Important Notice Regarding the Availability
of Proxy Materials for the Annual Meeting: The Notice & Proxy Statement and Annual Report on Form 10-K and Amendment to Annual
Report on Form 10-K/A are available at
www.proxyvote.com
and on the Company’s website at http://www.abtechindustries.com/investor-info.
Appendix A
Certificate of Change
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BARBARA K. CEGAVSKE
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
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Certificate of Change Pursuant
to NRS 78.209
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USE BLACK INK ONLY - DO NOT HIGHLIGHT
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ABOVE SPACE IS FOR OFFICE USE ONLY
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Certificate of Change filed Pursuant
to NRS 78.209
For Nevada Profit Corporations
1.
Name of corporation: Abtech Holdings, Inc.
2.
The board of directors have adopted a resolution pursuant to NRS 78.209 and have obtained any required approval of the stockholders.
3.
The current number of authorized shares and the par value, if any, of each class or series, if any, of shares before the change:
800,000,000 shares of common stock, par
value $0.001 per share.
4.
The number of authorized shares and the par value, if any, of each class or series, if any, of shares after the change:
50,000,000 shares of common stock, par
value $0.001 per share.
5.
The number of shares of each affected class or series, if any, to be issued after the change in exchange for each issued share
of the same class or series:
1 share of common stock will be issued
after the exchange for 200 shares of common stock,
plus an indeterminate number of shares
to be exchanged for fractional shares.
6.
The provisions, if any, for the issuance of fractional shares, or for the payment of money or the issuance of scrip to stockholders
otherwise entitled to a fraction of a share and the percentage of outstanding shares affected thereby:
Fractional shares of common stock will
be rounded up to the nearest whole share.
7.
Effective date and time of filing: (optional) Date: Time:
8.
Signature: (required) (must not be later than 90 days after the certificate is filed)
X
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Chief Financial Officer
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Signature of Officer
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Title
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IMPORTANT: Failure to include any of the above information
and submit with the proper fees may cause this filing to be rejected.
This form must be accompanied by appropriate fees.
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Nevada Secretary of State Stock Split
Revised: 1-5-15
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Appendix B
2018 Incentive Stock Plan
ABTECH HOLDINGS, INC.
2018 INCENTIVE STOCK PLAN
(Adopted by the Board of Directors on
June 26, 2018;
Approved by the Stockholders on
_____________
,
2018.)
1.
Purpose
. The purpose of this Plan is to provide a means through which AbTech Holdings, Inc. and its Subsidiaries
may (a) attract and retain highly qualified persons to provide valuable services to the Company as Employees, Consultants, or Directors,
(b) promote the interests of the Company by providing Employees, Consultants, and Directors with a proprietary interest in the
Company, thereby strengthening their concern for the welfare of the Company and their desire to continue to provide their services
to the Company, and (c) provide such persons with additional incentive and reward opportunities to enhance the profitable growth
of the Company. Capitalized terms have the meanings set forth in
Section 2
.
2.
Definitions
. As used in the Plan, the following definitions apply to the terms indicated below.
(a)
“Acquiror” means the surviving, continuing, successor or purchasing Person or entity, as the case may be, in
a Change in Control.
(b)
“Award” means an Option, a share of Restricted Stock, an RSU, an SAR, a Performance Award, a Dividend Equivalent,
a Cash Award, or other stock-based Awards granted pursuant to the terms of the Plan.
(c)
“Board” means the Board of Directors of the Company.
(d)
“Cash Award” means an Award of a bonus payable in cash pursuant to
Section 12
.
(e)
“Cash Settled SAR” has the meaning set forth in
Section 9(b)
.
(f)
Unless otherwise set forth in a written agreement between the Participant and the Company, “Cause,” when used
in connection with the termination of a Participant’s Service with the Company, means the termination of the Participant’s
Service by the Company by reason of (i) the conviction of the Participant by a court of competent jurisdiction as to which no further
appeal can be taken, or a guilty plea or plea of
nolo contendere
by the Participant, with respect to a crime involving moral
turpitude; (ii) the proven commission by the Participant of an act of fraud upon the Company or any Parent or Subsidiary; (iii)
the willful and proven misappropriation of any material amount of funds or property of the Company or any Parent or Subsidiary
by the Participant; (iv) the willful, continued and unreasonable failure by the Participant to perform duties assigned to the Participant;
(v) the knowing engagement by the Participant in any direct, material conflict of interest with the Company or any Parent or Subsidiary
without compliance with the Company’s (or Parent’s or Subsidiary’s) conflict of interest policy, if any, then
in effect; (vi) the knowing engagement by the Participant, without the written approval of the Board, in any activity that competes
with the business of the Company or any Parent or Subsidiary or that would result in a material injury to the Company or any Parent
or Subsidiary; or (vii) the knowing and continued engagement in any activity that would constitute a material violation of the
provisions of the Company’s (or Parent’s or Subsidiary’s) policies and procedures.
(g)
Unless otherwise set forth in a written agreement between the Participant and the Company, “Change in Control”
means
(i)
a “change in control” of the Company of a nature that would be required to be reported (A) in response to Item
6(e) of Schedule 14A of Regulation 14A under the Exchange Act (or any successor provisions or reports thereunder), (B) in response
to Item 5.01 of Form 8-K as in effect on the date of this Plan, as
promulgated under the Exchange Act (or
any successor provisions or reports thereunder), or (C) in any other filing by the Company with the Securities and Exchange Commission;
or
(ii)
the occurrence of any of the following events:
(A)
a transaction or series of transactions after the Effective Date in which any “person” (as such term is used
in Section 13(d) and Section 14(d)(2) of the Exchange Act, or any successor provisions thereunder) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 promulgated under the Exchange Act, or any successor provisions thereunder), directly or
indirectly, of securities of the Company representing 30% or more of the combined voting power of the Company’s then-outstanding
voting securities;
provided, however,
that for purposes of this
Section 2(f)(ii)(A)
, the following acquisitions will
not constitute a Change in Control: (1) any acquisition directly from the Company; (2) any acquisition of voting securities by
the Company, including any acquisition that, by reducing the number of shares outstanding, is the sole cause for increasing the
percentage of shares beneficially owned by any such Person to more than the percentage set forth above; (3) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company; (4)
any acquisition by any Person pursuant to a transaction that complies with clauses (1), (2) and (3) of
Section 2(f)(ii)(B)
;
or (5) any transaction, acquisition, or other event that the Board (as constituted immediately prior to such Person becoming such
a beneficial owner) determines, in its sole discretion, does not constitute a Change in Control in such a situation; or
(B)
consummation by the Company of a Business Combination (as defined below) unless, following such Business Combination, (1)
more than 50% of the combined voting power of the then-outstanding voting securities entitled to vote generally in the election
of directors or managers of the entity resulting from such Business Combination (including without limitation, an entity that as
a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through
one or more subsidiaries) is represented by voting securities of the Company that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by voting securities into which such previously outstanding voting securities of
the Company were converted pursuant to such Business Combination) and such ownership of voting power among the holders thereof
is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company’s
voting securities, (2) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting
from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the then-outstanding voting securities
of the entity resulting from such Business Combination except to the extent that such ownership existed prior to the Business Combination,
and (3) at least a majority of the members of the board of directors or managers of the entity resulting from such Business Combination
were members of the Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(C)
approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.
For purposes of this
Section 2(f)
,
“Business Combination” means a reorganization, merger or consolidation of the Company with another Person or sale or
other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another corporation
or entity.
Notwithstanding the foregoing, however,
with respect to any Section 409A Award the term “Change in Control” will mean a change in the ownership or effective
control of the Company or a change in the ownership of a substantial portion of the assets of the Company, as defined under Treasury
Regulation Section 1.409A-3(i)(5), as such definition may be modified by subsequent Treasury Regulations or other guidance.
(h)
“Code” means the Internal Revenue Code of 1986, as amended from time to time. Reference in the Plan to any
Code section will be deemed to include any amendments or successor provisions to such section and any Treasury Regulations promulgated
thereunder.
(i)
“Committee” means the Compensation Committee of the Board or such other committee as the Board may appoint from
time to time to administer the Plan.
(j)
“Common Stock” means the Company’s common stock, par value $0.001 per share.
(k)
“Company” means AbTech Holdings, Inc., a Nevada corporation, each of its Subsidiaries, and its successors. With
respect to Incentive Stock Options, the “Company” includes any Parent.
(l)
“Consultant” means a consultant or advisor to the Company or other independent contractor retained by the Company
to provide consulting services.
(m)
“Deferred Compensation Plan” means any nonqualified deferred compensation plan of the Company that is currently
in effect or subsequently adopted by the Company.
(n)
“Director” means a member of the Board.
(o)
Unless otherwise set forth in a written agreement between the Participant and the Company, “Disability” means
(i) with respect to Incentive Stock Options, a Participant’s “permanent and total disability” within the meaning
of Code Section 22(e)(3), and (ii) with respect to all other Awards, a Participant is “totally disabled” as determined
by the Social Security Administration (or equivalent administrative body in a foreign jurisdiction).
(p)
“Dividend Equivalents” means an amount of cash equal to all dividends and other distributions (or the economic
equivalent thereof) that are payable by the Company on one share of Common Stock to stockholders of record.
(q)
“Effective Date” means the date on which the Company’s stockholders approve the Plan pursuant to
Section
20
.
(r)
“Employee” means any person who is an employee of the Company within the meaning of Code Section 3401(c) and
the applicable interpretive authority thereunder.
(s)
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
(t)
“Exercise Date” means the date on which a Participant exercises an Award.
(u)
“Exercise Price” means the price at which a Participant may exercise his or her right to receive cash or Common
Stock, as applicable, under the terms of an Award.
(v)
“Fair Market Value” of a share of Common Stock on any date is (i) the closing sales price on that date(or if
that date is not a business day, on the immediately preceding business day) of a share of Common Stock as reported on the principal
securities exchange on which shares of Common Stock are then listed or admitted to trading; (ii) if shares of the Common Stock
are not listed or traded on a securities exchange, the closing sales price on that date as quoted by the OTC Bulletin Board or
the OTC Markets Group electronic interdealer quotation system, or (iii) if the price of a share of Common Stock is not so reported,
the “fair market value” of a share of Common Stock as determined by the Committee in its absolute discretion;
provided,
however
, that if the definition of Fair Market Value will impact whether an Award will be considered a Section 409A Award,
the Committee will use a definition that will not make the Award a Section 409A Award.
(w)
“Grant Date” means the date an Award is granted to a Participant pursuant to the Plan as determined by the Committee.
(x)
“Incentive Stock Option” means an Option that is an “incentive stock option” within the meaning
of Code Section 422 and that is identified as an Incentive Stock Option in the agreement by which it is evidenced.
(y)
“Non-Qualified Performance Award” means an Award payable in cash or Common Stock upon achievement of certain
Performance Goals established by the Committee that do not satisfy the requirements of
Section 10(c)
.
(z)
“Non-Qualified Stock Option” means an Option that is not an Incentive Stock Option and that is identified as
a Non-Qualified Stock Option in the agreement by which it is evidenced, or an Option identified as an Incentive Stock Option that
fails to satisfy the requirements of Code Section 422.
(aa)
“Option” means an option to purchase shares of Common Stock of the Company granted pursuant to
Section 7
.
Each Option will be identified as either an Incentive Stock Option or a Non-Qualified Stock Option in the agreement by which it
is evidenced,
provided
that in the absence of any such designation an Option will be treated as a Non-Qualified Stock Option.
(bb)
“Parent” means a “parent corporation” of the Company, whether now or hereafter existing, as defined
in Code Section 424(e).
(cc)
“Participant” means an Employee, Consultant, or Director who is eligible to participate in the Plan and to whom
an Award is granted pursuant to the Plan and, upon his or her death, his or her successors, heirs, executors and administrators,
as the case may be, to the extent permitted herein.
(dd)
“Performance Award” means either a Qualified Performance Award or a Non-Qualified Performance Award granted
pursuant to
Section 10
, which may be denominated either in dollars or in a number of shares of Common Stock.
(ee)
“Performance Goal” means one or more standards established by the Committee pursuant to
Section 10
to
determine, in whole or in part, whether a Performance Award will be earned.
(ff)
“Person” means a “person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act and
the rules and regulations in effect from time to time thereunder.
(gg)
“Plan” means this AbTech Holdings, Inc. 2018 Incentive Stock Plan, as such plan subsequently may be amended
from time to time.
(hh)
“Qualified Domestic Relations Order” means a qualified domestic relations order as defined in Code Section 414(p),
Section 206(d)(3) of Title I of the Employee Retirement Income Security Act, or in the rules and regulations as may be in effect
from time to time thereunder.
(ii)
“Qualified Performance Award” means an Award payable in cash or Common Stock upon achievement of certain Performance
Goals established by the Committee that satisfy the requirements of
Section 10(c)
.
(jj)
“Restricted Stock” means a share of Common Stock that is granted pursuant to the terms of
Section 8
and
that is subject to the restrictions established by the Committee with respect to such share for so long as such restrictions continue
to apply to such share.
(kk)
“Restricted Stock Unit” means the Company’s unfunded promise to pay one share of Common Stock or its cash
equivalent that is granted pursuant to the terms of
Section 8
and that is subject to the restrictions established by the
Committee with respect to such unit for so long as such restrictions continue to apply to such unit.
(ll)
Unless otherwise set forth in a written agreement between the Participant and the Company, “Retirement” means
termination of employment with the Company by a Participant at a time when the Participant is at least 60 years old and the sum
of the Participant’s age and years of Service with the Company is at least 65.
(mm)
“RSU” means a Restricted Stock Unit and “RSUs” means Restricted Stock Units.
(nn)
“SAR” means a Stock Appreciation right and “SARs” means Stock Appreciation Rights.
(oo)
“Section 409A Award” means an Award granted under the Plan that is subject to Code Section 409A because it both
falls within the scope of Code Section 409A and does not satisfy an applicable exemption from Code Section 409A.
(pp)
“Securities Act” means the Securities Act of 1933, as amended from time to time.
(qq)
“Service” has the meaning set forth in
Section 17(a)
.
(rr)
“Share Limit” has the meaning set forth in
Section 5(a)
.
(ss)
“Stock Appreciation Right” means a right to receive a payment, in cash or Common Stock, equal to the excess
of the Fair Market Value of one share of Common Stock on the Exercise Date over a specified Exercise Price, in each case as determined
by the Committee subject to
Section 9
.
(tt)
“Stock Settled SAR” has the meaning set forth in
Section 9(b)
.
(uu)
“Subsidiary” or “Subsidiaries” mean any and all corporations or other entities in which, at the
pertinent time, the Company owns, directly or indirectly, equity interests vested with more than 50% of the total combined voting
power of all classes of stock of such entities within the meaning of Code Section 424(f).
(vv)
“Substitute Award” means an Award issued or made upon the assumption, substitution, conversion, adjustment,
or replacement of outstanding awards under a plan or arrangement of an entity acquired by the Company in a merger or other acquisition.
(ww)
“Vesting Date” means the date established by the Committee on which an Award may vest.
(xx)
“Voluntary Termination” means the resignation or other voluntary termination of Service by a Participant other
than in the case of Retirement.
3.
Plan Administration
.
(a)
In General
. The Plan will be administered by the Company’s Board. The Board, in its sole discretion, may delegate
all or any portion of its authority and duties under the Plan to the Committee under such conditions and limitations as the Board
may from time to time establish. The Board and/or any Committee that has been delegated the authority to administer the Plan will
be referred to throughout this Plan as the “Committee.” Except as otherwise explicitly set forth in the Plan, the Committee
will have the authority, in its discretion, to determine all matters relating to Awards under the Plan, including the selection
of the individuals to be granted Awards, the time or times of grant, the type of Awards, the number of shares of Common Stock subject
to an Award, vesting conditions, and any and all other terms, conditions, restrictions and limitations, if any, of an Award. The
Committee may authorize any one or more of its members or any officer of the Company to execute and deliver documents on behalf
of the Committee.
(b)
Committee’s Authority and Discretion with Respect to the Plan
. The Committee will have full authority and discretion
(i) to administer, interpret, and construe the Plan and the terms of any Award issued under it, (ii) to establish, amend, and rescind
any rules and regulations relating to the Plan, (iii) to determine, interpret, and construe the terms and provisions of any Award
agreement made pursuant to the Plan, and (iv) to make all other determinations that may be necessary or advisable for the administration
of the Plan and any Awards made under the Plan. In controlling and managing the operation and administration of the Plan, the Committee
will take action in a manner that conforms to the Articles of Incorporation and Bylaws of the Company, as amended from time to
time, and applicable law. Subject to (A) the limitations with respect to Incentive Stock Options under
Code Section 422 and the Plan
and (B)
Section 3(c)
, the Committee may also (1) accelerate the date on which any Award becomes exercisable, or (2) accelerate
the Vesting Date of any Award or waive or adjust any condition imposed under the Plan with respect to the vesting or exercisability
of an Award,
provided
that the Committee, in good faith, determines that such acceleration, waiver or other adjustment is
necessary or desirable in light of extraordinary and/or non-recurring circumstances, and (3) amend the Plan as set forth in
Section
18.
The Committee may correct any defect or supply any omission or reconcile any inconsistency in this Plan or in any Award
in the manner and to the extent the Committee deems necessary or desirable to further the Plan purposes. All decisions made by
the Committee in connection with the interpretation and administration of the Plan or with respect to any Awards made under the
Plan and related orders and resolutions will be final, conclusive, and binding on all Persons. Notwithstanding the foregoing, if
an Award is not a Section 409A Award, the Committee may not change the Award in any manner that would make the Award a Section
409A Award without the express written approval of the Participant.
(c)
No Repricing Without Stockholder Approval
. Notwithstanding any other provision of the Plan to the contrary, no Award
outstanding under the Plan may be repriced, regranted through cancellation, or otherwise amended to reduce the Exercise Price applicable
thereto (other than with respect to adjustments made in connection with a Change in Control or other change in the Company’s
capitalization) without the approval of the stockholders of the Company. Stockholder approval will be evidenced by the affirmative
vote of the holders of the majority of the shares of the Company’s capital stock present in person or by proxy and voting
at the meeting. For purposes of the Plan, “repricing” will include (i) amendments or adjustments to Awards that reduce
the Exercise Price of such Awards, (ii) situations in which new Awards are issued to a Participant in place of cancelled Awards
with a higher Exercise Price, and (iii) any other amendment, adjustment, cancellation or replacement grant or other means of repricing
an outstanding Award, including a buyout for a payment of cash or cash equivalents.
(d)
Section 162(m) of the Code
. Throughout this Plan, certain references are made to Section 162(m) of the Code.
Such provisions will only apply where Section 162(m) of the Code is applicable to the Company. With regard to Awards granted to
“Covered Employees” (as that term is defined in Section 162(m) of the Code) that are intended to qualify as “performance-based
compensation” for purposes of Section 162(m) of the Code, (1) the Committee that makes such grants must consist of two
or more Directors, each of whom is an “outside director” within the meaning of the definition of such term as contained
in Treasury Regulation Section 1.162-27(e)(3), or any successor definition adopted under Section 162(m) of the Code,
and (ii) the Plan will, for all purposes, be interpreted and construed with respect to such Awards in the manner that would result
in such interpretation or construction satisfying the exemptions available under Section 162(m) of the Code.
(e)
Other Plans
. Subject to
Section 3(c)
, the Committee also will have authority to grant Awards as an alternative
to, as a replacement of, or as the form of payment for awards granted or rights earned or due under the Plan or other compensation
plans or arrangements of the Company, including Substitute Awards granted with respect to an equity compensation plan of any entity
acquired by the Company. Notwithstanding the foregoing, if the grant or right to be substituted is not a Section 409A Award, the
Committee may not grant a Substitute Award that would be a Section 409A Award without the express written consent of the Participant.
Furthermore, if the grant or right to be substituted is a Section 409A Award, the Committee may not grant a Substitute Award if
the grant would cause the Section 409A Award or the Substitute Award to not be in compliance with Section 409A.
(f)
Limitation of Liability
. No member of the Committee nor any Person to whom the Committee delegates authority pursuant
to
Section 3(a)
will be liable for any action, omission or determination relating to the Plan, and the Company will indemnify
and hold harmless each member of the Committee and each other Person to whom any duty or power relating to the administration or
interpretation of the Plan has been delegated from and against any cost or expense (including attorneys’ fees) or liability
(including any sum paid in settlement of a claim with the approval of the Committee) arising out of any action, omission or determination
relating to the Plan unless, in either case, such action, omission or determination was taken or made by such Committee member
or other Person in bad faith and without reasonable belief that it was in the best interests of the Company.
4.
Eligibility
. The Persons who will be eligible to receive Awards pursuant to the Plan will be (a) any Employee that
the Committee, in its absolute discretion, selects from time to time (including officers of the
Company, whether or not they are Directors),
(a) any Consultant that the Committee, in its absolute discretion, selects from time to time, and (c) any Director that the Committee,
in its absolute discretion, selects from time to time;
provided, however,
that Incentive Stock Options may only be granted
to Employees. An Award may be granted to a proposed Employee, Consultant, or Director prior to the date the proposed Employee,
Consultant, or Director first performs services for the Company,
provided
that the grant of such Awards may not become effective
prior to the date the proposed Employee, Consultant, or Director first performs such services. Subject to the foregoing, the Committee,
in its discretion, may grant any Award permitted under the provisions of the Plan to any eligible Person and may grant more than
one Award to any eligible Person.
5.
Shares Subject to the Plan
.
(a)
Number and Source
. The shares offered under the Plan will be shares of Common Stock and may be unissued shares or
shares now held or subsequently acquired by the Company as treasury shares, as the Committee from time to time may determine. Subject
to adjustment as provided in
Section 19
, the aggregate number of shares of Common Stock for which Awards, including Options
that are intended to be Incentive Stock Options, may be granted during the term of the Plan, will not exceed an absolute maximum
of Two Million (2,000,000) shares of Common Stock (the “Share Limit”). Notwithstanding any contrary provision of this
Plan, the aggregate number of shares of Common Stock for which Awards, including Options that are intended to be Incentive Stock
Options, may be granted during any calendar year of the Company will not exceed fifteen percent (15%) of the number of issued and
outstanding shares of Common Stock as of the last day of the immediately preceding calendar year.
(b)
Determination of Shares Remaining Available Under the Share Limit
. Any shares of Common Stock that are subject to
Awards will be counted against the Share Limit as one share for every one share granted, regardless of the number of shares of
Common Stock actually issued upon the exercise or vesting of an Award. Shares will be counted against or added back to the Share
Limit as follows:
(i)
Any shares subject to an Award granted under the Plan that are not delivered because the Award expires unexercised or is
forfeited, terminated, canceled, or exchanged for Awards that do not involve Common Stock, or any shares of Common Stock that are
not delivered because the Award (other than an SAR) is settled in cash, will not be deemed to have been delivered for purposes
of determining the Share Limit. Instead, such shares will immediately be added back to the Share Limit and will be available for
future Awards at the rate of one share for every one share granted. Notwithstanding the foregoing, however, in the case of SARs,
the number of shares underlying the SARs (and not just the shares actually issued upon exercise of the SARs) will be counted against
the Share Limit if and to the extent they are settled in shares of Common Stock.
(ii)
If the Committee permits or requires conversion of Dividend Equivalents into RSUs pursuant to
Section 11
, the RSUs
arising from such a conversion of Dividend Equivalents at the election of the Participant will not count against the Share Limit,
while RSUs arising from a conversion of Dividend Equivalents that is required by the Committee will count against the Share Limit.
The grant of a Cash Award will not reduce or be counted against the Share Limit. The payment of cash dividends and Dividend Equivalents
paid in cash in conjunction with outstanding Awards will not reduce or be counted against the Share Limit. Shares of Common Stock
delivered under the Plan as a Substitute Award or in settlement of a Substitute Award will not reduce or be counted against the
Share Limit to the extent that the rules and regulations of any stock exchange or other trading market on which the Common Stock
is listed or traded provide an exemption from stockholder approval for assumption, substitution, conversion, adjustment, or replacement
of outstanding awards in connection with mergers, acquisitions, or other corporate combinations.
(iii)
The Committee may from time to time adopt and observe such rules and procedures concerning the counting of shares against
the Share Limit or any sublimit as it may deem appropriate, including rules more restrictive than those set forth above to the
extent necessary to satisfy the requirements of any national stock exchange or other trading market on which the Common Stock is
listed or traded or any applicable regulatory requirement.
6.
Terms of Awards
.
(a)
Types of Awards
. Awards granted under the Plan may include, but are not limited to, the types of Awards described
in
Sections 7
through
13
. Such Awards may be granted either alone, in addition to, or in tandem with any other types
of Award granted under the Plan.
(b)
Limit on Number of Awards
. Notwithstanding any other provision of this Plan to the contrary, the aggregate number
of shares of Common Stock that may be covered by Awards, other than Substitute Awards, granted to any individual Employee, Consultant
or Director in any calendar year pursuant to the Plan will not exceed either, or some combination of, the following limitations:
(A) Five Hundred Thousand (500,000) shares in the case of Options and SARs; or (B) Fifty Thousand (50,000) shares in the case of
Restricted Stock, RSUs (including Restricted Stock and RSUs granted subject to the terms and conditions contained in
Section
10
), and Performance Awards denominated in shares of Common Stock.
(c)
Vesting
. Except for Options or SARs issued as Substitute Awards, each Option or SAR will be subject to a minimum
vesting period of not less than one year from the Grant Date of such Option or SAR. Except as provided in the following sentence,
Awards other than Options or SARs will be subject to a minimum vesting period of not less than three years from the Grant Date
for such Awards,
provided
that such Awards may vest ratably over the vesting period as determined by the Committee at the
time of grant. Notwithstanding the foregoing, (i) Awards consisting of shares of Restricted Stock or RSUs granted to Employees
or Consultants always will be earned based on the attainment of performance criteria and may or may not also be subject to time-based
vesting, as determined by the Committee at the time of grant, (ii) Performance Awards will not be subject to time-based vesting
after the satisfaction of the relevant performance criteria unless the Committee determines otherwise on the Grant Date of such
Awards, (iii) Awards granted in lieu of or in exchange for cash compensation or other outstanding Awards that are fully vested
or otherwise earned by the Participant will be subject to such vesting period, if any, as the Committee determines on the Grant
Date of such new Awards, and (iv) the provisions of this
Section 6(c)
will be subject to the provisions of
Section 17.
(d)
Individual Award Agreements
. Each Award must be evidenced by a written agreement between the Company and the Participant
in such form and content as the Committee from time to time may approve, which agreements will substantially comply with and be
subject to the terms of the Plan. Such individual agreements (i) may contain such provisions or conditions as the Committee deems
necessary or appropriate to effectuate the sense and purpose of the Plan and (ii) may be amended from time to time in accordance
with the terms thereof. Such agreements also may include provisions with respect to the automatic forfeiture of vested or unvested
Awards and/or realized or unrealized gain, appreciation, profits, or value with respect to such Awards if the Participant breaches
or violates any affirmative or restrictive covenant or provision in the Award agreement or any other agreement between the Participant
and the Company or any Parent or Subsidiary, and such forfeiture provisions will be binding upon the Participant as a condition
to the grant of such Awards.
(e)
Payment; Deferral
. Awards granted under the Plan may be settled through exercise, as set forth in
Section 14
,
cash payments, the delivery of Common Stock (valued at Fair Market Value), through the granting of replacement Awards, or through
combinations thereof as the Committee may determine. The Committee may permit or require the deferral of any Award payment, subject
to the terms of the applicable Deferred Compensation Plan and to such rules and procedures as the Committee may establish, which
may include provisions for the payment or crediting of interest or Dividend Equivalents, including converting such credits to deferred
Awards, but only in a manner that is either exempt from or that satisfies the requirements of Section 409A. Any Award settlement,
including payment deferrals, may be subject to such conditions, restrictions, and contingencies as the Committee may determine.
A Participant’s deferral election must be made in accordance with the terms of the Deferred Compensation Plan. When the deferral
occurs, the deferred Award(s) will be transferred into or credited to a deferred compensation account established under the Deferred
Compensation Plan and will be subject to the terms of the Deferred Compensation Plan. Any and all deferrals made pursuant to this
provision, to the extent subject to Section 409A, must be made in a manner that satisfies the requirements of Section 409A.
7.
Options
. The Committee may grant Options designated as Incentive Stock Options or as Non-Qualified Stock Options.
In the absence of any such designation, however, an Option will be treated as a Non-Qualified Stock Option. A Participant and the
Committee can agree at any time to convert an Incentive Stock Option to a Non-Qualified Stock Option.
(a)
Limitations on Grants of Incentive Stock Options
. No Option that is intended to be an Incentive Stock Option will
be invalid for failure to qualify as an Incentive Stock Option under Code Section 422, but will be treated as a Non-Qualified Stock
Option. Options that are granted to a particular individual and that are intended to be Incentive Stock Options will be treated
as Non-Qualified Stock Options to the extent that the aggregate Fair Market Value of the Common Stock issuable upon exercise of
such Options plus all other Incentive Stock Options held by such individual (whether granted under the Plan or any other plans
of the Company) that become exercisable for the first time during any calendar year exceeds $100,000 (or such corresponding amount
as may be set by the Code). Such Fair Market Value will be determined as of the Grant Date of each such Incentive Stock Option.
(b)
Exercise Price of Options
. The Exercise Price of a particular Option will be determined by the Committee on the Grant
Date;
provided, however,
that the Exercise Price may not be less than 100% of the Fair Market Value of the Common Stock
on the Grant Date (110% of the Fair Market Value in the case of Incentive Stock Options that are granted to a stockholder who owns
or is deemed to own stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or
of any Parent or Subsidiary of the Company on the Grant Date).
(c)
Term of Options
. The Committee will set the term of each Option,
provided, however,
that except as set forth
in
Section 17(b)
, no Option may be exercisable more than 10 years after the Grant Date (five years in the case of Incentive
Stock Options that are granted to a stockholder who owns or is deemed to own stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or of any Parent or Subsidiary of the Company on the Grant Date); and
provided,
further,
that each Option will be subject to earlier termination, expiration or cancellation as provided in the Plan or in
the Option agreement.
8.
Restricted Stock and Restricted Stock Units
. The Committee may grant Awards consisting of shares of Restricted Stock
or denominated in Restricted Stock Units in such amounts and for such consideration as the Committee may determine in its discretion.
Such Awards may be subject to (a) forfeiture of such shares or RSUs upon termination of Service during the applicable restriction
period, (b) restrictions on transferability (which may be in addition to or in lieu of those specified in
Section 15
), (c)
limitations on the right to vote such shares, (d) limitations on the right to receive dividends with respect to such shares, (e)
attainment of certain Performance Goals, such as those described in
Section 10
, and (f) such other conditions, limitations,
and restrictions as determined by the Committee, in its discretion, and as set forth in the instrument evidencing the Award. Certificates
representing shares of Restricted Stock or shares of Common Stock issued upon vesting of RSUs will bear an appropriate legend and
may be held subject to escrow and such other conditions as determined by the Committee until such time as all applicable restrictions
lapse.
9.
Stock Appreciation Rights
. The Committee may grant SARs pursuant to the Plan, either in tandem with another Award
granted under the Plan or independent of any other Award grant. Each grant of SARs will be evidenced by an agreement in such form
as the Committee may from time to time approve. The Committee may establish a maximum appreciation value payable for SARs and such
other terms and conditions for such SARs as the Committee may determine in its discretion. The Exercise Price of an SAR may not
be less than 100% of the Fair Market Value of the Common Stock on the Grant Date. The holder of an SAR granted in tandem with an
Option may elect to exercise either the Option or the SAR, but not both. Except as set forth in
Section 17(b)
, the exercise
period for an SAR will extend no more than 10 years after the Grant Date. In addition, each grant of SARs will comply with and
be subject to the following terms and conditions:
(a)
Vesting Date and Conditions to Vesting
. Subject to
Section 6(c)
, upon the grant of SARs the Committee may
(i) establish a Vesting Date or Vesting Dates and expiration dates with respect to such rights, (ii) divide such rights into classes
and assign a different Vesting Date for each class, and (iii) impose such restrictions or conditions, not inconsistent with the
provisions herein, with respect to the vesting of such rights as the Committee, in its absolute discretion, deems appropriate.
By way of example and not by way of limitation, the Committee may require, as a condition to the vesting of any class or classes
of SARs, that the Participant or the Company achieve certain performance criteria, such criteria to be specified by the Committee
on the Grant Date of such rights. Provided that all conditions to the vesting of the SARs are satisfied, and except as provided
in
Section 17
, upon the occurrence of the Vesting Date with respect to such SARs, such rights will vest and the Participant
will be entitled to exercise such rights prior to their termination or expiration.
(b)
Benefit Upon Exercise of Stock Appreciation Rights
. On the Grant Date of each SAR, the Committee, in its sole discretion,
will determine whether such SAR is a Cash Settled SAR, a Stock Settled SAR, or if the Participant to whom the SAR is granted will
have the right to determine, at the time of exercise, whether the SAR will be settled in cash or shares of Common Stock. The agreement
evidencing the SAR will specify whether the SAR is a Cash Settled SAR, a Stock Settled SAR, or (in the sole discretion of the Committee)
whether the Participant to whom the SAR is granted will have the right to determine, at the time of exercise, whether the SAR will
be settled in cash or shares of Common Stock. Upon the exercise of a vested “Cash Settled SAR,” the Company will pay
to the Participant a lump sum amount of cash equal to the difference between (i) the Fair Market Value of one share of Common Stock
of the Company on the Exercise Date, over (ii) the Exercise Price of the SAR. Upon the exercise of a vested “Stock Settled
SAR,” the Company will deliver to the Participant shares of the Company’s Common Stock having a Fair Market Value as
of the Exercise Date equal to the difference between (A) the Fair Market Value of one share of Common Stock of the Company on the
Exercise Date, over (B) the Exercise Price of the SAR. The Company will deliver such cash payment or shares of common stock, as
the case may be, within 90 days of the Exercise Date for the SAR.
10.
Performance Awards
. The Committee may grant Performance Awards pursuant to the Plan. Each grant of Performance Awards
will be evidenced by an agreement in such form as the Committee may from time to time approve. Each grant of Performance Awards
will comply with and be subject to the following terms and conditions:
(a)
Performance Period and Amount of Performance Award
. With respect to each grant of a Performance Award, the Committee
will establish a performance period over which the performance of the Company and/or of the applicable Participant will be measured,
provided
that no performance period will be shorter than one year. In determining the amount of the Performance Award to
be granted to a particular Participant, the Committee may take into account such factors as the Participant’s responsibility
level and growth potential, the amount of other Awards granted to or received by such Participant, and such other considerations
as the Committee deems appropriate;
provided, however,
the maximum value that can be granted as a Performance Award to any
one individual during any calendar year will be limited to the amount set forth in
Section 6(b)
.
(b)
Non-Qualified Performance Awards and Qualified Performance Awards
. Non-Qualified Performance Awards, which are not
intended to qualify as qualified performance-based compensation under Code Section 162(m), will be based on achievement of such
goals and subject to such terms, conditions, and restrictions as the Committee determines. Qualified Performance Awards, which
are intended to qualify as qualified performance-based compensation under Code Section 162(m), will be paid, vested or otherwise
deliverable solely on account of the attainment of one or more pre-established, objective Performance Goals established by the
Committee as set forth in
Section 10(c)
.
(c)
Performance Goals
. A Qualified Performance Award will be paid solely on the attainment of certain pre-established,
objective performance goals (within the meaning of Code Section 162(m)). Such Performance Goals will be based on any one or any
combination of the following business criteria, as determined by the Committee:
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earnings before interest and taxes;
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earnings before interest, taxes, depreciation and amortization;
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net operating income after tax;
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pre-tax or after-tax income;
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return on invested capital;
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return on capital employed;
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economic value added (or an equivalent metric);
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share price performance;
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other earnings criteria or profit-related return ratios;
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successful acquisitions of other companies or assets;
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successful dispositions of Subsidiaries, divisions or departments of the Company or any of its
Subsidiaries;
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successful financing efforts;
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total stockholder return;
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improvement in or attainment of expense levels;
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improvement in or attainment of working capital levels;
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Such Performance Goals may be (i) stated
in absolute terms or expressed in terms of dollar amounts, percentages, on a per-share basis, or on such other basis or in such
other manner as determined by the Committee, (ii) based on one or more business criteria that apply to the Participant, one or
more Subsidiaries, business units or divisions of the Company, or the Company as a whole, (iii) relative to other companies or
specified indices, (iv) achieved during a period of time, or (v) as otherwise determined by the Committee. Unless otherwise stated,
a Performance Goal need not be based upon an increase or positive result under a particular business criterion and could include,
for example, maintaining the status quo or limiting economic losses (measured, in each case, by reference to specific business
criteria). In measuring a Performance Goal, the Committee may exclude certain extraordinary, unusual or non-recurring items,
provided
that such exclusions are stated by the Committee at the time the Performance Goals are determined. In interpreting Plan provisions
applicable to Qualified Performance Awards, it is the intent of the Plan to conform with the standards of Code Section 162(m) and
Treasury Regulation Section 1.162-27(e) with respect to grants to those Participants whose compensation is, or is likely to be,
subject to Code Section 162(m), and the Committee in establishing such goals and interpreting the Plan will be guided by such provisions.
The Committee will establish, in writing, the applicable Performance Goal(s) and the specific targets related to such goal(s) prior
to the earlier to occur of (A) 90 days after the commencement of the period of service to which the Performance Goal relates and
(B) the lapse of 25% of the period of service (as scheduled in good faith at the time the goal is established), and in any event
while the outcome is substantially uncertain within the meaning of Code Section 162(m), subject to adjustment by the Committee
as it deems appropriate to reflect significant unforeseen events or changes. A Performance Goal is objective if a third party having
knowledge of the relevant facts could determine whether the goal is met.
(d)
Payment
. Upon the expiration of the performance period relating to a Performance Award granted to a Participant,
such Participant will be entitled to receive payment of an amount not exceeding the maximum value of the Performance Award, based
on the achievement of the Performance Goals for such performance period, as determined by the Committee. The Committee may, within
its sole discretion, pay a Performance Award under any one or more of the Performance Goals established by the Committee with respect
to such Performance Award, or may exercise its negative discretion to reduce or eliminate the amount of any Performance Award that
would otherwise be payable to a Participant. The Committee will certify in writing prior to the payment of a Performance Award
that the applicable Performance Goals and any other material terms of the grant have been satisfied. Subject to
Sections 5
and
6(b)
, payment of a Performance Award may be made in cash, shares of Common Stock, other Awards, other property, or a
combination thereof, as determined by the Committee.
Payment will be made in a lump
sum or in installments as prescribed by the Committee;
provided, however
, that if the terms of the Performance Award (including
payment terms) make the Performance Award subject to Code Section 409A, the Performance Award will be a Section 409A Award and
will be established in such a manner as to comply with the applicable requirements of Code Section 409A.
11.
Dividends and Dividend Equivalents.
The Committee may grant, as a separate Award or at the time of granting any other
Award granted under the Plan (other than Options or SARs), Awards that entitle the Participant to receive dividends or Dividend
Equivalents with respect to all or a portion of the number of shares of Common Stock subject to such Award, in each case subject
to such terms as the Committee may establish in its discretion and as set forth in the instrument evidencing the Award. Dividends
or Dividend Equivalents may accrue interest and the instrument evidencing the Award will specify whether dividends or Dividend
Equivalents will be (a) paid currently, (b) paid at a later, specified date (such as if, and when, and to the extent such related
Award, if any, is paid), (c) deferrable by the Participant under and subject to the terms of an applicable Deferred Compensation
Plan, (d) subject to the same vesting as the Award to which the dividends or Dividend Equivalents relate, if applicable, and/or
(e) deemed to have been reinvested in shares of Common Stock or otherwise reinvested. Where Dividend Equivalents are deferred or
subject to vesting, the Committee may permit, or require, the conversion of Dividend Equivalents into RSUs. If the terms of the
grant of dividends or Dividend Equivalents makes that grant subject to Code Section 409A (even if the underlying Award is not subject
to Code Section 409A), the grant will be a Section 409A Award and will be established in such a manner as to comply with the applicable
requirements of Code Section 409A.
12.
Cash Awards
. The Committee may, in its absolute discretion, grant Cash Awards in such amounts as it may determine
from time to time. A Cash Award may be granted (a) as a separate Award, (b) in connection with the grant, issuance, vesting, exercise,
or payment of another Award under the Plan or at any time thereafter, or (c) on or after the date on which the Participant is required
to recognize income for federal income tax purposes in connection with the grant, issuance, vesting, exercise, or payment of another
Award under the Plan. Cash Awards will be subject to such terms, conditions, and limitations as the Committee may determine on
the Grant Date of such Cash Award. Cash Awards intended to qualify as performance-based compensation under Code Section 162(m)
will be subject to the same terms and conditions as in the case of the Qualified Performance Awards described in
Section 10
.
13.
Other Stock-Based Awards.
The Committee may grant such other Awards that are payable in, valued in whole or in part
by reference to, or otherwise based on or related to shares of Common Stock as may be deemed by the Committee to be consistent
with the purposes of the Plan. Such other Awards may include, without limitation, (a)convertible or exchangeable debt or equity
securities, (b) other rights convertible or exchangeable into shares of Common Stock, and (c) Awards valued by reference to the
value of shares of Common Stock or the value of securities of or the performance of specified Subsidiaries of the Company.
14.
Award Exercise
.
(a)
Precondition to Stock Issuance
. Awards will be exercisable in accordance with such terms and conditions and during
such periods as may be established by the Committee. No shares of Common Stock will be delivered pursuant to the exercise of any
Award, in whole or in part, until the Company receives payment in full of the Exercise Price, if any, as provided in
Section
14(c)
. No Participant or any legal representative, legatee or distributee will be or be deemed to be a holder of any shares
of Common Stock subject to such Award unless and until such Award is exercised, the full Exercise Price is paid, and such shares
are issued.
(b)
No Vesting or Exercise of Fractional Amounts
. With respect to any Award that vests or is exercised in a manner that
would result in fractional shares of Common Stock being issued, any fractional share that would be one-half of one share or greater
will be rounded up to a full share, and any fractional share that would be less than one-half of one share will not be vested or
issued unless and until the last increment of such Award becomes vested. No Award may at any time be exercised with respect to
a fractional share. Instead the Company will pay to the holder of such Award cash in an amount equal to the Fair Market Value of
such fractional share on the Exercise Date.
(c)
Form of Payment
. A Participant may exercise an Award using as the form of payment such means as the Committee may,
from time to time, approve, whether in the agreement evidencing the Award or otherwise.
(d)
Form and Time of Exercises
. Except as otherwise (i) set forth in the Plan, (ii) determined by the Committee, or (iii)
set forth in the agreement or other documents evidencing the Award, each exercise required or permitted to be made by any Participant
or other Person entitled to benefits under the Plan, and any permitted modification or revocation thereof, must be in writing delivered
to the Company at such times, in such form, and subject to such restrictions and limitations, not inconsistent with the terms of
the Plan, and any other agreement, as the Committee may require.
15.
Transferability
. Awards may be assigned or transferred only as permitted pursuant to this
Section 15
. No Award
may be assigned or transferred for value or in violation of any stock ownership or stock retention guidelines or policies adopted
by the Company from time to time.
(a)
Restrictions on Transfer
. Except as specifically allowed by the Committee, any Incentive Stock Option granted under
the Plan will, during the Participant’s lifetime, be exercisable only by such Participant and will not be assignable or transferable
by such Participant other than by will or the laws of descent and distribution or pursuant to a Qualified Domestic Relations Order.
Except as specifically allowed by the Committee, any Non-Qualified Stock Option and any other Award granted under the Plan and
any of the rights and privileges conferred thereby will not be assignable or transferable by the Participant other than (i) pursuant
to
Section 15(b)
, or (ii) by will or the laws of descent and distribution or pursuant to a Qualified Domestic Relations
Order, and such Award will be exercisable during the Participant’s lifetime only by the Participant.
(b)
Permitted Transfers
. Awards other than Incentive Stock Options may be assigned to (i) a child, stepchild, grandchild,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive
relationships, (ii) any Person sharing the Participant’s household (other than a tenant or employee), (iii) a trust in which
the Participant or the Persons described in (i) or (ii) hold more than 50% of the beneficial interest, or (iv) a private foundation
in which the Participant or the Persons described in (i) or (ii) own more than 50% of the voting interests. A transfer to any entity
in which more than 50% of the voting interests are owned by the Participant or the Persons described in (i) or (ii) in exchange
for an interest in that entity will not constitute a transfer for value.
(c)
Transfers Upon Death
. Upon the death of a Participant, outstanding Awards held by such Participant may be exercised
only by the executors or administrators of the Participant’s estate or by any Person(s) who will have acquired such right
to exercise by will or by the laws of descent and distribution or by assignment or transfer from the Participant as contemplated
by
Section 15(b)
above. No transfer by will or the laws of descent and distribution, or as contemplated by
Section 15(b)
above, of any Award, or the right to exercise any Award, will be effective to bind the Company unless the Committee has been furnished
with (i) written notice thereof and with a copy of the will, assignment, or transfer document and/or such evidence as the Committee
may deem necessary to establish the validity of the transfer and (ii) an agreement by the transferee to comply with all the terms
and conditions of the Award that are or would have been applicable to the Participant and to be bound by the acknowledgments made
by the Participant in connection with the grant of the Award.
16.
Withholding Taxes; Other Deductions
. All distributions under the Plan are subject to withholding of all applicable
taxes, and the Committee may condition the delivery of any Awards, cash, shares of Common Stock, or other benefits under the Plan
upon satisfaction of the applicable withholding obligations. The Company will have the right to deduct from any grant, issuance,
vesting, exercise, or payment of an Award under the Plan (a) an amount of cash or shares of Common Stock having a value sufficient
to cover withholding as required by law for any federal, state or local taxes, and (b) any other amounts due from the Participant
to the Company or to any Parent or Subsidiary of the Company, or to take such other action as may be necessary to satisfy any such
withholding or other obligations, including withholding from any other cash amounts due or to become due from the Company to such
Participant an amount equal to such taxes or obligations. The Committee, in its discretion, also may permit the Participant to
deliver to the Company, at the time of grant, issuance, vesting, exercise, or payment of an Award, one or more shares of Common
Stock owned by such Participant and having an aggregate Fair Market Value (as of the date of such grant, issuance, vesting, exercise,
or payment, as the case may
be) up to or equal to (but not in excess
of) the amount of the taxes incurred in connection with such grant, issuance, vesting, exercise, or payment, as the case may be.
17.
Termination of Service
.
(a)
Definition of “Service.”
For purposes of the Plan, unless otherwise (i) determined by the Committee,
(ii) set forth in the agreement or other documents evidencing the Award, or (iii) set forth in a written agreement between the
Participant and the Company, a Participant will be deemed to be in “Service” to the Company so long as such individual
renders continuous service on a periodic basis to the Company (or to any Parent or Subsidiary of the Company) in the capacity of
an Employee, Consultant, Director, or other advisor. A Participant will be considered to be (A) an Employee for so long as such
individual remains in the employ of the Company or any Parent or Subsidiary of the Company and (B) a Consultant for so long as
such individual provides services to the Company or any Parent or Subsidiary of the Company. Except as otherwise (1) determined
by the Committee, (2) set forth in the agreement or other documents evidencing the Award, or (3) set forth in a written agreement
between the Participant and the Company, a Participant’s Service with the Company will be deemed terminated if the Participant’s
leave of absence (including military or other bona fide leave of absence) extends for more than 90 days and the Participant’s
continued Service with the Company is not guaranteed by contract or statute;
provided
that whether an authorized leave of
absence, or absence in military or government service, constitutes termination of Service will be determined by the Committee in
its absolute discretion.
(b)
Treatment of Awards Upon Termination of Service
. Except as otherwise (i) determined by the Committee, (ii) set forth
in the agreement or other documents evidencing the Award, or (iii) set forth in a written agreement between the Participant and
the Company:
(i)
Termination of Service by the Company Without Cause
. Except as set forth in
Section 17(c)
, if the Participant’s
Service with the Company is terminated by the Company without Cause, then (A) all Options and SARs held by such Participant will
continue to vest for a period of 90 days after such termination and, to the extent vested, all Options and SARs held by such Participant
will remain exercisable until the expiration of the longer of (1) 90 days after such termination, or (2) 30 days following the
end of any blackout period to which the Participant may be subject, on which date they will expire,
provided, however
, that
no Option or SAR will be exercisable after the expiration of its term; (B) all unvested Awards other than Options, SARs, and Performance
Awards held by such Participant will continue to vest for a period of 90 days after such termination, on which date the unvested
portion of such Awards will be forfeited; and (C) all unvested Performance Awards will be forfeited as of the commencement of business
on the date of the Participant’s termination of Service.
(ii)
Termination of Service for Cause
. In the event of the termination of a Participant’s Service for Cause, all
outstanding Awards held by such Participant will immediately expire and be forfeited as of the commencement of business on the
date of such termination.
(iii)
Termination of Service Upon Disability or Death
. If the Participant’s Service with the Company is terminated
as the result of the Participant’s Disability or death, (A) all unvested Options and SARs held by such Participant will become
fully and immediately exercisable and will remain exercisable until the expiration of one year after such termination, on which
date they will expire,
provided, however
, that no Option or SAR will be exercisable after the expiration of its term; (B)
all Restricted Stock and RSUs held by such Participant will become fully and immediately vested; (C) fifty percent (50%) of all
outstanding Performance Awards held by such Participant on the date of such termination will be deemed to be earned and the target
performance goals for the relevant performance period(s) with respect to such Performance Awards will be deemed to have been attained;
and (D) all other Awards held by such Participant will immediately be forfeited as of the commencement of business on the date
of such termination.
(iv)
Termination of Service Upon Retirement
. If the Participant’s Service with the Company is terminated as a result
of the Participant’s Retirement, then (A) all unvested Options and SARs held by such Participant will continue to vest and,
to the extent vested, all Options and SARs held by such Participant will remain exercisable for a period of one year after such
termination, on which date they will expire,
provided, however
, that no Option or SAR will be exercisable after the expiration
of its term; (B) all unvested Awards other than Options, SARs, or Performance Awards held by such Participant will continue to
vest for a period of one year
after such termination, on which date the
unvested portion of such Awards will be forfeited; and (C) all unvested Performance Awards will be forfeited as of the commencement
of business on the date of the Participant’s termination of Service.
(v)
Voluntary Termination of Service
. If the Participant’s Service with the Company is terminated as a result of
the Participant’s Voluntary Termination, then (A) all Options and SARS held by such Participant, to the extent they were
vested and exercisable at the time of such termination, will remain exercisable until the expiration of the longer of (1) 90 days
after such termination, or (2) 30 days following the end of any blackout period to which the Participant may be subject, on which
date they will expire,
provided, however
, that no Option or SAR will be exercisable after the expiration of its term; and
(B) all unvested Awards will be forfeited as of the commencement of business on the date of the Participant’s termination
of Service.
(c)
Change in Control
. Except as otherwise determined by the Committee, in the event of a Change in Control the Acquiror
will either assume the Company’s rights and obligations under all then-outstanding Awards and/or substitute for all then-outstanding
Awards substantially equivalent awards for the Acquiror’s securities. In connection with a Change in Control, the following
provisions will apply:
(i)
Acquiror Assumes the Company’s Rights and Obligations and/or Substitutes Substantially Equivalent Awards
. Except
as otherwise (A) determined by the Committee, (B) set forth in the agreement or other documents evidencing the Award, or (C) set
forth in a written agreement between the Participant and the Company, to the extent that the Acquiror either assumes the Company’s
rights and obligations under outstanding Awards when the Change in Control is consummated and/or substitutes for outstanding Awards
substantially equivalent Awards for the Acquiror’s securities when the Change in Control is consummated, such assumed or
substituted Awards will remain in full force and effect and will continue to vest as though the Change in Control did not occur.
In such a case, if a Participant’s Service with the Company is terminated by the Acquiror without Cause within one year after
the occurrence of a Change in Control, then (A) all unvested Options and SARs held by the Participant as of the date of termination
will become vested and fully and immediately exercisable and will remain exercisable until the expiration of the longer of (x)
90 days after such termination, or (y) 30 days following the end of any blackout period to which the Participant may be subject,
on which date they will expire,
provided, however
, that no Option or SAR will be exercisable after the expiration of its
term, (B) all Restricted Stock and RSUs held by such Participant will become fully and immediately vested; (C) one hundred percent
(100%) of all outstanding Performance Awards held by such Participant on the date of such termination will be deemed to be earned
and the target performance goals for the relevant performance period(s) with respect to such Performance Awards will be deemed
to have been attained; and (D) all other Awards held by such Participant will become fully and immediately vested.
(ii)
Acquiror Does Not Assume the Company’s Rights and Obligations and/or Substitute Substantially Equivalent Awards
.
Except as otherwise (A) determined by the Committee, (B) set forth in the agreement or other documents evidencing the Award, or
(C) set forth in a written agreement between the Participant and the Company, in the event the Acquiror does not assume some or
all of the Awards outstanding when the Change in Control is consummated and/or substitute substantially equivalent Awards for the
Acquiror’s securities for some or all of the Awards outstanding when the Change of Control is consummated, the Committee
may, in its discretion, provide that all or any of the unexercisable, unvested, and/or unearned portion of such Awards will be
immediately vested, exercisable, and/or deemed to be earned in full or in part immediately prior to consummation of the Change
of Control. The vesting, exercise, and/or deemed earning of Awards that is permissible solely by reason of this
Section 17(c)(ii)
will be conditioned upon the consummation of the Change of Control. Unless otherwise provided by the Committee, any Awards that
are neither (i) assumed by or substituted for by the Acquiror in connection with the Change of Control nor (ii) vested, exercised,
and/or deemed earned in connection with the consummation of the Change of Control will terminate and cease to be outstanding effective
as of the consummation of the Change of Control.
(d)
Limitations with Respect to Incentive Stock Options
. Notwithstanding any other provision of this Plan to the contrary,
the period during which any Options that are intended to be Incentive Stock Options may remain exercisable following the termination
of a Participant’s employment with the Company will not exceed the maximum period of time that such Options may remain exercisable
pursuant to Code Section 422.
(e)
Definitions
. For purposes of this
Section 17
, the term “year” means 365 calendar days beginning
with the calendar day on which the relevant event occurs.
18.
Plan Amendment and Termination; Bifurcation of the Plan
. The Committee may amend, change, make additions to, or suspend
or terminate the Plan as it may, from time to time, deem necessary or appropriate and in the best interests of the Company;
provided
that the Committee may not, without the consent of the affected Participant, take any action that disqualifies any Incentive Stock
Option previously granted under the Plan for treatment as an Incentive Stock Option or that adversely affects or impairs the rights
of any Award outstanding under the Plan; and
provided further
that, to the extent that stockholder approval of an amendment
to the Plan is required by applicable law or the requirements of any securities exchange or trading market on which the Common
Stock is listed or traded, such amendment will not be effective prior to approval by the Company’s stockholders. Notwithstanding
any provision of this Plan to the contrary, (a) the Committee, in its sole discretion, may bifurcate the Plan so as to restrict,
limit or condition the use of any provision of the Plan to Participants who are subject to Section 16 of the Exchange Act without
so restricting, limiting or conditioning the Plan with respect to other Participants, and (b) no amendment or termination of the
Plan will, with respect to any Section 409A Award, be done in a manner that would violate the requirements of Code Section 409A.
Furthermore, although the Committee may not take any actions that would violate applicable laws of any jurisdiction, the Committee
will have the right to take all necessary actions in order to comply with laws, regulations, and requirements of any jurisdiction
having authority over Awards granted pursuant to the Plan including, without limitation, (i) the right to establish separate sub-plans
or programs to provide for the grant of Awards to eligible Persons in international jurisdictions, (ii) the right to tailor such
sub-plans in a manner that, as the Committee determines necessary and advisable, will comply with local laws, regulations, and
requirements or maximize the efficiency of the Plan in light of local tax or accounting considerations, and (iii) the right to
take any action required, either before or after the grant of an Award, to comply with any applicable local government regulatory
exemptions or approvals.
19.
Adjustment of Awards Upon the Occurrence of Certain Events
.
(a)
Adjustment of Shares Available
. If as a result of any increase or decrease in the number of issued shares of Common
Stock resulting from the payment of any stock dividend or from any stock split, reverse stock split, split-up, combination or exchange
of shares, merger, consolidation, spin-off, reorganization, or recapitalization of shares or any like capital adjustment, the Committee
(i) will have the authority, in its absolute discretion, to proportionately adjust the aggregate number and type of shares available
for Awards under the Plan, and (ii) will proportionately adjust (A) the maximum number and type of shares or other securities that
may be subject to Awards to any individual under the Plan, (B) the number and type of shares or other securities covered by each
outstanding Award, and (C) the Exercise Price per share (but not the total price) for Awards outstanding under the Plan, in each
case in order to prevent the enlargement or dilution of rights of the Participants under such Awards. Notwithstanding the foregoing,
any adjustment to shares subject to a Section 409A Award must be done in accordance with the requirements of Code Section 409A.
In addition, if an adjustment would result in an Award that is not a Section 409A Award becoming a Section 409A Award, then the
Committee will not make the adjustment without the express written consent of the Participant.
(b)
Adjustments to Outstanding Restricted Stock, RSUs, and SARs
. Except as otherwise set forth in the instrument evidencing
such Award, if a Participant receives any securities or other property (including dividends paid in cash) with respect to a share
of Restricted Stock, RSU, or SAR that has not vested as of the date of the payment of any stock dividend or any stock split, reverse
stock split, split-up, combination or exchange of shares, merger, consolidation, spin-off, reorganization, or recapitalization
of shares or any like capital adjustment, then such securities or other property will not vest until such share of Restricted Stock,
RSU, or SAR vests and will be held by the Company as if such securities or other property were non-vested shares of Restricted
Stock, RSUs, or SARs.
(c)
Adjustment Upon Certain Mergers, etc
. Subject to any required action by the stockholders of the Company, if the Company
is the surviving corporation in any merger or consolidation (other than a Change in Control or a merger or consolidation as a result
of which the holders of shares of Common Stock receive securities of another corporation), each Award outstanding on the date of
such merger or consolidation will entitle the Participant to acquire upon exercise, if applicable, the securities that a holder
of the number of shares of Common Stock subject to such Award would have received in such merger or consolidation.
(d)
Adjustment Upon Certain Other Transactions
. In the event of a dissolution or liquidation of the Company, the Committee
will, in its absolute discretion, have the power to (i) cancel, effective immediately prior to the occurrence of such event, each
Award outstanding immediately prior to such event (whether or not then exercisable) and, in full consideration of such cancellation,
pay to the Participant to whom such Award was granted an amount in cash, for each share of Common Stock subject to such Award,
equal to the excess of (A) the value, as determined by the Committee in its absolute discretion, of the property (including cash)
received or to be received by the holder of a share of Common Stock as a result of such event over (B) the Exercise Price, if any,
of such Award; or (ii) provide for the exchange of each Award outstanding immediately prior to such event (whether or not then
exercisable) for an option on some or all of the property for which such Award is exchanged and, incident thereto, make an equitable
adjustment as determined by the Committee in its absolute discretion in the Exercise Price of the Award, or the number of shares
or amount of property subject to the Award or, if appropriate, provide for a cash payment to the Participant to whom such Award
was granted in full or partial consideration for the exchange of the Award. Notwithstanding the foregoing, any adjustments pursuant
to this
Section 19(d)
will not be done if the adjustment is to a Section 409A Award and the adjustment is not permitted
under Code Section 409A or if the adjustment is to an Award not subject to Code Section 409A and would cause the Award to become
a Section 409A Award, unless otherwise expressly agreed to in writing by the Participant.
(e)
No Other Rights
. Except as expressly provided in the Plan or in any agreement governing the Award, no Participant
will have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend,
any increase or decrease in the number of shares of stock of any class or any dissolution, liquidation, merger or consolidation
of the Company or any other entity. Except as expressly provided in the Plan or in any agreement governing the Award, no issuance
by the Company of shares of stock of any class or securities convertible into shares of stock of any class will affect, and no
adjustment by reason thereof will be made with respect to, the number of shares of Common Stock subject to an Award or the Exercise
Price of any Award.
20.
Approval by Stockholders; Effective Date and Term of Plan
. The Plan was adopted by the Board on June 26, 2018. The
Plan will be submitted to the stockholders of the Company for their approval at a regular or special meeting to be held within
12 months after the adoption of the Plan by the Board. Stockholder approval will be evidenced by the affirmative vote of the holders
of a majority of the shares of the Company’s Common Stock present in person or by proxy and voting at the meeting. Upon stockholder
approval, the Plan will remain in full force and effect through the tenth anniversary of the Effective Date, unless sooner terminated
by the Committee. After the Plan is terminated, no future Awards may be granted under the Plan, but Awards previously granted will
remain outstanding in accordance with their applicable terms and conditions and the Plan’s terms and conditions. If the Plan
is not approved by the Company’s stockholders within 12 months after its adoption by the Board, the Plan and any Awards granted
under the Plan will automatically terminate and will be of no force and effect to the same extent and with the same effect as though
this Plan had never been adopted.
21.
General Restrictions
. Notwithstanding any other provision of the Plan, the Company will have no liability to deliver
any shares of Common Stock under the Plan or make any other distribution of benefits under the Plan unless such delivery or distribution
would comply with all applicable laws (including, without limitation, the requirements of the Securities Act), and the applicable
requirements of any securities exchange or other trading market on which the Common Stock is listed or traded. To the extent that
the Plan provides for issuance of stock certificates to reflect the issuance of shares of Common Stock, the issuance may be effected
on a non-certificated basis to the extent not prohibited by applicable law or the applicable rules of any stock exchange or other
trading market on which the Common Stock is listed or traded.
22.
Compliance With Applicable Law.
(a)
Exchange Act Section 16
. Notwithstanding any provision of this Plan to the contrary, only the entire Board or a Committee
composed of two or more “Non-Employee Directors” (as that term is defined in Rule 16b-3(b)(3) promulgated under the
Exchange Act or any successor provision to such rule) may make determinations regarding grants of Awards to Persons subject to
Section 16 under the Exchange Act.
(b)
Code Section 162(m)
. The Committee will have the authority and discretion to determine the extent to which Awards
will conform to the requirements of Code Section 162(m) and to take such
action, establish such procedures,
and impose such restrictions as the Committee determines to be necessary or appropriate to conform to such requirements. To the
extent any provision of the Plan or action by the Committee or Board fails to so comply, it will be deemed null and void to the
extent permitted by law and deemed advisable by the Committee or Board.
(c)
Code Section 409A
. To the extent an Award granted under the Plan is a Section 409A Award, such Section 409A Award
will be intended to comply with the requirements of Code Section 409A and any related regulations or other guidance promulgated
with respect to such section by the U.S. Department of the Treasury or the Internal Revenue Service. Therefore, the Committee may
not make any changes or adjustments to the Section 409A Award that is not in accordance with the requirements of Code Section 409A
without the express written consent of the Participant. Also, if an Award granted under the Plan is not a Section 409A Award then,
notwithstanding any other provision in this Plan, the Committee will take no action that causes the Award to become a Section 409A
Award without the express written consent of the Participant.
23.
No Rights as a Stockholder
. No Person will have any rights as a stockholder of the Company with respect to any shares
of Common Stock covered by or relating to any Award granted pursuant to this Plan until the date of the issuance of a stock certificate
with respect to such shares or the date of issuance of shares on a non-certificated basis pursuant to policies adopted by the Company
from time to time.
24.
No Special Employment Rights; No Right to Awards
. Nothing contained in the Plan or any Award will confer upon any
Participant any right with respect to the continuation of his or her Service by the Company or interfere in any way with the right
of the Company, subject to the terms of any separate agreement to the contrary, at any time to terminate such Service or to increase
or decrease the compensation of the Participant from the rate in existence on the Grant Date of an Award. No Person will have any
claim or right to receive any Award under this Plan. The grant of an Award to a Participant at any time will neither require the
Committee to grant an Award to such Participant or any other Participant or other Person at any other time nor preclude the Committee
from making subsequent grants to such Participant or any other Participant or other Person.
25.
Expenses and Receipts.
The expenses of the Plan will be paid by the Company. Any proceeds received by the Company
in connection with any Award will be used for general corporate purposes.
26.
Failure to Comply
. In addition to the remedies of the Company elsewhere provided for herein, failure by a Participant
to comply with any of the terms and conditions of the Plan or the agreement evidencing an Award will be grounds for the cancellation
and forfeiture of such Award, in whole or in part, as the Committee, in its absolute discretion, may determine, unless such failure
is remedied by such Participant within ten days after having been notified of such failure by the Committee.
27.
Plan Not Exclusive
. This Plan is not intended to be the exclusive means by which the Company may issue options, warrants,
or other rights to acquire shares of Common Stock.
28.
Governing Law
. The Plan will be governed by, and all questions arising hereunder will be determined in accordance
with, the laws of the State of Nevada, excluding any conflicts or choice of law rule or principle that might otherwise refer construction
or interpretation of this Plan to the substantive law of another jurisdiction.
29.
Limitation of Implied Rights
. Neither a Participant nor any other Person will, by reason of participation in the
Plan, acquire any right in or title to any assets, funds or property of the Company or any Subsidiary whatsoever including, without
limitation, any specific funds, assets, or other property that the Company, in its sole discretion, may set aside in anticipation
of a liability under the Plan. A Participant will have only a contractual right to the Common Stock or other amounts, if any, payable
under the Plan, unsecured by any assets of the Company, and nothing contained in the Plan will constitute an obligation to pay
any benefits to any Person.
30.
Unfunded Plan.
This Plan will be unfunded. Although bookkeeping accounts may be established with respect to Participants
under this Plan, any such accounts will be used merely as a bookkeeping convenience, including bookkeeping accounts established
by a third party administrator retained by the Company to administer
the Plan. The Company will not be required
to segregate any assets for purposes of this Plan or Awards hereunder, nor will the Company, the Board or the Committee be deemed
to be a trustee of any benefit to be granted under this Plan. Any liability or obligation of the Company to any Participant with
respect to an Award under this Plan will be based solely upon any contractual obligations that may be created by this Plan and
any Award agreement, and no such liability or obligation of the Company will be deemed to be secured by any pledge or other encumbrance
on any property of the Company. Neither the Company nor the Board nor the Committee will be required to give any security or bond
for the performance of any obligation that may be created by this Plan.
31.
Successors.
All obligations of the Company under the Plan with respect to Awards granted hereunder will be binding
on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
32.
Substitution of Awards.
Subject to
Sections 3
,
18
,
19
and
22(c)
, at the discretion of
the Committee, a Participant may be offered an election to substitute an Award for another Award or Awards of the same or different
type. The Grant Date for any Award granted pursuant to the substitution provisions of this
Section 32
will have the Grant
Date of the original Award.