Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
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2: EX-10.1 Material Contract HTML 11K
10: EX-10.11 Material Contract HTML 401K
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17: EX-10.18 Material Contract HTML 47K
18: EX-10.19 Material Contract HTML 36K
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4: EX-10.3 Material Contract HTML 8K
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19: EX-21 Subsidiaries of the Registrant HTML 10K
20: EX-23.1 Consent of Experts or Counsel HTML 10K
1.Purpose.
Accoona
Corp., a Delaware corporation (“Accoona”),
desires to attract and retain the best available talent and to encourage the
highest level of performance. The Accoona Corp. 2007 Equity Incentive Plan
(the
“Plan”)
is
intended to contribute significantly to the attainment of these objectives
by
affording eligible employees and independent contractors of Accoona and its
affiliates (whether or not incorporated) (collectively, with Accoona, the
“Company”)
the
opportunity to acquire a proprietary interest in Accoona through the grant
of
stock options (“Options”)
to
purchase shares of common stock, $.001 par value per share, of Accoona (the
“Common
Stock”),
the
grant of restricted shares of the Common Stock (“Restricted
Stock”)
and
the grant of stock appreciation rights with respect to the Common Stock
(“SARs”).
2.Administration.
(a)In
General.
Subject
to paragraph (b) of this Section 2, the Plan shall be administered by the board
of directors of Accoona (the “Board”).
The
Board shall have plenary authority in its discretion, to the maximum extent
permissible by law, subject to and not inconsistent with the express provisions
of the Plan, to make all Option, Restricted Stock and/or SAR awards
(“Awards”)
under
the Plan, to select from among eligible persons those individuals who will
be
receiving Awards, to determine whether an Award should be a Stock Option,
Restricted Stock or an SAR, to determine the number of shares of Common Stock
covered by each Award, to determine the Option exercise price per share of
Common Stock covered by each Option (and, in connection therewith, determine
the
Fair Market Value (as defined in Section 25) of the Common Stock for
purposes of the Plan), to determine the restrictions, if any, which shall apply
to the Common Stock subject to a Restricted Stock Award, to determine the terms
of each SAR, to determine the terms and conditions of each Award, to approve
the
form of each Option agreement (an “Option
Agreement”),
Restricted Stock agreement (a “Restricted
Stock Agreement”)
and
SAR agreement (an “SAR
Agreement”)
(collectively, “Award
Agreements”),
to
amend any Award Agreement from time to time, to construe and interpret the
Plan
and all Award Agreements executed under the Plan and to make all other
determinations necessary or advisable for the administration of the Plan.
In
exercising its authority to set the terms and conditions of Options, Restricted
Stock and SARs, and subject solely to the limits of applicable law, the Board
shall be under no obligation or duty to treat similarly-situated grantees under
an Option Agreement (“Optionees”),
Restricted Stock Agreement (“Restricted
Stock Awardees”)
or
(SAR Agreement “SAR
Awardees”)
(collectively, “Awardees”,
and
each individually an “Awardee”)
in the
same manner, and any action taken by the Board with respect to the grant of
an
Award to one Awardee shall in no way obligate the Board to take the same or
similar action with respect to any other Awardee. The Board may exercise its
discretion in a manner such that Awards that are granted to individuals who
are
foreign nationals or who are employed or provide services outside the United
States, contain terms and conditions that are different from the provisions
otherwise specified in the Plan but that are consistent with the tax and other
laws of foreign jurisdictions applicable to the Awardee and which are designed
to provide the Awardee with benefits that are consistent with the Company’s
objectives in establishing the Plan. The Board may adopt such rules as it deems
necessary or advisable in order to carry out the purpose of the Plan. All
questions of interpretation, administration and application of the Plan shall
be
determined by a majority of the members of the Board then in office, except
that
the Board may authorize any one or more of its members, or any officer of the
Company, to execute and deliver documents (including any applicable Award
Agreement) on behalf of the Board or Accoona. Any interpretation or
determination made by the Board pursuant to the foregoing shall be conclusive
and binding upon any person having or claiming any interest under the
Plan.
(b)Appointment
of Committee.
Notwithstanding paragraph (a) of this Section 2, the Board may appoint a
committee of not fewer than two members of the Board (the “Committee”)
and
transfer to the Committee some or all of its authority hereunder. If the Board
creates a Committee, the Board may from time to time appoint members of the
Committee in substitution for or in addition to members previously appointed
and
may fill vacancies, however caused, in the Committee. If and when the Common
Stock is registered under Section 12 of the Securities Exchange Act of 1934,
as
amended (the “Act”),
to
the extent necessary to comply with Rule 16b-3 under the Act with respect to
Awards to officers and directors, each member of the Committee shall be a
“non-employee director” within the meaning of Rule 16b-3 and, to the extent
necessary to exclude Awards granted under the Plan from the calculation of
the
income tax deduction limit under Section 162(m) of the Internal Revenue Code
of
1986, as amended (the “Code”),
each
member of the Committee shall be an “outside director” within the meaning of
Code Section 162(m). To the extent necessary to be consistent with the
provisions of this paragraph (b), any reference in the Plan or an Award
Agreement to a decision, determination or action of the Board shall be read
and
understood as referring to a decision, determination or action of the
Committee.
(c)Liability
of Board and Committee Members.
Except
as otherwise required by law, no member of the Board or the Committee shall
be
liable for anything whatsoever in connection with the administration of the
Plan
other than such member’s own willful misconduct. Under no circumstances shall
any member of the Board or the Committee be liable for any act or omission
of
any other member of the Board or the Committee. In the performance of its
functions with respect to the Plan, the Board and the Committee shall be
entitled to rely upon information and advice furnished by Accoona’s officers,
Accoona’s accountants, Accoona’s legal counsel and any other party the Board and
Committee deems necessary, and no member of the Board or Committee shall be
liable for any action taken or not taken in reliance upon any such
advice.
3.Eligible
Persons.
Subject
in the case of ISOs (as defined in Section 5) to Section 13(a), Awards may
be
granted solely to employees and independent contractors of the Company. For
purposes of the Plan, the term “independent contractors” shall include
consultants, advisors and non-employee directors of the Company. In determining
the persons to whom Awards shall be made and the number of shares to be covered
by each Award, the Board shall take into account the duties of the respective
persons, their present and potential contributions to the success of the Company
and such other factors as the Board, in its discretion, shall deem relevant
in
connection with accomplishing the purposes of the Plan.
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4.Common
Stock Available for Awards.
(a) Subject
to adjustment under Section 19, Awards may be made under the Plan for up to
Four
Million (4,000,000) shares of Common Stock. If any Award in respect of shares
of
Common Stock expires or is terminated unexercised or is forfeited for any reason
or settled in a manner that results in fewer shares outstanding than were
initially Awarded, the shares subject to such Award or so surrendered, as the
case may be, to the extent of such expiration, termination, forfeiture or
decrease, shall again be available for award under the Plan, subject, however,
in the case of ISOs, to any limitation required under the Code. If an Option
is
exercised in whole or in part by an Optionee by tendering previously owned
shares of Common Stock, or if any shares are withheld in connection with the
exercise of an Option to satisfy the Optionee’s tax liability, the full number
of shares in respect of which the Option has been exercised shall be applied
against the limit set forth in this paragraph(a). Shares issued under the Plan
may consist in whole or in part of authorized but unissued shares or treasury
shares of Common Stock.
(b) Subject
to adjustment under Section 19, if and when the Company is a “publicly held
corporation” within the meaning of Code Section 162(m), the maximum number of
shares of Common Stock as to which Awards may be granted to a single individual
in any calendar year shall not exceed Five Million (5,000,000)
shares.
(c) The
Board
may grant Awards under the Plan in substitution for stock and stock-based awards
held by employees of another corporation who concurrently become employees
of
the Company as a result of a merger or consolidation of the employing
corporation with the Company or the acquisition by the Company of property
or
stock of the employing corporation. The substitute Awards shall be granted
on
such terms and conditions as the Board considers appropriate in the
circumstances. The shares which may be delivered under such substitute Awards
shall be in addition to the maximum number of shares provided for in Section
4(a).
5.Type
of Options.
Options
granted under the Plan may be either incentive stock options (“ISOs”)
intended to meet the requirements of Code Section 422 or nonqualified stock
options (“NSOs”)
which
are not intended to meet such Code requirements.
6.Term
of Options.
The
term of each Option shall be fixed by the Board and specified in the applicable
Option Agreement, but in no event shall it be more than ten years from the
date
of grant, subject to earlier termination as provided in Section 8. Subject
in
the case of ISOs to Section 13, the term of an Option may be extended from
time
to time by the Board, provided that no such extension shall extend the term
beyond ten years from the date of grant.
7.Vesting
of Options.
The
Board shall determine the vesting schedule applicable to a particular Option
grant and specify the vesting schedule in the applicable Option Agreement.
Notwithstanding the foregoing the Board may accelerate the vesting of an Option
at any time.
8.Effect
on Options of Termination of Relationship to the Company.
(a)Options
Granted To Employees.
With
respect to an Option granted to an individual who is an employee of the Company
at the time of Option grant, unless the Option Agreement expressly provides
to
the contrary, (i) the Option shall terminate immediately upon the Optionee’s
termination of employment for Cause (as defined in Section 25); (ii) in the
event that the Optionee’s employment with the Company shall terminate by reason
of the Optionee’s death or Disability (as hereinafter defined), the unvested
portion of the Option shall terminate immediately and the vested portion of
the
Option shall terminate one year following such termination of employment (but
shall not continue to vest during such one year period); and (iii) in the event
that the Optionee’s employment with the Company shall terminate for any other
reason, the unvested portion of the Option shall terminate immediately and
the
vested portion of the Option shall terminate three months after such termination
of employment (but shall not continue to vest during such three month period);
provided,
however,
that in
the event that the Optionee is subject to any non-compete or confidentiality
agreement which he or she violates, the Option shall immediately terminate
upon
such violation. Notwithstanding anything herein to the contrary, in no event
shall an Option remain exercisable beyond the expiration date specified in
the
applicable Option Agreement. An Option Agreement may contain such provisions
as
the Board shall approve with reference to the determination of the date
employment terminates for purposes of the Plan and the effect of leaves of
absence, which provisions may vary from one Option Agreement to another. For
purposes of the Plan, an Optionee shall be deemed to have a “Disability” if the
Optionee is disabled for purposes of Section 409A(2)(C) of the
Code.
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(b)Options
Granted to Independent Contractors.
With
respect to an Option granted to an individual who is not an employee of the
Company at the time of Option grant, the Board shall determine and specify
in
the applicable Option Agreement the consequences, if any, of the termination
of
the Optionee’s relationship with the Company.
9.Option
Exercise Price.
Subject
in the case of ISOs to Section 13, the Option exercise price per share of Common
Stock covered by an Option shall be established by the Board.
10.Exercise
of Options.
(a) An
Option
may be exercised at any time and from time to time, in whole or in part, as
to
any or all full shares as to which the Option is then exercisable; provided,
however,
that if
so specified in the Option Agreement, the Option may not, in a single exercise,
be exercised for fewer than the minimum number of shares specified in the Option
Agreement, unless the exercise is for all of the shares as to which the Option
is then exercisable. An Option may not be exercised with respect to a fractional
share. If an Option is exercised with respect to all of the whole shares as
to
which the Option is exercisable, and the Option remains exercisable with respect
to less than one share of Common Stock, the Option shall immediately and without
any further action by the Company or the Optionee be cancelled with respect
to
the remaining fractional share, without any consideration being paid by the
Company. An Optionee (or other person who, pursuant to Section 13, may exercise
the Option) shall exercise the Option by delivering to Accoona at the address
provided in the Option Agreement a written, signed notice of exercise, stating
the number of shares of Common Stock with respect to which the Option exercise
is being made, and satisfy the requirements of paragraph (b) of this Section
10.
Upon receipt by Accoona of any notice of exercise of an Option, the exercise
of
the Option as set forth in that notice shall be irrevocable.
(b) Upon
exercise of an Option the Optionee shall pay to Accoona the Option exercise
price per share of Common Stock, multiplied by the number of full shares as
to
which the Option is then being exercised. An Optionee may pay the Option
exercise price by tendering or causing to be tendered in cash, by delivery
of
shares of Common Stock owned by the Optionee for at least six months preceding
the date of exercise of the Option (or such shorter or longer period as the
Board may approve or require from time to time) having a Fair Market Value
equal
to the exercise price, or other property permitted by law and acceptable to
the
Board or any other method of payment that is satisfactory to the Board
(including, if so specified in the Option Agreement, a cashless exercise),
or
any combination thereof. Without limiting the foregoing, after the Common Stock
becomes Publicly Traded (as defined in Section 25), payment of the exercise
price may be facilitated by an outside broker.
4
(c) An
Optionee shall, upon notification of the amount due and prior to or concurrently
with delivery of the certificate representing the shares as to which the Option
has been exercised, promptly pay or cause to be paid the amount determined
by
the Board as necessary to satisfy all applicable tax and other withholding
requirements. An Optionee may satisfy his withholding requirement in any manner
satisfactory to the Board.
(d) If
at the
time of Option exercise (i) the Common Stock is not Publicly Traded and (ii)
the
Optionee is so requested by Accoona, prior to or concurrently with delivery
of
the certificate representing the shares as to which the Option has been
exercised, the Optionee shall become a party to a stockholders agreement between
stockholders of Accoona and Accoona (a “Stockholders
Agreement”).
(e) The
certificate representing the shares as to which an Option has been exercised
shall bear an appropriate legend setting forth the restrictions applicable
to
such shares.
11.Option
Agreement.
Each
Option Agreement shall specify (i) the number of shares of Common Stock
subject to the Option, (ii) whether the Option is intended to be an ISO or
NSO and (iii) the provisions related to vesting and exercisability of the
Option, including the Option exercise price.
12.No
Stockholder Rights for Optionees.
No
Optionee shall have the rights of a stockholder with respect to shares covered
by an Option until such person becomes the holder of record of such shares.
If
in connection with an exercise of an Option the Optionee pays all or a portion
of the Option exercise price with shares of Common Stock, the Optionee shall
continue to be the stockholder of record with respect to the shares which he
has
tendered as exercise payment until the Optionee becomes the holder of record
of
the shares of Common Stock to be acquired upon such exercise.
13.ISO
Provisions.
(a)Employment
Requirement.
ISOs
may be awarded solely to employees of Accoona or a corporation which, with
respect to Accoona, is a “parent corporation” or “subsidiary corporation,” each
within the meaning of Code Section 424(e) and (f), respectively. Furthermore,
except as otherwise provided in Code Section 422, if an Optionee is no longer
employed by Accoona or such a parent corporation or subsidiary corporation
of
Accoona, the Optionee’s Option shall cease to be treated as an ISO.
(b)Option
Exercise Price.
Subject
to paragraph (c) of this Section 13, the Option exercise price per share of
Common Stock covered by an ISO shall be not less than the Fair Market Value
of a
share of Common Stock on the date of grant of the Option.
(c)10%
Stockholders.
In the
case of an individual who at the time an ISO is granted owns stock possessing
more than 10% of the total combined voting power of all classes of the stock
of
Accoona or of a parent or subsidiary corporation of Accoona, (i) the Option
exercise price of the Common Stock covered by such ISO shall in no event be
less
than 110% of the Fair Market Value of the Common Stock on the date the ISO
is
granted, and (ii) the term of an ISO granted to such person may not exceed
five
years from the date of grant.
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(d)$100,000
Limit.
The
aggregate Fair Market Value (determined at the time an ISO is granted) of the
Common Stock covered by ISOs exercisable for the first time by an employee
during any calendar year (under all plans of Accoona or of a parent or
subsidiary corporation of Accoona) may not exceed $100,000.
(e)Options
Which Do Not Satisfy ISO Requirements.
To the
extent that any Option which is issued under the Plan as an ISO exceeds the
limit set forth in paragraph (d) of this Section 13 or otherwise does not
comply with the applicable requirements of Code Section 422, such Option shall
automatically thereupon become an NSO.
14.Restricted
Stock Grants.
(a) The
Board
may grant Restricted Stock Awards under the Plan entitling the recipient to
acquire shares of Common Stock, subject to the right of the Company to
repurchase all or part of such shares at their purchase price (or to require
forfeiture of such shares if awarded at no cost) from the Restricted Stock
Awardee in the event that the conditions specified by the Board in the
applicable Restricted Stock Agreement are not satisfied prior to the end of
the
vesting period established by the Board for such Award. Conditions for
repurchase (or forfeiture) may be based on continuing employment or service
or
achievement of pre-established performance or other goals and objectives. A
Restricted Stock Award may be conditioned on (i) the recipient becoming a party
to a Stockholders Agreement, and/or (ii) the recipient making a timely election
under Section 83(b) of the Code.
(b) Restricted
Stock Awards may only be made under the Plan to persons eligible pursuant to
Section 3, and shall be with shares of Common Stock authorized for issuance
under the Plan pursuant to Section 4.
(c) Shares
of
Restricted Stock shall be evidenced in such manner as the Board may determine.
Any certificates issued in respect of shares of Restricted Stock shall (i)
be
registered in the name of the Restricted Stock Awardee, (ii) unless otherwise
determined by the Board, be deposited, together with a stock power endorsed
in
blank, with the Company (or its designee) and (iii) bear a legend reflecting
limitations and restrictions applicable to such shares.
(d) At
the
expiration of the vesting period, the Company (or such designee) shall deliver
such certificates to the Restricted Stock Awardee or, if the Restricted Stock
Awardee has died, to the executor of the Restricted Stock Awardee’s estate.
After they vest, shares of Restricted Stock shall remain subject to such
restrictions as are set forth in the applicable Restricted Stock Agreement
and,
if the recipient is a party to a Stockholders Agreement, the Stockholders
Agreement, as well as restrictions applicable under the securities law (and,
if
they are listed on an exchange, applicable listing requirements).
(e) The
purchase price for each share of Restricted Stock shall be determined by the
Board and may be zero. Any purchase price may be paid in cash or such other
lawful consideration as shall be determined by the Board, including past
services.
(f) A
Restricted Stock Awardee shall pay to the Company, or make provision
satisfactory to the Board for payment of, any taxes required by law to be
withheld in respect of a Restricted Stock Award no later than the date of the
event creating the tax liability. In the Board’s discretion, and subject to such
conditions as the Board may establish, such tax obligations may be paid in
whole
or in part in shares of Common Stock, including shares retained from the Award
creating the tax obligation, valued at their Fair Market Value. The Company
may,
to the extent permitted by law, deduct an amount equal to any such tax
obligations from any payment of any kind otherwise due from the Company to
the
Awardee.
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15.Stock
Appreciation Rights.
(a) The
Board
may grant SARs under the Plan. The terms and conditions of an SAR Award shall
be
set forth in the applicable SAR Agreement, including:
(i) The
base
value (the “Base
Value”)
for
the SAR; which for purposes of an SAR which is not a Tandem SAR (defined below),
shall be equal to the Fair Market Value of a share of Common Stock on the date
of grant of the SAR;
(ii) The
number of shares of Common Stock subject to the SAR;
(iii) The
period during which the SAR may be exercised by the Awardee; and
(iv) Any
other
special rules and/or requirements which the Board imposes upon the
SAR.
If
the
Board grants an SAR in connection with a related Option, the exercise of which
shall result in forfeiture of the entitlement otherwise to exercise the Option
with respect to the same number of shares of Common Stock under the related
Option (“Tandom
SAR”),
the
following special rules shall apply:
(i) The
Base
Value shall be equal to the exercise price of the related Option;
(ii) The
Tandem SAR may be exercised for all or part of the shares of Common Stock which
are subject to the related Option, but solely upon the surrender by the Awardee
of the Awardee’s right to exercise the equivalent portion of the related Option
(and when a share of Common Stock is purchased under the related Option, an
equivalent portion of the related Tandem SAR shall be cancelled);
(iii) The
Tandem SAR shall expire no later than the date of the expiration of the related
Option;
(iv) The
value
of the payment with respect to the Tandem SAR may be no more than one hundred
percent (100%) of the difference between the exercise price under the related
Option and the Fair Market Value of the shares of Common Stock subject to the
related Option at the time the Tandem SAR is exercised; and
(v) The
Tandem SAR may be exercised solely when the Fair Market Value of the shares
of
Common Stock subject to the related Option exceeds the exercise price under
the
related Option.
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(b) Upon
the
exercise of some or all of the portion of an SAR, the Awardee shall as soon
as
reasonably practicable receive a payment from Accoona, in cash or in the form
of
shares of Common Stock having an equivalent Fair Market Value, or in a
combination of both, as determined in the sole discretion of the Board and
either as set forth in the SAR Agreement or as the Board may determine at the
time of exercise, and subject to all applicable withholdings, equal to the
product of:
(i) The
excess of (A) the Fair Market Value of a share of the Common Stock on the date
of exercise of the SAR, over (B) the Base Value of the SAR, multiplied
by;
(ii) The
number of shares of Common Stock with respect to which the SAR is
exercised.
(c) Except
as
may be provided otherwise, upon the termination of an Awardee’s employment or
service as an independent contractor, consultant, advisor or non-employee
director, as applicable, with respect to the Company, including on account
of
the Awardee’s death or Disability, all of such Awardee’s then unexercised SARs
shall be immediately forfeited thereby with no further consideration being
paid
on account thereof.
16.Nontransferability
of Awards.
(a) Subject
to paragraphs (b) and (c) of this Section 16, Awards granted under the Plan
shall not be assignable or transferable, other than by will or the laws of
descent and distribution, and Awards may be exercised during the lifetime of
the
Awardee solely by the Awardee, or by the Awardee’s guardian or legal
representative. In the event of any attempt by an Awardee to transfer, assign,
pledge, hypothecate or otherwise dispose of an Award or any right thereunder,
except as provided for herein, or in the event of the levy of any attachment,
execution or similar process upon the rights or interest hereby conferred,
Accoona may terminate the Award by notice to the Awardee and it shall thereupon
become null and void.
(b) Notwithstanding
paragraph (a) of this Section 16, if and only if (and on the terms) so
provided in the applicable Award Agreement, an Awardee may transfer an NSO,
an
SAR which is not a Tandem SAR to an ISO or Restricted Stock, by gift or a
domestic relations order, to a Family Member (as defined in Section 25) of
the
Awardee. If an NSO or an SAR which is not a Tandem SAR to an ISO is transferred
in accordance with this paragraph (b), such NSO or SAR, as the case may be,
shall be exercisable solely by the transferee, but the determination of the
exercisability of the NSO or SAR shall be based solely on the activities and
state of affairs of the Awardee. Thus, for example, if after a transfer of
an
NSO by an Optionee the Optionee ceases to be an employee of the Company, such
termination shall trigger the provisions of Section 8. Conversely, if after
such
a transfer the transferring Optionee ceases to be an employee of the Company,
such termination shall not trigger the provisions of Section 8.
(c) Notwithstanding
paragraph (a) of this Section 16, an Optionee may transfer an NSO, an SAR
which is not a Tandem SAR to an ISO or Restricted Stock with the express written
consent of the Board (which consent may be withheld for any reason or for no
reason).
(d) In
all
cases, ISOs and Tandem SARs to ISOs shall not be assignable or transferable,
other than by will or the laws of descent and distribution, and may be exercised
during the lifetime of the Awardee or Optionee, as applicable solely by the
Awardee or Optionee, as applicable, or by the Awardee’s or Optionee’s, as
applicable, guardian or legal representative.
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17.Compliance
with Law; Registration of Shares.
(a) The
Plan
and all Awards under the Plan shall be subject to all applicable laws, rules
and
regulations of any applicable jurisdiction or authority or agency thereof and
to
such approvals by any regulatory or governmental authority or agency or
securities exchange which, in the opinion of the Company’s counsel, may be
required or appropriate.
(b) Notwithstanding
any other provision of the Plan or of any Award Agreement, the Company shall
not
be required to issue or deliver any certificate or certificates for shares
of
Common Stock under the Plan prior to fulfillment of all of the following
conditions:
(i) Effectiveness
of any registration or other qualification of such shares of the Company under
any law or regulation of any applicable jurisdiction or authority or agency
thereof which the Board shall, in its absolute discretion or upon the advice
of
counsel, deem necessary or advisable; and
(ii) Grant
of
any other consent, approval or permit from any applicable jurisdiction or
authority or agency thereof or securities exchange which the Board shall, in
its
absolute discretion or upon the advice of counsel, deem necessary or
advisable.
The
Company shall use all reasonable efforts to obtain any consent, approval or
permit described above; provided,
however,
that
except to the extent as may be specifically required in an Award Agreement
with
respect to any particular Award, the Company shall be under no obligation to
register or qualify any shares subject to an Award under any domestic or
foreign, federal or state securities law or on any exchange.
18.No
Restriction on the Right of Accoona to Effect Corporate Changes.
The
Plan and the Awards granted under the Plan shall not affect in any way the
right
or power of Accoona or its stockholders to make or authorize any or all
adjustments, recapitalization, reorganizations or other changes in Accoona’s or
the Company’s capital structure or their businesses, or any merger or
consolidation of Accoona or the Company, or any issue of stock or of options,
warrants or rights to purchase stock or of bonds, debentures, preferred or
prior
preference stocks, the rights with respect to which are superior to or affect
the Common Stock or the rights of holders thereof or which are convertible
into
or exchangeable for Common Stock, or the dissolution or liquidation of Accoona
or the Company, or any sale or transfer of all or any part of its or their
assets or businesses, or any other corporate act or proceeding, whether of
a
similar character or otherwise.
19.Certain
Adjustments.
(a) In
the
event that Accoona or the division, subsidiary or other affiliated entity for
which an Awardee performs services is sold (including a stock or an asset sale),
spun off, merged, consolidated, reorganized or liquidated, the Board may
determine that (i) the Award shall be assumed, or a substantially equivalent
Award shall be substituted, by an acquiring or succeeding entity (or an
affiliate thereof) on such terms as the Board determines to be appropriate;
(ii)
upon written notice to the Awardee, provide that the Award shall terminate
immediately prior to the consummation of the transaction unless, to the extent
applicable, the Award is exercised by the Awardee within a specified period
following the date of the notice; (iii) in the event of a sale or similar
transaction under the terms of which holders of Common Stock receive a payment
for each share of Common Stock surrendered in the transaction (the “Sales
Price”),
make
or provide for a payment to each Optionee equal to the amount by which (A)
the
product of the Sales Price multiplied by the number of shares of Common Stock
subject to the Option (to the extent such Option is then exercisable) exceeds
(B) the aggregate exercise price for all such shares of Common Stock; or (iv)
may make such other equitable adjustments as the Board deems
appropriate.
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(b) In
the
event of any stock dividend or split, recapitalization, combination, exchange
or
similar change affecting the Common Stock, or any other increase or decrease
in
the number of issued shares of Common Stock effected without receipt of
consideration by the Company, the Board shall make any or all of the following
adjustments as it deems appropriate to equitably reflect such event:
(i) adjust the aggregate number of shares (or such other security as is
designated by the Board) which may be acquired pursuant to the Plan,
(ii) adjust the Option exercise price to be paid for any or all such shares
subject to the then outstanding Options, (iii) adjust the number of shares
of Common Stock (or such other security as is designated by the Board) subject
to any or all of the then outstanding Awards, (iv) adjust the maximum number
of
shares of Common Stock referred to in Section 4(b) and (v) make any other
equitable adjustments or take such other equitable action as the Board, in
its
discretion, shall deem appropriate. For purposes hereof, the conversion of
any
convertible securities of the Company shall not be deemed to have been “effected
without receipt of consideration.”
(c) Any
and
all adjustments or actions taken by the Board pursuant to this Section 19
shall be conclusive and binding for all purposes.
20.No
Right to Continued Employment or Consultancy.
None of
the Plan, the terms of any Award Agreement nor any action taken hereunder shall
be construed as giving any employee or any independent contractor any right
to
continue in the employ of or to be engaged as an independent contractor by
the
Company or affect the right of the Company to terminate such person’s employment
or other relationship with the Company at any time.
21.Amendment;
Early Termination.
The
Board may at any time and from time to time alter, amend, suspend or terminate
the Plan in whole or in part; provided,
however,
that no
amendment requiring stockholder approval by law, rules or regulations, or by
the
rules of any stock exchange, inter-dealer quotation system, or other market
in
which shares of Common Stock are traded, shall be effective unless and until
such stockholder approval has been obtained in compliance with such rule or
law;
and provided,
further,
that no
such amendment shall materially adversely affect the rights of an Awardee in
any
Award previously granted under the Plan without the Awardee’s written
consent.
22.Effective
Date.
The
Plan shall be effective as of January1,
2007
(the “Effective
Date”),
subject to its approval by the stockholders of Accoona entitled to vote thereon
within 12 months of such date. In the event that such stockholder approval
is
not obtained within such time period, the Plan and any Award granted under
the
Plan on or prior to the expiration of such 12-month period shall be void and
of
no further force and effect.
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23.Termination
of Plan.
Unless
terminated earlier by the Board in accordance with Section 21, the Plan shall
terminate on, and no further Awards may be granted after, the tenth anniversary
of the Effective Date.
24.Severability.
In the
event that any one or more provisions of the Plan or an Award Agreement, or
any
action taken pursuant to the Plan or an Award Agreement, should, for any reason,
be unenforceable or invalid in any respect under the laws of the United States,
any state of the United States or any other jurisdiction, such unenforceability
or invalidity shall not affect any other provision of the Plan or the Award
Agreement, but in such particular jurisdiction and instance the Plan and/or
the
Award Agreement, as applicable, shall be construed as if such unenforceable
or
invalid provision had not been contained therein or if the action in question
had not been taken thereunder.
25.Definitions.
(a)Cause.
For
purposes of the Plan, when used in conjunction with an Awardee’s termination of
employment (or other service relationship), the term “Cause”
means
(i) if the Awardee is a party to an employment or similar agreement with the
Company which defines “cause” (or a similar term), the meaning set forth in such
agreement (other than death or Disability), or (ii) otherwise, termination
by
the Company of the employment (or other service relationship) of the Awardee
by
reason of the Awardee’s (A) intentional failure to perform reasonably assigned
duties, (B) dishonesty or willful misconduct in the performance of his duties,
(C) involvement in a transaction which is materially adverse to the Company,
(D)
breach of fiduciary duty involving personal profit, (E) willful violation of
any
law, rule, regulation or court order (other than misdemeanor traffic violations
and misdemeanors not involving misuse or misappropriation of money or property),
(F) commission of an act of fraud or intentional misappropriation or conversion
of any asset or opportunity of the Company, or (G) material breach of any
provision of the Plan or the Awardee’s Award Agreement or any other written
agreement between the Awardee and the Company, in each case as determined in
good faith by the Board, the determination of which shall be final, conclusive
and binding on all parties.
(b)Fair
Market Value.
For
purposes of the Plan, the term “Fair
Market Value”
means,
with respect to Common Stock on any given date, the closing sales price of
the
Common Stock for such date (or, in the event that the Common Stock is not traded
on such date, on the immediately preceding trading date) on the Nasdaq Stock
Market or a domestic or foreign national securities exchange (including London’s
Alternative Investment Market) on which the Common Stock may be listed, as
reported in The Wall Street Journal. If the Common Stock is not listed on the
Nasdaq Stock Market or on a national securities exchange, but is quoted on
the
OTC Bulletin Board or by the National Quotation Bureau, the Fair Market Value
of
the Common Stock shall be the mean of the bid and asked prices per share of
the
Common Stock for such date. If the Common Stock is not quoted or listed as
set
forth above, Fair Market Value shall be determined by the Board in good faith
by
any fair and reasonable means (which means, with respect to a particular Award
grant, may be set forth with greater specificity in the applicable Award
Agreement). The Fair Market Value of property other than Common Stock shall
be
determined by the Board in good faith by any fair and reasonable
means.
(c)Family
Member.
For
purposes of the Plan, “Family
Member”
means
the Awardee’s lineal descendant, stepchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, any person sharing the Awardee’s household (other than a
tenant or employee), a trust in which the Awardee and/or these persons have
more
than 50% of the beneficial interest, a foundation in which these persons (or
the
Awardee) control the management of assets, and any other entity in which these
persons (or the Awardee) own more than 50% of the voting interests.
11
(d)Publicly
Traded.
For
purposes of the Plan, Common Stock is “Publicly
Traded”
if
stock of that class is listed or admitted to unlisted trading privileges on
a
domestic or foreign national securities exchange (including London’s Alternative
Investment Market) or on the Nasdaq National Market or if sales or bid and
offer
quotations are reported for that class of stock in the automated quotation
system operated by the National Association of Securities Dealers,
Inc.
26.Transfers
to and from Affiliates.
For all
Plan purposes, a transfer of an employee from Accoona to an Accoona affiliate
or
visa versa, or a transfer from one Accoona affiliate to another, will not be
treated as a termination of employment.
27.Headings.
The
headings of sections and subsections herein are included solely for convenience
of reference and shall not affect the meaning of any of the provisions of the
Plan.
28.Governing
Law.
The
Plan and all rights hereunder shall be construed in accordance with and governed
by the internal laws of the State of New York, except to the extent that the
General Corporation Law of the State of Delaware is mandatorily
applicable.
29.Award
Agreements.
The
terms and conditions of each Award shall be set forth in an Award Agreement
in
the form approved by the Board. Each Award Agreement shall be executed by
Accoona and the Awardee. Each Award Agreement shall provide that the Award
shall
be subject to the terms and provisions of the Plan and that in the event of
any
conflict between the terms of the Award Agreement and those of the Plan, the
terms of the Plan shall control. An Award Agreement may also contain such other
terms and conditions as the Board determines to be necessary or advisable.
Award
Agreements may vary from one to another.