Attached files
| file | filename |
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| 8-K - FORM 8-K 12-30-09 - SPICY PICKLE FRANCHISING INC | f8k-123009_spicy.htm |
| EX-10.1 - EXH 10-1 2009 STOCK PLAN - SPICY PICKLE FRANCHISING INC | exh10-1.htm |
EXHIBIT 10.2
2009 RESTRICTED STOCK PLAN
________________________________________
SPICY
PICKLE FRANCHISING, INC.
2009
RESTRICTED STOCK PLAN
________________________________________
Adopted
by the Resolution of the Directors on December 30, 2009
SPICY
PICKLE FRANCHISING, INC.
2009
RESTRICTED STOCK PLAN
I. PURPOSE
The
purpose of the SPICY PICKLE
FRANCHISING, INC. 2009 RESTRICTED STOCK PLAN (the “Plan”) is to provide a
means through which SPICY
PICKLE FRANCHISING, INC., a Colorado corporation (the “Company”), and its
Affiliates may attract able persons to serve as Directors or Consultants or to
enter the employ of the Company and its Affiliates and to provide a means
whereby those individuals upon whom the responsibilities of the successful
administration and management of the Company and its Affiliates rest, and whose
present and potential contributions to the Company and its Affiliates are of
importance, can acquire and maintain stock ownership, thereby strengthening
their concern for the welfare of the Company and its Affiliates. A
further purpose of the Plan is to provide such individuals with additional
incentive and reward opportunities designed to enhance the profitable growth of
the Company and its Affiliates. Accordingly, the Plan provides for
granting Restricted Stock Awards as provided herein.
II.
DEFINITIONS
The
following definitions shall be applicable throughout the Plan unless
specifically modified by any paragraph:
(a) “Affiliate”
means any corporation, partnership, limited liability company or partnership,
association, trust or other organization which, directly or indirectly,
controls, is controlled by, or is under common control with, the
Company. For purposes of the preceding sentence, “control”
(including, with correlative meanings, the terms “controlled by” and “under
common control with”), as used with respect to any entity or organization, shall
mean the possession, directly or indirectly, of the power (i) to vote more than
50% of the securities having ordinary voting power for the election of directors
of the controlled entity or organization, or (ii) to direct or cause the
direction of the management and policies of the controlled entity or
organization, whether through the ownership of voting securities or by contract
or otherwise.
(b) “Award”
means, individually or collectively, any Restricted Stock Award.
(c) “Board”
means the Board of Directors of the Company.
(d) “Code”
means the Internal Revenue Code of 1986, as amended. Reference in the
Plan to any section of the Code shall be deemed to include any amendments or
successor provisions to such section and any regulations under such
section.
(e) “Committee”
means a committee of the Board that is selected by the Board as provided in
Paragraph IV(a).
(f) “Common
Stock” means the common stock, par value $.001 per share, of the
Company.
(g) “Company”
means Spicy Pickle Franchising, Inc., a Colorado corporation.
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(h) “Consultant”
means any person who is not an Employee or a Director and who is providing
advisory or consulting services to the Company or any Affiliate.
(i) “Director”
means an individual elected to the Board by the stockholders of the Company or
by the Board under applicable corporate law who is serving on the Board on the
date the Plan is adopted by the Board or is elected to the Board after such
date.
(j) “Employee”
means any person (including a Director) in an employment relationship with the
Company or any Affiliate.
(k) “1934 Act”
means the Securities Exchange Act of 1934, as amended.
(l) “Participant”
means an Employee, Consultant, or Director who has been granted an
Award.
(m) “Plan”
means the Spicy Pickle Franchising, Inc. 2009 Restricted Stock Plan, as amended
from time to time.
(n) “Restricted Stock
Agreement” means a written agreement between the Company and a
Participant with respect to a Restricted Stock Award.
(o) “Restricted Stock
Award” means an award granted under the Plan.
(p) “Rule
16b-3” means SEC Rule 16b-3 promulgated under the 1934 Act, as such may
be amended from time to time, and any successor rule, regulation or statute
fulfilling the same or a similar function.
III. EFFECTIVE
DATE AND DURATION OF THE PLAN
The Plan
shall become effective upon the date of its adoption by the Board. No further
Awards may be granted under the Plan after 10 years from the date the Plan is
adopted by the Board. The Plan shall remain in effect until all
Restricted Stock Awards granted under the Plan have vested or been
forfeited.
IV.
ADMINISTRATION
(a) Composition
of Committee. The Plan shall be administered by a committee
of, and appointed by, the Board that shall be comprised solely of two or more
“Non-Employee Directors” as defined in Rule 16b-3.
(b) Powers. Subject
to the express provisions of the Plan, the Committee shall have authority, in
its discretion, to determine which Employees, Consultants, or Directors shall
receive an Award, the time or times when such Award shall be made and the number
of shares to be subject to each Restricted Stock Award. In making
such determinations, the Committee shall take into account the nature of the
services rendered by the respective Employees, Consultants, or Directors, their
present and potential contribution to the Company’s success and such other
factors as the Committee in its discretion shall deem relevant.
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(c) Additional
Powers. The Committee shall have such additional powers as are
delegated to it by the other provisions of the Plan. Subject to the
express provisions of the Plan, this shall include the power to construe the
Plan and the respective agreements executed hereunder, to prescribe rules and
regulations relating to the Plan, and to determine the terms, restrictions and
provisions of the agreement relating to each Award, and to make all other
determinations necessary or advisable for administering the Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any agreement relating to an Award in the manner
and to the extent it shall deem expedient to carry it into
effect. The determinations of the Committee on the matters referred
to in this Paragraph IV shall be conclusive.
V.
SHARES SUBJECT TO THE PLAN; AWARD LIMITS;
GRANT
OF AWARDS
(a) Shares
Subject to the Plan and Award Limits. Subject to adjustment as
provided in Paragraph VIII(b), the aggregate number of shares of Common Stock
that may be issued under the Plan shall not exceed 5,000,000
shares. Shares shall be deemed to have been issued under the Plan
only to the extent actually issued and delivered pursuant to an
Award. To the extent that an Award lapses or the rights of its holder
terminate, any shares of Common Stock subject to such Award shall again be
available for the grant of an Award under the Plan.
(b) Grant of
Awards. The Committee may from time to time grant Awards to one or more
Employees, Consultants, or Directors determined by it to be eligible for
participation in the Plan in accordance with the terms of the Plan.
(c) Stock
Offered. Subject to the limitations set forth in Paragraph
V(a), the stock to be offered pursuant to the grant of an Award may be
authorized but unissued Common Stock or Common Stock previously issued and
outstanding and reacquired by the Company. Any of such shares which
remain unissued and which are not subject to outstanding Awards at the
termination of the Plan shall cease to be subject to the Plan but, until
termination of the Plan, the Company shall at all times make available a
sufficient number of shares to meet the requirements of the Plan.
VI.
ELIGIBILITY
Awards
may be granted only to persons who, at the time of grant, are Employees,
Consultants, or Directors. An Award may be granted on more than one
occasion to the same person.
VII. RESTRICTED
STOCK AWARDS
(a) Forfeiture
Restrictions To Be Established by the Committee. Shares of
Common Stock that are the subject of a Restricted Stock Award shall be subject
to restrictions on disposition by the Participant and an obligation of the
Participant to forfeit and surrender the shares to the Company under certain
circumstances (the “Forfeiture Restrictions”). The Forfeiture
Restrictions shall be determined by the Committee in its sole discretion, and
the Committee may provide that the Forfeiture Restrictions shall lapse upon (i)
the attainment of one or more performance targets established by the Committee,
(ii) the Participant’s continued
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employment
with the Company or an Affiliate or continued service as a Consultant or
Director for a specified period of time, (iii) the occurrence of any event or
the satisfaction of any other condition specified by the Committee in its sole
discretion, or (iv) a combination of any of the foregoing. Each Restricted Stock
Award may have different Forfeiture Restrictions, in the discretion of the
Committee.
(b) Other
Terms and Conditions. Common Stock awarded pursuant to a
Restricted Stock Award shall be represented by a stock certificate registered in
the name of the Participant. Unless provided otherwise in a
Restricted Stock Agreement, the Participant shall have the right to receive
dividends and other distributions with respect to Common Stock subject to a
Restricted Stock Award, to vote Common Stock subject thereto and to enjoy all
other stockholder rights, except that (i) the Participant shall not be entitled
to delivery of the stock certificate until the Forfeiture Restrictions have
expired, (ii) the Company shall retain custody of the stock until the Forfeiture
Restrictions have expired, (iii) the Participant may not sell, transfer, pledge,
exchange, hypothecate or otherwise dispose of the stock until the Forfeiture
Restrictions have expired, and (iv) a breach of the terms and conditions
established by the Committee pursuant to the Restricted Stock Agreement shall
cause a forfeiture of the Restricted Stock Award. At the time of such
Award, the Committee may, in its sole discretion, prescribe additional terms,
conditions or restrictions relating to Restricted Stock Awards, including, but
not limited to, rules pertaining to the treatment of distributions or dividends
on shares of Restricted Stock and to the termination of employment or service as
a Consultant or Director (by retirement, disability, death or otherwise) of a
Participant prior to expiration of the Forfeitures Restrictions. Such
additional terms, conditions or restrictions shall be set forth in a Restricted
Stock Agreement made in conjunction with the Award.
(c) Payment
for Restricted Stock. The Committee shall determine the amount
and form of any payment for Common Stock received pursuant to a Restricted Stock
Award, provided that in the absence of such a determination, a Participant shall
not be required to make any payment for Common Stock received pursuant to a
Restricted Stock Award, except to the extent otherwise required by
law.
(d) Committee’s
Discretion to Accelerate Vesting of Restricted Stock
Awards. The Committee may, in its discretion and as of a date
determined by the Committee, fully vest any or all Common Stock awarded to a
Participant pursuant to a Restricted Stock Award and, upon such vesting, all
restrictions applicable to such Restricted Stock Award shall terminate as of
such date. Any action by the Committee pursuant to this Subparagraph
may vary among individual Participants and may vary among the Restricted Stock
Awards held by any individual Participant.
(e) Restricted
Stock Agreements. At the time any Award is made under
this Paragraph VII, the Company and the Participant shall enter into a
Restricted Stock Agreement setting forth each of the matters contemplated hereby
and such other matters as the Committee may determine to be
appropriate. The terms and provisions of the respective Restricted
Stock Agreements need not be identical. Subject to the consent of the
Participant, the Committee may, in its sole discretion, amend an outstanding
Restricted Stock Agreement from time to time in any manner that is not
inconsistent with the provisions of the Plan.
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VIII.
RECAPITALIZATION OR ORGANIZATION
(a) No Effect
on Right or Power. The existence of the Plan and the Awards
granted hereunder shall not affect in any way the right or power of the Board or
the stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company’s or any
Affiliate’s capital structure or its business, any merger or consolidation of
the Company or any Affiliate, any issue of debt or equity securities ahead of or
affecting Common Stock or the rights thereof, the dissolution or liquidation of
the Company or any Affiliate or any sale, lease, exchange or other disposition
of all or any part of its assets or business or any other corporate act or
proceeding.
(b) Changes
in the Common Stock. In the event of changes in the
outstanding Common Stock by reason of recapitalizations, reorganizations,
mergers, consolidations, combinations, split-ups, split-offs, spin-offs,
exchanges or other relevant changes in capitalization or distributions to the
holders of Common Stock, the aggregate number of shares available for Awards
under the Plan shall be appropriately adjusted to the extent, if any, determined
by the Committee, whose determination shall be conclusive.
(c) No
Adjustments unless Otherwise Provided. Except as hereinbefore
expressly provided, the issuance by the Company of shares of stock of any class
or securities convertible into shares of stock of any class, for cash, property,
labor or services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, and in any case whether or not
for fair value, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of shares of Common Stock subject to Awards
theretofore granted.
IX. AMENDMENT
AND TERMINATION OF THE PLAN
The Board
in its discretion may terminate the Plan at any time with respect to any shares
of Common Stock for which Awards have not theretofore been
granted. The Board shall have the right to alter or amend the Plan or
any part thereof from time to time; provided that no change in the Plan may be
made that would impair the rights of a Participant with respect to an Award
theretofore granted without the consent of the Participant, and provided,
further, that the Board may not, without approval of the stockholders of the
Company, amend the Plan to increase the maximum aggregate number of shares that
may be issued under the Plan or change the class of individuals eligible to
receive Awards under the Plan.
X.
MISCELLANEOUS
(a) No Right
To An Award. Neither the adoption of the Plan nor any action
of the Board or of the Committee shall be deemed to give an Employee,
Consultant, or Director any right to a Restricted Stock Award, or any other
rights hereunder except as may be evidenced by a Restricted Stock Agreement duly
executed on behalf of the Company, and then only to the extent and on the terms
and conditions expressly set forth therein. The Plan shall be
unfunded. The Company shall not be required to establish any special
or separate fund or to make any other segregation of funds or assets to assure
the performance of its obligations under any Award.
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(b) No
Employment/Membership Rights Conferred. Nothing contained in
the Plan shall (i) confer upon any Employee or Consultant any right with respect
to continuation of employment or of a consulting or advisory relationship with
the Company or any Affiliate or (ii) interfere in any way with the right of the
Company or any Affiliate to terminate his or her employment or consulting or
advisory relationship at any time. Nothing contained in the Plan
shall confer upon any Director any right with respect to continuation of
membership on the Board.
(c) Other
Laws; Withholding. The Company shall not be obligated to issue
any Common Stock pursuant to any Award granted under the Plan at any time when
the shares covered by such Award have not been registered under the Securities
Act of 1933, as amended, and such other state and federal laws, rules and
regulations as the Company or the Committee deems applicable and, in the opinion
of legal counsel for the Company, there is no exemption from the registration
requirements of such laws, rules and regulations available for the issuance and
sale of such shares. No fractional shares of Common Stock shall be
delivered, nor shall any cash in lieu of fractional shares be
paid. The Company shall have the right to deduct in connection with
all Awards any taxes required by law to be withheld and to require any payments
required to enable it to satisfy its withholding obligations.
(d) No
Restriction on Corporate Action. Nothing contained in the Plan
shall be construed to prevent the Company or any Affiliate from taking any
action which is deemed by the Company or such Affiliate to be appropriate or in
its best interest, whether or not such action would have an adverse effect on
the Plan or any Award made under the Plan. No Participant,
beneficiary or other person shall have any claim against the Company or any
Affiliate as a result of any such action.
(e) Restrictions
on Transfer. An Award shall not be transferable otherwise than
(i) by will or the laws of descent and distribution, (ii) pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder, or (iii) with the consent of the Committee.
(f) Governing
Law. The Plan
shall be governed by, and construed in accordance with, the laws of the State of
Colorado, without regard to conflicts of law principles
thereof.
Date Plan
Adopted by Board of
Directors: December 30,
2009
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