii)
authorize
any person to execute on behalf of the Company any instrument
required to effectuate the grant of an Option previously
granted by the Committee;
(ix)
amend
the Plan as provided in Section 11;
(x)
construe
and interpret the Plan and Options granted under it, and to
establish, amend and revoke rules and regulations for its
administration of the Plan, subject to Section 11, including
correcting any defect, omission or inconsistency in the Plan
or in any Option Agreement or Stockholder Agreement, in any
manner and to the extent it shall deem necessary or expedient
to make the Plan fully effective;
(xi)
authorize
the sale of Shares hereunder;
(xii)
effect,
at any time and from time to time, with the consent of the
affected Optionee, the cancellation of any or all outstanding
Options and grant in substitution therefore new Options
relating to the same or different numbers of Shares, but
having an Exercise Price per Share consistent with Section
6(b) at the date of the new Option grant; and
(xiii)
make
all other determinations deemed necessary or advisable for the
administration of the Plan.
(c)
Committee .
The Board may appoint a Committee composed of not fewer than two
(2) members of the Board to serve in its place with respect to the
Plan. All of the members of such committee shall be Non-Employee
Directors, if required under Section 3(d). From time to time, the
Board may increase the size of such Committee and appoint
additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), all to the
extent permitted by the requirement of Rule 16b-3(d) and Section
162(m) of the Code that such Committee be composed solely of two
(2) or more Non-Employee Directors. In addition, the Board may
remove all members of the Committee and thereafter directly
administer the Plan.
(d)
Exchange Act Registration .
Any requirement that a committee of the Board designated by the
Board to administer the Plan be composed exclusively of
Non-Employee Directors shall not apply (i) prior to the date of the
first registration of an equity security of the Company under
Section 12 of the Exchange Act, or (ii) if the Board or the
Committee expressly declares that such requirement shall not apply.
Any Non-Employee Director shall otherwise comply with the
requirements of Rule 16b-3 and Section 162(m) of the
Code.
(e)
Non-Uniform Determinations .
The Committee’s determinations under the Plan need not be
uniform and may be made by it selectively among the persons who
receive, or are eligible to receive Options (whether or not such
persons are similarly situated). Without limiting the generality of
the preceding sentence, the Committee shall be entitled to make
non-uniform and selective determinations, and to enter into
non-uniform and selective Option Agreements and Shareholders
Agreements, as the case may be.
4.
SHARES
SUBJECT TO THE PLAN.
(a)
Number of Shares .
Subject to the provisions of Section 10 relating to adjustments
upon changes in the Common Stock, the number of Shares that may be
sold pursuant to Options is up to 20,000,000
Shares
(all of which may, but need not, be Incentive Stock Options). If
any Option shall for any reason expire or otherwise terminate
without having been exercised in full, the Optioned Shares not
purchased under such Option shall revert to and again become
available for issuance under the Plan unless the Plan shall have
terminated;
provided ,
however ,
that Shares that have been actually issued under the Plan shall not
be returned to the Plan and shall not become available for future
issuance under the Plan. Shares that are withheld as payment of the
Exercise Price of any Options (as set forth in Section 6(c)) shall
be deemed issued for purposes of this Section 4(a).
(b)
Stock Subject to the Plan .
The Shares of Common Stock subject to the Plan may be unissued
Shares or reacquired Shares, bought on the market or
otherwise.
5.
ELIGIBILITY.
(a)
Employees and Consultants .
Subject to the further provisions of this Section 5, Incentive
Stock Options and Nonstatutory Stock Options may be granted only to
Employees of the Company or its Affiliates and to Consultants of
the Company or its Affiliates who meet such requirements as may
from time to time be established by the Committee.
(b)
Directors .
Incentive Stock Options and Nonstatutory Stock Options may be
granted to Directors who are not Employees of the Company and to
Directors who are also Employees of the Company;
provided ,
however ,
that each grant of an Option to a Director who is an Employee shall
be approved by either the Board or a Committee of the Board
designated by the Board to administer the Plan composed exclusively
of Non-Employee Directors.
(c)
Ten Percent Holders .
No person shall be eligible for the grant of an Incentive Stock
Option if, at the time of grant, such person owns (or is deemed to
own pursuant to Section 424(d) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or of any of its Affiliates, unless
the exercise price of such Option is at least one hundred ten
percent (110%) of the Fair Market Value of such stock on the date
of grant and the Incentive Stock Option is not exercisable after
the expiration of five (5) years from the date of
grant.
(d)
Other Limits on Incentive Stock Options .
To the extent that the aggregate Fair Market Value (determined at
the time of grant) of stock with respect to which Incentive Stock
Options are exercisable for the first time by any Optionee during
any calendar year under all plans of the Company and its Affiliates
exceeds One Hundred Thousand Dollars ($100,000), the Options or
portions thereof that exceed such limit (according to the order in
which they were granted) shall be treated as Nonstatutory Stock
Options.
6.
OPTION
PROVISIONS.
Each
Option Agreement, if required, shall be in such form and shall
contain such terms and conditions as the Committee shall deem
appropriate. In the event any provisions of the Option
Agreement and the Plan conflict, the provisions of the Plan
shall govern and control. The provisions of separate Option
Ag
| 
