As filed with the Securities and Exchange Commission on June 14, 2017
Registration No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
AMPLIFY ENERGY CORP.
(Exact
name of registrant as specified in its charter)
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Delaware
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82-1326219
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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500 Dallas Street, Suite 1600
Houston, Texas 77002
(713)
490-8900
(Address of principal executive offices, including zip code)
Amplify Energy
Corp. 2017 Non-Employee Directors Compensation Plan
(Full title of the plan)
Eric Willis
General Counsel
Amplify Energy Corp.
500
Dallas Street, Suite 1600
Houston, Texas 77002
(713) 490-8900
(Telephone
number, including area code, of agent for service)
Copies to:
Derek J.
Dostal, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New
York, NY 10017
(212) 450-4000
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Share(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount of
Registration Fee
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Common Stock, par value $0.0001 per share
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200,000
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$13.60
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$2,720,000.00
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$315.25
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(1)
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This Registration Statement on Form S-8 (the “Registration Statement”) covers shares of Common Stock, par value $0.0001 per share (“Common Stock”), of Amplify Energy Corp. (the “Company” or
the “Registrant”) issuable pursuant to the Amplify Energy Corp. 2017 Non-Employee Directors Compensation Plan (the “Plan”) and, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), any additional securities as may become issuable pursuant to the adjustment provisions of the Plan.
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(2)
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Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, solely for the purpose of computing the registration fee, based on the average of the high and low prices reported for a share of Common Stock
on the OTC Grey Market on June 7, 2017.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Registrant will provide all participants in the Plan with the document(s) containing information required by Part I of
Form S-8,
as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act. In accordance with the note to Part I of Form S-8 and Rule
428 of the Securities Act, the Registrant has not filed such document(s) with the Commission, but such documents (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) shall
constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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Except to the extent that information is
deemed furnished and not filed pursuant to securities laws and regulations, the Registrant hereby incorporates by reference into this Registration Statement the following documents:
(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016, as filed with the Commission on March 10,
2017; and
(b) All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred to in clause (a) above.
Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, all documents filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold
or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Unless otherwise noted or suggested by context, all financial information and data and accompanying financial statements and corresponding
notes, as of and prior to the Registrant’s emergence from bankruptcy pursuant to the Second Amended Joint Plan of Reorganization of Memorial Production Partners LP, et al. (the “Plan of Reorganization”) on May 4, 2017 (the
“Effective Date”), as contained or incorporated by reference herein, reflect the actual historical consolidated results of operations and financial condition of the Registrant for the periods presented and do not give effect to the Plan of
Reorganization or any of the transactions contemplated thereby, including the adoption of “fresh-start” accounting. Accordingly, such financial information may not be representative of the Registrant’s performance or financial
condition after the Effective Date. Except with respect to such historical financial information and data and accompanying financial statements and corresponding notes or as otherwise noted or suggested by the context, all other information
contained herein relates to the Registrant following the Effective Date.
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Item 4.
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Description of Securities.
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Capital Stock
The total number of shares of all classes of stock which the Registrant shall have authority to issue is 345,000,000 shares, consisting of
300,000,000 shares of Common Stock and 45,000,000 shares of Preferred Stock, par value $0.0001 per share (the “Preferred Stock”).
As of June 13, 2017, the Registrant had 25,000,000 shares of Common Stock and no shares of Preferred Stock outstanding. Summarized below
are material provisions of the Registrant’s amended and restated certificate of
incorporation and amended and restated bylaws, as well as relevant sections of the Delaware General Corporation Law (the “DGCL”). The following summary is qualified in its entirety by
the provisions of the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws, copies of which have been filed as exhibits to this Registration Statement, and by the applicable provisions of the DGCL.
Common Stock
The holders
of the Registrant’s Common Stock are entitled to one vote per share on all matters submitted to a vote of stockholders, including the election of directors, except that holders of the Common Stock shall not be entitled to vote on any amendment
to the certificate of incorporation (including any certificate of designations relating to any class or series of Preferred Stock) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of
such affected class or series are entitled, either separately or together with the holders of one or more other such classes or series, to vote thereon pursuant to the certificate of incorporation (including any certificate of designations relating
to any class or series of Preferred Stock) or pursuant to the DGCL. Holders of the Common Stock do not have any cumulative voting rights, which means that the holders of a majority of the outstanding Common Stock voting for the election of directors
can elect all directors then being elected. The holders of the Registrant’s Common Stock are entitled to receive dividends when, as, and if declared by the Registrant’s board of directors out of legally available funds. Upon the
Registrant’s liquidation or dissolution, the holders of Common Stock will be entitled to share ratably in those of the Registrant’s assets that are legally available for distribution to stockholders after payment of liabilities and subject
to the prior rights of any holders of Preferred Stock then outstanding. The rights, preferences and privileges of holders of Common Stock are subject to the rights of the holders of shares of any series of Preferred Stock that may be issued in the
future.
Preferred Stock
The Registrant is authorized to issue up to 45,000,000 shares of Preferred Stock. The Registrant’s board of directors is authorized,
subject to limitations prescribed by the DGCL and the Registrant’s amended and restated certificate of incorporation, to determine the terms and conditions of the Preferred Stock, including whether the shares of Preferred Stock will be issued
in one or more series, the number of shares to be included in each series and the powers, designations, preferences and relative, participating, optional or other rights of the shares. The Registrant’s board of directors is also authorized to
designate any qualifications, limitations or restrictions on the shares without any further vote or action by the stockholders. The issuance of Preferred Stock may have the effect of delaying, deferring or preventing a change in control of the
Registrant and may adversely affect the voting and other rights of the holders of its Common Stock, which could have an adverse impact on the market price of the Registrant’s Common Stock. The Registrant has no current plan to issue any shares
of Preferred Stock.
Certain Certificate of Incorporation, Bylaw and Statutory Provisions
The provisions of the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws and of the DGCL
summarized below may have an anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider in its best interest, including an attempt that might result in the receipt of a premium over the
market price for its shares.
Delaware Law
The Registrant is not subject to the provisions of Section 203 of the DGCL, regulating corporate takeovers. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the time that such stockholder becomes an interested stockholder, unless
the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An
“interested stockholder” is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’s outstanding voting
stock. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
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the transaction is approved by the board of directors before the date the interested stockholder attained that status;
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances; or
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on or after such time, the business combination is approved by the board of directors and authorized at a meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
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A Delaware corporation may “opt out” of Section 203 with an express provision in its
original certificate of incorporation or an express provision in its certificate of incorporation or bylaws resulting from amendments approved by the holders of at least a majority of the corporation’s outstanding voting shares. The Registrant
elected to “opt out” of the provisions of Section 203.
Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws
Provisions of the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws may
delay or discourage transactions involving an actual or potential change in control or change in the Registrant’s management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that
stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of the Registrant’s Common Stock.
Among other things, the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws:
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permit the board of directors to issue up to 45,000,000 shares of Preferred Stock, with any rights, preferences and privileges as they may designate;
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provide that the authorized number of directors may be changed only by resolution of the majority of all of the board of directors (including authorized but vacant directorships);
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provide that subject to the rights of the holders of any series of Preferred Stock of the Registrant then outstanding, all vacancies, including newly created directorships, may, except as otherwise required by law, be
filled by the affirmative vote of a majority of directors then in office, even if less than a quorum (prior to such time, vacancies may also be filled by the affirmative vote of the holders of a majority of the Registrant’s then outstanding
Common Stock);
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provide that the Registrant’s amended and restated bylaws may only be amended by the affirmative vote of the holders of a majority of its then outstanding Common Stock or by resolution adopted by a majority of all
of the directors (including authorized but vacant directorships);
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provide that certain provisions of the amended and restated bylaws relating to amendments to the bylaws, the election of directors, information rights and certain actions requiring board of directors approval, may not
be amended except with the affirmative vote or written consent of one or more stockholders then holding, in the aggregate, a majority of the voting power of all of the then outstanding shares of capital stock entitled to vote generally in the
election of directors, voting together as a single class;
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provide for certain “tag-along” rights as described below;
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eliminate the personal liability of the Registrant’s directors for monetary damages resulting from breaches of their fiduciary duty to the extent permitted by the DGCL and indemnify the directors and officers to
the fullest extent permitted by Section 145 of the DGCL;
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provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders must provide notice in writing in a timely manner,
and also specify requirements as to the form and content of a stockholder’s notice; and
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not provide for cumulative voting rights, therefore allowing the holders of a majority of the shares of Common Stock entitled to vote in any election of directors to elect all of the directors standing for election, if
they should so choose.
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Directors’ Liability and Indemnification of Directors and Officers
Section 145 of the DGCL authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and
officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursements for expenses incurred arising under the Securities Act.
The Registrant’s amended and restated certificate of incorporation provides that a director will not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except:
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for any breach of the duty of loyalty;
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for acts or omissions not in good faith or which involve intentional misconduct or knowing violations of law;
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for liability under Section 174 of the DGCL (relating to unlawful dividends, stock repurchases or stock redemptions); or
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for any transaction from which the director derived any improper personal benefit.
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The effect
of this provision is to eliminate the Registrant’s rights, and its stockholders’ rights, to recover monetary damages against a director for breach of a fiduciary duty of care as a director. This provision does not limit or eliminate the
Registrant’s rights or those of any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director’s duty of care. The provisions will not alter the liability of directors under federal
securities laws. In addition, the Registrant’s amended and restated certificate of incorporation provides that it indemnify each director and the officers, employees and agents determined by the board of directors to the fullest extent provided
by the laws of the State of Delaware. The Registrant’s amended and restated certificate of incorporation also requires the Registrant to advance expenses, including attorneys’ fees, to its directors and officers in connection with legal
proceedings, subject to very limited exceptions.
Any amendment to or repeal of these provisions will not adversely affect any right or
protection of the Registrant’s directors in respect of any act or failure to act that occurred prior to any amendment to or repeal of such provisions or the adoption of an inconsistent provision. If the DGCL is amended to provide further
limitation on the personal liability of directors of corporations, then the personal liability of the Registrant’s directors will be further limited to the greatest extent permitted by the DGCL. In addition, the Registrant has entered into
separate indemnification agreements with each of its directors and executive officers. The Registrant also maintains director and officer liability insurance.
Preemptive Rights
The
Registrant’s amended and restated certificate of incorporation provides that each stockholder that beneficially owns (including all shares beneficially owned by such stockholder’s affiliates) at least 5% of the total shares of Common Stock
outstanding as of the close of business on the record date determined by the board of directors (each such stockholder, a “Preemptive Rightsholder”), shall have the right to purchase up to its pro rata portion (based on the number of
shares of Common Stock beneficially owned by such stockholder as of the close of business on the record date, as a percentage of the total number of then-outstanding shares of Common Stock) of any New Equity Securities (as defined below) that the
Registrant or any of its subsidiaries proposes to sell or issue at any time and from time to time after the date hereof. The rights of Preemptive Rightsholders to purchase such New Equity Securities shall apply at the time of issuance of any right,
warrant, or option or convertible or exchangeable security that constitutes a New Equity Security, and not to the subsequent conversion, exchange or exercise of such New Equity Security in accordance with its terms.
“New Equity Security” means any and all (A) shares of Common Stock or other equity securities of the Registrant;
(B) equity securities of any subsidiary of the Registrant; (C) securities exchangeable into, or convertible or exercisable for, shares of securities of the type specified in clause (A) and (B); and (D) options, warrants or other
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rights to acquire securities of the type specified in clause (A) and (B), in each case other than as issued (1) to employees, officers, directors or consultants pursuant to any equity-based
compensation or incentive plans approved by the board of directors or included in the Registrant’s Plan of Reorganization confirmed by the United States Bankruptcy Court for the Southern District of Texas, Houston Division, and securities
issued upon exercise or conversion of such options, warrants, convertible securities or other rights, (2) in connection with a stock split, payment of dividends or any similar recapitalization, reclassification, distribution, exchange or
readjustment of shares approved by the board of directors, (3) pursuant to the Plan of Reorganization (including shares of Common Stock and warrants to purchase shares of Common Stock, in each case, issued pursuant to the Plan), and securities
issued upon exchange, conversion or exercise of such securities, (4) as consideration in any business combination, consolidation, merger or acquisition transaction or joint venture involving the Registrant or any of its subsidiaries,
(5) upon the conversion or exercise of any securities convertible or exercisable for shares of securities of the type specified in (A) and (B), (6) as issuances (in one or more transactions) as a bona fide “equity kicker” in an
aggregate amount with respect to all such issuances of less than 5% of the then-outstanding shares of Common Stock to one or more third party lenders who are not stockholders to whom the Registrant or one or more of its subsidiaries is becoming
indebted in connection with the incurrence of any indebtedness approved by the board of directors or (7) in an initial public offering (an “IPO”).
Tag-Along Rights
The
Registrant’s amended and restated certificate of incorporation provides that if at any time prior to the earlier of a listing on a national securities exchange (which, for the avoidance of doubt, does not include an “over-the-counter”
system or network) or the consummation of an IPO, stockholders acting as a group (collectively, the “Tag-Along Sellers”) propose to transfer shares of Common Stock in a transaction or series of related transactions that constitutes a
change of control, then each other stockholder that beneficially owns (including all shares beneficially owned by such stockholder’s affiliates) at least 5% of the total shares of Common Stock outstanding shall have the right to exercise
certain tag-along rights.
Special Meetings of Stockholders
The Registrant’s amended and restated bylaws provide that special meetings of stockholders may be called at any time pursuant to a
resolution adopted by the board of directors, or upon the written request to the Secretary of the Registrant (the “Secretary”) by one or more stockholders holding, in the aggregate, at least a majority of the voting power of the shares
entitled to vote in the election of directors of the Registrant. Stockholders requesting a special meeting must provide a notice to the Registrant with the proposed date, time and place of the meeting, the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining
stockholders entitled to notice of the meeting, not less than 10 days nor more than 60 days before the date on which the meeting is to be held.
Stockholder Action and Advance Notice Requirements for Stockholder Proposals and Director Nominations
The Registrant’s amended and restated bylaws provide that stockholders may take action by written consent if the consent is signed by
holders of the Registrant’s outstanding shares having the number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
In addition, the Registrant’s amended and restated bylaws establish advance notice procedures for:
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stockholders to nominate candidates for election as a director; and
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stockholders to propose topics for consideration at stockholders’ meetings.
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nominations of directors or proposals of business to be properly brought before an annual meeting by a stockholder the stockholder must have given timely notice thereof in writing (“Record Stockholder Notice”) to the Secretary and any such
business must be a proper matter for stockholder action under Delaware law. To be timely, a Record Stockholder Notice shall be received by the Secretary at the principal executive offices of the Registrant not less than 45 nor more than 75 days
prior to the one-year anniversary of the date on which the Registrant first mailed its proxy materials for the preceding year’s annual meeting of stockholders; provided, however, that, subject to
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certain exceptions and limitations, (A) if the meeting is convened more than 30 days prior to or delayed by more than 30 days after the one-year anniversary of the preceding year’s
annual meeting, or if no annual meeting was held during the preceding year, notice by the Record Stockholder to be timely must be so received not later than the close of business on the later of (1) the 45th day before such annual meeting or
(2) the 10th day following the date on which public announcement of the date of such meeting is first made and (B) in the event that the number of directors to be elected to the board of directors is increased and a public announcement
naming all of the nominees for director or indicating the increase in the size of the board of directors is not made by the Registrant at least 10 days before the last day a stockholder may timely deliver a notice of nomination as set forth above, a
Record Stockholder Notice shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it is received by the Secretary at the principal executive offices of the Registrant not later than the
close of business on the 10th day following the date on which such public announcement is first made by the Registrant.
Directors
The Registrant’s board of directors currently has seven members. Each of the directors will serve for a term of one year. Directors hold
office until the annual meeting of stockholders and until their successors have been duly elected and qualified. The Registrant’s board of directors may elect a director to fill a vacancy, including vacancies created by the expansion of the
board of directors, upon the affirmative vote of a majority of the remaining directors then in office or by a sole remaining director.
The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting
in the election of directors.
Forum for Adjudication of Disputes
The Registrant’s amended and restated certificate of incorporation provides that unless the Registrant consents in writing to the
selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery shall not have jurisdiction, another state court located within the state of Delaware, or if no state court located within the state of
Delaware has jurisdiction, the federal district court for the District of Delaware), will be the sole and exclusive forum for any derivative action or proceeding brought on behalf of the Registrant, any action asserting breach of a fiduciary duty
owed by any director, officer or other employee of the Registrant, any action asserting a claim arising pursuant to the DGCL, the amended and restated certificate of incorporation or the bylaws of the Registrant, or any action asserting a claim
governed by the internal affairs doctrine. Although the Registrant has included a choice of forum provision in its amended and restated certificate of incorporation, it is possible that a court could rule that such provision is inapplicable or
unenforceable. In addition, this provision would not affect the ability of the Registrant’s stockholders to seek remedies under the federal securities laws.
Transfer Agent and Registrar
The
transfer agent and registrar for the Registrant’s Common Stock is American Stock Transfer & Trust Company, LLC.
Securities Exchange
Listing
The Registrant is in the process of registering its Common Stock on the OTCQX Market.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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Section 145(a) of the DGCL provides, in
general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the corporation), because he or she is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in
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settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made with respect to any claim, issue, or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines
that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other adjudicating court shall deem proper.
Section 145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending
any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized by Section 145 of the DGCL. Section 145(e) of the DGCL further provides that such
expenses (including attorneys’ fees) incurred by former directors and officers or other employees or agents of the corporation may be so paid upon such terms and conditions as the corporation deems appropriate.
Section 145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the person against such liability under
Section 145 of the DGCL.
The Registrant’s amended and restated certificate of incorporation provides that the Registrant will
indemnify and hold harmless, to the fullest extent permitted by the DGCL, any person who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that he or she is or was one of the Registrant’s directors or officers or is or was serving at the Registrant’s request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise. The Registrant’s amended and restated certificate of incorporation further provides for the advancement of expenses to each of its officers and directors.
The Registrant’s amended and restated certificate of incorporation provides that, to the fullest extent permitted by the DGCL, the
Registrant’s directors shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Under Section 102(b)(7) of the DGCL, the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary duty can be limited or eliminated except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL (relating to unlawful payment of dividend or unlawful stock purchase or redemption); or (4) for any
transaction from which the director derived an improper personal benefit.
The Registrant also maintains a general liability insurance
policy which covers certain liabilities of directors and officers of the Registrant arising out of claims based on acts or omissions in their capacities as directors or officers, whether or not the Registrant would have the power to indemnify such
person against such liability under the DGCL or the provisions of the Registrant’s amended and restated certificate of incorporation.
The Registrant has also entered into indemnity agreements with each of the Registrant’s directors and executive officers. These
agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and by the Registrant’s amended and restated certificate of incorporation or amended and restated bylaws.
7
|
Item 7.
|
Exemption from Registration Claimed.
|
Not applicable.
Item 8. Exhibits.
Unless otherwise
indicated below as being incorporated by reference to another filing of the Registrant with the Commission, each of the following exhibits is filed herewith:
EXHIBIT INDEX
|
|
|
|
|
Exhibit
Number
|
|
Description of Exhibit
|
|
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of Amplify Energy Corp. (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-8 (File No. 333-217674), filed with the Commission on May 4,
2017).
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws of Amplify Energy Corp. (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-8 (File No. 333-217674), filed with the Commission on May 4, 2017).
|
|
|
|
|
5.1*
|
|
Opinion of Davis Polk & Wardwell LLP.
|
|
|
|
|
23.1*
|
|
Consent of KPMG LLP.
|
|
|
|
|
23.2*
|
|
Consent of Ryder Scott Company, L.P.
|
|
|
|
|
23.3*
|
|
Consent of Davis Polk & Wardwell LLP (contained in Exhibit 5.1).
|
|
|
|
|
24.1*
|
|
Powers of Attorney (included on the signature pages of this Registration Statement).
|
|
|
|
|
99.1*#
|
|
Amplify Energy Corp. 2017 Non-Employee Directors Compensation Plan.
|
|
|
|
|
99.2*#
|
|
Form of RSU Award Agreement under the Amplify Energy Corp. 2017 Non-Employee Directors Compensation Plan.
|
|
#
|
Compensatory plan, contract or arrangement.
|
8
(a) The undersigned Registrant hereby undertakes:
|
|
(1)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
|
|
(i)
|
to include any prospectus required by Section 10(a)(3) of the Securities Act;
|
|
|
(ii)
|
to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
|
|
|
(iii)
|
to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
|
provided
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
|
|
(2)
|
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
|
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such
issue.
9
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas on June 13, 2017.
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|
|
|
|
|
|
AMPLIFY ENERGY CORP.
|
|
|
|
|
By:
|
|
/s/ William J. Scarff
|
|
|
|
Name:
|
|
William J. Scarff
|
|
|
|
Title:
|
|
President, Chief Executive Officer and Director
|
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints William J. Scarff and Robert L. Stillwell, Jr., and each of them,
severally, any of whom may act without joinder of the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including pre- and post-effective amendments) to this Registration Statement on Form S-8 and any additional registration statement pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully
to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the
capacities and on the date presented. This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ William J. Scarff
William J. Scarff
|
|
President, Chief Executive Officer and Director (Principal Executive Officer)
|
|
June 13, 2017
|
|
|
|
|
|
/s/ Robert L. Stillwell, Jr.
Robert L. Stillwell, Jr.
|
|
Senior Vice President and Chief Financial Officer (Principal Financial Officer)
|
|
June 13, 2017
|
|
|
|
|
|
/s/ Matthew J. Hoss
Matthew J. Hoss
|
|
Vice President, Accounting (Principal Accounting Officer)
|
|
June 13, 2017
|
|
|
|
|
|
/s/ Christopher Hamm
Christopher Hamm
|
|
Director
|
|
June 13, 2017
|
|
|
|
|
|
/s/ P. Michael Highum
P. Michael Highum
|
|
Director
|
|
June 13, 2017
|
|
|
|
|
|
/s/ Evan S. Lederman
Evan S. Lederman
|
|
Director
|
|
June 13, 2017
|
|
|
|
|
|
/s/ David H. Proman
David H. Proman
|
|
Director
|
|
June 13, 2017
|
|
|
|
|
|
/s/ Edward Andrew Scoggins, Jr.
Edward Andrew Scoggins, Jr.
|
|
Director
|
|
June 13, 2017
|
|
|
|
|
|
/s/ Alex Shayevsky
Alex Shayevsky
|
|
Director
|
|
June 13, 2017
|
10
EXHIBIT INDEX
|
|
|
|
|
Exhibit
Number
|
|
Description of Exhibit
|
|
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of Amplify Energy Corp. (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-8 (File No. 333-217674), filed with the Commission on May 4,
2017).
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws of Amplify Energy Corp. (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-8 (File No. 333-217674), filed with the Commission on May 4, 2017).
|
|
|
|
|
5.1*
|
|
Opinion of Davis Polk & Wardwell LLP.
|
|
|
|
|
23.1*
|
|
Consent of KPMG LLP.
|
|
|
|
|
23.2*
|
|
Consent of Ryder Scott Company, L.P.
|
|
|
|
|
23.3*
|
|
Consent of Davis Polk & Wardwell LLP (contained in Exhibit 5.1).
|
|
|
|
|
24.1*
|
|
Powers of Attorney (included on the signature pages of this Registration Statement).
|
|
|
|
|
99.1*#
|
|
Amplify Energy Corp. 2017 Non-Employee Directors Compensation Plan.
|
|
|
|
|
99.2*#
|
|
Form of RSU Award Agreement under the Amplify Energy Corp. 2017 Non-Employee Directors Compensation Plan.
|
|
#
|
Compensatory plan, contract or arrangement.
|
11
EXHIBIT 99.1
AMPLIFY ENERGY CORP.
2017 NON-EMPLOYEE DIRECTORS COMPENSATION PLAN
Section 1.
Purpose
. The purpose of the Amplify Energy Corp. 2017 Non-Employee Directors Compensation Plan (the
“
Plan
”) is to attract and retain the services of experienced non-employee directors for Amplify Energy Corp. (the “
Company
”) by providing them with compensation for their services in the form of cash and/or shares
of the Company’s common stock, thereby promoting the long-term growth and financial success of the Company and furthering the best interests of its stockholders.
Section 2.
Definitions
. As used in the Plan, the following terms shall have the meanings set forth below:
(a) “
Affiliate
” means any entity that, directly or indirectly through one or more intermediaries controls, is controlled by or
is under common control with, the Company.
(b) “
Award
” means any Option, Restricted Stock, RSU, Retainer, Other
Cash-Based Award or Other Stock-Based Award granted under the Plan.
(c) “
Award Agreement
” means any agreement, contract
or other instrument or document (including in electronic form) evidencing any Award granted under the Plan, which may, but need not, be executed or acknowledged by a Participant.
(d) “
Beneficial Owner
” has the meaning ascribed to such term in Rule 13d-3 under the Exchange Act.
(e) “
Beneficiary
” means a Person entitled to receive payments or other benefits or exercise rights that are available under
the Plan in the event of the Participant’s death. If no such Person can be named or is named by the Participant, or if no Beneficiary designated by such Participant is eligible to receive payments or other benefits or exercise rights that are
available under the Plan at the Participant’s death, such Participant’s Beneficiary shall be such Participant’s estate.
(f)
“
Board
” means the Board of Directors of the Company.
(g) “
Change of Control
” means, unless otherwise
defined in an Award Agreement, the occurrence of one or more of the following events:
(i) Any Person becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of its directors (the “
Outstanding Company Voting
Securities
”), including by way of merger, consolidation or otherwise;
provided
,
however
, that for purposes of this definition, the following acquisitions shall not be taken into account in determining whether a Change of
Control has occurred: (A) any acquisition of voting securities of the Company directly from the Company; (B) any acquisition by the Company or any of its Subsidiaries of Outstanding Company Voting Securities, including an acquisition by
any employee benefit plan or related trust sponsored or maintained by the Company or any of its Subsidiaries; or (C) any acquisition of Outstanding Company Voting Securities by a Permitted Holder.
(ii) The following individuals (the “
Incumbent Directors
”) cease
for any reason to constitute a majority of the number of directors then serving on the Board: individuals who, on May 4, 2017, constituted the Board and any new director (other than a director whose initial assumption of office is in connection
with an actual or threatened election contest, including, but not limited to, a consent or proxy solicitation, relating to the election of directors of the Company by or on behalf of a Person other than the Board) whose appointment or election by
the Board or nomination for election by the Company’s stockholders was approved or recommended by a vote of at least a majority of the directors then still in office who either were directors on May 4, 2017 or whose appointment, election
or nomination for election was previously so approved or recommended.
(iii) Consummation of a reorganization,
recapitalization, merger or consolidation involving the Company, unless, following such transaction: (A) any individuals and entities that were the Beneficial Owners of Outstanding Company Voting Securities immediately prior to such transaction
are the Beneficial Owners, directly or indirectly, of more than 50% of the combined voting power of the outstanding voting securities entitled to vote generally in the election of directors (or election of members of a comparable governing body) of
the entity resulting from the transaction (“
successor entity
”) in substantially the same relative proportions as their ownership immediately prior to such transaction; (B) no Person (excluding any successor entity or any
employee benefit plan or related trust of the Company, such successor entity or any of their Subsidiaries) is the Beneficial Owner, directly or indirectly, of more than 30% of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors (or comparable governing body) of the successor entity, except to the extent that such ownership existed prior to any such transaction; and (C) at least a majority of the members of the
board of directors (or comparable governing body) of the successor entity were Incumbent Directors (including persons deemed to be Incumbent Directors) at the time of the execution of the initial agreement or of the action of the Board providing for
such transaction.
(iv) The sale or disposition, in one or a series of related transactions, of all or substantially all of
the assets of the Company and its Subsidiaries, taken as a whole, to any Person.
Notwithstanding the foregoing, to the extent necessary to comply with
Section 409A of the Code with respect to the payment of “nonqualified deferred compensation,” “Change of Control” shall be limited to a “change in control event” as defined under Section 409A of the Code.
(h) “
Code
” means the Internal Revenue Code of 1986, as amended from time to time, and the rules, regulations and guidance
thereunder. Any reference to a provision in the Code shall include any successor provision thereto.
(i) “
Effective Date
”
means June 13, 2017.
2
(j) “
Exchange Act
” means the Securities Exchange Act of 1934, as amended from
time to time, and the rules, regulations and guidance thereunder. Any reference to a provision in the Exchange Act shall include any successor provision thereto.
(k) “
Fair Market Value
” means, with respect to a Share as of a given date of determination hereunder, the closing price as
quoted on any national stock exchange or over-the-counter market on which the Shares are then traded, or if the Shares were not traded on such date, then the immediately preceding date on which sales of Shares have been so quoted or reported shall
be used. If the Shares on such date are not so publicly traded, “Fair Market Value” shall be determined based upon a pre-established formula determined by the Board or by an independent third-party valuation firm selected by the Board, and
shall be determined in a manner consistent with Section 409A of the Code.
(l) “
Non-Employee Director
” means a
regular, active director or a prospective director of the Company, in either case who is not an employee of the Company or any Affiliate, as determined by the Board, in its sole discretion.
(m) “
Option
” means an option representing the right to purchase Shares from the Company, granted pursuant to Section 6.
(n) “
Other Cash-Based Award
” means an Award granted pursuant to Section 8.
(o) “
Other Stock-Based Award
” means an Award granted pursuant to Section 8.
(p) “
Participant
” means the recipient of an Award granted under the Plan.
(q) “
Permitted Holder
” means any holder who, directly or indirectly, owned more than 25% of the Outstanding Company Voting
Securities as of May 4, 2017.
(r) “
Person
” has the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) thereof.
(s)
“
Restricted Stock
” means any Share granted pursuant to Section 7.
(t) “
Retainer
” means an annual cash
retainer payable pursuant to Section 10 for service as (i) a member of the Board or a committee of the Board or (ii) chair or lead director of the Board or chair of any such committee.
(u) “
RSU
” means a contractual right granted pursuant to Section 7 that is denominated in Shares. Each RSU represents a right
to receive the value of one Share (or a percentage of such value) in cash, Shares or a combination thereof. Awards of RSUs may include the right to receive dividend equivalents.
(v) “
Securities Act
” means the Securities Act of 1933, as amended from time to time, and the rules, regulations and guidance
thereunder. Any reference to a provision in the Securities Act shall include any successor provision thereto.
3
(w) “
Share
” means a share of the Company’s common stock, $0.0001 par value.
(x) “
Subsidiary
” means an entity (whether or not a corporation) that is wholly or majority owned or controlled, directly
or indirectly, by the Company or any Affiliate that is so designated, from time to time, by the Board, during the period of such Affiliate status.
(y) “
Substitute Award
” means an Award granted in assumption of, or in substitution for, an outstanding award previously
granted by a company or other business acquired by the Company or with which the Company combines.
Section 3.
Eligibility.
Each Non-Employee Director shall be eligible to be selected to receive an Award under the Plan, to the extent an offer of an Award or a receipt of such Award is permitted by applicable law, stock market or exchange rules and regulations or
accounting or tax rules and regulations.
Section 4.
Administration
.
(a) The Plan shall be administered by the Board. The Board may issue rules and regulations for administration of the Plan. All decisions of the
Board shall be final, conclusive and binding upon all parties, including the Company, its stockholders, Participants and any Beneficiaries thereof.
(b) Subject to the terms of the Plan and applicable law, the Board (or its delegate) shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards (including Substitute Awards) to be granted to each Participant under the Plan; (iii) determine the number of Shares to be covered by (or with respect to which payments, rights or
other matters are to be calculated in connection with) Awards; (iv) determine the terms and conditions of any Award and prescribe the form of each Award Agreement, which need not be identical for each Participant; (v) determine whether, to
what extent and under what circumstances Awards may be settled or exercised in cash, Shares, other Awards, other property, net settlement, or any combination thereof, or canceled, forfeited, suspended, or subject to accelerated vesting, and the
methods by which Awards may be settled, exercised, canceled, forfeited, suspended or vested on an accelerated basis; (vi) determine whether, to what extent and under what circumstances cash, Shares, other Awards, other property and other
amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Board; (vii) amend terms or conditions of any outstanding Award, including without limitation, to
accelerate the time at which the Award becomes vested, unrestricted or may be exercised; (viii) correct any defect, supply any omission and reconcile any inconsistency in the Plan or any Award Agreement, in the manner and to the extent it shall
deem desirable to carry the Plan into effect; (ix) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (x) establish, amend, suspend or waive such rules and regulations and appoint
such agents, trustees, brokers, depositories and advisors and determine such terms of their engagement as it shall deem appropriate for the proper administration of the Plan and due compliance with applicable law, stock market or exchange rules and
regulations or accounting or tax rules and regulations; and (xi) make any other determination and take any other action that the Board deems necessary or desirable for the administration of the Plan and due compliance with applicable law, stock
market or exchange rules and regulations or accounting or tax rules and regulations.
4
Section 5.
Shares Available for Awards
.
(a) Subject to adjustment as provided in Section 5(d) and except for Substitute Awards, the maximum number of Shares available for issuance
under the Plan shall not exceed in the aggregate 200,000 Shares.
(b) No Participant may receive under the Plan in any calendar year
Options, Restricted Stock, RSUs and Other Stock-Based Awards with an aggregate fair value as of the grant date that, when combined with the aggregate amount of the Retainers and Other Cash-Based Awards granted to such Participant in such year,
exceeds $500,000.
(c) If any Award is forfeited, expires, terminates or otherwise lapses, or is settled in cash, in whole or in part,
without the delivery of Shares, then the Shares covered by such forfeited, expired, terminated or lapsed Award shall again be available for grant under the Plan. For the avoidance of doubt, the following will not again become available for issuance
under the Plan: (i) any Shares withheld in respect of taxes and (ii) any Shares tendered or withheld to pay the exercise price of Options.
(d) If there shall occur any change with respect to the number of outstanding Shares by reason of any capital restructuring, recapitalization,
reclassification, stock dividend, extraordinary dividend, stock split, reverse stock split or other distribution with respect to the Shares or any merger, reorganization, consolidation, combination, spin-off or other similar corporate change or any
other change affecting the Shares (other than regular cash dividends to stockholders of the Company), the Board shall, in the manner and to the extent it considers appropriate and equitable to the Participants and consistent with the terms of the
Plan, cause an adjustment to be made to (i) the maximum number and kind of Shares provided in Section 5(a), (ii) the number and kind of Shares, shares of other classes of the Company’s common stock, securities, units or other rights
or property subject to, or issuable in respect of, then outstanding Awards, (iii) the exercise or base price for each share or unit or other right subject to then outstanding Awards, (iv) other value determinations applicable to the Plan
and/or outstanding Awards, (v) any dividend equivalent rights associated with outstanding Awards and (vi) any other terms of an Award that are affected by the event. Notwithstanding the foregoing, any such adjustments shall, to the extent
necessary, be made in a manner consistent with the requirements of Section 409A of the Code. Without limitation, any adjustments made pursuant to this Section 5(d) may in the Board’s sole discretion be made through the granting of dividend
equivalent rights to holders of outstanding Awards.
(e) Any Shares delivered pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or Shares acquired by the Company.
Section 6.
Options
. The Board is authorized to grant
Options to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Board shall determine:
5
(a) The exercise price per Share under an Option shall be determined by the Board at the time of
grant;
provided
,
however
, that, except in the case of Substitute Awards, such exercise price shall not be less than the Fair Market Value of a Share on the date of grant of such Option.
(b) The term of each Option shall be fixed by the Board but shall not exceed 10 years from the date of grant of such Option.
(c) The Board shall determine the time or times at which an Option becomes vested and exercisable, in whole or in part.
(d) No grant of Options may be accompanied by a tandem award of dividend equivalents or provide for dividends, dividend equivalents or other
distributions to be paid on such Options (except as provided under Section 5(d)).
(e) The Board shall determine the method or methods
by which, and the form or forms, including cash, Shares, other Awards, other property, net settlement, broker-assisted cashless exercise or any combination thereof, having a Fair Market Value on the exercise date equal to the exercise price of the
Shares as to which the Option shall be exercised, in which payment of the exercise price with respect thereto may be made or deemed to have been made.
Section 7.
Restricted Stock and RSUs
. The Board is authorized to grant Awards of Restricted Stock and RSUs to Participants with
the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Board shall determine:
(a) The Award Agreement shall specify the vesting schedule and, with respect to RSUs, the delivery schedule (which may include deferred
delivery later than the vesting date) and whether the Award of Restricted Stock or RSUs is entitled to dividends or dividend equivalents, voting rights or any other rights.
(b) Awards of Restricted Stock and RSUs shall be subject to such restrictions as the Board may impose (including any limitation on the right to
vote a Share of Restricted Stock or the right to receive any dividend, dividend equivalent or other right), which restrictions may lapse separately or in combination at such time or times, in such installments or otherwise, as the Board may deem
appropriate.
(c) Any Share of Restricted Stock granted under the Plan may be evidenced in such manner as the Board may deem appropriate,
including book-entry registration or issuance of a stock certificate or certificates. In the event any stock certificate is issued in respect of Shares of Restricted Stock granted under the Plan, such certificate shall be registered in the name of
the Participant and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock.
(d) The Board may provide in an Award Agreement that an Award of Restricted Stock is conditioned on the Participant making or refraining from
making an election with respect to the Award under Section 83(b) of the Code. If the Participant makes an election under Section 83(b) of the Code with respect to an Award of Restricted Stock, the Participant shall be required to file
promptly a copy of such election with the Company and the applicable Internal Revenue Service office.
6
(e) The Board may determine the form or forms (including cash, Shares, other Awards, other
property or any combination thereof) in which payment of the amount owing upon settlement of any RSU Award may be made.
Section 8.
Other Cash-Based Awards and Other Stock-Based Awards.
The Board is authorized, subject to limitations under applicable law, to grant to Participants Other Cash-Based Awards (either independently or as an element of or supplement to any other
Award under the Plan) and Other Stock-Based Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares or factors that may influence the value of Shares, including
convertible or exchangeable debt securities, other rights convertible or exchangeable into Shares, purchase rights for Shares, Awards with value and payment contingent upon performance of the Company or business units thereof or any other factors
designated by the Board or a committee of the Board. The Board shall determine the terms and conditions of such Awards. Shares delivered pursuant to an Award in the nature of a purchase right granted under this Section 8 shall be purchased for such
consideration and paid for at such times, by such methods and in such forms, including cash, Shares, other Awards, other property, net settlement, broker-assisted cashless exercise or any combination thereof, as the Board shall determine;
provided
that the purchase price therefore shall not be less than the Fair Market Value of such Shares on the date of grant of such right.
Section 9.
Automatic Grants
. The Board or a committee of the Board may institute, by resolution, automatic Award grants to new and
to continuing members of the Board, with the number and type of such Awards, the terms and conditions of such Awards, and the criteria for the grant of such Awards, as is determined by the Board or a committee of the Board, in its sole discretion.
Section 10.
Retainers
. The Board is authorized, subject to limitations under applicable law, to grant Retainers to
Participants. The Board shall determine the terms and conditions of such Retainers, including without limitation (a) the amounts payable, (b) the payment dates (including whether payment is made in a lump sum or installments and whether
payment is made in advance or arrears), (c) whether such Retainers may be electively received in Shares and (d) whether such Retainers may be electively deferred, subject to Section 11 and such rules and procedures as the Board may
establish in accordance with Section 409A of the Code, and, if so, whether such deferred Retainers may be distributed in cash and/or Shares. Shares issued to Participants pursuant to (c) and (d) above shall count against the aggregate
Share limit specified in Section 5(a). The number of Shares that shall be issued to a Participant who elects to receive a Retainer in Shares shall equal the amount of cash that otherwise would have been paid to such Participant on the payment date
of such Retainer divided by the Fair Market Value of a Share as of such payment date.
Section 11.
Deferral Elections
. The
Board, in its discretion, may permit a Participant to defer any Award (including any Retainer), subject to the rules and procedures as it may establish from time to time, in accordance with the requirements of Section 409A of the Code and other
applicable law, and which may include provisions for the payment or crediting of dividend
7
equivalents, on a current or deferred basis, or the deemed reinvestment of any deferred dividend equivalents, with respect to the number of Shares subject to such Award. The Board shall set forth
in writing (which may be in electronic form) the conditions under which any applicable deferral election may be made on or before the date such deferral election is required to be irrevocable in order to meet the requirements of Section 409A of
the Code.
Section 12.
Effect of Separation from Service or a Change of Control on Awards
.
(a) The Board may provide, by rule or regulation or in any applicable Award Agreement, or may determine in any individual case, the
circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event of a Participant’s separation from service from the Board prior to vesting, exercise or settlement of such Award.
(b) Upon the occurrence of a Change of Control, unless otherwise provided in the Award Agreement, the Board is authorized (but not obligated)
to make adjustments in the terms and conditions of Awards outstanding under the Plan, including, without limitation, the following (or any combination thereof): (i) continuation or assumption of such outstanding Awards by the Company (if it is
the surviving company or corporation) or by the surviving company or corporation or its parent; (ii) substitution by the surviving company or corporation or its parent of awards with substantially the same terms for outstanding Awards (with
appropriate adjustments to the type of consideration payable upon settlement of the Awards); (iii) acceleration of exercisability, vesting and/or payment under outstanding Awards immediately prior to the occurrence of such event or upon a
separation from service following such event; and (iv) if all or substantially all of the outstanding Shares are transferred in exchange for cash, shares or other property or consideration in connection with such Change of Control:
(A) upon written notice, provide that any outstanding Options are exercisable during a reasonable period of time immediately prior to the scheduled consummation of the event or such other reasonable period as determined by the Board (contingent
upon the consummation of the event), and at the end of such period, such Options shall terminate to the extent not so exercised within the relevant period; and (B) cancel all or any portion of outstanding Awards for fair value (in the form of
cash, Shares, other property or any combination thereof) as determined in the sole discretion of the Board;
provided
,
however
, that, in the case of Options, the fair value may equal the excess, if any, of the value or amount of the
consideration to be paid in the Change of Control transaction to holders of Shares (or, if no such consideration is paid, the Fair Market Value of the Shares) over the aggregate exercise or base price, as applicable, with respect to such Awards or
portion thereof being canceled, or if no such excess, zero;
provided
,
further
, that if any payments or other consideration are deferred and/or contingent as a result of escrows, earnouts, holdbacks or any other contingencies, payments
under this provision may be made on substantially the same terms and conditions applicable to, and only to the extent actually paid to, the holders of Shares in connection with the Change of Control.
Section 13.
General Provisions Applicable to Awards
.
(a) Awards shall be granted for such cash or other consideration, if any, as the Board determines;
provided
that in no event shall
Awards be issued for less than such minimal consideration as may be required by applicable law.
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(b) Awards may, in the discretion of the Board, be granted either alone or in addition to or in
tandem with any other Award or any award granted under any other plan of the Company. Awards granted in addition to or in tandem with other Awards, or in addition to or in tandem with awards granted under any other plan of the Company, may be
granted either at the same time as or at a different time from the grant of such other Awards or awards.
(c) Subject to the terms of the
Plan, payments or transfers to be made by the Company upon the grant, exercise or settlement of an Award may be made in the form of cash, Shares, other Awards, other property, net settlement, or any combination thereof, as determined by the Board in
its discretion at the time of grant, and may be made in a single payment or transfer, in installments or on a deferred basis, in each case in accordance with rules and procedures established by the Board. Such rules and procedures may include
provisions for the payment or crediting of reasonable interest on installment or deferred payments or the grant or crediting of dividend equivalents in respect of installment or deferred payments.
(d) Except as may be permitted by the Board or as specifically provided in an Award Agreement, (i) no Award and no right under any Award
shall be assignable, alienable, saleable or transferable by a Participant other than by will or pursuant to Section 13(e) and (ii) during a Participant’s lifetime, each Award, and each right under any Award, shall be exercisable only
by the Participant or, if permissible under applicable law, by such Participant’s guardian or legal representative. The provisions of this Section 13(d) shall not apply to any Award that has been fully exercised or settled, as the case may
be, and shall not preclude forfeiture of an Award in accordance with the terms thereof.
(e) A Participant may designate a Beneficiary or
change a previous Beneficiary designation only at such times as prescribed by the Board, in its sole discretion, and only by using forms and following procedures approved or accepted by the Board for that purpose.
(f) All certificates for Shares and/or other securities delivered under the Plan pursuant to any Award or the exercise thereof shall be subject
to such stop transfer orders and other restrictions as the Board may deem advisable under the Plan or the rules, regulations and other requirements of the Securities and Exchange Commission, any stock market or exchange upon which such Shares or
other securities are then quoted, traded or listed, and any applicable securities laws, and the Board may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
Section 14.
Amendments and Termination
.
(a) Except to the extent prohibited by applicable law and unless otherwise expressly provided in an Award Agreement or in the Plan, the Board
may amend, alter, suspend, discontinue or terminate the Plan or any portion thereof at any time;
provided
,
however
, that no such amendment, alteration, suspension, discontinuation or termination shall be made without
(i) stockholder approval if such approval is required by applicable law or the rules of the stock market or exchange, if any, on which the Shares are principally quoted or traded or (ii) the consent of the affected Participant, if such
action would materially adversely affect the rights of such Participant under any outstanding Award, except (A) to the extent any such amendment, alteration, suspension, discontinuance or termination is made to cause the Plan to comply with
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applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations or (B) to impose any “clawback” or recoupment provisions on any Awards
(including any amounts or benefits arising from such Awards) in accordance with Section 18. Notwithstanding anything to the contrary in the Plan, the Board may amend the Plan, or create sub-plans, in such manner as may be necessary to enable the
Plan to achieve its stated purposes in any jurisdiction in a tax-efficient manner and in compliance with local rules and regulations.
(b)
Dissolution or Liquidation.
In the event of the dissolution or liquidation of the Company, each Award shall terminate immediately prior to the consummation of such action, unless otherwise determined by the Board.
(c)
Terms of Awards.
The Board may waive any conditions or rights under, amend any terms of, or amend, alter, suspend, discontinue or
terminate any Award theretofore granted, prospectively or retroactively, without the consent of any relevant Participant or holder or Beneficiary of an Award;
provided
,
however
, that no such action shall materially adversely affect the
rights of any affected Participant or holder or Beneficiary under any Award theretofore granted under the Plan, except (i) to the extent any such action is made to cause the Plan to comply with applicable law, stock market or exchange rules and
regulations or accounting or tax rules and regulations, or (ii) to impose any “clawback” or recoupment provisions on any Awards (including any amounts or benefits arising from such Awards) in accordance with Section 18. The Board
shall be authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of events (including the events described in Section 5(d)) affecting the Company, or the financial statements of the Company,
or of changes in applicable laws, regulations or accounting principles, whenever the Board determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made
available under the Plan.
(d)
No Repricing.
Notwithstanding the foregoing, except as provided in Section 5(d), no action (including
the repurchase of Options (that are “out of the money”) for cash and/or other property) shall directly or indirectly, through cancellation and regrant or any other method, reduce, or have the effect of reducing, the exercise or hurdle
price of any Award established at the time of grant thereof without approval of the Company’s stockholders.
Section 15.
Miscellaneous
.
(a) No Participant or other Person shall have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Participants or holders or Beneficiaries of Awards under the Plan. The terms and conditions of Awards need not be the same with respect to each recipient. Any Award granted under the Plan shall be a one-time
Award that does not constitute a promise of future grants. The Company, in its sole discretion, maintains the right to make available future grants under the Plan.
(b) The grant of an Award shall not be construed as giving a Participant the right to be retained in the service of the Board or the Company or
any Subsidiary or Affiliate. The receipt of any Award under the Plan is not intended to confer any rights on the receiving Participant except as set forth in the applicable Award Agreement.
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(c) Nothing contained in the Plan shall prevent the Company from adopting or continuing in effect
other or additional compensation arrangements, and such arrangements may be either generally applicable or applicable only in specific cases.
(d) The Company is authorized to withhold from any Award granted or any payment due or transfer made under any Award or under the Plan or from
any compensation or other amount owing to a Participant the amount (in cash, Shares, other Awards, other property, net settlement, or any combination thereof) of applicable withholding taxes due in respect of an Award, its exercise or settlement or
any payment or transfer under such Award or under the Plan and to take such other action (including providing for elective payment of such amounts in cash or Shares by such Participant) as may be necessary to satisfy all obligations for the payment
of such taxes and, unless otherwise determined by the Board in its discretion, to the extent such withholding would not result in liability classification of such Award (or any portion thereof) pursuant to FASB ASC Subtopic 718-10.
(e) If any provision of the Plan or any Award Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction,
or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Board, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed
amended without, in the determination of the Board, materially altering the intent of the Plan or the Award Agreement, such provision shall be stricken as to such jurisdiction, Person or Award, and the remainder of the Plan and any such Award
Agreement shall remain in full force and effect.
(f) Neither the Plan nor any Award shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company pursuant to an Award, such right shall be no greater
than the right of any unsecured general creditor of the Company.
(g) No fractional Shares shall be issued or delivered pursuant to the
Plan or any Award, and the Board shall determine whether cash or other securities shall be paid or transferred in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto shall be canceled, terminated or otherwise
eliminated.
Section 16.
Effective Date of the Plan
. The Plan shall be effective as of the Effective Date.
Section 17.
Term of the Plan
. No Award shall be granted under the Plan after the earliest to occur of (a) the 10-year
anniversary of the Effective Date; (b) the maximum number of Shares available for issuance under the Plan have been issued; or (c) the Board terminates the Plan in accordance with Section 14(a). However, unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award theretofore granted may extend beyond such date, and the authority of the Board to amend, alter, adjust, suspend, discontinue or terminate any such Award, or to waive any conditions
or rights under any such Award, and the authority of the Board to amend the Plan, shall extend beyond such date.
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Section 18.
Cancellation or “Clawback” of Awards
. The Board shall have full
authority to implement any policies and procedures necessary to comply with Section 10D of the Exchange Act and any rules promulgated thereunder and any other regulatory regimes. Notwithstanding anything to the contrary contained herein, any
Awards (including any amounts or benefits arising from such Awards) shall be subject to any clawback or recoupment arrangements or policies the Company has in place from time to time, and the Board may, to the extent permitted by applicable law and
stock exchange rules or by any applicable Company policy or arrangement, and shall, to the extent required, cancel or require reimbursement of any Awards granted to a Participant or any Shares issued or cash received upon vesting, exercise or
settlement of any such Awards or sale of Shares underlying such Awards.
Section 19.
Section 409A of the Code
.
(a) To the extent applicable, it is intended that the Plan and all Awards hereunder comply with, or be exempt from, the requirements of
Section 409A of the Code, and the Plan and all Award Agreements shall be interpreted and applied by the Board in a manner consistent with this intent in order to avoid the imposition of any additional tax under Section 409A of the Code. In
the event that any (i) provision of the Plan or an Award Agreement, (ii) Award, payment, transaction or (iii) other action or arrangement contemplated by the provisions of the Plan is determined by the Board to not comply with the
applicable requirements of Section 409A of the Code, the Board shall have the authority to take such actions and to make such changes to the Plan or an Award Agreement as the Board deems necessary to comply with such requirements.
(b) No payment that constitutes deferred compensation under Section 409A of the Code that would otherwise be made under the Plan or an
Award Agreement upon a termination of service will be made or provided unless and until such termination is also a “separation from service,” as determined in accordance with Section 409A of the Code. Notwithstanding the foregoing or
anything elsewhere in the Plan or an Award Agreement to the contrary, if a Participant is a “specified employee” as defined in Section 409A of the Code at the time of termination of service with respect to an Award, then solely to the
extent necessary to avoid the imposition of any additional tax under Section 409A of the Code, the commencement of any payments or benefits under the Award shall be deferred until the date that is six months plus one day following the date of
the Participant’s termination of service or, if earlier, the Participant’s death (or such other period as required to comply with Section 409A). In no event whatsoever shall the Company be liable for any additional tax, interest or
penalties that may be imposed on a Participant by Section 409A of the Code or any damages for failing to comply with Section 409A of the Code.
Section 20.
Successors and Assigns
. The terms of the Plan shall be binding upon and inure to the benefit of the Company and any
successor entity.
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Section 21.
Data Protection
. By participating in the Plan, a Participant consents to
the holding and processing of personal information provided by the Participant to the Company or any Affiliate, trustee or third party service provider, for all purposes relating to the operation of the Plan. These include, but are not limited to:
(a) administering and maintaining Participant records;
(b) providing information to the Company, any Subsidiary, trustees of any employee benefit trust, registrars, brokers or third party
administrators of the Plan;
(c) providing information to future purchasers or merger partners of the Company or any Affiliate, or the
business in which the Participant works; and
(d) transferring information about the Participant to any country or territory that may not
provide the same protection for the information as the Participant’s home country.
Section 22.
Governing Law
. The Plan
and each Award Agreement shall be governed by the laws of the State of Delaware, without application of the conflicts of law principles thereof.
Section 23.
Securities Law Compliance
. No Shares will be issued or transferred pursuant to an Award unless and until all then
applicable requirements imposed by Federal and state securities and other laws, rules and regulations and by any regulatory agencies having jurisdiction, and by any exchanges upon which the Shares may be listed, have been fully met. As a condition
precedent to the issuance of Shares pursuant to the grant or exercise of an Award, the Company may require the Participant to take any reasonable action that the Company determines is necessary or advisable to meet such requirements. The Board may
impose such conditions on any Shares issuable under the Plan as it may deem advisable, including, without limitation, restrictions under the Securities Act, under the requirements of any exchange upon which the Shares are then listed, and under any
blue-sky or other securities laws applicable to the Shares. The Board may also require the Participant to represent and warrant at the time of issuance or transfer that the Shares are being acquired solely for investment purposes and without any
current intention to sell or distribute such shares.
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