UNLIMITED SKY HOLDINGS, INC. 2013 STOCK PURCHASE AND OPTION PLAN

"Affiliate" of a Person means any other Person, entity or investment fund controlling, controlled by or under common control with such Person and, in the case of a Person which is a partnership or limited liability company, any partner or member, respectively, of such Person.

 

"Board" means the Company's board of directors.

 

"Cause" shall have the meaning ascribed to such term in any written employment agreement between the Company or any Subsidiary of the Company and such Participant, or in the absence of any such written agreement, shall mean (a) the commission of a felony or any other act or omission involving dishonesty, disloyalty or fraud with respect to the Company or any of its Subsidiaries or any of their customers, suppliers or any other material business relations, or any other crime involving moral turpitude, (b) conduct tending to bring the Company or any of its Subsidiaries into public disgrace or disrepute, (c) repeated failure or inability to perform duties and/or obligations as reasonably directed by the Board, senior executive officers or their respective designees, (d) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries, (e) any other material breach of any written agreement between the Company and such Participant evidencing the grant of any Option or the issuance of any Common Stock or any other written agreement between such Participant and the Company or any Subsidiary or (f) failure to comply in any material respect (including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended, or any of the rules or regulations promulgated under any of the foregoing laws).

 

"Code" means the U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, as the same may be amended from time to time and any successor statute.

 

 

"Committee" means the committee of the Board which may be designated by the Board to administer the Plan. In the absence of the appointment of any such Committee, any action permitted or required to be taken hereunder by the Committee shall be deemed to refer to the Board.

 

"Common Stock" means the Company's Common Stock, par value $0.00001 per share.

"Competitive Activity" means, during the term of any Participant's employment with the Company or any of its Subsidiaries and during the one-year period immediately following such Participant's Employment Termination Date, directly or indirectly owning any interest in, managing, controlling, participating in, consulting with, rendering services for or in any manner engaging in any business anywhere in the world competing with the products or services of the Company or its Subsidiaries, as such products or services exist or are in process as of such Participant's Termination Date; provided that the passive ownership of not more than 2% of the outstanding shares of any class of capital stock of a corporation which is publicly traded will not be deemed to be a Competitive Activity, so long as such Participant has no active participation in the business of such corporation.

 

"Employee Shares" means, collectively, the Option Shares and the Purchased Shares.

 

"Employment Termination Date" means the first date on which a Participant is no longer employed, not including any notice period that may be required under local law (or in the case of a Participant who was not an employee, the first date on which such Participant is no longer acting as a director of, or consultant or advisor to, the Company or its Subsidiaries) by the Company or its Subsidiaries for any reason.

 

"Fair Market Value" of an Employee Share means the fair market value thereof as determined in good faith by the Committee or, in the absence of the Committee, by the Board.

 

"Independent Third Party" means any Person who, immediately prior to the contemplated transaction, does not own in excess of 10% of the Company's Common Stock on a fully diluted basis, who is not controlling, controlled by or under common control with any such 10% owner of the Company's Common Stock and who is not the spouse or descendant (by birth or adoption) of any such 10% owner of the Company's Common Stock.

 

"Investors" means any party who has invested equity or loans into the company.

 

"IPO" means an initial public offering and sale of the Company's Common Stock pursuant to an effective registration statement under the Securities Act.

 

"Option" means any option enabling the holder thereof to purchase any of the Company's Common Stock granted by the Committee (or, in the absence of the Committee, the Board) pursuant to the provisions of this Plan. Options to be granted under this Plan may be incentive stock options within the meaning of Section 422 of the Code ("Incentive Stock Options") or in such other form, consistent with this Plan, as the Committee (or, in the absence of the Committee, the Board) may determine.

 

"Option Shares" means the shares of the Company's Common Stock acquired (or to be acquired) pursuant to the exercise of any Option.

 

"Original Cost" of each Employee Share will be equal to the price paid therefore (in each case, as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting such shares of Common Stock subsequent to any such purchase).

 

"Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint share company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

 

"Purchased Shares" means any shares of the Company's Common Stock purchased by a Participant pursuant to this Plan.

 

"Sale of the Company" means any transaction involving the Company or its stockholders and an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire (a) a majority of the Company's outstanding shares of capital stock entitled to vote generally in the election of the Board (whether by merger, consolidation or sale or transfer of the Company's outstanding shares of capital stock or otherwise) or (b) all or substantially all of the Company's assets determined on a consolidated basis (for purposes hereof "all or substantially all" shall have the meaning given such phrase in the Revised Model Business Corporation Act).

 

"Securities Act" means the U.S. Securities Act of 1933, as amended, and any successor statute thereto.

 

"Subsidiary" means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity, a majority of the limited liability company, partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of the limited liability company, partnership, association or other business entity gains or losses or shall be or control the managing member, general partner or managing director of such limited liability company, partnership, association or other business entity.

 

"Termination Event" means the first to occur of (a) the consummation of a Sale of the Company and (b) subsequent to the consummation of an IPO, the first date on which the Investors collectively cease to own at least 25% of the aggregate number of shares of the Company's Common Stock held by such Investors as of the date of the IPO (as adjusted for any share split, share combination or similar event involving the Company).

 

"Unvested Shares" means any Employee Shares which are designated as Unvested Shares in any separate written agreement with respect to Employee Shares between the Company and a Participant.

 

"Vested Shares" means any Employee Shares which are designated as or have become vested shares in any separate written agreement with respect to Employee Shares between the Company and a Participant and any Employee Shares which are not subject to any vesting requirements (e.g., shares of capital stock of the Company which have been acquired by the applicable Participant whether pursuant to an Option or otherwise).

     

8. Listing, Registration and Compliance with Laws and Regulations. Each Option shall be subject to the requirement that if at any time the Committee (or, in the absence of the Committee, the Board) shall determine, in its discretion, that the listing, registration or qualification of the shares subject to the Option upon any securities exchange or under any federal, state or foreign securities or other law or regulation, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition to or in connection with the granting of such Option or the issue or purchase of shares thereunder, no such Option may be exercised or paid in shares of Common Stock in whole or in part unless such listing, registration, qualification, consent or approval (a "Required Listing") shall have been effected or obtained, and the holder of each such Option will supply the Company with such certificates, representations and information as the Company shall request which are reasonably necessary or desirable in order for the Company to obtain such Required Listing, and shall otherwise cooperate with the Company in obtaining such Required Listing. In the case of officers and other persons subject to Section 16(b) of the Securities Exchange Act of 1934, as amended, the Committee (or, in the absence of the Committee, the Board) may at any time impose any limitations upon the exercise of an Option which, in the Committee's discretion, are necessary or desirable in order to comply with Section 16(b) and the rules and regulations thereunder.

9. Cash Payments Upon Exercise. Subject to Section 18(d) below, Options may, in the Committee's (or, in the absence of the Committee, the Boards) discretion, provide that the holder thereof, as soon as practicable after the exercise of the Options, will receive, in lieu of any issuance of shares of Common Stock, a cash payment in such amount as the Committee (or, in the absence of the Committee, the Board) may determine, but not less than the excess of the Fair Market Value of a share of Common Stock (on the date the holder recognizes taxable income) over the Option's exercise price multiplied by the number of shares as to which the Option is exercised.

     

11. Taxes. The Company (and/or any of its Subsidiaries) shall be entitled, if necessary or desirable, to withhold (or secure payment from the Participant in lieu of withholding) the amount of any withholding or other tax due from the Company (and/or any of its Subsidiaries) with respect to any amount payable and/or shares issuable under this Plan, and the Company may defer such payment or issuance unless indemnified to the Board's satisfaction. In any event, each Participant shall be required to indemnify the Company and hold it harmless for any and all withholding and similar tax obligations arising as a result of the grant or exercise of Options hereunder or the issuance of any Option Shares upon exercise of the Options.

 

     

12. Termination and Amendment. The Committee (or, in the absence of the Committee, the Board) at any time may suspend or terminate this Plan and make such additions or amendments as it deems advisable under this Plan (except that it may not (a) increase the maximum number of shares as to which Options may be granted under this Plan, except pursuant to Section 10 above, or (b) extend the term of this Plan); provided that, subject to the other provisions hereof, the Committee (or, in the absence of the Committee, the Board) may not change any of the terms of (i) a written agreement (other than those contained in this Plan that are incorporated therein by reference) with respect to an Option between the Company and the holder of such Option without the approval of the holder of such Option in a manner which would have a material adverse effect on the Participant without the written approval of the holder of such Option (or, in the case of a change with respect to more than one such agreement that affects the Participant in a manner substantially similar to other applicable Participants, without the written approval of a majority of the Option Shares obtainable upon exercise of all Options held by all such Participants) or (ii) a written agreement (other than those contained in this Plan that are incorporated therein by reference) with respect to Common Stock between the Company and the holder of such Common Stock without the approval of such holder of Common Stock.

(e) During the term of any Participant's employment with the Company or any of its Subsidiaries and during the one year period immediately following such Participant's Employment Termination Date, Participant shall not directly or indirectly through another Person (i) engage in any Competitive Activity, (ii) induce or attempt to induce any employee of the Company or any Subsidiary to leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship between the Company or any Subsidiary and any employee thereof, (iii) hire or employ any person who is or was during the six months prior to such determination an employee of the Company or any Subsidiary, (iv) in any way interfere with the relationship between any customer, supplier, licensee or other business relation of the Company or any Subsidiary and the Company or any Subsidiary (including, without limitation, inducing such person to cease doing business with the Company or making any negative statements or communications about the Company or its Subsidiaries) or (v) directly or indirectly acquire or attempt to acquire any business which the Company or any of its Subsidiaries has identified as a potential acquisition target (an "Acquisition Target") by the Company or any of its Subsidiaries, or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any Person other than the Company or any of its Subsidiaries.

 

(b) Repurchase Price. On or after the Employment Termination Date, the Company may elect to repurchase all or any portion of the Vested Shares at a price per share equal to (i) in the event of such Participant's termination for Cause or participation in a Competitive Activity, at the lower of Original Cost or Fair Market Value (as of the Employment Termination Date) and (ii) otherwise, at Fair Market Value (as of the Employment Termination Date). The Company may elect to purchase all or any portion of any Vested Shares.

(c) Repurchase Procedures. The Company may elect to exercise the Repurchase Option to purchase the Employee Shares by delivering written notice (the "Repurchase Notice") to the holder or holders of the Vested Shares no later than 365 days following the Employment Termination Date. The Repurchase Notice will set forth the number of Employee Shares to be acquired from such holder(s), the aggregate consideration to be paid for such Employee Shares and the time and place for the closing of the transaction. If any Employee Shares are held by any transferees of a Participant, the Company will purchase the shares elected to be purchased from all such holder(s) of Employee Shares, pro rata according to the number of Employee Shares held by each such holder(s) at the time of delivery of the Repurchase Notice (determined as nearly as practicable to the nearest share). If Employee Shares of different classes are to be purchased pursuant to the Repurchase Option and such Employee Shares are held by any transferees of a Participant, the number of shares of each class of Employee Shares to be purchased will be allocated among all such holders, pro rata according to the total number of Employee Shares to be purchased from such Persons.

(d) Closing. The closing of the transactions contemplated by this Section 14 will take place on the date designated in the Repurchase Notice, which date will not be more than 90 days after the delivery of such notice. The Company will pay for the Employee Shares to be purchased by it by first offsetting amounts outstanding under any bona fide debts owing by such Participant to the Company or any of its Subsidiaries, now existing or hereinafter arising (irrespective as to whether such amounts are owing by the holder of such Employee Shares), and will pay the remainder of the purchase price by, at its option, delivery of a check payable to the holder of such Employee Shares in the aggregate amount of the purchase price for such shares. Any notes issued by the Company pursuant to this Section 14(d) shall be subject to any restrictive covenants to which the Company or its Subsidiaries are subject at the time of such purchase. Notwithstanding anything to the contrary contained herein, all repurchases of Employee Shares by the Company will be subject to applicable restrictions contained in the corporation law of the Company's jurisdiction of incorporation and in the Company's and its Subsidiaries' debt and equity financing agreements. If any such restrictions prohibit the repurchase of Employee Shares hereunder which the Company is otherwise entitled to make, the Company may make such repurchases as soon as it is permitted to do so under such restrictions. The Company will receive customary representations and warranties from each seller regarding the sale of the Employee Shares, including, but not limited to, representations that such seller has good and marketable title to the Employee Shares to be transferred free and clear of all liens, claims and other encumbrances.

(e) Termination of Repurchase Option. Subject to Section 18(d) below, the provisions of this Section 14 will terminate upon the first to occur of (i) the consummation of a Sale of the Company and (ii) the effective date of an IPO.     

 

(b) The obligations of the holders of Employee Shares with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of the Company's capital stock will receive the same form of consideration and the same portion of the aggregate consideration that such holders of capital stock would have received if such aggregate consideration had been distributed by the Company in complete liquidation pursuant to the rights and preferences set forth in the Company's Certificate of Incorporation as in effect immediately prior to such Approved Sale, (ii) if any holder of a class of capital stock is given an option as to the form and amount of consideration to be received, each holder of such class of capital stock will be given the same option and (iii) each holder of then currently exercisable rights to acquire shares of a class of capital stock will be given an opportunity to exercise such rights prior to the consummation of the Approved Sale and participate in such sale as holders of such class of capital stock.

(c) If the Company or the holders of the Company's securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Employee Shares will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501 promulgated by the Securities and Exchange Commission) reasonably acceptable to the Company. If any holder of Employee Shares appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any holder of Employee Shares declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.

(d) In the event of a Sale of the Company, all Employee Shares shall be assumed or a substantially equivalent share of capital stock, option or right substituted by the successor corporation or an Affiliate thereof. In the event that the successor corporation refuses to assume or substitute for the Employee Shares, all such Employee Shares which are Unvested Shares shall fully vest and become exercisable. If a Participant's Employee Shares become fully vested and exercisable in lieu of assumption or substitution in the event of a Sale of the Company, the Committee (or, in the absence of the Committee, the Board) shall notify the Participant in writing or electronically that the Employee Shares shall be fully exercisable for a period of fifteen (15) days from the date of such notice, and rights to acquire Employee Shares shall expire upon the expiration of such period. For the purposes of this Section 18(d), the Employee Shares shall be considered assumed if, following the Sale of the Company, the option or right confers the right to purchase or receive, for each Employee Share immediately prior to the Sale of the Company, the consideration (whether stock, cash, or other securities or property) received in connection with the Sale of the Company by holders of Common Stock for each share of Common Stock held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Common Stock); provided, however, that if such consideration received in connection with the Sale of the Company is not solely common stock of the successor corporation or its Affiliate, the Committee (or, in the absence of the Committee, the Board) may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Employees, for each Employee Share, to be solely common stock of the successor corporation or its Affiliate equal in fair market value to the per share consideration received by holders of Common Stock in connection with the Sale of the Company.

 

(e) The provisions of this Section 18 will terminate upon the closing of an IPO.

     

20. Transfers in Violation of Plan. Any transfer or attempted transfer of any Employee Shares in violation of any provision of this Plan shall be void, and the Company shall not record such transfer on its books or treat any purported transferee of such Employee Shares as the owner of such shares for any purpose.

    

21. Severability. Whenever possible, each provision of this Plan will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Plan is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Plan will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

     

22. Remedies. Each of the Company and any Participant will be entitled to enforce its rights under this Plan specifically, to recover damages and costs (including reasonable attorneys' fees) caused by any breach of any provision of this Plan and to exercise all other rights existing in its favor. Each Participant and the Company acknowledges and agrees that money damages may not be an adequate remedy for any breach of the provisions of this Plan and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Plan.

     

23. Business Days. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or holiday in the state in which the Company's chief executive office is located, the time period shall be automatically extended to the business day immediately following such Saturday, Sunday or holiday.

     

24. Governing Law. All issues concerning this Plan will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to any choice of law or conflict of law provision of rule (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the Commonwealth of Virginia. Each of the Company and each Participant waives the necessity for personal service of any and all process upon it and consents that all such service of process may be made by registered or certified mail (return receipt requested), in each case directed to such party in accordance with the notice requirements set forth in this Plan, and service so made will be deemed to be completed on the date of actual receipt. Each of the Company and each Participant consents to service of process as aforesaid. Nothing in this Plan will prohibit personal service in lieu of the service by mail contemplated herein.

 

25. Notices. Any notice required or permitted under this Plan or any agreement executed and delivered in connection with this Plan shall be in writing and shall be either delivered by reputable overnight courier, personally delivered, or mailed by first class mail, return receipt requested, to any Participant at the address indicated in the Company's records for such Person, and to the Company at the address below indicated: