Attached files
Exhibit 10.1
GUAR GLOBAL LTD.
2013 EQUITY INCENTIVE PLAN
1. PURPOSE. The purpose of this Guar Global Ltd. 2013 Equity Incentive Plan
(the "Plan") is to assist Guar Global Ltd., a Nevada corporation (the
"Company"), and its subsidiaries in attracting, retaining, and rewarding
high-quality executives, employees, and other persons who provide services to
the Company and/or its Affiliates and Subsidiaries, by enabling these persons to
acquire or increase a proprietary interest in the Company.
2. DEFINITIONS. For purposes of the Plan, the following terms shall be
defined as set forth below, in addition to such terms defined in SECTION 1
hereof:
(a) "Affiliate" means an entity which is not a Subsidiary, but in
which the Company has an equity interest, provided, however, that no entity
will be considered an Affiliate for purposes of an Award of Nonqualified
Stock Options or SARs to an employee or director of, or consultant to, the
entity unless the Stock would be considered "service recipient stock"
within the meaning of Code Section 409A, in the context of such an Award.
(b) "Award" means an award under the Plan of Options, SARs, Restricted
Stock, Restricted Stock Units, Performance Shares, Performance Units or
Other Stock-Based Awards granted under the Plan.
(c) "Beneficiary" means the person(s), trust(s) or estate who or which
by designation of the Participant in his or her most recent written
beneficiary designation filed with the Company or by operation of law
succeeds to the rights and obligations of the Participant under the Plan
and Award agreement upon such Participant's death.
(d) "Board" means the Board of Directors of the Company.
(e) "Cause" means, unless otherwise defined in an Award agreement or
in an Employment Agreement:
(1) the commission by the Participant of (A) a felony or (B) any
serious crime involving fraud, dishonesty or breach of trust;
(2) gross negligence or intentional misconduct by the Participant
with respect to the Company or any affiliate thereof or in the
performance of his duties to the Company or any affiliate thereof;
(3) failure to follow a reasonable, lawful and specific direction
of the President and CEO of the Company;
(4) failure by the Participant to cooperate in any corporate
investigation, or
(5) breach by the Participant of any material provision of an
employment agreement entered into between the Company or its
subsidiaries and the Participant, which breach is not corrected by the
Participant within ten (10) calendar days after receipt by the
Participant of written notice from the Company or Affiliate of such
breach.
For purposes of this definition, no act or failure to act by the
Participant shall be considered "intentional" unless done or omitted to be
done by the Participant in bad faith and without reasonable belief that the
Participant's action or omission was in the best interests of the Company
or Affiliate.
(f) "Change of Control" means the happening of any of the following
events:
(1) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a
"Person")) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of either (A) the
then outstanding shares of Stock (the "Outstanding Company Common
Stock") or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"),
provided, however, that the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from the
Company; (ii) any acquisition by the Company; (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained
by the Company or any company controlled by the Company; or (iv) any
acquisition by any corporation pursuant to a transaction described in
CLAUSES (A), (B) AND (C) OF PARAGRAPH (3) OF THIS SECTION 2(F); or
(2) Individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided, however, that
any individual becoming a director subsequent to such effective date
whose election, or nomination for election by the stockholders of the
Company, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
(3) Approval by the stockholders of the Company of a
reorganization, merger, share exchange or consolidation (a "Business
Combination"), unless, in each case following such Business
Combination: (A) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of, respectively, the
then-outstanding shares of common stock and the combined voting power
of the then-outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation that as a result of such transaction owns
the Company through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be; (B) no
Person (excluding any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then-outstanding voting securities of such
corporation Company except to the extent that such Person owned 25% or
more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities prior to the Business Combination; and (C) at least
a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
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(4) Approval by the stockholders of the Company of (A) a complete
liquidation or dissolution of the Company or (B) the sale or other
disposition of all or substantially all of the assets of the Company,
other than to a corporation with respect to which, following such sale
or other disposition: (i) more than 50% of, respectively, the
then-outstanding shares of common stock of such corporation and the
combined voting power of the then-outstanding voting securities of
such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all
or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other disposition,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be; (ii) less than 25% of, respectively,
the then outstanding shares of common stock of such Company and the
combined voting power of the then outstanding voting securities of
such Company entitled to vote generally in the election of directors
is then beneficially owned, directly or indirectly, by any Person
(excluding any employee benefit plan (or related trust) of the Company
or such Company), except to the extent that such Person owned 25% or
more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities prior to the sale or disposition; and (iii) at least
a majority of the members of the board of directors of such
corporation were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such sale or other disposition of assets of the Company
or were elected, appointed or nominated by the Board.
(g) "Change of Control Price" means the greater of (A) the highest
Fair Market Value of a share of Stock during the 60-day period ending on
the date of the Change of Control, and (B) the highest price per share of
Stock paid to holders of Stock in any transaction (or series of
transactions) constituting or resulting from the Change of Control,
provided, however, that, in the case of ISOs, unless the Committee
otherwise provides, such price will be based only on transactions occurring
on the date on which the ISOs are cashed out.
(h) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, including regulations thereunder and successor provisions and
regulations thereto.
(i) "Commission" means the Securities and Exchange Commission or any
successor agency.
(j) "Committee" means the Compensation Committee of the Board, if
formed, and in the absence of one, shall mean the Board or its delegate.
(k) "Common Stock" or "Stock" means the common stock of the Company,
and such other securities as may be substituted (or resubstituted) for
Common Stock pursuant to SECTION 13(D) hereof.
(l) "Company" means Guar Global Ltd. or any successor thereto.
(m) "Consultant" means any person who is engaged by the Company or any
Subsidiary to render consulting or advisory services to such entity, and
any natural person, including an advisor, who is engaged by the Company or
any Subsidiary, to render bona fide consulting or advisory services to such
entity and who is compensated for the services. (n) "Director" means a
member of the Board.
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(o) "Disability" or "Disabled" means the absence of the
Participant from the Participant's duties with the Company on a full time
basis for 180 consecutive days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and reasonably
acceptable to the Participant or the Participant's legal representative.
(p) "Effective Date" means November 26, 2013.
(q) "Eligible Employee" means such employees of the Company and
its Subsidiaries or Affiliates, including each Executive Officer and
employees who may also be directors of the Company, that are selected by
the Committee, in its sole discretion, from time to time to receive an
Award under the Plan. An employee on leave of absence may be considered
as still in the employ of the Company, Subsidiary or Affiliate for
purposes of eligibility for participation in the Plan.
(r) "Employment Agreement" means, with respect to any Participant,
any written agreement executed by the Participant and the Company,
Subsidiary or Affiliate setting forth the specific terms and conditions
of the Participant's employment with the Company, Subsidiary or
Affiliate.
(s) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor
provisions and rules thereto.
(t) "Executive Officer" means an executive officer of the Company
as defined under the Exchange Act.
(u) "Fair Market Value" means, on any date, the average of the
opening and closing sales prices of the Common Stock on the exchange on
which the Common Stock is traded on that date, or if no prices are
reported on that date, on the last preceding date on which such prices of
the Common Stock are so reported. In the event the Common Stock is not
publicly traded at the time a determination of its value is required to
be made hereunder, the determination of its fair market value shall be
made by the Committee in such manner as it deems appropriate, consistent
with Treasury regulations and other formal Internal Revenue Service
guidance under Code Section 409A so that Awards of Nonqualified Stock
Options or SARs granted under this Plan shall not constitute deferred
compensation subject to Code Section 409A.
(v) "Good Reason" means the Termination of Employment by the
Participant for any of the following reasons, the occurrence of which has
been properly noticed in writing and such "Good Reason" event has not
been cured within ten (10) business days after Participant's receipt of
such written notice:
(1) involuntary reduction in the Participant's Base Salary unless
such reduction occurs simultaneously with a reduction in officers'
salaries generally applicable on a company-wide basis;
(2) involuntary discontinuance or reduction in bonus award
opportunities for the Participant under the Company's incentive or
bonus plan unless a generally applicable company-wide reduction or
elimination of all officers' bonus awards occurs simultaneously with
such discontinuance or reduction;
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(3) involuntary discontinuance of the Participant's participation
in any employee benefit plans maintained by the Company, Subsidiary or
Affiliate unless such plans are discontinued by reason of law or loss
of tax deductibility to the Company, Subsidiary or Affiliate with
respect to contributions to such plans, or are discontinued as a
matter of Company policy applied equally to all participants in such
plans that are in the same classification of employees as the
Participant;
(4) failure to obtain an assumption of the Company's,
Subsidiary's or Affiliate's obligations under the Participant's
Employment Agreement by any successor to the Company, Subsidiary or
Affiliate (as applicable), regardless of whether such entity becomes a
successor as a result of a merger, consolidation, sale of assets, or
other form of reorganization, except when the rights and obligations
of the Company, Subsidiary or Affiliate under such Employment
Agreement are vested in the successor by operation of law;
(5) involuntary relocation of the Participant's primary office as
specified in the applicable Award agreement to a location more than
fifty (50) miles from the location of that office; and
(6) material reduction of the Participant's duties in effect on
the effective date of the Participant's most current Employment
Agreement, provided, however that a change in title or reporting line
will not constitute Good Reason unless such change is coupled with a
material reduction in the actual duties of the Participant.
(w) "Incentive Stock Option" or "ISO" means any Option intended to be
and designated as an incentive stock option within the meaning of Code
Section 422 or any successor provision thereto.
(x) "Management Objectives" means the measurable performance
objective(s) for the Company or any Subsidiary, Affiliate or any unit,
division, geographic region, or function thereof or any individual that may
be established by the Committee for a Performance Period with respect to
any performance-based Awards made under the Plan, including Options, SARs,
Restricted Stock, Restricted Stock Units, Performance Shares, Performance
Units and Other Stock-Based Awards. Management Objectives may be described
in terms of Company-wide objectives or objectives that are related to the
performance of the individual Participant or of the Affiliate, Subsidiary,
division, department, geographic region or function within the Company in
which the Participant is employed. The Management Objectives for Awards
that are intended to constitute "performance-based" compensation within the
meaning of Section 162(m) of the Code will be based on one or more of the
following criteria: earnings per share; total shareholder return; operating
income; net income; cash flow; free cash flow; return on equity; return on
capital; revenue growth; earnings before interest, taxes, depreciation and
amortization ("EBITDA"); stock price; debt-to-capital ratio; stockholders'
equity per share; operating income as a percent of revenue; gross profit as
a percent of revenue; selling, general and administrative expenses as a
percent of revenue; operating cash flow; pre-tax profit; orders; revenue;
customer value; or any of the foregoing criteria adjusted in a manner
prescribed within the time permitted under Section 162(m) of the Code by
the Committee (i) to exclude one or more specified components of the
calculation thereof or (ii) to include one or more other specified items,
including, but not limited to, exclusions under subsection (i) or
inclusions under subsection (ii) designed to reflect changes during the
Performance Period in generally accepted accounting principles or in tax
rates, currency fluctuations, the effects of acquisitions or dispositions
of a business or investments in whole or in part, extraordinary or
nonrecurring items, the gain or loss from claims or litigation and related
insurance recoveries, the effects of impairment of tangible or intangible
assets, or the effects of restructuring or reductions in force or other
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business recharacterization activities, income or expense related to
defined benefit or defined contribution pension plans, uninsured losses
from natural catastrophes or political and legal developments affecting the
Company's business (including losses as a result of war, terrorism,
confiscation, expropriation, seizure, new regulatory requirements, business
interruption or similar events).
(y) "Nonqualified Stock Option" means any Option that is not an
Incentive Stock Option.
(z) "Option" means a right, granted to a Participant under SECTION 7
hereof, to purchase Common Stock at a specified price during specified time
periods.
(aa) "Other Stock-Based Award" means an Award made pursuant to SECTION
12.
(bb) "Participant" means an Eligible Employee, Director or Consultant
who has been granted an Award under the Plan that remains outstanding,
including a person who is no longer an Eligible Employee, Director or
Consultant.
(cc) "Performance Period" means, in respect of a Performance Share or
Performance Unit, a period of time established by the Committee pursuant to
SECTION 11 of this Plan within which the Management Objectives relating to
such Performance Share or Performance Unit are to be achieved.
(dd) "Performance Share" means a bookkeeping entry that records the
equivalent of one share of Common Stock awarded pursuant to SECTION 11 of
this Plan.
(ee) "Performance Unit" means a bookkeeping entry that records a unit
awarded pursuant to SECTION 11 of this Plan that has a value specified in
the agreement evidencing the Award.
(ff) "Plan" means Guar Global Ltd. 2013 Equity Incentive Plan, as set
forth herein and as may be amended from time to time.
(gg) "Restricted Stock" means Common Stock awarded to a Participant in
accordance with the provisions of SECTION 9 of the Plan.
(hh) "Restricted Stock Units" or "RSUs" means an Award made pursuant
to SECTION 10 of this Plan of the right to receive shares of Common Stock
at the end of a specified Restriction Period.
(ii) "Spread Value" means, with respect to a share of Stock subject to
an Award, an amount equal to the excess of the Fair Market Value, on the
date such value is determined, over the Award's exercise or grant price, if
any.
(jj) "Stock Appreciation Right" or "SAR" means a right granted
pursuant to SECTION 8.
(kk) "Subsidiary" shall have the meaning set forth in Code Section
424(f).
(ll) "Termination of Employment" means the voluntary or involuntary
termination of a Participant's employment with the Company or a Subsidiary
or Affiliate or any reason, including death, Disability, or retirement.
With respect to an Eligible Employee who is such solely by virtue of his
service on the Board, "Termination of Employment" means the Eligible
Employee's cessation of service on the Board. The Committee, in it sole
discretion, shall determine whether a Termination of Employment is a result
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of Disability, and shall determine whether military or other government or
eleemosynary service constitutes a Termination of Employment. To the extent
necessary, "Termination of Employment" will be limited to those
circumstances that constitute a "separation from service" within the
meaning of Section 409A of the Code.
(mm) "Valuation Date" means each day on which the exchange on which
the Common stock is actively traded is open for business.
3. ADMINISTRATION.
(a) AUTHORITY OF THE COMMITTEE. The Plan shall be administered by the
Committee. The Committee shall have full and final authority, in each case
subject to and consistent with the provisions of the Plan, to: interpret the
provisions of the Plan; select Eligible Employees, Directors and Consultants to
become Participants; make Awards; determine the type, number and other terms and
conditions of, and all other matters relating to, Awards; prescribe Award
agreements (which need not be identical for each Participant); adopt, amend and
rescind rules and regulations for the administration of the Plan; construe and
interpret the Plan and Award agreements and correct defects, supply omissions or
reconcile inconsistencies therein; and make all other decisions and
determinations as the Committee may deem necessary or advisable for the
administration of the Plan. Except as otherwise determined by the Board, unless
the context otherwise requires, all actions and determinations that the Plan
contemplates that the Board may take may be taken by the Committee in its stead.
(b) MANNER OF EXERCISE OF COMMITTEE AUTHORITY. Any action of the Committee
shall be final, conclusive and binding on all persons, including the Company,
Affiliates, Subsidiaries, Participants, Beneficiaries, transferees under SECTION
13(C) hereof or other persons claiming rights from or through a Participant, and
shareholders. The Committee shall exercise its authority only by a majority vote
of its members at a meeting or without a meeting by a writing signed by a
majority of its members. The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not be construed
as limiting any power or authority of the Committee. The Committee may delegate
to officers or managers of the Company, Affiliates or Subsidiaries, or
committees thereof, the authority, subject to such terms as the Committee shall
determine, to perform administrative functions to the extent permitted under
applicable law. The Committee may appoint agents to assist it in administering
the Plan.
(c) LIMITATION OF LIABILITY. The Committee and each member thereof shall be
entitled, in good faith, to rely or act upon any report or other information
furnished to it, him or her by any Executive Officer, other officer or employee
of the Company or a subsidiary, the Company's independent auditors, consultants
or any other agents assisting in the administration of the Plan. Members of the
Committee and any officer or employee of the Company or a subsidiary acting at
the direction or on behalf of the Committee shall not be personally liable for
any action or determination taken or made in good faith with respect to the
Plan, and shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action or determination.
4. STOCK SUBJECT TO PLAN.
(a) OVERALL NUMBER OF SHARES AVAILABLE FOR DELIVERY. Subject to adjustment
as provided in SECTION 13(D) hereof, the total number of shares of Common Stock
reserved and available for delivery in connection with Awards under the Plan
shall be 11,800,000, provided, however, that the total number of shares of
Common Stock with respect to which ISOs may be granted shall not exceed
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11,800,000. Any shares of Common Stock delivered under the Plan shall consist of
authorized and issued or unissued shares. Subject to the adjustments provided in
SECTION 13(D) hereof, no contraction of the number of shares of Common Stock
outstanding will affect the validity or enforceability of any Awards then
outstanding.
(b) APPLICATION OF LIMITATION TO GRANTS OF AWARDS. No Award may be granted
if the number of shares of Common Stock to be delivered in connection with such
Award exceeds the number of shares of Common Stock remaining available under the
Plan minus the number of shares of Common Stock issuable in settlement of or
relating to then-outstanding Options. The Committee may adopt reasonable
counting procedures to ensure appropriate counting, avoid double counting and
make adjustments if the number of shares of Common Stock actually delivered
differs from the number of shares previously counted in connection with an
Award.
(c) AVAILABILITY OF SHARES NOT DELIVERED UNDER AWARDS. Shares of Common
Stock subject to an Award under the Plan which Award is canceled, expired,
forfeited or otherwise terminated without a delivery of shares to the
Participant or with the return to the Company of shares previously delivered,
including the number of shares surrendered in payment of any taxes relating to
any Award, hereof will again be available for Awards under the Plan, except that
if any such shares could not again be available for Awards to a particular
Participant under any applicable law or regulation, such shares shall be
available exclusively for Awards to Participants who are not subject to such
limitation. Notwithstanding the foregoing, (i) shares of Stock tendered in
payment of the exercise price of an Option, (ii) shares of Stock withheld by the
Company to satisfy any tax withholding obligation with respect to an Award, and
(iii) shares of Stock that are repurchased by the Company on the open market
with the proceeds of the exercise of an Option, may not again be available for
issuance in connection with Awards under the Plan. Also notwithstanding the
foregoing, if the Spread Value of a SAR is paid in shares of Stock, the shares
representing the excess, if any, of (a) the number of shares of Stock subject to
the SAR over (b) the number of shares of Stock delivered in payment of the
Spread Value may not again be available for issuance in connection with Awards
under the Plan.
5. ELIGIBILITY. Awards may be granted under the Plan to Eligible Employees,
Directors and Consultants.
6. AWARDS - GENERAL TERMS AND LIMITATIONS.
(a) AWARDS GRANTED AT FAIR MARKET VALUE. The exercise price of an Option
and the grant price of a SAR may not be less than 100% of the Fair Market Value
on the date of grant. In addition, to the extent that the value of an Other
Stock-Based Award is based on Spread Value, the grant price for the Other
Stock-Based Award may not be less than 100% of the Fair Market Value on the date
of grant. Notwithstanding the foregoing, in connection with any reorganization,
merger, consolidation or similar transaction in which the Company or any
Subsidiary or Affiliate of the Company is a surviving corporation, the Committee
may grant Options, SARs or Other Stock-Based Awards in substitution for similar
awards granted under a plan of another party to the transaction, and in such
case the exercise price or grant price of the substituted Options, SARs or Other
Stock-Based Awards granted by the Company may equal or exceed 100% of the Fair
Market Value on the date of grant reduced by any unrealized gain existing as of
the date of the transaction in the option, stock appreciation right or other
award being replaced, with the adjusted exercise price determined in accordance
with the requirements of Section 409A of the Code (in the case of a Nonqualified
Stock Option) or Section 425 of the Code (in the case of an Incentive Stock
Option).
(b) ANNUAL AWARD LIMITATION. The total number of Restricted Stock, RSUs and
other shares of Stock subject to or underlying Options, SARs, Performance
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Shares, Performance Units and Other Stock-Based Awards awarded to any
Participant during any year may not exceed 3,000,000 shares. A Performance Share
or Performance Unit paid to a Participant with respect to any Performance Period
may not exceed $500,000 times the number of years in the Performance Period.
(c) PERFORMANCE-BASED AWARDS. In the discretion of the Committee, any Award
granted pursuant to the Plan may be designated as a performance-based award
intended to qualify, through the application of Management Objectives over a
specified Performance Period, as "performance-based compensation" within the
meaning, and in accordance with the provisions, of Code Section 162(m).
7. TERMS OF OPTIONS.
(a) GENERAL. Options may be granted on the terms and conditions set forth
in this SECTION 7. In addition, the Committee may impose on any Option or the
exercise thereof, at the date of grant, such additional terms and conditions,
not inconsistent with the provisions of the Plan, as the Committee shall
determine, including terms requiring forfeiture of Options in the event of the
Participant's Termination of Employment and terms permitting a Participant to
make elections relating to his or her Option. Options granted under the Plan
will be in the form of Incentive Stock Options or Nonqualified Stock Options.
The Committee shall (subject to SECTION 13(I)) retain full power and discretion
to accelerate, waive or modify, at any time, any term or condition of an Option
that is not mandatory under the Plan.
(b) SPECIFIC TERMS OF OPTIONS. The Committee is authorized to grant Options
to Participants on the following terms and conditions:
(1) EXERCISE PRICE. The exercise price per share of Common Stock
purchasable under an Option shall be determined by the Committee, provided
that such exercise price shall be not less than the Fair Market Value of a
share of Common Stock on the date of grant of such Option.
(2) VESTING. Each Participant shall acquire a nonforfeitable right to
Options awarded to him in accordance with the provisions of the agreement
evidencing the Award of the Options.
(3) TIME AND METHOD OF EXERCISE. The Committee shall determine, at the
date of grant or thereafter, the time(s) at which or the circumstances
under which an Option may be exercised in whole or in part (including based
on completion of future service requirements), the methods by which such
exercise price may be paid or deemed to be paid, the form of such payment,
including, without limitation, cash or Common Stock held for more than six
months, and the methods by or forms in which Common Stock will be delivered
or deemed to be delivered to Participants. The specific circumstances under
which a Participant may exercise an Option will be set forth in the
agreement evidencing the Award of the Option to the Participant.
(4) ISOS. Except as otherwise expressly provided in the Plan, the
Committee may designate, at the time of grant, that the Option is an ISO
under Section 422 of the Code. ISOs may be granted only to those Eligible
Employees who are entitled to acquire incentive stock options from the
Company under Code Section 422. The terms of any ISO granted under the Plan
shall comply in all respects with the provisions of Code Section 422.
Anything in the Plan to the contrary notwithstanding, no term of the Plan
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relating to ISOs shall be interpreted, amended or altered, nor shall any
discretion or authority granted under the Plan be exercised, so as to
disqualify either the Plan or any ISO under Code Section 422, unless the
Participant has first requested the change that will result in such
disqualification. If any provision of the Plan or any Option designated by
the Committee as an ISO shall be held not to comply with requirements
necessary to entitle such Option to such tax treatment, then (1) such
provision shall be deemed to have contained from the outset such language
as shall be necessary to entitle the Option to the tax treatment afforded
under Section 422 of the Code, and (2) all other provisions of the Plan and
the Award agreement shall remain in full force and effect. An Option
granted under the Plan will be an ISO only if the agreement evidencing the
award of the Option specifically states that the Option is to be an ISO; if
the Agreement does not so state, the Option will be a Nonqualified Stock
Option. In addition, an Option may be an ISO only if it is awarded within
ten years after the Effective Date.
(5) TERM OF OPTIONS. Options will terminate after the first to occur
of the following:
(i) Expiration of the Option as provided in the applicable Award
agreement as determined by the Committee;
(ii) Termination of the Option Award, as provided for in SECTION
7(B)(7), following the Participant's Termination of Employment; or
(iii) Ten years from the date of grant.
(6) ACCELERATION/EXTENSION OF EXERCISE TIME. The Committee, in its
sole discretion, shall have the right (but shall not in any case be
obligated) to permit purchase of shares under any Option prior to the time
such Option would otherwise vest under the terms of the applicable Award
agreement. In addition, the Committee, in its sole discretion, shall have
the right (but shall not in any case be obligated) to permit any Option
granted under the Plan to be exercised after its termination date described
in SECTION 7(B)(7), but in no event later than the last day of the term of
the Option as set forth in the applicable Award agreement. Notwithstanding
the foregoing, the Committee will not extend the exercise period of any
Option to the extent that the extension would cause the Option to be
considered nonqualified deferred compensation subject to the provisions of
Section 409A.
(7) EXERCISE OF OPTIONS UPON TERMINATION OF EMPLOYMENT, DEATH OR
DISABILITY. Except as otherwise provided in this SECTION 7(B)(7) or in
SECTION 7(B)(6), or as otherwise expressly provided in a Participant's
Award agreement as authorized by the Committee, the right of the
Participant to exercise Options shall terminate upon the Participant's
Termination of Employment, regardless of whether or not the Options were
vested in whole or in part on the date of Termination of Employment.
(i) TERMINATION OF EMPLOYMENT. Any Option or portion thereof that
is not exercisable on the date of a Participant's Termination of
Employment shall immediately expire, and any Option or portion thereof
which is exercisable on the date of such Termination of Employment may
be exercised during a three-month period after such date (after which
period the Option shall expire), but in no event may the Option be
exercised after its expiration under the terms of the Award agreement.
Notwithstanding the foregoing, if the Participant's Termination of
Employment is by the Company or an Affiliate for Cause or by the
Participant other than for Good Reason, then any Option or unexercised
portion thereof granted to said Participant shall immediately expire
upon such Termination of Employment.
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(ii) DISABILITY OR DEATH OF PARTICIPANT. In the event of the
Disability or death of a Participant under the Plan while the
Participant is employed by the Company or an Affiliate, any Option or
portion thereof which is not exercisable on the date of such
Disability or death shall immediately expire, and any Option or
portion thereof which is exercisable on the date of such Disability or
death may be exercised at any time from time to time, within a
one-year period after the date of such Disability or death, by the
Participant, the guardian of his estate, the executor or administrator
of his estate or by the person or persons to whom his rights under the
Option shall pass by will or the laws of descent and distribution
(after which period the Option will expire), but in no event may the
Option be exercised after its expiration under the terms of the Award
agreement, and provided that an exercise of an Incentive Stock Option
later than three months after the date of the Participant's death
shall be treated as the exercise of a Nonqualified Stock Option..
8. TERMS OF STOCK APPRECIATION RIGHTS.
(a) GENERAL. A SAR represents the right to receive a payment, in cash,
shares of Stock or both (as determined by the Committee), equal to the Spread
Value on the date the SAR is exercised. The grant price of a SAR and all other
applicable terms and conditions will be established by the Committee in its sole
discretion and will be set forth in the applicable Award agreement. Subject to
the terms of the applicable Award agreement, a SAR will be exercisable, in whole
or in part, by giving written notice of exercise to the Company, but in no event
will a SAR be exercisable later than the tenth anniversary of the date on which
it was granted.
(b) SPECIFIC TERMS OF SARS. The Committee is authorized to grant SARs to
Participants on the following terms and conditions:
(1) TERM OF SARS. SARs will terminate after the first to occur of the
following:
(i) Expiration of the SAR as provided in the applicable Award
agreement as determined by the Committee;
(ii) Termination of the SAR Award, as provided for in SECTION
8(B)(2), following the Participant's Termination of Employment; or
(iii) Ten years from the date of grant.
(2) EXERCISE OF STOCK APPRECIATION RIGHTS UPON TERMINATION OF
EMPLOYMENT, DEATH OR DISABILITY. Except as otherwise provided in this
SECTION 8(B)(2), or as otherwise expressly provided in a Participant's
Award agreement as authorized by the Committee, the right of the
Participant to exercise the SAR shall terminate upon the Participant's
Termination of Employment, regardless of whether or not the SAR was vested
in whole or in part on the date of Termination of Employment.
(i) TERMINATION OF EMPLOYMENT. Any SAR or portion thereof that is
not exercisable on the date of a Participant's Termination of
Employment shall immediately expire, and any SAR or portion thereof
which is exercisable on the date of such Termination of Employment may
be exercised during a three-month period after such date (after which
period the SAR shall expire), but in no event may the SAR be exercised
11
after its expiration under the terms of the Award agreement.
Notwithstanding the foregoing, if the Participant's Termination of
Employment is by the Company or an Affiliate for Cause or by the
Participant other than for Good Reason, then any SAR or unexercised
portion thereof granted to said Participant shall immediately expire
upon such Termination of Employment.
(ii) DISABILITY OR DEATH OF PARTICIPANT. In the event of the
Disability or death of a Participant under the Plan while the
Participant is employed by the Company or an Affiliate, any SAR or
portion thereof which is not exercisable on the date of such
Disability or death shall immediately expire, and any SAR or portion
thereof that is exercisable on the date of such Disability or death
may be exercised at any time from time to time, within a one-year
period after the date of such Disability or death, by the Participant,
the guardian of his estate, the executor or administrator of his
estate or by the person or persons to whom his rights under the SAR
shall pass by will or the laws of descent and distribution (after
which period the SAR will expire), but in no event may the SAR be
exercised after is expiration under the terms of the Award agreement.
9. TERMS OF RESTRICTED STOCK AWARDS.
(a) GENERAL. Shares of Restricted Stock may be granted on the terms and
conditions set forth in this SECTION 9. In addition, the Committee may impose on
any Award of Restricted Stock, at the date of grant, such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine, including terms requiring forfeiture of shares of Restricted
Stock in the event of the Participant's Termination of Employment and terms
permitting a Participant to make elections relating to his or her shares of
Restricted Stock. The Committee shall (subject to SECTION 13(I)) retain full
power and discretion to accelerate, waive or modify, at any time, any term or
condition of an Award of shares of Restricted Stock that is not mandatory under
the Plan. Except in cases in which the Committee is authorized to require other
forms of consideration under the Plan, or to the extent other forms of
consideration must be paid to satisfy the requirements of Nevada law, no
consideration other than services may be required for the grant of any shares of
Restricted Stock.
(b) VESTING. Each Participant shall acquire a nonforfeitable right to
shares of Restricted Stock awarded to him in accordance with the provisions of
the agreement evidencing the Award of the Restricted Stock.
(c) OWNERSHIP RIGHTS. Subject to the terms of the Plan, to divestment based
on the forfeiture restrictions applying to an Award of Restricted Stock and to
the other terms of the Award agreement, (i) Restricted Stock granted pursuant to
an Award shall for all purposes be issued and outstanding shares of Common
Stock, and (ii) the Participant shall be the record owner of the Restricted
Stock granted by the Award, shall have the right to vote the Restricted Stock as
Common Stock on any matter upon which holders of Common Stock are entitled to
vote, and shall be entitled to dividends and distributions on the Restricted
Stock which are payable with respect to outstanding shares of Common Stock.
10. TERMS OF RESTRICTED STOCK UNITS.
(a) AGREEMENT TO GRANT STOCK. Each such grant or sale shall constitute the
agreement by the Company to deliver shares of Common Stock to the Participant in
the future in consideration of the performance of services, but subject to the
fulfillment of such conditions during the Restriction Period as the Board may
specify.
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(b) EXERCISE PRICE. Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is less
than the Fair Market Value at the date of grant.
(c) RESTRICTIONS. Each such grant or sale shall be subject to such
forfeiture and other restrictions as may be determined by the Board at the date
of grant, and may provide for the lapse or other modification of such
restrictions in the event of a Change of Control.
(d) VOTING AND DIVIDEND RIGHTS. While and to the extent that forfeiture
restrictions apply to an Award, the Participant shall have no right to transfer
any rights under his or her Award and shall have no rights of ownership in the
Restricted Stock Units and shall have no right to vote them, but the Board may,
at or after the date of grant, authorize the payment of dividend equivalents on
the shares underlying such units on either a current or deferred or contingent
basis, either in cash, in additional shares of Common Stock, or in other rights
or property.
11. PERFORMANCE SHARES AND PERFORMANCE UNITS.
(a) AGREEMENT TO GRANT UNITS. Each grant shall specify the number of
Performance Shares or Performance Units to which it pertains, which number may
be subject to adjustment to reflect changes in compensation or other factors.
(b) PERFORMANCE PERIODS. The Performance Period with respect to each
Performance Share or Performance Unit shall be such period of time commencing
with the date of grant as shall be determined by the Board on the date of grant.
(c) SPECIFICATION OF PERFORMANCE GOALS. Any grant of Performance Shares or
Performance Units shall specify Management Objectives which, if achieved, will
result in payment or early payment of the Award, and each grant may specify in
respect of such specified Management Objectives a minimum acceptable level of
achievement and shall set forth a formula for determining the number of
Performance Shares or Performance Units that will be earned if performance is at
or above the minimum level, but falls short of full achievement of the specified
Management Objectives. The grant of Performance Shares or Performance Units
shall specify that, before the Performance Shares or Performance Units shall be
earned and paid, the Board must certify that the Management Objectives have been
satisfied.
(d) TIME AND FORM OF PAYMENT. Each grant shall specify the time and manner
of payment of Performance Shares or Performance Units that have been earned. Any
grant may specify that the amount payable with respect thereto may be paid by
the Company in cash, in shares of Common Stock or in any combination thereof and
may either grant to the Participant or retain in the Board the right to elect
among those alternatives.
(e) LIMITATIONS ON AWARDS. Any grant of Performance Shares may specify that
the amount payable with respect thereto may not exceed a maximum specified by
the Board at the Date of Grant. Any grant of Performance Units may specify that
the amount payable or the number of shares of Common Stock issued with respect
thereto may not exceed maximums specified by the Board at the date of grant.
(f) DIVIDEND EQUIVALENTS. The Board may, at or after the date of grant of
Performance Shares, provide for the payment of dividend equivalents to the
holder thereof on either a current or deferred or contingent basis, either in
cash, in additional shares of Common Stock or in other rights or property.
13
12. OTHER STOCK-BASED AWARDS.
(a) OTHER STOCK-BASED AWARDS. The Committee may grant Awards, other than
Options, SARs, Restricted Stock, RSUs, Performance Shares or Performance Units,
that are denominated in, valued in whole or in part by reference to, or
otherwise based on or related to Stock. The purchase, exercise, exchange or
conversion of Other Stock-Based Awards granted under this SECTION 12 and all
other terms and conditions applicable to the awards will be determined by the
Committee in its sole discretion and will be set forth in the applicable Award
agreement.
13. GENERAL PROVISIONS.
(a) CHANGE OF CONTROL. Notwithstanding any provision of the Plan to the
contrary and unless otherwise provided in the applicable Award agreement, in the
event of any Change of Control:
(1) Any Option carrying a right to exercise that was not previously
exercisable and vested shall become fully exercisable and vested as of the
time of the Change of Control and shall remain exercisable and vested for
the balance of the stated term of such Option without regard to any
Termination of Employment, subject only to (A) applicable restrictions set
forth in SECTION 13(B) AND (C) hereof and (B) the Board's right to cancel
all Options and, if an Option in the Board's judgment has value based on
its exercise price, provide for a payment of the aggregate spread in the
cancelled Options. In addition, a Participant who is an Executive Officer
of the Company and whose employment is involuntarily terminated by the
Company within 60 days after a Change of Control will be permitted to
surrender for cancellation within 60 days after the Change of Control any
Option or portion of an Option to the extent not exercised and to receive a
payment of shares of Stock having an aggregate Fair Market Value on the
date the Participant surrenders the Option equal to the excess, if any, of
(A) the Change of Control Price, over (B) the exercise price of the Option.
The provisions of this SECTION 13(A)(1) will not be applicable to any
Options granted to a Participant if the Change of Control results from the
Participant's beneficial ownership (within the meaning of Rule 13d(3) under
the Exchange Act) of Stock or Voting Securities;
(2) Any SARs outstanding as of the date the Change of Control occurs
will become fully vested and will be exercisable in accordance with
procedures established by the Committee. The provisions of this SECTION
13(A)(2) will not be applicable to any SARs granted to a Participant if the
Change of Control results from the Participant's beneficial ownership
(within the meaning of Rule 13d(3) under the Exchange Act) of Stock or
Voting Securities;
(3) Any restrictions and other conditions applicable to any Restricted
Stock or Restricted Stock Units held by the Participant will lapse and such
Restricted Stock or Restricted Stock Units will become fully vested as of
the date of the Change of Control;
(4) Any Performance Shares or Performance Units held by the
Participant relating to Performance Periods before the Performance Period
in which the Change of Control occurs that have been earned but not paid
will become immediately payable in cash. In addition, any Performance
Shares or Performance Units awarded to a Participant for a Performance
Period that has not been completed at the time of the Change of Control
will be deemed satisfied at the target level for the Performance Period,
and payment with respect to the Performance Shares or Performance Units
14
will be made in cash upon the Change of Control. Notwithstanding the
foregoing, if the Committee in its sole discretion determines that any
Performance Shares or Performance Units awarded would be considered
nonqualified deferred compensation within the meaning of Section 409A of
the Code, and if the Change of Control would not be considered a "change in
control" for purposes of Section 409A of the Code, then a Participant's
entitlement to payment with respect to the Performance Shares or
Performance Units will be determined as described above in SECTION
13(A)(4), but payment with respect to such Performance Shares or
Performance Units will be made on the date originally scheduled for payment
or, if earlier, upon the Participant's Termination of Employment; and
(5) Any Other Stock-Based Awards that vest solely on the basis of the
passage of time will be treated in connection with a Change of Control in
the same manner as are Awards of Restricted Shares and RSUs, as described
in SECTION 13(A)(3) above. Other Stock-Based Awards that vest on the basis
of satisfaction of performance criteria will be treated in connection with
a Change of Control in the same manner as are Performance Shares and
Performance Units, as described in SECTION 13(A)(4) above, except that
payment will be made only in shares of Stock. Notwithstanding the
foregoing, if the committee in its sole discretion determines that any
Other Stock-Based Award would be considered nonqualified deferred
compensation within the meaning of Section 409A of the Code, and if the
Change of Control would not be considered a "change in control" for
purposes of Section 409A of the Code, then a Participant's entitlement to
payment with respect to the Other Stock-Based Award will be determined as
described above in this SECTION 13(A)(5), but payment with respect to such
Other Stock-Based Award will be made on the date originally scheduled for
payment, or, if earlier, upon the Participant's Termination of Employment.
(b) COMPLIANCE WITH LEGAL AND OTHER REQUIREMENTS. The Company may, to the
extent deemed necessary or advisable by the Committee, postpone the issuance or
delivery of Common Stock or payment of other benefits under any Award until
completion of such registration or qualification of such Common Stock or other
required action under any federal or state law, rule or regulation, listing or
other required action with respect to any stock exchange or automated quotation
system upon which the Common Stock or other securities of the Company may in the
future be listed or quoted, or compliance with any other obligation of the
Company, as the Committee may consider appropriate, and may require any
Participant to make such representations, furnish such information and comply
with or be subject to such other conditions as it may consider appropriate in
connection with the issuance or delivery of Common Stock or payment of other
benefits in compliance with applicable laws, rules, and regulations, listing
requirements, or other obligations.
(c) LIMITS ON TRANSFERABILITY; BENEFICIARIES. No Award or other right or
interest of a Participant under the Plan shall be pledged, hypothecated or
otherwise encumbered or subject to any lien, obligation or liability of such
Participant to any party (other than the Company or a subsidiary), or assigned
or transferred by such Participant otherwise than by will or the laws of descent
and distribution or to a Beneficiary upon the death of a Participant, and
Options, SARs or Other Stock-Based Awards that may be exercisable shall be
exercised during the lifetime of the Participant only by the Participant or his
or her guardian or legal representative, except that Options (other than ISOs),
SARs and Other Stock-Based Awards may be transferred to one or more
Beneficiaries or other transferees during the lifetime of the Participant, and
may be exercised by such transferees in accordance with the terms of such
Option, SAR, or Other Stock Based Award but only if and to the extent such
transfers are permitted by the Committee pursuant to the express terms of an
Option, SAR or Other Stock-Based Award agreement (subject to any terms and
15
conditions which the Committee may impose thereon). A Beneficiary, transferee,
or other person claiming any rights under the Plan from or through any
Participant shall be subject to all terms and conditions of the Plan and any
Award agreement applicable to such Participant, except as otherwise determined
by the Committee, and to any additional terms and conditions deemed necessary or
appropriate by the Committee.
(d) ADJUSTMENTS. In the event that any dividend or other distribution
(whether in the form of cash, Common Stock, or other property), capital
contribution, recapitalization, forward or reverse split, reorganization,
merger, acquisition, consolidation, spin-off, combination, repurchase, share
exchange, liquidation, dissolution or other corporate transaction or event
affects the Common Stock such that an adjustment is determined by the Committee
to be appropriate under the Plan, then the Committee shall, in such manner as it
may deem equitable, adjust any or all of (1) the number and kind of shares of
Common Stock which may be delivered in connection with Awards granted
thereafter, (2) the number and kind of shares of Common Stock subject to or
deliverable in respect of Awards and (3) the exercise price, grant price or
purchase price relating to any Award and/or make provision for payment of cash
or other property in respect of any outstanding Award. In addition, the
Committee is authorized to make such adjustments in the terms and conditions of,
and the criteria included in, Awards as the Committee deems equitable in
recognition of unusual or nonrecurring events (including, without limitation,
events described in the preceding sentence, as well as acquisitions and
dispositions of businesses and assets) affecting the Company, Subsidiary or any
business unit, or the financial statements of the Company or Subsidiary, or in
response to changes in applicable laws, regulations, accounting principles, tax
rates and regulations or business conditions or in view of the Committee's
assessment of the business strategy of the Company, Subsidiary or business unit
thereof, performance of comparable organizations, economic and business
conditions, personal performance of a Participant, and any other circumstances
deemed relevant.
(e) PAYMENTS AND PAYMENT DEFERRALS. Payment of Awards may be in the form of
cash, Stock, other Awards or combinations thereof as the Committee may
determine, and with such restrictions as it may impose. The Committee, either at
the time of grant or by subsequent amendment, may require or permit deferral of
the payment of Awards under such rules and procedures as it may establish. It
also may provide that deferred settlements include the payment or crediting of
interest or other earnings on the deferred amounts, or the payment or crediting
of dividend equivalents where the deferred amounts are denominated in Stock
equivalents. Notwithstanding the foregoing, no action will be taken or
authorized pursuant to this SECTION 13(E) to the extent that it would violate
the requirements of Section 409A of the Code or cause any Award of Options or
SARs to be considered to provide for the deferral of compensation within the
meaning of Section 409A of the Code.
The Committee may require that each person acquiring shares of Stock
pursuant to an Award to represent to and agree with the Company in writing that
such person is acquiring the shares without a view to the distribution thereof.
The certificates for such shares may include any legend that the committee deems
appropriate to reflect any restrictions on transfer. All certificates for shares
of Stock or other securities delivered under the Plan will be subject to such
stock transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the Commission, any stock
exchange upon which the Stock is then listed and any applicable Federal, state
or foreign securities law, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such restrictions.
(f) AWARD AGREEMENTS. Each Award under the Plan will be evidenced by a
written agreement (which need not be signed by the recipient unless otherwise
specified by the Committee or otherwise provided under the Plan) that sets forth
16
the terms, conditions and limitations for each Award. Such terms may include,
but are not limited to, the term of the Award, vesting and forfeiture
provisions, and the provisions applicable in the event of the recipient's
Termination of Employment. The Committee may amend an Award agreement, provided
that no such amendment may materially and adversely affect an outstanding Award
without the Award recipient's consent.
(g) FOREIGN EMPLOYEES. In order to facilitate the making of any grant or
combination of grants under this Plan, the Board may provide for such special
terms for Awards to Participants who are foreign nationals or who are employed
by the Company or any Subsidiary outside of the United States of America as the
Board may consider necessary or appropriate to accommodate differences in local
law, tax policy or custom. Moreover, the Board may approve such supplements to
or amendments, restatements or alternative versions of this Plan as it may
consider necessary or appropriate for such purposes, without thereby affecting
the terms of this Plan as in effect for any other purpose, and the secretary or
other appropriate officer of the Company may certify any such document as having
been approved and adopted in the same manner as this Plan. No such special
terms, supplements, amendments or restatements, however, shall include any
provisions that are inconsistent with the terms of this Plan as then in effect
unless this Plan could have been amended to eliminate such inconsistency without
further approval by the stockholders of the Company.
(h) TAXES. The Company and any Affiliate or Subsidiary is authorized to
withhold from any payment to a Participant amounts of withholding and other
taxes due or potentially payable in connection with any transaction involving an
Award, and to take such other action as the Committee may deem advisable to
enable the Company and Participants to satisfy obligations for the payment of
withholding taxes and other tax obligations relating to any Award. This
authority shall include authority to withhold or receive Common Stock or other
property and to make cash payments in respect thereof in satisfaction of a
Participant's tax obligations (not to exceed the minimum statutorily required
tax withholding), either on a mandatory or elective basis in the discretion of
the Committee.
(i) CHANGES TO THE PLAN AND AWARDS. The Board, or the Committee acting
pursuant to such authority as may be delegated to it by the Board, may amend,
alter, suspend, discontinue or terminate the Plan or the Committee's authority
to grant Awards under the Plan, provided that, without the consent of an
affected Participant, except as otherwise contemplated by the Plan or the terms
of an Award agreement, no such Board action may materially and adversely affect
the rights of a Participant under any previously granted and outstanding Award.
Except as otherwise provided in the Plan, the Committee may waive any conditions
or rights under, or amend, alter, suspend, discontinue or terminate any Award
theretofore granted and any Award agreement relating thereto, provided that,
without the consent of an affected Participant, except as otherwise contemplated
by the Plan or the terms of an Award agreement, no Committee action may
materially and adversely affect the rights of such Participant under such Award.
(j) LIMITATION ON RIGHTS CONFERRED UNDER PLAN. Neither the Plan nor any
action taken hereunder shall be construed as (i) giving any Eligible Employee or
Participant the right to continue as an Eligible Employee or Participant or in
the employ or service of the Company or a subsidiary, (ii) interfering in any
way with the right of the Company or a Subsidiary to terminate any Eligible
Employee's or Participant's employment or service at any time, (iii) giving an
Eligible Employee or Participant any claim to be granted any Award under the
Plan or to be treated uniformly with other Participants and employees, or (iv)
conferring on a Participant any of the rights of a shareholder of the Company
unless and until the Participant is duly issued or transferred shares of Common
Stock in accordance with the terms of an Option or an Award of Restricted Stock.
To the extent that an employee of a Subsidiary or Affiliate receives an Award
under the Plan, that Award can in no event be understood or interpreted to mean
17
that the Company is the employee's employer or that the employee has an
employment relationship with the Company.
(k) PROVISIONS HELD INVALID OR UNENFORCEABLE. If any provision of the Plan
is held invalid or unenforceable, the invalidity or unenforceability will not
affect the remaining parts of the Plan, and the Plan will be enforced and
construed as if such provision had not been included.
(l) NONEXCLUSIVITY OF THE PLAN. The adoption of the Plan by the Board shall
not be construed as creating any limitations on the power of the Board or a
committee thereof to adopt such other compensation and incentive arrangements
for employees, agents and brokers of the Company and its subsidiaries as it may
deem desirable.
(m) PAYMENTS IN THE EVENT OF FORFEITURES; FRACTIONAL SHARES. Unless
otherwise determined by the Committee, in the event of a forfeiture of a share
of Common Stock, Option or SAR with respect to which a Participant paid cash or
other consideration, the Participant shall be repaid the amount of such cash or
other consideration.
(n) GOVERNING LAW. The validity, construction and effect of the Plan, any
rules and regulations under the Plan, and any Award agreement shall be
determined in accordance with Nevada law, without giving effect to principles of
conflicts of laws, and applicable federal law.
(o) PLAN EFFECTIVE DATE. The Plan has been adopted by the Board and the
shareholders of the Company as of the Effective Date.
(p) LAST GRANT DATE. No Award may be granted under the Plan after November
26, 2023.
(q) UNFUNDED STATUS OF PLAN. It is presently intended that the Plan
constitute an "unfunded" plan for incentive and deferred compensation. The
Committee may authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver Stock or make payments; however,
unless the Committee otherwise determines, the structure of such trusts or other
arrangements must be consistent with the "unfunded" status of the Plan.
1