THIS
FIRST AMENDMENT to the Equity Incentive Plan (the “Amendment”) is adopted by
LaPolla Industries, Inc., a Delaware corporation (the “Company), effective as of
January 16, 2007 (the “Effective Date”), subject to ratification and approval by
common stockholders of the Company.
A. The
Equity Incentive Plan (the “Plan”) was adopted by the Board of Directors of the
Company (the “Board”) and four stockholders owning greater than a majority of
the outstanding shares of common stock on July 12, 2005 by action taken by
written consent without a meeting in accordance with Delaware General
Corporation Law (“Delaware Law”) which approval became effective on or about
August 25, 2005 pursuant to the mailing of an Information Statement to all
stockholders.
B. The
Board amended the Plan on January 16, 2007, subject to stockholder ratification
and approval, to: (i) increase the maximum aggregate number of shares of
the Company’s common stock reserved for issuance under the Plan from 3.25
Million shares to 6 Million shares; and (ii) include directors and
consultants as persons eligible for awards under the Plan.
1.
Capitalized
terms used in this Amendment without definition shall have the respective
meanings ascribed thereto in the Plan.
2.
Effective
as of Effective Date, Section 2.1(b) of the Plan is hereby amended and
restated in its entirety to read as follows:
“(b)
"Award Agreement" means a written agreement between the Company and a
full time employee, director or consultant of the Company (a
“Participant”) setting forth the terms, conditions and restrictions of
the Award granted to the Participant. An Award Agreement may be an "Option
Agreement" or a "Stock Bonus Agreement.”
3.
Effective
as of Effective Date, Section 2.1(m) of the Plan is hereby amended and
restated in its entirety to read as follows:
“(m) "Service"
means a Participant's employment with the Company as an Employee, Director
or
Consultant. Unless otherwise determined by the Board, a Participant's Service
shall be deemed to have terminated if the Participant ceases to render service
to the Company. However, a Participant's Service shall not be deemed to have
terminated merely because of a change in the Company for which the Participant
renders such Service in such initial capacity, provided that there is no
interruption or termination of the Participant's Service. Furthermore, a
Participant's Service shall not be deemed to have terminated if the Participant
takes any bona fide leave of absence approved by the Company of ninety (90)
days
or less. In the event of a leave in excess of ninety (90) days, the
Participant's Service shall be deemed to terminate on the ninety-first (91st ) day of
the leave
unless the Participant's right to return to Service is guaranteed by statute
or
contract. Notwithstanding the foregoing, unless otherwise designated by the
Company or required by law, a leave of absence shall not be treated as Service
for purposes of determining vesting under the Participant's Award Agreement.
A
Participant's Service shall be deemed to have terminated either upon an actual
termination of Service. Subject to the foregoing, the Company, in its
discretion, shall determine whether the Participant's Service has terminated
and
the effective date of such termination.”
4. Effective
as of Effective Date, Section 4.1 of the Plan is hereby amended and
restated in its entirety to read as follows:
“4.1 Maximum
Number of Shares
Issuable. Subject to adjustment
as
provided in Section 4.2, the maximum aggregate number of shares of Stock
that may be issued under the Plan shall be 6,000,000, reduced at any time by
the
sum of (a) the number of shares subject to options granted pursuant to the
Predecessor Plan which remain outstanding at such time and (b) the number of
shares issued prior to such time and after the Effective Date of this Plan
upon
the exercise of options granted pursuant to the Predecessor Plan. Such shares
shall consist of authorized but unissued or reacquired shares of Stock or any
combination thereof. If an outstanding Award for any reason expires or is
terminated or canceled without having been exercised or settled in full, or
if
shares of Stock acquired pursuant to an Award subject to forfeiture or
repurchase are forfeited, the shares of Stock allocable to the terminated
portion of such Award or such forfeited or repurchased shares of Stock shall
again be available for issuance under the Plan.”
5. Effective
as of Effective Date, Section 5.1 of the Plan is hereby amended and
restated in its entirety to read as follows:
“5.1 Persons
Eligible for Awards. Awards may be granted to Employees, Directors and
Consultants of the Company.”
