SCHEDULE 14C
 
(Rule 14c-101)
 
SCHEDULE 14C INFORMATION
 

Information Statement Pursuant to Section 14(c) of the Securities Exchange Act of 1934
 

Check the appropriate box:
 
   
¨
 
Preliminary Information Statement
¨
 
Confidential, for use of the Commission Only (as permitted by Rule 14c-5(d)(2))
x
 
Definitive Information Statement


 
OMNI U.S.A., Inc.
 
 
(Name of Registrant as Specified in its Charter)
 

Payment of Filing Fee (Check the appropriate box)
     
x
No fee required
 
¨
Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11
 
 
 
(1)
 
 
Title of each class of securities to which transaction applies:
 
 
 
(2)
 
 
Aggregate number of securities to which transaction applies:
 
 
 
(3)
 
 
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
 
 
 
(4)
 
 
Proposed maximum aggregate value of transaction:
 
 
 
(5)
 
 
Total fee paid:
 
 
 
¨
 
 
Fee paid previously with preliminary materials.
 
 
¨
 
 
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
 
 
(1)
 
Amount Previously Paid:
 
(2)
Form, Schedule or Registration Statement No.:
 
(3)
Filing Party:
 
(4)
Date Filed:
 

 


 
OMNI U.S.A., INC. 
2236 Rutherford Road, Suite 107
Carlsbad, California 92008
(760) 929-7500
 
INFORMATION STATEMENT
 
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. THE ACTIONS DESCRIBED IN THIS INFORMATION STATEMENT HAVE ALREADY BEEN APPROVED BY OUR STOCKHOLDERS. A VOTE OF THE REMAINING STOCKHOLDERS IS NOT NECESSARY.
 
This Information Statement is being furnished to the stockholders of record of Omni U.S.A., Inc. (“we” or the “Company”) as of June 15, 2006 (the “Record Date”) to advise them that the Board of Directors and stockholders of the Company have approved an amendment (the “Amendment”) to our Articles of Incorporation and adopted a 2006 Equity Incentive Plan (the “Plan”). The Amendment, when filed with the Nevada Secretary of State, will change our name to “Brendan Technologies, Inc.”. Stockholder approval was by written consent of stockholders who own shares representing 54% of the outstanding votes as of the Record Date. This Information Statement is being mailed commencing July 24, 2006.
 
A copy of the Certificate of Amendment containing the Amendment is attached to this Information Statement as Appendix A. A copy of the Plan is attached to this Information Statement as Appendix B.
 
Pursuant to regulations promulgated under the Securities Exchange Act of 1934, as amended, the Amendment may not be effected until at least 20 calendar days after this Information Statement is sent or given to our stockholders. We anticipate that the Amendment will be filed promptly following the 20th day after this Information Statement is first sent to our stockholders. We will pay all costs associated with the preparation and distribution of this Information Statement, including all mailing and printing expenses.
 
Background
 
Pursuant to an Agreement and Plan of Merger dated as of December 29, 2005, the Company acquired (the “Reverse Merger”) all of the capital stock of Brendan Technologies, Inc. (“Brendan”). Following the Reverse Merger, the Company sold its two operating subsidiaries (the “Stock Sale”) to a company controlled by the Company’s founders. As a result of the Reverse Merger, the stockholders of Brendan acquired control of the Company. Brendan is engaged in the development and marketing of scientific computer software for applications in the pharmaceutical/biotechnical research, clinical diagnostic, environmental, and other life and physical science markets.
 
Vote Required
 
As discussed in further detail below, the Amendment and the Plan required the approval of stockholders holding a majority of the outstanding votes.
 
Holders of shares representing 13,767,578 votes executed the written consent in favor of the Amendment and the adoption of the Plan.
 
Meeting Not Required
 
Under Section 78.390 of the Nevada Revised Statues, an amendment to our Articles of Incorporation must be recommended by resolution of the Board of Directors and be approved of stockholders entitled to vote on any such amendment. Under Section 78.320 of the Nevada Revised Statues, an affirmative vote by stockholders holding shares entitling them to exercise at least a majority of the voting power is sufficient to amend the articles of incorporation. Section 78.320 of the Nevada Revised Statues provides that, unless otherwise provided in a corporation’s articles of incorporation, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if, without prior notice and without a vote, a written consent thereto is signed by stockholders holding not less than the minimum number of votes that would be necessary to authorize or take such action. In order to eliminate the costs and management time involved in holding a special meeting, our Board of Directors voted to utilize, and did in fact obtain, the written consent of stockholders holding at least the requisite number of votes that would be necessary to authorize or take such action.
 
 
1

 
 
Dissenters Rights of Appraisal
 
There are no dissenter’s rights of appraisal applicable to this action to adopt the Amendment and the Plan.
 
Security Ownership of Certain Beneficial Owner and Management
 
The following table provides information as of the Record Date regarding our Common Stock beneficially owned by: (i) each person we know to beneficially own more than 5% of our outstanding Common Stock; (ii) each of our directors and executive officers; and (iii) all of our directors and executive officers as a group. Subject to applicable community property laws, to our knowledge each person identified in the table has sole voting and investment power with respect to the shares shown as beneficially owned. The address of each person in the table is c/o Omni U.S.A., Inc. at 2236 Rutherford Road, Suite 107, Carlsbad, California 92008.
 
 
2

 

             
             
       
Shares of Common
 
Percentage
       
Stock Beneficially
 
of Outstanding
Name
 
Postion with the Company
 
Owned
 
Shares
             
Executive Officers and
           
Directors
           
             
John R. Dunn II
 
Chairman of the Board,
 
4,950,000
 
19.4%
   
Chief Executive Officer,
       
   
Chief Technical Officer and
       
   
Director
       
             
George Dunn
 
Vice President, Secretary
 
1,846,000
 
7.1%
   
and Chief Operating Officer
       
             
Lowell W. Giffhorn
 
Vice President, Chief
 
70,000
 
*      
   
Financial Officer and Director
       
             
Theo Vermaelen
 
Director
 
669,494
 
2.6%
             
Steven Eisold
 
Director
 
724,359
 
2.8%
             
All Exective Officers and
           
Directors as a Group
           
(5 persons)
     
8,259,853
 
31.5%
             
Greater than 5% Owners
           
             
Robert Tabor
     
4,730,589
 
18.6%
             
Robert Kirk
     
2,049,658
 
8.0%
           
 
Massoud Kharrazian
     
1,487,136
 
5.8%
             
* Less than 1%
           
 
AMENDMENT OF THE ARTICLES OF INCORPORATION
 
The Amendment will change our name to “Brendan Technologies, Inc.”. To become effective, the Amendment must be filed with the Nevada Secretary of State. We intend to file the Amendment as soon as reasonably practicable following the 20th day following the mailing of this Information Statement to our stockholders.
 
The following summarizes the Amendment.
 
Name Change
 
As a result of the Reverse Merger and the Stock Sale, our only business is the business of Brendan. Accordingly, since we are engaged in the business conducted by Brendan, our name after the Merger will be changed to reflect our new business.
 
The Amendment will change our name to “Brendan Technologies, Inc.” The voting and other rights that accompany our securities will not be affected by the change in our name. Our ticker (trading) symbol, which is currently “OUSA.OB,” and the CUSIP number will both change as a result of the name change. After the name change, stockholders will be permitted to, but need not, exchange their certificates to reflect the change in corporate name. However, the existing certificate will continue to represent shares of our Common Stock as if the corporate name had not changed. Our transfer agent will issue stock certificates with the new company name as stock certificates are sent in upon transfers of shares by existing stockholders. The transfer agent for our common stock is American Stock Transfer & Trust Co., 6201 15th Ave., Brooklyn, NY 11219, telephone number (718) 921-8275.
 
 
3

 
 
Vote Obtained
 
A total of 25,498,794 shares of Common Stock were issued and outstanding as of the Record Date. Out of this total, the affirmative vote of a minimum of 12,749,398 shares of Common Stock was required for approval of the Amendment. On May 10, 2006, stockholders, holding 13,767,578 shares of Common Stock, executed a written consent approving the Amendment. Pursuant to Section 78.390 of the Nevada Revised Statutes, an affirmative vote by stockholders holding shares entitling them to exercise at least a majority of the voting power is sufficient to amend the articles of incorporation. Under Section 78.320 of the Nevada Revised Statutes, unless otherwise provided in our articles of incorporation, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if, without prior notice and without a vote, a written consent thereto is signed by stockholders holding not less than the minimum number of votes that would be necessary to authorize or take such action. Our By-Laws requires the same proportion of votes. Accordingly, the Amendment was duly approved and no further votes will be needed.
 
2006 EQUITY INCENTIVE PLAN
 
The Board of Directors adopted the Plan to encourage selected persons to accept or continue employment and to encourage selected employees, directors, consultants and advisers to improve operations and increase the profitability of the Company; and increase their interest in the welfare of the Company through participation in the growth in value of the Common Stock. Employees, directors, and consultants are eligible to receive awards under the Plan.
 
The maximum number of shares of Common Stock that may be issued pursuant to awards granted under the Plan is 7,500,000 subject to adjustments in the event of a stock split, stock distribution or other capital stock event, as described in the Plan. No more than 500,000 shares may be awarded to any one participant in any 12-month period.
 
As of the date of this Information Statement, stock options to exercise up to 4,300,000 shares of Common Stock had been granted under the Plan of which stock options to exercise up to 3,840,000 shares of common stock with exercise prices ranging from $0.025 to $0.75 per share were the result of the reverse merger between Omni and Brendan effective as of December 29, 2005, and stock options to exercise up to 460,000 shares of common stock with exercise prices ranging from $0.64 to $0.75 per share were granted subsequent to the reverse merger. All of the stock options expire five years from the date of grant. Currently, there is no plan to grant additional shares of Common Stock under the Plan; however, in the future, the Company intends to grant options to directors, officers, employees and consultants as additional incentives.
 
New Plan Benefits
 
2006 Equity Incentive Plan
 
Name and position
 
Dollar value
 
Number of
 
   
 ($) (1)
 
 units
 
               
John R. Dunn II, CEO
 
$
-
   
100,000
 
Executive Group
 
$
340,000
   
960,000
 
Non-Executive Director Group
 
$
-
   
200,000
 
Non-Executive Officer Employee Group
 
$
727,000
   
3,040,000
 
               
(1) Based on the closing ask price on July 7, 2006, $0.50, less the exercise price
             
 
 
4

 
 
The approximate number of people that may receive benefits from the Plan are as follows: Chief Executive Officer- 1, executive group- 3, non-executive director group- 6, and non-executive officer employee group- 20.
 
Administration
 
The Plan will be administered by the Board of Directors of the Company or, at the discretion of the Board, a committee of the Board of Directors (the Board or the committee is hereafter referred to as the “Administrator”).
 
The Administrator has full and final authority to select the recipients of awards and to grant such awards. Subject to the provisions of the Plan, the Administrator has sole and absolute discretion in determining the terms and conditions of awards and the number of shares to be issued pursuant thereto, including the exercise price and conditioning the receipt or vesting of awards upon the achievement by the Company of specified performance criteria. Subject to limitations imposed by law, the Board of Directors may amend or terminate the Plan at any time and in any manner. However, no such amendment or termination may deprive the recipient of an award previously granted under the Plan or any rights thereunder without the consent of the recipient.
 
Terms of Awards
 
The Plan authorizes the Administrator to make awards of stock options, stock appreciation rights and shares of Common Stock subject to restrictions (restricted stock). Stock options granted under the Plan may be either incentive stock options (“ISOs”) under Section 422 of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”) or options that are not intended to qualify as incentive stock options (referred to as “NQOs”). Each award will be evidenced by an agreement between the Company and the grantee which will contain the terms and conditions required by the Plan and such other terms and conditions not inconsistent therewith as the Administrator may deem appropriate. However, all stock options granted under the Plan will have an exercise price and a base value not less than the fair market value of the Common Stock on the date of grant.
 
Awards of ISOs may be made only to employees of the Company. Awards of NQOs, stock appreciation rights and restricted stock may be made to directors of the Company and outside consultants and independent contractors, as well as to employees of the Company.
 
No award may be outstanding for more than ten years and an ISO issued to an employee who owns more than 10% of the voting stock of the Company may have a term of only five years and must have an exercise price of no less than 110% of the fair market value of the Common Stock on the date of grant.
 
Upon the occurrence of specified events, such as a dissolution, liquidation, merger, or sale of substantially all of the property and assets of the Company, an award under the Plan will terminate, subject to certain actions of the Administrator, within the Administrator’s discretion, to accelerate the vesting of benefits or provide for the assumption by the surviving corporation or the acquiring corporation of the award.
 
An award may permit the recipient to pay all or part of the purchase price of the shares (and/or to pay all or part of such employee’s tax withholding obligation with respect to such issuance) by (a) delivering previously owned shares of Common Stock, (b) reducing the amount of shares or other property otherwise issuable pursuant to the award or (c) delivering a promissory note, the terms and conditions of which will be determined by the Administrator (if permitted by the Sarbanes-Oxley Act of 2002) and by means of a “cashless exercise” under rules and regulations of the Securities Exchange Commission and the Federal Reserve Board. If an option permits the recipient to pay for the shares issuable pursuant thereto with shares issuable under the award, the recipient would be able to exercise the option in successive transactions, starting with a relatively small number of shares and, by a series of exercises using shares acquired from each such transaction to pay the purchase price of the shares acquired in the following transaction, to exercise an option for a large number of shares with no more investment than the original share or shares delivered.
 
 
5

 
 
Termination of the Plan
 
The Plan will terminate ten years after its adoption by the Board of Directors of the Company, except as to awards then outstanding, which awards will remain in effect until they have been exercised, the restrictions have lapsed or the awards have expired or been forfeited. The Board of Directors may also amend, modify, suspend or terminate the Plan from time to time although no such action can be taken without stockholder approval if required by applicable law.
 
Certain Federal Tax Consequences
 
The following is a brief summary of the principal federal income tax consequences of awards under the Plan based on applicable provisions of the Internal Revenue Code and regulations thereunder now in effect.
 
With regard to incentive stock options, no income is recognized by the recipient employee upon transfer to him of shares pursuant to his exercise of an incentive stock option. In order to avail himself of this tax benefit, the employee must make no disposition of the shares so received before he has held such shares for at least one year and at least two years have passed since he was granted the option. Assuming compliance with this and other applicable tax provisions, the employee will realize long-term capital gain or loss when he or she disposes of the shares, measured by the difference between the exercise price and the amount received for the shares at the time of disposition. If an eligible employee disposes of shares acquired by exercise of an incentive stock option before the expiration of the above-noted periods, the gain arising from such disqualifying disposition will be taxable as ordinary income in the year of disposition to the extent the lesser of (a) the fair market value of the shares on the date the option was exercised, or (b) the amount realized upon such disposition, exceeds the exercise price. Any amount realized in excess of the fair market value on the date of exercise is treated as long-term or short-term capital gain, depending upon the holding period of the shares. If the amount realized upon such disposition is less than the exercise price the loss will be treated as long-term or short-term capital loss, depending upon the holding period of the shares.
 
For purposes of the alternative minimum tax, the employee will recognize as an addition to his or her tax base, upon the exercise of an incentive stock option, an amount equal to the excess of the fair market value of the shares at the time of exercise over the exercise price. If a disqualifying disposition is made in the year of exercise, income for purposes of the regular income tax will be recognized and the alternative minimum tax base will not additional be increased.
 
With regard to nonqualified stock options and stock appreciation rights, the holder realizes ordinary income at the time of the exercise of an option or SAR in an amount equal to the excess of the fair market value of the shares on the date of exercise over the exercise price. Such income is subject to payroll tax withholding if the holder is an employee. When a holder disposes of shares acquired upon the exercise of a nonqualified stock option, any amount received in excess of the fair market value of the shares on the date of exercise will be treated as long-term or short-term capital gain, depending upon the holding period of the shares, and if the amount received is less than the fair market value of the shares on the date of exercise, the loss will be treated as long-term or short-term capital loss, depending upon on the holding period of the shares. With regard to restricted stock, unless the recipient elects to recognize ordinary income at the time of receipt of an award, the recipient will not recognize taxable income upon the receipt of the award, but at the time the award vests will recognize ordinary income equal to the fair market value of the shares at the time of vesting.
 
Deduction to the Company. The Company will be entitled to a deduction for federal income tax purposes at the same time and in the same amount as the recipient of an award is considered to have realized ordinary income in connection, assuming compliance with Section 162(m) of the Internal Revenue Code.
 
Vote Obtained
 
A total of 25,498,794 shares of Common Stock were issued and outstanding on an as converted basis as of the Record Date. Out of this total, the affirmative vote of a minimum of 12,749,398 shares of Common Stock were required for approval of the Plan. On May 10, 2006, stockholders, holding 13,767,578 shares of Common Stock, executed a written consent approving the Plan. Pursuant to Section 78.320 of the Nevada Revised Statues, unless otherwise provided in our certificate of incorporation, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if, without prior notice and without a vote, a written consent thereto is signed by stockholders holding not less than the minimum number of votes that would be necessary to authorize or take such action. Accordingly, the Plan was duly approved and no further votes will be needed.
 
 
6

 
 
We are subject to the information requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith file reports and other information including annual and quarterly reports on Form 10-KSB and Form 10-QSB with the Securities and Exchange Commission. Reports and other information filed by us can be inspected and copied at the public reference facilities maintained at the Securities and Exchange Commission at Room 1024, 450 Fifth Street, N.W., Washington, DC 20549. Copies of such material can be obtained upon written request addressed to the Securities and Exchange Commission, Public Reference Section, 450 Fifth Street, N.W., Washington, DC 20549, at prescribed rates. The Securities and Exchange Commission also maintains a web site on the internet (http://www.sec.gov) where reports, proxy and information statements and other information regarding issuers that file electronically with the Securities and Exchange Commission through the Electronic Data Gathering, Analysis and Retrieval System may be obtained free of charge.
 
     
 
By Order of the Board of Directors
 
 
 
 
 
 
    /s/ Lowell W.Giffhorn
 
 
Lowell W.Giffhorn, Chief Financial Officer
 
 
7



APPENDIX A
 
CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION
FOR NEVADA PROFIT CORPORATIONS
(PURSUANT TO NRS 78.385 AND 78.390—AFTER ISSUANCE OF STOCK)
 
1.    Name of corporation: Omni U.S.A., Inc.
 
2.    The articles have been amended as follows (provide article numbers, if available);
 
1.    The name of corporation. Brendan Technologies, Inc.

3.    The vote by which the stockholders holding shares in the corporation entitling them to exercise at least a majority of the voting power, or such greater proportion of the voting power as may be required if the case of a vote by classes or series, or as may be required by the provisions of the articles of incorporation have voted in favor of the amendment is: 13,767,578 of 25,498,794 shares outstanding (54%).
 
4.    Effective date of filing (optional): ________________________________________
       
5.    Officer Signature (required):    /s/ Lowell W. Giffhorn  

 
 
Lowell W. Giffhorn,
Chief Financial Officer
  
 
 
A - 1

 
 
APPENDIX B
 
2006 EQUITY INCENTIVE PLAN
OF
OMNI U.S.A., INC.
 
1.
PURPOSES OF THE PLAN
 
The purposes of the 2006 Equity Incentive Plan (“Plan”) of OMNI U.S.A., INC., a Nevada corporation (the “Company”), are to:
 
1.1    Encourage selected employees, directors, consultants and advisers to improve operations and increase the profitability of the Company;
 
1.2    Encourage selected employees, directors, consultants and advisers to accept or continue employment or association with the Company or its Affiliates; and
 
1.3    Increase the interest of selected employees, directors, consultants and advisers in the Company’s welfare through participation in the growth in value of the common stock of the Company, par value $.004995 per share (the “Common Stock”).
 
2.
TYPES OF AWARDS; ELIGIBLE PERSONS
 
2.1    The Administrator (as defined below) may, from time to time, take the following action, separately or in combination, under the Plan: (i) grant “incentive stock options” (“ISOs”) intended to satisfy the requirements of Section 422 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”); (ii) grant “non-qualified options” (“NQOs,” and together with ISOs, “Options”); (iii) grant or sell Common Stock subject to restrictions (“restricted stock”) and (iv) grant stock appreciation rights (in general, the right to receive the excess of the fair market value of Common Stock on the exercise date over its fair market value on the grant date (“SARs”)), either in tandem with Options or as separate and independent grants. Any such awards may be made to employees, including employees who are officers or directors, and to individuals described in Section 1 of this Plan who the Administrator believes have made or will make a contribution to the Company or any Affiliate (as defined below); provided, however, that only a person who is an employee of the Company or any Affiliate at the date of the grant of an Option is eligible to receive ISOs under the plan. The term “Affiliate” as used in this Plan means a parent or subsidiary corporation as defined in the applicable provisions (currently Sections 424(e) and (f), respectively) of the Code. The term “employee” includes an officer or director who is an employee of the Company. The term “consultant” includes persons employed by, or otherwise affiliated with, a consultant. The term “adviser” includes persons employed by, or otherwise affiliated with, an adviser.
 
2.2    Except as otherwise expressly set forth in this Plan, no right or benefit under this Plan shall be subject in any manner to anticipation, alienation, hypothecation, or charge, and any such attempted action shall be void. No right or benefit under this Plan shall in any manner be liable for or subject to debts, contracts, liabilities, or torts of any option holder or any other person except as otherwise may be expressly required by applicable law.
 
3.
STOCK SUBJECT TO THIS PLAN; MAXIMUM NUMBER OF GRANTS
 
Subject to the provisions of Sections 6.1.1 and 8.2 of this Plan, the total number of shares of Common Stock which may be offered, or issued as restricted stock or on the exercise of Options or SARs under the Plan shall not exceed seven million five hundred thousand (7,500,000) shares of Common Stock. The shares subject to an Option or SAR granted under the Plan which expire, terminate or are cancelled unexercised shall become available again for grants under this Plan. If shares of restricted stock awarded under the Plan are forfeited to the Company or repurchased by the Company, the number of shares forfeited or repurchased shall again be available under the Plan. Where the exercise price of an Option is paid by means of the optionee’s surrender of previously owned shares of Common Stock or the Company’s withholding of shares otherwise issuable upon exercise of the Option as may be permitted herein, only the net number of shares issued and which remain outstanding in connection with such exercise shall be deemed “issued” and no longer available for issuance under this Plan. No eligible person shall be granted Options or other awards during any twelve-month period covering more than five hundred thousand (500,000) shares.
 
 
B - 1


 
4.
ADMINISTRATION
 
4.1    This Plan shall be administered by the Board of Directors of the Company (the “Board”) or by a committee (the “Committee”) to which administration of this Plan, or of part of this Plan, is delegated by the Board (in either case, the “Administrator”). The Board shall appoint and remove members of the Committee in its discretion in accordance with applicable laws. At the Board’s discretion, the Committee may be comprised solely of “non-employee directors” within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or “outside directors” within the meaning of Section 162(m) of the Code. The Administrator may delegate non-discretionary administrative duties to such employees of the Company as the Administrator deems proper and the Board, in its absolute discretion, may at any time and from time to time exercise any and all rights and duties of the Administrator under this Plan.
 
4.2    Subject to the other provisions of this Plan, the Administrator shall have the authority, in its discretion: (i) to grant Options and SARs and grant or sell restricted stock; (ii) to determine the fair market value of the Common Stock subject to Options or other awards; (iii) to determine the exercise price of Options granted, the economic terms of SARs granted, or the offering price of restricted stock; (iv) to determine the persons to whom, and the time or times at which, Options or SARs shall be granted or restricted stock granted or sold, and the number of shares subject to each Option or SAR or the number of shares of restricted stock granted or sold; (v) to construe and interpret the terms and provisions of this Plan, of any applicable agreement and all Options and SARs granted under this Plan, and of any restricted stock award under this Plan; (vi) to prescribe, amend, and rescind rules and regulations relating to this Plan; (vii) to determine the terms and provisions of each Option and SAR granted and award of restricted stock (which need not be identical), including but not limited to, the time or times at which Options and SARs shall be exercisable or the time at which the restrictions on restricted stock shall lapse; (viii) with the consent of the grantee, to rescind any award or exercise of an Option or SAR and to modify or amend the terms of any Option, SAR or restricted stock; (ix) to reduce the exercise price of any Option, the base value from which appreciation is to be determined with respect to an SAR or the purchase price of restricted stock; (x) to accelerate or defer (with the consent of the grantee) the exercise date of any Option or SAR or the date on which the restrictions on restricted stock lapse; (xi) to issue shares of restricted stock to an optionee in connection with the accelerated exercise of an Option by such optionee; (xii) to authorize any person to execute on behalf of the Company any instrument evidencing the grant of an Option. SAR or award of restricted stock; (xiii) to determine the duration and purposes of leaves of absence which may be granted to participants without constituting a termination of their employment for the purposes of the Plan; and (xiv) to make all other determinations deemed necessary or advisable for the administration of this Plan, any applicable agreement, Option, SAR or award of restricted stock.
 
4.3    All questions of interpretation, implementation, and application of this Plan or any agreement or Option, SAR or award of restricted stock shall be determined by the Administrator, which determination shall be final and binding on all persons.
 
5.
GRANTING OF OPTIONS AND SARS; AGREEMENTS
 
5.1    No Options or SARs shall be granted under this Plan after ten (10) years from the date of adoption of this Plan by the Board.
 
5.2    Each Option and SAR shall be evidenced by a written agreement, in form satisfactory to the Administrator, executed by the Company and the person to whom such grant is made. In the event of a conflict between the terms or conditions of an agreement and the terms and conditions of this Plan, the terms and conditions of this Plan shall govern. 

5.3    Each agreement shall specify whether the Option it evidences is an NQO or an ISO, provided, however, all Options granted under this Plan to non-employee directors, consultants and advisers of the Company are intended to be NQOs.
 
 
B - 2

 
 
5.4    Subject to Section 6.3.3 with respect to ISOs, the Administrator may approve the grant of Options or SARs under this Plan to persons who are expected to become employees, directors, consultants or advisers of the Company, but are not employees, directors, consultants or advisers at the date of approval.
 
6.
TERMS AND CONDITIONS OF OPTIONS AND SARS 
 
Each Option and SAR granted under this Plan shall be subject to the terms and conditions set forth in Section 6.1. NQOs and SARs shall also be subject to the terms and conditions set forth in Section 6.2, but not those set forth in Section 6.3. ISOs shall also be subject to the terms and conditions set forth in Section 6.3, but not those set forth in Section 6.2. SARs shall be subject to the terms and conditions of Section 6.4.
 
6.1    Terms and Conditions to Which All Options and SARs Are Subject. All Options and SARs granted under this Plan shall be subject to the following terms and conditions:
 
6.1.1    Changes in Capital Structure. Subject to Section 6.1.2, if the stock of the Company is changed by reason of a stock split, reverse stock split, stock dividend, recapitalization, combination or reclassification, or if the Company effects a spin-off of the Company’s subsidiary, appropriate adjustments shall be made by the Administrator, in its sole discretion, in (a) the number and class of shares of stock subject to this Plan and each Option and SAR outstanding under this Plan, and (b) the exercise price of each outstanding Option; provided, that the Company shall not be required to issue fractional shares as a result of any such adjustments. Any adjustment, however, in an outstanding Option shall be made without change in the total price applicable to the unexercised portion of the Option but with a corresponding adjustment in the price for each share covered by the unexercised portion of the Option. Adjustments under this Section 6.1.1 shall be made by the Administrator, whose determination as to the nature of the adjustments that shall be made, and the extent thereof, shall be final, binding, and conclusive. If an adjustment under this Section 6.1.1 would result in a fractional share interest under an option or any installment, the Administrator’s decision as to inclusion or exclusion of that fractional share interest shall be final, but no fractional shares of stock shall be issued under the Plan on account of any such adjustment.
 
6.1.2    Corporate Transactions. Except as otherwise provided in the applicable agreement, in the event of a Corporate Transaction (as defined below), the Administrator shall notify each holder of an Option or SAR at least thirty (30) days prior thereto or as soon as may be practicable. To the extent not then exercised all Options and SARs shall terminate immediately prior to the consummation of such Corporate Transaction unless the Administrator determines otherwise in its sole discretion; provided. however, that the Administrator, in its sole discretion, may (i) permit exercise of any Options or SARs prior to their termination, even if such Options or SARs would not otherwise have been exercisable, and/or (ii) provide that all or certain of the outstanding Options and SARs shall be assumed or an equivalent Option or SAR substituted by an applicable successor corporation or entity or any Affiliate of the successor corporation or entity. A “Corporate Transaction” means (i) a liquidation or dissolution of the Company; (ii) a merger or consolidation of the Company with or into another corporation or entity (other than a merger with a wholly-owned subsidiary); (iii) a sale of all or substantially all of the assets of the Company; or (iv) a purchase or other acquisition of more than 50% of the outstanding stock of the Company by one person or by more than one person acting in concert. 
 
6.1.3    Time of Option or SAR Exercise. Subject to Section 5 and Section 6.3.4, an Option or SAR granted under the Plan shall be exercisable (a) immediately as of the effective date of the applicable agreement or (b) in accordance with a schedule or performance criteria as may be set by the Administrator and specified in the applicable agreement. However, in no case may an Option or SAR be exercisable until a written agreement in form and substance satisfactory to the Company is executed by the Company and the grantee.
 
6.1.4    Grant Date. The date of grant of an Option or SAR under the Plan shall be the effective date of the applicable agreement.
 
6.1.5    Non-Transferability of Rights. Except with the express written approval of the Administrator, which approval the Administrator is authorized to give only with respect to NQOs and SARs, no Option or SAR granted under this Plan shall be assignable or otherwise transferable by the grantee except by will or by the laws of descent and distribution. During the life of the grantee, an Option or SAR shall be exercisable only by the grantee.
 
 
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6.1.6    Payment. Except as provided below, payment in full, in cash, shall be made for all stock purchased at the time written notice of exercise of an Option is given to the Company and the proceeds of any payment shall be considered general funds of the Company. The Administrator, in the exercise of its absolute discretion after considering any tax, accounting and financial consequences, may authorize any one or more of the following additional methods of payment:
 
(a)    Subject to the Sarbanes-Oxley Act of 2002, acceptance of the optionee’s full recourse promissory note for all or part of the Option price, payable on such terms and bearing such interest rate as determined by the Administrator (but in no event less than the minimum interest rate specified under the Code at which no additional interest or original issue discount would be imputed), which promissory note may be either secured or unsecured in such manner as the Administrator shall approve (including, without limitation, by a security interest in the shares of the Company);
 
(b)    Subject to the discretion of the Administrator and the terms of the stock option agreement granting the Option, delivery by the optionee of shares of Common Stock already owned by the optionee for all or part of the Option price, provided the fair market value (determined as set forth in Section 6.1.9) of such shares of Common Stock is equal on the date of exercise to the Option price, or such portion thereof as the optionee is authorized to pay by delivery of such stock;
 
(c)    Subject to the discretion of the Administrator, through the surrender of shares of Common Stock then issuable upon exercise of the Option, provided the fair market value (determined as set forth in Section 6.1.9) of such shares of Common Stock is equal on the date of exercise to the Option price, or such portion thereof as the optionee is authorized to pay by surrender of such stock; and
 
(d)    By means of so-called cashless exercises as permitted under applicable rules and regulations of the Securities and Exchange Commission and the Federal Reserve Board.
 
6.1.7    Withholding and Employment Taxes. At the time of exercise and as a condition thereto, or at such other time as the amount of such obligation becomes determinable, the grantee of an Option or SAR shall remit to the Company in cash all applicable federal and state withholding and employment taxes. Such obligation to remit may be satisfied, if authorized by the Administrator in its sole discretion, after considering any tax, accounting and financial consequences, by the holder’s (i) delivery of a promissory note in the required amount on such terms as the Administrator deems appropriate, (ii) tendering to the Company previously owned shares of Common Stock or other securities of the Company with a fair market value equal to the required amount, or (iii) agreeing to have shares of Common Stock (with a fair market value equal to the required amount), which are acquired upon exercise of the Option or SAR, withheld by the Company.

6.1.8    Other Provisions. Each Option and SAR granted under this Plan may contain such other terms, provisions, and conditions not inconsistent with this Plan as may be determined by the Administrator, and each ISO granted under this Plan shall include such provisions and conditions as are necessary to qualify the Option as an “incentive stock option” within the meaning of Section 422 of the Code.
 
6.1.9    Determination of Value. For purposes of this Plan, the fair market value of Common Stock or other securities of the Company shall be determined as follows:
 
(a)    If the stock of the Company is listed on a securities exchange or is regularly quoted by a recognized securities dealer, and selling prices are reported, its fair market value shall be the closing price of such stock on the date the value is to be determined, but if selling prices are not reported, its fair market value shall be the mean between the high bid and low asked prices for such stock on the date the value is to be determined (or if there are no quoted prices for the date of grant, then for the last preceding business day on which there were quoted prices).
 
 
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(b)    In the absence of an established market for the stock, the fair market value thereof shall be determined in good faith by the Administrator, with reference to the Company’s net worth, prospective earning power, dividend-paying capacity, and other relevant factors, including the goodwill of the Company, the economic outlook in the Company’s industry, the Company’s position in the industry, the Company’s management, and the values of stock of other corporations in the same or a similar line of business.
 
6.1.10    Option and SAR Term. No Option or SAR shall be exercisable more than 10 years after the date of grant, or such lesser period of time as is set forth in the applicable agreement (the end of the maximum exercise period stated in the agreement is referred to in this Plan as the “Expiration Date”).
 
6.2    Terms and Conditions to Which Only NQOs Are Subject. Options granted under this Plan which are designated as NQOs shall be subject to the following terms and conditions:
 
6.2.1    Exercise Price. The exercise price of an NQO shall be no less than the fair market value of the Common Stock on the date of grant.
 
6.2.2    Termination of Employment. Except as otherwise provided in the applicable agreement, if for any reason a grantee ceases to be employed by the Company or any of its Affiliates, Options that are NQOs and SARs held at the date of termination (to the extent then exercisable) may be exercised in whole or in part at any time within ninety (90) days of the date of such termination (but in no event after the Expiration Date). For purposes of this Section 6.2.2, “employment” includes service as a director, consultant or adviser. For purposes of this Section 6.2.2, a grantee’s employment shall not be deemed to terminate by reason of the grantee’s transfer from the Company to an Affiliate, or vice versa, or sick leave, military leave or other leave of absence approved by the Administrator, if the period of any such leave does not exceed ninety (90) days or, if longer, if the grantee’s right to reemployment by the Company or any Affiliate is guaranteed either contractually or by statute.
 
6.3    Terms and Conditions to Which Only ISOs Are Subject. Options granted under this Plan which are designated as ISOs shall be subject to the following terms and conditions:
 
6.3.1    Exercise Price. The exercise price of an ISO shall not be less than the fair market value (determined in accordance with Section 6.1.9) of the stock covered by the Option at the time the Option is granted. The exercise price of an ISO granted to any person who owns, directly or by attribution under the Code (currently Section 424(d)), stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any Affiliate (a “Ten Percent Stockholder”) shall in no event be less than one hundred ten percent (110%) of the fair market value (determined in accordance with Section 6.1.9) of the stock covered by the Option at the time the Option is granted.
 
6.3.2    Disqualifying Dispositions. If stock acquired by exercise of an ISO granted pursuant to this Plan is disposed of in a “disqualifying disposition” within the meaning of Section 422 of the Code (a disposition within two (2) years from the date of grant of the Option or within one year after the issuance of such stock on exercise of the Option), the holder of the stock immediately before the disposition shall promptly notify the Company in writing of the date and terms of the disposition and shall provide such other information regarding the Option as the Company may reasonably require.
 
6.3.3    Grant Date. If an ISO is granted in anticipation of employment as provided in Section 5.4, the Option shall be deemed granted, without further approval, on the date the grantee assumes the employment relationship forming the basis for such grant, and, in addition, satisfies all requirements of this Plan for Options granted on that date.
 
6.3.4    Term. Notwithstanding Section 6.1.10, no ISO granted to any Ten Percent Stockholder shall be exercisable more than five (5) years after the date of grant.
 
6.3.5    Termination of Employment. Except as otherwise provided in the stock option agreement, if for any reason an optionee ceases to be employed by the Company or any of its Affiliates, Options that are ISOs held at the date of termination (to the extent then exercisable) may be exercised in whole or in part at any time within ninety (90) days of the date of such termination (but in no event after the Expiration Date). For purposes of this Section 6.3.5, an optionee’s employment shall not be deemed to terminate by reason of the optionee’s transfer from the Company to an Affiliate, or vice versa, or sick leave, military leave or other leave of absence approved by the Administrator, if the period of any such leave does not exceed ninety (90) days or, if longer, if the optionee’s right to reemployment by the Company or any Affiliate is guaranteed either contractually or by statute.
 
 
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6.4    Terms and Conditions Applicable Solely to SARs. In addition to the other terms and conditions applicable to SARs in this Section 6, the holder shall be entitled to receive on exercise of an SAR only Common Stock at a fair market value equal to the benefit to be received by the exercise.
 
7.
MANNER OF EXERCISE
 
7.1    An optionee wishing to exercise an Option or SAR shall give written notice to the Company at its principal executive office, to the attention of the officer of the Company designated by the Administrator, accompanied by payment of the exercise price and/or withholding taxes as provided in Sections 6.1.6 and 6.1.7. The date the Company receives written notice of an exercise hereunder accompanied by the applicable payment will be considered as the date such Option or SAR was exercised.
 
7.2    Promptly after receipt of written notice of exercise and the applicable payments called for by Section 7.1, the Company shall, without stock issue or transfer taxes to the holder or other person entitled to exercise the Option or SAR, deliver to the holder or such other person a certificate or certificates for the requisite number of shares of Common Stock. A holder or permitted transferee of an Option or SAR shall not have any privileges as a stockholder with respect to any shares of Common Stock to be issued until the date of issuance (as evidenced by the appropriate entry on the books of the Company or a duly authorized transfer agent) of such shares.
 
8.
RESTRICTED STOCK
 
8.1    Grant or Sale of Restricted Stock.
 
8.1.1    No awards of restricted stock shall be granted under this Plan after ten (10) years from the date of adoption of this Plan by the Board.
 
8.1.2    The Administrator may issue shares under the Plan as a grant or for such consideration (including services, and, subject to the Sarbanes-Oxley Act of 2002, promissory notes) as determined by the Administrator. Shares issued under the Plan shall be subject to the terms, conditions and restrictions determined by the Administrator. The restrictions may include restrictions concerning transferability, repurchase by the Company and forfeiture of the shares issued, together with such other restrictions as may be determined by the Administrator. If shares are subject to forfeiture or repurchase by the Company, all dividends or other distributions paid by the Company with respect to the shares may be retained by the Company until the shares are no longer subject to forfeiture or repurchase, at which time all accumulated amounts shall be paid to the recipient. All Common Stock issued pursuant to this Section 8 shall be subject to a purchase or grant agreement, which shall be executed by the Company and the prospective recipient of the shares prior to the delivery of certificates representing such shares to the recipient. The purchase or grant agreement may contain any terms, conditions, restrictions, representations and warranties required by the Administrator. The certificates representing the shares shall bear any legends required by the Administrator. The Administrator may require any purchaser of restricted stock to pay to the Company in cash upon demand amounts necessary to satisfy any applicable federal, state or local tax withholding requirements. If the purchaser fails to pay the amount demanded, the Administrator may withhold that amount from other amounts payable by the Company to the purchaser, including salary, subject to applicable law. With the consent of the Administrator in its sole discretion, a purchaser may deliver Common Stock to the Company to satisfy this withholding obligation. Upon the issuance of restricted stock, the number of shares reserved for issuance under the Plan shall be reduced by the number of shares issued.
 
8.2    Changes in Capital Structure. In the event of a change in the Company’s capital structure, as described in Section 6.1.1, appropriate adjustments shall be made by the Administrator, in its sole discretion, in the number and class of restricted stock subject to this Plan and the restricted stock outstanding under this Plan; provided, however, that the Company shall not be required to issue fractional shares as a result of any such adjustments.
 
 
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8.3    Corporate Transactions. In the event of a Corporate Transaction, as defined in Section 6.1.2 hereof, to the extent not previously forfeited, all restricted stock shall be forfeited immediately prior to the consummation of such Corporate Transaction unless the Administrator determines otherwise in its sole discretion; provided, however, that the Administrator, in its sole discretion, may remove any restrictions as to any restricted stock. The Administrator may, in its sole discretion, provide that all outstanding restricted stock participate in the Corporate Transaction with an equivalent stock substituted by an applicable successor corporation subject to the restriction.
 
9.
EMPLOYMENT OR CONSULTING RELATIONSHIP
 
Nothing in this Plan or any Option granted hereunder shall interfere with or limit in any way the right of the Company or of any of its Affiliates to terminate the employment, consulting or advising of any optionee or restricted stock holder at any time, nor confer upon any optionee or restricted stock holder any right to continue in the employ of, or consult or advise with, the Company or any of its Affiliates.
 
10.
CONDITIONS UPON ISSUANCE OF SHARES
 
10.1    Securities Act. Shares of Common Stock shall not be issued pursuant to the exercise of an Option or the receipt of restricted stock unless the exercise of such Option or such receipt of restricted stock and the issuance and delivery of such shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended (the “Securities Act”).
 
10.2    Non-Compete Agreement. As a further condition to the receipt of Common Stock pursuant to the exercise of an Option or the receipt of restricted stock, the optionee or recipient of restricted stock may be required not to render services for any organization, or engage directly or indirectly in any business, competitive with the Company at any time during which (i) an Option is outstanding to such Optionee and for six (6) months after any exercise of an Option or the receipt of Common Stock pursuant to the exercise of an Option and (ii) restricted stock is owned by such recipient and for six (6) months after the restrictions on such restricted stock lapse. Failure to comply with this condition shall cause such Option and the exercise or issuance of shares thereunder and/or the award of restricted stock to be rescinded and the benefit of such exercise, issuance or award to be repaid to the Company.
 
11.
NON-EXCLUSIVITY OF THIS PLAN
 
The adoption of this Plan shall not be construed as creating any limitations on the power of the Company to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options other than under this Plan.
 
12.
MARKET STAND-OFF
 
Each optionee, holder of an SAR or recipient of restricted stock, if so requested by the Company or any representative of the underwriters in connection with any registration of the offering of any securities of the Company under the Securities Act, shall not sell or otherwise transfer any shares of Common Stock acquired upon exercise of Options, SARs or receipt of restricted stock during the 180-day period following the effective date of a registration statement of the Company filed under the Securities Act; provided, however, that such restriction shall apply only to a registration statement of the Company which includes securities to be sold on behalf of the Company to the public in an underwritten public offering under the Securities Act and the restriction period shall not exceed 90 days after the registration statement becomes effective.
 
13.
AMENDMENTS TO PLAN
 
 
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The Board may at any time amend, alter, suspend or discontinue this Plan. Without the consent of an optionee, holder of an SAR or holder of restricted stock, no amendment, alteration, suspension or discontinuance may adversely affect such person’s outstanding Option(s), SAR(s) or the terms applicable to restricted stock except to conform this Plan and ISOs granted under this Plan to the requirements of federal or other tax laws relating to incentive stock options. No amendment, alteration, suspension or discontinuance shall require stockholder approval unless (a) stockholder approval is required to preserve incentive stock option treatment for federal income tax purposes or (b) the Board otherwise concludes that stockholder approval is advisable.



 
14.
EFFECTIVE DATE OF PLAN; TERMINATION
 
This Plan shall become effective upon adoption by the Board; provided, however, that no Option or SAR shall be exercisable unless and until written consent of the stockholders of the Company, or approval of stockholders of the Company voting at a validly called stockholders’ meeting, is obtained within twelve (12) months after adoption by the Board. If any Options or SARs are so granted and stockholder approval shall not have been obtained within twelve (12) months of the date of adoption of this Plan by the Board, such Options and SARs shall terminate retroactively as of the date they were granted. Awards may be made under this Plan and exercise of Options and SARs shall occur only after there has been compliance with all applicable federal and state securities laws. This Plan (but not Options and SARs previously granted under this Plan) shall terminate within ten (10) years from the date of its adoption by the Board. Termination shall not affect any outstanding Options or SARs or the terms applicable to previously awarded restricted stock.
 
 
 
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