We are pleased to invite
you to attend the 2016 Annual Meeting of Stockholders (the “Annual Meeting”) of Akoustis Technologies, Inc. (the “Company”).
The Annual Meeting will be held at the offices of Womble Carlyle Sandridge & Rice LLP, One Wells Fargo Center, Suite 3500,
301 South College Street, Charlotte, North Carolina 28202 on Thursday, December 15, 2016 at 10:00 a.m., local time.
Details of the business
to be conducted at the Annual Meeting are provided in the enclosed Notice of Annual Meeting of Stockholders and Proxy Statement,
each of which we urge you to read carefully. In addition, enclosed are a proxy card and a copy of our Annual Report to Stockholders
for the year ended June 30, 2016.
We sincerely hope that
you can attend the Annual Meeting. Even if you plan to attend the Annual Meeting, we encourage you to review these proxy materials
and vote your shares in advance of the Annual Meeting by Internet, by telephone, or by mail. Instructions regarding Internet and
telephone voting are included on the proxy card. If you choose to submit a proxy by mail, please mark, sign and date the proxy
card and return it in the enclosed postage-paid envelope. If you attend the Annual Meeting and desire to revoke your proxy and
vote in person, you may do so. You may revoke your proxy at any time before it is exercised as explained in the Proxy Statement.
If you have any questions
or need assistance voting your shares, please contact Cindy C. Payne, the Company’s Chief Financial Officer and Assistant
Secretary, at (704) 997-5735.
OTHER MATTERS
As to any other matter
of business that may be brought before the Annual Meeting, a vote may be cast in the discretion of the proxy holders at the Annual
Meeting. The Board of Directors does not know of any such other business.
By order of the Board of Directors
Lora Shealy
Secretary
Huntersville, North Carolina
November , 2016
Appendix
A
AKOUSTIS
TECHNOLOGIES
, inc.
2016
stock INCENTIVE PLAN
The
purposes of the Plan are to encourage and enable selected Employees, Directors and Consultants of the Company and its Affiliates
to acquire or increase their holdings of Common Stock and other equity-based interests in the Company and/or to provide other
incentive awards in order to promote a closer identification of their interests with those of the Company and its stockholders,
and to provide flexibility to the Company in its ability to motivate, attract and retain the services of Participants upon whose
judgment, interest and special effort the successful conduct of its operation largely depends. These purposes may be carried out
through the granting of Awards to selected Participants.
The
Effective Date of the Plan shall be December 15, 2016 (the “
Effective Date
”). Awards may be granted on or after
the Effective Date, but no Awards may be granted after December 14, 2026.
Awards
that are outstanding at the end of the Plan term (or such earlier termination date as may be established by the Board pursuant
to Section 18(a)) shall continue in accordance with their terms, unless otherwise provided in the Plan or an Award Agreement.
In
addition to other terms defined herein or in an Award Agreement, the following terms shall have the meanings given below:
(a)
Administrator
means the Board and, upon its delegation of all or part of its authority to administer the Plan to the Committee, the Committee.
(b)
Affiliate
means any Parent or Subsidiary of the Company, and also includes any other business entity which controls, is controlled by
or is under common control with the Company; provided, however, that the term “Affiliate” shall be construed in a
manner in accordance with the registration provisions of applicable federal securities laws if and to the extent required.
(c)
Applicable
Law
means any applicable laws, rules or regulations (or similar guidance), including but not limited to the Securities Act,
the Exchange Act, the Code and the listing or other rules of any applicable stock exchange. References to any applicable laws,
rules and regulations, including references to any sections or other provisions of applicable laws, rules and regulations, shall
also refer to any successor provisions thereto unless the Administrator determines otherwise.
(d)
Award
means a grant under the Plan of an Incentive Option; a Nonqualified Option; a Stock Appreciation Right; a Restricted Stock
Award; a Restricted Stock Unit; a Deferred Stock Unit; a Performance Share; a Performance Unit; a Phantom Stock Award; an Other
Stock-Based Award; a Cash Bonus Award; a Dividend Equivalent Award; and/or any other award granted under the Plan.
(e)
Award
Agreement
means an
award
agreement or certificate (which may be in written
or electronic form, in the Administrator’s discretion, and which includes any amendment or supplement thereto) between the
Company and a Participant, specifying such terms, conditions and restrictions as may be established by the Administrator with
regard to an Award and shares
of Common Stock
or any other benefit related to
an Award.
(f)
Board
or
Board of Directors
means the Board of Directors of the Company.
(g)
Cash
Bonus Award
means a cash-based Award granted pursuant to Section 13.
(h)
Cause
means, unless otherwise provided in an Award Agreement or determined by the Administrator, a Participant’s termination
of employment or service resulting from the Participant’s (i) termination for “Cause” as defined under the Participant’s
employment agreement, change in control agreement, consulting agreement or other similar agreement with the Company or an Affiliate,
if any, or (ii) if the Participant has not entered into any such agreement (or, if any such agreement does not define “Cause”),
then the Participant’s termination shall be for “Cause” if termination results due to the Participant’s
(A) dishonesty; (B) refusal to perform his or her duties for the Company or an Affiliate; or (C) engaging in fraudulent conduct
or conduct that could be materially damaging to the Company without a reasonable good faith belief that such conduct was in the
best interest of the Company. The determination of “Cause” shall be made by the Administrator and its determination
shall be final and conclusive. Without in any way limiting the effect of the foregoing, for purposes of the Plan and an Award,
a Participant’s employment or service shall also be deemed to have terminated for Cause if, after the Participant’s
employment or service has terminated, facts and circumstances are discovered that would have justified, in the opinion of the
Administrator, a termination for Cause.
(i) A
Change of Control
shall
(except as may be otherwise required, if at all, under
Code Section 409A)
be deemed to have occurred on the earliest of the following dates:
(i)
The
date any entity or person shall have become the beneficial owner of, or shall have obtained voting control over, more than fifty
percent (50%)
of the total voting power of the Company’s then outstanding voting stock;
(ii)
The
date of the consummation of (A) a merger, recapitalization, consolidation or reorganization of the Company (or similar transaction
involving the Company), in which the holders of the Common Stock immediately prior to the transaction have voting control over
less than fifty-one percent (51%) of the voting securities of the surviving corporation immediately after such transaction, or
(B) the sale or disposition of all or substantially all the assets of the Company
;
or
(iii)
The
date there shall have been a change in a majority of the Board of Directors of the Company within a 12-month period unless the
nomination for election by the Company’s stockholders or the appointment of each new Director was approved by the vote of
two-thirds of the members of the Board (or a committee of the Board, if nominations are approved by a Board committee rather than
the Board) then still in office who were in office at the beginning of the 12-month period.
For
the purposes herein, the term “
person
” shall mean any individual, corporation, partnership, group, association
or other person, as such term is defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, other than the Company,
a Subsidiary of the Company or any employee benefit plan(s) sponsored or maintained by the Company or any Subsidiary thereof,
and the term “beneficial owner” shall have the meaning given the term in Rule 13d-3 under the Exchange Act.
For
the purposes of clarity, a transaction shall not constitute a Change of Control if its principal purpose is to change the state
of the Company’s incorporation, create a holding company that would be owned in substantially the same proportions by the
persons who held the Company’s securities immediately before such transaction or is another transaction of other similar
effect.
Notwithstanding
the preceding provisions of this Section 3(i), in the event that any Awards granted under the Plan are deemed to be deferred compensation
subject to (and not exempt from) the provisions of Code Section 409A, then distributions related to such Awards to be made upon
a Change of Control may be permitted, in the Administrator's discretion, upon the occurrence of one or more of the following events
(as they are defined and interpreted under Code Section 409A): (A) a change in the ownership of the Company; (B) a change in effective
control of the Company; or (C) a change in the ownership of a substantial portion of the assets of the Company.
(j)
Code
means the Internal Revenue Code of 1986, as amended.
Any reference herein to a
specific Code section shall be deemed to include all related regulations or other guidance with respect to such Code section.
(k)
Committee
means the Compensation Committee of the Board (or a subcommittee thereof), or such other committee of the Board which may
be appointed to administer the Plan in whole or in part.
(l)
Common
Stock
means the common stock of Akoustis Technologies, Inc., $0.001 par value, or any successor securities thereto.
(m)
Company
means Akoustis Technologies, Inc., together with any successor thereto. In the Administrator’s discretion, the term
“Company” may also refer to the Company and any or all of its Affiliates.
(n)
Consultant
means an independent contractor, consultant or advisor providing services (other than capital raising services) to the Company
or an Affiliate.
(o)
Covered
Employee
shall have the meaning given the term in
Code Section
162(m).
(p)
Deferred
Stock Unit
means a Restricted Stock Unit, the terms of which may, in the Administrator’s discretion, provide for delivery
of shares of Common Stock, cash or a combination thereof on a date or dates subsequent to the date the Award is earned and vested,
as provided in Section 9.
(q)
Director
means a member of the Board.
(r)
Disability
shall,
unless otherwise provided in an Award Agreement or determined by the Administrator
(taking into account any Code Section 409A considerations),
as applied to any Participant, having the meaning given in
any employment agreement, change in control agreement, consulting agreement or other similar agreement, if any, to which the Participant
is a party, or, if there is no such agreement (or if such agreement does not define “Disability”), “Disability”
shall mean the inability of the Participant to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous
period of not less than 12 months. The Administrator shall have authority to determine if a Disability has occurred.
(s)
Dividend
Equivalent Award
means a right granted to a Participant pursuant to Section 14 to receive the equivalent value (in cash or
shares of Common Stock) of dividends paid on Common Stock.
(t)
Effective
Date
means the effective date of the Plan, as provided in Section 2.
(u)
Employee
means any person who is an employee of the Company or any Affiliate (including entities which become Affiliates after the
Effective Date). For this purpose, an individual shall be considered to be an Employee only if there exists between the individual
and the Company or an Affiliate the legal and bona fide relationship of employer and
employee
(taking into account Code Section 409A considerations if and to the extent applicable)
; provided, however, that with respect
to Incentive Options, “Employee” means any person who is considered an employee of the Company or any Parent or Subsidiary
for purposes of Treasury Regulation Section 1.421-1(h).
(v)
Exchange
Act
means the Securities Exchange Act of 1934, as amended.
(w)
Exercise
Price
means the price at which an Option or SAR may be exercised, as provided in Section 7(b) and Section 8(a), respectively.
(x)
Fair
Market Value
per share of the Common Stock shall be established by the Administrator and, unless otherwise determined by the
Administrator, the Fair Market Value shall be determined in accordance with the following provisions: (i) if the shares of Common
Stock are listed for trading on the New York Stock Exchange, LLC (“NYSE”), the NASDAQ Stock Market LLC (“
Nasdaq
”)
or another national or regional stock exchange, the Fair Market Value shall be the closing sales price per share of the shares
on the principal stock exchange on which such securities are listed on the date an Award is granted or other determination is
made (such date of determination being referred to herein as a “
valuation date
”), or, if there is no transaction
on such date, then on the trading date nearest preceding the valuation date for which closing price information is available,
and, provided further, if the shares are not listed for trading on the NYSE, Nasdaq or another stock exchange but are regularly
quoted on an automated quotation system (including the OTC Bulletin Board and the quotations published by the OTC Markets Group)
or by a recognized securities dealer, the Fair Market Value shall be the closing sales price for such shares as quoted on such
system or by such securities dealer on the valuation date, but if selling prices are not reported, the Fair Market Value of a
share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the valuation date (or,
if no such prices were reported on that date, on the last date such prices were reported), as reported in The Wall Street Journal
or such other source as the Administrator deems reliable; or (ii) if the shares of Common Stock are not listed or reported in
any of the foregoing, then the Fair Market Value shall be determined by the Administrator based on such valuation measures or
other factors as it deems appropriate. Notwithstanding the foregoing, (i) with respect to the grant of Incentive Options, the
Fair Market Value shall be determined by the Administrator in accordance with the applicable provisions of Section 20.2031-2 of
the Federal Estate Tax Regulations, or in any other manner consistent with Code Section 422; and (ii) Fair Market Value shall
be determined in accordance with Code Section 409A if and to the extent required.
(y)
Full
Value Award
means an Award, other than in the form of an Option or SAR, which is settled by the issuance of Common Stock.
(z)
Good
Reason
means, unless otherwise provided in an Award Agreement or determined by the Administrator, in the context of a Change
of Control, a Participant’s termination of employment or service resulting from the Participant’s (i) termination
for “Good Reason” as defined under the Participant’s employment agreement, change of control agreement, consulting
agreement or other similar agreement with the Company or an Affiliate, if any, or (ii) if the Participant has not entered into
any agreement (or, if any such agreement does not define “Good Reason”), then a Participant’s termination shall
be for “Good Reason” if termination results due to any of the following without the Participant’s consent: (A)
a material reduction in the Participant’s base salary as in effect immediately prior to the date of the Change of Control,
(B) the assignment to the Participant of duties or responsibilities materially inconsistent with, or a material diminution in,
the Participant’s position, authority, duties or responsibilities as in effect immediately prior to the Change of Control
or (C) the relocation by the Company of the Participant’s principal place of employment by more than 100 miles from the
location at which the Participant was stationed immediately prior to the Change of Control. Notwithstanding the foregoing, with
respect to Directors, unless the Administrator determines otherwise, a Director’s termination from service on the Board
shall be for “Good Reason” if the Participant ceases to serve as a Director, or, if the Company is not the surviving
company in the Change of Control event, a member of the board of directors of the surviving entity, in either case, due to the
Participant’s failure to be nominated to serve as a director of such entity or the Participant’s failure to be elected
to serve as a director of such entity, but not due to the Participant’s decision not to continue service on the Board of
Directors of the Company or the board of directors of the surviving entity, as the case may be. An event or condition that would
otherwise constitute “Good Reason” shall constitute Good Reason only if the Company fails to rescind or cure such
event or condition within 30 days after receipt from the Participant of written notice of the event which constitutes Good Reason,
and Good Reason shall cease to exist for any event or condition described herein on the 60
th
day following the later
of the occurrence or the Participant’s knowledge thereof, unless the Participant has given the Company written notice thereof
prior to such date. In the context other than a Change of Control, “Good Reason” shall be as defined by the Administrator.
The determination of “Good Reason” shall be made by the Administrator and its determination shall be final and conclusive.
(aa)
Incentive
Option
means an Option that is designated by the Administrator as an Incentive Option pursuant to Section 7 and intended to
meet the requirements of incentive stock options under Code Section
422.
(bb) Nonqualified
Option means an Option granted under Section 7 that is not intended to qualify as an incentive stock option under Code Section
422.
(cc)
Option
means a stock option granted under Section 7 that entitles the holder to purchase from the Company a stated number of shares
of Common Stock at the Exercise Price, and subject to such terms and conditions, as may be set forth in the Plan or an Award Agreement
or established by the Administrator.
(dd)
Option
Period
means the term of an Option, as provided in Section 7(d).
(ee)
Other
Stock-Based Award
means a right, granted to a Participant under Section 12, that relates to or is valued by reference to shares
of Common Stock or other Awards relating to shares of Common Stock.
(ff)
Parent
means a “parent corporation,” whether now or hereafter existing, as defined in Code Section 424(e).
(gg)
Participant
means an individual who is an Employee employed by, or a Director or Consultant providing services to, the Company or an Affiliate
who satisfies the requirements of Section 6 and is selected by the Administrator to receive an Award under the Plan.
(hh)
Performance
Award
means a Performance Share Award and/or a Performance Unit Award, as provided in Section 10.
(ii)
Performance
Measures
mean one or more performance factors or criteria which may be established by the Administrator with respect to an
Award. Performance Measures may be based on such performance factors or criteria as the Administrator in its discretion may deem
appropriate; provided, however, that, if and to the extent required under Code Section 162(m) with respect to Awards granted to
Covered Employees that are intended to qualify as “performance-based compensation” under Code Section 162(m), such
Performance Measures shall be objective and shall be based upon one or more of the following criteria (as determined by the Administrator
in its discretion): (i) cash flow; (ii) return on equity; (iii) return on assets; (iv) earnings per share; (v) operations expense
efficiency milestones; (vi) consolidated earnings before or after taxes (including earnings before interest, taxes, depreciation
and amortization); (vii) net income; (viii) operating income; (ix) pre-tax income; (x) book value per share; (xi) return on investment;
(xii) return on capital; (xiii) improvements in capital structure; (xiv) expense management; (xv) profitability including of an
identifiable business unit or service offering; (xvi) maintenance or improvement of profit margins; (xvii) stock price or total
shareholder return; (xviii) market share; (xix) revenues or sales; (xx) costs; (xxi) working capital; (xxii) economic wealth created;
(xxiii) strategic business criteria; (xxiv) efficiency ratio(s); (xxv) operating ratio(s); (xxvi) achievement of division,
group, function or corporate financial, strategic or operational goals; (xxvii) gross margins; (xxviii) product productions or
shipments; and (xxix) comparisons with stock market indices or performance metrics of peer companies. The Administrator may also
apply other performance factors and criteria, which need not be objective, with respect to Awards that are not intended to comply
with the Code Section 162(m) qualified performance-based compensation exception. The foregoing criteria may relate to the Company,
one or more of its Subsidiaries or other Affiliates or one or more of its segments, operating units or groups, divisions, departments,
partnerships, joint ventures or minority investments, facilities, product lines or products service offerings or any combination
of the foregoing. The targeted level or levels of performance with respect to such business criteria also may be established at
such levels and on such terms as the Administrator may determine, in its discretion, including but not limited to on an absolute
basis, in relation to performance in a prior performance period, relative to one or more peer group companies or indices, on a
per share and/or share per capita basis, on a pre-tax or after tax basis and/or any combination thereof.
(jj)
Performance
Share
means an Award granted under Section 10, in an amount determined by the Administrator and specified in an Award Agreement,
stated with reference to a specified number of shares of Common Stock, that entitles the holder to receive shares of Common Stock,
a cash payment or a combination of Common Stock and cash (as determined by the Administrator), subject to the terms of the Plan
and the terms and conditions established by the Administrator.
(kk)
Performance
Unit
means an Award granted under Section 10, in an amount determined by the Administrator and specified in an Award Agreement,
that entitles the holder to receive shares of Common Stock, a cash payment or a combination of Common Stock and cash (as determined
by the Administrator), subject to the terms of the Plan and the terms and conditions established by the Administrator.
(ll)
Phantom
Stock Award
means an Award granted under Section 11, entitling a Participant to a payment in cash, shares of Common Stock
or a combination of cash and Common Stock (as determined by the Administrator) following the completion of the applicable vesting
period and compliance with the terms of the Plan and other terms and conditions established by the Administrator. The unit value
of a Phantom Stock Award shall be based on the Fair Market Value of a share of Common Stock.
(mm)
Plan
means the Akoustis Technologies, Inc. 2016 Stock Incentive Plan, as it may be amended and/or restated.
(nn)
Prior
Plan
or means the Akoustis Technologies, Inc. 2015 Equity Inventive Plan, as it may be amended and/or restated.
(oo)
Restricted
Award
means a Restricted Stock Award, a Restricted Stock Unit Award and/or a Deferred Stock Unit, as provided in Section.
(pp)
Restricted
Stock Award
means an Award of shares of Common Stock granted to a Participant under Section 9. Shares of Common Stock subject
to a Restricted Stock Award shall cease to be restricted when, in accordance with the terms of the Plan and the terms and conditions
established by the Administrator, the shares vest and become transferable and free of substantial risks of forfeiture.
(qq)
Restricted
Stock Unit
means an Award granted to a Participant pursuant to Section 9 which is settled, if at all, (i) by the delivery
of one share of Common Stock for each Restricted Stock Unit, (ii) in cash in an amount equal to the Fair Market Value of one share
of Common Stock for each Restricted Stock Unit or (iii) in a combination of cash and shares equal to the Fair Market Value of
one share of Common Stock for each Restricted Stock Unit, as determined by the Administrator. A Restricted Stock Unit represents
the unfunded promise of the Company to deliver shares of Common Stock, cash or a combination thereof, as applicable, at the end
of the applicable restriction period if and only to the extent the Award vests and ceases to be subject to forfeiture, subject
to compliance with the terms of the Plan and Award Agreement and any performance or other terms and conditions established by
the Administrator.
(rr)
Retirement
shall, unless otherwise provided in an Award Agreement or determined by the Administrator (taking into account any Code
Section 409A considerations), as applied to any Participant, have the meaning given in any employment agreement, change in
control agreement, consulting agreement or other similar agreement, if any, to which the Participant is a party, or, if there
is no such agreement (or if such agreement does not define “Retirement”), then “Retirement” shall,
unless the Administrator determines otherwise, mean retirement in accordance with the retirement policies and procedures
established by the Company. The Administrator shall have authority to determine if a Retirement has occurred.
(ss)
SAR
or
Stock Appreciation Right
means a stock appreciation right granted under Section 8 entitling the Participant
to receive, with respect to each share of Common Stock encompassed by the exercise of such SAR, the excess, if any, of the Fair
Market Value on the date of exercise over the Exercise Price, subject to the terms of the Plan and Award Agreement and any other
terms and conditions established by the Administrator. References to “SARs” include both Related SARs and Freestanding
SARs, unless the context requires otherwise.
(tt)
Securities
Act
means the Securities Act of 1933, as amended.
(uu)
Subsidiary
means a “subsidiary corporation,” whether now or hereafter existing, as defined in Code Section 424(f).
(vv)
Termination
Date
means the date of termination of a Participant’s employment or service for any reason, as determined by the Administrator
(taking into account any Code Section 409A considerations).
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4.
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Administration of the Plan
|
(a) The
Plan shall be administered by the Board or, upon its delegation, by the Committee (or a subcommittee thereof). To the extent required
under Rule 16b-3 adopted under the Exchange Act, the Committee shall be comprised solely of two or more “non-employee directors,”
as such term is defined in Rule 16b-3, or as may otherwise be permitted under Rule 16b-3. Further, to the extent required by
Code
Section
162(m), the Plan shall be administered by a committee comprised of two or more “outside directors”
(as such term is defined in
Code Section
162(m)) or as may otherwise be permitted
under
Code Section
162(m). In addition, Committee members shall qualify as “independent
directors” under applicable stock exchange rules if and to the extent required.
(b) Subject
to the provisions of the Plan, the Administrator shall have full and final authority in its discretion to take any action with
respect to the Plan including, without limitation, the authority to (i) determine all matters relating to Awards, including selection
of individuals to be granted Awards, the types of Awards, the number of shares of Common Stock, if any, subject to an Award, and
all terms, conditions, restrictions and limitations of an Award; (ii) prescribe the form or forms of Award Agreements evidencing
any Awards granted under the Plan; (iii) establish, amend and rescind rules and regulations for the administration of the Plan;
(iv) correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Award or Award Agreement; and
(v) construe and interpret the Plan, Awards and Award Agreements, interpret rules and regulations for administering the Plan and
make all other determinations deemed necessary or advisable for administering the Plan.
In addition, (i) the
Administrator shall have the authority, subject to the restrictions contained in Section 4(c) herein,
to accelerate the date that any Award which was not otherwise exercisable, vested or earned shall become exercisable, vested or
earned in whole or in part without any obligation to accelerate such date with respect to any other Award granted to any recipient
;
and (ii) the
Administrator may in its sole discretion modify or extend the terms and conditions for exercise, vesting or
earning of an Award
(in each case, taking into account any Code Section 409A considerations)
.
The Administrator’s authority to grant Awards and authorize payments under the Plan shall not in any way restrict the authority
of the Company to grant compensation to Employees, Directors or Consultants under any other compensation plan, program or arrangement
of the Company or an Affiliate. In addition, the Administrator shall have the authority and discretion to establish terms and
conditions of Awards (including but not limited to the establishment of subplans) or other arrangements as the Administrator determines
to be necessary or appropriate to conform to the applicable requirements or practices of jurisdictions outside of the United States.
In addition to action by meeting in accordance with Applicable Law, any action of the Administrator with respect to the Plan may
be taken by a written instrument signed by all of the members of the Board or Committee, as appropriate, and any such action so
taken by written consent shall be as fully effective as if it had been taken by a majority of the members at a meeting duly held
and called. All determinations of the Administrator with respect to the Plan and any Award or Award Agreement will be final and
binding on the Company and all persons having or claiming an interest in any Award granted under the Plan.
(c) Notwithstanding
the provisions of Section 4(b), Awards granted to a Participant under the Plan shall be subject to a minimum vesting period of
one year; provided, however, that (i) the Administrator may provide for acceleration of vesting of all or a portion of an Award
in the event of a Participant's death, Disability or Retirement, or (to the extent provided pursuant to Section 15 herein) upon
the occurrence of a Change of Control of the Company; (ii) the Administrator may provide for the grant of an Award to any Participant
without a minimum vesting period or may accelerate the vesting of all or a portion of an Award for any reason, but only with respect
to Awards for no more than an aggregate of five percent (5%) of the total number of shares of Common Stock authorized for issuance
under the Plan pursuant to Section 5(a) herein, upon such terms and conditions as the Administrator shall determine; and (iii)
the Administrator also may provide for the grant of Awards to Participants that have different vesting terms in the case of Awards
that are substituted for other equity awards in connection with mergers, consolidations or other similar transactions, Awards
that are granted as an inducement to be employed by the Company or an Affiliate or to replace forfeited awards from a former employer,
or Awards that are granted in exchange for foregone cash compensation.
(d) The
Administrator may adjust or modify Performance Measures or other performance factors or terms or conditions of Awards due to extraordinary
items, transactions, events or developments, or in recognition of any other unusual or infrequent events affecting the Company
or the financial statements of the Company, or in response to changes in Applicable Law, accounting principles or business conditions,
in each case as determined by the Administrator (provided that any adjustment or modification involving Covered Employees for
compensation that is intended to qualify as “performance-based compensation” under Code Section 162(m) shall be made
in an objectively determinable manner and shall be subject to any applicable Code Section 162(m) restrictions). By way of example
but not limitation, the Administrator may provide with respect to any Award that any evaluation of performance shall exclude or
otherwise adjust for any specified circumstance or event that occurs during a performance period, including but not limited to
circumstances or events such as the following: currency fluctuations; discontinued operations; non-cash items, such as amortization,
depreciation or reserves; asset impairment; significant litigation or claim judgments or settlements; changes in accounting standards;
any recapitalization, restructuring, reorganization, merger, acquisition, divestiture, consolidation, spin-off, split-up, combination,
liquidation, dissolution, sale of assets or other similar corporate transaction or event and/or any other specific unusual or
infrequent events or objectively determinable category thereof.
(e) Notwithstanding
the other provisions of Section 4, the Board may delegate to one or more officers of the Company or a special committee consisting
of one or more directors who are also officers of the Company the authority, within specified parameters, to grant Awards to eligible
Participants, and to make any or all of the determinations reserved for the Administrator in the Plan and summarized in Section
4(b) with respect to such Awards (subject to any restrictions imposed by Applicable Law and such terms and conditions as may be
established by the Administrator); provided, however, that, if and to the extent required by Section 16 of the Exchange Act or
Code Section 162(m), the Participant, at the time of said grant or other determination, (i) is not deemed to be an officer or
director of the Company within the meaning of Section 16 of the Exchange Act; and (ii) is not deemed to be a Covered Employee
as defined under Code Section 162(m). To the extent that the Administrator has delegated authority to grant Awards pursuant to
this Section 4(e) to an officer(s) and/or a special committee, references to the “Administrator” shall include references
to such officer(s) and/or special committee, subject, however, to the requirements of the Plan, Rule 16b-3, Code Section 162(m)
and other Applicable Law.
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5.
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Shares of Stock Subject to the
Plan; Award Limitations
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(a)
Shares
of Stock Subject to the Plan
: Subject to adjustments as provided in this Section 5, the maximum aggregate number of shares
of Common Stock that may be issued pursuant to Awards granted under the Plan shall not exceed
3,000,000
shares
, plus any shares subject to an award granted under the Prior Plan, which Prior Plan award is at any time forfeited,
cancelled, terminated, expires or lapses for any reason without the issuance of shares or pursuant to which such shares are forfeited
or reacquired by the Company. Shares delivered under the Plan shall be authorized but unissued shares, treasury shares or shares
purchased on the open market or by private purchase. The Company hereby reserves sufficient authorized shares of Common Stock
to meet the grant of Awards hereunder.
(b)
Award
Limitations
: Notwithstanding any provision in the Plan to the contrary, the following limitations shall apply to Awards granted
under the Plan, in each case subject to adjustments pursuant to Section 5(d):
(i)
The
maximum aggregate number of shares of Common Stock that may be issued under the Plan pursuant to the grant of Incentive Options
shall not exceed
3,000,000
shares of Common Stock.
(ii)
In
any 12-month period, no Participant may be granted Options and SARs that are not related to an Option for more than
500,000
shares of Common Stock (or the equivalent value thereof based on the Fair Market Value per share of the Common Stock on
the date of grant of such an Award).
(iii)
In
any 12-month period, no
Participant
may be granted Awards other than Options
or SARs for more than
500,000
shares of Common Stock (or the equivalent
value thereof based on the Fair Market Value per share of the Common Stock on the date of grant of such an Award).
(iv)
Notwithstanding
the provisions of Sections 5(b)(ii) and (iii) herein, with respect to non-employee Directors, in any 12-month period, no such
non-employee Director may be granted Awards for more than
200,000
shares of Common Stock (or the equivalent value thereof based on the Fair Market Value per share of Common Stock on the date of
grant of such an Award), provided, however, that any Director cash retainer fees or other fees that are settled in shares of Common
Stock shall not be subject to this limitation.
(For
purposes of Section 5(b)(ii), (iii) and (iv), an Option and Related SAR shall be treated as a single award.)
(c)
Additional
Share Counting Provisions
. The following provisions shall apply with respect to the share limitations of Section 5(a):
(i)
For
purposes of determining the number of shares of Common Stock to be counted against the maximum share limit set forth in Section
5(a), each share of Common Stock subject to an Award shall be counted against the limit as one share.
(ii)
To
the extent that an Award is canceled, terminates, expires, is forfeited or lapses for any reason, any such unissued or forfeited
shares subject to the Award will again be available for issuance pursuant to Awards granted under the Plan.
(iii)
Awards
settled in cash shall not be counted against the share limitations stated in Section 5(a) herein.
(iv)
Dividends,
including dividends paid in shares, or dividend equivalents paid in cash in connection with outstanding Awards, will not be counted
towards the share limitations in Section 5(a).
(v)
To
the extent that the full number of shares subject to an Award other than an Option or SAR is not issued for any reason, including
by reason of failure to achieve performance factors or criteria, only the number of shares issued and delivered shall be considered
for purposes of determining the number of shares remaining available for issuance pursuant to Awards granted under the Plan.
(vi)
The
following shares of Common Stock may not again be made available for issuance as Awards under the Plan: (A) shares withheld from
an Award or delivered by a Participant to satisfy tax withholding requirements for Awards; (B) shares not issued or delivered
as a result of the net settlement of an outstanding Award; (C) shares withheld or delivered to pay the Exercise Price related
to an outstanding Award; and (D) shares repurchased on the open market with the proceeds of the Exercise Price.
(vii)
Further,
(A) shares issued under the Plan through the settlement, assumption or substitution of outstanding awards granted by another entity
or obligations to grant future awards as a condition of or in connection with a merger, acquisition or similar transaction involving
the Company acquiring another entity shall not reduce the maximum number of shares available for delivery under the Plan, and
(B) available shares under a stockholder approved plan of an acquired company (as appropriately adjusted to reflect the transaction)
may be used for Awards under the Plan and will not reduce the maximum number of shares available under the Plan, subject, in the
case of both (A) and (B) herein, to applicable stock exchange listing requirements.
(d)
Adjustments;
Right to Issue Additional Securities
: If there is any change in the outstanding shares of Common Stock because of a merger,
change in control, consolidation, recapitalization or reorganization involving the Company, or if the Board declares a stock dividend,
stock split distributable in shares of Common Stock or reverse stock split, other distribution (other than ordinary or regular
cash dividends) or combination or reclassification of the Common Stock, or if there is a similar change in the capital stock structure
of the Company affecting the Common Stock (excluding conversion of convertible securities by the Company and/or the exercise of
warrants by their holders), then the number and type of shares of Common Stock reserved for issuance under the Plan shall be correspondingly
adjusted, and the Administrator shall make such adjustments to Awards (such as the number and type of shares subject to an Award
and the Exercise Price of an Award) or to any provisions of this Plan as the Administrator deems equitable to prevent dilution
or enlargement of Awards or as may otherwise be advisable. Nothing in the Plan, an Award or an Award Agreement shall limit the
ability of the Company to issue additional securities of any type or class.
An
Award may be granted only to an individual who satisfies all of the following eligibility requirements on the date the Award is
granted:
(a) The
individual is either (i) an Employee, (ii) a Director or (iii) a Consultant.
(b) With
respect to the grant of Incentive Options, the individual is otherwise eligible to participate under this Section 6, is an Employee
of the Company or a Parent or Subsidiary and does not own, immediately before the time that the Incentive Option is granted, stock
possessing more than 10% of the total combined voting power of all classes of stock of the Company or a Parent or Subsidiary.
Notwithstanding the foregoing, an Employee who owns more than 10% of the total combined voting power of all classes of stock of
the Company or a Parent or Subsidiary may be granted an Incentive Option if the Exercise Price is at least 110% of the Fair Market
Value of the Common Stock, and the Option Period does not exceed five years. For this purpose, an individual will be deemed to
own stock which is attributable to him or her under
Code Section
424(d).
(c) With
respect to the grant of substitute awards or assumption of awards in connection with a merger, consolidation, acquisition, reorganization
or similar transaction involving the Company or an Affiliate, the recipient is otherwise eligible to receive the Award and the
terms of the award are consistent with the Plan and Applicable Law.
(d) The
individual, being otherwise eligible under this Section 6, is selected by the Administrator as an individual to whom an Award
shall be granted (as defined above, a “
Participant
”).
7.
Options
(a)
Grant
of Options
: Subject to the terms of the Plan, the Administrator may in its discretion grant Options to such eligible Participants
in such numbers, subject to such terms and conditions, and at such times as the Administrator shall determine. Both Incentive
Options and Nonqualified Options may be granted under the Plan, as determined by the Administrator; provided, however, that Incentive
Options may only be granted to Employees of the Company or a Parent or Subsidiary. To the extent that an Option is designated
as an Incentive Option but does not qualify as such under
Code Section 422,
the Option (or portion thereof) shall be treated as
a Nonqualified
Option. An
Option may be granted with or without a Related SAR.
(b)
Exercise
Price
: The Exercise Price per share at which an Option may be exercised shall be established by the Administrator and stated
in the Award Agreement evidencing the grant of the Option; provided, that (i) the Exercise Price of an Option shall be no less
than 100% of the Fair Market Value per share of the Common Stock as determined on the date the Option is granted (or 110% of the
Fair Market Value with respect to Incentive Options granted to an Employee who owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or a Parent or Subsidiary, as provided in Section 6(b)); and (ii)
in no event shall the Exercise Price per share of any Option be less than the par value per share of the Common Stock. Notwithstanding
the foregoing, the Administrator may in its discretion authorize the grant of substitute or assumed options of an acquired entity
with an Exercise Price not equal to 100% of the Fair Market Value of the stock on the date of grant, if
the
terms of
such
substitution or assumption otherwise comply, to the extent deemed
applicable, with Code Section 409A and/or Code Section 424(a)
.
(c)
Date
of Grant
: An Option shall be considered to be granted on the date that the Administrator acts to grant the Option, or on
such
later date as may be established by the Administrator in accordance with Applicable Law
.
(d)
Option
Period and Limitations on the Right to Exercise Options:
(i)
The
Option Period shall be determined by the Administrator at the time the Option is granted and shall be stated in the Award Agreement.
The Option Period shall not extend more than 10 years from the date on which the Option is granted (or five years with respect
to Incentive Options granted to an Employee who owns stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company or a Parent or Subsidiary, as provided in Section 6(b)). Any Option or portion thereof not exercised
before expiration of the Option Period shall terminate. The period or periods during which, and the terms and conditions pursuant
to which, an Option may
vest and
become exercisable shall be determined by the
Administrator in its discretion, subject to the terms of the Plan (including but not limited to the provisions of Section 4(c)
herein).
(ii)
An
Option may be exercised by giving written notice to the Company in form acceptable to the Administrator at such place and subject
to such conditions as may be established by the Administrator or its designee. Such notice shall specify the number of shares
to be purchased pursuant to an Option and the aggregate purchase price to be paid therefor and shall be accompanied by payment
of such purchase price. Unless an Award Agreement provides otherwise, such payment shall be in the form of cash or cash equivalent;
provided that, except where prohibited by the Administrator or Applicable Law (and subject to such terms and conditions as may
be established by the Administrator), payment may also be made:
(A)
By
delivery (by either actual delivery or attestation) of shares of Common Stock owned by the Participant for such time period, if
any, as may be determined by the Administrator;
(B)
By
shares of Common Stock withheld upon exercise;
(C)
So
long as a Public Market exists at the time of exercise of the Option, by delivery of written notice of exercise to the Company
and delivery to a broker of written notice of exercise and irrevocable instructions to promptly deliver to the Company the amount
of sale or loan proceeds to pay the Exercise Price;
(D)
By
such other payment methods as may be approved by the Administrator and which are acceptable under Applicable Law; and/or
(E)
By
any combination of the foregoing methods.
Shares
delivered or withheld in payment on the exercise of an Option shall be valued at their Fair Market Value on the date of exercise,
as determined by the Administrator or its designee. For the purposes of the Plan, a “
Public Market
” for the
Common Stock shall be deemed to exist (A) upon consummation of a firm commitment underwritten public offering of the Common Stock
(or successor securities thereto) pursuant to an effective registration statement under the Securities Act or (B) if the Administrator
otherwise determines that there is an established public market for the Common Stock.
(iii)
The
Administrator shall determine the extent, if any, to which a Participant may have the right to exercise an Option following termination
of the Participant’s employment or service with the Company. Such rights, if any, shall be subject to the sole discretion
of the Administrator, shall be stated in the individual Award Agreement, need not be uniform among all Options issued pursuant
to this Section 7, and may reflect distinctions based on the reasons for termination of employment or service.
(e)
Notice
of Disposition
: If shares of Common Stock acquired upon exercise of an Incentive Option are disposed of within two years following
the date of grant or one year following the transfer of such shares to a Participant upon exercise, the Participant shall, promptly
following such disposition, notify the Company in writing of the date and terms of such disposition and provide such other information
regarding the disposition as the Administrator may reasonably require.
(f)
Limitation
on Incentive Options
: In no event shall there first become exercisable by an Employee in any one calendar year Incentive Options
granted by the Company or any Parent or Subsidiary with respect to shares having an aggregate Fair Market Value (determined at
the time an Incentive Option is granted) greater than $100,000; provided that, if such limit is exceeded, then the first $100,000
of shares to become exercisable in such calendar year will be Incentive Options and the Options (or portion thereof) for shares
with a value in excess of $100,000 that first became exercisable in that calendar year will be Nonqualified Options.
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8.
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Stock Appreciation Rights
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(a)
Grant
of SARs
: Subject to the terms of the Plan, the Administrator may in its discretion grant SARs to such eligible Participants,
in such numbers, upon such terms and at such times as the Administrator shall determine. SARs may be granted to the holder of
an Option (a “
Related Option
”) with respect to all or a portion of the shares of Common Stock subject to the
Related Option (a “
Related SAR
”) or may be granted separately to an eligible individual (a “
Freestanding
SAR
”). The Exercise Price per share of a SAR shall be no less than 100% of the Fair Market Value per share of the Common
Stock on the date the SAR is granted.
Notwithstanding the foregoing, the Administrator
may in its discretion authorize the grant of substitute or assumed SARs of an acquired entity with an Exercise Price per share
not equal to at least 100% of the Fair Market Value of the stock on the date of grant, if the terms of such substitution or assumption
otherwise comply, to the extent deemed applicable, with Code Section 409A and/or Code Section 424(a). A SAR shall be considered
to be granted on the date that the Administrator acts to grant the SAR, or on such other date as may be established by the Administrator
in accordance with Applicable Law.
(b)
Related
SARs
: A Related SAR may be granted either concurrently with the grant of the Related Option or (if the Related Option is a
Nonqualified Option) at any time thereafter prior to the complete exercise, termination, expiration or cancellation of such Related
Option. The Exercise Price of a Related SAR shall be equal to the Exercise Price of the Related Option. Related SARs shall be
exercisable only at the time and to the extent that the Related Option is exercisable (and may be subject to such additional limitations
on exercisability as the Administrator may provide in an
Award Agreement
), and
in no event after the complete termination or full exercise of the Related Option. Notwithstanding the foregoing, a Related SAR
that is related to an Incentive Option may be exercised only to the extent that the Related Option is exercisable and only when
the Fair Market Value exceeds the Exercise Price of the Related Option. Upon the exercise of a Related SAR granted in connection
with a Related Option, the Option shall be canceled to the extent of the number of shares as to which the SAR is exercised, and
upon the exercise of a Related Option, the Related SAR shall be canceled to the extent of the number of shares as to which the
Related Option is exercised or surrendered.
(c)
Freestanding
SARs
: A SAR may be granted without relationship to an Option (as defined above, a “
Freestanding SAR
”) and,
in such case, will be exercisable upon such terms and subject to such conditions as may be determined by the Administrator, subject
to the terms of the Plan.
(d)
Exercise
of SARs
:
(i)
Subject
to the terms of the Plan (including but not limited to Section 4(c) herein), SARs shall be
vested
and exercisable
in whole or in part upon such terms and conditions as may be established by the Administrator. The period
during which a SAR may be exercisable shall not exceed 10 years from the date of grant or, in the case of Related SARs, such shorter
Option Period as may apply to the Related Option. Any SAR or portion thereof not exercised before expiration of the period established
by the Administrator shall terminate.
(ii)
SARs
may be exercised by giving written notice to the Company in form acceptable to the Administrator at such place and subject to
such terms and conditions as may be established by the Administrator or its designee. Unless the Administrator determines otherwise,
the date of exercise of a SAR shall mean the date on which the Company shall have received proper notice from the Participant
of the exercise of such SAR.
(iii)
The
Administrator shall determine the extent, if any, to which a Participant may have the right to exercise a SAR following termination
of the Participant’s employment or service with the Company. Such rights, if any, shall be determined in the sole discretion
of the Administrator, shall be stated in the individual Award Agreement, need not be uniform among all SARs issued pursuant to
this Section 8 and may reflect distinctions based on the reasons for termination of employment or service.
(e)
Payment
Upon Exercise
: Subject to the terms of the Plan, upon the exercise of a SAR, a Participant shall be entitled to receive payment
from the Company in an amount determined by multiplying (i) the excess, if any, of the Fair Market Value of a share of Common
Stock on the date of exercise of the SAR over the Exercise Price of the SAR, by (ii) the number of shares of Common Stock with
respect to which the SAR is being exercised. The consideration payable upon exercise of a SAR shall be paid in cash, shares of
Common Stock (valued at Fair Market Value on the date of exercise of the SAR) or a combination of cash and shares of Common Stock,
as determined by the Administrator.
(a)
Grant
of Restricted Awards
: Subject to the terms of the Plan, the Administrator may in its discretion grant Restricted Awards to
such Participants
, for
such numbers
of shares of Common Stock
, upon such terms and at such times as the Administrator shall determine. Such Restricted Awards
may be in the form of Restricted Stock Awards, Restricted Stock Units and/or Deferred Stock Units that are subject to certain
conditions, which conditions must be met in order for the Restricted Award to vest and be earned (in whole or in part) and no
longer subject to forfeiture. Restricted Stock Awards shall be payable in shares of Common Stock. Restricted Stock Units and Deferred
Stock Units shall be payable in cash or shares of Common Stock, or partly in cash and partly in shares of Common Stock, in accordance
with the terms of the Plan and the discretion of the Administrator. Subject to the provisions of Section 4(c) herein, the
Administrator shall determine the nature, length and starting date of the period, if any, during which a Restricted Award may
vest and be earned (the “
Restriction Period
”), and shall determine the conditions which must be met in order
for a Restricted Award to be granted, vested, earned and/or distributable (in whole or in part), which conditions may include,
but are not limited to, payment of a stipulated purchase price, attainment of performance objectives, continued service or employment
for a certain period of time, a combination of attainment of performance objectives and continued service, Retirement, Disability,
death or other termination of employment or service or a combination of such or other conditions. In the case of Restricted Awards
based in whole or in part upon performance factors or criteria, the Administrator shall determine the Performance Measures applicable
to such Restricted Awards (subject to Section 3(ii)).
(b)
Vesting
of Restricted Awards
: Subject to the terms of the Plan (and taking into account any Code Section 409A considerations), the
Administrator shall have sole authority to determine whether and to what degree Restricted Awards have vested and been earned
and are payable and to establish and interpret the terms and conditions of Restricted Awards.
(c)
Termination
of Employment or Service; Forfeiture
: Unless the Administrator determines otherwise, if the employment or service of a Participant
shall be terminated for any reason (whether by the Company or the Participant and whether voluntary or involuntary) and all or
any part of a Restricted Award has not vested or been earned pursuant to the terms of the Plan and related Award Agreement, such
Award, to the extent not then vested or earned, shall be forfeited immediately upon such termination and the Participant shall
have no further rights with respect thereto.
(d)
Share
Certificates; Escrow
: Unless the Administrator determines otherwise, a certificate or certificates representing the shares
of Common Stock subject to a Restricted Stock Award shall be issued in the name of the Participant (or, in the case of uncertificated
shares, other written evidence of ownership in accordance with Applicable Law shall be provided) after the Award has been granted.
Notwithstanding the foregoing, the Administrator may require that (i) a Participant deliver the certificate(s) (or other instruments)
for such shares to the Administrator or its designee to be held in escrow until the Restricted Stock Award vests and is no longer
subject to a substantial risk of forfeiture (in which case the shares will be promptly released to the Participant) or is forfeited
(in which case the shares shall be returned to the Company); and/or (ii) a Participant deliver to the Company a stock power, endorsed
in blank (or similar instrument), relating to the shares subject to the Restricted Stock Award which are subject to forfeiture.
Unless the Administrator determines otherwise, a certificate or certificate representing shares of Common Stock issuable pursuant
to a Restricted Stock Unit or a Deferred Stock Unit shall be issued in the name of the Participant (or, in the case of uncertificated
shares, other written evidence of ownership in accordance with Applicable Law shall be provided) promptly after the Award (or
portion thereof) has vested and been earned and is distributable.
(e)
Deferred
Stock Units
: A Deferred Stock Unit represents the unfunded promise of the Company to deliver shares of Common Stock, cash
or a combination thereof, as applicable, if and to the extent that the Award has vested and is eligible for distribution (including,
by way of example only, distribution upon termination of employment or service or upon a specified date or dates, and taking into
account any Code Section 409A considerations), subject to compliance with the terms of the Plan and Award Agreement and any other
terms and conditions established by the Administrator. A Deferred Stock Unit shall be settled, if at all, (i) by the delivery
of one share of Common Stock for each Deferred Stock Unit, (ii) in cash in an amount equal to the Fair Market Value of one share
of Common Stock for each Deferred Stock Unit or (iii) in a combination of cash and shares equal to the Fair Market Value of one
share of Common Stock for each Deferred Stock Unit, as determined by the Administrator.
(a)
Grant
of Performance Awards
: Subject to the terms of the Plan, the Administrator may in its discretion grant Performance Awards
to such eligible Participants upon such terms and conditions and at such times as the Administrator shall determine. Performance
Awards may be in the form of Performance Shares and/or Performance Units. Subject to Section 5(b), the Administrator shall have
discretion to determine the number of Performance Units and/or Performance Shares granted to any Participant. Subject to the provisions
of Section 4(c) herein, the Administrator shall determine the nature, length and starting date of the period during which a Performance
Award may be earned (the “
Performance Period
”), and shall determine the conditions which must be met in order
for a Performance Award to be granted or to vest or be earned (in whole or in part), which conditions may include but are not
limited to payment of a stipulated purchase price, attainment of performance objectives, continued service or employment for a
certain period of time, a combination of such conditions or other conditions. Subject to Section 3(ii), the Administrator shall
determine the Performance Measures applicable to such Performance Awards.
(b)
Earning
of Performance Awards
: Subject to the terms of the Plan (and taking into account any Code Section 409A considerations), the
Administrator shall have sole authority to determine whether and to what degree Performance Awards have been earned and are payable
and to interpret the terms and conditions of Performance Awards.
(c)
Form
of Payment
: Payment of the amount to which a Participant shall be entitled upon earning a Performance Award shall be made
in cash, shares of Common Stock or a combination of cash and shares of Common Stock, as determined by the Administrator in its
sole discretion. Payment may be made in a lump sum or upon such terms as may be established by the Administrator (taking into
account any Code Section 409A considerations).
(d)
Termination
of Employment or Service; Forfeiture
: Unless the Administrator determines otherwise (taking into account any Code Section
409A considerations), if the employment or service of a Participant shall terminate for any reason (whether by the Company or
the Participant and whether voluntary or involuntary) and the Participant has not earned all or part of a Performance Award pursuant
to the terms of the Plan and related Award Agreement, such Award, to the extent not then earned, shall be forfeited immediately
upon such termination and the Participant shall have no further rights with respect thereto.
(a)
Grant
of Phantom Stock Awards
: Subject to the terms of the Plan (including but not limited to Section 4(c) herein), the Administrator
may in its discretion grant Phantom Stock Awards to such eligible Participants, in such numbers, upon such terms and at such times
as the Administrator shall determine. A Phantom Stock Award is an Award to a Participant of a number of hypothetical share units
with respect to shares of Common Stock, with a value based on the Fair Market Value of a share of Common Stock.
(b)
Vesting
of Phantom Stock Awards
: Subject to the terms of the Plan (and taking into account any Code Section 409A considerations),
the Administrator shall have sole authority to determine whether and to what degree Phantom Stock Awards have vested, been earned
and are payable and to interpret the terms and conditions of Phantom Stock Awards.
(c)
Termination
of Employment or Service; Forfeiture
: Unless the Administrator determines otherwise (taking into account any Code Section
409A considerations), if the employment or service of a Participant shall be terminated for any reason (whether by the Company
or the Participant and whether voluntary or involuntary) and all or any part of a Phantom Stock Award has not vested and become
payable pursuant to the terms of the Plan and related Award Agreement, such Award, to the extent not then vested and earned, shall
be forfeited immediately upon such termination and the Participant shall have no further rights with respect thereto.
(d)
Payment
of Phantom Stock Awards
: Upon vesting of all or a part of a Phantom Stock Award and satisfaction of such other terms and conditions
as may be established by the Administrator, the Participant shall be entitled to a payment of an amount equal to the Fair Market
Value of one share of Common Stock with respect to each such Phantom Stock unit which has vested, been earned
and is payable
. Payment may be made, in the discretion of the Administrator, in cash or in shares of Common Stock valued
at their Fair Market Value on the applicable vesting date or dates (or other date or dates determined by the Administrator), or
in a combination thereof. Payment may be made in a lump sum or upon such terms as may be established by the Administrator (taking
into account any Code Section 409A considerations).
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12.
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Other Stock-Based Awards
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The
Administrator shall have the authority to grant Other Stock-Based Awards to eligible Participants. Such Other Stock-Based Awards
may be valued in whole or in part by reference to, or otherwise based on or related to, shares of Common Stock or Awards for shares
of Common Stock, including but not limited to Other Stock-Based Awards granted in lieu of bonus, salary or other compensation,
Other Stock-Based Awards granted with vesting or performance conditions and/or Other Stock-Based Awards granted without being
subject to vesting or performance conditions (subject to the terms of Section 4(c) herein). Subject to the provisions of the Plan,
the Administrator shall determine the number of shares of Common Stock to be awarded to a Participant under (or otherwise related
to) such Other Stock-Based Awards; whether such Other Stock-Based Awards shall be settled in cash, shares of Common Stock, other
securities or any other form of property as the Administrator may determine, or a combination of such forms of consideration;
and the other terms and conditions of such Awards.
The
Administrator may, in its discretion, grant Cash Bonus Awards under the Plan to eligible Participants. Cash Bonus Awards shall
be subject to performance conditions as described in Section 3(ii) above and, to the extent such Cash Bonus Awards are granted
to Covered Employees and intended to qualify as “performance-based compensation” under Code Section 162(m), shall
be subject to the requirements of Code Section 162(m), if and to the extent applicable, including without limitation, the establishment
of Performance Measures and certification of performance by the Administrator as provided in Section 3(ii) and Section 21(c).
The Administrator also shall have authority to modify, reduce or eliminate any Cash Bonus Award. In addition, if and to the extent
required under Code Section 162(m), the aggregate amount of compensation granted to any one Participant in any 12-month period
in respect of all Cash Bonus Awards granted under the Plan and payable only in cash (and exclusive of Restricted Stock Unit Awards,
Phantom Stock Awards, SARs or other equity-based Awards settled in cash, which are subject to the Award limitations stated in
Section 5(b) herein) shall not exceed
$1,000,000
.
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14.
|
Dividends and Dividend Equivalent
Rights
|
The
Administrator may, in its sole discretion, provide that Awards other than Options and SARs may earn dividends or dividend equivalent
rights (or “
dividend equivalents
”); provided, however, that dividends and dividend equivalents, if any, on
unearned or unvested performance-based Awards shall not be paid (even if accrued) unless and until the underlying Award (or portion
thereof) has vested and/or been earned. Such dividends or dividend equivalents may be paid currently or may be credited to a Participant’s
account. Any crediting of dividends or dividend equivalents may be subject to such additional restrictions and conditions as the
Administrator may establish, including reinvestment in additional shares of Common Stock or share equivalents. Notwithstanding
the other provisions herein, any dividends or dividend equivalents related to an Award shall be structured in a manner so as to
avoid causing the Award and related dividends or dividend equivalents to be subject to Code Section 409A or shall otherwise be
structured so that the Award and dividends or dividend equivalents are in compliance with Code Section 409A.
Notwithstanding
any other provision in the Plan to the contrary, the following provisions shall apply in the event of a Change of Control (except
to the extent, if any, otherwise required under Code Section 409A):
(a) To
the extent that the successor or surviving company in the Change of Control event does not assume or substitute for an Award (or
in which the Company is the ultimate parent corporation and does not continue the Award) on substantially similar terms or with
substantially equivalent economic benefits (as determined by the Administrator prior to the Change of Control) as Awards outstanding
under the Plan immediately prior to the Change of Control event, (i) all outstanding Options and SARs shall become fully vested
and exercisable, whether or not then otherwise vested and exercisable; and (ii) any restrictions, including but not limited to
the Restriction Period, Performance Period and/or performance factors or criteria applicable to any outstanding Awards other than
Options or SARs shall be deemed to have been met, and such Awards shall become fully vested, earned and payable to the fullest
extent of the original grant of the applicable Award (or, in the case of performance-based Awards the earning of which is based
on attaining a target level of performance, such Awards shall be deemed earned at the greater of actual performance or target
performance).
(b) Further,
in the event that an Award is substituted, assumed or continued as provided in Section 15(a) herein, the Award will nonetheless
become vested (and, in the case of Options and SARs, exercisable) in full and any restrictions, including but not limited to the
Restriction Period, Performance Period and/or performance factors or criteria applicable to any outstanding Award shall be deemed
to have been met, and such Awards shall become fully vested, earned and payable to the fullest extent of the original award (or,
in the case of performance-based Awards the earning of which is based on attaining a target level of performance, such Awards
shall be deemed earned at the greater of actual performance or target performance), if the employment or service of the Participant
is terminated within two years after the effective date of a Change of Control if such termination of employment or service (i)
is by the Company not for Cause or (ii) is by the Participant for Good Reason. For clarification, for the purposes of this Section
15, the “Company” shall include any successor to the Company.
(c) Notwithstanding
any other provision of the Plan to the contrary, in the event that a Participant has entered into an employment agreement, consulting
agreement or other similar agreement, plan or policy as of the Effective Date of the Plan, the Participant shall be entitled to
the greater of the benefits provided upon a change of control of the Company under the Plan or the respective employment agreement
or other arrangement as in effect on the Plan Effective Date, and such agreement or arrangement shall not be construed to reduce
in any way the benefits otherwise provided to a Participant upon a Change of Control as defined in the Plan.
|
16.
|
Nontransferability of Awards
|
Incentive
Options shall not be transferable (including by sale, assignment, pledge or hypothecation) other than transfers by will or the
laws of intestate succession or, in the Administrator’s discretion, such transfers as may otherwise be permitted in accordance
with Treasury Regulation Section 1.421-1(b)(2) or Treasury Regulation Section 1.421-2(c). Awards other than Incentive Options
shall not be transferable (including by sale, assignment, pledge or hypothecation) other than by will or the laws of intestate
succession, except for transfers if and to the extent permitted by the Administrator in a manner consistent with the registration
provisions of the Securities Act. Except as may be permitted by the preceding, an Option or SAR shall be exercisable during the
Participant’s lifetime only by him or her or by his or her guardian or legal representative. The designation of a beneficiary
in accordance with the Plan does not constitute a transfer.
The
Company shall withhold all required local, state, federal, foreign and other taxes and any other amount required to be withheld
by any governmental authority or law from any amount payable in cash with respect to an Award. Prior to the delivery or transfer
of any certificate for shares or any other benefit conferred under the Plan, the Company shall require any Participant or other
person to pay to the Company in cash the amount of any tax or other amount required by any governmental authority to be withheld
and paid over by the Company to such authority for the account of such recipient. Notwithstanding the foregoing, the Administrator
may in its discretion establish procedures to require or permit a recipient to satisfy such obligations in whole or in part, and
any local, state, federal, foreign or other income tax obligations relating to such an Award, by delivery to the Company of shares
of Common Stock held by the Participant (which are fully vested and not subject to any pledge or other security interest) and/or
by the Company withholding shares of Common Stock from the shares to which the recipient is otherwise entitled. The number of
shares to be withheld or delivered shall have a Fair Market Value as of the date that the amount of tax to be withheld is determined
as nearly equal as possible to, but not exceeding (unless otherwise permitted by the Administrator in a manner in accordance with
Applicable Law and applicable accounting principles), the amount of such obligations being satisfied. Such withholding obligations
shall be subject to such terms and procedures as may be established by the Administrator. The Participant shall remain responsible
at all times for paying any federal, state, foreign and/or local income or employment tax due with respect to any Award, and the
Company shall not be liable for any interest or penalty that a Participant incurs by failing to make timely payments of tax or
otherwise.
|
18.
|
Amendment and Termination of
the Plan and Awards
|
(a)
Amendment
and Termination of Plan; Prohibition on Repricing
: The Plan may be amended, altered, suspended and/or terminated at any time
by the Board; provided, that (i) approval of an amendment to the Plan by the stockholders of the Company shall be required to
the extent, if any, that stockholder approval of such amendment is required by Applicable Law; and (ii) except for adjustments
made pursuant to Section 5(d), the Company may not, without obtaining stockholder approval, (A) amend the terms of outstanding
Options or SARs to reduce the Exercise Price of such outstanding Options or SARs; (B) exchange outstanding Options or SARs for
cash, for Options or SARs with an Exercise Price that is less than the Exercise Price of the original Option or SAR, or for other
equity awards at a time when the original Option or SAR has an Exercise Price above the Fair Market Value of the Common Stock;
or (C) take other action with respect to Options or SARs that would be treated as a repricing under the rules of the principal
stock exchange on which shares of the Common Stock are listed.
(b)
Amendment
and Termination of Awards
: The Administrator may (subject to Section 18(a)(ii) herein) amend, alter, suspend and/or terminate
any Award granted under the Plan, prospectively or retroactively, but (except as otherwise provided in Section 18(c)) such amendment,
alteration, suspension or termination of an Award shall not, without the written consent of a Participant with respect to an outstanding
Award, materially adversely affect the rights of the Participant with respect to the Award.
(c)
Amendments
to Comply with Applicable Law
: Notwithstanding Section 18(a) and Section 18(b) herein, the following provisions shall apply:
(i)
The
Administrator shall have unilateral authority to amend the Plan and any Award (without Participant consent) to the extent necessary
to comply with Applicable Law or changes to Applicable Law (including but in no way limited to Code Section 409A, Code Section
422 and federal securities laws).
(ii)
The
Administrator shall have unilateral authority to make adjustments to the terms and conditions of Awards in recognition of unusual
or nonrecurring events affecting the Company or any Affiliate, or the financial statements of the Company or any Affiliate, or
of changes in Applicable Law, or accounting principles, if the Administrator determines that such adjustments are appropriate
in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan
or necessary or appropriate to comply with applicable accounting principles or Applicable Law
.
|
19.
|
Restrictions on Awards and Shares;
Compliance with Applicable Law
|
(a)
General
.
As a condition to the issuance and delivery of Common Stock hereunder, or the grant of any benefit pursuant to the Plan, the Company
may require a Participant or other person at any time and from time to time to become a party to an Award Agreement, other agreement(s)
restricting the transfer, purchase, repurchase and/or voting of shares of Common Stock of the Company, and any employment, consulting,
non-competition, confidentiality, non-solicitation, non-disparagement or other agreements or provisions imposing such restrictions
as may be required by the Company. In addition, without in any way limiting the effect of the foregoing, each Participant or other
holder of shares issued under the Plan shall be permitted to transfer such shares only if such transfer is in accordance with
the Plan, the Award Agreement, any other applicable agreements and Applicable Law. The acquisition of shares of Common Stock under
the Plan by a Participant or any other holder of shares shall be subject to, and conditioned upon, the agreement of the Participant
or other holder of such shares to the restrictions described in the Plan, the applicable Award Agreement, any other applicable
agreements and Applicable Law.
(b)
Compliance
with Applicable Laws, Rules and Regulations
. The Company may impose such restrictions on Awards, shares of Common Stock and
any other benefits underlying Awards hereunder as it may deem advisable, including without limitation restrictions under the federal
securities laws, the requirements of any stock exchange or similar organization and any blue sky, state or foreign securities
or other laws applicable to such securities. Notwithstanding any other Plan provision to the contrary, the Company shall not be
obligated to issue, deliver or transfer shares of Common Stock under the Plan, make any other distribution of benefits under the
Plan, or take any other action, unless such delivery, distribution or action is in compliance with Applicable Law (including but
not limited to the requirements of the Securities Act). The Company will be under no obligation to register shares of Common Stock
or other securities with the Securities and Exchange Commission or to effect compliance with the exemption, registration, qualification
or listing requirements of any state securities laws, stock exchange or similar organization, and the Company will have no liability
for any inability or failure to do so. The Company may cause a restrictive legend or legends to be placed on any certificate issued
pursuant to an Award hereunder in such form as may be prescribed from time to time by Applicable Law or as may be advised by legal
counsel.
|
20.
|
No Right or Obligation of Continued
Employment or Service or to Awards; Compliance with the Plan
|
Neither
the Plan, an Award, an Award Agreement nor any other action related to the Plan shall confer upon a Participant any right to continue
in the employ or service of the Company or an Affiliate as an Employee, Director or Consultant, or interfere in any way with the
right of the Company or an Affiliate to terminate the Participant’s employment or service at any time. Except as otherwise
provided in the Plan, an Award Agreement or as may be determined by the Administrator, all rights of a Participant with respect
to an Award shall terminate upon the termination of the Participant’s employment or service. In addition, no person shall
have any right to be granted an Award, and the Company shall have no obligation to treat Participants or Awards uniformly. By
participating in the Plan, each Participant shall be deemed to have accepted all of the conditions of the Plan and the terms and
conditions of any rules and regulations adopted by the Administrator and shall be fully bound thereby. Any Award granted hereunder
is not intended to be compensation of a continuing or recurring nature, or part of a Participant’s normal or expected compensation,
and in no way represents any portion of a Participant’s salary, compensation or other remuneration for purposes of pension
benefits, severance, redundancy, resignation or any other purpose.
(a)
Stockholder
Rights
: Except as otherwise determined by the Administrator or provided in the Plan, a Participant and his or her legal representative,
legatees or distributees shall not be deemed to be the holder of any shares of Common Stock subject to an Award and shall not
have any rights of a stockholder unless and until certificates for such shares have been issued and delivered to him or her or
them under the Plan. A certificate or certificates for shares of Common Stock acquired upon exercise of an Option or SAR shall
be issued in the name of the Participant or his or her beneficiary and distributed to the Participant or his or her beneficiary
(or, in the case of uncertificated shares, other written notice of ownership in accordance with Applicable Law shall be provided)
as soon as practicable following receipt of notice of exercise and, with respect to Options, payment of the Exercise Price (except
as may otherwise be determined by the Company in the event of payment of the Exercise Price pursuant to Section 7(d)(ii)(C)).
Except as otherwise provided in Section 9(d) regarding Restricted Stock Awards or otherwise determined by the Administrator, a
certificate for any shares of Common Stock issuable pursuant to a Restricted Award, Performance Award, Phantom Stock Award or
Other Stock-Based Award shall be issued in the name of the Participant or his or her beneficiary and distributed to the Participant
or his or her beneficiary (or, in the case of uncertificated shares, other written notice of ownership in accordance with Applicable
Law shall be provided) after the Award (or portion thereof) has vested and been earned and is distributable.
(b)
Section
16(b) Compliance
: To the extent that any Participants in the Plan are subject to Section 16(b) of the Exchange Act, it is
the general intention of the Company that transactions under the Plan shall comply with Rule 16b-3 under the Exchange Act and
that the Plan shall be construed in favor of such Plan transactions meeting the requirements of Rule 16b-3. Notwithstanding anything
in the Plan to the contrary, the Administrator, in its sole and absolute discretion, may bifurcate the Plan so as to restrict,
limit or condition the use of any provision of the Plan to Participants who are officers or directors subject to Section 16 of
the Exchange Act without so restricting, limiting or conditioning the Plan with respect to other Participants.
(c)
Code
Section 162(m) Performance-Based Compensation
. To the extent to which Code Section 162(m) is applicable, the Company intends
that compensation payable under the Plan to Covered Employees may, to the extent practicable, constitute “qualified performance-based
compensation” within the meaning of Code Section 162(m), unless otherwise determined by the Administrator. Accordingly,
Awards granted to Covered Employees which are intended to qualify for the performance-based exception under Code Section 162(m)
shall be deemed to include any such additional terms, conditions, limitations and provisions as are necessary to comply with the
performance-based compensation exemption of Code Section 162(m), unless the Administrator, in its discretion, determines otherwise.
To the extent that Code Section 162(m) is applicable, the Administrator shall, within the time periods and in the manner prescribed
by Code Section 162(m), select eligible Participants and define in an objective fashion the manner of calculating the Performance
Measures it selects to use for Covered Employees during any specific performance period.
(d)
Unfunded
Plan; No Effect on Other Plans
:
(i)
The
Plan shall be unfunded, and the Company shall not be required to create a trust or segregate any assets that may at any time be
represented by Awards under the Plan. The Plan shall not establish any fiduciary relationship between the Company and any Participant
or other person. Neither a Participant nor any other person shall, by reason of the Plan, acquire any right in or title to any
assets, funds or property of the Company or any Affiliate, including, without limitation, any specific funds, assets or other
property which the Company or any Affiliate, in their discretion, may set aside in anticipation of a liability under the Plan.
A Participant shall have only a contractual right to shares of Common Stock or other amounts, if any, payable under the Plan,
unsecured by any assets of the Company or any Affiliate. Nothing contained in the Plan shall constitute a guarantee that the assets
of such entities shall be sufficient to pay any benefits to any person.
(ii)
The
amount of any compensation deemed to be received by a Participant pursuant to an Award shall not constitute compensation with
respect to which any other employee benefits of such Participant are determined, including, without limitation, benefits under
any bonus, pension, profit sharing, life insurance or salary continuation plan, except as otherwise specifically provided by the
terms of such plan or as may be determined by the Administrator.
(iii)
Except
as otherwise provided in the Plan, the adoption of the Plan shall not affect any other stock incentive or other compensation plans
in effect for the Company or any Affiliate, nor shall the Plan preclude the Company from establishing any other forms of stock
incentive or other compensation for employees or service providers of the Company or any Affiliate.
(e)
Governing
Law
: The Plan and Awards shall be governed by and construed in accordance with the laws of the State of Delaware, without
regard to the conflict of laws provisions of any state, and in accordance with applicable federal laws of the United States.
(f)
Beneficiary
Designation
: The Administrator may, in its discretion, permit a Participant to designate in writing a person or persons as
beneficiary, which beneficiary shall be entitled to receive settlement of Awards (if any) to which the Participant is otherwise
entitled in the event of death. In the absence of such designation by a Participant, and in the event of the Participant’s
death, the estate of the Participant shall be treated as beneficiary for purposes of the Plan, unless the Administrator determines
otherwise. The Administrator shall have discretion to approve and interpret the form or forms of such beneficiary designation.
A beneficiary, legal guardian, legal representative or other person claiming any rights pursuant to the Plan is subject to all
terms and conditions of the Plan and any Award Agreement applicable to the Participant, except to the extent that the Plan and/or
Award Agreement provide otherwise, and to any additional restrictions deemed necessary or appropriate by the Administrator.
(g)
Gender
and Number
: Except where otherwise indicated by the context, words in any gender shall include any other gender, words in
the singular shall include the plural and words in the plural shall include the singular.
(h)
Severability
:
If any provision of the Plan or an Award Agreement shall be held illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining parts of the Plan or the Award Agreement (which shall be construed or deemed amended to conform
to Applicable Law), and the Plan or Award Agreement shall be construed and enforced as if the illegal or invalid provision had
not been included.
(i)
Rules
of Construction
: Headings are given to the sections of the Plan solely as a convenience to facilitate reference. The reference
to any statute, regulation or other provision of law shall (unless the Administrator determines otherwise) be construed to refer
to any amendment to or successor of such provision of law.
(j)
Successors
and Assigns
: The Plan shall be binding upon the Company, its successors and assigns, and Participants, their executors, administrators
and permitted transferees and beneficiaries.
(k)
Award
Agreement:
The grant of any Award under the Plan shall be evidenced by an Award Agreement between the Company and the Participant.
Such Award Agreement may state terms, conditions and restrictions applicable to the Award and may state such other terms, conditions
and restrictions, including but not limited to terms, conditions and restrictions applicable to shares of Common Stock or other
benefits subject to an Award, as may be established by the Administrator.
(l)
Right
of Offset:
Notwithstanding any other provision of the Plan or an Award Agreement, the Company may at any time (subject to
any Code Section 409A considerations) reduce the amount of any payment or benefit otherwise payable to or on behalf of a Participant
by the amount of any obligation of the Participant to or on behalf of the Company or an Affiliate that is or becomes due and payable.
(m)
Uncertificated
Shares
: Notwithstanding anything in the Plan to the contrary, to the extent the Plan provides for the issuance of stock certificates
to reflect the issuance of shares of Common Stock, the issuance may, in the Company’s discretion, be effected on a non-certificated
basis, to the extent not prohibited by the Company’s certificate of incorporation or bylaws or by Applicable Law.
(n)
Income
and Other Taxes:
Participants are solely responsible and liable for the satisfaction of all taxes and penalties that may arise
in connection with Awards (including but not limited to any taxes arising under Code Section 409A), and the Company shall not
have any obligation to indemnify or otherwise hold any Participant harmless from any or all of such taxes. The Company shall have
no responsibility to take or refrain from taking any actions in order to achieve a certain tax result for a Participant or any
other person.
(o)
Effect
of Certain Changes in Status:
Notwithstanding the other terms of the Plan or an Award Agreement, the Administrator has sole
discretion to determine (taking into account any Code Section 409A considerations), at the time of grant of an Award or at any
time thereafter, the effect, if any, on Awards (including but not limited to modifying the vesting, exercisability and/or earning
of Awards) granted to a Participant if the Participant’s status as an Employee, Director or Consultant changes, including
but not limited to a change from full-time to part-time, or vice versa, or if other similar changes in the nature or scope of
the Participant’s employment or service occur.
(p)
Stockholder
Approval:
The Plan is subject to approval by the stockholders of the Company, which approval must occur, if at all, within
12 months of the Effective Date. Awards granted prior to such stockholder approval shall be conditioned upon and shall be effective
only upon approval of the Plan by such stockholders on or before such date.
(q)
Deferrals:
Subject to the provisions of this Section 21(q) and Section 22, the Administrator may permit or require a Participant to defer
such Participant’s receipt of the payment of cash or the delivery of shares of Common Stock that would otherwise be payable
with respect to an Award. Any such deferral shall be subject to such terms and conditions as may be established by the Administrator
and to any applicable Code Section 409A requirements.
(r)
Fractional
Shares:
Except as otherwise provided in an Award Agreement or determined by the Administrator, (i) the total number of shares
issuable pursuant to the exercise, vesting or earning of an Award shall be rounded down to the nearest whole share, and (ii) no
fractional shares shall be issued. The Administrator may, in its discretion, determine that a fractional share shall be settled
in cash.
(s)
Compliance
with Recoupment, Ownership and Other Policies or Agreements:
Notwithstanding anything in the Plan or an Award Agreement to
the contrary, the Administrator may, at any time (during or following termination of employment or service for any reason), determine
that a Participant’s rights, payments and/or benefits with respect to an Award (including but not limited to any shares
issued or issuable and/or cash paid or payable with respect to an Award) shall be subject to reduction, cancellation, forfeiture
or recoupment upon the occurrence of certain specified events, in addition to any other conditions applicable to an Award. Such
events may include, but shall not be limited to, termination of employment for Cause, violation of policies of the Company or
an Affiliate, breach of non-solicitation, non-competition, confidentiality, non-disparagement or other covenants, other conduct
by the Participant that is determined by the Administrator to be detrimental to the business or reputation of the Company or any
Affiliate, and/or other circumstances where such reduction, cancellation, forfeiture or recoupment is required by Applicable Law.
In addition, without limiting the effect of the foregoing, as a condition to the grant of an Award or receipt or retention of
shares of Common Stock, cash or any other benefit under the Plan, (i) the Administrator may, at any time, require that a Participant
comply with any compensation recovery (or “
clawback
”), stock ownership, stock retention or other policies or
guidelines adopted by the Company or an Affiliate, each as in effect from time to time and to the extent applicable to the Participant,
and (ii) each Participant shall be subject to such compensation recovery, recoupment, forfeiture or other similar provisions as
may apply under Applicable Law.
(t)
Attestation:
Wherever in the Plan or any Award Agreement a Participant is permitted to pay the Exercise Price of an Award or taxes relating
to the exercise, vesting or earning of an Award by delivering shares of Common Stock, the Participant may, unless the Administrator
determines otherwise and subject to procedures satisfactory to the Administrator, satisfy such delivery requirement by presenting
proof of beneficial ownership of such shares, in which case the Company shall treat the Award as exercised, vested or earned without
further payment and/or shall withhold such number of shares from the shares acquired by the exercise, vesting or earning of the
Award, as appropriate.
(u)
Plan
Controls:
Unless the Administrator determines otherwise, (i) in the event of a conflict between any term or provision contained
in the Plan and an express term contained in any Award Agreement, the applicable terms and provisions of the Plan will govern
and prevail, and (ii) the terms of an Award Agreement shall not be deemed to be in conflict or inconsistent with the Plan merely
because they impose greater or additional restrictions, obligations or duties, or if the Award Agreement provides that such Award
Agreement terms apply notwithstanding the provisions to the contrary in the Plan.
(v)
Indemnification
:
No member of the Board or Committee or its or their designees or agents, as applicable, shall be liable while acting as Administrator
for any action or determination made in good faith with respect to the Plan, an Award or an Award Agreement. Members of the Board
and the Committee and officers and employees of the Company or an Affiliate to whom authority to act for the Board or the Committee
is delegated shall be entitled to such indemnification and other rights as may be provided under the Company’s certificate
of incorporation, bylaws and/or other instrument and/or pursuant to Applicable Law.
|
22.
|
Compliance with Code Section
409A
|
Notwithstanding
any other provision in the Plan or an Award Agreement to the contrary, if and to the extent that Code Section 409A is deemed to
apply to the Plan or any Award, it is the general intention of the Company that the Plan and all such Awards shall, to the extent
practicable, comply with, or be exempt from, Code Section 409A, and the Plan and any such Award Agreement shall, to the extent
practicable, be construed in accordance therewith. Deferrals of shares or any other benefit issuable pursuant to an Award otherwise
exempt from Code Section 409A in a manner that would cause Code Section 409A to apply shall not be permitted unless such deferrals
are in compliance with, or exempt from, Code Section 409A. In the event that the Company (or a successor thereto) has any stock
which is publicly traded on an established securities market or otherwise, distributions that are subject to Code Section 409A
to any Participant who is a “specified employee” (as defined under Code Section 409A) upon a “separation from
service” (as defined in Code Section 409A) may only be made following the expiration of the six-month period after the date
of separation from service (with such distributions to be made during the seventh month following separation from service), or,
if earlier than the end of the six-month period, the date of death of the specified employee, or as otherwise permitted under
Code Section 409A. For purposes of Code Section 409A, each installment payment provided under the Plan or an Award Agreement shall
be treated as a separate payment. Without in any way limiting the effect of any of the foregoing, (i) in the event that Code Section
409A requires that any special terms, provisions or conditions be included in the Plan or any Award Agreement, then such terms,
provisions and conditions shall, to the extent practicable, be deemed to be made a part of the Plan or Award Agreement, as applicable,
and (ii) terms used in the Plan or an Award Agreement shall be construed in accordance with Code Section 409A if and to the extent
required. Further, in the event that the Plan or any Award shall be deemed not to comply with Code Section 409A, then neither
the Company, the Administrator nor its or their designees or agents shall be liable to any Participant or other person for actions,
decisions or determinations made in good faith.
Appendix
B
PLAN OF CONVERSION
OF
AKOUSTIS TECHNOLOGIES, INC., A NEVADA CORPORATION
INTO
AKOUSTIS TECHNOLOGIES, INC., A DELAWARE CORPORATION
THIS
PLAN OF CONVERSION, dated as of , 2016 (including all of the Exhibits attached hereto, this “
Plan
”), is hereby
adopted by Akoustis Technologies, Inc., a Nevada corporation, in order to set forth the terms, conditions and procedures governing
the conversion of Akoustis Technologies, Inc. from a Nevada corporation to a Delaware corporation pursuant to Section 265 of the
General Corporation Law of the State of Delaware, as amended (the “
DGCL
”), and Section 92A.120 and 92A.250
of the Nevada Revised Statutes, as amended (the “
NRS
”).
RECITALS
WHEREAS,
Akoustis Technologies, Inc. is a corporation organized and existing under the laws of the State of Nevada (the “
Converting
Entity
”);
WHEREAS,
the Board of Directors of the Converting Entity has determined that it would be advisable and in the best interests of the Converting
Entity and its stockholders for the Converting Entity to convert from a Nevada corporation to a Delaware corporation pursuant
to Section 265 of the DGCL and Sections 92A.120 and 92A.250 of the NRS;
WHEREAS,
the form, terms and provisions of this Plan have been authorized, approved and adopted by the Board of Directors of the Converting
Entity;
WHEREAS,
the Board of Directors of the Converting Entity has submitted this Plan to the stockholders of the Converting Entity for approval;
and
WHEREAS,
this Plan has been authorized, approved and adopted by the holders of a majority of the voting power of the stockholders of the
Converting Entity.
NOW,
THEREFORE, the Converting Entity hereby adopts this Plan as follows:
PLAN OF CONVERSION
|
1.
|
Conversion; Effect of Conversion
.
|
|
(a)
|
Upon the Effective Time
(as defined in Section 3 below), the Converting Entity shall be converted from a Nevada corporation to a Delaware corporation
pursuant to Section 265 of the DGCL and Sections 92A.120 and 92A.250 of the NRS (the “
Conversion
”) and the
Converting Entity, as converted to a Delaware corporation (the “
Converted Entity
”), shall thereafter be subject
to all of the provisions of the DGCL, except that notwithstanding Section 106 of the DGCL, the existence of the Converted Entity
shall be deemed to have commenced on the date the Converting Entity commenced its existence in the State of Nevada.
|
|
(b)
|
Upon the Effective Time,
by virtue of the Conversion and without any further action on the part of the Converting Entity or its stockholders, the Converted
Entity shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the Converting Entity
existing immediately prior to the Effective Time. Upon the Effective Time, by virtue of the Conversion and without any further
action on the part of the Converting Entity or its stockholders, for all purposes of the laws of the State of Delaware, all of
the rights, privileges and powers of the Converting Entity existing immediately prior to the Effective Time, and all property,
real, personal and mixed, and all debts due to the Converting Entity existing immediately prior to the Effective Time, as well
as all other things and causes of action belonging to the Converting Entity existing immediately prior to the Effective Time,
shall remain vested in the Converted Entity and shall be the property of the Converted Entity and the title to any real property
vested by deed or otherwise in the Converting Entity existing immediately prior to the Effective Time shall not revert or be in
any way impaired by reason of the Conversion; but all rights of creditors and all liens upon any property of the Converting Entity
existing immediately prior to the Effective Time shall be preserved unimpaired, and all debts, liabilities and duties of the Converting
Entity existing immediately prior to the Effective Time shall remain attached to the Converted Entity upon the Effective Time,
and may be enforced against the Converted Entity to the same extent as if said debts, liabilities and duties had originally been
incurred or contracted by the Converted Entity in its capacity as a corporation of the State of Delaware. The rights, privileges,
powers and interests in property of the Converting Entity existing immediately prior to the Effective Time, as well as the debts,
liabilities and duties of the Converting Entity existing immediately prior to the Effective Time, shall not be deemed, as a consequence
of the Conversion, to have been transferred to the Converted Entity upon the Effective Time for any purpose of the laws of the
State of Delaware.
|
|
(c)
|
The Conversion shall not
be deemed to affect any obligations or liabilities of the Converting Entity incurred prior to the Conversion or the personal liability
of any person incurred prior to the Conversion.
|
|
(d)
|
Upon the Effective Time,
the name of the Converted Entity shall remain unchanged and continue to be “Akoustis Technologies, Inc.”
|
|
(e)
|
The Converting Entity intends
for the Conversion to constitute a tax-free reorganization qualifying under Section 368(a) of the Internal Revenue Code of 1986,
as amended. This Plan is adopted as a “plan of reorganization” within the meaning of Treasury Regulations Sections
1.368-1(c) and 1.368-2(g).
|
|
2.
|
Filings
. As
promptly as practicable following the adoption of this Plan by the Board of Directors and the stockholders of the Converting Entity,
the Converting Entity shall cause the Conversion to be effective by:
|
|
(a)
|
executing and filing (or
causing the execution and filing of) Articles of Conversion, substantially in the form of
Exhibit A
hereto (the “
Nevada
Articles of Conversion
”), with the Secretary of State of the State of Nevada pursuant to Section 92A.205 of the NRS;
|
|
(b)
|
executing and filing (or
causing the execution and filing of) a Certificate of Conversion, substantially in the form of
Exhibit B
hereto (the “
Delaware
Certificate of Conversion
”), with the Secretary of State of the State of Delaware pursuant to Sections 103 and 265 of
the DGCL; and
|
|
(c)
|
executing and filing (or
causing the execution and filing of) a Certificate of Incorporation of the Converted Entity, substantially in the form of
Exhibit
C
hereto (the “
Delaware Certificate of Incorporation
”), with the Secretary of State of the State of Delaware
pursuant to Sections 103 and 265 of the DGCL.
|
|
3.
|
Effective Time
. The
Conversion shall become effective either (a) upon the last to occur of the filing of the Nevada Articles of Conversion, the Delaware
Certificate of Conversion and the Delaware Certificate of Incorporation or (b) upon such later date and time as specified in such
documents, which date must not be more than 90 days after the date on which the Nevada Articles of Conversion are filed (the time
of the effectiveness of the Conversion, the “
Effective Time
”).
|
|
4.
|
Effect of Conversion
.
|
|
(a)
|
Effect on Common Stock
. Upon
the Effective Time, by virtue of the Conversion and without any further action on the part of the Converting Entity or its stockholders,
each share of Common Stock, $0.001 par value per share, of the Converting Entity (“
Converting Entity Common Stock
”)
that is issued and outstanding immediately prior to the Effective Time shall convert into one issued and outstanding share of
Common Stock, $0.001 par value per share, of the Converted Entity (“
Converted Entity Common Stock
”).
|
|
(b)
|
Effect on Preferred
Stock
. Upon the Effective Time, by virtue of the Conversion and without any further action on the part of the Converting
Entity or its stockholders, each share of Preferred Stock, $0.001 par value per share, of the Converting Entity (“
Converting
Entity Preferred Stock
”) that is issued and outstanding immediately prior to the Effective Time (if any) shall convert
into one issued and outstanding share of Preferred Stock, $0.001 par value per share, of the Converted Entity Preferred Stock.
|
|
(c)
|
Effect on Outstanding
Stock Options
. Upon the Effective Time, by virtue of the Conversion and without any further action on the part
of the Converting Entity or its stockholders, each option to acquire shares of Converting Entity Common Stock outstanding immediately
prior to the Effective Time shall convert into an equivalent option to acquire, upon the same terms and conditions (including
the vesting schedule and exercise price per share applicable to each such option) as were in effect immediately prior to the Effective
Time, the same number of shares of Converted Entity Common Stock.
|
|
(d)
|
Effect on Outstanding
Warrants or Other Rights
. Upon the Effective Time, by virtue of the Conversion and without any further action on
the part of the Converting Entity or its stockholders, each warrant or other right to acquire shares of Converting Entity Common
Stock outstanding immediately prior to the Effective Time shall convert into an equivalent warrant or other right to acquire,
upon the same terms and conditions (including the vesting schedule and exercise price per share applicable to each such warrant
or other right) as were in effect immediately prior to the Effective Time, the same number of shares of Converted Entity Common
Stock.
|
|
(e)
|
Effect on Stock Certificates
. All
of the outstanding certificates representing shares of Converting Entity Common Stock immediately prior to the Effective Time
shall be deemed for all purposes to continue to evidence ownership of and to represent the same number of shares of Converted
Entity Common Stock.
|
|
(f)
|
Effect on Employee Benefit,
Equity Incentive or Other Similar Plans
. Upon the Effective Time, by virtue of the Conversion and without any further
action on the part of the Converting Entity or its stockholders, each employee benefit plan, equity incentive plan or other similar
plan to which the Converting Entity is a party shall continue to be a plan of the Converted Entity. To the extent that any such
plan provides for the issuance of Converting Entity Common Stock, upon the Effective Time, such plan shall be deemed to provide
for the issuance of Converted Entity Common Stock.
|
|
(g)
|
Effect of Conversion
on Directors and Officers
. Upon the Effective Time, by virtue of the Conversion and without any further action
on the part of the Converting Entity or its stockholders, the members of the Board of Directors and the officers of the Converting
Entity holding their respective offices in the Converting Entity existing immediately prior to the Effective Time shall continue
in their respective offices as members of the Board of Directors and officers, respectively, of the Converted Entity.
|
|
5.
|
Further Assurances
. If,
at any time after the Effective Time, the Converted Entity shall determine or be advised that any deeds, bills of sale, assignments,
agreements, documents or assurances or any other acts or things are necessary, desirable or proper, consistent with the terms
of this Plan, (a) to vest, perfect or confirm, of record or otherwise, in the Converted Entity its right, title or interest in,
to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties or assets of the Converting Entity
existing immediately prior to the Effective Time, or (b) to otherwise carry out the purposes of this Plan, the Converted Entity
and its officers and directors (or their designees), are hereby authorized to solicit in the name of the Converted Entity any
third-party consents or other documents required to be delivered by any third party, to execute and deliver, in the name and on
behalf of the Converted Entity, all such deeds, bills of sale, assignments, agreements, documents and assurances and do, in the
name and on behalf of the Converted Entity, all such other acts and things necessary, desirable or proper to vest, perfect or
confirm its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises,
properties or assets of the Converting Entity existing immediately prior to the Effective Time and otherwise to carry out the
purposes of this Plan.
|
|
6.
|
Delaware Bylaws
. As
promptly as practicable following the Effective Time, the Board of Directors of the Converted Entity shall adopt bylaws of the
Converted Entity, substantially in the form of
Exhibit D
hereto.
|
|
7.
|
Copy of Plan of Conversion
. After
the Conversion, a copy of this Plan will be kept on file at the offices of the Converted Entity, and any stockholder of the Converted
Entity (or former stockholder of the Converting Entity) may request a copy of this Plan at no charge at any time.
|
|
8.
|
Amendment
. This Plan
may be amended or modified by the Board of Directors of the Converting Entity at any time prior to the Effective Time, provided
that such action would be in the best interests of the Converting Entity and its stockholders, and provided further that, if stockholder
approval has already been obtained, such amendment complies with Section 92A.120 of the NRS.
|
|
9.
|
Termination
. At
any time prior to the Effective Time, this Plan may be terminated and the transactions contemplated hereby may be abandoned by
action of the Board of Directors of the Converting Entity if, in the opinion of the Board of Directors of the Converting Entity,
such action would be in the best interests of the Converting Entity and its stockholders. In the event of termination of this
Plan, this Plan shall become void and of no further force or effect.
|
|
10.
|
Third-Party Beneficiaries
. This
Plan shall not confer any rights or remedies upon any person other than as expressly provided herein.
|
|
11.
|
Severability
. Whenever
possible, each provision of this Plan will be interpreted in such manner as to be effective and valid under applicable law, but
if any provision of this Plan is held to be prohibited by or invalid under applicable law, such provision will be ineffective
only to the extent of such prohibition or invalidity, without invalidating the remainder of this Plan.
|
IN WITNESS
WHEREOF
, the undersigned hereby causes this Plan to be duly executed as of the date hereof.
|
AKOUSTIS TECHNOLOGIES, INC.,
|
|
|
a Nevada
corporation
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
Jeffrey B. Shealy
|
|
|
|
Title:
|
President and Chief Executive Officer
|
|
Appendix
C
STATE OF NEVADA
ARTICLES OF CONVERSION
BARBARA K.
CEGAVSKE
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
Articles
of Conversion
(PURSUANT TO NRS 92A.205)
Articles
of Conversion
(Pursuant to NRS 92A.205)
|
1.
|
Name and jurisdiction of
organization of constituent entity and resulting entity:
|
Name of constituent entity:
Akoustis
Technologies, Inc.
Jurisdiction: Nevada
Entity type: Corporation
Name of resulting entity:
Akoustis
Technologies, Inc.
Jurisdiction: Delaware
Entity type: Corporation
|
2.
|
A plan of conversion has
been adopted by the constituent entity in compliance with the law of the jurisdiction governing the constituent entity.
|
|
3.
|
Location of plan of conversion:
(check one)
|
|
þ
|
The
entire plan of conversion is attached to these articles.
|
|
¨
|
The
complete executed plan of conversion is on file at the registered office or principal
place of business of the resulting entity.
|
|
¨
|
The
complete executed plan of conversion for the resulting domestic limited partnership is
on file at the records office required by NRS 88.330.
|
|
4.
|
Forwarding address where copies
of process may be sent by the Secretary of State of Nevada (if a foreign entity is the
resulting entity in the conversion):
|
Akoustis Technologies, Inc.
9805 Northcross Center Court, Suite H
Huntersville, NC 28078
|
5.
|
Effective date and time of
filing: (optional) (must not be later than 90 days after the certificate is filed)
|
|
6.
|
Signatures — must
be signed by:
|
1.
If constituent entity
is a Nevada entity: an officer of each Nevada corporation; all general partners of each Nevada limited partnership or limited-liability
limited partnership; a manager of each Nevada limited-liability company with managers or one member if there are no managers;
a trustee of each Nevada business trust; a managing partner of a Nevada limited-liability partnership (a.k.a. general partnership
governed by NRS chapter 87).
2.
If constituent entity
is a foreign entity: must be signed by the constituent entity in the manner provided by the law governing it.
Name of constituent entity:
Akoustis Technologies, Inc.
Appendix
D
STATE OF
DELAWARE
CERTIFICATE OF CONVERSION
FROM A NON-DELAWARE CORPORATION
TO A DELAWARE CORPORATION
PURSUANT TO SECTION 265 OF THE
DELAWARE GENERAL CORPORATION LAW
|
1.)
|
The jurisdiction where
the Non-Delaware Corporation first formed is Nevada.
|
|
2.)
|
The jurisdiction immediately
prior to filing this Certificate is Nevada.
|
|
3.)
|
The date the Non-Delaware
Corporation first formed is April 10, 2013.
|
|
4.)
|
The name of the Non-Delaware
Corporation immediately prior to filing this Certificate is Akoustis Technologies, Inc.
|
|
5.)
|
The name of the Corporation
as set forth in the Certificate of Incorporation is Akoustis Technologies, Inc.
|
IN WITNESS WHEREOF,
the undersigned being duly authorized to sign on behalf of the converting Non-Delaware Corporation has executed this Certificate
on the _______ day of ______________, A.D. _____.
|
AKOUSTIS TECHNOLOGIES, INC.,
|
|
|
a Nevada corporation
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
Jeffrey B. Shealy
|
|
|
|
Title:
|
President and Chief Executive Officer
|
|
Appendix
E
CERTIFICATE
OF INCORPORATION
OF
AKOUSTIS
TECHNOLOGIES, INC.
The
undersigned, a natural person (the “
Sole Incorporator
”), for the purpose of organizing a corporation to conduct
business and promote the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the
State of Delaware hereby certifies that:
ARTICLE
I
CORPORATE
NAME
The
name of this corporation is Akoustis Technologies, Inc. (the “Corporation”).
ARTICLE
II
REGISTERED
OFFICE AND AGENT
The
address of the Corporation’s registered office in the State of Delaware is to be located at 1675 South State Street, Suite
B, Dover, Delaware 19901, Kent County. The registered agent in charge thereof is Capitol Services, Inc.
ARTICLE
III
CORPORATE
PURPOSES AND POWERS
The
purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware (“
DGCL
”).
ARTICLE
IV
CAPITAL STOCK
4.1
Number
of Authorized Shares; Par Value
. The aggregate number of shares which the Corporation shall have authority to issue is fifty
million (50,000,000) shares, of which forty-five million (45,000,000) shares shall be designated as common stock, par value $0.001
per share, and of which five million (5,000,000) shall be designated as preferred stock, par value $0.001 per share.
4.2
Preferred
Stock
. The preferred stock may be issued at any time or from time to time, in any one or more series, and any such series
shall be comprised of such number of shares and may have such voting powers, whole or limited, or no voting powers, and such designations,
preferences and relative, participating, options or other special rights and qualifications, limitations or restrictions thereof,
including liquidation preferences, as shall be stated and expressed in the resolution or resolutions of the board of directors
of the Corporation (the “
Board of Directors
”), with the Board of Directors being hereby expressly vested with
such power and authority to the full extent now or hereafter permitted by law.
4.3 No
shareholder shall be entitled as a matter of right to subscribe for or receive additional shares of any class of stock of the
Corporation, whether now or hereafter authorized, or any bonds, debentures or securities convertible into stock, but such additional
shares of stock or other securities convertible into stock may be issued or disposed of by the Board of Directors to such persons
and on such terms as in its discretion it shall deem advisable.
ARTICLE
V
DIRECTORS
5.1 The
business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which shall consist
of at least one (1) director. Provided that the Corporation has at least one (1) director, the number of directors may at any
time or times be increased or decreased as provided in the Bylaws of the Corporation.
5.2 Elections
of directors need not be done by written ballot unless the Bylaws of the Corporation shall otherwise provide.
5.3 The
Board of Directors is expressly authorized to adopt, alter, amend or repeal the Bylaws of the Corporation. In addition to the
powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of the DGCL, this Certificate of Incorporation, and any Bylaws adopted by the stockholders;
provided
,
however
,
that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid
if such Bylaws had not been adopted.
ARTICLE
VI
DIRECTOR
AND OFFICER LIABILITY
The
liability of directors for monetary damages shall be eliminated to the fullest extent under applicable law. Neither the amendment
nor repeal of this Article VI, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article
VI shall eliminate or reduce the effect of such provisions, in respect of any matter occurring prior to such amendment, repeal
or adoption of an inconsistent provision or in respect of any act or omission or any matter occurring prior to such amendment,
repeal or adoption of an inconsistent provision, regardless of when any cause of action, suit or claim relating to any such matter
accrued or matured or was commenced, and such provision shall continue to have effect in respect of such act, omission or matter
as if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted.
ARTICLE
VII
INDEMNIFICATION
7.1
Power
to Indemnify
. The Corporation shall indemnify to the fullest extent permitted, from time to time, by applicable law any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature by reason of the fact that such person is or was a director,
officer, employee or agent of the Corporation, or, while a director, officer, employee or agent of the Corporation, is or was
serving at the request of the Corporation as a director, officer, member, manager, partner, trustee, fiduciary, employee or agent
of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys’ fees), judgments, fines, penalties and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding. The Corporation shall have the power to enter into agreements providing
any such indemnity.
7.2
Expenses
.
The Corporation shall advance to a director, officer, employee or agent of the Corporation expenses incurred in connection with
defending any action, suit or proceeding referred to above or in the Bylaws at any time before the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VII or as provided in
the Bylaws. The Corporation shall have the power to enter into agreements providing for such advancement of expenses.
7.3
Non-exclusivity
.
The indemnification and other rights provided for in this Article VII shall not be exclusive of any provision with respect to
indemnification or the payment of expenses in the Bylaws or any other contract or agreement between the Corporation and any officer,
director, employee or agent of the Corporation or any other person.
7.4
Future
Changes
. Neither the amendment nor repeal of this Article VII, nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the effect of such provisions in respect of any act or omission
or any matter occurring prior to such amendment, repeal or adoption of an inconsistent provision regardless of when any cause
of action, suit or claim relating to any such matter accrued or matured or was commenced, and such provision shall continue to
have effect in respect of such act, omission or matter as if such provision had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted.
ARTICLE
VIII
AMENDMENT
OR REPEAL
The
Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute and by this Certificate of Incorporation, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE
IX
SOLE INCORPORATOR
The
name and mailing address of the Sole Incorporator are as follows:
Jeffrey B.
Shealy
Akoustis Technologies, Inc.
9805 Northcross
Center Court, Suite H
Huntersville,
North Carolina 28078
IN
WITNESS WHEREOF, the undersigned, for the purpose of forming a corporation under the laws of the State of Delaware, do make, file
and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand
this ________ day of ______________, A.D. ______.
|
By:
|
|
|
|
|
Name:
|
Jeffrey B. Shealy
|
|
|
|
Title:
|
Incorporator
|
|
Appendix
F
AKOUSTIS
TECHNOLOGIES, INC.
Incorporated
Under the Laws of the
State of Delaware
BY-LAWS
Effective
________, ____
ARTICLE I
OFFICES
Akoustis
Technologies, Inc. (the “Corporation”) shall maintain a registered office in the State of Delaware. The Corporation
may also have other offices at such places, either within or without the State of Delaware, as the Board of Directors may from
time to time designate or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section
1.
Place of Meetings
. Meetings of the stockholders for the election of directors or for any other purpose shall be held
on such date, at such time and at such place, either within or without the State of Delaware, as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Only
if so determined by the Board of Directors, in its sole discretion, (a) stockholders may participate in a meeting of stockholders
by means of a telephone conference or similar methods of communication by which all persons participating in the meeting can hear
each other and/or (b) a meeting of stockholders may be held not at any place, but may instead be held solely by means of electronic
communication, as provided in Section 211 of the General Corporation Law of the State of Delaware (the “DGCL”).
Section
2.
Annual Meeting
. The Annual Meeting of Stockholders shall be held on such date and at such time as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting, at which meeting the stockholders shall elect
a Board of Directors and transact only such other business as is properly brought before the meeting in accordance with these
By-Laws. Notice of the Annual Meeting stating the date, time and place of the meeting shall be given as permitted by law to each
stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting.
Section
3.
Special Meetings
. Unless otherwise prescribed by law or the Certificate of Incorporation of the Corporation (such
Certificate, as amended from time to time, including resolutions adopted from time to time by the Board of Directors establishing
the designation, rights, preferences and other terms of any class or series of capital stock, the “Certificate of Incorporation”),
special meetings of the stockholders may be called, only at the request of a majority of the Board of Directors, by the Chairman
of the Board, if any, the Chief Executive Officer, if any, the President or the Secretary. Notice of a Special Meeting stating
the purpose or purposes for which the meeting is called and the date, time and place of the meeting, and the means of electronic
communications, if any, by which stockholders and proxies shall be deemed to be present in person and vote, shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting.
Only such business as is specified in the notice of special meeting shall come before such meeting.
Section
4.
Quorum
. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of shares of capital
stock issued and outstanding entitled to vote thereat representing at least a majority of the votes entitled to be cast thereat,
present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. Whether or not a quorum is present, the chairman of the meeting, or the stockholders entitled to vote thereat, present
or represented by proxy, holding shares representing at least a majority of the votes so present or represented and entitled to
be cast thereon, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the
meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might
have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder
entitled to vote at the meeting. When a quorum is once present, it is not broken by the subsequent withdrawal of any stockholder.
Section
5.
Appointment of Inspectors of Election
. The Board of Directors shall, in advance of sending to the stockholders any notice
of a meeting of the holders of any class of shares, appoint one or more inspectors of election (“inspectors”) to act
at such meeting or any adjournment or postponement thereof and make a written report thereof. The Board of Directors may designate
one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is so appointed
or if no inspector or alternate is able to act, the Chairman of the Board, or if none, the Secretary shall appoint one or more
inspectors to act at such meeting. Each inspector, before entering upon the discharge of such inspector’s duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such
inspector’s ability.
Section
6.
Voting
. Except as otherwise provided by law or by the Certificate of Incorporation, each stockholder of record of any
class or series of stock other than the common stock, par value $0.001 per share, of the Corporation (“Common Stock”)
shall be entitled on each matter submitted to a vote at each meeting of stockholders to such number of votes for each share of
such stock as may be fixed in the Certificate of Incorporation, and each stockholder of record of Common Stock shall be entitled
at each meeting of stockholders to one vote for each share of such stock, in each case, registered in such stockholder’s
name on the books of the Corporation on the date fixed pursuant to Section 5 of Article VI of these By-Laws as the record date
for the determination of stockholders entitled to notice of and to vote at such meeting, or if no such record date shall have
been so fixed, then at the close of business on the day next preceding the day on which notice of such meeting is given, or if
notice is waived, at the close of business on the day next preceding the day on which the meeting is held.
Each
stockholder entitled to vote at any meeting may vote either in person or by proxy duly appointed.
At
all meetings of stockholders, all matters, except as otherwise provided by law, the Certificate of Incorporation or these By-Laws,
shall be determined by the affirmative vote of the stockholders present in person or represented by proxy holding shares representing
at least a majority of the votes so present or represented and entitled to be cast thereon, and where a separate vote by class
is required, a majority of the votes represented by the shares of the stockholders of such class present in person or represented
by proxy and entitled to be cast thereon shall be the act of such class.
The
vote on any matter, including the election of directors, shall be by written ballot, or, if authorized by the Board of Directors,
in its sole discretion, by electronic ballot given in accordance with a procedure set out in the notice of such meeting. Each
ballot shall state the number of shares voted.
Proxy
cards shall be returned in envelopes addressed to the inspectors, who shall receive, inspect and tabulate the proxies. Comments
on proxies, consents or ballots shall be transcribed and provided to the Secretary with the name and address of the stockholder.
Nothing in this Article II shall prohibit the inspector from making available to the Corporation, prior to, during or after any
annual or special meeting, information as to which stockholders have not voted and periodic status reports on the aggregate vote.
Except
as otherwise provided by law, the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken
at a meeting of stockholders may be taken without a meeting if, before or after the action, a written consent thereto is signed
by stockholders holding shares representing at least a majority of the votes entitled to vote thereon, except that if a different
proportion of voting power is required for such action at a meeting, then that proportion of written consents is required.
Section
7.
List of Stockholders Entitled to Vote
. The officer of the Corporation who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Nothing contained in this Section shall require the Corporation to include electronic mail addresses
or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either (i)
on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided
with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation.
In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable
steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a
place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder of the Corporation who is present. If the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Section
8.
Stock Ledger
. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled
to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
Section
9.
Advance Notice of Stockholder-Proposed Business at Annual Meeting
. To be properly brought before the Annual Meeting,
business must be either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the
Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors or (c)
otherwise properly brought before the meeting by a stockholder of record. For business to be properly brought before an Annual
Meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation
and must have been a stockholder of record at such time. To be timely, a stockholder’s notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than ninety (90) nor more than one hundred twenty
(120) days prior to the one year anniversary of the date of the Annual Meeting of the previous year;
provided, however
,
that in the event that the Annual Meeting is called for a date that is not within thirty (30) days before or after such anniversary
date, notice by the stockholder in order to be timely must be so received not earlier than one hundred twenty (120) days prior
to such Annual Meeting and not later than the close of business on the tenth (10th) day following the day on which notice of the
date of the Annual Meeting was mailed or public disclosure of the date of the Annual Meeting was made, whichever first occurs.
A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the Annual
Meeting (i) a brief description of the business desired to be brought before the Annual Meeting and the reasons for conducting
such business at the Annual Meeting, (ii) the name and address, as they appear on the Corporation’s books, of the stockholder
proposing such business, (iii) the class and number of shares of the Corporation that are beneficially owned by the stockholder,
(iv) any material interest of the stockholder in such business and (v) any other information relating to the person or the proposal
that is required to be disclosed pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (or any successor
provision or law) or applicable law.
Notwithstanding
anything in these By-Laws to the contrary, no business shall be conducted at an Annual Meeting except in accordance with the procedures
set forth in this Section 9;
provided, however
, that nothing in this Section 9 shall be deemed to preclude discussion by
any stockholder of any business properly brought before the Annual Meeting. The chairman of an Annual Meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the
provisions of this Section 9 and if he should so determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Section
10.
Nomination of Directors; Advance Notice of Stockholder Nominations
. Only persons who are nominated in accordance with
the procedures set forth in this Section 10 shall be eligible for election as directors at a meeting of stockholders. Nominations
of persons for election to the Board of Directors of the Corporation at the Annual Meeting or at any special meeting of stockholders
called in the manner set forth in Section 3 of this Article II for the purpose of electing directors may be made at a meeting
of stockholders by or at the direction of the Board of Directors, by any nominating committee or person appointed for such purpose
by the Board of Directors, or by any stockholder of record of the Corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in this Section 10. Such nominations, other than those made by,
or at the direction of, or under the authority of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation by a stockholder of record at such time. To be timely, a stockholder’s notice shall be
delivered to or mailed and received at the principal executive offices of the Corporation (a) in the case of an Annual Meeting,
not less than ninety (90) nor more than one hundred twenty (120) days prior to the one year anniversary of the date of the Annual
Meeting of the previous year;
provided, however
, that in the event that the Annual Meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so
received not earlier than one hundred twenty (120) days prior to such Annual Meeting and not later than the close of business
on the tenth (10th) day following the day on which notice of the date of the Annual Meeting was mailed or public disclosure of
the date of the Annual Meeting was made, whichever first occurs; and (b) in the case of a special meeting of stockholders called
in the manner set forth in Section 3 of this Article II for the purpose of electing directors, not earlier than one hundred twenty
(120) days prior to such special meeting and not later than the close of business on the tenth (10th) day following the day on
which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever
first occurs. Such stockholder’s notice to the Secretary shall set forth (a) as to each person whom the stockholder proposes
to nominate for election or re-election as a director, (i) the name, age, business address and residence address of the person,
(ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the Corporation,
if any, which are beneficially owned by the person and (iv) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (or any successor provision or law) or applicable law; and (b) as to the stockholder giving the notice (i)
the name and record address of the stockholder and (ii) the class and number of shares of capital stock of the Corporation which
are beneficially owned by the stockholder.
The
chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance
with the foregoing procedures and, if he should so determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
ARTICLE III
DIRECTORS
Section
1.
Number; Resignation; Removal
. Except as otherwise required by the Certificate of Incorporation, the number of directors
which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors,
but shall not be less than one. Except as provided in Section 2 of this Article III and in the Certificate of Incorporation, a
nominee for director shall be elected to the Board of Directors by a plurality of the votes cast at the Annual Meeting of Stockholders.
A director may resign at any time upon notice to the Corporation. A director may be removed, with or without cause, by the affirmative
vote of holders of shares of capital stock issued and outstanding entitled to vote at an election of directors representing at
least a majority of the votes entitled to be cast thereon.
Section
2.
Vacancies
. Vacancies and newly created directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the remaining directors then in office, though less than a quorum, or by a sole remaining director,
and the directors so elected shall hold office until the next Annual Meeting of stockholders and until their successors are duly
elected and qualified, or until their earlier resignation or removal. If there are no directors in office, then an election of
directors may be held in the manner provided by the DGCL. No decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
Section
3.
Duties and Powers
. The business of the Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws directed or required to be exercised or done solely by the stockholders.
Section
4.
Meetings
. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without
the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the
Chairman of the Board, if any, the Chief Executive Officer, if any, the President or any director. Notice thereof stating the
date, time and place of the meeting shall be given to each director either (i) by mail or courier not less than forty-eight (48)
hours before the date of the meeting or (ii) by telephone, telegram or facsimile or electronic transmission, not less than twenty-four
(24) hours before the time of the meeting or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances (provided that notice of any meeting need not be given to any director who shall either submit,
before or after such meeting, a waiver of notice or attend the meeting without protesting, at the beginning thereof, the lack
of notice).
Section
5.
Quorum
. Except as may be otherwise provided by law, the Certificate of Incorporation or these By-Laws, a majority of
the entire Board of Directors shall be necessary to constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Whether or not
a quorum is present at a meeting of the Board of Directors, a majority of the directors present may adjourn the meeting to such
time and place as they may determine without notice other than an announcement at the meeting.
Section
6.
Action without a Meeting
. Unless otherwise provided by the Certificate of Incorporation or these By-Laws,
any action required or permitted to be taken by the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board of Directors or the committee consent in writing or by electronic transmission to the adoption of
a resolution authorizing the action. The resolution and the consents thereto in writing or by electronic transmission by the members
of the Board of Directors or committee shall be filed with the minutes of the proceedings of the Board of Directors or such committee.
Section
7.
Participation by Telephone
. Unless otherwise provided by the Certificate of Incorporation or these By-Laws,
any one or more members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or other communications equipment allowing all persons participating in the
meeting to hear each other. Participation by such means shall constitute presence in person at the meeting.
Section
8.
Compensation
. The directors may be paid their expenses, if any, for attendance at each meeting of the Board of Directors
or any committee thereof and may be paid compensation as a director, committee member or chairman of any committee and for attendance
at each meeting of the Board of Directors or committee thereof. No such payment shall preclude any director from serving the Corporation
in any other capacity and receiving compensation therefore or entering into transactions otherwise permitted by the Certificate
of Incorporation, these By-Laws or applicable law.
Section
9.
Resignation
. Any director may resign at any time. Such resignation shall be made in writing or by electronic transmission
and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the Chairman of
the Board, if any, the Chief Executive Officer, if any, the President or the Secretary. The acceptance of a resignation shall
not be necessary to make it effective unless so specified therein.
ARTICLE IV
COMMITTEES
Section
1.
Committees
. The Board of Directors may designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of
a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent
or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not
such member or member constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution
establishing such committee or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors
in the management of the business and affairs of the Corporation, including the power to adopt any Certificate of merger, conversion,
exchange or domestication, the authority to issue shares and the authority to declare a dividend, except as limited by the DGCL
or other applicable law, but no such committee shall have power or authority in reference to the following matters: (i)
approving or adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to be submitted
to stockholders for approval or (ii) adopting, amending or repealing any By-Law of the Corporation. All acts done by any committee
within the scope of its powers and duties pursuant to these By-Laws and the resolutions adopted by the Board of Directors shall
be deemed to be, and may be certified as being, done or conferred under authority of the Board of Directors. The Secretary or
any Assistant Secretary is empowered to certify that any resolution duly adopted by any such committee is binding upon the Corporation
and to execute and deliver such certifications from time to time as may be necessary or proper to the conduct of the business
of the Corporation.
Section
2.
Resignation
. Any member of a committee may resign at any time. Such resignation shall be made in writing or by electronic
transmission and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the
Chairman of the Board, if any, the Chief Executive Officer, if any, the President or the Secretary. The acceptance of a resignation
shall not be necessary to make it effective unless so specified therein.
Section
3.
Quorum
. A majority of the members of a committee shall constitute a quorum. The vote of a majority of the members of
a committee present at any meeting at which a quorum is present shall be the act of such committee.
Section
4.
Record of Proceedings
. Each committee shall keep a record of its acts and proceedings, and shall report the
same to the Board of Directors when and as required by the Board of Directors.
Section
5.
Organization, Meetings, Notices
. A committee may hold its meetings at the principal office of the Corporation,
or at any other place upon which a majority of the committee may at any time agree. Each committee may make such rules as it may
deem expedient for the regulation and carrying on of its meetings and proceedings.
ARTICLE V
OFFICERS
Section
1.
General
. The officers of the Corporation shall be elected by the Board of Directors and shall consist of a President,
a Secretary and a Treasurer. The Board of Directors, in its discretion, may also elect and specifically identify as officers of
the Corporation a Chairman of the Board, a Chief Executive Officer, a Chief Financial Officer, a Controller, one or more vice
presidents, assistant secretaries and assistant treasurers, and such other officers and agents as in its judgment may be necessary
or desirable. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation
or these By-Laws. The officers of the Corporation need not be stockholders or directors of the Corporation. Any office named or
provided for in this Article V (including, without limitation, Chairman of the Board, Chief Executive Officer, Chief Financial
Officer, President, Secretary, Treasurer and Controller) may, at any time and from time to time, be held by one or more persons.
If an office is held by more than one person, each person holding such office shall serve as a co-officer (with the appropriate
corresponding title) and shall have general authority, individually and without the need for any action by any other co-officer,
to exercise all the powers of the holder of such office of the Corporation specified in these By-Laws and shall perform such other
duties and have such other powers as may be prescribed by the Board of Directors or such other officer specified in this Article V.
Section
2.
Election; Removal; Remuneration
. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders
shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors and may elect additional officers and may fill
vacancies among the officers previously elected at any subsequent meeting of the Board of Directors; and all officers of the Corporation
shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer
elected by the Board of Directors may be removed at any time, either for or without cause, by the affirmative vote of a majority
of the Board of Directors.
Section
3.
Voting Securities Owned by the Corporation
. Powers of attorney, proxies, waivers of notice of meetings, consents and
other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation
by the Chairman of the Board, if any, the Chief Executive Officer, if any, the President or the Secretary, and any such officer
may, in the name and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person
or by proxy at any meeting of security holders of any company, partnership or other entity in which the Corporation may own securities,
or to execute written consents in lieu thereof, and at any such meeting, or in giving any such consent, shall possess and
may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers
upon any other person or persons.
Section
4.
Chairman of the Board
. The Chairman of the Board, if any, may be, but need not be, a person other than the Chief Executive
Officer or the President of the Corporation. The Chairman of the Board may be, but need not be, an officer or employee of the
Corporation. The Chairman of the Board shall preside at meetings of the Board of Directors and shall establish agendas for such
meetings. In addition, the Chairman of the Board shall assure that matters of significant interest to stockholders and the investment
community are addressed by management.
Section
5.
Chief Executive Officer
. The Chief Executive Officer, if any, shall, subject to the direction of the Board of Directors,
have general and active control of the affairs and business of the Corporation and general supervision of its officers, officials,
employees and agents. The Chief Executive Officer shall preside at all meetings of the stockholders and shall preside at all meetings
of the Board of Directors and any committee thereof of which he or she is a member, unless the Board of Directors or such committee
shall have chosen another chairman. The Chief Executive Officer shall see that all orders and resolutions of the Board are carried
into effect, and in addition, the Chief Executive Officer shall have all the powers and perform all the duties generally appertaining
to the office of the chief executive officer of a corporation. The Chief Executive Officer shall designate the person or persons
who shall exercise his powers and perform his duties in his absence or disability and the absence or disability of the President.
Section
6.
President
. The President shall have such powers and perform such duties as are prescribed by the Chief Executive Officer
or the Board of Directors, and in the absence or disability of the Chief Executive Officer, the President shall have the powers
and perform the duties of the Chief Executive Officer, except to the extent the Board of Directors shall have otherwise provided.
In addition, the President shall have such powers and perform such duties generally appertaining to the office of the president
of a corporation, except to the extent the Chief Executive Officer, if any, or the Board of Directors shall have otherwise provided.
Section
7.
Vice President
. The Vice Presidents of the Corporation shall perform such duties and have such powers as may, from
time to time, be assigned to them by the Board of Directors, the Chief Executive Officer, if any, the President or these By-Laws.
Section
8.
Secretary
. The Secretary shall attend all meetings of the Board of Directors and of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for any committee
appointed by the Board of Directors. The Secretary shall keep in safe custody the seal of the Corporation and affix it to any
instrument when so authorized by the Board of Directors. The Secretary shall give or cause to be given, notice of all meetings
of stockholders and special meetings of the Board of Directors and shall perform generally all the duties usually appertaining
to the office of secretary of a corporation and shall perform such other duties and have such other powers as may be prescribed
by the Board of Directors or these By-Laws. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his or her signature.
Section
9.
Assistant Secretary
. The Assistant Secretary shall be empowered and authorized to perform all of the duties of
the Secretary in the absence or disability of the Secretary and shall perform such other duties and have such other powers as
may be prescribed by the Board of Directors, the Secretary or these By-Laws.
Section
10.
Chief Financial Officer
. The Chief Financial Officer, if any, shall have responsibility for the administration of the
financial affairs of the Corporation and shall exercise supervisory responsibility for the performance of the duties of the Treasurer
and the Controller, if any. The Chief Financial Officer shall render to the Board of Directors, at its regular meetings, or when
the Board of Directors so requires, an account of all of the transactions effected by the Treasurer and the Controller, if any,
and of the financial condition of the Corporation. The Chief Financial Officer shall generally perform all the duties usually
appertaining to the affairs of a chief financial officer of a corporation and shall perform such other duties and have such other
powers as may be prescribed by the Board of Directors or these By-Laws.
Section
11.
Treasurer
. The Treasurer shall have the custody of the corporate funds and securities and shall cause to be kept full
and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all monies and
other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by persons authorized
by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the Chairman of the Board, if any, the Chief Executive Officer,
if any, the President and the Board of Directors whenever they may require it, an account of all of the transactions effected
by the Treasurer and of the financial condition of the Corporation. The Treasurer may be required to give a bond for the faithful
discharge of his or her duties. The Treasurer shall generally perform all duties appertaining to the office of treasurer of a
corporation and shall perform such other duties and have such other powers as may be prescribed by the Board of Directors, the
Chief Executive Officer, if any, the President or these By-Laws.
Section
12.
Assistant Treasurer
. The Assistant Treasurer shall be empowered and authorized to perform all the duties of the
Treasurer in the absence or disability of the Treasurer and shall perform such other duties and have such other powers as may
be prescribed by the Board of Directors, the Treasurer or these By-Laws.
Section
13.
Controller
. The Controller, if any, shall prepare and have the care and custody of the books of account of the Corporation.
The Controller shall keep a full and accurate account of all monies, received and paid on account of the Corporation, and shall
render a statement of the Controller’s accounts whenever the Board of Directors shall require. The Controller shall generally
perform all the duties usually appertaining to the affairs of the controller of a corporation and shall perform such other duties
and have such other powers as may be prescribed by the Board of Directors, the Chief Financial Officer, if any, the President
or these By-Laws. The Controller may be required to give a bond for the faithful discharge of his or her duties.
Section
14.
Additional Powers and Duties
. In addition to the foregoing especially enumerated duties and powers, the several officers
of the Corporation shall perform such other duties and exercise such further powers as the Board of Directors may, from time to
time, determine or as may be assigned to them by any superior officer.
Section
15.
Other Officers
. The Board of Directors may designate such other officers having such duties and powers as it may specify
from time to time.
ARTICLE VI
CAPITAL STOCK
Section
1.
Form of Certificate; Uncertificated Shares
. The shares of the Corporation shall be represented by certificates, provided
that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock
may be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate
is surrendered to the Corporation. Every holder of stock in the Corporation represented by a certificate shall be entitled to
have a certificate signed in the name of the Corporation (i) by the Chairman of the Board, if any, the Chief Executive Officer,
if any, the President or any Vice President and (ii) by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, representing the number of shares registered in certificate form. Except as otherwise provided by law or these By-Laws,
the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates
representing stock of the same class and series shall be identical.
Section
2.
Signatures
. Any signature required to be on a certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
Section
3.
Lost, Stolen or Destroyed Certificates
. The Board of Directors may direct a new certificate to be issued in place of
any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the
Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
Section
4.
Transfers
. Stock of the Corporation shall be transferable in the manner prescribed by law and in these By-Laws. Transfers
of stock shall be made on the books of the Corporation only by the holder of record or by such person’s attorney duly authorized,
and upon the surrender of properly endorsed certificates for a like number of shares (or, with respect to uncertificated shares,
by delivery of duly executed instructions or in any other manner permitted by applicable law).
Section
5.
Record Date
. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to express consent to corporate action, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting, unless the Board of Directors fixes a new record date for the adjourned
meeting.
Section
6.
Beneficial Owners
. The Corporation shall be entitled to recognize the exclusive right of the person registered on its
books as the owner of a share to receive dividends and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except
as otherwise provided by law.
Section
7.
Dividends
. Subject to the provisions of the Certificate of Incorporation or applicable law, dividends upon the capital
stock of the Corporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid
in cash, in property, or in shares of capital stock. Before payment of any dividend, there may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.
Section
8.
Common Stock
. The voting, dividend and liquidation rights of the holders of shares of Common Stock are subject to, and
qualified by, the rights of the holders of the preferred stock, if any, of the Corporation. Each share of Common Stock shall
be treated identically as all other shares of Common Stock with respect to dividends, distributions, rights in liquidation and
in all other respects.
ARTICLE VII
INDEMNIFICATION
Section
1.
Indemnification Respecting Third Party Claims
. The Corporation, to the full extent and in a manner permitted by Delaware
law as in effect from time to time, shall indemnify, in accordance with the provisions of this Article, any person (including
the heirs, executors, and administrators of any such person) who was or is made a party to or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (including any appeal thereof), whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the Corporation or by any corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise of which the Corporation owns, directly or indirectly
through one or more other entities, a majority of the voting power or otherwise possesses a similar degree of control), by reason
of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, member, manager, partner, trustee, fiduciary, employee or agent (a “Subsidiary
Officer”) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise (any such entity for which a Subsidiary Officer so serves, an “Associated Entity”), against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful;
provided, however
, that (i) the Corporation shall not be
obligated to indemnify a person who is or was a director, officer, employee or agent of the Corporation or a Subsidiary Officer
of an Associated Entity against expenses incurred in connection with an action, suit, proceeding or investigation to which such
person is threatened to be made a party but does not become a party unless the incurring of such expenses was authorized by or
under the authority of the Board of Directors and (ii) the Corporation shall not be obligated to indemnify against any amount
paid in settlement unless the Board of Directors has consented to such settlement. The termination of any action, suit or proceeding
by judgment, order, settlement or conviction or upon a plea of
nolo
contendere
or its equivalent shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the Corporation, or with respect to any criminal action or proceeding, that such person
had reasonable cause to believe that his conduct was unlawful. Notwithstanding anything to the contrary in the foregoing provisions
of this Section 1, a person shall not be entitled, as a matter of right, to indemnification pursuant to this Section 1 against
costs or expenses incurred in connection with any action, suit or proceeding commenced by such person against the Corporation
or any Associated Entity or any person who is or was a director, officer, fiduciary, employee or agent of the Corporation or a
Subsidiary Officer of any Associated Entity (including, without limitation, any action, suit or proceeding commenced by such person
to enforce such person’s rights under this Article, unless and only to the extent that such person is successful on the
merits of such claim), but such indemnification may be provided by the Corporation in a specific case as permitted by Section
7 below in this Article.
Section
2.
Indemnification Respecting Derivative Claims
. The Corporation, to the full extent and in a manner permitted by Delaware
law as in effect from time to time, shall indemnify, in accordance with the provisions of this Article, any person (including
the heirs, executors, and administrators of any such person) who was or is made a party to or is threatened to be made a party
to any threatened, pending or completed action or suit (including any appeal thereof) brought by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a Subsidiary Officer of an Associated Entity, against
expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless, and only to the extent that, the Court
of Chancery or the court in which such action or suit was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper;
provided, however
, that the Corporation shall
not be obligated to indemnify a director, officer, employee or agent of the Corporation or a Subsidiary Officer of an Associated
Entity against expenses incurred in connection with an action or suit to which such person is threatened to be made a party but
does not become a party unless the incurrence of such expenses was authorized by or under the authority of the Board of Directors.
Notwithstanding anything to the contrary in the foregoing provisions of this Section 2, a person shall not be entitled, as a matter
of right, to indemnification pursuant to this Section 2 against expenses incurred in connection with any action or suit in the
right of the Corporation commenced by such person, but such indemnification may be provided by the Corporation in any specific
case as permitted by Section 7 below in this Article.
Section
3.
Determination of Entitlement to Indemnification
. Any indemnification to be provided under either of Section 1 or 2 above
in this Article (unless ordered by a court of competent jurisdiction or advanced as provided in Section 5 of this Article) shall
be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper under the circumstances. Such determination must be made (a) by the stockholders, (b)
by a majority vote of the directors who are not parties to the action, suit or proceeding, even though less than a quorum, (c)
by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (d) if there
are no such directors, or if such directors so elect, by independent legal counsel in a written opinion. In the event a request
for indemnification is made by any person referred to in Section 1 or 2 above in this Article, the Corporation shall use its reasonable
best efforts to cause such determination to be made not later than sixty (60) days after such request is made after the final
disposition of such action, suit or proceeding.
Section
4.
Right to Indemnification upon Successful Defense and for Service as a Witness
. (a) Notwithstanding the other provisions
of this Article, to the extent that a present or former director or officer has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in either of Section 1 or 2 above in this Article, or in defense of any
claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection therewith.
(b)
Except as otherwise required by law, to the extent any person who is or was a director, officer, employee or agent of the Corporation
or a Subsidiary Officer of an Associated Entity has served or prepared to serve as a witness in, but is not a party to, any action,
suit or proceeding (whether civil, criminal, administrative, regulatory or investigative in nature), including any investigation
by any legislative or regulatory body or by any securities or commodities exchange of which the Corporation or an Associated Entity
is a member or to the jurisdiction of which it is subject, by reason of his or her services as a director, officer, employee or
agent of the Corporation, or his or her service as a Subsidiary Officer of an Associated Entity (assuming such person is or was
serving at the request of the Corporation as a Subsidiary Officer of such Associated Entity), the Corporation may indemnify such
person against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith
and, if the Corporation has determined to so indemnify such person, shall use its reasonable best efforts to provide such indemnity
within sixty (60) days after receipt by the Corporation from such person of a statement requesting such indemnification, averring
such service and reasonably evidencing such expenses; it being understood, however, that the Corporation shall have no obligation
under this Article to compensate such person for such person’s time or efforts so expended.
Section
5.
Advance of Expenses
. (a) Expenses (including attorneys’ fees) incurred by any present or former director or officer
of the Corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding shall, to
the extent permitted by law, be paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking in writing by or on behalf of such person to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the Corporation as authorized by this Article.
(b)
Expenses and costs incurred by any other person referred to in Section 1 or 2 above in this Article in defending a civil, criminal,
administrative, regulatory or investigative action, suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by or under the authority of the Board of Directors upon receipt
of an undertaking in writing by or on behalf of such person to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation in respect of such expenses as authorized by this Article and subject
to any limitations or qualifications provided by or under the authority of the Board of Directors.
Section
6.
Notice of Action; Assumption of the Defense
. Promptly after receipt by any person referred to in Section 1, 2 or 5 above
in this Article of notice of the commencement of any action, suit or proceeding in respect of which indemnification or advancement
of expenses may be sought under any such Section, such person (the “Indemnitee”) shall notify the Corporation thereof.
The Corporation shall be entitled to participate in the defense of any such action, suit or proceeding and, to the extent that
it may wish, except in the case of a criminal action or proceeding, to assume the defense thereof with counsel chosen by it. If
the Corporation shall have notified the Indemnitee of its election so to assume the defense, it shall be a condition of any further
obligation of the Corporation under such Sections to indemnify the Indemnitee with respect to such action, suit or proceeding
that the Indemnitee shall have provided an undertaking in writing to repay all legal or other costs and expenses subsequently
incurred by the Corporation in conducting such defense if it shall ultimately be determined that the Indemnitee is not entitled
to be indemnified in respect of the costs and expenses of such action, suit or proceeding by the Corporation as authorized by
this Article. Notwithstanding anything in this Article to the contrary, after the Corporation shall have notified the Indemnitee
of its election so to assume the defense, the Corporation shall not be liable under such Sections for any legal or other costs
or expenses subsequently incurred by the Indemnitee in connection with the defense of such action, suit or proceeding, unless
(a) the parties thereto include both (i) the Corporation and the Indemnitee, or (ii) the Indemnitee and other persons who may
be entitled to seek indemnification or advancement of expenses under any such Section and with respect to whom the Corporation
shall have elected to assume the defense, and (b) the counsel chosen by the Corporation to conduct the defense shall have determined,
in its sole discretion, that, under applicable standards of professional conduct, a conflict of interest exists that would prevent
them from representing both (i) the Corporation and the Indemnitee, or (ii) the Indemnitee and such other persons, as the case
may be, in which case the Indemnitee may retain separate counsel at the expense of the Corporation to the extent provided in such
Sections and Section 3 above in this Article.
Section
7.
Indemnification Not Exclusive
. The provision of indemnification, or the advancement of expenses, to any person under
this Article, or the entitlement of any person to indemnification or advancement of expenses under this Article does not exclude
any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the Certificate of
Incorporation or any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in such
person’s official capacity or an action in another capacity while holding such office.
Section
8.
Corporate Obligations; Reliance
. The provisions of Sections 1, 2, 4(a) and 5(a) above of this Article shall be deemed
to create a binding obligation on the part of the Corporation to the directors, officers, employees and agents of the Corporation,
and the persons who are serving at the request of the Corporation as Subsidiary Officers of Associated Entities, on the effective
date of this Article and persons thereafter elected as directors and officers or retained as employees or agents, or serving at
the request of the Corporation as Subsidiary Officers of Associated Entities (including persons who served as directors, officers,
employees and agents, or served at the request of the Corporation as Subsidiary Officers of Associated Entities, on or after such
date but who are no longer so serving at the time they present claims for advancement of expenses or indemnity), and such persons
in acting in their capacities as directors, officers, employees or agents of the Corporation, or serving at the request of the
Corporation as Subsidiary Officers of any Associated Entity, shall be entitled to rely on such provisions of this Article.
Section
9.
Further Changes
. Neither the amendment nor repeal of this Article, nor the adoption of any provision of the Certificate
of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of such provisions in respect of any act
or omission or any matter occurring prior to such amendment, repeal or adoption of an inconsistent provision regardless of when
any cause of action, suit or claim relating to any such matter accrued or matured or was commenced, and such provision shall continue
to have effect in respect of such act, omission or matter as if such provision had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted.
Section
10.
Successors
. The right, if any, of any person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a Subsidiary Officer of an Associated Entity, to indemnification or
advancement of expenses under Sections 1 through 9 above in this Article shall continue after such person shall have ceased to
be a director, officer, employee or agent of the Corporation or a Subsidiary Officer of an Associated Entity and shall inure to
the benefit of the heirs, executors and administrators of such person.
Section
11.
Insurance
. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Subsidiary Officer of any Associated
Entity, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of
such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such
liability.
Section
12.
Definitions of Certain Terms
. For purposes of this Article, references to “fines” shall include any excise
taxes assessed on a person with respect to any employee benefit plan; references to “serving at the request of the Corporation”
shall include any service as a director, officer employee or agent of the Corporation or as a Subsidiary Officer of any Associated
Entity which service imposes duties on, or involves services by, such person with respect to any employee benefit plan, its participants,
or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to
the best interests of the Corporation” as referred to in this Article.
ARTICLE VIII
GENERAL
Section
1.
Fiscal Year
. The fiscal year of the Corporation shall be such date as shall be fixed by resolution of the Board of Directors
from time to time.
Section
2.
Corporate Seal
. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization
and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise upon any paper, certificate or document.
Section
3.
Disbursements
. All checks, drafts or demands for money out of the funds of the Corporation and all notes and other evidences
of indebtedness of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section
4.
Amendments
. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by
the stockholders or by the Board of Directors at any meeting thereof;
provided, however
, that notice of such alteration,
amendment, repeal or adoption of new By-Laws shall be contained in the notice of such meeting of stockholders or in a notice of
such meeting of the Board of Directors, as the case may be. Unless a higher percentage is required by law or by the Certificate
of Incorporation as to any matter which is the subject of these By-Laws, all such amendments must be approved by either the affirmative
vote of holders of shares of capital stock issued and outstanding entitled to vote thereon representing at least a majority of
the votes entitled to be cast thereon or by a majority of the entire Board of Directors then in office.
Section
5.
Forum for Adjudication of Disputes
. Unless the Corporation consents in writing to the selection of an alternative forum,
the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action
asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation
or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or
(iv) any action asserting a claim governed by the internal affairs doctrine shall be a state or federal court located within the
state of North Carolina, in all cases subject to the court’s having personal jurisdiction over the indispensable parties
named as defendants. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation
shall be deemed to have notice of and consented to the provisions of this Article VIII, Section 5.
Section
6.
Definitions
. As used in this Article and in these By-Laws generally, the term “entire Board of Directors”
means the total number of directors which the Corporation would have if there were no vacancies.
Appendix
G
CHAPTER 92A
– MERGERS, CONVERSIONS, EXCHANGES AND DOMESTICATIONS
RIGHT OF
DISSENTING OWNERS
NRS 92A.300
|
|
Definitions.
|
NRS 92A.305
|
|
“Beneficial
stockholder” defined.
|
NRS 92A.310
|
|
“Corporate
action” defined.
|
NRS 92A.315
|
|
“Dissenter”
defined.
|
NRS 92A.320
|
|
“Fair
value” defined.
|
NRS 92A.325
|
|
“Stockholder”
defined.
|
NRS 92A.330
|
|
“Stockholder
of record” defined.
|
NRS 92A.335
|
|
“Subject
corporation” defined.
|
NRS 92A.340
|
|
Computation
of interest.
|
NRS 92A.350
|
|
Rights
of dissenting partner of domestic limited partnership.
|
NRS 92A.360
|
|
Rights
of dissenting member of domestic limited-liability company.
|
NRS 92A.370
|
|
Rights
of dissenting member of domestic nonprofit corporation.
|
NRS 92A.380
|
|
Right
of stockholder to dissent from certain corporate actions and to obtain payment for shares.
|
NRS 92A.390
|
|
Limitations
on right of dissent: Stockholders of certain classes or series; action of stockholders not required for plan of merger.
|
NRS 92A.400
|
|
Limitations
on right of dissent: Assertion as to portions only to shares registered to stockholder; assertion by beneficial stockholder.
|
NRS 92A.410
|
|
Notification
of stockholders regarding right of dissent.
|
NRS 92A.420
|
|
Prerequisites
to demand for payment for shares.
|
NRS 92A.430
|
|
Dissenter’s
notice: Delivery to stockholders entitled to assert rights; contents.
|
NRS 92A.440
|
|
Demand
for payment and deposit of certificates; loss of rights of stockholder; withdrawal from appraisal process.
|
NRS 92A.450
|
|
Uncertificated
shares: Authority to restrict transfer after demand for payment.
|
NRS 92A.460
|
|
Payment
for shares: General requirements.
|
NRS 92A.470
|
|
Withholding
payment for shares acquired on or after date of dissenter’s notice: General requirements.
|
NRS 92A.480
|
|
Dissenter’s
estimate of fair value: Notification of subject corporation; demand for payment of estimate.
|
NRS 92A.490
|
|
Legal
proceeding to determine fair value: Duties of subject corporation; powers of court; rights of dissenter.
|
NRS 92A.500
|
|
Assessment
of costs and fees in certain legal proceedings.
|
NRS
92A.300
Definitions.
As
used in NRS 92A.300 to 92A.500, inclusive, unless the context otherwise requires, the words and terms defined in NRS 92A.305 to
92A.335, inclusive, have the meanings ascribed to them in those sections.
(Added
to NRS by 1995, 2086)
NRS
92A.305
“Beneficial
stockholder” defined.
“Beneficial
stockholder” means a person who is a beneficial owner of shares held in a voting trust or by a nominee as the stockholder
of record.
(Added
to NRS by 1995, 2087)
NRS
92A.310
“Corporate
action” defined.
“Corporate
action” means the action of a domestic corporation.
(Added
to NRS by 1995, 2087)
NRS
92A.315
“Dissenter”
defined.
“Dissenter”
means a stockholder who is entitled to dissent from a domestic corporation’s action under NRS 92A.380 and who exercises
that right when and in the manner required by NRS 92A.400 to 92A.480, inclusive.
(Added
to NRS by 1995, 2087; A 1999, 1631)
NRS
92A.320
“Fair
value” defined.
“Fair
value,” with respect to a dissenter’s shares, means the value of the shares determined:
1. Immediately
before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in
anticipation of the corporate action unless exclusion would be inequitable;
2. Using
customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction
requiring appraisal; and
3. Without
discounting for lack of marketability or minority status.
(Added
to NRS by 1995, 2087; A 2009, 1720)
NRS
92A.325
“Stockholder”
defined.
“Stockholder”
means a stockholder of record or a beneficial stockholder of a domestic corporation.
(Added
to NRS by 1995, 2087)
NRS
92A.330
“Stockholder
of record” defined.
“Stockholder
of record” means the person in whose name shares are registered in the records of a domestic corporation or the beneficial
owner of shares to the extent of the rights granted by a nominee’s certificate on file with the domestic corporation.
(Added
to NRS by 1995, 2087)
NRS
92A.335
“Subject
corporation” defined.
“Subject
corporation” means the domestic corporation which is the issuer of the shares held by a dissenter before the corporate action
creating the dissenter’s rights becomes effective or the surviving or acquiring entity of that issuer after the corporate
action becomes effective.
(Added
to NRS by 1995, 2087)
NRS
92A.340
Computation
of interest.
Interest
payable pursuant to NRS 92A.300 to 92A.500, inclusive, must be computed from the effective date of the action until the date of
payment, at the rate of interest most recently established pursuant to NRS 99.040.
(Added
to NRS by 1995, 2087; A 2009, 1721)
NRS
92A.350
Rights
of dissenting partner of domestic limited partnership.
A
partnership agreement of a domestic limited partnership or, unless otherwise provided in the partnership agreement, an agreement
of merger or exchange, may provide that contractual rights with respect to the partnership interest of a dissenting general or
limited partner of a domestic limited partnership are available for any class or group of partnership interests in connection
with any merger or exchange in which the domestic limited partnership is a constituent entity.
(Added
to NRS by 1995, 2088)
NRS
92A.360
Rights
of dissenting member of domestic limited-liability company.
The
articles of organization or operating agreement of a domestic limited-liability company or, unless otherwise provided in the articles
of organization or operating agreement, an agreement of merger or exchange, may provide that contractual rights with respect to
the interest of a dissenting member are available in connection with any merger or exchange in which the domestic limited-liability
company is a constituent entity.
(Added
to NRS by 1995, 2088)
NRS
92A.370
Rights
of dissenting member of domestic nonprofit corporation.
1. Except
as otherwise provided in subsection 2, and unless otherwise provided in the articles or bylaws, any member of any constituent
domestic nonprofit corporation who voted against the merger may, without prior notice, but within 30 days after the effective
date of the merger, resign from membership and is thereby excused from all contractual obligations to the constituent or surviving
corporations which did not occur before the member’s resignation and is thereby entitled to those rights, if any, which
would have existed if there had been no merger and the membership had been terminated or the member had been expelled.
2. Unless
otherwise provided in its articles of incorporation or bylaws, no member of a domestic nonprofit corporation, including, but not
limited to, a cooperative corporation, which supplies services described in chapter 704 of NRS to its members only, and no person
who is a member of a domestic nonprofit corporation as a condition of or by reason of the ownership of an interest in real property,
may resign and dissent pursuant to subsection 1.
(Added
to NRS by 1995, 2088)
NRS
92A.380
Right
of stockholder to dissent from certain corporate actions and to obtain payment for shares.
1. Except
as otherwise provided in NRS 92A.370 and 92A.390 and subject to the limitation in paragraph (f), any stockholder is entitled to
dissent from, and obtain payment of the fair value of the stockholder’s shares in the event of any of the following corporate
actions:
(a) Consummation
of a plan of merger to which the domestic corporation is a constituent entity:
(1) If
approval by the stockholders is required for the merger by NRS 92A.120 to 92A.160, inclusive, or the articles of incorporation,
regardless of whether the stockholder is entitled to vote on the plan of merger; or
(2) If
the domestic corporation is a subsidiary and is merged with its parent pursuant to NRS 92A.180.
(b) Consummation
of a plan of conversion to which the domestic corporation is a constituent entity as the corporation whose subject owner’s
interests will be converted.
(c) Consummation
of a plan of exchange to which the domestic corporation is a constituent entity as the corporation whose subject owner’s
interests will be acquired, if the stockholder’s shares are to be acquired in the plan of exchange.
(d) Any
corporate action taken pursuant to a vote of the stockholders to the extent that the articles of incorporation, bylaws or a resolution
of the board of directors provides that voting or nonvoting stockholders are entitled to dissent and obtain payment for their
shares.
(e) Accordance
of full voting rights to control shares, as defined in NRS 78.3784, only to the extent provided for pursuant to NRS 78.3793.
(f) Any
corporate action not described in this subsection that will result in the stockholder receiving money or scrip instead of a fraction
of a share except where the stockholder would not be entitled to receive such payment pursuant to NRS 78.205, 78.2055 or 78.207.
A dissent pursuant to this paragraph applies only to the fraction of a share, and the stockholder is entitled only to obtain payment
of the fair value of the fraction of a share.
2. A
stockholder who is entitled to dissent and obtain payment pursuant to NRS 92A.300 to 92A.500, inclusive, may not challenge the
corporate action creating the entitlement unless the action is unlawful or fraudulent with respect to the stockholder or the domestic
corporation.
3. Subject
to the limitations in this subsection, from and after the effective date of any corporate action described in subsection 1, no
stockholder who has exercised the right to dissent pursuant to NRS 92A.300 to 92A.500, inclusive, is entitled to vote his or her
shares for any purpose or to receive payment of dividends or any other distributions on shares. This subsection does not apply
to dividends or other distributions payable to stockholders on a date before the effective date of any corporate action from which
the stockholder has dissented. If a stockholder exercises the right to dissent with respect to a corporate action described in
paragraph (f) of subsection 1, the restrictions of this subsection apply only to the shares to be converted into a fraction of
a share and the dividends and distributions to those shares.
(Added
to NRS by 1995, 2087; A 2001, 1414, 3199; 2003, 3189; 2005, 2204; 2007, 2438; 2009, 1721; 2011, 2814)
NRS
92A.390
Limitations
on right of dissent: Stockholders of certain classes or series; action of stockholders not required for plan of merger.
1. There
is no right of dissent with respect to a plan of merger, conversion or exchange in favor of stockholders of any class or series
which is:
(a) A
covered security under section 18(b)(1)(A) or (B) of the Securities Act of 1933, 15 U.S.C. § 77r(b)(1)(A) or (B), as amended;
(b) Traded
in an organized market and has at least 2,000 stockholders and a market value of at least $20,000,000, exclusive of the value
of such shares held by the corporation’s subsidiaries, senior executives, directors and beneficial stockholders owning more
than 10 percent of such shares; or
(c) Issued
by an open end management investment company registered with the Securities and Exchange Commission under the Investment Company
Act of 1940, 15 U.S.C. §§ 80a-1 et seq., as amended, and which may be redeemed at the option of the holder at net asset
value,
Ê
unless the articles of incorporation of the corporation issuing the class or series or the resolution of the board of directors
approving the plan of merger, conversion or exchange expressly provide otherwise.
2. The
applicability of subsection 1 must be determined as of:
(a) The
record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders to act
upon the corporate action requiring dissenter’s rights; or
(b) The
day before the effective date of such corporate action if there is no meeting of stockholders.
3. Subsection
1 is not applicable and dissenter’s rights are available pursuant to NRS 92A.380 for the holders of any class or series
of shares who are required by the terms of the corporate action requiring dissenter’s rights to accept for such shares anything
other than cash or shares of any class or any series of shares of any corporation, or any other proprietary interest of any other
entity, that satisfies the standards set forth in subsection 1 at the time the corporate action becomes effective.
4. There
is no right of dissent for any holders of stock of the surviving domestic corporation if the plan of merger does not require action
of the stockholders of the surviving domestic corporation under NRS 92A.130.
5. There
is no right of dissent for any holders of stock of the parent domestic corporation if the plan of merger does not require action
of the stockholders of the parent domestic corporation under NRS 92A.180.
(Added
to NRS by 1995, 2088; A 2009, 1722; 2013, 1285)
NRS
92A.400
Limitations
on right of dissent: Assertion as to portions only to shares registered to stockholder; assertion by beneficial stockholder.
1. A
stockholder of record may assert dissenter’s rights as to fewer than all of the shares registered in his or her name only
if the stockholder of record dissents with respect to all shares of the class or series beneficially owned by any one person and
notifies the subject corporation in writing of the name and address of each person on whose behalf the stockholder of record asserts
dissenter’s rights. The rights of a partial dissenter under this subsection are determined as if the shares as to which
the partial dissenter dissents and his or her other shares were registered in the names of different stockholders.
2. A
beneficial stockholder may assert dissenter’s rights as to shares held on his or her behalf only if the beneficial stockholder:
(a) Submits
to the subject corporation the written consent of the stockholder of record to the dissent not later than the time the beneficial
stockholder asserts dissenter’s rights; and
(b) Does
so with respect to all shares of which he or she is the beneficial stockholder or over which he or she has power to direct the
vote.
(Added
to NRS by 1995, 2089; A 2009, 1723)
NRS
92A.410
Notification
of stockholders regarding right of dissent.
1. If
a proposed corporate action creating dissenter’s rights is submitted to a vote at a stockholders’ meeting, the notice
of the meeting must state that stockholders are, are not or may be entitled to assert dissenter’s rights under NRS 92A.300
to 92A.500, inclusive. If the domestic corporation concludes that dissenter’s rights are or may be available, a copy of
NRS 92A.300 to 92A.500, inclusive, must accompany the meeting notice sent to those record stockholders entitled to exercise dissenter’s
rights.
2. If
the corporate action creating dissenter’s rights is taken by written consent of the stockholders or without a vote of the
stockholders, the domestic corporation shall notify in writing all stockholders entitled to assert dissenter’s rights that
the action was taken and send them the dissenter’s notice described in NRS 92A.430.
(Added
to NRS by 1995, 2089; A 1997, 730; 2009, 1723; 2013, 1286)
NRS
92A.420
Prerequisites
to demand for payment for shares.
1. If
a proposed corporate action creating dissenter’s rights is submitted to a vote at a stockholders’ meeting, a stockholder
who wishes to assert dissenter’s rights with respect to any class or series of shares:
(a) Must
deliver to the subject corporation, before the vote is taken, written notice of the stockholder’s intent to demand payment
for his or her shares if the proposed action is effectuated; and
(b) Must
not vote, or cause or permit to be voted, any of his or her shares of such class or series in favor of the proposed action.
2. If
a proposed corporate action creating dissenter’s rights is taken by written consent of the stockholders, a stockholder who
wishes to assert dissenter’s rights with respect to any class or series of shares must not consent to or approve the proposed
corporate action with respect to such class or series.
3. A
stockholder who does not satisfy the requirements of subsection 1 or 2 and NRS 92A.400 is not entitled to payment for his or her
shares under this chapter.
(Added
to NRS by 1995, 2089; A 1999, 1631; 2005, 2204; 2009, 1723; 2013, 1286)
NRS
92A.430
Dissenter’s
notice: Delivery to stockholders entitled to assert rights; contents.
1. The
subject corporation shall deliver a written dissenter’s notice to all stockholders of record entitled to assert dissenter’s
rights in whole or in part, and any beneficial stockholder who has previously asserted dissenter’s rights pursuant to NRS
92A.400.
2. The
dissenter’s notice must be sent no later than 10 days after the effective date of the corporate action specified in NRS
92A.380, and must:
(a) State
where the demand for payment must be sent and where and when certificates, if any, for shares must be deposited;
(b) Inform
the holders of shares not represented by certificates to what extent the transfer of the shares will be restricted after the demand
for payment is received;
(c) Supply
a form for demanding payment that includes the date of the first announcement to the news media or to the stockholders of the
terms of the proposed action and requires that the person asserting dissenter’s rights certify whether or not the person
acquired beneficial ownership of the shares before that date;
(d) Set
a date by which the subject corporation must receive the demand for payment, which may not be less than 30 nor more than 60 days
after the date the notice is delivered and state that the stockholder shall be deemed to have waived the right to demand payment
with respect to the shares unless the form is received by the subject corporation by such specified date; and
(e) Be
accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
(Added
to NRS by 1995, 2089; A 2005, 2205; 2009, 1724; 2013, 1286)
NRS
92A.440
Demand
for payment and deposit of certificates; loss of rights of stockholder; withdrawal from appraisal process.
1. A
stockholder who receives a dissenter’s notice pursuant to NRS 92A.430 and who wishes to exercise dissenter’s rights
must:
(a) Demand
payment;
(b) Certify
whether the stockholder or the beneficial owner on whose behalf he or she is dissenting, as the case may be, acquired beneficial
ownership of the shares before the date required to be set forth in the dissenter’s notice for this certification; and
(c) Deposit
the stockholder’s certificates, if any, in accordance with the terms of the notice.
2. If
a stockholder fails to make the certification required by paragraph (b) of subsection 1, the subject corporation may elect to
treat the stockholder’s shares as after-acquired shares under NRS 92A.470.
3. Once
a stockholder deposits that stockholder’s certificates or, in the case of uncertified shares makes demand for payment, that
stockholder loses all rights as a stockholder, unless the stockholder withdraws pursuant to subsection 4.
4. A
stockholder who has complied with subsection 1 may nevertheless decline to exercise dissenter’s rights and withdraw from
the appraisal process by so notifying the subject corporation in writing by the date set forth in the dissenter’s notice
pursuant to NRS 92A.430. A stockholder who fails to so withdraw from the appraisal process may not thereafter withdraw without
the subject corporation’s written consent.
5. The
stockholder who does not demand payment or deposit his or her certificates where required, each by the date set forth in the dissenter’s
notice, is not entitled to payment for his or her shares under this chapter.
(Added
to NRS by 1995, 2090; A 1997, 730; 2003, 3189; 2009, 1724)
NRS
92A.450
Uncertificated
shares: Authority to restrict transfer after demand for payment.
The
subject corporation may restrict the transfer of shares not represented by a certificate from the date the demand for their payment
is received.
(Added
to NRS by 1995, 2090; A 2009, 1725)
NRS
92A.460
Payment
for shares: General requirements.
1. Except
as otherwise provided in NRS 92A.470, within 30 days after receipt of a demand for payment pursuant to NRS 92A.440, the subject
corporation shall pay in cash to each dissenter who complied with NRS 92A.440 the amount the subject corporation estimates to
be the fair value of the dissenter’s shares, plus accrued interest. The obligation of the subject corporation under this
subsection may be enforced by the district court:
(a) Of
the county where the subject corporation’s principal office is located;
(b) If
the subject corporation’s principal office is not located in this State, in the county in which the corporation’s
registered office is located; or
(c) At
the election of any dissenter residing or having its principal or registered office in this State, of the county where the dissenter
resides or has its principal or registered office.
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The court shall dispose of the complaint promptly.
2. The
payment must be accompanied by:
(a) The
subject corporation’s balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment,
a statement of income for that year, a statement of changes in the stockholders’ equity for that year or, where such financial
statements are not reasonably available, then such reasonably equivalent financial information and the latest available quarterly
financial statements, if any;
(b) A
statement of the subject corporation’s estimate of the fair value of the shares; and
(c) A
statement of the dissenter’s rights to demand payment under NRS 92A.480 and that if any such stockholder does not do so
within the period specified, such stockholder shall be deemed to have accepted such payment in full satisfaction of the corporation’s
obligations under this chapter.
(Added
to NRS by 1995, 2090; A 2007, 2704; 2009, 1725; 2013, 1287)
NRS
92A.470
Withholding
payment for shares acquired on or after date of dissenter’s notice: General requirements.
1. A
subject corporation may elect to withhold payment from a dissenter unless the dissenter was the beneficial owner of the shares
before the date set forth in the dissenter’s notice as the first date of any announcement to the news media or to the stockholders
of the terms of the proposed action.
2. To
the extent the subject corporation elects to withhold payment, within 30 days after receipt of a demand for payment pursuant to
NRS 92A.440, the subject corporation shall notify the dissenters described in subsection 1:
(a) Of
the information required by paragraph (a) of subsection 2 of NRS 92A.460;
(b) Of
the subject corporation’s estimate of fair value pursuant to paragraph (b) of subsection 2 of NRS 92A.460;
(c) That
they may accept the subject corporation’s estimate of fair value, plus interest, in full satisfaction of their demands or
demand appraisal under NRS 92A.480;
(d) That
those stockholders who wish to accept such an offer must so notify the subject corporation of their acceptance of the offer within
30 days after receipt of such offer; and
(e) That
those stockholders who do not satisfy the requirements for demanding appraisal under NRS 92A.480 shall be deemed to have accepted
the subject corporation’s offer.
3. Within
10 days after receiving the stockholder’s acceptance pursuant to subsection 2, the subject corporation shall pay in cash
the amount offered under paragraph (b) of subsection 2 to each stockholder who agreed to accept the subject corporation’s
offer in full satisfaction of the stockholder’s demand.
4. Within
40 days after sending the notice described in subsection 2, the subject corporation shall pay in cash the amount offered under
paragraph (b) of subsection 2 to each stockholder described in paragraph (e) of subsection 2.
(Added
to NRS by 1995, 2091; A 2009, 1725; 2013, 1287)
NRS
92A.480
Dissenter’s
estimate of fair value: Notification of subject corporation; demand for payment of estimate.
1. A
dissenter paid pursuant to NRS 92A.460 who is dissatisfied with the amount of the payment may notify the subject corporation in
writing of the dissenter’s own estimate of the fair value of his or her shares and the amount of interest due, and demand
payment of such estimate, less any payment pursuant to NRS 92A.460. A dissenter offered payment pursuant to NRS 92A.470 who is
dissatisfied with the offer may reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of his or her shares
and interest due.
2. A
dissenter waives the right to demand payment pursuant to this section unless the dissenter notifies the subject corporation of
his or her demand to be paid the dissenter’s stated estimate of fair value plus interest under subsection 1 in writing within
30 days after receiving the subject corporation’s payment or offer of payment under NRS 92A.460 or 92A.470 and is entitled
only to the payment made or offered.
(Added
to NRS by 1995, 2091; A 2009, 1726)
NRS
92A.490
Legal
proceeding to determine fair value: Duties of subject corporation; powers of court; rights of dissenter.
1. If
a demand for payment pursuant to NRS 92A.480 remains unsettled, the subject corporation shall commence a proceeding within 60
days after receiving the demand and petition the court to determine the fair value of the shares and accrued interest. If the
subject corporation does not commence the proceeding within the 60-day period, it shall pay each dissenter whose demand remains
unsettled the amount demanded by each dissenter pursuant to NRS 92A.480 plus interest.
2. A
subject corporation shall commence the proceeding in the district court of the county where its principal office is located in
this State. If the principal office of the subject corporation is not located in this State, the right to dissent arose from a
merger, conversion or exchange and the principal office of the surviving entity, resulting entity or the entity whose shares were
acquired, whichever is applicable, is located in this State, it shall commence the proceeding in the county where the principal
office of the surviving entity, resulting entity or the entity whose shares were acquired is located. In all other cases, if the
principal office of the subject corporation is not located in this State, the subject corporation shall commence the proceeding
in the district court in the county in which the corporation’s registered office is located.
3. The
subject corporation shall make all dissenters, whether or not residents of Nevada, whose demands remain unsettled, parties to
the proceeding as in an action against their shares. All parties must be served with a copy of the petition. Nonresidents may
be served by registered or certified mail or by publication as provided by law.
4. The
jurisdiction of the court in which the proceeding is commenced under subsection 2 is plenary and exclusive. The court may appoint
one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers have
the powers described in the order appointing them, or any amendment thereto. The dissenters are entitled to the same discovery
rights as parties in other civil proceedings.
5. Each
dissenter who is made a party to the proceeding is entitled to a judgment:
(a) For
the amount, if any, by which the court finds the fair value of the dissenter’s shares, plus interest, exceeds the amount
paid by the subject corporation; or
(b) For
the fair value, plus accrued interest, of the dissenter’s after-acquired shares for which the subject corporation elected
to withhold payment pursuant to NRS 92A.470.
(Added
to NRS by 1995, 2091; A 2007, 2705; 2009, 1727; 2011, 2815; 2013, 1288)
NRS
92A.500
Assessment
of costs and fees in certain legal proceedings.
1. The
court in a proceeding to determine fair value shall determine all of the costs of the proceeding, including the reasonable compensation
and expenses of any appraisers appointed by the court. The court shall assess the costs against the subject corporation, except
that the court may assess costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the
court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment.
2. The
court may also assess the fees and expenses of the counsel and experts for the respective parties, in amounts the court finds
equitable:
(a) Against
the subject corporation and in favor of all dissenters if the court finds the subject corporation did not substantially comply
with the requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against
either the subject corporation or a dissenter in favor of any other party, if the court finds that the party against whom the
fees and expenses are assessed acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by NRS
92A.300 to 92A.500, inclusive.
3. If
the court finds that the services of counsel for any dissenter were of substantial benefit to other dissenters similarly situated,
and that the fees for those services should not be assessed against the subject corporation, the court may award to those counsel
reasonable fees to be paid out of the amounts awarded to the dissenters who were benefited.
4. In
a proceeding commenced pursuant to NRS 92A.460, the court may assess the costs against the subject corporation, except that the
court may assess costs against all or some of the dissenters who are parties to the proceeding, in amounts the court finds equitable,
to the extent the court finds that such parties did not act in good faith in instituting the proceeding.
5. To
the extent the subject corporation fails to make a required payment pursuant to NRS 92A.460, 92A.470 or 92A.480, the dissenter
may bring a cause of action directly for the amount owed and, to the extent the dissenter prevails, is entitled to recover all
expenses of the suit.
6. This
section does not preclude any party in a proceeding commenced pursuant to NRS 92A.460 or 92A.490 from applying the provisions
of N.R.C.P. 68.
(Added
to NRS by 1995, 2092; A 2009, 1727; 2015, 2566)