UNITED
STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
3DICON
CORPORATION
(Exact
name of issuer as specified in its charter)
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OKLAHOMA
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73-1479206
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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6804
South Canton Avenue, Suite 150
Tulsa,
Ok 74136
(Address
of Principal Executive Offices and Zip Code)
3DICON
CORPORATION 2010 EQUITY INCENTIVE PLAN
(Full title of the
plan)
John
M. O’Connor, Esq.
Newton,
O’Connor, Turner & Ketchum, a Professional Corporation
15
W. Sixth Street, Suite 2700
Tulsa,
OK 74119
(Name and
address of agent for service)
Copies of
all communications, including all communications
sent to
agent for service to:
Gregory
Sichenzia, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway
New
York, NY 10006
(212)
930-9700 (telephone)
(212)
930-9725 (fax)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer”,
“accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller
reporting company x
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CALCULATION
OF REGISTRATION FEE
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PROPOSED
MAXIMUM
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PROPOSED
MAXIMUM
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|||||||||||||||
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TITLE OF
SECURITIES TO BE REGISTERED
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AMOUNT TO
BE
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OFFERING
PRICE PER
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AGGREGATE
OFFERING
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AMOUNT OF
REGISTRATION
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||||||||||||
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REGISTERED
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SHARE(2)
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PRICE
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FEE
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Common
Stock, $.0002 PAR VALUE(1)
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60,000,000 | $ | 0.0043 | $ | 258,000 | $ | 18.40 | |||||||||
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Total
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60,000,000 | $ | 0.0043 | $ | 258,000 | $ | 18.40 | |||||||||
(1)
Represents the maximum aggregate number of shares presently issuable under the
3DIcon Corporation 2010 Equity Incentive Plan.
(2)
Computed pursuant to Rule 457(c) and (h) on the basis of the average of the high
and low prices of the Common Stock as reported on June 23, 2010 on the OTC
Bulletin Board.
PART
1
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM
1. PLAN INFORMATION.
3DIcon
Corporation ("We", "us", "our company" or "3DIcon") will provide each
participant (the "Recipient") with documents that contain information related to
our 2010 Equity Incentive Plan and other information including, but not limited
to, the disclosure required by Item 1 of Form S-8, which information is not
filed as a part of this Registration Statement on Form S-8 (the "Registration
Statement"). The foregoing information and the documents incorporated by
reference in response to Item 3 of Part II of this Registration Statement taken
together constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act. A Section 10(a) prospectus will be given to each Recipient
who receives common shares covered by this Registration Statement, in accordance
with Rule 428(b)(1) under the Securities Act.
ITEM
2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
We will
provide to each Recipient a written statement advising them of the availability
of documents incorporated by reference in Item 3 of Part II of this Registration
Statement (which documents are incorporated by reference in this Section 10(a)
prospectus) and of documents required to be delivered pursuant to Rule 428(b)
under the Securities Act without charge and upon written or oral notice by
contacting:
Martin
Keating
Chief
Executive Officer
6804
South Canton Avenue, Suite 150
Tulsa, OK
74136
(918)
494-0505
INFORMATION
REQUIRED BY PART I TO BE CONTAINED IN SECTION 10(a) PROSPECTUS IS OMITTED FROM
THE REGISTRATION STATEMENT IN ACCORDANCE WITH RULE 428 UNDER THE SECURITIES ACT
OF 1933, AND NOTE TO PART I OF FORM S-8.
2
PART
II
INFORMATION
NOT REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
Registrant hereby incorporates by reference into this Registration Statement the
documents listed below. In addition, all documents subsequently filed pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents:
The
following documents filed with the SEC are incorporated herein by
reference:
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●
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Reference is made to our annual
report on Form 10-K for the year ended December 31, 2009, as filed with
the SEC on March 31, 2010;
and
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●
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Reference is made to our
quarterly report on Form 10-Q for the period ended March 31, 2010, as
filed with the SEC on May 17,
2010.
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ITEM
4. DESCRIPTION OF SECURITIES.
Not
applicable.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No expert
or counsel named in this prospectus as having prepared or certified any part of
this prospectus or having given an opinion upon the validity of the securities
being registered or upon other legal matters in connection with the registration
or offering of the common stock was employed on a contingency basis or had, or
is to receive, in connection with the offering, a substantial interest, directly
or indirectly, in the registrant or any of its parents or
subsidiaries.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our
bylaws provide that 3DIcon may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
other than an action by or in the right of the corporation, by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys fees,
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 (the
"Act") may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the small
business issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities, other than the payment by us of
expenses incurred or paid by our directors, officers or controlling persons in
the successful defense of any action, suit or proceedings, is asserted by such
director, officer, or controlling person in connection with any securities being
registered, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to court of appropriate jurisdiction
the question whether such indemnification by us is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issues.
3
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
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EXHIBIT
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NUMBER
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EXHIBIT
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4.7
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3DIcon
Corporation 2010 Equity Incentive Plan
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5.1
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Opinion
of Sichenzia Ross Friedman Ference LLP
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23.1
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Consent
of Sichenzia Ross Friedman Ference LLP (included in Exhibit
5.1)
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23.2
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Consent
of HoganTaylor LLP
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24.1
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Power
of Attorney (included on signature
page)
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ITEM
9. UNDERTAKINGS.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
PROVIDED,
HOWEVER, that paragraphs (a)(1)(i), and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-8 and if the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
4
(4) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each
prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof. PROVIDED, HOWEVER, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective
date.
(6) That,
for the purpose of determining liability of a Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, each
undersigned Registrant undertakes that in a primary offering of securities of an
undersigned Registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of an undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of an
undersigned Registrant or used or referred to by an undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about an undersigned Registrant or its securities provided
by or on behalf of an undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by an undersigned
Registrant to the purchaser.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
5
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Tulsa, State of Oklahoma, on June 24, 2010.
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3DIcon
Corporation
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By:
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/s/ Martin Keating
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Martin
Keating
CHIEF
EXECUTIVE OFFICER
(PRINCIPAL
EXECUTIVE AND FINANCIAL
OFFICER)
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POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Martin
Keating, his or her true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities to sign any and all amendments (including
post-effective amendments) and additions to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and hereby grants to
such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
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Date:
June 24, 2010
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/s/ Martin Keating
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Martin
Keating
Chairman,
Chief Executive Officer
and
Director
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Date:
June 24, 2010
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/s/ John O’ Connor
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John
O’Connor
Director
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Date:
June 24, 2010
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/s/ Victor F. Keen
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Victor
F. Keen
Director
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Exhibit
4.7
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3DICON
CORPORATION
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2010
EQUITY INCENTIVE PLAN
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This 3DIcon
Corporation 2010 Equity
Incentive Plan (the "Plan") is designed to retain
directors, executives and selected employees and consultants and reward them for
making contributions to the success of the Company. These objectives
are accomplished by making long-term incentive awards under the Plan thereby
providing Participants with a proprietary interest in the growth and performance
of the Company.
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1.
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Definitions.
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(a)
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"Board"
- The Board of Directors of the
Company.
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(b)
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"Change in
Control" - Means, and shall be deemed to have occurred upon the
occurrence of, any one of the following
events:
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(i)
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The
acquisition in one transaction by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial
ownership (within the meaning of Rule l3d-3 promulgated under the Exchange
Act) of shares or other securities (as defined in Section 3(a)(10) of the
Exchange Act) representing 51% or more of outstanding Stock of the
Company; provided, however, that a Change
in Control as defined in this clause (1) shall not be deemed to occur in
connection with any acquisition by the Company, an employee benefit plan
of the Company or any Person who immediately prior to the effective date
of this Plan is a holder of Stock (a "Current Stockholder") so
long as such acquisition does not result in any Person other than the
Company, such employee benefit plan or such Current Stockholder
beneficially owning shares or securities representing 51% or more of the
outstanding; or
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(ii)
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Any
election has occurred of persons as directors of the Company that causes
two-thirds or more of the Board to consist of persons other than (i)
persons who were members of the Board on the effective date of this Plan
and (ii) persons who were nominated by the Board for election as members
of the Board at a time when at least two-thirds of the Board consisted of
persons who were members of the Board on the effective date of this Plan;
provided, however, that any
person nominated for election by the Board when at least two-thirds of the
members of the Board are persons described in subclause (i) or (ii) and
persons who were themselves previously nominated in accordance with this
clause (2) shall, for this purpose, be deemed to have been nominated by a
Board composed of persons described in subclause (ii);
or
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(iii)
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Approval
by the stockholders of the Company of a reorganization, merger,
consolidation or similar transaction (a "Reorganization
Transaction"), in each case, unless, immediately following such
Reorganization Transaction, more than 50% of, respectively, the
outstanding shares of common stock (or similar equity security) of the
corporation or other entity resulting from or surviving such
Reorganization Transaction and the combined voting power of the securities
of such corporation or other entity entitled to vote generally in the
election of directors, is then beneficially owned, directly or indirectly,
by the individuals and entities who were the respective beneficial owners
of the outstanding Stock immediately prior to such Reorganization
Transaction in substantially the same proportions as their ownership of
the outstanding Stock immediately prior to such Reorganization
Transaction; or
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(iv)
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Approval
by the stockholders of the Company of (i) a complete liquidation or
dissolution of the Company or (ii) the sale or other disposition of all or
substantially all of the assets of the Company to a corporation or other
entity, unless, with respect to such corporation or other entity,
immediately following such sale or other disposition more than 50% of,
respectively, the outstanding shares of common stock (or similar equity
security) of such corporation or other entity and the combined voting
power of the securities of such corporation or other entity entitled to
vote generally in the election of directors, is then beneficially owned,
directly or indirectly, by the individuals and entities who were the
respective beneficial owners of the outstanding Stock immediately prior to
such sale or disposition in substantially the same proportions as their
ownership of the outstanding Stock immediately prior to such sale or
disposition.
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(c)
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"Code" -
The Internal Revenue Code of 1986, as amended from time to
time.
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(d)
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"Committee"
- The Compensation Committee of the Company's Board, or such other
committee of the Board that is designated by the Board to administer the
Plan, composed of not less than two members of the Board who are
disinterested persons, as contemplated by Rule 16b-3 ("Rule
16b-3") promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange
Act").
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(e)
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"Company"
–3DIcon Corporation and its subsidiaries including subsidiaries of
subsidiaries.
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(f)
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"Exchange Act" -
The Securities Exchange Act of 1934, as amended from time to
time.
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(g)
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"Fair Market
Value" - The fair market value of the Company's issued and
outstanding Stock as determined in good faith by the Board or
Committee.
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(h)
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"Grant"
- The grant of any form of stock option, stock award, or stock purchase
offer, whether granted singly, in combination, or in tandem, to a
Participant pursuant to such terms, conditions and limitations as the
Committee may establish in order to fulfill the objectives of the
Plan.
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(i)
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"Grant
Agreement" - An agreement between the Company and a Participant
that sets forth the terms, conditions and limitations applicable to a
Grant.
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(j)
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"Option" - Either an
Incentive Stock Option, in accordance with Section 422 of Code, or a
Nonstatutory Option, to purchase the Company's Stock that may be awarded
to a Participant under the Plan. A Participant who receives an award of an
Option shall be referred to as an "Optionee."
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(k)
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"Participant" - A
director, officer, employee or consultant of the Company to whom an Award
has been made under the Plan.
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(l)
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"Restricted Stock Purchase
Offer" - A Grant of the right to purchase a specified number of
shares of Stock pursuant to a written agreement issued under the
Plan.
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(m)
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"Securities Act" - The
Securities Act of 1933, as amended from time to
time.
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(n)
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"Stock" - Authorized and
issued or unissued shares of common stock of the
Company.
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(o)
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"Stock Award" - A Grant
made under the Plan in stock or denominated in units of stock for which
the Participant is not obligated to pay additional
consideration.
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2.
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Administration.
The Plan shall be administered by the Board, provided, however, that the Board
may delegate such administration to the Committee. Subject to the
provisions of the Plan, the Board and/or the Committee shall have
authority to (a) grant, in its discretion, Incentive Stock Options in
accordance with Section 422 of the Code, or Nonstatutory Options, Stock
Awards or Restricted Stock Purchase Offers; (b) determine in good faith
the fair market value of the Stock covered by any Grant; (c) determine
which eligible persons shall receive Grants and the number of shares,
restrictions, terms and conditions to be included in such Grants; (d)
construe and interpret the Plan; (e) promulgate, amend and rescind rules
and regulations relating to its administration, and correct defects,
omissions and inconsistencies in the Plan or any Grant; (f) consistent
with the Plan and with the consent of the Participant, as appropriate,
amend any outstanding Grant or amend the exercise date or dates thereof;
(g) determine the duration and purpose of leaves of absence which may be
granted to Participants without constituting termination of their
employment for the purpose of the Plan or any Grant; and (h) make all
other determinations necessary or advisable for the Plan's administration.
The interpretation and construction by the Board of any provisions of the
Plan or selection of Participants shall be conclusive and final. No member
of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Grant
made thereunder.
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3.
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Eligibility.
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(a)
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General: The
persons who shall be eligible to receive Grants shall be directors,
officers, employees or consultants to the Company. The term consultant
shall mean any person, other than an employee, who is engaged by the
Company to render services and is compensated for such services. An
Optionee may hold more than one Option. Any issuance of a Grant to an
officer or director of the Company subsequent to the first registration of
any of the securities of the Company under the Exchange Act shall comply
with the requirements of Rule
16b-3.
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(b)
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Incentive Stock
Options: Incentive Stock Options may only be issued to
employees of the Company. Incentive Stock Options may be granted to
officers or directors, provided they are also employees of the Company.
Payment of a director's fee shall not be sufficient to constitute
employment by the Company.
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The
Company shall not grant an Incentive Stock Option under the Plan to any employee
if such Grant would result in such employee holding the right to exercise for
the first time in any one calendar year, under all Incentive Stock Options
granted under the Plan or any other plan maintained by the Company, with respect
to shares of Stock having an aggregate fair market value, determined as of the
date the Option is granted, in excess of $100,000. Should it be determined that
an Incentive Stock Option granted under the Plan exceeds such maximum for any
reason other than a failure in good faith to value the Stock subject to such
option, the excess portion of such option shall be considered a Nonstatutory
Option. To the extent the employee holds two (2) or more such Options which
become exercisable for the first time in the same calendar year, the foregoing
limitation on the exercisability of such Option as Incentive Stock Options under
the Federal tax laws shall be applied on the basis of the order in which such
Options are granted. If, for any reason, an entire Option does not qualify as an
Incentive Stock Option by reason of exceeding such maximum, such Option shall be
considered a Nonstatutory Option.
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(c)
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Nonstatutory
Option: The provisions of the foregoing Section 3(b)
shall not apply to any Option designated as a "Nonstatutory Option" or
which sets forth the intention of the parties that the Option be a
Nonstatutory Option.
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(d)
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Stock
Awards and Restricted Stock Purchase Offers: The
provisions of this Section 3 shall not apply to any Stock Award or
Restricted Stock Purchase Offer under the
Plan.
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4.
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Stock.
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(a)
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Authorized
Stock: Stock subject to Grants may be either unissued or reacquired
Stock.
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(b)
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Number
of Shares: Subject to adjustment as provided in Section
5(i) of the Plan, the total number of shares of Stock which may be
purchased or granted directly by Options, Stock Awards or Restricted Stock
Purchase Offers, or purchased indirectly through exercise of Options
granted under the Plan shall not exceed SIXTY MILLION
(60,000,000). If any Grant shall for any reason terminate or
expire, any shares allocated thereto but remaining unpurchased upon such
expiration or termination shall again be available for Grants with respect
thereto under the Plan as though no Grant had previously occurred with
respect to such shares. Any shares of Stock issued pursuant to a Grant and
repurchased pursuant to the terms thereof shall be available for future
Grants as though not previously covered by a
Grant.
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- 4
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(c)
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Reservation of
Shares: The Company shall reserve and keep available at
all times during the term of the Plan such number of shares as shall be
sufficient to satisfy the requirements of the Plan. If, after reasonable
efforts, which efforts shall not include the registration of the Plan or
Grants under the Securities Act, the Company is unable to obtain authority
from any applicable regulatory body, which authorization is deemed
necessary by legal counsel for the Company for the lawful issuance of
shares hereunder, the Company shall be relieved of any liability with
respect to its failure to issue and sell the shares for which such
requisite authority was so deemed necessary unless and until such
authority is obtained.
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|
(d)
|
Application of
Funds: The proceeds received by the Company from the sale of Stock
pursuant to the exercise of Options or rights under Stock Purchase
Agreements will be used for general corporate
purposes.
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(e)
|
No
Obligation to Exercise: The issuance of a Grant shall
impose no obligation upon the Participant to exercise any rights under
such Grant.
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5.
|
Terms
and Conditions of Options.
|
Options
granted hereunder shall be evidenced by agreements between the Company and the
respective Optionees, in such form and substance as the Board or Committee shall
from time to time approve. Option agreements need not be identical, and in each
case may include such provisions as the Board or Committee may determine, but
all such agreements shall be subject to and limited by the following terms and
conditions:
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(a)
|
Number
of Shares: Each Option shall state the number of shares to which it
pertains.
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|
(b)
|
Exercise
Price: Each Incentive Stock Option shall state the exercise price,
which shall be determined as
follows:
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|
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(i)
|
Any
Incentive Stock Option granted to a person who at the time the Option is
granted 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 or value of all classes of stock of the Company ("Ten Percent Holder")
shall have an exercise price of no less than 110% of the Fair Market Value
of the Stock as of the date of grant;
and
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(ii)
|
Incentive
Stock Options granted to a person who at the time the Option is granted is
not a Ten Percent Holder shall have an exercise price of no less than 100%
of the Fair Market Value of the Stock as of the date of
grant.
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For the
purposes of this Section 5(b), the Fair Market Value shall be as determined by
the Board in good faith, which determination shall be conclusive and binding;
provided however, that if there is a public market for such Stock, the Fair
Market Value per share shall be the average of the bid and asked prices (or the
closing price if such stock is listed on the NASDAQ National Market System or
Small Cap Issue Market) on the date of grant of the Option, or if listed on a
stock exchange, the closing price on such exchange on such date of
grant.
- 5
- -
The
exercise price of each Nonstatutory Stock Option shall be determined at the
discretion of the Board of Directors of the Corporation.
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(c)
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Medium and Time of
Payment: The exercise price shall become immediately due
upon exercise of the Option and shall be paid in cash or check made
payable to the Company. Should the Company's outstanding Stock be
registered under Section 12(g) of the Exchange Act at the time the Option
is exercised, then the exercise price may also be paid as
follows:
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|
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(i)
|
in
shares of Stock held by the Optionee for the requisite period necessary to
avoid a charge to the Company's earnings for financial reporting purposes
and valued at Fair Market Value on the exercise date,
or
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(ii)
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through
a special sale and remittance procedure pursuant to which the Optionee
shall concurrently provide irrevocable written instructions (a) to a
Company designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the Company, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate
exercise price payable for the purchased shares plus all applicable
Federal, state and local income and employment taxes required to be
withheld by the Company by reason of such purchase and (b) to the Company
to deliver the certificates for the purchased shares directly to such
brokerage firm in order to complete the sale
transaction.
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At the discretion of the Board,
exercisable either at the time of Option grant or of Option exercise, the
exercise price may also be paid (i) by Optionee's delivery of a promissory note
in form and substance satisfactory to the Company and permissible under
applicable securities rules and bearing interest at a rate determined by the
Board in its sole discretion, but in no event less than the minimum rate of
interest required to avoid the imputation of compensation income to the Optionee
under the Federal tax laws, or (ii) in such other form of consideration
permitted by the Delaware General Corporation Law as may be acceptable to the
Board.
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(d)
|
Term and Exercise of
Options: Any Option granted to an employee of the
Company shall become exercisable over a period of no longer than five (5)
years. In no event shall any Option be exercisable after the expiration of
ten (10) years from the date it is granted, and no Incentive Stock Option
granted to a Ten Percent Holder shall, by its terms, be exercisable after
the expiration of five (5) years from the date of the Option. Unless
otherwise specified by the Board or the Committee in the resolution
authorizing such Option, the date of grant of an Option shall be deemed to
be the date upon which the Board or the Committee authorizes the granting
of such Option.
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Each
Option shall be exercisable to the nearest whole share, in installments or
otherwise, as the respective Option agreements may provide. During the lifetime
of an Optionee, the Option shall be exercisable only by the Optionee and shall
not be assignable or transferable by the Optionee, and no other person shall
acquire any rights therein. To the extent not exercised, installments (if more
than one) shall accumulate, but shall be exercisable, in whole or in part, only
during the period for exercise as stated in the Option agreement, whether or not
other installments are then exercisable.
- 6
- -
|
(e)
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Termination of Status
as Employee, Consultant or Director: If Optionee's
status as an employee shall terminate for any reason other than Optionee's
disability or death, then Optionee (or if the Optionee shall die after
such termination, but prior to exercise, Optionee's personal
representative or the person entitled to succeed to the Option) shall have
the right to exercise the portions of any of Optionee's Incentive Stock
Options which were exercisable as of the date of such termination, in
whole or in part, within 90 days after such termination (or, in the event
of "termination
for good cause" as that term is defined in Delaware case law
related thereto, or by the terms of the Plan or the Option Agreement or an
employment agreement, the Option shall automatically terminate as of the
termination of employment as to all shares covered by the
Option).
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With respect to Nonstatutory Options
granted to employees, directors or consultants, the Board may specify such
period for exercise, not less than 90 days (except that in the case of "termination for
cause" or removal of a director), the Option shall automatically
terminate as of the termination of employment or services as to shares covered
by the Option, following termination of employment or services as the Board
deems reasonable and appropriate. The Option may be exercised only with respect
to installments that the Optionee could have exercised at the date of
termination of employment or services. Nothing contained herein or in any Option
granted pursuant hereto shall be construed to affect or restrict in any way the
right of the Company to terminate the employment or services of an Optionee with
or without cause.
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(f)
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Disability of
Optionee: If an Optionee is disabled (within the meaning
of Section 22(e)(3) of the Code) at the time of termination, the ninety
(90) day period set forth in Section 5(e) shall be a period, as determined
by the Board and set forth in the Option, of not less than six months nor
more than one year after such
termination.
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(g)
|
Death of
Optionee: If an Optionee dies while employed by, engaged
as a consultant to, or serving as a Director of the Company, the portion
of such Optionee's Option which was exercisable at the date of death may
be exercised, in whole or in part, by the estate of the decedent or by a
person succeeding to the right to exercise such Option at any time within
(i) a period, as determined by the Board and set forth in the Option, of
not less than six (6) months nor more than one (1) year after Optionee's
death, which period shall not be more, in the case of a Nonstatutory
Option, than the period for exercise following termination of employment
or services, or (ii) during the remaining term of the Option, whichever is
the lesser. The Option may be so exercised only with respect to
installments exercisable at the time of Optionee's death and not
previously exercised by the
Optionee.
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(h)
|
Nontransferability of
Option: No Option shall be transferable by the Optionee,
except by will or by the laws of descent and
distribution.
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- 7
- -
|
(i)
|
Recapitalization: Subject
to any required action of shareholders, the number of shares of Stock
covered by each outstanding Option, and the exercise price per share
thereof set forth in each such Option, shall be proportionately adjusted
for any increase or decrease in the number of issued shares of Stock of
the Company resulting from a stock split, stock dividend, combination,
subdivision or reclassification of shares, or the payment of a stock
dividend, or any other increase or decrease in the number of such shares
affected without receipt of consideration by the Company; provided,
however, the conversion of any convertible securities of the Company shall
not be deemed to have been "effected
without receipt of consideration" by the
Company.
|
In the
event of a proposed dissolution or liquidation of the Company, a merger or
consolidation in which the Company is not the surviving entity, or a sale of all
or substantially all of the assets or capital stock of the Company
(collectively, a "Reorganization"), unless
otherwise provided by the Board, this Option shall terminate immediately prior
to such date as is determined by the Board, which date shall be no later than
the consummation of such Reorganization. In such event, if the entity
which shall be the surviving entity does not tender to Optionee an offer, for
which it has no obligation to do so, to substitute for any unexercised Option a
stock option or capital stock of such surviving entity, as applicable, which on
an equitable basis shall provide the Optionee with substantially the same
economic benefit as such unexercised Option, then the Board may grant to such
Optionee, in its sole and absolute discretion and without obligation, the right
for a period commencing thirty (30) days prior to and ending immediately prior
to the date determined by the Board pursuant hereto for termination of the
Option or during the remaining term of the Option, whichever is the lesser, to
exercise any unexpired Option or Options without regard to the installment
provisions of Paragraph 6(d) of the Plan; provided, that any such right granted
shall be granted to all Optionees not receiving an offer to receive substitute
options on a consistent basis, and provided further, that any such exercise
shall be subject to the consummation of such Reorganization.
Subject to any required action of
shareholders, if the Company shall be the surviving entity in any merger or
consolidation, each outstanding Option thereafter shall pertain to and apply to
the securities to which a holder of shares of Stock equal to the shares subject
to the Option would have been entitled by reason of such merger or
consolidation.
In the event of a change in the Stock
of the Company as presently constituted, which is limited to a change of all of
its authorized shares without par value into the same number of shares with a
par value, the shares resulting from any such change shall be deemed to be the
Stock within the meaning of the Plan.
To the extent that the foregoing
adjustments relate to stock or securities of the Company, such adjustments shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided in this Section 5(i), the
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class, and the
number or price of shares of Stock subject to any Option shall not be affected
by, and no adjustment shall be made by reason of, any dissolution, liquidation,
merger, consolidation or sale of assets or capital stock, or any issue by the
Company of shares of stock of any class or securities convertible into shares of
stock of any class.
- 8
- -
The Grant of an Option pursuant to the
Plan shall not affect in any way the right or power of the Company to make any
adjustments, reclassifications, reorganizations or changes in its capital or
business structure or to merge, consolidate, dissolve, or liquidate or to sell
or transfer all or any part of its business or assets.
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(j)
|
Rights as a
Shareholder: An Optionee shall have no rights as a
shareholder with respect to any shares covered by an Option until the
effective date of the issuance of the shares following exercise of such
Option by Optionee. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the
date such stock certificate is issued, except as expressly provided in
Section 5(i) hereof.
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|
(k)
|
Modification,
Acceleration, Extension, and Renewal of Options: Subject
to the terms and conditions and within the limitations of the Plan, the
Board may modify an Option, or, once an Option is exercisable, accelerate
the rate at which it may be exercised, and may extend or renew outstanding
Options granted under the Plan or accept the surrender of outstanding
Options (to the extent not theretofore exercised) and authorize the
granting of new Options in substitution for such Options, provided such
action is permissible under Section 422 of the Code and applicable state
securities laws. Notwithstanding the provisions of this Section 5(k),
however, no modification of an Option shall, without the consent of the
Optionee, alter to the Optionee's detriment or impair any rights or
obligations under any Option theretofore granted under the
Plan.
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|
(l)
|
Exercise Before
Exercise Date: At the discretion of the Board, the
Option may, but need not, include a provision whereby the Optionee may
elect to exercise all or any portion of the Option prior to the stated
exercise date of the Option or any installment thereof. Any shares so
purchased prior to the stated exercise date shall be subject to repurchase
by the Company upon termination of Optionee's employment as contemplated
by Section 5(n) hereof prior to the exercise date stated in the Option and
such other restrictions and conditions as the Board or Committee may deem
advisable.
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(m)
|
Other
Provisions: The Option agreements authorized under the
Plan shall contain such other provisions, including, without limitation,
restrictions upon the exercise of the Options, as the Board or the
Committee shall deem advisable. Shares shall not be issued pursuant to the
exercise of an Option, if the exercise of such Option or the issuance of
shares thereunder would violate, in the opinion of legal counsel for the
Company, the provisions of any applicable law or the rules or regulations
of any applicable governmental or administrative agency or body, such as
the Code, the Securities Act, the Exchange Act, applicable state
securities laws, Delaware corporation law, and the rules promulgated under
the foregoing or the rules and regulations of any exchange upon which the
shares of the Company are listed. Without limiting the generality of the
foregoing, the exercise of each Option shall be subject to the condition
that if at any time the Company shall determine that (i) the satisfaction
of withholding tax or other similar liabilities, or (ii) the listing,
registration or qualification of any shares covered by such exercise upon
any securities exchange or under any state or federal law, or (iii) the
consent or approval of any regulatory body, or (iv) the perfection of any
exemption from any such withholding, listing, registration, qualification,
consent or approval is necessary or desirable in connection with such
exercise or the issuance of shares thereunder, then in any such event,
such exercise shall not be effective unless such withholding, listing
registration, qualification, consent, approval or exemption shall have
been effected, obtained or perfected free of any conditions not acceptable
to the Company.
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- 9
- -
|
(n)
|
Repurchase
Agreement: The Board may, in its discretion, require as
a condition to the Grant of an Option hereunder, that an Optionee execute
an agreement with the Company, in form and substance satisfactory to the
Board in its discretion ("Repurchase Agreement"),
(i) restricting the Optionee's right to transfer shares purchased under
such Option without first offering such shares to the Company or another
shareholder of the Company upon the same terms and conditions as provided
therein; and (ii) providing that upon termination of Optionee's employment
with the Company, for any reason, the Company (or another shareholder of
the Company, as provided in the Repurchase Agreement) shall have the right
at its discretion (or the discretion of such other shareholders) to
purchase and/or redeem all such shares owned by the Optionee on the date
of termination of his or her employment at a price equal to: (A) the fair
value of such shares as of such date of termination; or (B) if such
repurchase right lapses at 20% of the number of shares per year, the
original purchase price of such shares, and upon terms of payment
permissible under the applicable state securities laws; provided that in
the case of Options or Stock Awards granted to officers, directors,
consultants or affiliates of the Company, such repurchase provisions may
be subject to additional or greater restrictions as determined by the
Board or Committee.
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6.
|
Stock
Awards and Restricted Stock Purchase
Offers.
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(a)
|
Types of
Grants.
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(i)
|
Stock
Award. All or part of any Stock Award under the Plan may
be subject to conditions established by the Board or the Committee, and
set forth in the Stock Award Agreement, which may include, but are not
limited to, continuous service with the Company, achievement of specific
business objectives, increases in specified indices, attaining growth
rates and other comparable measurements of Company performance. Such
Awards may be based on Fair Market Value or other specified
valuation.
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|
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(ii)
|
Restricted Stock
Purchase Offer. A Grant of a Restricted Stock Purchase
Offer under the Plan shall be subject to such (i) vesting contingencies
related to the Participant's continued association with the Company for a
specified time and (ii) other specified conditions as the Board or
Committee shall determine, in their sole discretion, consistent with the
provisions of the Plan.
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- 10
- -
|
(b)
|
Conditions and
Restrictions. Shares of Stock which Participants may
receive as a Stock Award under a Stock Award Agreement or Restricted Stock
Purchase Offer under a Restricted Stock Purchase Offer may include such
restrictions as the Board or Committee, as applicable, shall determine,
including restrictions on transfer, repurchase rights, right of first
refusal, and forfeiture provisions. When transfer of Stock is so
restricted or subject to forfeiture provisions it is referred to as "Restricted Stock".
Further, with Board or Committee approval, Stock Awards or Restricted
Stock Purchase Offers may be deferred, either in the form of installments
or a future lump sum distribution. The Board or Committee may permit
selected Participants to elect to defer distributions of Stock Awards or
Restricted Stock Purchase Offers in accordance with procedures established
by the Board or Committee to assure that such deferrals comply with
applicable requirements of the Code including, at the choice of
Participants, the capability to make further deferrals for distribution
after retirement. Any deferred distribution, whether elected by the
Participant or specified by the Stock Award Agreement, Restricted Stock
Purchase Offers or by the Board or Committee, may require the payment be
forfeited in accordance with the provisions of Section 6(c). Dividends or
dividend equivalent rights may be extended to and made part of any Stock
Award or Restricted Stock Purchase Offers denominated in Stock or units of
Stock, subject to such terms, conditions and restrictions as the Board or
Committee may establish.
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|
(c)
|
Cancellation and
Rescission of Grants. Unless the Stock Award Agreement
or Restricted Stock Purchase Offer specifies otherwise, the Board or
Committee, as applicable, may cancel any unexpired, unpaid, or deferred
Grants at any time if the Participant is not in compliance with all other
applicable provisions of the Stock Award Agreement or Restricted Stock
Purchase Offer, the Plan and with the following
conditions:
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|
|
(i)
|
A
Participant shall not render services for any organization or engage
directly or indirectly in any business which, in the judgment of the chief
executive officer of the Company or other senior officer designated by the
Board or Committee, is or becomes competitive with the Company, or which
organization or business, or the rendering of services to such
organization or business, is or becomes otherwise prejudicial to or in
conflict with the interests of the Company. For Participants whose
employment has terminated, the judgment of the chief executive officer
shall be based on the Participant's position and responsibilities while
employed by the Company, the Participant's post-employment
responsibilities and position with the other organization or business, the
extent of past, current and potential competition or conflict between the
Company and the other organization or business, the effect on the
Company's customers, suppliers and competitors and such other
considerations as are deemed relevant given the applicable facts and
circumstances. A Participant who has retired shall be free,
however, to purchase as an investment or otherwise, stock or other
securities of such organization or business so long as they are listed
upon a recognized securities exchange or traded over-the-counter, and such
investment does not represent a substantial investment to the Participant
or a greater than ten percent (10%) equity interest in the organization or
business.
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(ii)
|
A
Participant shall not, without prior written authorization from the
Company, disclose to anyone outside the Company, or use in other than the
Company's business, any confidential information or material, as defined
in the Company's Proprietary Information and Invention Agreement or
similar agreement regarding confidential information and intellectual
property, relating to the business of the Company, acquired by the
Participant either during or after employment with the
Company.
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- 11
- -
|
|
(iii)
|
A
Participant shall disclose promptly and assign to the Company all right,
title and interest in any invention or idea, patentable or not, made or
conceived by the Participant during employment by the Company, relating in
any manner to the actual or anticipated business, research or development
work of the Company and shall do anything reasonably necessary to enable
the Company to secure a patent where appropriate in the United States and
in foreign countries.
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(iv)
|
Upon
exercise, payment or delivery pursuant to a Grant, the Participant shall
certify on a form acceptable to the Committee that he or she is in
compliance with the terms and conditions of the Plan. Failure to comply
with all of the provisions of this Section 6(c) prior to, or during the
six months after, any exercise, payment or delivery pursuant to a Grant
shall cause such exercise, payment or delivery to be rescinded. The
Company shall notify the Participant in writing of any such rescission
within two years after such exercise, payment or delivery. Within ten days
after receiving such a notice from the Company, the Participant shall pay
to the Company the amount of any gain realized or payment received as a
result of the rescinded exercise, payment or delivery pursuant to a Grant.
Such payment shall be made either in cash or by returning to the Company
the number of shares of Stock that the Participant received in connection
with the rescinded exercise, payment or
delivery.
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(d)
|
Nonassignability.
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(i)
|
Except
pursuant to Section 6(e)(iii) and except as set forth in Section 6(d)(ii),
no Grant or any other benefit under the Plan shall be assignable or
transferable, or payable to or exercisable by, anyone other than the
Participant to whom it was granted.
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(ii)
|
Where
a Participant terminates employment and retains a Grant pursuant to
Section 6(e)(ii) in order to assume a position with a governmental,
charitable or educational institution, the Board or Committee, in its
discretion and to the extent permitted by law, may authorize a third party
(including but not limited to the trustee of a "blind" trust),
acceptable to the applicable governmental or institutional authorities,
the Participant and the Board or Committee, to act on behalf of the
Participant with regard to such
Awards.
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(e)
|
Termination of
Employment. If the employment or service to the Company
of a Participant terminates, other than pursuant to any of the following
provisions under this Section 6(e), all unexercised, deferred and unpaid
Stock Awards or Restricted Stock Purchase Offers shall be cancelled
immediately, unless the Stock Award Agreement or Restricted Stock Purchase
Offer provides otherwise:
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- 12
- -
|
|
(i)
|
Retirement Under a
Company Retirement Plan. When a Participant's employment
terminates as a result of retirement in accordance with the terms of a
Company retirement plan, the Board or Committee may permit Stock Awards or
Restricted Stock Purchase Offers to continue in effect beyond the date of
retirement in accordance with the applicable Grant Agreement and the
exercisability and vesting of any such Grants may be
accelerated.
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(ii)
|
Rights in the Best
Interests of the Company. When a Participant resigns
from the Company and, in the judgment of the Board or Committee, the
acceleration and/or continuation of outstanding Stock Awards or Restricted
Stock Purchase Offers would be in the best interests of the Company, the
Board or Committee may (i) authorize, where appropriate, the acceleration
and/or continuation of all or any part of Grants issued prior to such
termination and (ii) permit the exercise, vesting and payment of such
Grants for such period as may be set forth in the applicable Grant
Agreement, subject to earlier cancellation pursuant to Section 9 or at
such time as the Board or Committee shall deem the continuation of all or
any part of the Participant's Grants are not in the Company's best
interest.
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(iii)
|
Death or Disability of
a Participant.
|
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|
(1)
|
In
the event of a Participant's death, the Participant's estate or
beneficiaries shall have a period up to the expiration date specified in
the Grant Agreement within which to receive or exercise any outstanding
Grant held by the Participant under such terms as may be specified in the
applicable Grant Agreement. Rights to any such outstanding Grants shall
pass by will or the laws of descent and distribution in the following
order: (a) to beneficiaries so designated by the Participant; if none,
then (b) to a legal representative of the Participant; if none, then (c)
to the persons entitled thereto as determined by a court of competent
jurisdiction. Grants so passing shall be made at such times and in such
manner as if the Participant were
living.
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(2)
|
In
the event a Participant is deemed by the Board or Committee to be unable
to perform his or her usual duties by reason of mental disorder or medical
condition which does not result from facts which would be grounds for
termination for cause, Grants and rights to any such Grants may be paid to
or exercised by the Participant, if legally competent, or a committee or
other legally designated guardian or representative if the Participant is
legally incompetent by virtue of such
disability.
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(3)
|
After
the death or disability of a Participant, the Board or Committee may in
its sole discretion at any time (1) terminate restrictions in Grant
Agreements; (2) accelerate any or all installments and rights; and (3)
instruct the Company to pay the total of any accelerated payments in a
lump sum to the Participant, the Participant's estate, beneficiaries or
representative; notwithstanding that, in the absence of such termination
of restrictions or acceleration of payments, any or all of the payments
due under the Grant might ultimately have become payable to other
beneficiaries.
|
- 13
- -
|
|
(4)
|
In
the event of uncertainty as to interpretation of or controversies
concerning this Section 6, the determinations of the Board or Committee,
as applicable, shall be binding and
conclusive.
|
|
7.
|
Change
in Control. Unless
otherwise provided in the applicable Grant Agreement, in the event of a
Change in Control, 50% of the vesting restrictions applicable to each
Participant’s Grant(s) shall terminate fully and the Participant shall
immediately have the right to the delivery of share certificates or
exercise of Options, i.e. to the extent that a Participant’s Option(s) are
unvested, 50% of such unvested portion shall
vest.
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|
8.
|
Investment
Intent. All Grants under the Plan are intended to be exempt
from registration under the Securities Act provided by Rule 701
thereunder. Unless and until the granting of Options or sale and issuance
of Stock subject to the Plan are registered under the Securities Act or
shall be exempt pursuant to the rules promulgated thereunder, each Grant
under the Plan shall provide that the purchases or other acquisitions of
Stock thereunder shall be for investment purposes and not with a view to,
or for resale in connection with, any distribution thereof. Further,
unless the issuance and sale of the Stock have been registered under the
Securities Act, each Grant shall provide that no shares shall be purchased
upon the exercise of the rights under such Grant unless and until (i) all
then applicable requirements of state and federal laws and regulatory
agencies shall have been fully complied with to the satisfaction of the
Company and its counsel, and (ii) if requested to do so by the Company,
the person exercising the rights under the Grant shall (A) give written
assurances as to knowledge and experience of such person (or a
representative employed by such person) in financial and business matters
and the ability of such person (or representative) to evaluate the merits
and risks of exercising the Option, and (B) execute and deliver to the
Company a letter of investment intent and/or such other form related to
applicable exemptions from registration, all in such form and substance as
the Company may require. If shares are issued upon exercise of any rights
under a Grant without registration under the Securities Act, subsequent
registration of such shares shall relieve the purchaser thereof of any
investment restrictions or representations made upon the exercise of such
rights.
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|
9.
|
Amendment,
Modification, Suspension or Discontinuance of the Plan. The
Board may, insofar as permitted by law, from time to time, with respect to
any shares at the time not subject to outstanding Grants, suspend or
terminate the Plan or revise or amend it in any respect whatsoever, except
that without the approval of the shareholders of the Company, no such
revision or amendment shall (i) increase the number of shares subject to
the Plan, (ii) decrease the price at which Grants may be granted, (iii)
materially increase the benefits to Participants, or (iv) change the class
of persons eligible to receive Grants under the Plan; provided, however,
no such action shall alter or impair the rights and obligations under any
Option, or Stock Award, or Restricted Stock Purchase Offer outstanding as
of the date thereof without the written consent of the Participant
thereunder. No Grant may be issued while the Plan is suspended or after it
is terminated, but the rights and obligations under any Grant issued while
the Plan is in effect shall not be impaired by suspension or termination
of the Plan.
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In the
event of any change in the outstanding Stock by reason of a stock split, stock
dividend, combination or reclassification of shares, recapitalization, merger,
or similar event, the Board or the Committee may adjust proportionally (a) the
number of shares of Stock (i) reserved under the Plan, (ii) available for
Incentive Stock Options and Nonstatutory Options and (iii) covered by
outstanding Stock Awards or Restricted Stock Purchase Offers; (b) the Stock
prices related to outstanding Grants; and (c) the appropriate Fair Market Value
and other price determinations for such Grants. In the event of any other change
affecting the Stock or any distribution (other than normal cash dividends) to
holders of Stock, such adjustments as may be deemed equitable by the Board or
the Committee, including adjustments to avoid fractional shares, shall be made
to give proper effect to such event. In the event of a corporate merger,
consolidation, acquisition of property or stock, separation, reorganization or
liquidation, the Board or the Committee shall be authorized to issue or assume
stock options, whether or not in a transaction to which Section 424(a) of the
Code applies, and other Grants by means of substitution of new Grant Agreements
for previously issued Grants or an assumption of previously issued
Grants.
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10.
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Tax
Withholding. The Company shall have the right to deduct applicable taxes
from any Grant payment and withhold, at the time of delivery or exercise
of Options, Stock Awards or Restricted Stock Purchase Offers or vesting of
shares under such Grants, an appropriate number of shares for payment of
taxes required by law or to take such other action as may be necessary in
the opinion of the Company to satisfy all obligations for withholding of
such taxes. If Stock is used to satisfy tax withholding, such stock shall
be valued based on the Fair Market Value when the tax withholding is
required to be made.
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11.
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Availability
of Information. During the term of the Plan and any additional period
during which a Grant granted pursuant to the Plan shall be exercisable,
the Company shall make available, not later than one hundred and twenty
(120) days following the close of each of its fiscal years, such financial
and other information regarding the Company as is required by the bylaws
of the Company and applicable law to be furnished in an annual report to
the shareholders of the
Company.
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12.
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Notice.
Any written notice to the Company required by any of the provisions of the
Plan shall be addressed to the chief personnel officer or to the chief
executive officer of the Company, and shall become effective when it is
received by the office of the chief personnel officer or the chief
executive officer.
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13.
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Indemnification
of Board. In addition to such other rights or indemnifications as they may
have as directors or otherwise, and to the extent allowed by applicable
law, the members of the Board and the Committee shall be indemnified by
the Company against the reasonable expenses, including attorneys' fees,
actually and necessarily incurred in connection with the defense of any
claim, action, suit or proceeding, or in connection with any appeal
thereof, to which they or any of them may be a party by reason of any
action taken, or failure to act, under or in connection with the Plan or
any Grant granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by them in satisfaction of
a judgment in any such claim, action, suit or proceeding, except in any
case in relation to matters as to which it shall be adjudged in such
claim, action, suit or proceeding that such Board or Committee member is
liable for negligence or misconduct in the performance of his or her
duties; provided that within sixty (60) days after institution of any such
action, suit or Board proceeding the member involved shall offer the
Company, in writing, the opportunity, at its own expense, to handle and
defend the same.
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- 15
- -
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14.
|
Governing
Law. The Plan and all determinations made and actions taken pursuant
hereto, to the extent not otherwise governed by the Code or the securities
laws of the United States, shall be governed by the law of the State of
Delaware and construed
accordingly.
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15.
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Termination
Dates. The Plan shall terminate ten years later, subject to earlier
termination by the Board pursuant to Section
9.
|
The foregoing 3DIcon Corporation 2010
Equity Incentive Plan (consisting of 16 pages, including this page) was duly
adopted and approved by the Board of Directors on June 23, 2010.
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3DICON
CORPORATION
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||
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By:
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/s/ Martin Keating
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Name:
Martin Keating
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||
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Title:
Chief Executive Officer
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- 16
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EXHIBIT
5.1
SICHENZIA
ROSS FRIEDMAN FERENCE LLP
Attorneys
At Law
61
Broadway, 32nd
Floor
New York,
New York 10006
Telephone:
(212) 930-9700
Facsimile:
(212) 930-9725
June 24,
2010
VIA
ELECTRONIC TRANSMISSION
Securities
and Exchange Commission
100 F
Street, N.E.
Washington,
DC 20549
|
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3DIcon
Corporation
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|
|
Form
S-8 Registration Statement
|
Ladies
and Gentlemen:
We refer
to the above-captioned registration statement on Form S-8 (the “Registration
Statement”) under the Securities Act of 1933, as amended (the “Act”), filed by
3DIcon Corporation, an Oklahoma corporation (the “Company”), with the Securities
and Exchange Commission.
We have
examined the originals, photocopies, certified copies or other evidence of such
records of the Company, certificates of officers of the Company and public
officials, and other documents as we have deemed relevant and necessary as a
basis for the opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as certified copies or photocopies and the authenticity of the
originals of such latter documents.
Based on
our examination mentioned above, we are of the opinion that the securities being
registered to be sold pursuant to the Registration Statement are duly authorized
and will be, when sold in the manner described in the Registration Statement,
legally and validly issued, and fully paid and non-assessable.
We hereby
consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement and to the reference to our firm under “Legal Matters” in the related
Prospectus. In giving the foregoing consent, we do not hereby admit that we are
in the category of persons whose consent is required under Section 7 of the Act,
or the rules and regulations of the Securities and Exchange
Commission.
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Very
truly yours,
|
|
|
/s/ Sichenzia Ross Friedman
Ference
|
|
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Sichenzia
Ross Friedman Ference LLP
|
CONSENT
OF INDEPENDENT REGISTERED
PUBLIC
ACCOUNTING FIRM
We
consent to the incorporation by reference in the 3DIcon Corporation Registration
Statement on Form S-8 of our report, dated March 31, 2010, on the financial
statements of 3DIcon Corporation as of December 31, 2009 and 2008 and the
related statements of operations, changes in stockholders’ equity and cash flows
for the years then ended and period from inception (January 1, 2001) to December
31, 2009. Our report dated March 31, 2010, relating to the financial
statements includes an emphasis paragraph relating to an uncertainty as to the
Company's ability to continue as a going concern. We also consent to the
reference to our firm under the captions "Experts" in such
Prospectus.
/s/ HoganTaylor LLP
Tulsa,
Oklahoma
June 24,
2010