Exhibit 4.3
MED GEN, INC.
NONQUALIFIED STOCK OPTION PLAN
The purpose of the Med Gen, Inc. Non-Qualified Stock Option Plan
(the "Plan") is to provide (i) designated employees of Med Gen, Inc. (the
"Company") and its subsidiaries, (ii) certain Key Advisors (as defined
in Section 4(a)) who perform services for the Company or its subsidiaries
and (iii) non-employee members of the Board of Directors of the Company
(the "Board") with the opportunity to receive grants of nonqualified
stock options. The Company believes that the Plan will encourage the
participants to contribute materially to the growth of the Company,
thereby benefitting the Company's shareholders, and will align the
economic interests of the participants with those of the shareholders.
1. Administration.
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(a) Committee. The Plan shall be administered and
interpreted by the Board of Directors or a committee appointed by the
Board (the Board of Directors in such capacity or any committee appointed
by the Board of Directors is referred to hereafter as the "Committee".)
The Committee as appointed by the Board shall consist of two or more
persons appointed by the Board, all of whom may or may not be "outside
directors" as defined under section 162(m) of the Internal Revenue Code
of 1986, as amended (the "Code") and related Treasury regulations and may
be "non-employee directors" as defined under Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Committee Authority. The Committee shall have the sole
authority to (i) determine the individuals to whom grants shall be made
under the Plan, (ii) determine the type, size and terms of the grants to
be made to each such individual, (iii) determine the time when the grants
will be made and the duration of any applicable exercise or restriction
period, including the criteria for exercisability and the acceleration
of exercisability and (iv) deal with any other matters arising under the
Plan.
(c) Committee Determinations. The Committee shall have full
power and authority to administer and interpret the Plan, to make factual
determinations and to adopt or amend such rules, regulations, agreements
and instruments for implementing the Plan and for the conduct of its
business as it deems necessary or advisable, in its sole discretion. The
Committee's interpretations of the Plan and all determinations made by
the Committee pursuant to the powers vested in it hereunder shall be
conclusive and binding on all persons having any interest in the Plan or
in any awards granted hereunder. All powers of the Committee shall be
executed in its sole discretion, in the best interest of the Company, not
as a fiduciary, and in keeping with the objectives of the Plan and need
not be uniform as to similarly situated individuals.
2. Grants. Awards under the Plan will consist of grants of
nonqualified stock options as described in Section 5 ("Nonqualified Stock
Options," "Options" or "Grants.") All Grants shall be subject to the
terms and conditions set forth herein and to such other terms and
conditions consistent with this Plan as the Committee deems appropriate
and as are specified in writing by the Committee to the individual in a
grant instrument (the "Grant Instrument") or an amendment to the Grant
Instrument. In the event there is an inconsistency between the terms of
the Grant Instrument and the terms of the Plan, the terms of the Plan
shall govern. The Committee shall approve the form and provisions of
each Grant Instrument. Grants under a particular Section of the Plan need
not be uniform as among the grantees.
3. Shares Subject to the Plan
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(a) Shares Authorized. Subject to the adjustment specified
below, the aggregate number of shares of common stock of the Company
("Company Stock") that may be issued or transferred under the Plan is
2,520,000 shares. The maximum aggregate number of shares of Company Stock
that shall be subject to Grants made under the Plan to any individual
during any calendar year shall be as determined by the Committee ("Award
Limit"). The shares may be authorized but unissued shares of Company
<PAGE> Exhibit 4.3 - Pg. 1
Stock or reacquired shares of Company Stock, including shares purchased
by the Company on the open market for purposes of the Plan. If and to the
extent Options granted under the Plan terminate, expire, or are canceled,
forfeited, exchanged or surrendered without having been exercised, the
shares subject to such Grants shall again be available for purposes of
the Plan. However, to the extent Section 162(m) of the Code requires,
such shares continue to be counted against the Award Limit.
(b) Adjustments. If there is any change in the number or kind
of shares of Company Stock outstanding (i) by reason of a stock dividend,
spinoff, recapitalization, stock split or combination or exchange of
shares, (ii) by reason of a merger, reorganization or consolidation in
which the Company is the surviving corporation, (iii) by reason of a
reclassification or change in par value, or (iv) by reason of any other
extraordinary or unusual event affecting the outstanding Company Stock
as a class without the Company's receipt of consideration, or if the
value of outstanding shares of Company Stock is substantially reduced as
a result of a spinoff or the Company's payment of an extraordinary
dividend or distribution, the maximum number of shares of Company Stock
available for Grants, the maximum number of shares of Company Stock that
any individual participating in the Plan may be granted in any year, the
number of shares covered by outstanding Grants, the kind of shares issued
under the Plan, and the price per share or the applicable market value
of such Grants shall be appropriately adjusted by the Committee to
reflect any increase or decrease in the number of, or change in the kind
or value of, issued shares of Company Stock to preclude, to the extent
practicable, the enlargement or dilution of rights and benefits under
such Grants; provided, however, that any fractional shares resulting from
such adjustment shall be eliminated. Any adjustments determined by the
Committee shall be final, binding and conclusive.
With respect to Options which are granted to participants, the
compensation of whom could be subject to limitation under Section 162(m)
of the Code and which are intended to qualify as performance-based
compensation under Section 162(m)(4)(C), no adjustment or action
described in this Section 3(b) or in any other provision of the Plan
shall be authorized to the extent that such adjustment or action would
cause the option to fail to qualify under Section 162(m)(4)(C), or any
successor provisions thereto. Furthermore, no adjustment or action
shall be authorized to the extent the adjustment or action would result
in short-swing profits liability under Section 16 or violate the
exemptive conditions of Rule 16b-3 unless the Committee determines that
the Option or other award is not to comply with such exemptive
conditions. The number of shares of Company Stock subject to any Option
shall always be rounded to the next whole number.
4. Eligibility for Participation.
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(a) Eligible Persons. All employees of the Company and its
subsidiaries ("Employees"), including Employees who are officers or
members of the Board, and members of the Board who are not Employees
("Non-Employee Directors") shall be eligible to participate in the Plan.
Key advisors and consultants who perform services to the Company or any
of its subsidiaries ("Key Advisors") shall be eligible to participate in
the Plan if the Key Advisors render bona fide services and such services
are not in connection with the offer or sale of securities in a capital-
raising transaction.
(b) Selection of Grantees. The Committee shall select the
Employees, Non-Employee Directors and Key Advisors to receive Grants and
shall determine the number of shares of Company Stock subject to a
particular Grant in such manner as the Committee determines. Employees,
Key Advisors and Non-Employee Directors who receive Grants under this
Plan shall hereinafter be referred to as "Grantees."
5. Granting of Options.
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(a) Number of Shares. The Committee shall determine the
number of shares of Company Stock that will be subject to each Grant of
Options to Employees, Non-Employee Directors and Key Advisors.
(b) Type of Option. All Options granted under this Plan will
be Non-Qualified Stock Options.
(c) Option Term. The Committee shall determine the term of
each Option. The term of any Option shall not exceed ten years from the
date of grant.
(d) Vesting and Exercisability of Options. Options shall
vest and become exercisable in accordance with such terms and conditions,
consistent with the Plan, as may be determined by the Committee and
specified in the Grant Instrument or an amendment to the Grant
Instrument. The Committee may accelerate the vesting and/or
exercisability of any or all outstanding Options at any time for any
reason. Options may, at the discretion of the Committee, be exercised
prior to vesting, provided that the optionee grants the Company a right
<PAGE> Exhibit 4.3 - Pg. 2
to repurchase any unvested shares at the exercise price upon termination
of the optionee's service to the Company.
(e) Termination of Employment, Disability or Death.
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(i) Except as provided below, an Option may only be
exercised while the Grantee is employed by or otherwise providing service
to the Company as an Employee, Key Advisor or member of the Board. In the
event that a Grantee ceases to be employed by the Company for any reason
other than a "disability", or "termination for cause", any Option which
is otherwise exercisable by the Grantee shall terminate unless exercised
within one hundred eighty days after the date on which the Grantee ceases
to be employed by the Company (or within such other period of time as may
be specified in a Grant Instrument), but in any event no later than the
date of expiration of the Option term. Any of the Grantee's Options that
are not otherwise exercisable as of the date on which the Grantee ceases
to be employed by the Company shall terminate as of such date (unless
specified to the contrary in a Grant Instrument).
(ii) In the event the Grantee ceases to be employed by
the Company on account of a "termination for cause" by the Company, the
unvested portion of any Option held by the Grantee shall terminate on
the date on which the Grantee ceases to be employed by the Company. Any
of the Grantee's Options which are not otherwise exercisable as of the
date on which the Grantee ceases to be employed by the Company shall
terminate as of such date.
(iii) In the event the Grantee ceases to be employed
by the Company because the Grantee is "disabled", any Option which is
otherwise exercisable by the Grantee shall terminate unless exercised
within one year after the date on which the Grantee ceases to be employed
by the Company (or within such other period of time as may be specified
in a Grant Instrument), but in any event no later than the date of
expiration of the Option term. Any of the Grantee's Options which are not
otherwise exercisable as of the date on which the Grantee ceases to be
employed by the Company shall terminate as of such date (unless specified
to the contrary in a Grant Instrument).
(iv) If the Grantee dies while employed by the Company
or within 90 days after the date on which the Grantee ceases to be
employed on account of a termination of employment specified in Section
5(e)(i) above (or within such other period of time as may be specified
in a Grant Instrument), any Option that is otherwise exercisable by the
Grantee shall terminate unless exercised within one year after the date
on which the Grantee ceases to be employed by the Company (or within such
other period of time as may be specified in a Grant Instrument), but in
any event no later than the date of expiration of the Option term. Any
of the Grantee's Options that are not otherwise exercisable as of the
date on which the Grantee ceases to be employed by the Company shall
terminate as of such date (unless specified to the contrary in a Grant
Instrument).
(v) For purposes of Sections 5(e):
(A) "Company," when used in the phrase "employed
by the Company," shall mean the Company and its parent and
subsidiary corporations.
(B) "Employed by the Company" shall mean
employment or service as an Employee, Key Advisor or member of the
Board (so that, for purposes of exercising Options and satisfying
conditions with respect to Restricted Stock, a Grantee shall not be
considered to have terminated employment or service until the
Grantee ceases to be an Employee, Key Advisor and member of the
Board), unless the Committee determines otherwise.
(C) "Disability" shall mean a Grantee's becoming
disabled within the meaning of section 22(e)(3) of the Code or
otherwise as defined in an employment consultant or other agreement
between the Company and the Grantee.
(D) "Termination for cause" shall mean, except to
the extent specified otherwise by the Committee or otherwise as
defined in an employment, consultant or other agreement between the
Company and the Grantee, a finding by the Committee that the Grantee
has breached his or her employment, service, noncompetition,
nonsolicitation or other similar contract with the Company, or has
been engaged in disloyalty to the Company, including, without
limitation, fraud, embezzlement, theft, commission of a felony or
dishonesty in the course of his or her employment or service, or has
disclosed trade secrets or confidential information of the Company
to persons not entitled to receive such information. A Grant
<PAGE> Exhibit 4.3 - Pg. 3
Instrument may provide that in the event a Grantee's employment is
terminated for cause, in addition to the immediate termination of
all Grants, the Grantee shall automatically forfeit all shares
underlying any exercised portion of an Option, upon refund by the
Company of the Exercise Price paid by the Grantee for such shares,
and any option gain realized by the Grantee from exercising all or
a portion of an Option within the two-year period prior to the event
shall be paid by the Grantee to the Company.
(f) Exercise of Options. A Grantee may exercise an Option
that has become exercisable, in whole or in part, by delivering a notice
of exercise to the Company with payment of the Exercise Price. The
Grantee shall pay the Exercise Price for an Option as specified by the
Committee (x) in cash, (y) with the approval of the Committee, by
delivering shares of Company Stock owned by the Grantee for the period
necessary to avoid a charge to the Company's earnings for financial
reporting purposes (including Company Stock acquired in connection with
the exercise of an Option, subject to such restrictions as the Committee
deems appropriate) and having a Fair Market Value on the date of exercise
equal to the Exercise Price or (z) by such other method as the Committee
may approve, including payment through a broker in accordance with
procedures permitted by Regulation T of the Federal Reserve Board. Shares
of Company Stock used to exercise an Option shall have been held by the
Grantee for the requisite period of time to avoid adverse accounting
consequences to the Company with respect to the Option. The Grantee shall
pay the Exercise Price and the amount of any withholding tax due
(pursuant to Section 6) at the time of exercise.
6. Withholding of Taxes
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(a) Required Withholding. All Grants under the Plan shall
be subject to applicable federal (including FICA), state and local tax
withholding requirements. The Company shall have the right to deduct from
all Grants paid in cash, or from other wages paid to the Grantee, any
federal, state or local taxes required by law to be withheld with respect
to such Grants. In the case of Options and other Grants paid in Company
Stock, the Company may require the Grantee or other person receiving such
shares to pay to the Company the amount of any such taxes that the
Company is required to withhold with respect to such Grants, or the
Company may deduct from other wages paid by the Company the amount of any
withholding taxes due with respect to such Grants.
(b) Election to Withhold Shares. If the Committee so
permits, a Grantee may elect to satisfy the Company's income tax
withholding obligation with respect to an Option or Restricted Stock paid
in Company Stock by having shares withheld up to an amount that does not
exceed the Grantee's maximum marginal tax rate for federal (including
FICA), state and local tax liabilities. The election must be in a form
and manner prescribed by the Committee and shall be subject to the prior
approval of the Committee.
7. Transferability of Grants
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(a) Nontransferability of Grants. Except as provided below,
only the Grantee may exercise rights under a Grant during the Grantee's
lifetime. A Grantee may not transfer those rights except by will or by
the laws of descent and distribution, and then only if and to the extent
permitted in any specific case by the Committee, pursuant to a domestic
relations order (as defined under the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
there under). When a Grantee dies, the personal representative or other
person entitled to succeed to the rights of the Grantee ("Successor
Grantee") may exercise such rights. A Successor Grantee must furnish
proof satisfactory to the Company of his or her right to receive the
Grant under the Grantee's will or under the applicable laws of descent
and distribution.
(b) Transfer of Nonqualified Stock Options. Notwithstanding the
foregoing, the Committee may provide, in a Grant Instrument, that a
Grantee may transfer Nonqualified Stock Options to family members or
other persons or entities according to such terms as the Committee may
determine; provided that (1) the Grantee receives no consideration for
the transfer of an Option, (2) such transfers complies with all
applicable laws (including, but not limited to federal securities laws
requirements, specifically any requirements for options registered on
Form S-8 registration statements, state securities laws, Florida
corporate law, etc and (3) the transferred Option shall continue to be
subject to the same terms and conditions as were applicable to the Option
immediately before the transfer.
8. Reorganization of the Company.
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(a) Reorganization. As used herein, a "Change of Control"
shall be deemed to have occurred upon the consummation of any of the
following transactions: (i) any merger or consolidation of the Company
or other transaction (other than sales of equity by the Company for the
purpose of raising cash for its own account) where the shareholders of
<PAGE> Exhibit 4.3 - Pg. 4
the Company immediately prior to such transaction will not beneficially
own immediately after such transaction shares entitling such shareholders
to more than 50% of all votes to which all shareholders of the surviving
corporation would be entitled in the election of directors (without
consideration of the rights of any class of stock to elect directors by
a separate class vote); or (ii) the sale or other disposition of all or
substantially all of the assets of the Company.
(b) Assumption of Grants. Upon a Change of Control where the
Company is not the surviving corporation (or survives only as a
subsidiary of another corporation), the Company shall provide that either
(i) all outstanding Options that are not exercised shall be assumed by,
or replaced with comparable options or rights by, the surviving
corporation, (ii) the Company or the surviving company shall pay to each
Grantee an amount equal to the product of (x) the number of Options then
vested and exercisable, multiplied by (ii) the Fair Market Value per
share less the Exercise Price per Option, or (iii) the Committee may, in
its sole discretion, accelerate the vesting of some or all of the Grants.
(c) Notice and Acceleration. Upon a Change of Control, the
Company shall provide each Grantee who has outstanding Grants with
written notice of such Change of Control. The Committee may, in its sole
discretion, provide in a Grant Instrument that upon a Change of Control
(i) all outstanding Options shall automatically accelerate and become
fully exercisable, and (ii) the restrictions and conditions on all
outstanding Restricted Stock shall immediately lapse. If the Committee
does not provide such terms in the Grant Instrument, a Change of Control
will not impact a Grant.
9. Limitations on Issuance or Transfer of Shares. No Company
Stock shall be issued or transferred in connection with any Grant
hereunder unless and until all legal requirements applicable to the
issuance or transfer of such Company Stock have been complied with to the
satisfaction of the Committee. The Committee shall have the right to
condition any Grant made to any Grantee hereunder on such Grantee's
undertaking in writing to comply with such restrictions on his or her
subsequent disposition of such shares of Company Stock as the Committee
shall deem necessary or advisable as a result of any applicable law,
regulation or official interpretation thereof, and certificates
representing such shares may be legended to reflect any such
restrictions. Certificates representing shares of Company Stock issued
or transferred under the Plan will be subject to such stop-transfer
orders and other restrictions as may be required by applicable laws,
regulations and interpretations, including any requirement that a legend
be placed thereon.
10. Amendment and Termination of the Plan
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(a) Amendment. The Board may amend or terminate the Plan at
any time; provided, however, that the Board shall not amend the Plan
without shareholder approval if such approval is required by Section
l62(m) of the Code.
(b) Termination of Plan. The Plan shall terminate on January
10, 2011, the day immediately preceding the tenth anniversary of its
effective date, unless the Plan is terminated earlier by the Board or is
extended by the Board with the approval of the shareholders.
(c) Termination and Amendment of Outstanding Grants. A
termination or amendment of the Plan that occurs after a Grant is made
shall not materially impair the rights of a Grantee unless the Grantee
consents. The termination of the Plan shall not impair the power and
authority of the Committee with respect to an outstanding Grant. Whether
or not the Plan has terminated, an outstanding Grant may be terminated
or amended in accordance with the Plan or, may be amended by agreement
of the Company and the Grantee consistent with the Plan.
(d) Governing Document. The Plan shall be the controlling
document. No other statements, representations, explanatory materials or
examples, oral or written, may amend the Plan in any manner. The Plan
shall be binding upon and enforceable against the Company and its
successors and assigns.
11. Funding of the Plan. This Plan shall be unfunded. The Company
shall not be required to establish any special or separate fund or to
make any other segregation of assets to assure the payment of any Grants
under this Plan. In no event shall interest be paid or accrued on any
Grant, including unpaid installments of Grants.
12. Rights of Participants. Nothing in this Plan shall entitle
any Employee, Key Advisor or other person to any claim or right to be
granted a Grant under this Plan. Neither this Plan nor any action taken
hereunder shall be construed as giving any individual any rights to be
<PAGE> Exhibit 4.3 - Pg. 5
retained by or in the employ of the Company or any other employment
rights.
13. No Fractional Shares. No fractional shares of Company Stock
shall be issued or delivered pursuant to the Plan or any Grant. The
Committee shall determine whether cash, other awards or other property
shall be issued or paid in lieu of such fractional shares or whether such
fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
14. Headings. Section headings are for reference only. In the
event of a conflict between a title and the content of a Section, the
content of the Section shall control.
15. Effective Date of the Plan.
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(a) Effective Date. The Plan shall be effective as of
January 10, 2001.
(b) Public Offering. The provisions of the Plan that refer
to a Public Offering, or that refer to, or are applicable to persons
subject to, Section 16 of the Exchange Act or section 162(m) of the Code,
shall be effective for so long as such stock is so registered.
16. Miscellaneous
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(a) Grants in Connection with Corporate Transactions and
Otherwise. Nothing contained in this Plan shall be construed to (i)
limit the right of the Committee to make Grants under this Plan in
connection with the acquisition, by purchase, lease, merger,
consolidation or otherwise, of the business or assets of any corporation,
firm or association, including Grants to employees thereof who become
Employees of the Company, or for other proper corporate purposes, or (ii)
limit the right of the Company to grant stock options or make other
awards outside of this Plan. Without limiting the foregoing, the
Committee may make a Grant to an employee of another corporation who
becomes an Employee by reason of a corporate merger, consolidation,
acquisition of stock or property, reorganization or liquidation involving
the Company or any of its subsidiaries in substitution for a stock option
or restricted stock grant made by such corporation. The terms and
conditions of the substitute grants may vary from the terms and
conditions required by the Plan and from those of the substituted stock
incentives. The Committee shall prescribe the provisions of the
substitute grants.
(b) Loans. The Committee may, in its discretion, extend a
loan in connection with the exercise or receipt of a grant under this
Plan. The terms and conditions of any such loan shall be set by the
Committee.
(c) Compliance with Law. The Plan, the exercise of Options
and the obligations of the Company to issue or transfer shares of Company
Stock under Grants shall be subject to all applicable laws and to
approvals by any governmental or regulatory agency as may be required.
With respect to persons subject to section 16 of the Exchange Act, it is
the intent of the Company that the Plan and all transactions under the
Plan comply with all applicable provisions of Rule 16b-3 or its
successors under the Exchange Act. The Committee may revoke any Grant if
it is contrary to law or modify a Grant to bring it into compliance with
any valid and mandatory government regulation. The Committee may also
adopt rules regarding the withholding of taxes on payments to Grantees.
The Committee may, in its sole discretion, agree to limit its authority
under this Section.
(d) Governing Law. The validity, construction, interpretation
and effect of the Plan and Grant Instruments issued under the Plan shall
exclusively be governed by and determined in accordance with the law of
the State of Florida, without regard to conflicts of laws principles.
Dated as of January 10, 2001.
Med Gen, Inc.
By:
________________________________
Paul S. Mitchell
President
<PAGE> Exhibit 4.3 - Pg. 6
