VISION INDUSTRIES CORP.
2009 NON-QUALIFIED STOCK OPTION
PLAN
Article
I.
PURPOSE,
ADOPTION AND TERM OF THE PLAN
Section
1.01
PURPOSE. The
purpose of the VISION INDUSTRIES CORP. 2009 Non-Qualified Stock
Option Plan (hereinafter referred to as the "Plan") is to advance
the interests of the Company (as hereinafter defined) and its
Subsidiaries (as hereinafter defined) by encouraging and providing
for the acquisition of an equity interest in the Company by
non-employee directors, officers, employees, consultants, and
advisors through the grant of options to purchase Common Stock (as
hereinafter defined). The Plan will enable the Company to retain
the services of non-employee directors, officers, employees,
consultants, and advisors upon whose judgment, interest, and
special effort the successful conduct of its operations is largely
dependent and to compete effectively with other enterprises for the
services of non-employee directors, officers and employees as
may be needed for the continued improvement of its
business.
Section
1.02
ADOPTION AND
TERM. The Plan shall become effective on January 8, 2009. The Plan
shall terminate on January 8, 2014, or such earlier date as shall
be determined by the Board (as hereinafter defined).
Article
II.
DEFINITIONS
For purposes of
the Plan, capitalized terms shall have the following
meanings:
Section
2.01
"Beneficiary" means an individual, trust or
estate who or that, by will or the laws of descent and
distribution, succeeds to the rights and obligations of the
Participant under the Plan and an Option Agreement upon the
Participant's death.
Section
2.02
"Board"
means the Board of Directors of the Company.
Section
2.03
"Code" means
the Internal Revenue Code of 1986, as amended from time to time, or
any successor thereto. References to a section of the Code shall
include that section and any comparable section or sections of any
future legislation that amends, supplements, or supersedes said
section.
Section
2.04
"Committee"
means a committee of the Board as may be appointed, from time to
time, by the Board.
(a)
The Board may
appoint more than one Committee to administer the Plan. If it
appoints more than one Committee, one Committee (the "Compensation
and Stock Option Committee") shall have the authority to grant
Options to a Participant who is either, at the Date of Grant of the
Option, a "covered employee" as defined in Section 162(m) of
the
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2009 SOP
Code or who is subject to Section 16 of
the Exchange Act; however, such Committee shall also have the
authority to grant Options to other Participants. The Compensation
and Stock Option Committee shall be composed of at least two
directors of the Company, each of whom is a "non-employee director"
as defined in Rule 16b-3 and an "outside director" within the
meaning of Section 162(m). If, however, at least two of the
Company's directors are not both "non-employee directors" and
"outside directors," the Board may grant Options to a Participant
who is either a "covered employee" or subject to Section 16 of the
Exchange Act, in which case the Board may also administer the Plan
and the term "Committee" as used herein shall also include the
Board. The other Committee (the "Select Committee") shall be
composed of at least one director, who may be an officer of the
Company. The Select Committee shall have authority to grant Options
to a Participant who is not, at the Date of Grant of the Option,
either a "covered employee" as defined in Section 162(m) or subject
to Section 16 of the Exchange Act.
(b)
The Board may,
from time to time, appoint members of each Committee in
substitution for those members who were previously appointed and
may fill vacancies, however caused, in the Committee.
(c)
The Compensation
and Stock Option Committee and the Select Committee shall each have
the power and authority to administer the Plan in accordance with
Article III with respect to particular classes of Participants (as
specified in Section 2.04(a)) and, when used herein, the term
"Committee" shall mean either the Compensation and Stock Option
Committee or the Select Committee if the Board appoints more than
one Committee to administer the Plan. If, however, there is a
conflict between the determinations made by the Compensation and
Stock Option Committee and the Select Committee, the determinations
made by the Compensation and Stock Option Committee shall
control.
Section
2.05
"Common
Stock" means the Common Stock, par value $0.001 per share, of the
Company.
Section
2.06
"Company"
means VISION INDUSTRIES CORP., a corporation organized under the
laws of the State of Florida, and its successors.
Section
2.07
“Covered employee,” as defined in
Section 162(m) of the Code, means any employee of the Company if
–
(a)
As of the close of the
taxable year, such employee is chief executive officer of the
taxpayer or is an individual acting in such a capacity
or
(b)
The total compensation
of such employee for the taxable year is required to be reported to
shareholders under the Securities Exchange Act of 1934 by reason of
such employee being among the 4 highest compensated officers for
the taxable year (other than the chief executive
officer).
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2009 SOP
Section
2.08
"Date of
Grant" means the date designated by the Committee as the date as of
which it grants an Option, which shall not be earlier than the date
on which the Committee approves the granting of such
Option.
Section
2.09
"Disability"
has the meaning specified in Section 22(e)(3) of the
Code.
Section
2.10
“Disability Date" means the date as of
which an Employee Participant is determined by the Committee to
have a Disability.
Section
2.11
"Employee
Participant" means a Participant who is not a Non-Employee
Director.
Section
2.12
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended.
Section
2.13
"Exchange
Act" means the Securities Exchange Act of 1934, as
amended.
Section
2.14
"Fair Market
Value" of a share of Common Stock means, as of any given date, the
closing sales price of a share of Common Stock on such date on the
principal national securities exchange on which the Common Stock is
then traded or, if the Common Stock is not then traded on a
national securities exchange, the closing sales price or, if none,
the average of the bid and asked prices of the Common Stock on such
date as reported on the Over the Counter Bulletin Board System
("OTCBB"); provided, however, that, if there were no sales reported
as of such date, Fair Market Value shall be computed as of the last
date preceding such date on which a sale was reported; provided,
further, that, if any such exchange or quotation system is closed
on any day on which Fair Market Value is to be determined, Fair
Market Value shall be determined as of the first date immediately
preceding such date on which such exchange or quotation system was
open for trading. If the Common Stock is not admitted to trade on a
securities exchange or quoted on OTCBB, the Fair Market Value of a
share of Common Stock as of any given date shall be as determined
in good faith by the Committee, in its sole and absolute
discretion, which determination may be based on, among other
things, the opinion of one or more independent and reputable
appraisers qualified to value companies in the Company's line of
business. Notwithstanding the foregoing, the Fair Market Value of a
share of Common Stock shall never be less than par value per
share.
Section
2.15
"Non-Employee Director" means each member of
the Board who is not an employee of the Company.
Section
2.16
"Option
Agreement" means a written agreement between the Company and a
Participant specifically setting forth the terms and conditions of
an Option granted to a Participant under the Plan.
Section
2.17
"Option"
means any option to purchase Common Stock granted under the Plan to
an Employee Participant or to a Non-Employee Director. All Options
granted under the Plan shall be Options that do not qualify as
incentive stock options under Section 422 of the Code.
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2009 SOP
Section
2.18
"Participant" means any employee, consultant,
advisor, or Non-Employee Director of the Company selected by the
Committee to receive an Option under the Plan in accordance with
Articles V or VI.
Section
2.19
"Plan" means
the VISION INDUSTRIES CORP. 2009 Non-Qualified Stock Option Plan as
set forth herein and as the same may be amended from time to
time.
Section
2.20
"Rule 16b-3"
means Rule 16b-3 promulgated by the SEC under Section 16 of the
Exchange Act and any successor rule.
Section
2.21
"SEC" means
the Securities and Exchange Commission.
Section
2.22
"Section
162(m)" means Section 162(m) of the Code and the regulations
thereunder.
Section
2.23
"Termination
of Employment" means, with respect to an Employee Participant, the
voluntary or involuntary termination of a Participant's employment
with the Company for any reason, including, without limitation,
death, Disability, retirement or as the result of the sale or other
divestiture of the Participant's employer or any similar
transaction in which the Participant's employer ceases to be the
Company or one of its Subsidiaries. Whether entering military or
other government service shall constitute Termination of
Employment, and whether a Termination of Employment is a result of
Disability, shall be determined in each case by the Committee in
its sole and absolute discretion.
Article
III.
ADMINISTRATION
Section
3.01
COMMITTEE. The
Plan shall be administered by the Committee, which shall have
exclusive and final authority in each determination,
interpretation, or other action affecting the Plan and its
Participants. The Committee shall have the sole and absolute
discretion to interpret the Plan, to establish and modify
administrative rules for the Plan, to select the directors,
officers, and other employees to whom Options may be granted, to
determine the terms and provisions of the respective Option
Agreements (which need not be identical), to determine all claims
for benefits under the Plan, to impose such conditions and
restrictions on Options as it determines appropriate, to determine
whether the shares delivered on exercise of Options will be
treasury shares or will be authorized but previously unissued
shares, and to take such steps in connection with the Plan and
Options granted hereunder as it may deem necessary or advisable. No
action of the Committee will be effective if it contravenes or
amends the Plan in any respect.
Section
3.02
ACTIONS OF THE
COMMITTEE. Except when the "Committee" is the "Board" in the
circumstance described in the fourth sentence of Section 2.04(a),
all determinations of the Committee shall be made by a majority
vote of its members. A majority of a Committee's members shall
constitute a quorum. Any decision or determination reduced to
writing and signed
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2009 SOP
by all of the members shall be fully as
effective as if it had been made by a majority vote at a meeting
duly called and held. The Committee shall also have express
authorization to hold Committee meetings by conference
telephone, or similar communication equipment by means of
which all persons participating in the meeting can hear each
other.
Article
IV.
SHARES OF
COMMON STOCK
Section
4.01
NUMBER OF SHARES
OF COMMON STOCK ISSUABLE. Subject to adjustments as provided in
Section 7.05, the lesser of 15,000,000 shares of Common Stock or an
amount not to exceed 50% of the total amount of the class
outstanding of Common Stock as of the record date for the 2009
Annual Meeting, rounded down to the lowest multiple of hundred
thousand shares, shall be available for Options under the Plan. Any
and all of such shares may be issued pursuant to Options granted to
Employee Participants or to Non-Employee Directors. The Common
Stock to be offered under the Plan shall be authorized and unissued
Common Stock, or issued Common Stock that shall have been
reacquired by the Company and held in its treasury.
Section
4.02
NUMBER OF SHARES
OF COMMON STOCK AWARDED TO ANY PARTICIPANT. In the event the
purchase price of an Option is paid or related tax or withholding
payments are satisfied in whole or in part through the delivery of
shares of Common Stock issuable in connection with the exercise of
the Option, a Participant will be deemed to have received an Option
with respect to those shares of Common Stock.
Section
4.03
SHARES OF COMMON
STOCK SUBJECT TO TERMINATED OPTIONS. The Common Stock covered by
any unexercised portions of terminated Options may again be subject
to new Options under the Plan.
Article
V.
PARTICIPATION
Section
5.01
ELIGIBLE
PARTICIPANTS. Employee Participants shall be such officers,
employees, consultants, and advisors of the Company, whether or not
directors of the Company, as the Committee, in its sole and
absolute discretion, may designate from time to time. Non-Employee
Director Participants shall be such Non-Employee Directors as the
Committee, in its sole and absolute discretion, may designate from
time to time. In making such designation, the Committee may take
into account the nature of the services rendered by the officers,
employees, consultants, advisors and Non-Employee Directors; their
present and potential contributions to the success of the Company;
and such other factors as the Committee, in its sole and absolute
discretion, may deem relevant. The Committee's designation of a
Participant in any year shall not require the Committee to
designate such person to receive Options in any other year. The
Committee shall consider such factors as it deems pertinent in
selecting Participants and in determining the type and amount of
their respective Options. A Participant may hold more than one
Option granted under the Plan. During the term of the Plan, no
Employee Participant may
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receive Options to purchase more than
4,500,000 shares of Common Stock under the Plan.
Article
VI.
STOCK
OPTIONS
Section
6.01
GRANT OF OPTION.
Any Option granted under the Plan shall have such terms as the
Committee may, from time to time, approve, and th
