Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1 Registration Statement (General Form) HTML 1.07M
2: EX-10.1 Material Contract HTML 11K
10: EX-10.11 Material Contract HTML 401K
11: EX-10.12 Material Contract HTML 8K
12: EX-10.13 Material Contract HTML 10K
13: EX-10.14 Material Contract HTML 9K
14: EX-10.15 Material Contract HTML 67K
15: EX-10.16 Material Contract HTML 77K
16: EX-10.17 Material Contract HTML 50K
17: EX-10.18 Material Contract HTML 47K
18: EX-10.19 Material Contract HTML 36K
3: EX-10.2 Material Contract HTML 8K
4: EX-10.3 Material Contract HTML 8K
5: EX-10.4 Material Contract HTML 8K
6: EX-10.5 Material Contract HTML 15K
7: EX-10.6 Material Contract HTML 60K
8: EX-10.7 Material Contract HTML 48K
9: EX-10.9 Material Contract HTML 439K
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 formerly named ‘China Communications Corp.’
(“Accoona”), desires to attract and retain the best available talent and to
encourage the highest level of performance. The Accoona Corp. 2004 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”)
and
through the grant of restricted shares of the Common Stock (“Restricted
Stock”).
2.Administration.
(a)In
General.
Subject
to paragraph (b) hereof, 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 and/or Restricted Stock awards (“Awards”)
under
the Plan, to select from among eligible persons those individuals who will
be
receiving Awards, to determine whether each Award should be a Stock Option
or
Restricted Stock, to determine the number of shares of Common Stock covered
by
each Award, the Option exercise price per share of Common Stock covered by
each
Option (and, in connection therewith, determine the Fair Market Value of the
Common Stock for purposes of the Plan), and the restrictions, if any, which
shall apply to the Common Stock subject to an Award, to determine the terms
and
conditions of each Award, to approve the form of each Option agreement (an
“Option
Agreement”)
and
each Restricted Stock agreement (a “Restricted
Stock Agreement”),
to
amend any such Option Agreement or Restricted Stock Agreement from time to
time,
to construe and interpret the Plan and all Option Agreements and Restricted
Stock Agreements executed thereunder 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 and Restricted Stock,
and
subject only to the limits of applicable law, the Board shall be under no
obligation or duty to treat similarly situated grantees of an Option Agreement
(“Optionees”)
or
similarly situated grantees of an Restricted Stock Agreement (“Restricted
Stock 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 Option
Agreement or Restricted Stock 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), 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, an Option
Agreement, or a Restricted Stock 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 14(a), Awards may
be
granted only to employees and independent contractors of the Company. For
purposes hereof, the term “independent contractors” shall include consultants,
advisors and 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.
4.Common
Stock Available for Awards.
(a) Subject
to adjustment under Section 18 below, 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 its 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 Section 4(a). Shares issued under the
Plan may consist in whole or in part of authorized but unissued shares or
treasury shares of Common Stock.
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(b) Subject
to adjustment under Section 18 below, 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 year shall not exceed One Million (1,000,000).
(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 five years from the
date
of grant, subject to earlier termination as provided in Section 8. Subject
in
the case of ISOs to Section 14, 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.
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.
(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 24); (ii) in the
event that the Optionee’s employment with the Company shall terminate by reason
of 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 hereof, the Optionee shall be deemed to
have
a “Disability” if the Optionee is permanently and totally disabled, within the
meaning of Section 22(e) 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 14, 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, 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 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 24), payment of the exercise price may be
facilitated by an outside broker.
(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”).
4
(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.
The
terms and conditions of each Option shall be set forth in an Option Agreement
in
the form approved by the Board. Each Option Agreement shall be executed by
Accoona and the Optionee. Each Option Agreement shall, at a minimum, 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, (iii) the
provisions related to vesting and exercisability of the Option, including the
Option exercise price, and (iv) that the Option is subject to the terms and
provisions of the Plan and that in the event of any conflict between the Option
Agreement and the Plan, the Plan shall control. The Option Agreement may also
contain such other terms and conditions as the Board determines to be necessary
or advisable. Option Agreements may vary from one to another.
12.No
Stockholder Rights.
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 the 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.Nontransferability.
(a) Subject
to paragraphs (b) and (c), Options granted under the Plan shall not be
assignable or transferable other than by will or the laws of descent and
distribution and Options may be exercised during the lifetime of the Optionee
only by the Optionee or by the Optionee’s guardian or legal representative. In
the event of any attempt by an Optionee to transfer, assign, pledge, hypothecate
or otherwise dispose of an Option 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
Option by notice to the Optionee and it shall thereupon become null and
void.
(b) Notwithstanding
paragraph (a), if and only if (and on the terms) so provided in the applicable
Option Agreement, an Optionee may transfer a NSO, by gift or a domestic
relations order, to a Family Member of the Awardee (as defined in Section 24).
If a NSO is transferred in accordance with this subparagraph, the Option shall
be exercisable solely by the transferee, but the determination of the
exercisability of the Option shall be based solely on the activities and state
of affairs of the Optionee. Thus, for example, if after a transfer the Optionee
ceases to be an employee of the Company, such termination shall trigger the
provisions of Section 8 hereof. Conversely, if after a transfer the transferee
ceases to be an employee of the Company, such termination shall not trigger
the
provisions of Section 8 hereof.
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(c) Notwithstanding
paragraph (a) an Optionee may transfer an NSO with the express, written consent
of the Board (which consent may be withheld for any reason or for no
reason).
14.ISO
Provisions.
(a)Employment
Requirement.
ISOs
may only be awarded to employees of Accoona or a corporation which, with respect
to Accoona, is a “parent corporation” or “subsidiary corporation” within the
meaning of Code Sections 424(e) and (f), respectively. Furthermore, except
as
otherwise provided in Code Section 422, if an Optionee is no longer employed
by
Accoona or 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), the Option exercise price per share of Common Stock covered
by
an ISO shall be no 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 the Option 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 any ISO granted to
such
person 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.
(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 the Company) 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 exceeds the limit set
forth in paragraph (d) or otherwise does not comply with the requirements of
Code Section 422, it shall be treated as a NSO.
15.Restricted
Stock Grants.
(a) In
lieu
of granting a Stock Option hereunder, the Board may grant a Restricted Stock
Award entitling the award 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.
6
(b) Restricted
Stock Awards may only be made hereunder to persons to whom Options may be
granted, pursuant to Section 4, and shall be from the shares of Common Stock
authorized for issuance under the Plan, pursuant to Section 5.
(c) Shares
of
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered, except as permitted by the Board, before they vest. 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 is 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 any such tax obligations from any payment
of any kind otherwise due to the Participant.
16.Compliance
with Law; Registration of Shares.
(a) The
Plan
and any grant hereunder 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 Company’s counsel, may be required
or appropriate.
(b) Notwithstanding
any other provision of the Plan or Option Agreements or Restricted Stock
Agreements made pursuant hereto, 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
7
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 Option Agreement or Restricted Stock 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 federal or state
securities law or on any exchange.
17.No
Restriction on the Right of Accoona to Effect Corporate Changes.
The
Plan and the Options granted hereunder 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 its business, 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 whose rights 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 assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
18.Certain
Adjustments.
(a) In
the
event that Accoona or the division, subsidiary or other affiliated entity for
which an Optionee 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 Option shall be assumed, or a substantially equivalent
Option 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 Optionee, provide that the Option shall terminate
immediately prior to the consummation of the transaction unless exercised by
the
Optionee 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
Sales Price times 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.
(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 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 and (iv) 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.”
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(c) Any
and
all adjustments or actions taken by the Board pursuant to this Section shall
be
conclusive and binding for all purposes.
19.No
Right to Continued Employment.
Neither
the Plan 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.
20.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.
21.Effective
Date.
The
Plan shall be effective as of October 1, 2004 (the “Effective
Date”),
subject to the approval thereof 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.
22.Termination
of Plan.
Unless
terminated earlier by the Board in accordance with Section 20 above, the Plan
shall terminate on, and no further Awards may be granted after, the tenth
anniversary of the Effective Date.
23.Severability.
In the
event that any one or more provisions of the Plan an Option Agreement, or a
Restricted Stock Agreement, or any action taken pursuant to the Plan or an
Option Agreement or Restricted Stock 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, Option Agreement,
or Restricted Stock Agreement, but in such particular jurisdiction and instance
the Plan, Option Agreement and/or Restricted Stock 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.
24.Definitions.
(a)Cause.
The
term “Cause” when used herein in conjunction with termination of employment (or
other service relationship) 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 (1) intentional failure
to perform reasonably assigned duties, (2) dishonesty or willful misconduct
in
the performance of his duties, (3) involvement in a transaction which is
materially adverse to the Company, (4) breach of fiduciary duty involving
personal profit, (5) 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), (6) commission of an act
of
fraud or intentional misappropriation or conversion of any asset or opportunity
of the Company, or (7) material breach of any provision of the Plan, the
Awardee’s Option Agreement or Restricted Stock Agreement or any other written
agreement between the Awardee and the Company, in each case as determined in
good faith by the Board, whose determination shall be final, conclusive and
binding on all parties.
9
(b)Fair
Market Value.
As used
herein, 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 Option grant, may be set forth with greater
specificity in the applicable Option 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 of the Awardee.
As used
herein, “Family Member of the Awardee” 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.
(d)Publicly
Traded.
As used
herein, 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.
25.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.
26.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.
27.Governing
Law.
This
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.