Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - Network Cadence, Inc. | verecloud_8k.htm |
| EX-3.1 - EXHIBIT 3.1 - Network Cadence, Inc. | articles.htm |
| EX-10.6 - EXHIBIT 10.6 - Network Cadence, Inc. | verecloud_8k-ex10x6.htm |
| EX-10.5 - EXHIBIT 10.5 - Network Cadence, Inc. | verecould_8k-ex10x5.htm |
| EX-10.3 - EXHIBIT 10.3 - Network Cadence, Inc. | verecloud_8k-ex10x3.htm |
| EX-10.4 - EXHIBIT 10.4 - Network Cadence, Inc. | vereclous_8k-ex10x4.htm |
| EX-10.2 - EXHIBIT 10.2 - Network Cadence, Inc. | verecloud_8k-ex10x2.htm |
Exhibit 10.1
VERECLOUD,
INC.
UNIT BONUS
PLAN
1. Purpose.
(a) This
Verecloud Unit Bonus Plan (“Plan”) is intended to advance
the interests of Verecloud, Inc., a Nevada corporation (the “Company”) by providing
incentive compensation for a select group of key employees and advisors and
rewarding such group for past performance.
(b) This Plan
is in no way related or tied to the Company’s other compensatory arrangements or
incentive plans and is a separate incentive plan of the Company designed to
independently meet the purposes set forth in subsection (a) above.
2. Definitions. Unless
otherwise defined herein, each capitalized term shall have the meaning set forth
for such term in the Verecloud, Inc. 2009 Equity Incentive Plan.
(a) “Award” means a Participant’s
award, measured in Units.
(b) “Company” has the meaning set
forth in Section
1(a).
(c) “Involuntary Separation from Service
Event” means a Participant’s separation from service without Cause or due
to the Participant’s death or Disability.
(d) “Market Valuation Event” means
obtaining, and sustaining for a period of 15 consecutive days, a market value of
the Company equal to or exceeding $30 million, measured by multiplying the
outstanding number of shares of Common Stock by the then current Fair Market
Value of the Common Stock. For purposes of this Plan, the date of the
Market Valuation Event shall be the date of the 15th
consecutive day upon which the Company’s market value equals or exceeds $30
million.
(e) “Participation Agreement” means
an agreement between the Company and the Participant in substantially the form
attached hereto as Exhibit
A and incorporated herein by reference.
(f) “Plan” has the meaning set
forth in Section
1(a).
(g) “Plan Year” means a 12-month
period corresponding with the calendar year.
(h) “Recipient” has the meaning
set forth in Section
5(a).
(i)
A “Unit” is a measuring device
with respect to a Participant’s share of the amounts set forth in the Unit Pool,
as set forth herein.
(j) The
“Unit Pool” is an
accounting device used to measure the Award as set forth in Section
4 of this
Plan. The value of the Unit Pool is determined based upon the Fair
Market Value.
The
Company has determined that the Unit Pool will consist of 1250 Units that have
been awarded as of the date of this Plan. Additionally, the Company
reserves the right to amend the Plan to increase or decrease the number of Units
in the Unit Pool, and to alter the allocation of the total number of Units in
the Unit Pool to the Company’s key employee group, advisors and/or future
Participants.
(k) “Value of the Unit Pool”
means, as applicable, 12.5 % of (i) the total consideration received by
the Company upon a Change in Control, (ii) the Fair Market Value of the
outstanding shares of Commons Stock of the Company at the time of a Market
Valuation Event or the Participant’s Involuntary Separation from Service
Event.
(l) “Vesting Event” with respect to
a Participant means, subject to Section 4(c), (i) the consummation of a Change
in Control, (ii) the occurrence of a Market Valuation Event, or (iii) the
occurrence of an Involuntary Separation from Service Event with respect to such
Participant.
3. Administration.
(a) Plan
Administrator. Michael Cookson shall serve as the initial Plan
Administrator to administer, construe, and interpret the Plan. In the
event that Michael Cookson of the Company is no longer willing or able to act as
Plan Administrator, the President of the Company shall appoint a new Plan
Administrator to administer the Plan. The Plan Administrator shall
not be liable for any act done or determination made in good
faith. The construction and interpretation by the Plan Administrator
of any provision of the Plan shall be final and conclusive. The Plan
Administrator may adopt rules and regulations from time to time for carrying out
the Plan. The Plan Administrator may propose additional Participants
to the Plan or the removal of an existing Participant to the Plan.
(b) Indemnification of Plan
Administrator. To the extent allowable pursuant to applicable
laws, in addition to such other rights of indemnification as he may otherwise
possess as an officer of the Company, the Plan Administrator shall be
indemnified and held harmless by the Company from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by such member in
connection with or resulting from any claim, action, suit, or proceeding to
which the member may be a party or in which the member may be involved by reason
of any action or failure to act pursuant to the Plan and against and from any
and all amounts paid by him or her in satisfaction of judgment in such action,
suit, or proceeding against him or her unless it is determined in said action
that such Plan Administrator is liable for gross negligence or willful
misconduct in the performance of his duties; and provided he or she gives the
Company an opportunity, at its own expense, to handle and defend the same before
he or she undertakes to handle and defend it on his or her own
behalf.
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4. Awards.
(a) Units. Each
Participant, upon designation as provided herein, is eligible to receive an
Award for each Plan Year. Each Participant’s Award shall be
calculated as set forth in such Participant’s Participation
Agreement.
(b) Participation
Agreement. Each Participant’s Participation Agreement shall
remain in effect until notice of a change is given by the Plan Administrator to
the individual Participant as provided below. Any change to a
Participant’s Participation Agreement shall not be deemed to be an amendment to
this Plan.
(c) Vesting and
Forfeiture.
(i) Vesting upon a Vesting
Event. A Participant’s Award shall vest upon the occurrence of
a Vesting Event.
(ii) Forfeiture of Vested and
Unvested Benefits. Notwithstanding anything in this Plan to
the contrary, (A) if any Participant (1) has his service terminated by the
Company for Cause, (2) voluntarily terminates his service with the Company for
any reason, or (3) breaches the provisions of any applicable employment
agreement or confidentiality agreement with the Company, or (B) if the Company
is liquidated or dissolved prior to a Change in Control, the Participant will
forfeit all rights and benefits to any and all vested but unpaid Awards and any
unvested portion of his Awards.
5. Payment
of Award.
(a) General Terms. Upon the
occurrence of a Vesting Event, the Participant shall be entitled to payment in
accordance with the terms of this section and the Participant’s Participation
Agreement. Upon such Vesting Event, the Company shall pay to
Participant or Participant’s beneficiary (as applicable) (collectively referred
to herein as the “Recipient”) such payment as
follows:
(i) Payment
Form. The Company shall pay the Recipient in cash or Common
Stock as determined by the Board of Directors in its sole discretion; provided
that payments in connection with a Market Valuation Event shall be paid in the
form of Common Stock.
(ii) Payment
Amount. The amount of the payment payable to Participant
pursuant to this section is calculated as follows:
Participant’s Vested Number
of
Units x Value
of Unit Pool
Total
Number of Units Available in Unit Pool
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(iii) Payment
Timing.
(1) Change in
Control. For payments associated with a Change in Control, the
Company shall pay the Recipient within five (5) business days immediately
following the date of the Change in Control; provided that, to the extent any of
the payments due and owing the Recipient in connection with a Change in Control
constitute “transaction-based compensation” as defined in Treasury Regulation §
1.409A-3(i)(5)(iv)(A), the Company shall pay to the Recipient on the same
schedule and under the same terms and conditions as apply to payments to
shareholders of the Company generally; provided further that all such
transaction-based payments shall be paid to the Recipient on or before the fifth
(5th)
anniversary of the date of such Change in Control.
(2) Company Valuation Exceeding $30
million. For payments associated with a Market Valuation
Event, the Company shall pay the Recipient no more than thirty (30) business
days immediately following the date of such Market Valuation Event.
(3) Separation from Service;
Acceleration Upon Death. For payments vesting in connection with a
Participant’s Involuntary Separation from Service Event, the Company shall pay
the Recipient twenty-five percent (25%) of the Participant’s Award on the first
(1st) day
of the first (1st)
month following the date of such Involuntary Separation from Service Event and
the balance of seventy-five percent (75%) of the Participant’s Award
will be paid to the Recipient in three (3) subsequent annual payments on the
anniversary date of the first payment date, and shall bear interest equal to the
prime rate as published in the “Money Rates” column of The Wall Street Journal on
the date of the Triggering Event, adjusted annually (and the amount of the
monthly payment shall also adjust correspondingly), in any event not to exceed
seven percent (7%); provided, however, that if the Participant’s Involuntary
Separation from Service Event is due to his death, the Company shall pay the
Recipient no more than 30 days after such Involuntary Separation from Service
Event; and, provided, further, if the Participant dies following an Involuntary
Separation from Service Event and prior to receiving payment of his entire
Award, the Company shall pay the balance of the Participant’s Award no more than
30 days after receiving notification from the Recipient of the Participant’s
death.
Notwithstanding
anything to the contrary herein or in any applicable Participation Agreement, if
the making of any payment at the date specified in this section would jeopardize
the ability of the Company to continue as a going concern, such payment will be
made at the time the payment would not have such effect on the
Company.
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(b) Breach by
Participant. In the event the Company, in good faith, believes
a Participant who separates his service from the Company and begins receiving
payment of the vested portion of his Awards in the manner set forth in
subsection (a) is breaching or has breached the provisions of an employment
agreement or confidentiality agreement with the Company or any Applicable
Agreement, the Company may immediately cease making any further payment to the
Participant until the Participant demonstrates, to the sole and absolute
satisfaction of the Company, or if a court of competent jurisdiction so decides,
that the Participant is not in breach or has not breached such
agreement. If the Participant does demonstrate to the Company, in its
sole and absolute discretion, or a court of competent jurisdiction that he is
not breaching or has not breached such agreement with the Company or such
Applicable Agreement, the Company shall resume payment to the Participant on the
first (1st) day
of the month following such acceptance by the Company or court
determination. However, in this circumstance, the Participant shall
not be entitled to receive any interest for the time period within which
payments to him were suspended.
(c) Beneficiary
Designation. Each Participant may file with the Plan
Administrator a notice in writing substantially in the form of the Beneficiary
Designation attached as Exhibit
B to this Plan and incorporated herein by this reference, designating one
or more beneficiaries to whom payments otherwise due the Participant shall be
made in the event of his death. The Participant shall have the right
to change the beneficiary or beneficiaries from time to time provided, however,
that no change shall become effective until received in writing by the Plan
Administrator. Upon Participant’s death, if Participant did not file
a Beneficiary Designation with the Plan Administrator, any amounts otherwise to
be paid to Participant under subsection (a) shall be paid to Participant’s
estate.
6. Limitation
of Rights. Nothing contained in this Plan shall be construed
to—
(a) give any
particular employee of the Company or any person who does not satisfy the
definition of “Participant” any right to be a Participant;
(b) limit in
any way the right of the Company to terminate a Participant’s service to the
Company, with or without Cause, at any time;
(c) be
evidence of any employment or other agreement or understanding, express or
implied, that the Company will continue to employ a Participant in any
particular position or at any particular rate of remuneration; or
(d) give a
Participant a right or interest in any fund or specific asset of the
Company.
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7. Source of
Payments. All benefits under the Plan shall be provided out of
the general assets of the Company at the time such benefits are to be paid to a
Participant. A Participant, his beneficiary, and any other person or
persons having or claiming a right to payments hereunder or to any proprietary
rights under the Plan shall rely solely on the unsecured promise of the Company
set forth herein, and nothing in this Agreement shall be construed to give a
Participant, his beneficiary or any other person or persons any right, title,
ownership or claim in or to any property of any kind whatsoever owned by the
Company or in which it may have any right, title or ownership now or in the
future, including, but not limited to, any asset, fund, reserve, account or
insurance or annuity contract that the Company may purchase or establish for the
purpose of enabling it to carry out its promise to a
Participant. Each Participant shall have the right to enforce his
claim against the Company in the same manner as any other unsecured
creditor. Moreover, nothing contained in the Plan and no action taken
pursuant to the provisions of the Plan shall require the Company to create or be
construed to create a trust of any kind, or create a fiduciary relationship
between the Company and a Participant, his beneficiary, or any other
person.
8. Nonalienation
of Benefits. Any benefits granted or any other right or
benefit under this Plan shall not be subject to anticipation, alienation, sale,
assignment, pledge, encumbrance, or charge, and any attempt to anticipate,
alienate, sell, assign, pledge, encumber, or charge the same shall be
void. No right or benefit hereunder shall in any manner be liable for
or subject to the debts, contracts, liabilities, or torts of the person entitled
to such benefits. If any Participant should become bankrupt or
attempt to anticipate, alienate, sell, assign, pledge, encumber or charge any
right or benefit hereunder, then such right or benefit shall, in the discretion
of the Plan Administrator, cease and terminate, and in such event, the Company
may hold or apply the same or any part thereof, for the benefit of the
Participant, his beneficiary, estate, spouse, children, or other dependents, or
any of them, in such manner and in such proportion as the Plan Administrator may
deem proper.
9. Incapacity
of Beneficiary. If the Plan Administrator shall find that any
person to whom any payment is payable under this Plan is unable to care for his
affairs because of illness or injury or because he is a minor, any payment due
(unless a prior claim therefore shall have been made by a duly appointed
guardian or other legal representative) may be paid to the spouse, a child, a
parent, or a sibling, or any other person or entity deemed by the Plan
Administrator to have incurred expense for such person otherwise entitled to
payment, in accordance with the applicable provisions of the
Plan. Any such payment shall be a complete discharge of the
liabilities of the Company under the Plan.
10. Tax
Treatment; Withholding. The Company does not represent or
warrant that any particular federal, state, or local income, payroll, Social
Security, personal property, estate or other tax consequence will result from
the Plan. To the extent required by the laws in effect from
time-to-time, the Company may withhold from the regular compensation paid to a
Participant as an employee of the Company, or from the benefits paid to a
Participant hereunder, whatever taxes are required to be withheld on the
benefits payable under this Plan for federal, state or local government
purposes.
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11. Other
Benefit Plans. The Award shall not be deemed to be earnings,
base salary or compensation for the purpose of calculating the amount of the
Participant’s benefits under the amount of life insurance under a life insurance
plan supplied by the Company or the basis for establishing disability payments
under a disability plan, the basis for bonus, profit sharing or other similar
plan, or any other salary-based benefit.
12. Termination or Amendment of
Plan.
(a) Plan
Termination. Board of Directors may at any time suspend or
terminate the Plan. No such suspension or termination shall diminish
or impair the rights under an Award previously granted without the consent of
the affected Participant. No Awards may be granted or awarded during any period
of suspension or after termination of the Plan.
(b) Amendment. The Plan
Administrator may, at any time, amend or modify this Plan in whole or in part;
provided, however, that, except to the extent necessary to bring the Plan into
compliance with Section 409A, (i) no amendment or modification shall decrease
the value or vested percentage of a Participant’s Award in existence at the time
an amendment or modification is made, and (ii) no amendment or modification
shall materially and adversely affect the Participant’s rights to be credited
with additional amounts on such Award or otherwise materially and adversely
affect the Participant’s rights with respect to such Awards. The
amendment or modification of this Plan shall have no effect on any Participant
or beneficiary who has become entitled to the payment of benefits under this
Plan as of the date of the amendment or modification.
13.
Effective
Date. This Plan shall become operative and in effect on the
date set forth below. This Plan supersedes all previous oral or
written plans or agreements respecting the subject matter
hereof. Therefore, the Company is discharged from all obligations
under said previous plans or agreements.
14. Captions. All
captions, titles, headings and divisions hereof are for purposes of convenience
and reference only, and shall not be construed to limit or affect the
interpretation of this Plan.
15. Binding
Effect. This Plan shall be binding upon and inure to the
benefit of Company, Participant and their assigns, heirs, executors,
administrators and legal representatives.
16. Governing
Law. This Plan shall be construed in accordance with and
governed by the laws of the State of Nevada.
17. Severability. If
any provision of this Plan becomes or is found to be illegal, unenforceable,
void, or voidable, then such clause or provision must first be modified to the
extent to make this Plan legal and enforceable and then, if necessary, second,
severed from the Plan to allow the remainder of this Plan to remain in full
force and effect.
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18. Construction. Whenever
the singular number is used in this Plan and when required by the context, the
same shall include the plural, and the masculine gender shall include the
feminine and neuter genders and vice-versa.
19. Code
Section 280G and 409A Compliance. To the extent applicable,
the Plan and Participation Agreements shall be interpreted in accordance with
Section 409A. Notwithstanding anything in the Plan to the contrary,
(a) this Plan may be amended by the Plan Administrator at any time,
retroactively if required, to the extent required to conform the Plan to, or
exempt the Plan from, Code Section 280G or Section 409A and (b) no provision of
the Plan shall be followed to the extent that following such provision would
result in an excess parachute payment under Code Section 280G or a violation of
Section 409A.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, Michael Cookson, Plan Administrator, has caused this Verecloud
Unit Bonus Plan to be executed pursuant to a resolution adopted by its Board of
Directors, to be effective as of January 27, 2010.
|
Verecloud,
Inc.,
a Nevada corporation
|
|||
|
|
|
By: /s/ Michael Cookson | |
| Print Name: Michael Cookson | |||
| Title: Plan Administrator | |||
| Date of Execution: January 27, 2010 | |||
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