NEW PLANET
RESOURCES, INC.
STOCK
INCENTIVE PLAN
1. Purpose
The purpose of this Stock Incentive Plan (the "Plan") is to advance the
interests of New Planet Resources, Inc. (the "Company") and its stockholders
by providing deferred stock incentives in addition to current compensation
to certain key executives and certain directors of the Company and of its
subsidiaries who contribute significantly to the long-term performance
and growth of the Company and such subsidiaries. As used in this Plan,
subsidiary includes parent of the Company and any subsidiary of the Company
within the meaning of Sections 425(e) and (f) of the Internal Revenue
Code of 1986, as amended ("Code"), respectively.
2. Administration
The Plan shall be administered by the Board of Directors of the Company
(the "Board of Directors") or a committee of the Board of Directors duly
authorized and given authority by the Board of Directors to administer
the Plan (the Board of Directors or such duly authorized committee
hereinafter referred to as the "Board"), as such is from time to time
constituted.
The Board shall have all the powers vested in it by the terms of the Plan,
such powers to include exclusive authority (within the limitation
described herein) to select the employees to be granted Awards under the
Plan, to determine the type, size and terms of the Awards to be made to
each employee selected, to determine the time when Awards will be granted,
and to prescribe the form of the instruments evidencing Awards made under
the Plan. The Board shall be authorized to interpret the Plan and the
Awards granted under the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determinations
which it believes necessary or advisable for the administration of the Plan.
The Board may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Award in the Manner and to the extent
the Board deems desirable to carry it into effect. Any decision of the Board
in the administration of the Plan, as described herein, shall be final
and conclusive. The Board may act only by a majority of its members in
office, except that the members thereof may authorize any one or more of
their number of any officer of the Company to execute and deliver
documents on behalf of the Board. No member of the Board shall be able for
anything done or omitted to be done by him or by any other member of the
Board in connection with the Plan, except for his own willful misconduct or
as expressly provided by statute.
3. Participation
Subject to the provisions of the Plan, the Board shall have exclusive
power to select the directors and officers and other key employees of the
Company and its subsidiaries participating in the Plan to be granted Awards
under the Plan.
4. Awards Under the Plan
(a) Type of Awards. Awards under the Plan may be of three types: (i)
"Non-qualified Stock Options" or "Incentive Stock Options," (ii) "Stock
Appreciation Rights" attached to Stock Options, or (iii) "Restricted
Stock." Stock Options are rights to purchase shares of Common Stock of
the Company having a par value of $.001 per share (the "Common Stock").
Stock Appreciation Rights are rights to receive, without payment
to the Company, cash and/or shares of Common Stock in lieu of the
purchase of shares of Common Stock under the Stock Option to which the
Stock Appreciation Rights are subject to the terms, conditions and
restrictions specified in Paragraph 5. Restricted Stock is a share of
Common Stock which is subject to the repurchase option and the other
terms, conditions and restrictions described in Paragraph 6.
(b) Maximum Number of Shares That May Be Issued. There may be issued
under the Plan (as Restricted Stock or pursuant to the exercise of Stock
Options or Stock Appreciation Rights) an aggregate of not more than
2,500,000 shares of Common Stock, subject to adjustment as provided in
Paragraph 7. In addition to Common Stock actually so issued, there
shall be deemed to have been issued pursuant to the Plan (and therefore
no longer available in connection with Awards) a number of shares
equal to the aggregate of the number of shares of Common Stock under
option in respect of which Stock Appreciation Rights granted pursuant
to subparagraph 5(f) shall have been exercised minus the number of
shares of Common Stock, if any, issued upon exercise of such Stock
Appreciation Rights. Common Stock issued pursuant to the Plan may be
either authorized but unissued shares or reacquired shares, or both.
If any Common Stock issued as Restricted Stock shall be repurchased
pursuant to the option described in Paragraph 6 below, or if any
Common Stock issued under the Plan shall be reacquired pursuant to
restrictions imposed at the time of issuance, such shares may again be
issued under the Plan.
(c) Rights with Respect to Common Stock
(i) An employee to whom an Award of Restricted Stock has been made
shall have, after issuance to him of a certificate for the number
of shares of Common Stock awarded and prior to the expiration of the
Restricted Period or the earlier repurchase of such shares of
Common Stock as herein provided, ownership of such shares of Common
Stock, including the right to vote the same and to receive
dividends thereon, subject however, to the options, restrictions and
limitations imposed thereon pursuant to the Plan.
(ii) An employee to whom an Award of Stock Option or Stock Appreciation
Rights is made (and any person succeeding to such an employee's
rights pursuant to the Plan) shall have no rights as a stockholder
with respect to any shares of Common Stock issuable pursuant to
any such Stock Option or Stock Appreciation Rights until the date of
the issuance of a stock certificate to him for such shares.
Except as provided in Paragraph 8, no adjustment shall be made for
dividends, distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities or other property)
for which the record date is prior to the date such stock
certificate is issued.
(d) Exercise of Options and Stock Appreciation Rights: Expiration
of Restrictions Applicable to Restricted Stock. Options and Stock
Appreciation Rights shall be subject to such terms and conditions
upon exercisability as the Board may determine consistent with the
provisions of this Plan. Repurchase and other restrictions
applicable to Restricted Stock shall be such as are determined in the
discretion of the Board consistent with the provisions of the Plan.
The Board may determine to permit any Option granted hereunder to be
exercisable immediately upon the date of grant or any time thereafter.
The Board may determine to permit any Stock Appreciation Right
granted hereunder to be exercisable not less than six months after
the initial award of the Option containing, or the amendment or
supplementation of any existing Option Agreement adding the Stock
Appreciation Right; provided, however, that this limitation shall not
apply in the event of death or disability. The Board may determine
that there shall be no restrictions applicable to Restricted Stock
awarded under the Plan.
5. Stock Options and Stock Appreciation Rights
The Board may grant Stock Options (to which may but need not be attached
Stock Appreciation Rights as specified in subparagraph 5(f). Each Stock
Option (referred to herein as an "Option") granted under the Plan shall
be evidenced by an instrument in such form as the Board shall prescribe from
time to time in accordance with the Plan and shall comply with the
following terms and conditions (and with such other terms and conditions,
including but not limited to restrictions upon the Option or the shares
of Common Stock issuable upon exercise thereof, as the Board, in its
discretion, shall establish):
(a) The Option price shall be determined by the Board at the time the
Option is granted and shag not be less than the par value of such shares
of Common stock.
(b) The Board will determine the number of shares of Common Stock to be
subject to each Option. The number of shares of Common Stock subject
to an outstanding Option will be reduced on a share for share basis to
the extent that shares of Common Stock under such Option are used to
calculate the cash and/or shares of Common Stock received pursuant to
exercise of a Stock Appreciation Right attached to such Option.
(c) The Option shall not be transferable by the optionee otherwise than
will or the laws of descent and distribution, and shall be exercisable
during his lifetime only to him.
(d) The Board will determine the conditions and terms governing the
exercise of granted Options; provided, however that no Option shall be
exercisable:
(i) after the expiration of ten years from the date it is granted and
may be exercised during the period prior to its expiration only
at such time or times as the Board may establish;
(ii) unless payment in United States dollars by cash or check is made
for the shares being acquired thereby in frill at the time of
exercise, or at the option of the holder of such Option, in Common
Stock theretofore owned by such holder (or any combination of
cash and Common Stock).
For purposes of determining the amount, if any, of the purchase
price satisfied by payment of Common Stock under clause (ii)
above, such Common Stock shall be valued at its fair market value on
the date of exercise. Fair market value means the fair market value
of one share of Common Stock on the date in question, which is deemed
to be the mean between the highest and lowest sales prices per share
of Common Stock on any national stock exchange upon which Common Stock
is listed, or if Common Stock is not listed on any national stock
exchange, the mean between the highest closing bid and lowest closing as
ked prices for Common Stock as reported by the National Association
of Securities Dealers NASDAQ System, or if not reported by such system,
the mean between the closing bid and asked prices as quoted by such
quotation source as shall be designated by the Board on that date. If
there shall have been no sale on the date in question, fair market
value shall be determined by reference the last preceding date on which
such a sale or sales were so reported. Any Common Stock delivered
in satisfaction of all or a portion of the purchase price shall be
appropriately endorsed for transfer and assigned to the Company. The
Board may, in its discretion and to the extent permitted by the laws
of the State of Delaware determine to permit the holder of an Option
to satisfy the purchase price of the shares as to which an Option is
exercised by delivery of the Option holder's promissory note, such
note to be subject to such terms and conditions as the Board may
determine. The Board may, in its discretion and to the extent permitted
by the laws of the State of Delaware, determine to cause the Company to
lend to be holder of an Option, funds on such terms and conditions
as the Board may determine to be appropriate, sufficient for the holder
of an Option to pay the purchase price of the shares as to which an
Option is to be exercised.
(e) If any person to whom an Option has been granted shall die
holding an Option which has not been fully exercised, his executors,
administrators, heirs or distributees, as the case may be, may, at
any time within one year after the date of such death (but in no event
after the Option has expired under the provisions of subparagraph
5(d)(i) hereon, exercise the Option with respect to any shares as to
which the decedent could have exercised the Option at the time of his death.
(f) If the Board, in its discretion, so determines, there may be
attached to the Option a Stock Appreciation Right which shall be subject to
such terms and conditions, not inconsistent with the Plan, as the Board
shall impose, including the following.
(i) A Stock Appreciation Right may be exercised only to the extent
that the option to which it is attached is at the time
exercisable. However, if the option to which the Stock Appreciation
Right is attached is exercisable and if the optionee is at
the relevant time an officer or director of the Company who is
required to file reports pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") ("Covered
Participant") the Stock Appreciation Right may, subject to
the approval of the Board, be exercised under such terms and conditions
as may be specified by the Board;
(ii) A Stock Appreciation Right shall entitle the optionee (or any
person entitled to act under the provisions of subparagraph 5(e)
hereon to surrender unexercised the Option to which the Stock
Appreciation Right is attached (or any portion of such Option) to
the Company and to receive from the Company in exchange therefor
that number of shares of Common Stock having an aggregate value
equal to (or, in the discretion of the Board, less than) the
excess of the value of one share over the option price per share
times the number of shares subject to the option, or portion thereof,
which is so surrendered. The Company shall be entitled to
elect to settle its obligation arising out of the exercise of a
Stock Appreciation Right, by the payment of cash equal to the
aggregate value of the shares it would otherwise be obligated
to deliver or partly by the payment of cash and partly by the
delivery of shares of Common Stock. Any such election shall be made
within 15 business days after the receipt by the Board of
written notice of the exercise of the Stock Appreciation Right.
The value of a share of Common Stock for this purpose shall be
the fair market value thereon on the last business day next preceding
the date of the election to exercise the Stock Appreciation
Right;
(iii) No fractional shares shall be delivered under this subparagraph
5(f) but in lieu thereof a cash adjustment shall be made.
(g) The Option agreement evidencing any incentive stock option granted
under this Plan shall provide that if the optionee makes a disposition,
within the meaning of Section 425(c) of the code and the regulations
promulgated thereunder, of any share or shares of Common Stock issued
to him pursuant to his exercise of an Option granted under this Plan
within the two-year period commencing on the day after the date of the
granting of such Option or within a one-year period commencing on the
day after the date of transfer of the share or shares to him pursuant
to the exercise of such Option, he shall, within ten days of such
disposition, notify the Company thereof and immediately deliver to the
Company any amount of federal income tax withholding required by law.
6. Restricted Stock
Each Award of Restricted Stock under the Plan shall be evidenced by an
instrument in such form as the Board shall prescribe form time to time in
accordance with the Plan and shall comply with the following terms and
conditions (and with such other terms and conditions as the Board, in its
discretion, shall establish):
(a) The Board shall determine the number of shares of Common Stock to be
issued to a participant pursuant to the Award.
(b) Shares of Common Stock issued to a participant in accordance with the
Award may not be sold, assigned, transferred, pledged, hypothecated
or otherwise disposed of, except by will or the laws of descent and
distribution, for such period as the Board shall determine, from the
date on which the Award is granted (the "Restricted Period"). The
Company will have the option to repurchase the shares subject to the
Award at such price as the Board shall have fixed, in its sole
discretion, when the Award was made, which option will be exercisable at
such times and upon the occurrence of such events as the Board shall
establish when the Award is granted or if, on or prior to the
expiration of the Restricted Period or the earlier lapse of the Option,
the participant has not paid to the Company an amount equal to any
Federal, State or local income or other taxes which the Company
determines is required to be withheld in respect of such shares. Such
option shall be exercisable on such terms, in such manner and during
such period as shall be determined by the Board when the Award is
made. Certificates for shares of Common Stock issued pursuant to
Restricted Stock Awards shall bear an appropriate legend referring to the
foregoing Option and other restrictions and to the fact that the
shares are partly paid. Any attempt to dispose of any such shares of
Common Stock in contravention of the foregoing Option and other
restrictions shall be null and void and without effect. If shares of
Common Stock issued pursuant to a Restricted Stock Award shall be
repurchased pursuant to the Option described above, the participant, or
in the event of his death, his personal representative, shall
forthwith deliver to the Secretary of the Company the certificates for the
shares of Common Stock awarded to the participant, accompanied by such
instruments of transfer, if any, as may reasonably be required by
the Secretary of the Company. If the Option described above is not
exercised by the company during such period as is specified by the
Board when the Award is made, such Option and the restrictions imposed
pursuant to the first sentence of this subparagraph 6(b) shall
terminate and be of no further force and effect.
7. Stock Dividends, Stock Splits, Reorganizations and Certain Other
Corporation Transactions
(a) Exercise or Corporate Powers. The existence of outstanding awards
of Options, Stock Appreciation Rights or Restricted Stock shall not
effect in any way the right or power of the Company or its stockholders
to make or authorize any or all adjustments, recapitalization,
reorganization or other changes in the Company's capital structure or
its business or any merger or consolidation of the Company, or any
issue of bonds, debentures preferred or prior preference stocks ahead
of or affecting the Company's shares of Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding whether of a similar character or
otherwise.
(b) Recapitalization of the Company. If, while there are Options, Stock
Appreciation Rights or Restricted Stock outstanding, the Company shall
effect any subdivision or consolidation of shares of Common Stock or
other capital readjustment, the payment of a stock dividend, stock
split, combination of shares or recapitalization or other increase or
reduction in the number of shares of Common Stock outstanding,
without receiving compensation therefor in money, services or property,
then the number of shares of Common Stock available under the Plan
and the number of Options, Stock Appreciation Rights or Restricted
Stock which may thereafter be exercised shall (i) in the event of an
increase in the number of shares outstanding, be proportionately
increased and the fair market value of the Options, Stock Appreciation
Rights or Restricted Stock awarded as of the date of the award shall be
proportionately reduced; and (ii) in the event of a reduction in
the number of shares outstanding, be proportionately reduced, and
the fair market value of the Options, Stock Appreciation Rights or
Restricted Stock awarded as of the date of the Award shall be
proportionately increased.
(c) Reorganization of the Company. If the Company is reorganized, or
merged or consolidated or a party to a plan of exchange with another
corporation pursuant to which reorganization, member, consolidation or
plan of exchange stockholders of the Company receive any shares of
Common Stock or other securities, or if the Company shall
distribute securities of another corporation to its stockholders, each
Participant shall be entitled to receive in lieu of the number of
unexercised Options, Stock Appreciation Rights at the date of award, to
which such holder would have been entitled pursuant to the terms of the
agreement of merger of consolidation, if immediately prior to such
merger or consolidation such holder had been the holder of record
of a number of shares of Common Stock equal to the number of the
unexercised Options or Stock Appreciation Rights previously awarded
to him, and Restricted Stock shall be treated the same as unrestricted
outstanding shares of Common Stock; provided, that, anything herein
contained to the contrary notwithstanding, upon the dissolution or
liquidation of the Company or upon any merger or consolidation of the
Company where it is not the surviving corporation, each Participant
shall be entitled to a benefit as though he had become fully vested
in all Options, Stock Appreciation Rights and Restricted Stock
previously awarded to him and then outstanding under this Plan, and
had terminated employment with the Company immediately prior to or
concurrently with such dissolution or liquidation or merger or
consolidation.
(d) Issue of Common Stock by the Company. Except as hereinabove expressly
provided, the issue by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, for cash
or property, or for labor or services, either upon direct sale or
upon the exercise of rights or warrants to subscribe therefor, or upon
any conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of,
or fair market value of, any Options or Stock Appreciation Rights then
outstanding under previous awards but holders of Restricted Stock
shall be treated the same as the holders of outstanding unrestricted
shares of Common Stock
(e) Change In Control. The Board may, in its sole discretion,
provide that an Option or Stock Appreciation Right shall become fully
exercisable or that a share of Restricted Stock shall be free of any
restrictions upon a Change in Control of the Company (as defined in
the next sentence). "Change in Control" of the Company shall be
conclusively deemed to have occurred if (and only if) any of the following
shall have taken place: (i) a change in control is reported by the
Company in response to either Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act or Item 1 of Form 8-K promulgated
under the Exchange Act; (ii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
forty percent or more of the combined voting power of the company's then
outstanding securities; or (iii) following the election or removal
of directors, a majority of the Board of Directors consists of
individuals who were not members of the Board of Directors two years
before such election or removal, unless the election of each director
who was not a director at the beginning of such two-year period has been
approved in advance by directors representing at least a majority
of the directors then in office who were directors at the beginning of
the two-year period.
8. Designation of Beneficiary By Participant
A participant may name a beneficiary to receive any payment to which he
may be entitled in respect of Awards under the Plan in the event of his
death, on a form to be provided by the Board. A participant may change
his beneficiary from time to time in the same manner. If no designated
beneficiary is living on the date on which any amount becomes payable to a
participant's beneficiary, such payment will be made to the participant's
executors or administrators, and the term "beneficiary" as used in the Plan
shall include such person or persons.
9. Taxes
(a) The Company may make such provisions as it may deem appropriate
for the withholding of any taxes which it determines is required in
connection with any Options or Stock Appreciation Rights or Restricted
Stock granted under this Plan.
(b) Notwithstanding the terms of subparagraph 9(a), any participant may
pay all or any portion of the taxes required or allowed to be withheld
by the Company if paid to him in connection with the exercise of an
Option, Stock Appreciation Right or vesting of any Award of Restricted
Stock by electing to have the Company withhold shares of Common Stock,
or by delivering previously owned shares of Common Stock, having a
fair market value, determined in accordance with subparagraph 5(d),
equal to the amount required to be withheld or paid. A Participant
must take the foregoing election on or before the date (bat the amount
of tax to be withheld is determined ("Tax Date"). Such elections
are irrevocable and subject to disapproval by the Board. Elections
by Covered Participants are subject to the following additional
restrictions: (i) such election may not be made within six months of the
grant of the Award, provided that this limitation shall not apply
in the event of death or disability, and (ii) such election must be
made either six months or more prior to the Tax Date or in a Window
Period (as defined herein). Where the Tax Date in respect of an Award
is deferred until after exercise or expiration of restrictions and
the Covered Participant elects share withholding, the full amount of
shares of Common Stock will be issued or transferred to him upon
exercise of the Option or exercise of the Stock Appreciation Right or
expiration of restrictions of the Restricted Stock, as the case may
be, but the Covered Participant shall be unconditionally obligated
to tender back to the Company the number of shares necessary to
discharge the Company's withholding obligation or his estimated tax
obligation on the Tax Date. As used herein, Window Period means the
period commencing on the third business day following the Company's
release of a quarterly or annual summary statement of sales and
earnings and ending on the twelfth business day following such release.
10. Miscellaneous Provisions
(a) No employee or other person shall have any claim or right to be
granted an Award under the Plan. Neither the Plan nor any action taken
hereunder shall be construed as giving any employee any right to be
retained in the employ of the Company or any subsidiary.
(b) A participant's rights and interest under the Plan may not be
assigned or transferred in whole or in part either directly or by operation
of law or otherwise (except in the event of a participant's death),
including but not by way of limitation, execution, levy, garnishment,
attachment, pledge, bankruptcy or in any other manner and not such
right or interest of any participant in the Plan shall be subject to any
obligation or liability of such participant.
(c) No shares of Common Stock shall be issued hereunder unless counsel
for the Company shall be satisfied that such issuance will be in
compliance with applicable federal and state securities laws.
(d) The expenses of the Plan shall be home by the Company.
(e) The Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund to make any other segregation of
assets to assure the payment of any Award under the Plan and payment of
Awards shall be subordinate to the claims of the Company's general
creditors.
By accepting any Award or other benefit under the Plan, each participant
and each person claiming under or through him shall be conclusively deemed
to have indicated his acceptance and ratification of, and consent to, any
action taken under the Plan by the Company, the Board or the Board.
11. Amendment or Discontinuance
The Plan may be amended at any time and from time to time by the Board of
Directors but no amendment which increases the aggregate number of shares
of Common Stock which may be issued pursuant to the Plan shall be
effective unless and until the same is approved by the stockholders of
the, Company. No amendment of the Plan shall adversely affect any right of any
participant with respect to any Award theretofore granted without such
participant's written consent.
12. Termination
This Plan shall terminate upon the earlier of the following dates or events
to occur:
(a) upon the adoption of a resolution of the Board of Directors terminating
the Plan; or
(b) ten years from the date hereof
No termination of the Plan shall alter or impair any of the rights or
obligations of any person, without his consent, under any Award theretofore
granted under the Plan.
13. Stockholder Adoption
The Plan shall be submitted to the stockholders of the Company for their
approval and adoption on or before March 26, 1999. The Plan shall not be
effective and any Award made hereunder shall be void and of no effect if
the Plan is not so approved. The stockholders shall be deemed to have
approved the Plan only if it is approved at a meeting of the stockholders
duly held on or before that date by vote or by written consent in the
manner required by the laws of the State of Delaware.
