YOUNGEVITY INTERNATIONAL, INC.
SECOND AMENDED AND RESTATED 2012 STOCK OPTION PLAN
|
|
1.
|
Establishment
and Purpose.
|
The
purpose of the Youngevity International, Inc. 2012 Stock Option
Plan (the “Plan”) is to promote the interests of the
Company and the stockholders of the Company by providing directors,
officers, employees and consultants of the Company with appropriate
incentives and rewards to encourage them to enter into and continue
in the employ or service of the Company, to acquire a proprietary
interest in the long-term success of the Company and to reward the
performance of individuals in fulfilling long-term corporate
objectives.
|
|
2.
|
Administration
of the Plan.
|
The
Plan shall be administered by a Committee appointed by the Board of
Directors. The Committee shall have the authority, in its sole
discretion, subject to and not inconsistent with the express terms
and provisions of the Plan, to administer the Plan and to exercise
all the powers and authorities either specifically granted to it
under the Plan or necessary or advisable in the administration of
the Plan, including, without limitation, the authority to grant
Awards; to determine the persons to whom and the time or times at
which Awards shall be granted; to determine the type and number of
Awards to be granted (including whether an Option granted is an
Incentive Stock Option or a Nonqualified Stock Option); to
determine the number of shares of stock to which an Award may
relate and the terms, conditions, restrictions and performance
criteria, if any, relating to any Award; to determine whether, to
what extent, and under what circumstances an Award may be settled,
cancelled, forfeited, exchanged or surrendered; to make adjustments
in the performance goals that may be required for any award in
recognition of unusual or nonrecurring events affecting the Company
or the financial statements of the Company (to the extent not
inconsistent with Section 162(m) of the Code, if applicable),
or in response to changes in applicable laws, regulations, or
accounting principles; to construe and interpret the Plan and any
Award; to prescribe, amend and rescind rules and regulations
relating to the Plan; to determine the terms and provisions of
Agreements; and to make all other determinations deemed necessary
or advisable for the administration of the Plan.
The
Committee may, in its absolute discretion, without amendment to the
Plan, (a) accelerate the date on which any Option granted
under the Plan becomes exercisable, waive or amend the operation of
Plan provisions respecting exercise after termination of employment
or otherwise adjust any of the terms of such Option, and
(b) accelerate the vesting date, or waive any condition
imposed hereunder, with respect to any share of Restricted Stock,
or other Award or otherwise adjust any of the terms applicable to
any such Award. Notwithstanding the foregoing, and subject to
Sections 4(c) and 4(d), neither the Board of Directors, the
Committee nor their respective delegates shall have the authority
to re-price (or cancel and/or re-grant) any Option, Stock
Appreciation Right or, if applicable, other Award at a lower
exercise, base or purchase price without first obtaining the
approval of our stockholders.
Subject
to Section 162(m) of the Code and except as required by Rule
16b-3 with respect to grants of Awards to individuals who are
subject to Section 16 of the Exchange Act, or as otherwise
required for compliance with Rule 16b-3 or other applicable law,
the Committee may delegate all or any part of its authority under
the Plan to an employee, employees or committee of
employees.
Subject
to Section 162(m) of the Code and Section 16 of the
Exchange Act, to the extent the Committee deems it necessary,
appropriate or desirable to comply with foreign law or practices
and to further the purpose of the Plan, the Committee may, without
amending this Plan, establish special rules applicable to Awards
granted to Participants who are foreign nationals, are employed
outside the United States, or both, including rules that differ
from those set forth in the Plan, and grant Awards to such
Participants in accordance with those rules.
All
decisions, determinations and interpretations of the Committee or
the Board of Directors shall be final and binding on all persons
with any interest in an Award, including the Company and the
Participant (or any person claiming any rights under the Plan from
or through any Participant). No member of the Committee or the
Board of Directors shall be liable for any action taken or
determination made in good faith with respect to the Plan or any
Award.
Notwithstanding
anything to the contrary set forth hereinabove, the full extent of
the rights and powers of the Committee shall be exclusively
determined by the Charter established by the Board of Directors for
the Committee. As such, to the extent the Charter may require the
Committee to seek the approval of the Board of Directors related to
any Awards granted hereunder, the Committee shall seek such Board
of Directors approval as a condition for any actions to be taken by
it.
|
(a)
|
)
“Agreement” shall mean the written agreement between
the Company and a Participant evidencing an Award.
|
|
(b)
|
)
“Annual Incentive Award” shall mean an Award described
in Section 6(g) hereof that is based upon a period of one year or
less.
|
|
(c)
|
)
“Award” shall mean any Option, Restricted Stock, Stock
Bonus award, Stock Appreciation Right, Performance Award, Other
Stock-Based Award or Other Cash-Based Award granted pursuant to the
terms of the Plan.
|
|
(d)
|
)
“Board of Directors” shall mean the Board of Directors
of the Company.
|
|
(e)
|
)
“Cause” shall mean a termination of a
Participant’s employment by the Company or any of its
Subsidiaries due to (i) the continued failure, after written
notice, by such Participant substantially to perform his or her
duties with the Company or any of its Subsidiaries (other than any
such failure resulting from incapacity due to reasonably documented
physical illness or injury or mental illness), (ii) the engagement
by such Participant in serious misconduct that causes, or in the
good faith judgment of the Board of Directors may cause, harm
(financial or otherwise) to the Company or any of its Subsidiaries
including, without limitation, the disclosure of material secret or
confidential information of the Company or any of its Subsidiaries,
or (iii) the material breach by the Participant of any
agreement between such Participant, on the one hand, and the
Company, on the other hand. Notwithstanding the above, with respect
to any Participant who is a party to an employment agreement with
the Company, Cause shall have the meaning set forth in such
employment agreement.
|
|
(f)
|
“Change in
Control” shall be deemed to have occurred if the event set
forth in any one of the following paragraphs shall have
occurred:
|
(i) any
Person is or becomes the “Beneficial Owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company (not including in the securities
Beneficially Owned by such Person any securities acquired directly
from the Company) representing 30% or more of the Company’s
then outstanding securities, excluding any Person who becomes such
a Beneficial Owner in connection with a transaction described in
clause (A) of paragraph (iii) below; or
(ii) the
following individuals cease for any reason to constitute a majority
of the number of directors then serving: individuals who, on the
Effective Date, constitute the Board of Directors 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 solicitation, relating to
the election of directors of the Company) whose appointment or
election by the Board of Directors or nomination for election by
the Company’s stockholders was approved or recommended by a
vote of at least a two-thirds of the directors then still in office
who either were directors on the Effective Date or whose
appointment, election or nomination for election was previously so
approved or recommended; or
(iii) there
is consummated a merger or consolidation of the Company with any
other corporation other than (A) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or
any parent thereof) at least 50% of the combined voting power of
the voting securities of the Company or such surviving entity or
any parent thereof outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to
implement a re-capitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including
in the securities Beneficially Owned by such Person any securities
acquired directly from the Company) representing 30% or more of the
combined voting power of the Company’s then outstanding
securities; or
(iv)
the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated
an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets, other than a sale
or disposition by the Company of all or substantially all of the
Company’s assets to an entity at least 75% of the combined
voting power of the voting securities of which are owned by Persons
in substantially the same proportions as their ownership of the
Company immediately prior to such sale.
|
(g)
|
)
“Code” shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any regulations promulgated
thereunder. References in the Plan to specific sections of the Code
shall be deemed to include any successor provisions
thereto.
|
|
(h)
|
)
“Committee” shall mean, at the discretion of the Board
of Directors, a Committee of the Board of Directors, which shall
consist of two or more persons, each of whom, unless otherwise
determined by the Board of Directors, is an “outside
director” within the meaning of Section 162(m) of the Code
and a “nonemployee director” within the meaning of Rule
16b-3.
|
|
(i)
|
)
“Company” shall mean Youngevity International, Inc., a
Delaware corporation, and, where appropriate, each of its
Subsidiaries.
|
|
(j)
|
)
“Company Stock” shall mean the common stock of the
Company, par value $0.001 per share.
|
|
(k)
|
)
“Disability” shall mean permanent disability as
determined pursuant to the Company’s long-term disability
plan or policy, in effect at the time of such
disability.
|
|
(l)
|
)
“Effective Date” shall mean the date as of which this
Plan is adopted by the Board of Directors.
|
|
(m)
|
Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended from time to time.
|
|
|
|
|
(n)
|
) The
“Fair Market Value” of a share of Company Stock, as of
a date of determination, shall mean (1) the closing sales price per
share of Company Stock on the national securities exchange on which
such stock is principally traded on the date of the grant of such
Award, or (2) if the shares of Company Stock are not listed or
admitted to trading on any such exchange and if the Common Stock is
regularly quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a share of Common
Stock will be the mean between the high bid and low asked prices
for the Common Stock on the day of determination (or, if no bids
and asks were reported on that date, as applicable, on the last
trading date such bids and asks were reported), as reported in The
Wall Street Journal or such other source as the Committee deems
reliable, or (3) if the shares of Company Stock are not then
listed on a national securities exchange or traded in an
over-the-counter market or the value of such shares is not
otherwise determinable, such value as determined by the Committee
in good faith upon the advice of a qualified valuation expert. In
no event shall the fair market value of any share of Company Stock,
the Option exercise price of any Option, the appreciation base per
share of Company Stock under any Stock Appreciation Right, or the
amount payable per share of Company Stock under any other Award, be
less than the par value per share of Company Stock.
|
|
(o)
|
)
“Full Value Award” means any Award, other than an
Option or a Stock Appreciation Right, which Award is settled in
Stock.
|
|
(p)
|
)
“Incentive Stock Option” shall mean an Option that is
an “incentive stock option” within the meaning of
Section 422 of the Code, or any successor provision, and that is
designated by the Committee as an Incentive Stock
Option.
|
|
(q)
|
)
“Long Term Incentive Award” shall mean an Award
described in Section 6(g) hereof that is based upon a period in
excess of one year.
|
|
(r)
|
)
“Nonemployee Director” shall mean a member of the Board
of Directors who is not an employee of the Company.
|
|
(s)
|
)
“Nonqualified Stock Option” shall mean an Option other
than an Incentive Stock Option.
|
|
(t)
|
)
“Option” shall mean an option to purchase shares of
Company Stock granted pursuant to Section 6(b).
|
|
(u)
|
)
“Other Cash-Based Award” shall mean a right or other
interest granted to a Participant pursuant to Section 6(g) hereof
other than an Other Stock-Based Award.
|
|
(v)
|
)
“Other Stock-Based Award” shall mean a right or other
interest granted to a Participant, valued in whole or in part by
reference to, or otherwise based on, or related to, Company Stock
pursuant to Section 6(g) hereof, including but not limited to (i)
unrestricted Company Stock awarded as a bonus or upon the
attainment of performance goals or otherwise as permitted under the
Plan, and (ii) a right granted to a Participant to acquire
Company Stock from the Company containing terms and conditions
prescribed by the Committee.
|
|
(w)
|
)
“Participant” shall mean an employee, consultant or
director of the Company to whom an Award is granted pursuant to the
Plan, and, upon the death of the employee, consultant or director,
his or her successors, heirs, executors and administrators, as the
case may be.
|
|
(x)
|
)
“Performance Award” shall mean an Award granted to a
Participant pursuant to Section 6(f) hereof.
|
|
(y)
|
)
“Person” shall have the meaning set forth in Section
3(a)(9) of the Exchange Act, except that such term shall not
include (1) the Company, (2) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company,
(3) an underwriter temporarily holding securities pursuant to
an offering of such securities, or (4) a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company.
|
|
(z)
|
)
“Restricted Stock” shall mean a share of Company Stock
which is granted pursuant to the terms of Section 6(e)
hereof.
|
|
(aa)
|
)
“Retirement” shall mean, in the case of employees, the
termination of employment with the Company (other than for Cause)
during or after the calendar year in which a Participant has or
will reach (i) age 55 with ten years of service with the Company,
or (ii) age 60 with five years of service with the Company.
“Retirement” shall mean, in the case of directors, the
termination of service with the Company (other than for Cause)
during or after the calendar year in which a Participant has or
will reach age 75 with five years of service with the
Company.
|
|
(bb)
|
)
“Rule 16b-3” shall mean the Rule 16b-3 promulgated
under the Exchange Act, as amended from time to time.
|
|
(cc)
|
)
“Securities Act” shall mean the Securities Act of 1933,
as amended from time to time.
|
|
(dd)
|
)
“Stock Appreciation Right” shall mean the right,
granted to a Participant under Section 6(d), to be paid an amount
measured by the appreciation in the Fair Market Value of a share of
Company Stock from the date of grant to the date of exercise of the
right, with payment to be made in cash and/or a share of Company
Stock, as specified in the Award or determined by the
Committee.
|
|
(ee)
|
)
“Stock Bonus” shall mean a bonus payable in shares of
Company Stock granted pursuant to Section 6(e) hereof.
|
|
(ff)
|
)
“Subsidiary” shall mean a “subsidiary
corporation” within the meaning of Section 424(f) of the
Code.
|
4.
Stock Subject to the
Plan.
(a)
Shares Available for Awards
.
The maximum number of shares of Company Stock reserved for issuance
under the Plan (all of which may be granted as Incentive Stock
Options) shall be Nine Million (9,000,000) shares. Notwithstanding
the foregoing, of the Nine Million (9,000,000) shares reserved for
issuance under this Plan, no more than Two Million Two Hundred
Fiffty Thousand 2,250,000 of such shares shall be issued as Full
Value Awards. Shares reserved under the Plan may be authorized but
unissued Company Stock or authorized and issued Company Stock held
in the Company’s treasury. The Committee may direct that any
stock certificate evidencing shares issued pursuant to the Plan
shall bear a legend setting forth such restrictions on
transferability as may apply to such shares pursuant to the
Plan.
(b)
Individual Limitation
. To the
extent required by Section 162(m) of the Code, the total
number of shares of Company Stock subject to Awards awarded to any
one Participant during any tax year of the Company, shall not
exceed Five Million 5,000,000 shares (subject to adjustment as
provided herein).
(c)
Adjustment for Change in
Capitalization
. In the event that the Committee shall
determine that any dividend or other distribution (whether in the
form of cash, Company Stock, or other property), recapitalization,
Company Stock split, reverse Company Stock split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share
exchange, or other similar corporate transaction or event, makes an
adjustment appropriate in order to prevent dilution or enlargement
of the rights of Participants under the Plan, then the Committee
shall make such equitable changes or adjustments as it deems
necessary or appropriate to any or all of (1) the number and
kind of shares of Company Stock which may thereafter be issued in
connection with Awards, (2) the number and kind of shares of
Company Stock, securities or other property (including cash) issued
or issuable in respect of outstanding Awards, (3) the exercise
price, grant price or purchase price relating to any Award, and
(4) the maximum number of shares subject to Awards which may
be awarded to any employee during any tax year of the Company;
provided that, with respect to Incentive Stock Options, any such
adjustment shall be made in accordance with Section 424 of the
Code; and provided further that, no such adjustment shall cause any
Award hereunder which is or could be subject to Section 409A
of the Code to fail to comply with the requirements of such
section.
(d)
Reuse of Shares
. Except as set
forth below, if any shares subject to an Award are forfeited,
cancelled, exchanged or surrendered, or if an Award terminates or
expires without a distribution of shares to the Participant, the
shares of stock with respect to such Award shall, to the extent of
any such forfeiture, cancellation, exchange, surrender,
withholding, termination or expiration, again be available for
Awards under the Plan. Notwithstanding the foregoing, upon the
exercise of any Award granted in tandem with any other Awards, such
related Awards shall be cancelled to the extent of the number of
shares of Company Stock as to which the Award is exercised and such
number of shares shall no longer be available for Awards under the
Plan. In addition, notwithstanding the forgoing, the shares of
stock surrendered or withheld as payment of either the exercise
price of an Option (including shares of stock otherwise underlying
an Award of a Stock Appreciation Right that are retained by the
Company to account for the appreciation base of such Stock
Appreciation Right) and/or withholding taxes in respect of an Award
shall no longer be available for Awards under the
Plan.
5.
Eligibility
.
The
persons who shall be eligible to receive Awards pursuant to the
Plan shall be the individuals the Committee shall select from time
to time, who are employees (including officers of the Company and
its Subsidiaries, whether or not they are directors of the Company
or its Subsidiaries), Nonemployee Directors, and consultants of the
Company and its Subsidiaries; provided, that Incentive Stock
Options shall be granted only to employees (including officers and
directors who are also employees) of the Company or its
Subsidiaries.
6.
Awards Under the
Plan
.
(a)
Agreement
. The
Committee may grant Awards in such amounts and with such terms and
conditions as the Committee shall determine in its sole discretion,
subject to the terms and provisions of the Plan. Each Award granted
under the Plan (except an unconditional Stock Bonus) shall be
evidenced by an Agreement as the Committee may in its sole
discretion deem necessary or desirable and unless the Committee
determines otherwise, such Agreement must be signed, acknowledged
and returned by the Participant to the Company. Unless the
Committee determines otherwise, any failure by the Participant to
sign and return the Agreement within such period of time following
the granting of the Award as the Committee shall prescribe shall
cause such Award to the Participant to be null and void. By
accepting an Award or other benefits under the Plan (including
participation in the Plan), each Participant, shall be conclusively
deemed to have indicated acceptance and ratification of, and
consent to, all provisions of the Plan and the
Agreement.
(b)
Stock Options.
(i)
Grant of Stock Options
. The
Committee may grant Options under the Plan to purchase shares of
Company Stock in such amounts and subject to such terms and
conditions as the Committee shall from time to time determine in
its sole discretion, subject to the terms and provisions of the
Plan. The exercise price of the share purchasable under an Option
shall be determined by the Committee, but in no event shall the
exercise price be less than the Fair Market Value per share on the
grant date of such Option. The date as of which the Committee
adopts a resolution granting an Option shall be considered the day
on which such Option is granted unless such resolution specifies a
later date.
(ii)
Identification
. Each Option
shall be clearly identified in the applicable Agreement as either
an Incentive Stock Option or a Nonqualified Stock Option and shall
state the number of shares of Company Stock to which the Option
(and/or each type of Option) relates.
(c)
Special Requirements for Incentive
Stock Options.
(i)
To the extent that the aggregate Fair Market Value of shares of
Company Stock with respect to which Incentive Stock Options are
exercisable for the first time by a Participant during any calendar
year under the Plan and any other stock option plan of the Company
shall exceed $100,000, such Options shall be treated as
Nonqualified Stock Options. Such Fair Market Value shall be
determined as of the date on which each such Incentive Stock Option
is granted.
(ii)
No Incentive
Stock Option may be granted to an individual if, at the time of the
proposed grant, such individual owns (or is deemed to own under the
Code) stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company unless (A) the
exercise price of such Incentive Stock Option is at least 110% of
the Fair Market Value of a share of Company Stock at the time such
Incentive Stock Option is granted and (B) such Incentive Stock
Option is not exercisable after the expiration of five years from
the date such Incentive Stock Option is granted.
(d)
Stock Appreciation
Rights.
(i)
The
Committee may grant a related Stock Appreciation Right in
connection with all or any part of an Option granted under the
Plan, either at the time such Option is granted or at any time
thereafter prior to the exercise, termination or cancellation of
such Option, and subject to such terms and conditions as the
Committee shall from time to time determine in its sole discretion,
consistent with the terms and provisions of the Plan, provided,
however, that in no event shall the appreciation base of the shares
of Company Stock subject to the Stock Appreciation Right be less
than the Fair Market Value per share on the grant date of such
Stock Appreciation Right. The holder of a related Stock
Appreciation Right shall, subject to the terms and conditions of
the Plan and the applicable Agreement, have the right by exercise
thereof to surrender to the Company for cancellation all or a
portion of such related Stock Appreciation Right, but only to the
extent that the related Option is then exercisable, and to be paid
therefor an amount equal to the excess (if any) of (i) the
aggregate Fair Market Value of the shares of Company Stock subject
to the related Stock Appreciation Right or portion thereof
surrendered (determined as of the exercise date), over
(ii) the aggregate appreciation base of the shares of Company
Stock subject to the Stock Appreciation Right or portion thereof
surrendered. Upon any exercise of a related Stock Appreciation
Right or any portion thereof, the number of shares of Company Stock
subject to the related Option shall be reduced by the number of
shares of Company Stock in respect of which such Stock Appreciation
Right shall have been exercised.
(ii)
The
Committee may grant unrelated Stock Appreciation Rights in such
amount and subject to such terms and conditions, as the Committee
shall from time to time determine in its sole discretion, subject
to the terms and provisions of the Plan, provided, however, that in
no event shall the appreciation base of the shares of Company Stock
subject to the Stock Appreciation Right be less than the Fair
Market Value per share on the grant date of such Stock Appreciation
Right. The holder of an unrelated Stock Appreciation Right shall,
subject to the terms and conditions of the Plan and the applicable
Agreement, have the right to surrender to the Company for
cancellation all or a portion of such Stock Appreciation Right, but
only to the extent that such Stock Appreciation Right is then
exercisable, and to be paid therefor an amount equal to the excess
(if any) of (x) the aggregate Fair Market Value of the shares
of Company Stock subject to the Stock Appreciation Right or portion
thereof surrendered (determined as of the exercise date), over
(y) the aggregate appreciation base of the shares of Company
Stock subject to the Stock Appreciation Right or portion thereof
surrendered.
(iii)
The grant or
exercisability of any Stock Appreciation Right shall be subject to
such conditions as the Committee, in its sole discretion, shall
determine.
(e)
Restricted Stock and Stock
Bonus.
(i)
The
Committee may grant Restricted Stock awards, alone or in tandem
with other Awards under the Plan, subject to such restrictions,
terms and conditions, as the Committee shall determine in its sole
discretion and as shall be evidenced by the applicable Agreements.
The vesting of a Restricted Stock award granted under the Plan may
be conditioned upon the completion of a specified period of
employment or service with the Company or any Subsidiary, upon the
attainment of specified performance goals, and/or upon such other
criteria as the Committee may determine in its sole
discretion.
(ii)
Each
Agreement with respect to a Restricted Stock award shall set forth
the amount (if any) to be paid by the Participant with respect to
such Award and when and under what circumstances such payment is
required to be made.
(iii)
The
Committee may, upon such terms and conditions as the Committee
determines in its sole discretion, provide that a certificate or
certificates representing the shares underlying a Restricted Stock
award shall be registered in the Participant’s name and bear
an appropriate legend specifying that such shares are not
transferable and are subject to the provisions of the Plan and the
restrictions, terms and conditions set forth in the applicable
Agreement, or that such certificate or certificates shall be held
in escrow by the Company on behalf of the Participant until such
shares become vested or are forfeited. Except as provided in the
applicable Agreement, no shares underlying a Restricted Stock award
may be assigned, transferred, or otherwise encumbered or disposed
of by the Participant until such shares have vested in accordance
with the terms of such Award.
(iv)
If and to the
extent that the applicable Agreement may so provide, a Participant
shall have the right to vote and receive dividends on the shares
underlying a Restricted Stock award granted under the Plan. Unless
otherwise provided in the applicable Agreement, any stock received
as a dividend on or in connection with a stock split of the shares
underlying a Restricted Stock award shall be subject to the same
restrictions as the shares underlying such Restricted Stock
award.
(v)
The
Committee may grant Stock Bonus awards, alone or in tandem with
other Awards under the Plan, subject to such terms and conditions
as the Committee shall determine in its sole discretion and as may
be evidenced by the applicable Agreement.
(f)
Performance
Awards.
(i)
The
Committee may grant Performance Awards, alone or in tandem with
other Awards under the Plan, to acquire shares of Company Stock in
such amounts and subject to such terms and conditions as the
Committee shall from time to time in its sole discretion determine,
subject to the terms of the Plan. To the extent necessary to
satisfy the short-term deferral exception to Section 409A of
the Code, unless the Committee shall determine otherwise, the
Performance Awards shall provide that payment shall be made within
2 1/2 months after the end of the year in which the
Participant has a legally binding vested right to such
award.
(ii)
In the event
that the Committee grants a Performance Award or other Award (other
than Nonqualified Stock Option or Incentive Stock Option or a Stock
Appreciation Right) that is intended to constitute qualified
performance-based compensation within the meaning
Section 162(m) of the Code, the following rules shall apply
(as such rules may be modified by the Committee to conform with
Section 162(m) of the Code and the Treasury Regulations
thereunder as may be in effect from time to time, and any
amendments, revisions or successor provisions thereto): (a)
payments under the Performance Award shall be made solely on
account of the attainment of one or more objective performance
goals established in writing by the Committee not later than 90
days after the commencement of the period of service to which the
Performance Award relates (but in no event after 25% of the period
of service has elapsed); (b) the performance goal(s) to which
the Performance Award relates shall be based on one or more of the
following business criteria applied to the Participant and/or a
business unit or the Company and/or a Subsidiary: (1) business
development progress, (2) sales, (3) sales growth, (4) earnings
growth, (5) cash flow or cash position, (6) gross margins, (7)
stock price, (8) financings (issuance of debt or equity), (9)
market share, (10) total stockholder return, (11) net
revenues, (12) earnings per share of Company Stock;
(13) net income (before or after taxes), (14) return on
assets, (15) return on sales, (16) return on assets, (17) equity or
investment, (18) improvement of financial ratings, (19) achievement
of balance sheet or income statement objectives, (20) total
stockholder return, (21) earnings from continuing operations;
levels of expense, cost or liability, (22) earnings before all
or any interest, taxes, depreciation and/or amortization
(“EBIT”, “EBITA” or “EBITDA”),
(23) cost reduction goals, (24) business development goals
(including without limitation product launches and other business
development-related opportunities), (25) identification or
consummation of investment opportunities or completion of specified
projects in accordance with corporate business plans, including
strategic mergers, acquisitions or divestitures, (26) meeting
specified market penetration or value added goals, (27) any
combination of, or a specified increase or decrease of one or more
of the foregoing over a specified period, and (28) such other
criteria as the stockholders of the Company may approve; in each
case as applicable, as determined in accordance with generally
accepted accounting principles; and (c) once granted, the
Committee may not have discretion to increase the amount payable
under such Award, provided, however, that whether or not an Award
is intended to constitute qualified performance-based compensation
within the meaning of Section 162(m) of the Code, the
Committee, to the extent provided by the Committee at the time the
Award is granted or as otherwise permitted under
Section 162(m) of the Code, shall have the authority to make
appropriate adjustments in performance goals under an Award to
reflect the impact of extraordinary items not reflected in such
goals. For purposes of the Plan, extraordinary items shall be
defined as (1) any profit or loss attributable to acquisitions
or dispositions of stock or assets, (2) any changes in
accounting standards that may be required or permitted by the
Financial Accounting Standards Board or adopted by the Company
after the goal is established, (3) all items of gain, loss or
expense for the year related to restructuring charges for the
Company, (4) all items of gain, loss or expense for the year
determined to be extraordinary or unusual in nature or infrequent
in occurrence or related to the disposal of a segment of a
business, (5) all items of gain, loss or expense for the year
related to discontinued operations that do not qualify as a segment
of a business as defined in APB Opinion No. 30, and
(6) such other items as may be prescribed by
Section 162(m) of the Code and the Treasury Regulations
thereunder as may be in effect from time to time, and any
amendments, revisions or successor provisions and any changes
thereto. The Committee shall, prior to making payment under any
award under this Section 6(f), certify in writing that all
applicable performance goals have been attained. Notwithstanding
anything to the contrary contained in the Plan or in any applicable
Agreement, no dividends or dividend equivalents will be paid with
respect to unvested Performance Awards.
(g)
Other Stock- or Cash-Based
Awards.
(i)
The
Committee is authorized to grant Awards to Participants in the form
of Other Stock-Based Awards or Other Cash-Based Awards, including
restricted stock units, as deemed by the Committee to be consistent
with the purposes of the Plan. To the extent necessary to satisfy
the short-term deferral exception to Section 409A of the Code,
unless the Committee shall determine otherwise, the awards shall
provide that payment shall be made within 2½ months after the
end of the year in which the Participant has a legally binding
vested right to such award. With respect to Other Cash-Based Awards
intended to qualify as performance based compensation under
Section 162(m) of the Code, (i) the maximum value of the
aggregate payment that any Participant may receive with respect to
any such Other Cash-Based Award that is an Annual Incentive Award
is $3,000,000, (ii) the maximum value of the aggregate payment
that any Participant may receive with respect to any such Other
Cash-Based Award that is a Long Term Incentive Award is the amount
set forth in clause (i) above multiplied by a fraction, the
numerator of which is the number of months in the performance
period and the denominator of which is twelve, and (iii) such
additional rules set forth in Section 6(f) applicable to
Awards intended to qualify as performance-based compensation under
Section 162(m) shall apply. The Committee may establish such
other rules applicable to the Other Stock- or Cash-Based Awards to
the extent not inconsistent with Section 162(m) of the
Code.
(h)
Exercisability of Awards; Cancellation
of Awards in Certain Cases.
(i)
Except as
hereinafter provided, each Agreement with respect to an Option or
Stock Appreciation Right shall set forth the period during which
and the conditions subject to which the Option or Stock
Appreciation Right evidenced thereby shall be exercisable, and each
Agreement with respect to a Restricted Stock award, Stock Bonus
award, Performance Award or other Award shall set forth the period
after which and the conditions subject to which amounts underlying
such Award shall vest or be deliverable, all such periods and
conditions to be determined by the Committee in its sole
discretion.
(ii)
Except as
provided in Section 7(d) hereof, no Option or Stock
Appreciation Right may be exercised and no shares of Company Stock
underlying any other Award under the Plan may vest or become
deliverable more than ten years after the date of grant (the
“Stated Expiration Date”).
(iii)
Except as
provided in Section 7 hereof, no Option or Stock Appreciation
Right may be exercised and no shares of common stock underlying any
other Award under the Plan may vest or become deliverable unless
the Participant is at such time in the employ (for Participants who
are employees) or service (for Participants who are Nonemployee
Directors or consultants) of the Company or a Subsidiary (or a
company, or a parent or subsidiary company of such company, issuing
or assuming the relevant right or award in a Change in Control) and
has remained continuously so employed or in service since the
relevant date of grant of the Award.
(iv)
An Option or
Stock Appreciation Right shall be exercisable by the filing of a
written notice of exercise or a notice of exercise in such other
manner with the Company, on such form and in such manner as the
Committee shall in its sole discretion prescribe, and by payment in
accordance with Section 6(i) hereof.
(v)
Unless the
applicable Agreement provides otherwise, the “Option exercise
date” and the “Stock Appreciation Right exercise
date” shall be the date that the written notice of exercise,
together with payment, are received by the Company.
(i)
Payment of Award
Price.
(i)
Unless the
applicable Agreement provides otherwise or the Committee in its
sole discretion otherwise determines, any written notice of
exercise of an Option or Stock Appreciation Right must be
accompanied by payment of the full Option or Stock Appreciation
Right exercise price.
(ii)
Payment of
the Option exercise price and of any other payment required by the
Agreement to be made pursuant to any other Award shall be made in
any combination of the following: (a) by certified or official
bank check payable to the Company (or the equivalent thereof
acceptable to the Committee), (b) with the consent of the
Committee in its sole discretion, by personal check (subject to
collection) which may in the Committee’s discretion be deemed
conditional, (c) unless otherwise provided in the applicable
Agreement, and as permitted by the Committee, by delivery of
previously-acquired shares of common stock owned by the Participant
having a Fair Market Value (determined as of the Option exercise
date, in the case of Options, or other relevant payment date as
determined by the Committee, in the case of other Awards) equal to
the portion of the exercise price being paid thereby; and/or
(d) unless otherwise provided in applicable agreement, and as
permitted by the Committee, on a net-settlement basis with the
Company withholding the amount of common stock sufficient to cover
the exercise price and tax withholding obligation. Payment in
accordance with clause (a) of this Section 6(i)(ii) may
be deemed to be satisfied, if and to the extent that the applicable
Agreement so provides or the Committee permits, by delivery to the
Company of an assignment of a sufficient amount of the proceeds
from the sale of Company Stock to be acquired pursuant to the Award
to pay for all of the Company Stock to be acquired pursuant to the
Award and an authorization to the broker or selling agent to pay
that amount to the Company and to effect such sale at the time of
exercise or other delivery of shares of Company Stock.
7.
Termination of
Employment.
(a)
Unless the
applicable Agreement provides otherwise or the Committee in its
sole discretion determines otherwise, upon termination of a
Participant’s employment or service with the Company and its
Subsidiaries by the Company or its Subsidiary for Cause (or in the
case of a Nonemployee Director upon such Nonemployee
Director’s failure to be renominated as Nonemployee Director
of the Company), the portions of outstanding Options and Stock
Appreciation Rights granted to such Participant that are
exercisable as of the date of such termination of employment or
service shall remain exercisable, and any payment or notice
provided for under the terms of any other outstanding Award as
respects the portion thereof that is vested as of the date of such
termination of employment or service, may be given, for a period of
thirty (30) days from and including the date of termination of
employment or service (and shall thereafter terminate). All
portions of outstanding Options or Stock Appreciation Rights
granted to such Participant which are not exercisable as of the
date of such termination of employment or service, and any other
outstanding Award which is not vested as of the date of such
termination of employment or service shall terminate upon the date
of such termination of employment or service.
(b)
Unless the
applicable Agreement provides otherwise or the Committee in its
sole discretion determines otherwise, upon termination of the
Participant’s employment or service with the Company and its
Subsidiaries for any reason other than as described in subsection
(a), (c), (d) or (e) hereof, the portions of outstanding
Options and Stock Appreciation Rights granted to such Participant
that are exercisable as of the date of such termination of
employment or service shall remain exercisable for a period of
ninety (90) days (and shall terminate thereafter), and any
payment or notice provided for under the terms of any other
outstanding Award as respects the portion thereof vested as of the
date of termination of employment or service may be given, for a
period of ninety (90) days from and including the date of
termination of employment or service (and shall terminate
thereafter). All additional portions of outstanding Options or
Stock Appreciation Rights granted to such Participant which are not
exercisable as of the date of such termination of employment or
service, and any other outstanding Award which is not vested as of
the date of such termination of employment or service shall
terminate upon the date of such termination of employment or
service.
(c)
Unless the
applicable Agreement provides otherwise or the Committee in its
sole discretion determines otherwise, if the Participant
voluntarily Retires with the consent of the Company or the
Participant’s employment or service terminates due to
Disability, all outstanding Options, Stock Appreciation Rights and
all other outstanding Awards (except, in the event a Participant
voluntarily Retires, with respect to Awards (other than Options and
Stock Appreciation Rights) intended to qualify as performance-based
compensation within the meaning of Section 162(m) of the Code)
granted to such Participant shall continue to vest in accordance
with the terms of the applicable Agreements. The Participant shall
be entitled to exercise each such Option or Stock Appreciation
Right and to make any payment, give any notice or to satisfy other
condition under each such other Award, in each case, for a period
of six months from and including the later of (i) date such
entire Award becomes vested or exercisable in accordance with the
terms of such Award and (ii) the date of Retirement, and
thereafter such Awards or parts thereof shall be canceled.
Notwithstanding the foregoing, the Committee may in its sole
discretion provide for a longer or shorter period for exercise of
an Option or Stock Appreciation Right or may permit a Participant
to continue vesting under an Option, Stock Appreciation Right or
Restricted Stock award or to make any payment, give any notice or
to satisfy other condition under any other Award. The Committee may
in its sole discretion, and in accordance with Section 409A of
the Code, determine (i) for purposes of the Plan, whether any
termination of employment or service is a voluntary Retirement with
the Company’s consent or is due to Disability for purposes of
the Plan, (ii) whether any leave of absence (including any
short-term or long-term Disability or medical leave) constitutes a
termination of employment or service, or a failure to have remained
continuously employed or in service, for purposes of the Plan
(regardless of whether such leave or status would constitute such a
termination or failure for purposes of employment law),
(iii) the applicable date of any such termination of
employment or service, and (iv) the impact, if any, of any of
the foregoing on Awards under the Plan.
(d)
Unless the
applicable Agreement provides otherwise or the Committee in its
sole discretion determines otherwise, if the Participant’s
employment or service terminates by reason of death, or if the
Participant’s employment or service terminates under
circumstances providing for continued rights under subsection (b),
(c) or (e) of this Section 7 and during the period
of continued rights described in subsection (b), (c) or
(e) the Participant dies, all outstanding Options, Restricted
Stock and Stock Appreciation Rights granted to such Participant
shall vest and become fully exercisable, and any payment or notice
provided for under the terms of any other outstanding Award may be
immediately paid or given and any condition may be satisfied, by
the person to whom such rights have passed under the
Participant’s will (or if applicable, pursuant to the laws of
descent and distribution) for a period of one year from and
including the date of the Participant’s death and thereafter
all such Awards or parts thereof shall be canceled.
(e)
Unless the
applicable Agreement provides otherwise or the Committee in its
sole discretion determines otherwise, upon termination of a
Participant’s employment or service with the Company and its
Subsidiaries (i) by the Company or its Subsidiaries without
Cause (including, in case of a Nonemployee Director, the failure to
be elected as a Nonemployee Director) or (ii) by the
Participant for “good reason” or any like term as
defined under any employment agreement with the Company or a
Subsidiary to which a Participant may be a party to, the portions
of outstanding Options and Stock Appreciation Rights granted to
such Participant which are exercisable as of the date of
termination of employment or service of such Participant shall
remain exercisable, and any payment or notice provided for under
the terms of any other outstanding Award as respects the portion
thereof vested as of the date of termination of employment or
service may be given, for a period of three (3) months from and
including the date of termination of employment or service and
shall terminate thereafter. Unless the applicable Agreement
provides otherwise or the Committee in its sole discretion
determines otherwise, any other outstanding Award shall terminate
as of the date of such termination of employment or
service.
(f)
Notwithstanding anything in this Section 7 to the contrary, no
Option or Stock Appreciation Right may be exercised and no shares
of Company Stock underlying any other Award under the Plan may vest
or become deliverable past the Stated Expiration Date.
8.
Effect of Change in
Control
.
Unless
otherwise determined in an Award Agreement, in the event of a
Change in Control:
(a)
With respect
to each outstanding Award that is assumed or substituted in
connection with a Change in Control, in the event of a termination
of a Participant’s employment or service by the Company
without Cause during the 24-month period following such Change in
Control, on the date of such termination (i) such Award shall
become fully vested and, if applicable, exercisable, (ii) the
restrictions, payment conditions, and forfeiture conditions
applicable to any such Award granted shall lapse, and
(iii) any performance conditions imposed with respect to
Awards shall be deemed to be fully achieved at target
levels.
(b)
With respect
to each outstanding Award that is not assumed or substituted in
connection with a Change in Control, immediately upon the
occurrence of the Change in Control, (i) such Award shall
become fully vested and, if applicable, exercisable, (ii) the
restrictions, payment conditions, and forfeiture conditions
applicable to any such Award granted shall lapse, and
(iii) any performance conditions imposed with respect to
Awards shall be deemed to be fully achieved at target
levels.
(c)
For purposes
of this Section 8, an Award shall be considered assumed or
substituted for if, following the Change in Control, the Award
remains subject to the same terms and conditions that were
applicable to the Award immediately prior to the Change in Control
except that, if the Award related to Shares, the Award instead
confers the right to receive common stock of the acquiring
entity.
(d)
Notwithstanding any other provision of the Plan: (i) in the
event of a Change in Control, except as would otherwise result in
adverse tax consequences under Section 409A of the Code, the
Board may, in its sole discretion, provide that each Award shall,
immediately upon the occurrence of a Change in Control, be
cancelled in exchange for a payment in cash or securities in an
amount equal to (x) the excess of the consideration paid per
Share in the Change in Control over the exercise or purchase price
(if any) per Share subject to the Award multiplied by (y) the
number of Shares granted under the Award and (ii) with respect
to any Award that constitutes a deferral of compensation subject to
Section 409A of the Code, in the event of a Change in Control
that does not constitute a change in the ownership or effective
control of the Company or in the ownership of a substantial portion
of the assets of the Company under Section 409A(a)(2)(A)(v) of
the Code and regulations thereunder, such Award shall be settled in
accordance with its original terms or at such earlier time as
permitted by Section 409A of the Code.
9.
Miscellaneous.
(a)
Agreements
evidencing Awards under the Plan shall contain such other terms and
conditions, not inconsistent with the Plan, as the Committee may
determine in its sole discretion, including penalties for the
commission of competitive acts or other actions detrimental to the
Company. Notwithstanding any other provision hereof, the Committee
shall have the right at any time to deny or delay a
Participant’s exercise of Options if such Participant is
reasonably believed by the Committee (i) to be engaged in
material conduct adversely affecting the Company or (ii) to be
contemplating such conduct, unless and until the Committee shall
have received reasonable assurance that the Participant is not
engaged in, and is not contemplating, such material conduct adverse
to the interests of the Company.
(b)
participants
are and at all times shall remain subject to the trading window
policies adopted by the Company from time to time throughout the
period of time during which they may exercise Options, Stock
Appreciation Rights or sell shares of Company Stock acquired
pursuant to the Plan.
10.
No Special Employment Rights, No Right
to Award
.
(a)
Nothing
contained in the Plan or any Agreement shall confer upon any
Participant any right with respect to the continuation of
employment or service by the Company or interfere in any way with
the right of the Company, subject to the terms of any separate
employment agreement to the contrary, at any time to terminate such
employment or service or to increase or decrease the compensation
of the Participant.
(b)
No person
shall have any claim or right to receive an Award hereunder. The
Committee’s granting of an Award to a Participant at any time
shall neither require the Committee to grant any other Award to
such Participant or other person at any time or preclude the
Committee from making subsequent grants to such Participant or any
other person.
11.
Securities Matters
.
(a)
The Company
shall be under no obligation to effect the registration pursuant to
the Securities Act of any interests in the Plan or any shares of
Company Stock to be issued hereunder or to effect similar
compliance under any state laws. Notwithstanding anything herein to
the contrary, the Company shall not be obligated to cause to be
issued or delivered any certificates evidencing shares of Company
Stock pursuant to the Plan unless and until the Company is advised
by its counsel that the issuance and delivery of such certificates
is in compliance with all applicable laws, regulations of
governmental authority and the requirements of any securities
exchange on which shares of Company Stock are traded. The Committee
may require, as a condition of the issuance and delivery of
certificates evidencing shares of Company Stock pursuant to the
terms hereof, that the recipient of such shares make such
agreements and representations, and that such certificates bear
such legends, as the Committee, in its sole discretion, deems
necessary or desirable.
(b)
The transfer
of any shares of Company Stock hereunder shall be effective only at
such time as counsel to the Company shall have determined that the
issuance and delivery of such shares is in compliance with all
applicable laws, regulations of governmental authority and the
requirements of any securities exchange on which shares of Company
Stock are traded. The Committee may, in its sole discretion, defer
the effectiveness of any transfer of shares of Company Stock
hereunder in order to allow the issuance of such shares to be made
pursuant to registration or an exemption from registration or other
methods for compliance available under federal or state securities
laws. The Committee shall inform the Participant in writing of its
decision to defer the effectiveness of a transfer. During the
period of such deferral in connection with the exercise of an
Award, the Participant may, by written notice, withdraw such
exercise and obtain the refund of any amount paid with respect
thereto.
12.
Withholding Taxes
.
(a)
Whenever cash is to be
paid pursuant to an Award, the Company shall have the right to
deduct therefrom an amount sufficient to satisfy any federal, state
and local withholding tax requirements related
thereto.
(b)
Whenever shares of
Company Stock are to be delivered pursuant to an Award, the Company
shall have the right to require the Participant to remit to the
Company in cash an amount sufficient to satisfy any federal, state
and local withholding tax requirements related thereto. With the
approval of the Committee, a Participant may satisfy the foregoing
requirement by electing to have the Company withhold from delivery
shares of Company Stock having a value equal to the minimum amount
of tax required to be withheld. Such shares shall be valued at
their Fair Market Value on the date of which the amount of tax to
be withheld is determined. Fractional share amounts shall be
settled in cash. Such a withholding election may be made with
respect to all or any portion of the shares to be delivered
pursuant to an Award.
13.
Non-Competition and
Confidentiality
.
By
accepting Awards and as a condition to the exercise of Awards and
the enjoyment of any benefits of the Plan, including participation
therein, each Participant agrees to be bound by and subject to
non-competition, confidentiality and invention ownership agreements
acceptable to the Committee or any officer or director to whom the
Committee elects to delegate such authority.
14.
Notification of Election Under Section
83(b) of the Code
.
If any
Participant shall, in connection with the acquisition of shares of
Company Stock under the Plan, make the election permitted under
Section 83(b) of the Code, such Participant shall notify the
Company of such election within 10 days of filing notice of the
election with the Internal Revenue Service.
15.
Amendment or Termination of the
Plan
.
The
Board of Directors or the Committee may, at any time, suspend or
terminate the Plan or revise or amend it in any respect whatsoever;
provided, however, that the requisite stockholder approval shall be
required if and to the extent the Board of Directors or Committee
determines that such approval is appropriate or necessary for
purposes of satisfying Sections 162(m) or 422 of the Code or Rule
16b-3 or other applicable law. Awards may be granted under the Plan
prior to the receipt of such stockholder approval of the Plan but
each such grant shall be subject in its entirety to such approval
and no Award may be exercised, vested or otherwise satisfied prior
to the receipt of such approval. No amendment or termination of the
Plan may, without the consent of a Participant, adversely affect
the Participant’s rights under any outstanding
Award.
16.
Transfers Upon Death;
Nonassignability
.
(a)
A
Participant may file with the Committee a written designation of a
beneficiary on such form as may be prescribed by the Committee and
may, from time to time, amend or revoke such designation. If no
designated beneficiary survives the Participant, upon the death of
a Participant, outstanding Awards granted to such Participant may
be exercised only by the executor or administrator of the
Participant’s estate or by a person who shall have acquired
the right to such exercise by will or by the laws of descent and
distribution. No transfer of an Award by will or the laws of
descent and distribution shall be effective to bind the Company
unless the Committee shall have been furnished with written notice
thereof and with a copy of the will and/or such evidence as the
Committee may deem necessary to establish the validity of the
transfer and an agreement by the transferee to comply with all the
terms and conditions of the Award that are or would have been
applicable to the Participant and to be bound by the
acknowledgments made by the Participant in connection with the
grant of the Award.
(b)
During a
Participant’s lifetime, the Committee may, in its discretion,
pursuant to the provisions set forth in this clause (b), permit the
transfer, assignment or other encumbrance of an outstanding Option
unless such Option is an Incentive Stock Option and the Committee
and the Participant intends that it shall retain such status.
Subject to the approval of the Committee and to any conditions that
the Committee may prescribe, a Participant may, upon providing
written notice to the General Counsel of the Company, elect to
transfer any or all Options granted to such Participant pursuant to
the Plan to members of his or her immediate family, including, but
not limited to, children, grandchildren and spouse or to trusts for
the benefit of such immediate family members or to partnerships in
which such family members are the only partners; provided, however,
that no such transfer by any Participant may be made in exchange
for consideration. Any such transferee must agree, in writing, to
be bound by all provisions of the Plan.
17.
Effective Date and Term of Plan
.
The Plan was
adopted by the Board on May 16, 2012 (the “Effective
Date”). The Plan was amended on February 23, 2017 to increase
by 2,00,000 (post stock split) the number of shares of the Company
Stock that may be granted under the Plan. The Plan was further
amended on January 9, 2019, to increase the number of shares of the
Conpany Stock that may be granted pursuant to awards under the Plan
by 5,000,000 (post reverse stock split) shares of Company Stock,
subject to approval by the Company’s stockholders. All awards
under the Plan prior to such stockholder approval were subject in
their entirety to such approval. If such approval is not obtained
prior to the first anniversary of the date of adoption of the Plan,
the Plan and all awards thereunder shall terminate on that date.
Unless earlier terminated by the Board of Directors, the right to
grant Awards under the Plan shall terminate on the tenth
anniversary of the Effective Date. Awards outstanding at Plan
termination shall remain in effect according to their terms and the
provisions of the Plan.
18.
Applicable Law
.
Except
to the extent preempted by any applicable federal law, the Plan
shall be construed and administered in accordance with the laws of
the State of Delaware, without reference to its principles of
conflicts of law.
19.
Participant Rights
.
(a)
No
Participant shall have any claim to be granted any award under the
Plan, and there is no obligation for uniformity of treatment for
Participants. Except as provided specifically herein, a Participant
or a transferee of an Award shall have no rights as a stockholder
with respect to any shares covered by any award until the date of
the issuance of a Company Stock certificate to him or her for such
shares.
(b)
Determinations by the Committee under the Plan relating to the
form, amount and terms and conditions of grants and Awards need not
be uniform, and may be made selectively among persons who receive
or are eligible to receive grants and awards under the Plan,
whether or not such persons are similarly situated.
20.
Unfunded Status of Awards
.
The
Plan is intended to constitute an “unfunded” plan for
incentive and deferred compensation. With respect to any payments
not yet made to a Participant pursuant to an Award, nothing
contained in the Plan or any Agreement shall give any such
Participant any rights that are greater than those of a general
creditor of the Company.
21.
No Fractional Shares
.
No
fractional shares of Company Stock shall be issued or delivered
pursuant to the Plan. The Committee shall determine whether cash,
other Awards, or other property shall be issued or paid in lieu of
such fractional shares or whether such fractional shares or any
rights thereto shall be forfeited or otherwise
eliminated.
22.
Interpretation
. The Plan is
designed and intended to the extent applicable, to comply with
Section 162(m) of the Code, and to provide for grants and
other transactions which are exempt under Rule 16b-3, and all
provisions hereof shall be construed in a manner to so comply.
Awards under the Plan are intended to comply with Code
Section 409A to the extent subject thereto and the Plan and
all Awards shall be interpreted in accordance with Code
Section 409A and Department of Treasury regulations and other
interpretive guidance issued thereunder, including without
limitation any such regulations or other guidance that may be
issued after the effective date of the Plan. Notwithstanding any
provision in the Plan to the contrary, no payment or distribution
under this Plan that constitutes an item of deferred compensation
under Code Section 409A and becomes payable by reason of a
Participant’s termination of employment or service with the
Company will be made to such Participant until such
Participant’s termination of employment or service
constitutes a “separation from service” (as defined in
Code Section 409A). For purposes of this Plan, each amount to
be paid or benefit to be provided shall be construed as a separate
identified payment for purposes of Code Section 409A. If a
participant is a “specified employee” (as defined in
Code Section 409A), then to the extent necessary to avoid the
imposition of taxes under Code Section 409A, such Participant
shall not be entitled to any payments upon a termination of his or
her employment or service until the earlier of: (i) the
expiration of the six (6)-month period measured from the date of
such Participant’s “separation from service” or
(ii) the date of such Participant’s death. Upon the
expiration of the applicable waiting period set forth in the
preceding sentence, all payments and benefits deferred pursuant to
this Section 22 (whether they would have otherwise been
payable in a single lump sum or in installments in the absence of
such deferral) shall be paid to such Participant in a lump sum as
soon as practicable, but in no event later than sixty
(60) calendar days, following such expired period, and any
remaining payments due under this Plan will be paid in accordance
with the normal payment dates specified for them
herein.
********
Approved
and adopted by the Board of Directors on this 9th day of January
2019.