Item 5.02 Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
On
April 5, 2019, the Board of Directors of New Age Beverages
Corporation (the “Company”) approved the New Age
Beverages Corporation 2019 Equity Incentive Plan (the “2019
Plan”), subject to shareholder approval.
The
2019 Plan will terminate on the tenth anniversary of the date of
approval by the Board, unless earlier terminated by the Board,
provided that, if the Company does not obtain the stockholder
approval within one year from the date the 2019 Plan was approved
by the Board, the 2019 Plan will be immediately unwound and any
outstanding options granted thereunder prior to obtaining the
requisite stockholder approval will be immediately
cancelled.
The
purposes of the 2019 Plan are to (a) enable the Company to attract
and retain the types of employees, consultants and directors who
will contribute to the Company's long range success; (b) provide
incentives that align the interests of employees, consultants and
directors with those of the shareholders of the Company; and (c)
promote the success of the Company's business.
The
maximum number of shares of common stock that may be issued under
the 2019 Plan will be 10,000,000. In the event of a stock dividend,
stock split or other change in our capital structure, the
Administrator will make appropriate adjustments to the limits
described above and will also make appropriate adjustments to the
number and kind of shares of stock or securities subject to awards,
any exercise prices relating to awards and any other provisions of
awards affected by the change. The Administrator may also make
similar adjustments to take into account other distributions to
stockholders or any other event, if the Administrator determines
that adjustments are appropriate to avoid distortion in the
operation of the 2019 Plan and to preserve the value of
awards.
The
Board of Directors (or a Board committee appointed by the Board of
Directors) administers the 2019 Plan. The Administrator of the 2019
Plan has full authority to determine who will receive awards and to
determine the types of awards to be granted as well as the amounts,
terms, and conditions of any awards. Awards may be in the form of
options, restricted stock, or restricted stock units. The
Administrator has the right to determine any questions that may
arise regarding the interpretation and application of the
provisions of the 2019 Plan and to make, administer, and interpret
such rules and regulations as it deems necessary or advisable.
Determinations of the Administrator made under the 2019 Plan are
conclusive and bind all parties, unless such decisions are
determined by a court having jurisdiction to be arbitrary and
capricious.
Participation
in the 2019 Plan is limited to employees, non-employee directors,
as well as consultants who are selected by the Administrator to
receive an award.
The
Administrator may, from time to time, award options to any
participant subject to the limitations described above. Stock
options give the holder the right to purchase shares of common
stock of the Company within a specified period of time at a
specified price. Two types of stock options may be granted under
the 2019 Plan: incentive stock options, or “ISOs”,
which are subject to special tax treatment as described below, and
nonstatutory options, or “NSOs.” Eligibility for ISOs
is limited to employees of the Company and its
subsidiaries.
The exercise price of an ISO cannot be less than
the fair market value of the common stock at the time of grant. In
addition, the expiration date of an ISO cannot be more than ten
years after the date of the original grant. In the case of NSOs,
the exercise price and the expiration date are determined in the
discretion of the Administrator. The Administrator also determines
all other terms and conditions related to the exercise of an
option, including the consideration to be paid, if any, for the
grant of the option, the time at which options may be exercised and
conditions related to the exercise of options.
The
2019 Plan provides for awards of shares of restricted common stock.
Awards of restricted stock may be made in exchange for past
services or other lawful consideration. Generally, awards of
restricted stock are subject to the requirement that the shares be
forfeited or resold to the Company unless specified conditions are
met. Subject to these restrictions, conditions and forfeiture
provisions, any recipient of an award of restricted stock will have
all the rights of a stockholder of the Company, including the right
to vote the shares and to receive dividends. The 2019 Plan also
provides for deferred grants (“deferred stock”)
entitling the recipient to receive shares of common stock in the
future on such conditions as the Administrator may specify. Any
stock award or award of deferred stock resulting in a deferral of
compensation subject to Section 409A of the Internal Revenue
Code of 1986, as it may be amended from time to time (the
“Code”) will be construed to the maximum extent
possible consistent with the requirements of Section 409A of
the Code.
ISOs
will not be transferable except by will or by the laws of descent
and distribution and shall be exercisable during the lifetime of
the optionholder only by the optionholder. NSOs may, in the sole
discretion of the Committee, be transferable to a Permitted
Transferee (as defined under the 2019 Plan), upon written approval
by the Committee to the extent provided in the award agreement.
Shares delivered under the 2019 Plan may consist of either
authorized but unissued or treasury shares, or shares reacquired by
the Company in any manner.
In
the event of a Change in Control (as defined under the 2019 Plan),
unless otherwise provided in an award agreement, all outstanding
options will become immediately exercisable with respect to 100% of
the shares subject to such options, and/or the restricted period
will expire immediately with respect to 100% of the outstanding
shares of restricted stock or restricted stock units.
The
Administrator may at any time or times amend the 2019 Plan or any
outstanding award for any purpose which may at the time be
permitted by law, and may at any time terminate the 2019 Plan as to
any future grants of awards, provided that, no amendment will be
effective unless approved by the shareholders of the Company to the
extent shareholder approval is necessary to satisfy any applicable
laws or regulations. The Administrator may not, however, alter the
terms of an award so as to affect adversely any holder’s
rights under any award without the holder’s
consent.
The foregoing summary description of the 2019 Plan
does not purport to be complete and is qualified in its entirety by
reference to a copy thereof, which is incorporated herein by
reference