SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
THIRD-ORDER NANOTECHNOLOGIES, INC.
2601 Annand Drive, Suite 16
Wilmington, Delaware19808
February 18, 2008
To our Stockholders:
Enclosed, please find an Information Statement providing information to you regarding the following corporate action taken by our Board of Directors and the holders of the majority of the voting power of Third-order Nanotechnologies, Inc.:
1. The Approval of an amendment to the Company's Articles of
Incorporation to change the name of the Company from
Third-order Nanotechnologies, Inc. to Lightwave Logic, Inc.;
2. The Approval of an amendment to the Company's Articles of
Incorporation to increase the number of authorized shares of
our common stock from 50,000,000 to 100,000,000; and
3. The adoption of the 2007 Employee Stock Plan.
The majority stockholders and our Board of Directors have also authorized our officers to fix the record date for the changes to our Articles of Incorporation and to execute documents and take other action as is necessary to effect the authorized action. Nevada Revised Statues and the Company's bylaws permit holders of a majority of the voting power to take stockholder action by written consent. Accordingly, the Company will not hold a meeting of its stockholders to consider or vote upon the authorization of the corporate action described in this Information Statement.
We encourage you to read the attached Information Statement carefully, including the exhibits, for further information regarding these actions. In accordance with Rule 14c-2 promulgated under the Securities Exchange Act of 1934, as amended ("Exchange Act"), the approval of the action described herein by the holders of a majority of the voting power of the Company will be deemed ratified and effective at a date that is at least 20 days after the date this Information Statement has been mailed or furnished to our stockholders. This Information Statement is first being mailed or furnished to stockholders on or about February 18, 2008.
This Is Not A Notice Of A Meeting Of Stockholders And No Stockholders' Meeting Will Be Held To Consider The Matters Described Herein.
This Information Statement is being furnished to you solely for the purpose of informing stockholders of the matters described herein in compliance with Regulation 14C of the Exchange Act.
Very truly yours,
/s/ Harold R. Bennett --------------------- Harold R. Bennett, Chief Executive Officer |
INFORMATION STATEMENT
THIRD-ORDER NANOTECHNOLOGIES, INC.
2601 Annand Drive, Suite 16
Wilmington, Delaware19808
February 18, 2008
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO
SEND US A PROXY.
This Information Statement is first being furnished on or about February 18, 2008 to the holders of record as of the close of business on February 6, 2008 (the "Record Date") of the common stock of Third-order Nanotechnologies, Inc. ("Third- Order," "we," or "us" or the "Company"). Upon the previous approval of our Board of Directors, on February 6, 2008 a total of ten stockholders, including directors, owning 17,071,904 shares of our outstanding common stock as of February 6, 2008, have consented in writing to the actions described below. Such approval and consent constitutes the approval and consent of a majority of the total combined voting power of our outstanding common stock and are sufficient under the Nevada Revised Statutes and our Articles of Incorporation and Bylaws to approve the action. Accordingly, the actions will not be submitted to the other stockholders of Third-order for a vote. This Information Statement is being furnished to stockholders to provide them with certain information concerning the actions in accordance with the requirements of the Securities Exchange Act of 1934 and the regulations promulgated thereunder, including Regulation 14C.
The date of the Information Statement is February 18, 2008.
GENERAL
We will pay all costs associated with the distribution of this Information Statement, including the costs of printing and mailing. We will reimburse brokerage firms and other custodians, nominees and fiduciaries for reasonable expenses incurred by them in sending this Information Statement to the beneficial owners of our common stock.
We will only deliver one Information Statement to multiple security holders sharing an address unless we have received contrary instructions from one or more of the security holders. We will promptly deliver a separate copy of this Information Statement to a security holder at a shared address to which a single copy of the document was delivered upon oral or written request to:
Third-order Nanotechnologies, Inc.
2601 Annand Drive, Suite 16
Wilmington, Delaware19808
Telephone No.: (302) 998-8824
Security holders may also address future requests for separate delivery of information statements and/or annual reports by contacting us at the address listed above.
The information contained in this Information Statement constitutes the only notice we will be providing stockholders with respect thereto.
NOTICE TO STOCKHOLDERS OF ACTIONS APPROVED BY CONSENTING STOCKHOLDERS
The Board of Directors and stockholders holding a 50.65% majority of the shares of voting securities outstanding and entitled to vote unanimously adopted and approved to amend our Articles of Incorporation as follows: (i) to change the name of the Company from Third-order Nanotechnologies, Inc. to Lightwave Logic, Inc.; and (ii) to increase our authorized shares of common stock from 50,000,000 shares to 100,000,000 shares.
A. Name Change
We believe a name change from Third-order Nanotechnologies, Inc. to Lightwave Logic, Inc. better suits our strategic business plan and will facilitate stockholder recognition of our Company and its business. Therefore, we consider this amendment to be in the best interest of the Company.
B. Increase in Authorized Shares
We believe that an increase in the number of authorized shares of our common stock from 50,000,000 shares to 100,000,000 shares is prudent in order to assure that a sufficient number of shares of our common stock are available for issuance in the future if our Board of Directors deems it to be in our and our stockholders' best interests. A total of 50,000,000 additional shares of common stock have been determined by our Board of Directors to be a reasonable estimate of what might be required in this regard for the foreseeable future to accommodate fundraising and other opportunities involving the issuance of our common stock. Immediately following this increase, the Company will have approximately 66,296,925 shares of common stock authorized but unissued and available for issuance.
The authorized but unissued shares of our common stock will be available for issuance from time to time as may be deemed advisable or required for various purposes, including the issuance of shares in connection with financings or acquisition transactions or as compensation for services. At present, we have no specific plans for the issuance of any of the shares of common stock that are to be newly authorized.
Our Board of Directors will be able to authorize the issuance of shares for these transactions without the necessity, and related costs and delays, of either calling a special stockholders' meeting or waiting for a regularly scheduled meeting of stockholders in order to increase the authorized capital. If in a particular transaction stockholder approval were required, by law or any stock exchange rules or were otherwise deemed advisable by the Board of Directors, then the matter would be referred to the stockholders for their approval notwithstanding that we may have the requisite number of voting shares to consummate the transaction without such stockholder approval.
This amendment is not intended to have any anti-takeover effect. However, our stockholders should note that the availability of additional authorized and unissued shares of common stock could make any attempt to gain control of our company or the Board of Directors more difficult or time consuming and that the availability of additional authorized and unissued shares might make it more difficult to remove management. Although the Board of Directors currently has no intention of doing so, shares of common stock could be issued by the Board of Directors to dilute the percentage of common stock owned by any stockholder and increase the cost of, or the number of, voting shares necessary to acquire control of the Board of Directors or to meet the voting requirements imposed by Nevada law with respect to a merger or other business combination involving our company. We have no present intention to use the increased authorized common stock for anti-takeover purposes.
C. No Effect On Your Stock Certificates
The name change from Third-order Nanotechnologies, Inc. to Lightwave Logic, Inc.; and the increase our authorized shares of common stock from 50,000,000 shares to 100,000,000 shares will be reflected in the Company's own books and records. For those stockholders that hold physical certificates, please do not destroy or send your common stock certificates to the Company or its transfer agent. Those stock certificates will continue to remain valid for the number of shares shown thereon, and should be carefully preserved by you.
D. No Other Material Effects
There will be no other material effect on your rights or interest in shares of common stock of the Company that you hold. There will be no material US Federal Income Tax consequences to either you or the Company as a result of the amendments.
On October 1, 2007 our Board of Directors adopted and approved the Company's 2007 Employee Stock Plan ("2007 Plan"). The approval of the 2007 Plan required the affirmative vote of a
majority of the shares of voting securities outstanding and entitled to vote, and on February 6, 2008, stockholders holding a 50.65% majority of the shares of voting securities outstanding and entitled to vote unanimously adopted and approved the Company's 2007 Plan. As such, no vote or further action of the stockholders of the Company is required to approve the 2007 Plan. You are hereby being provided with notice of the approval of the 2007 Plan.
The Board of Directors approved the 2007 Plan to ensure that the Company has adequate ways in which to provide stock based compensation to its directors, officers, employees, and consultants. The Board of Directors believes that the ability to grant stock-based compensation is important to the Company's future success. The grant of stock-based compensation, such as stock options, can motivate high levels of performance and provide an effective means of recognizing employee and consultant contributions to the Company's success. In addition, stock-based compensation can be valuable in recruiting and retaining highly qualified technical and other key personnel who are in great demand, as well as rewarding and providing incentives to the Company's current employees and consultants.
A. Summary of the 2007 Plan
The principal terms and provisions of the 2007 Plan are summarized below. As a summary, the description below is not a complete description of all the terms of the 2007 Plan and is qualified in its entirety by reference to the full text of the 2007 Plan.
stock, a recapitalization, a reclassification or a similar occurrence, the Committee shall make appropriate adjustments, subject to the limitations set forth in the 2007 Plan.
2. Tax Aspects of the 2007 Plan
Name and Position Dollar Value Number of Units ----------------- ------------ --------------- Harold R. Bennett $ 735,379 1,150,000 Director, Chief Executive Officer Executive Group $1,034,228 1,651,000 Non-Executive Director Group $ 59,490 100,000 Non-Executive Officer Employee Group $ 298,849 501,000 |
PROPOSALS BY SECURITY HOLDERS
None
DISSENTERS' RIGHTS OF APPRAISAL
Under Nevada Revised Statutes, our stockholders are not entitled to appraisal rights with respect to (i) the approval of an amendment to the Company's Articles of Incorporation to change the name of the Company from Third-order Nanotechnologies, Inc. to Lightwave Logic, Inc.; (ii) the approval of an amendment to the Company's Articles of Incorporation to increase the number of authorized shares of our common stock from 50,000,000 to 100,000,000; and (iii) the adoption of the 2007 Plan, and we will not independently provide stockholders with any such right.
INFORMATION ON CONSENTING STOCKHOLDERS
Pursuant to our bylaws and the Nevada Revised Statutes, a vote by the holders of at least a majority of the voting power of our outstanding capital stock is required to effect the actions described herein. As of the Record Date, we had outstanding 33,703,075 shares of common stock. Each share of common stock is entitled to one (1) vote. Of the total potential 33,703,075 votes, more than 50%, or 16,851,538, is required to pass any stockholder resolution. The consenting majority stockholders of the Company are the owners of 17,071,904 shares of common stock representing a total of 50.65% of the total voting power as of the Record Date. Pursuant to Section 78.320 of the Nevada Revised Statutes, the consenting majority stockholders voted in favor of the actions described herein in a written consent dated February 6, 2008. The consenting stockholders' names and shares voted are as follows:
Shares of Common Stock
Name of Stockholder Voted by Consent
------------------- ----------------
Harold R. Bennett 400,000
Frederick J. Goetz, Jr. 3,372,000
Frederick J. Goetz 3,465,000
Mary Goetz 3,132,000
Andrew J. Ashton 3,132,000
Universal Capital Management, Inc. (1) 1,012,572
Zenith Holdings (2) 900,000
Phillips W Smith Family Trust (3) 733,333
Sean H. Fitzpatrick 649,999
David M. Bovi 275,000
----------
Total 17,071,904
|
(1) Universal Capital Management, Inc. is a publicly traded
business development company.
(2) By Barbara Queen.
(3) By Phillips W Smith, Trustee.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security Ownership of Certain Beneficial Owners
The following table sets forth the names, addresses, amount and nature of beneficial ownership and percent of such ownership of each person or group known to our Company to be the beneficial owner of more than five percent (5%) of our common stock as of February 6, 2008:
Name and Address Amount and Nature of Beneficial Owner (1) of Beneficial Ownership(3) % of Class Owned (5) ------------------- ----------------------- ---------------- Frederick J. Goetz, Jr. (2) 3,372,000 10.00% Frederick J. Goetz (2) 6,597,000 (4) 19.57% Mary Goetz (2) 6,597,000 (4) 19.57% Andrew J. Ashton 3,132,000 9.29% |
Security Ownership of Management
The following table sets forth the names, addresses, amount and nature of beneficial ownership and percent of such ownership of our common stock of each of our officers and directors, and officers and directors as a group as of February 6, 2008:
Name and Address Amount and Nature
of Beneficial Owner (1) of Beneficial Ownership (2) % of Class Owned (3)(4)
----------------------- --------------------------- -----------------------
Harold R. Bennett 737,500 (5) 2.19%
Director, Chief Executive
Officer
Frederick J. Goetz, Jr. (6) 3,372,000 10.00%
Director, President
Andrew J. Ashton 3,132,000 9.29%
Director, Executive
Vice President, Treasurer
Secretary
|
Frederick J. Goetz (6) 6,597,000 (7) 19.57%
Chief Science Officer
David Eaton 41,750 (8) *
Chief Technology Officer
William C. Pickett, III 25,000 (9) *
Director
Directors and Officers as
a Group (6 Persons) 13,905,250 41.26%
|
We are not aware of any arrangements that could result in a change of control.
Executive Compensation
The table below summarizes all compensation awarded to, earned by, or paid to our current executive officers for the fiscal years ended December 31, 2007 and 2006.
Summary Compensation Table
--------------------------
Name Non-Equity Nonqualified
and Stock Option Incentive Plan Deferred All Other
principal Salary Bonus Awards Awards Compensation Compensation Compensation Total
position Year ($) ($) ($) ($) ($) Earnings ($) ($) ($)
-------- ---- --- --- --- --- --- ------------ --- ---
Harold R. 2007 114,000 0 288,000 447,379 0 0 189,228 1,038,607
Bennett
Director
CEO(1)
Ronald R. 2007 25,806 0 0 0 0 0 0 25,806
Genova, 2006 96,000 0 0 473,737 0 0 0 569,737
Interim
CEO(2)
Frederick J. 2007 88,000 45,000 0 0 0 0 5,000(4) 133,000
Goetz, Jr., 2006 96,000 0 0 0 0 0 6,000(4) 102,000
President,
Director(3)
|
(1) Mr. Bennett was appointed to serve as our Chief Executive
Officer in March 2007. Mr. Bennett receives $12,000 per month for
his services as the Company's chief executive officer. On April
17, 2007, Mr. Bennett received a warrant to purchase up to
300,000 shares of common stock at a purchase price of Twenty-Five
Cents ($0.25) per share. On November 17, 2007, pursuant to the
Company's 2007 Plan, the Company issued 400,000 shares of the
Company's restricted common stock and an option to purchase up to
750,000 shares of the Company's restricted common stock at an
exercise price of $0.72 per share to Mr. Bennett for his services
as the Company's chief executive officer.
(2) From September 2005 to February 2007, Mr. Genova served as
our Interim Chief Executive Officer. Mr. Genova received $8,000
per month for serving as our interim chief executive officer. Mr.
Genova deferred payment of $24,000 owed to him during 2006 due to
our limited operating capital. Previously, on May 6, 2005, we
entered into an Advisory Board Agreement with Mr. Genova whereby
we named Mr. Genova to our Advisory Board to provide advisory
services to our Company, and pursuant to that agreement we issued
to Mr. Genova a warrant to purchase 100,000 shares of our common
stock at an exercise price of $2.10 per share. On February 14,
2006, we canceled that warrant and granted Mr. Genova stock
options to purchase up to 500,000 shares of our common stock at
the exercise price of $1.00 per share pursuant to our 2005 Stock
Option Plan, all of which are expired.
(3) We have no written employment agreement with Fred Goetz, Jr.
Mr. Goetz receives an annual salary of $96,000. Mr. Goetz
deferred payment of $8,000 owed to him during 2006.
(4) We provide an automobile that Mr. Fred Goetz, Jr. utilizes
at a cost to us of approximately $5,000 to $6,000 per year.
Summary of Options Grants
Set forth below is a summary of our option awards to
executive officers outstanding as of December 31, 2007, our
latest fiscal year end.
Equity
Incentive Plan
Equity Awards:
Incentive Plan Market Equity Incentive Market Or
Number of Awards: Number Of Value Of Plan Awards: Payout Value
Number of Securities Number of Shares Or Shares Or Number Of Of Unearned
Securities Underlying Securities Units Of Units Of Unearned Shares, Shares, Units
Underlying Unexercised Underlying Option Stock That Stock That Units Or Other Or Other
Unexercised Options Unexercised Exercise Option Have Not Have Not Rights That Have Rights That
Options (#) (#) Unearned Price Expiration Yet Yet Not Yet Have Not
Name Exercisable(1) Unexercisable Options(#) ($) Date Vested(#) Vested(#) Vested(#) Vested($)
---- -------------- ------------- ---------- --- ---- --------- --------- --------- ---------
Harold R. 300,000 75,000 --- $0.25 04/17/2010 --- --- --- ---
Bennett 750,000 687,500 $0.72 11/17/2012 --- --- --- ---
|
(1) We grant stock options to our executive officers based on their level of experience and contributions to our Company. The aggregate fair value of these options are computed in accordance with FAS 123R and are reported in the Summary Compensation Table above in the column titled "Option Awards." On April 17, 2007, Mr. Bennett received a warrant to purchase up to 300,000 shares of common stock at a purchase price of $0.25 per share. 25,000 shares vested on April 17, 2007 and the remaining 275,000 shares vest in 11 equal monthly installments of 25,000 shares per month commencing on the 15th day of each month following April 17, 2007. On November 17, 2007, pursuant to the Company's 2007 Plan, the Company issued 400,000 shares of the Company's restricted common stock and an option to purchase up to 750,000 shares of the Company's restricted common stock at an exercise price of $0.72 per share to Mr. Bennett for his services as the Company's chief executive officer. 62,500 shares underlying the options vest at the end of every three month period commencing November 17, 2007. At no time during the last fiscal year was any outstanding option otherwise modified or re-priced, and there was no tandem feature, reload feature, or tax-reimbursement feature associated with any of the stock options we granted to our executive officers or otherwise.
Compensation of Directors
During fiscal years 2006 and 2007, no officer or director received any type of compensation from our Company for serving as such. We adopted our 2007 Plan for the benefit of our directors, officers, employees and consultants, and we have reserved 3,500,000 shares of common stock for such persons pursuant to the 2007 Plan.
Compensation Committee
Our Board of Directors currently has no formal committees, such as a compensation committee or an audit committee.
INTERESTS OF CERTAIN PERSONS IN OR IN OPPOSITION TO MATTERS TO BE ACTED ON
Other than as described herein regarding awards granted to Harold R. Bennett, William C. Pickett, III, and David Eaton pursuant to our 2007 Plan, no director, executive officer, or any associate thereof, or any other person has any interest, direct or indirect, by security holdings or otherwise, in the corporate action taken by our Board of Directors and the holders of the majority of the voting power that is described in this Information Statement.
No director is opposed to the matters described in this Information Statement.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities Exchange Act and must file reports, proxy statements and other information with the Securities and Exchange Commission. The reports, information statements and other information we file with the Commission can be inspected and copied at the Commission Public Reference Room, 100 F Street, NE, Washington, DC 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at (800) SEC- 0330. The Commission also maintains a Web site (http://www.sec.gov) that contains reports, proxy, and information statements and other information regarding registrants, like us, which file electronically with the Commission.
SIGNATURE
Pursuant to the requirements of the Exchange Act of 1934, as amended, the Registrant has duly caused this Information Statement to be signed on its behalf by the undersigned hereunto authorized.
/s/ Harold R. Bennett --------------------- Harold R. Bennett Chief Executive Officer February 18, 2008 |
THIRD-ORDER NANOTECHNOLOGIES, INC.
Majority Consent of Shareholders in Lieu of Meeting
The undersigned, representing a 50.65% majority of all of the outstanding shares of common stock of Third-Order Nanotechnologies, Inc., a Nevada Corporation (the "Company"), consented to and adopted the following resolutions, effective on the date set forth below:
WHEREAS, it is in the best interest of the Company to encourage and assist officers directors, employees and consultants of the Company and any present or future subsidiaries of the Company in acquiring a stock ownership interest in the Company;
WHEREAS, it is in the best interest of the Company to rescind the Company's 2005 Stock Option Plan and adopt a new Company 2007 Employee Stock Plan;
WHEREAS, it is in the best interest of the Company to change the name of the Company from Third-order Nanotechnologies, Inc. to Lightwave Logic, Inc. to better suit the Company's strategic business plan and facilitate stockholder recognition of the Company and its business; and
WHEREAS, it is in the best interest of the Company to increase the number of authorized shares of common stock from 50,000,000 shares to 100,000,000 shares in order to assure that a sufficient number of shares of common stock are available for issuance to accommodate capital raising and other opportunities involving the issuance of common stock.
NOW THEREFORE BE IT RESOLVED, that the appropriate officers of the Company are authorized, empowered and directed, on behalf of the Company, to prepare and file with the Securities and Exchange Commission a Schedule 14C Information Statement (the "Schedule 14C") informing the stockholders of the Company who are not signatory hereto of the action taken hereby;
FURTHER RESOLVED, that the Company is authorized to reserve up to 3,500,000 shares of the Company's common stock for issuance pursuant to the Stock Plan;
FURTHER RESOLVED, that upon effectiveness of the Schedule 14C, the Company is authorized and directed to execute and file with the Secretary of State of Nevada a Certificate of Amendment to the Company's Articles of Incorporation, in the form attached hereto as Exhibit B, to change the name of the Company from Third- order Nanotechnologies, Inc. to Lightwave Logic, Inc.; and (ii) to increase the authorized shares of Company common stock from 50,000,000 shares to 100,000,000 shares;
FURTHER RESOLVED, that the appropriate officers and directors of the Company are authorized and directed to take any and all action, in their sole discretion, as may be necessary or appropriate to carry out the purpose and intent of these resolutions;
FURTHER RESOLVED, that the majority of shareholders hereby consent to the above resolutions taken by this Majority Consent of Shareholders in Lieu of Meeting;
FURTHER RESOLVED, that notice of this action taken by written consent shall be provided to shareholders of the Company who have not consented in writing to this action or who are not entitled to vote after the date set forth below;
FURTHER RESOLVED, that this Majority Consent of Shareholders in Lieu of Meeting may be executed in counterparts and with facsimile signatures with the effect as if all parties hereto had executed the same document. All counterparts shall be construed together and shall constitute a single document; and
FURTHER RESOLVED, that this written consent shall be delivered to the Company's secretary within 60 days after the date set forth below.
DATED: February 6, 2008
/s/__ Joseph Drennan ________ /s/____ Phillips W Smith____
Universal Capital Management, Phillips W Smith Family
Inc., shareholder, By Joseph Trust, shareholder, By
Drennan, Vice president Phillips W Smith, Trustee
/s/___ Fred Goetz, Jr.______ /s/___ Barbara Queen_______
Fred Goetz, Jr., shareholder Zenith Holdings, shareholder,
By Barbara Queen, president
/s/___ Andrew Ashton _____ /s/___ Fred Goetz, Sr._______
Andrew Ashton, shareholder Fred Goetz, Sr., shareholder
/s/__ Mary Goetz _________ /s/__ Sean H. Fitzpatrick _____
Mary Goetz, shareholder Sean H. Fitzpatrick, shareholder
/s/__ Harold R. Bennett _____ /s/___ David M. Bovi______
Harold R. Bennett, shareholder David M. Bovi, shareholder
|
2007 Employee Stock Plan
A. The Plan shall be administered by either (i) the
Board of Directors of the Company (the "Board"); or
(ii) a Stock Plan Committee (the "Committee"),
appointed by the Board, pursuant to the requirements
of paragraph 2.D. herein. Subject to paragraph 2.D.
herein and the terms of the Plan, the Committee, if so
appointed, shall have the authority to (i) determine the
employees of the Company and Related Corporations (from
among the class of employees eligible under paragraph 3
to receive ISOs) to whom ISOs may be granted, and to
determine (from among the class of individuals and
entities eligible under paragraph 3 to receive
Non-Qualified Options and Awards and to make Purchases)
to whom Non-Qualified Options, Awards and authorizations
to make Purchases may be granted; (ii) determine the
time or times at which Options or Awards may be granted
or Purchases made; (iii) determine the option price of
shares subject to each Option, which price shall not be
less than the minimum price specified in paragraph 6,
and the purchase price of shares subject to each
Purchases; (iv) determine whether each Option granted
shall be an ISO or a Non-Qualified Option; (v) determine
(subject to paragraph 7) the time or times when each
Option shall become exercisable and the duration of
the exercise period; (vi) determine whether restrictions
such as repurchase options are to be imposed on shares
subject to Options, Awards and Purchases and the nature
of such restrictions, if any, and (vii) interpret the
Plan and prescribe and rescind rules and regulations
relating to it. All references in this Plan to the
Committee shall mean the Board if no Committee has
been appointed. If the Committee determines to issue a
Non-Qualified Option, it shall take whatever actions it
deems necessary, under Section 422A of the Code and the regulations promulgated thereunder, to ensure that such Option is not treated as an ISO. The interpretation and construction by the Committee of any provisions of the Plan or of any Stock Right granted under it shall be final unless otherwise determined by the Board. The Committee may from time to time adopt such rules and regulations for carrying out the Plan as it may deem best. No member of the Board or the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any Stock Right granted under it.
B. The Committee may select one of its members as its chairman, and shall hold meetings at such time and places it may determine. Acts by a majority of the Committee, or actions reduced to or approved in writing by a majority of the members of the Committee, shall be the valid acts of the Committee. From time to time the Board may increase the size of the Committee and appoint additional members thereof, remove members (with or without cause) and appoint new members in substitution therefor, fill vacancies however caused, or remove all members of the Committee and thereafter directly administer the Plan.
C. Stock Rights may be granted to members of the Board in accordance with paragraph 2.D. herein and the provisions of this Plan applicable to other eligible persons. Members of the Board who are either (i) eligible for Stock Rights pursuant to the Plan or (ii) have been granted Stock Rights may vote on any matters affecting the administration of the Plan or the grant of any Stock Rights pursuant to the Plan.
D. Each transaction, i.e. each grant of Stock Rights to any
eligible participant under the Plan who is an officer or
director of the Company, (i) shall be approved in
advance to the granting of such right, by either the
full Board or the Committee of the Board which shall be
composed solely of two or more Non-Employee Directors;
(ii) shall be approved in advance to the granting of
such right, or ratified no later than the next annual
meeting of shareholders, by the affirmative votes of
the holders of a majority of the securities of the
issuer present, or represented, and entitled to vote
at a meeting duly held in accordance with the applicable
laws of the state or other jurisdiction in which the
Company is incorporated; or the written consent of the
holders of a majority of the securities of the issuer
entitled to vote; or (iii) shall be held by the officer
or director for a period of six months following the
date of such acquisition, provided that with respect
to Options, at least six months shall elapse from the
date of the acquisition/grant of the Options to the
date of disposition of the Options (other than upon
exercise or conversion) or its underlying equity
security. A Non-Employee Director is a director who
is not, at the time of such grant an officer of the
Company or any Related Corporation, or otherwise
employed by the Company or any Related Corporation;
does not receive compensation, either directly or
indirectly, from the Corporation or any Related
Corporation, for services rendered as a consultant
or in any capacity other than a director, except
for an amount that does not exceed the dollar amount for which disclosure is required pursuant to Item 404(a) of Regulation S-K promulgated under the Securities Act of 1933, as amended; does not possess an interest in any other transaction for which disclosure would be required pursuant to Item 404(a) of Regulation S-K; and is not engaged in a business relationship for which disclosure would be required pursuant to Item 404(b) of Regulation S-K.
A. The price per share specified in the agreement
relating to each Non-Qualified Option granted under
the Plan shall in no event be less than the lesser of
(i) the book value per share of Common Stock as of the
end of the fiscal year of the Company immediately
preceding the date of such grant, or (ii) 50 percent
of the fair market value per share of Common Stock on
the date of such grant.
B. The price per share specified in the agreement relating to each ISO granted under the Plan shall not be less than the fair market value per share of Common Stock on the date of such grant. In the case of an ISO to be granted to an employee owning stock possessing more than ten percent of the total combined voting power of all classes of stock of the Company or any Related Corporation, the price per share specified in the agreement relating to such ISO shall not be less than 110 percent of the fair market value per share of Common Stock on the date of the grant and such option is not exercisable more than five years from the date of its grant.
C. To the extent that the aggregate fair market value (determined at the time the option is granted) of stock with respect to which options meeting the requirements of Section 422(b) are exercisable for the first time by any individual during any calendar year exceeds $100,000, then such options shall not be treated as incentive stock options. The preceding sentence shall be applied by taking options into account in the order in which they were granted.
D. If, at the time an Option is granted under the Plan, the Company's Common Stock is publicly traded, "fair market value" shall be determined as of the last business day for which the prices or quotes discussed in this sentence are available prior to the date such Option is granted and shall mean (i) the average (on that date) of the high and low prices of the Common Stock on the principal national securities exchange on which the Common Stock is traded, if the Common Stock is then traded on a national securities exchange; or (ii) the last reported sale price (on that date) of the Common Stock on the NASDAQ National Market List, if the Common Stock is not then traded on a national securities exchange; or (iii) the closing bid price (or average of bid prices) last quoted (on that date) by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the NASDAQ National Market List. However, if the Common Stock is not publicly traded at the time an Option is granted under the Plan, "fair market value" shall be deemed by the Committee after taking into consideration all factors which it deems appropriate, including, without limitation, recent sale and offer prices of the Common Stock in private transactions negotiated at arm's length.
original instrument granting such ISO, except with respect to any part of such ISO that is converted into a Non-Qualified Option pursuant to paragraph 16.
A. The Option shall either be fully exercisable on the date of grant or shall become exercisable thereafter in such installments as the Committee may specify.
B. Once an installment becomes exercisable it shall remain exercisable until expiration or termination of the Option, unless otherwise specified by the Committee.
C. Each Option or installment may be exercised at any time or from time to time, in whole or in part, for up to the total number of shares with respect to which it is then exercisable.
D. The Committee shall have the right to accelerate the date of exercise of any installment of any Option; provided that the Committee shall not accelerate the exercise date of any installment of any Option granted to any employee as an ISO (and not previously converted into a Non-Qualified Option pursuant to paragraph 16) if such acceleration would violate the annual vesting limitation contained in Section 422A(b)(7) of the Code, as described in paragraph 6(c).
E. With respect to any Options granted to any officer or director of the Company pursuant to subsection (iii) of paragraph 2.D. herein, at least six months shall elapse from the date of the acquisition/grant of the Option to the date of disposition of the Option (other than upon exercise or conversion) or its underlying equity security.
Corporation for any period of time.
A. If an ISO optionee ceases to be employed by the Company and all Related Corporations by reason of his death, any ISO of his may be exercised, to the extent of the number of shares with respect to which he could have exercised it on the date of his death, by his estate, personal representative or beneficiary who has acquired the ISO by will or by the laws of descent and distribution, at any time prior to the earlier of the ISO's specified expiration date or one year from the date of the optionee's death.
B. If an ISO optionee ceases to be employed by the Company and all Related Corporations by reason of his disability, he shall have the right to exercise any ISO held by him on the date of termination of employment, to the extent of the number of shares with respect to which he could have exercised it on that date, at any time prior to the earlier of the ISO's specified expiration date or one year from the date of the termination of the optionee's employment. For the purposes of the Plan, the term "disability" shall mean "permanent and total disability" as defined in Section 22(e)(3) of the Code or successor statute.
A. If the shares of Common Stock shall be subdivided or combined into a greater or small number of shares of it the Company shall issue any shares of Common
Stock as a stock dividend on its outstanding Common Stock, the number of shares of Common Stock deliverable upon the exercise of Options shall be appropriately increased or decreased proportionately, and appropriate adjustments shall be made in the purchase price per share to reflect such subdivision, combination or stock dividend.
B. If the Company is to be consolidated with or acquired
by another entity in a merger, sale of all or
substantially all of the Company's assets or otherwise
(an "Acquisition"), the Committee or the Board of
Directors of any entity assuming the obligations of the
Company hereunder (the "Successor Board"), shall, as to
outstanding Options, either (i) make appropriate
provision for the continuation of such Options by
substituting on an equitable basis for the shares then
subject to such Options the consideration payable with
respect to the outstanding shares of Common Stock in
connection with the Acquisition; or (ii) upon written
notice to the optionees, provided that all Options must
be exercised, to the extent then exercisable, within a
specified number of days of the date of such notice, at
the end of which period the Options shall terminate; or
(iii) terminate all Options in exchange for a cash
payment equal to the excess of the fair market value of
the shares subject to such Options (to the extent then
exercisable) over the exercise price thereof.
C. In the event of a recapitalization or reorganization of the Company (other than a transaction described in subparagraph B above) pursuant to which securities of the Company or of another corporation are issued with respect to the outstanding shares of Common Stock, an optionee upon exercising an Option shall be entitled to receive for the purchase price paid upon such exercise the securities he would have received if he had exercised his Option prior to such recapitalization or reorganization.
D. Notwithstanding the foregoing, any adjustments made pursuant to subparagraphs A, B, or C with respect to ISOs shall be made only after the Committee, after consulting with counsel for the Company, determines whether such adjustments would constitute a "modification" of such ISOs (as that term is defined in Section 425 of the Code) or would cause any adverse tax consequences for the holders of such ISOs. If the Committee determines that such adjustments made with respect to ISOs would constitute a modification of such ISOs, it may refrain from making such adjustments.
E. In the event of the proposed dissolution or liquidating of the Company, each Option will terminate immediately prior to the consummation of such proposed action or at such other time and subject to such other conditions as shall be determined by the Committee.
F. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
G. No fractional shares shall be issued under the Plan and the optionee shall receive from the Company cash in lieu of such fractional shares.
H. Upon the happening of any of the foregoing events described in subparagraphs A, B, and C above, the class and aggregate number of shares set forth in paragraph 6 hereof that are subject to Stock Rights which previously have been or subsequently may be granted under the Plan shall also be appropriately adjusted to reflect the events described in such subparagraphs. The Committee or the Successor Board shall determine the specific adjustments to be made under this paragraph 13 and, subject to paragraph 2, its determination shall be conclusive.
If any person or entity owning restricted Common Stock obtained by exercise of a Stock Right made hereunder receives shares of securities or cash in connection with a corporate transaction described in subparagraphs A, B, or C above as a result of owning such restricted Common Stock, such shares or securities or cash shall be subject to all of the conditions and restrictions applicable to the restricted Common Stock with respect to which such shares or securities or cash were issued, unless otherwise determined by the Committee or the Successor Board.
may terminate or amend the Plan in any respect at any time, except that, without the approval of the holders of a majority of the outstanding shares of Common Stock obtained within 12 months before or after the Board adopts a resolution authorizing any of the following actions: (a) the total number of shares that may be issued under the Plan may not be increased (except by adjustments pursuant to paragraph 13); (b) the provisions of paragraph 3 regarding eligibility for grants of ISOs may not be modified (except by adjustment pursuant to Paragraph 13); (c) the provisions of paragraph 6 regarding the exercise price at which shares may be offered pursuant to ISO's may not be modified (except by adjustment pursuant to paragraph 13) and (d) the expiration date of the Plan may not be extended. Except as provided in the fourth sentence of this paragraph 15, in no event may action of the Board or Stockholders alter or impair the rights of a grantee, without his consent, under any Stock Right previously granted to him.
exercising a Stock Right on the grantee's payment of such additional withholding taxes.
ROSS MILLER
Secretary of State
(775) 684 5708
Website: secretaryofstate.biz
204 North Carson Street, Ste 1
Carson City, Nevada 89701-4299
Certificate of Amendment
(PURSUANT TO NRS 78.385 AND 78.390)
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: Third-order Nanotechnologies, Inc.
2. The articles have been amended as follows (provide article numbers, if available):
Article 1 - NAME is deleted in its entirety and replaced as follows:
The name of the corporation is Lightwave Logic, Inc.
Article IV - STOCK is deleted in its entirety and replaced as follows:
The aggregate number of shares which this corporation shall have authority to issue is 100,000,000 shares of Common Stock having a par value of $0.001 per share and 1,000,000 shares of Preferred Stock having a par value of $0.001 per share. All Common Stock of the corporation shall be of the same class, and shall have the same rights and preferences. The corporation shall have authority to issue the shares of Preferred Stock in one or more series with such rights, preferences and designations as determined by the Board of Directors of the corporation. Fully- paid stock of this corporation shall not be liable to any further call or assessment.
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 in 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:
50.65%
4. Effective date of filing (optional): Date of Filing
5. Officer Signature (Required): /s/Harold R. Bennett
--------------------
|
*If any proposed amendment would alter or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class or series affected by the amendment regardless of limitations or restrictions on the voting power thereof.
IMPORTANT: Failure to include any of the above information and submit the proper fees may cause this filing to be rejected.
This form must be accompanied by appropriate fees. Nevada Secretary of State AM 78.385 Amend 2007