TIDMAKR
RNS Number : 8919J
Akers Biosciences, Inc.
10 December 2018
December 10, 2018
Akers Biosciences, Inc.
Results of Annual Meeting of Shareholders
&
Form 8-K Filing
Akers Biosciences, Inc. (NASDAQ: AKER) (AIM: AKR.L), (the
"Company" or "Akers Bio"), a developer of rapid health information
technologies, announces that the Company has filed a Form 8-K with
the U.S. Securities and Exchange Commission concerning the results
of the annual meeting of shareholders, which was held on December
7, 2018, and at which all proposals were approved by shareholders.
The Form 8-K is available to view on Akers Bio's website at
www.akersbio.com or on www.sec.gov and appears in full in the
appendix below.
Inquiries:
Akers Biosciences, Inc.
Howard R. Yeaton, Chief Executive Officer and Interim Chief
Financial Officer
Tel. +1 856 848 8698
finnCap (UK Nominated Adviser and Broker)
Ed Frisby / Scott Mathieson (Corporate Finance)
Tel. +44 (0)20 7220 0500
Vigo Communications (Global Public Relations)
Ben Simons / Fiona Henson
Tel. +44 (0)20 7390 0234
Email: akers@vigocomms.com
About Akers Biosciences, Inc.
Akers Bio develops, manufactures, and supplies rapid screening
and testing products designed to deliver quicker and more
cost-effective healthcare information to healthcare providers and
consumers. The Company has advanced the science of diagnostics
while responding to major shifts in healthcare through the
development of several proprietary platform technologies. The
Company's state-of-the-art rapid diagnostic assays can be performed
virtually anywhere in minutes when time is of the essence. The
Company has aligned with major healthcare companies and high volume
medical product distributors to maximize product offerings, and to
be a major worldwide competitor in diagnostics.
Additional information on the Company and its products can be
found at www.akersbio.com.
Cautionary Note Regarding Forward-Looking Statements
Statements contained herein that are not based upon current or
historical fact are forward-looking in nature and constitute
forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking
statements reflect the Company's expectations about its future
operating results, performance and opportunities that involve
substantial risks and uncertainties. Such statements may include,
without limitation, statements with respect to the Company's plans,
compliance with the requirements of various regulatory agencies and
certain NASDAQ Stock Market listing rules, objectives, projections,
expectations and intentions and other statements identified by
words such as "projects," "may," "will," "could," "would," "should,
" "believes," "expects," "anticipates," "estimates," "intends,"
"plans," "potential" or similar expressions, as they relate to the
Company, its subsidiaries, or its management. These statements are
based upon the current beliefs and expectations of the Company's
management and are subject to significant risks and uncertainties,
including those detailed in the Company's filings with the
Securities and Exchange Commission. Actual results, performance,
prospects, and opportunities to may differ materially from those
set forth in, or implied by, the forward-looking statements. These
forward-looking statements involve certain risks and uncertainties
that are subject to change based on various factors (many of which
are beyond the Company's control). The Company undertakes no
obligation to publicly update any forward-looking statements,
whether as a result of new information, future events or otherwise,
except as required by applicable law.
APPIX - FORM 8-K
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 7,
2018
AKERS BIOSCIENCES, INC.
(Exact name of registrant as specified in its charter)
New Jersey 001-36268 22-2983783
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification Number)
201 Grove Road
Thorofare, New Jersey USA 08086
(Address of principal executive offices, including zip code)
(856) 848-8698
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the
Company under any of the following provisions:
[ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
]
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933
(--230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (--240.12b-2 of this chapter).
Emerging growth company [X]
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. [
]
Item 1.01 Entry into a Material Definitive Agreement.
As further disclosed in item 5.07 below, effective December 7,
2018 the shareholders of Akers Biosciences, Inc. (the "Company"),
upon the recommendation of the Board of Directors (the "Board") of
the Company, approved and adopted the Akers Biosciences, Inc. 2018
Equity Incentive Plan (the "2018 Plan").
Highlights of the 2018 Plan
We adopted our 2018 Plan to enable us and our affiliated
companies to: (a) recruit and retain highly qualified employees,
directors and consultants; (b) offer them a greater stake in our
success and a closer identity with our company; and (c) encourage
ownership of our stock by such individuals.
The 2018 Plan permits the grant of (i) nonqualified stock
options ("Options"); (ii) restricted stock awards; (iii) restricted
stock units ("RSUs"), (iv) stock appreciation rights ("SARs") and
(v) other stock-based awards, which we refer to collectively as
"Awards," as more fully described below.
Some of the key features of the 2018 Plan that reflect our
commitment to effective management of incentive compensation are as
follows:
No In-the-Money Options. The 2018 Plan prohibits the grant of
Options with an exercise or base price less than the fair market
value of our common stock as of the date of grant.
Section 162(m) Qualification. The 2018 Plan is designed to allow
Awards made under the 2018 Plan to qualify as performance-based
compensation under Section 162(m) of the Code.
Recoupment. Awards made under the 2018 Plan may be subject to
rescission, cancellation or recoupment, in whole or in part, under
any current or future "clawback" or similar policy maintained by us
that is applicable to any participant.
Independent Administration. The compensation committee of the
Board (the "Compensation Committee"), which consists of only
independent directors, will be responsible for the general
administration of the 2018 Plan with respect to Awards, provided
however, that the Compensation Committee may delegate to one or
more officers or Board members the authority to grant Awards to
eligible individuals, who are neither subject to the requirements
of Rule 16b-3 of the Exchange Act nor "covered employees" within
the meaning of Section 162(m) of the Code
All Awards granted under the 2018 Plan are governed by separate
written agreements, or Award Agreements, between us and the
participants. No Awards may be granted after the 10(th) anniversary
of the date on which the 2018 Plan was approved by the Board,
although Awards granted before that time will remain valid in
accordance with their terms.
Eligibility. Any of our employees, officers, directors,
consultants (who are natural persons) are eligible to participate
in the 2018 Plan if selected by the Compensation Committee (the
"Participants"). Currently we have twenty (20) employees, two (2)
officers, three (3) directors, and one (1) consultant who are
eligible to be Participants in the 2018 Plan. The basis of
participation of an individual under the 2018 Plan, and the type
and amount of any Award that an individual will be entitled to
receive under the 2018 Plan, will be determined by the Compensation
Committee based on its judgment as to the best interests of the
Company and our stockholders, and therefore cannot be determined in
advance.
Subject to certain adjustments, the maximum number of shares of
common stock that may be issued under the 2018 Plan in connection
with Awards is one million eight hundred seventy-five thousand
(1,875,000). In any calendar year, no Participant may receive any
Award or any combination of Awards that relate to more than six
hundred twenty-five thousand (625,000) shares.
The Board has initiated a process to evaluate strategic
alternatives to maximize shareholder value. This process will
consider a range of potential strategic alternatives including, but
not limited to, business combinations, while simultaneously
supporting the Company's management and employees in the execution
of the Company's current business activities. The Company does not
plan to disclose or comment on developments regarding the strategic
review process until it is complete or further disclosure is deemed
appropriate. There can be no assurance that the exploration of
strategic alternatives will result in any transaction or other
alternative. Upon the successful consummation of a strategic
alternative the Company may issue securities of up to six hundred
twenty-five thousand (625,000) shares pursuant to the 2018 Plan to
each of its officers and directors.
Any shares tendered by a Participant in payment of an exercise
price for an Award or the tax liability with respect to an Award,
including shares withheld from any such Award, shall not be
available for future Awards hereunder. Any shares of Common Stock
issued by the Company through the assumption or substitution of
outstanding grants from an acquired company shall not reduce the
shares of Common Stock available for Awards under the Plan.
Additionally, subject to counting procedures adopted by the
Compensation Committee, any shares subject to an Award under the
Plan that are forfeited or terminated without an actual
distribution of shares shall again be available for Awards under
the Plan.
In the event of any stock dividend, recapitalization, forward
split or reverse split, reorganization, merger, consolidation,
spin-off, combination, repurchase or share exchange, extraordinary
or unusual cash distribution or other similar corporate transaction
or event, which affects the Common Stock, the Compensation
Committee may make such adjustment, which is appropriate in order
to prevent dilution or enlargement of the rights of Participants
under the Plan, to (i) the number and kind of shares of Common
Stock which may thereafter be issued in connection with Awards,
(ii) the number and kind of shares of Common Stock issuable in
respect of outstanding Awards, (iii) the aggregate number and kind
of shares of Common Stock available under the Plan, (iv) the limits
described in above, (v) the exercise price or grant price relating
to any Award or, if deemed appropriate, make provision for a cash
payment with respect to any outstanding Award, and (vi) if
applicable to the performance goals applicable to any such
Award.
Options. An Option entitles the holder to purchase from us a
stated number of shares of common stock at a set price. The
Compensation Committee will specify the number of shares of common
stock subject to each Option and the exercise price for such
Option, provided that the exercise price may not be less than the
fair market value of a share of common stock on the date the Option
is granted. Generally, all or part of the exercise price may be
paid (i) in cash, (ii) with shares of Common Stock of the Company
owned by the optionee, (iii) with other legal consideration that
the Committee may deem appropriate, which may include payment
through cashless and net exercise arrangements, to the extent
permitted by applicable law, or (iv) by any combination of such
methods. Participants who are subject to the reporting requirements
of Section 16 of the Exchange Act may elect to pay all or a portion
of the exercise price of an Option by directing the Company to
withhold shares of Common Stock that would otherwise be received
upon exercise of such Option.
All Options shall be exercisable in accordance with the terms of
the applicable Award Agreement. The maximum term of an Option shall
be determined by the Compensation Committee on the date of grant
but shall not exceed 10 years.
Unless otherwise provided in an Award Agreement or as may be
determined by the Compensation Committee, upon a Participant's
termination of service with the Company, the unvested portion of
such Participant's Options shall cease to vest and shall be
forfeited with no further compensation due to the Participant and
the vested portion of such Participant's Options shall remain
exercisable by the Participant or the Participant's beneficiary or
legal representative, as the case may be, for a period of (i) 90
days in the event of a Participant's termination of service by the
Company or a Subsidiary without Cause (as such term is defined in
the Plan), (ii) one year in the event of a Participant's
termination of service due to death or disability and (iii) 30 days
in the event of a Participant's voluntary termination of service;
provided, however, that in no event shall any Option be exercisable
after its stated term has expired. All of a Participant's Options
shall be forfeited immediately upon such Participant's termination
by the Company for Cause.
Restricted Stock. A restricted stock award is a grant of shares
of common stock, which are subject to forfeiture restrictions
during a restriction period. The Compensation Committee will
determine the price, if any, to be paid by the Participant for each
share of common stock subject to a restricted stock award. The
Compensation Committee may condition the expiration of the
restriction period, if any, upon: (i) the Participant's continued
service over a period of time with us or our affiliates; (ii) the
achievement by the Participant, us or our affiliates of any other
performance goals set by the Compensation Committee; or (iii) any
combination of the above conditions as specified in the Award
Agreement. If the specified conditions are not attained, the
Participant will forfeit the portion of the restricted stock award
with respect to which those conditions are not attained, and the
underlying common stock will be forfeited to us. At the end of the
restriction period, if the conditions, if any, have been satisfied,
the restrictions imposed will lapse with respect to the applicable
number of shares. During the restriction period, unless otherwise
provided in an Award Agreement, a Participant will have the right
to vote the shares underlying the restricted stock; however, all
dividends will remain subject to restriction until the stock with
respect to which the dividend was issued lapses. The Compensation
Committee may, in its discretion, accelerate the vesting and
delivery of shares of restricted stock. Unless otherwise provided
in an Award Agreement or as may be determined by the Compensation
Committee, upon a Participant's termination of service with the
Company, the unvested portion of a restricted stock award will be
forfeited.
RSUs. RSUs are granted in reference to a specified number of
shares of common stock and entitle the holder to receive, on
achievement of specific performance goals established by the
Compensation Committee, after a period of continued service with us
or our affiliates or any combination of the above as set forth in
the applicable Award Agreement, one share of common stock for each
such share of common stock covered by the RSU. The Compensation
Committee may, in its discretion, accelerate the vesting of RSUs.
Unless otherwise provided in an Award Agreement or as may be
determined by the Compensation Committee, upon a Participant's
termination of service with the Company, the unvested portion of
the RSUs will be forfeited.
Stock Appreciation Rights. An SAR entitles the recipient to
receive, upon exercise of the SAR, the increase in the fair market
value of a specified number of shares of common stock from the date
of the grant of the SAR and the date of exercise payable in shares
of common stock. Any grant may specify a vesting period or periods
before the SAR may become exercisable and permissible dates or
periods on or during which the SAR shall be exercisable. No SAR may
be exercised more than ten years from the grant date. Upon a
Participant's termination of service the same general conditions
applicable to Options as described above would be applicable to the
SAR.
Other Stock-Based Awards. Other Stock-Based Awards may be
granted by the Compensation Committee in the form and on such terms
and conditions as the Committee shall determine.
Performance Goals. Performance goals may be linked to a variety
of factors including the Participant's completion of a specified
period of employment or service with us or an affiliated company.
Additionally, performance goals can include objectives stated with
respect to an individual Participant, the Company or the
subsidiary, division, department or function in which the
Participant is employed. Performance goals may be measured on an
absolute or relative basis. Relative performance may be measured by
a group of peer companies or by a financial market index. The
performance goals are limited to one or more of the following:
-- specified levels of or increases in the Company's, a division's or a subsidiary's return on
capital, equity or assets;
-- earnings measures/ratios (on a gross, net, pre-tax or post-tax basis), including diluted earnings
per share, total earnings, operating earnings, earnings growth, earnings before interest and
taxes (EBIT) and earnings before interest, taxes, depreciation and amortization (EBITDA);
-- net economic profit (which is operating earnings minus a charge to capital);
-- net income;
-- operating income;
-- sales;
-- sales growth;
-- gross margin;
-- direct margin;
-- share price (including but not limited to growth measures and total stockholder return), operating
profit; per period or cumulative cash flow (including but not limited to operating cash flow
and free cash flow) or cash flow return on investment (which equals net cash flow divided
by total capital);
-- inventory turns;
-- financial return ratios;
-- market share;
-- balance sheet measurements such as receivable turnover;
-- improvement in or attainment of expense levels;
-- improvement in or attainment of working capital levels;
-- debt reduction;
-- strategic innovation, including but not limited to entering into, substantially completing,
or receiving payments under, relating to, or deriving from a joint development agreement,
licensing agreement, or similar agreement;
-- customer or employee satisfaction;
-- individual objectives;
-- any other financial or other measurement deemed appropriate by the Committee as it relates
to the results of operations or other measurable progress of the Company and its subsidiaries
(or any business unit of the Company or any of its subsidiaries); and/or
-- any combination of any of the foregoing criteria.
The Compensation Committee may impose restrictions on the grant,
exercise or payment of an Award as it determines appropriate.
Generally, Awards granted under the 2018 Plan shall be
nontransferable except by will or by the laws of descent and
distribution. No Participant shall have any rights as a stockholder
with respect to shares covered by Options, SARs, or RSUs, unless
and until such Awards are settled in shares of common stock.
No Option (or, if applicable, SARs) shall be exercisable, no
shares of common stock shall be issued, no certificates for shares
of common stock shall be delivered and no payment shall be made
under the 2018 Plan except in compliance with all applicable
laws.
Our board of directors may amend, suspend or terminate the 2018
Plan and the Compensation Committee may amend any outstanding Award
at any time; provided that (a) such amendment, alteration,
suspension, discontinuation, or termination shall be subject to the
approval of the Company's stockholders if (i) such action would
decrease the price at which outstanding Awards may be exercised or
(ii) such stockholder approval is required by any applicable
federal, state or foreign law or regulation or the rules of any
stock exchange or automated quotation system on which the Common
Stock may then be listed or quoted and (b) no such amendment or
termination may adversely affect Awards then outstanding without
the holder's permission, unless such amendment is necessary to
ensure a deduction under Section 162(m) of the Code, if applicable,
or to avoid the additional tax described in Section 409A of the
Code.
In the event of a change in control (as defined in the 2018
Plan), the Compensation Committee may, in its discretion, (i)
accelerate the vesting and, if applicable, exercisability of all
outstanding Awards, (ii) cancel all outstanding Options or SARs in
exchange for a cash payment in an amount equal to the excess, if
any, of the fair market value of the Common Stock underlying the
unexercised portion of the Option or SAR over the exercise price or
grant price, as the case may be, of such portion, , (iii) terminate
all Options or SARs, effective immediately prior to the change in
control, provided that the Company provides the Participant an
opportunity to exercise such Award within a specified period
following the Participant's receipt of a written notice of such
change in control and the Company's intention to terminate such
Awards, or (iv) require the successor corporation, following a
change in control if the Company does not survive such change in
control, to assume all outstanding Options or SARs and to
substitute such Options or SARs with awards involving the common
stock of such successor corporation on terms and conditions
necessary to preserve the rights of Participants with respect to
such Options or SARs. The judgment of the Compensation Committee
with respect to a change in control shall be conclusive and binding
upon each Participant without the need for any amendment to the
Plan.
New Plan Benefits
Because our Compensation Committee has discretion to grant
future awards of a design and amount determined in its discretion,
(i) it is not possible at present to specify the persons to whom
Awards will be granted under the 2018 Plan in the future or the
amounts and types of individual grants and (ii) nor would it be
possible to predict what awards would have been had the 2018 Plan
been in existence in the prior fiscal year. However, it is
anticipated that, among others, all of our current executive
officers, including our named executive officers, will receive
Awards under the 2018 Plan.
Section 162(m) of the Internal Revenue Code
Section 162(m) of the Code limits the federal income tax
deductions a publicly held company can claim for compensation in
excess of $1,000,000 paid to certain executive officers (generally,
the officers who are "named executive officers" in the summary
compensation table in the issuer's proxy statement, excluding the
issuer's principal financial officer). "Qualified performance-based
compensation" is not counted against the $1,000,000 deductibility
limit. Under the 2018 Plan, options and SARs granted with an
exercise price at least equal to 100% of the fair market value of
the underlying shares at the date of grant may satisfy the
requirements for treatment as "qualified performance-based
compensation." In addition, Performance Awards that are conditioned
upon achievement of certain Performance Goals may satisfy the
requirements for treatment as "qualified performance-based
compensation." A number of other requirements must be met, however,
in order for those awards to so qualify. Accordingly, there can be
no assurance that awards under the 2018 Plan will be fully
deductible under all circumstances.
Federal Income Tax Consequences Relating to Awards Under the
2018 Plan.
The material United States federal income tax treatment of
awards under the 2018 Plan is generally described below. This
description of tax consequences is not a complete description.
There may be different income tax consequences under certain
circumstances, and there may be gift and estate tax consequences.
Local, state and other taxing authorities may also tax awards under
the plan. Tax laws are subject to change.
Nonqualified Stock Options
There are generally no federal income tax consequences to a
Participant or to the Company upon the grant of a nonqualified
stock option. Upon the exercise of a nonqualified stock option, a
Participant will recognize ordinary income in an amount equal to
the excess of the fair market value of the shares at the time of
exercise over the aggregate exercise price paid. The Company
generally will be entitled to a corresponding federal income tax
deduction. The Participant will have a tax basis in the shares
equal to the exercise price plus the amount of income recognized at
the time of exercise.
When a Participant sells shares of stock acquired through the
exercise of a nonqualified stock option, the Participant will have
a capital gain or loss in an amount equal to the difference between
the amount realized on the sale and the tax basis in the shares.
The capital gain tax rate will depend on a number of factors,
including the length of time the Participant held the shares prior
to selling them.
Restricted Stock
Unless a Participant makes a valid Section 83(b) election as
described below, such Participant will generally not recognize
federal taxable income when he or she receives a grant of
restricted stock, and the Company will not be entitled to a
deduction, until the stock is transferable by the Participant or is
otherwise no longer subject to a substantial risk of forfeiture.
When the stock is either transferable or is no longer subject to a
substantial risk of forfeiture, a Participant will recognize
ordinary income in an amount equal to the fair market value of the
shares at that time (less any amounts paid for the shares), and
generally, the Company will be entitled to a deduction in the same
amount. Any gain or loss recognized by the Participant upon a later
disposition of the shares will be capital gain or loss. A
Participant's holding period for purposes of determining whether
that capital gain or loss is long-term or short-term will be
counted from the date the stock became transferable or ceased to be
subject to a substantial risk of forfeiture.
A Participant may elect to recognize ordinary income in the year
when the share award is granted in an amount equal to the fair
market value of the shares subject to the award (less any amounts
paid for such shares) at the time of grant, determined without
regard to certain restrictions. This election is referred to as a
Section 83(b) election. In that event, the Company will be entitled
to a corresponding deduction in the same year. Any gain or loss
recognized by the Participant upon a later disposition of the
shares will be capital gain or loss. A Participant's holding period
for purposes of determining whether that capital gain or loss is
long-term or short-term will be counted from the date of the
original transfer to the Participant. The Participant may not claim
a credit for any tax previously paid on stock that is later
forfeited.
Restricted Stock Units
If a Participant is granted a restricted stock unit, he or she
will not be required to recognize any taxable income at the time of
grant. Upon distribution of shares or cash in respect of a
restricted stock unit, the fair market value of those shares or the
amount of that cash will be taxable to the Participant as ordinary
income and the Company will receive a deduction equal to the income
recognized by the Participant. The subsequent disposition of shares
acquired pursuant to a restricted stock unit will result in capital
gain or loss (based on the difference between the price received on
disposition and the market value of the shares at the time of their
distribution). The capital gain tax rate will depend on a number of
factors, including the length of time the Participant held the
shares prior to selling them.
SARs
A Participant realizes no taxable income and the Company is not
entitled to a deduction when a SAR is granted. Upon exercising a
SAR, a Participant will realize ordinary income in an amount equal
to the fair market value of the shares received minus any amount
paid for the shares, and the Company will be entitled to a
corresponding deduction. A Participant's tax basis in the shares of
common stock received upon exercise of a SAR will be equal to the
fair market value of such shares on the exercise date, and the
Participant's holding period for such shares will begin at that
time. Upon sale of the shares of common stock received upon
exercise of a SAR, the Participant will realize short-term or
long-term capital gain or loss, depending upon whether the shares
have been held for more than one year. The amount of such gain or
loss will be equal to the difference between the amount realized in
connection with the sale of the shares and the Participant's tax
basis in such shares.
Other Stock-Based Awards
The tax consequences of receiving other stock-based Awards will
generally be governed by the principles set forth in the Code.
These tax consequences may vary depending upon the terms and
conditions of such awards.
Equity Awards
The grant of options and other equity or cash awards under the
2018 Plan is discretionary and we cannot determine now the specific
number or type of equity or cash awards to be granted in the future
to any particular person or group. Any such grants of awards will
be made in the sole discretion of our Compensation Committee, in
such amounts and to such persons, as our Compensation Committee
deems appropriate.
The above description of the 2018 Plan does not purport to be
complete and is qualified in its entirety by reference to the full
text of the 2018 Plan, which is attached as Exhibit 10.1 to this
Current Report on Form 8-K is are incorporated by reference
herein.
Item 5.07. Submission of Matters to a Vote of Security
Holders.
On December 7, 2018, the Company held its 2018 annual meeting of
shareholders (the "Annual Meeting"). The number of shares of common
stock entitled to vote at the Annual Meeting was 99,661,848. The
number of shares of common stock present or represented by valid
proxy at the Annual Meeting was 61,382,720. Greater than 33.34% of
the shares of common stock outstanding and entitled to vote at the
Annual Meeting were present in person or by proxy, thereby
constituting a quorum. All matters submitted to a vote of the
Company's stockholders at the Annual Meeting were approved and the
director nominees were elected. The voting results reported below
are final. The number of shares of common stock referenced in this
Item 5.07 of this Current Report on Form 8-K reflect the Company's
common stock prior to the Company's one-for-eight (1-for-8) reverse
stock split, which was effectuated on November 8, 2018.
The following is a tabulation of the voting on the proposals
presented at the Annual Meeting:
Proposal 1: To elect three (3) directors to hold office for a
one year term and until their successors are elected and qualified
or until their earlier incapacity, removal or resignation. Each
nominee for director was elected by a vote of the stockholders as
follows:
Nominee Shares Voted For With held
----------------------------- ----------------- ---------
Joshua Silverman 18,383,118 4,930,921
Bill J. White 18,471,367 4,842,672
Christopher C. Schreiber 18,502,769 4,811,270
Proposal 2: To approve the Akers Biosciences, Inc. 2018 Equity
Incentive Plan
Shares Voted For Shares Against Shares Abstaining
---------------- ---------------- -------------------
15,332,833 7,597,513 383,693
Proposal 3: To ratify the amendments to the Akers Biosciences,
Inc. 2013 Incentive Plan
Shares Voted For Shares Against Shares Abstaining
---------------- ---------------- -------------------
17,855,378 5,199,177 259,544
Proposal 4: To consider and conduct a non-binding advisory vote
on a proposal to approve the Company's executive compensation
Shares Voted For Shares Against Shares Abstaining
---------------- ---------------- -------------------
14,553,033 8,136,695 624,311
Proposal 5 To ratify the appointment by the Audit Committee of
the Company's Board of Directors of Morison Cogen LLP as the
Company's registered public accounting firm for the fiscal year
ending December 31, 2018:
Shares Voted For Shares Against Shares Abstaining
---------------- ---------------- -------------------
56,011,783 4,312,513 1,058,424
On the basis of the above votes, (i) Joshua Silverman, Bill J.
White, and Christopher C. Schreiber were elected as members of the
Board; (ii) the 2018 Plan was approved and adopted, (iii) the
amendments to the Akers Biosciences, Inc. 2013 Equity Incentive
Plan were ratified, (iv) the Company's executive compensation was
approved by a non-binding advisory vote, and (v) the proposal to
ratify the selection of Morison Cogen LLP, as the Company's
independent registered public accountant to audit its consolidated
financial statements for 2018 was adopted.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
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10.1 Form of Akers Biosciences, Inc. 2018 Equity Incentive Plan.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
AKERS BIOSCIENCES, INC.
Date: December 7, 2018 By: /s/ Howard R. Yeaton
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Howard R. Yeaton
Chief Executive Officer
Exhibit 10.1
AKERS BIOSCIENCES, INC
2018 EQUITY INCENTIVE PLAN
1. Purpose. The purpose of the Akers Biosciences, Inc., 2018
Equity Incentive Plan is to provide a means through which the
Company and its Affiliates may attract and retain key personnel and
to provide a means whereby directors, officers, managers,
employees, consultants and advisors of the Company and its
Affiliates can acquire and maintain an equity interest in the
Company, or be paid incentive compensation, which may (but need
not) be measured by reference to the value of Common Shares,
thereby strengthening their commitment to the welfare of the
Company and its Affiliates and aligning their interests with those
of the Company's stockholders.
2. Definitions. The following definitions shall be applicable
throughout this Plan:
(a) "Affiliate" means (i) any person or entity that directly or
indirectly controls, is controlled by or is under common control
with the Company and/or (ii) to the extent provided by the
Committee, any person or entity in which the Company has a
significant interest as determined by the Committee in its
discretion. The term "control" (including, with correlative
meaning, the terms "controlled by" and "under common control
with"), as applied to any person or entity, means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person or entity,
whether through the ownership of voting or other securities, by
contract or otherwise.
(b) "Award" means, individually or collectively, any Incentive
Stock Option, Nonqualified Stock Option, Stock Appreciation Right,
Restricted Stock, Restricted Stock Unit, Stock Bonus Award or
Performance Compensation Award granted under this Plan.
(c) "Award Agreement" means an agreement made and delivered in
accordance with Section 15(a) of this Plan evidencing the grant of
an Award hereunder.
(d) "Board" means the Board of Directors of the Company.
(e) "Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions in New York City are
authorized or obligated by federal law or executive order to be
closed.
(f) "Cause" means, in the case of a particular Award, unless the
applicable Award Agreement states otherwise, (i) the Company or an
Affiliate having "cause" to terminate a Participant's employment or
service, as defined in any employment or consulting agreement or
similar document or policy between the Participant and the Company
or an Affiliate in effect at the time of such termination or (ii)
in the absence of any such employment or consulting agreement,
document or policy (or the absence of any definition of "Cause"
contained therein), (A) a continuing material breach or material
default (including, without limitation, any material dereliction of
duty) by Participant of any agreement between the Participant and
the Company, except for any such breach or default which is caused
by the physical disability of the Participant (as determined by a
neutral physician), or a continuing failure by the Participant to
follow the direction of a duly authorized representative of the
Company; (B) gross negligence, willful misfeasance or breach of
fiduciary duty to the Company or Affiliate of the Company by the
Participant; (C) the commission by the Participant of an act of
fraud, embezzlement or any felony or other crime of dishonesty in
connection with the Participant's duties to the Company or
Affiliate of the Company; or (D) conviction of the Participant of a
felony or any other crime that would materially and adversely
affect: (i) the business reputation of the Company or Affiliate of
the Company or (ii) the performance of the Participant's duties to
the Company or an Affiliate of the Company. Any determination of
whether Cause exists shall be made by the Committee in its sole
discretion.
(g) "Change in Control" shall, in the case of a particular
Award, unless the applicable Award Agreement states otherwise or
contains a different definition of "Change in Control," be deemed
to occur upon:
(i) A tender offer (or series of related offers) shall be made
and consummated for the ownership of 50% or more of the outstanding
voting securities of the Company, unless as a result of such tender
offer more than 50% of the outstanding voting securities of the
surviving or resulting corporation or entity shall be owned in the
aggregate by (A) the shareholders of the Company (as of the time
immediately prior to the commencement of such offer), or (B) any
employee benefit plan of the Company or its Subsidiaries, and their
Affiliates;
(ii) The Company shall be merged or consolidated with another
corporation, unless as a result of such merger or consolidation
more than 50% of the outstanding voting securities of the surviving
or resulting corporation or entity shall be owned in the aggregate
by (A) the shareholders of the Company (as of the time immediately
prior to such transaction); provided, that a merger or
consolidation of the Company with another company which is
controlled by persons owning more than 50% of the outstanding
voting securities of the Company shall constitute a Change in
Control unless the Committee, in its discretion, determine
otherwise, or (B) any employee benefit plan of the Company or its
Subsidiaries, and their Affiliates;
(iii) The Company shall sell substantially all of its assets to
another entity that is not wholly owned by the Company, unless as a
result of such sale more than 50% of such assets shall be owned in
the aggregate by (A) the shareholders of the Company (as of the
time immediately prior to such transaction), or (B) any employee
benefit plan of the Company or its Subsidiaries, and their
Affiliates;
(iv) A Person (as defined below) shall acquire 50% or more of
the outstanding voting securities of the Company (whether directly,
indirectly, beneficially or of record), unless as a result of such
acquisition more than 50% of the outstanding voting securities of
the surviving or resulting corporation or entity shall be owned in
the aggregate by (A) the shareholders of the Company (as of the
time immediately prior to the first acquisition of such securities
by such Person), or (B) any employee benefit plan of the Company or
its Subsidiaries, and their Affiliates; or
(v) The individuals who, as of the date hereof, constitute the
members of the Board (the "Current Board Members") cease, by reason
of a financing, merger, combination, acquisition, takeover or other
non-ordinary course transaction affecting the Company, to
constitute at least a majority of the members of the Board unless
such change is approved by the Current Board Members.
For purposes of this Section 2(g), ownership of voting
securities shall take into account and shall include ownership as
determined by applying the provisions of Rule 13d-3(d)(I)(i) (as in
effect on the date hereof) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, for such
purposes, "Person" shall have the meaning given in Section 3(a)(9)
of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof; however, a Person shall not include (A) the Company
or any of its Subsidiaries; (B) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
any of its Subsidiaries; (C) an underwriter temporarily holding
securities pursuant to an offering of such securities; or (D) a
corporation owned, directly or indirectly, by the shareholders of
the Company in substantially the same proportion as their ownership
of stock of the Company.
(h) "Code" means the Internal Revenue Code of 1986, as amended,
and any successor thereto. References in this Plan to any section
of the Code shall be deemed to include any regulations or other
interpretative guidance issued by any governmental authority under
such section, and any amendments or successor provisions to such
section, regulations or guidance.
(i) "Committee" means a committee of at least two people as the
Board may appoint to administer this Plan or, if no such committee
has been appointed by the Board, the Board. Unless altered by an
action of the Board, the Committee shall be the Compensation
Committee of the Board.
(j) "Common Shares" means the common stock, no par value per
share, of the Company (and any stock or other securities into which
such common shares may be converted or into which they may be
exchanged).
(k) "Company" means Akers Biosciences, Inc., a New Jersey,
together with its successors and assigns.
(l) "Current Board Members" has the meaning given such term in
the definition of "Change in Control."
(m) "Date of Grant" means the date on which the granting of an
Award is authorized, or such other date as may be specified in such
authorization.
(n) "Disability" means a "permanent and total" disability
incurred by a Participant while in the employ or service of the
Company or an Affiliate. For this purpose, a permanent and total
disability shall mean that the Participant is unable to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months. The determination of whether a
Participant has incurred a permanent and total disability shall be
made by a physician designated by the Committee, whose
determination shall be final and binding.
(o) "Effective Date" means the date as of which this Plan is
adopted by the Board, subject to Section 3 of this Plan.
(p) "Eligible Director" means a person who is (i) a
"non-employee director" within the meaning of Rule 16b-3 under the
Exchange Act, and (ii) an "outside director" within the meaning of
Section 162(m) of the Code.
(q) "Eligible Person" means any (i) individual employed by the
Company or an Affiliate; provided, however, that no such employee
covered by a collective bargaining agreement shall be an Eligible
Person unless and to the extent that such eligibility is set forth
in such collective bargaining agreement or in an agreement or
instrument relating thereto; (ii) director of the Company or an
Affiliate; or (iii) consultant or advisor to the Company or an
Affiliate, provided that if the Securities Act applies such persons
must be eligible to be offered securities registrable on Form S-8
under the Securities Act.
(r) "Exchange Act" has the meaning given such term in the
definition of "Change in Control," and any reference in this Plan
to any section of (or rule promulgated under) the Exchange Act
shall be deemed to include any rules, regulations or other
interpretative guidance issued by any governmental authority under
such section or rule, and any amendments or successor provisions to
such section, rules, regulations or guidance.
(s) "Exercise Price" has the meaning given such term in Section
7(b) of this Plan.
(t) "Fair Market Value", unless otherwise provided by the
Committee in accordance with all applicable laws, rules regulations
and standards, means, on a given date, (i) if the Common Shares are
listed on a national securities exchange, the closing sales price
on the principal exchange of the Common Shares on such date or, in
the absence of reported sales on such date, the closing sales price
on the immediately preceding date on which sales were reported, or
(ii) if the Common Shares are not listed on a national securities
exchange, the mean between the bid and offered prices as quoted by
any nationally recognized interdealer quotation system for such
date, provided that if the Common Shares are not quoted on an
interdealer quotation system or it is determined that the fair
market value is not properly reflected by such quotations, Fair
Market Value will be determined by such other method as the
Committee determines in good faith to be reasonable and in
compliance with Code Section 409A, if applicable.
(u) "Immediate Family Members" shall have the meaning set forth
in Section 15(b) of this Plan.
(v) "Incentive Stock Option" means an Option that is designated
by the Committee as an incentive stock option as described in
Section 422 of the Code and otherwise meets the requirements set
forth in this Plan.
(w) "Indemnifiable Person" shall have the meaning set forth in
Section 4(e) of this Plan.
(x) "Negative Discretion" shall mean the discretion authorized
by this Plan to be applied by the Committee to eliminate or reduce
the size of a Performance Compensation Award consistent with
Section 162(m) of the Code.
(y) "Nonqualified Stock Option" means an Option that is not
designated by the Committee as an Incentive Stock Option.
(z) "Option" means an Award granted under Section 7 of this
Plan.
(aa) "Option Period" has the meaning given such term in Section
7(c) of this Plan.
(bb) "Participant" means an Eligible Person who has been
selected by the Committee to participate in this Plan and to
receive an Award pursuant to Section 6 of this Plan.
(cc) "Performance Compensation Award" shall mean any Award
designated by the Committee as a Performance Compensation Award
pursuant to Section 11 of this Plan.
(dd) "Performance Criteria" shall mean the criterion or criteria
that the Committee shall select for purposes of establishing the
Performance Goal(s) for a Performance Period with respect to any
Performance Compensation Award under this Plan.
(ee) "Performance Formula" shall mean, for a Performance Period,
the one or more objective formulae applied against the relevant
Performance Goal to determine, with regard to the Performance
Compensation Award of a particular Participant, whether all, some
portion but less than all, or none of the Performance Compensation
Award has been earned for the Performance Period.
(ff) "Performance Goals" shall mean, for a Performance Period,
the one or more goals established by the Committee for the
Performance Period based upon the Performance Criteria.
(gg) "Performance Period" shall mean the one or more periods of
time, as the Committee may select, over which the attainment of one
or more Performance Goals will be measured for the purpose of
determining a Participant's right to, and the payment of, a
Performance Compensation Award.
(hh) "Permitted Transferee" shall have the meaning set forth in
Section 15(b) of this Plan.
(ii) "Person" has the meaning given such term in the definition
of "Change in Control."
(jj) "Plan" means this Akers Biosciences, Inc. 2018 Equity
Incentive Plan, as amended from time to time.
(kk) "Retirement" means the fulfillment of each of the following
conditions: (i) the Participant is in good standing with the
Company and/or an Affiliate of the Company as determined by the
Committee; (ii) the voluntary termination by a Participant of such
Participant's employment or service to the Company and/or an
Affiliate and (iii) that at the time of such voluntary termination,
the sum of: (A) the Participant's age (calculated to the nearest
month, with any resulting fraction of a year being calculated as
the number of months in the year divided by 12) and (B) the
Participant's years of employment or service with the Company
(calculated to the nearest month, with any resulting fraction of a
year being calculated as the number of months in the year divided
by 12) equals at least 62 (provided that, in any case, the
foregoing shall only be applicable if, at the time of such
Retirement, the Participant shall be at least 55 years of age and
shall have been employed by or served with the Company for no less
than five years).
(ll) "Restricted Period" means the period of time determined by
the Committee during which an Award is subject to restrictions or,
as applicable, the period of time within which performance is
measured for purposes of determining whether an Award has been
earned.
(mm) "Restricted Stock Unit" means an unfunded and unsecured
promise to deliver Common Shares, cash, other securities or other
property, subject to certain restrictions (including, without
limitation, a requirement that the Participant remain continuously
employed or provide continuous services for a specified period of
time), granted under Section 9 of this Plan.
(nn) "Restricted Stock" means Common Shares, subject to certain
specified restrictions (including, without limitation, a
requirement that the Participant remain continuously employed or
provide continuous services for a specified period of time),
granted under Section 9 of this Plan.
(oo) "SAR Period" has the meaning given such term in Section
8(c) of this Plan.
(pp) "Securities Act" means the Securities Act of 1933, as
amended, and any successor thereto. Reference in this Plan to any
section of the Securities Act shall be deemed to include any rules,
regulations or other official interpretative guidance issued by any
governmental authority under such section, and any amendments or
successor provisions to such section, rules, regulations or
guidance.
(qq) "Stock Appreciation Right" or "SAR" means an Award granted
under Section 8 of this Plan which meets all of the requirements of
Section 1.409A-1(b)(5)(i)(B) of the Treasury Regulations.
(rr) "Stock Bonus Award" means an Award granted under Section 10
of this Plan.
(ss) "Strike Price" means, except as otherwise provided by the
Committee in the case of Substitute Awards, (i) in the case of a
SAR granted in tandem with an Option, the Exercise Price of the
related Option, or (ii) in the case of a SAR granted independent of
an Option, the Fair Market Value of Common Shares on the Date of
Grant.
(tt) "Subsidiary" means, with respect to any specified
Person:
(i) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of voting
securities (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders'
agreement that effectively transfers voting power) is at the time
owned or controlled, directly or indirectly, by that Person or one
or more of the other Subsidiaries of that Person (or a combination
thereof); and
(ii) any partnership or limited liability company (or any
comparable foreign entity) (a) the sole general partner or managing
member (or functional equivalent thereof) or the managing general
partner of which is such Person or Subsidiary of such Person or (b)
the only general partners or managing members (or functional
equivalents thereof) of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
(uu) "Substitute Award" has the meaning given such term in
Section 5(e).
(vv) "Treasury Regulations" means any regulations, whether
proposed, temporary or final, promulgated by the U.S. Department of
Treasury under the Code, and any successor provisions.
3. Effective Date; Duration. The Plan shall be effective upon
its approval by the stockholders of the Company.
4. Administration.
(a) The Committee shall administer this Plan. To the extent
required to comply with the provisions of Rule 16b-3 promulgated
under the Exchange Act (if the Board is not acting as the Committee
under this Plan) or necessary to obtain the exception for
performance-based compensation under Section 162(m) of the Code, as
applicable, it is intended that each member of the Committee shall,
at the time he takes any action with respect to an Award under this
Plan, be an Eligible Director. However, the fact that a Committee
member shall fail to qualify as an Eligible Director shall not
invalidate any Award granted by the Committee that is otherwise
validly granted under this Plan. The acts of a majority of the
members present at any meeting at which a quorum is present or acts
approved in writing by a majority of the Committee shall be deemed
the acts of the Committee. Whether a quorum is present shall be
determined based on the Committee's charter as approved by the
Board.
(b) Subject to the provisions of this Plan and applicable law,
the Committee shall have the sole and plenary authority, in
addition to other express powers and authorizations conferred on
the Committee by this Plan and its charter, to: (i) designate
Participants; (ii) determine the type or types of Awards to be
granted to a Participant; (iii) determine the number of Common
Shares to be covered by, or with respect to which payments, rights,
or other matters are to be calculated in connection with, Awards;
(iv) determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may be
settled or exercised in cash, Common Shares, other securities,
other Awards or other property, or canceled, forfeited, or
suspended, and the method or methods by which Awards may be
settled, exercised, canceled, forfeited, or suspended; (vi)
determine whether, to what extent, and under what circumstances the
delivery of cash, Common Shares, other securities, other Awards or
other property and other amounts payable with respect to an Award
shall be made; (vii) interpret, administer, reconcile any
inconsistency in, settle any controversy regarding, correct any
defect in and/or complete any omission in this Plan and any
instrument or agreement relating to, or Award granted under, this
Plan; (viii) establish, amend, suspend, or waive any rules and
regulations and appoint such agents as the Committee shall deem
appropriate for the proper administration of this Plan; (ix)
accelerate the vesting or exercisability of, payment for or lapse
of restrictions on, Awards; (x) reprice existing Awards or to grant
Awards in connection with or in consideration of the cancellation
of an outstanding Award with a higher price; and (xi) make any
other determination and take any other action that the Committee
deems necessary or desirable for the administration of this
Plan.
(c) The Committee may, by resolution, expressly delegate to a
special committee, consisting of one or more directors who may but
need not be officers of the Company, the authority, within
specified parameters as to the number and types of Awards, to (i)
designate officers and/or employees of the Company or any of its
Affiliates to be recipients of Awards under this Plan, and (ii) to
determine the number of such Awards to be received by any such
Participants; provided, however, that such delegation of duties and
responsibilities may not be made with respect to grants of Awards
to persons (i) subject to Section 16 of the Exchange Act or (ii)
who are, or who are reasonably expected to be, "covered employees"
for purposes of Section 162(m) of the Code. The acts of such
delegates shall be treated as acts of the Committee, and such
delegates shall report regularly to the Board and the Committee
regarding the delegated duties and responsibilities and any Awards
granted.
(d) Unless otherwise expressly provided in this Plan, all
designations, determinations, interpretations, and other decisions
under or with respect to this Plan or any Award or any documents
evidencing Awards granted pursuant to this Plan shall be within the
sole discretion of the Committee, may be made at any time and shall
be final, conclusive and binding upon all persons or entities,
including, without limitation, the Company, any Affiliate, any
Participant, any holder or beneficiary of any Award, and any
stockholder of the Company.
(e) No member of the Board, the Committee, delegate of the
Committee or any employee, advisor or agent of the Company or the
Board or the Committee (each such person, an "Indemnifiable
Person") shall be liable for any action taken or omitted to be
taken or any determination made in good faith with respect to this
Plan or any Award hereunder. Each Indemnifiable Person shall be
indemnified and held harmless by the Company against and from (and
the Company shall pay or reimburse on demand for) any loss, cost,
liability, or expense (including court costs and attorneys' fees)
that may be imposed upon or incurred by such Indemnifiable Person
in connection with or resulting from any action, suit or proceeding
to which such Indemnifiable Person may be a party or in which such
Indemnifiable Person may be involved by reason of any action taken
or omitted to be taken under this Plan or any Award Agreement and
against and from any and all amounts paid by such Indemnifiable
Person with the Company's approval, in settlement thereof, or paid
by such Indemnifiable Person in satisfaction of any judgment in any
such action, suit or proceeding against such Indemnifiable Person,
provided, that the Company shall have the right, at its own
expense, to assume and defend any such action, suit or proceeding
and once the Company gives notice of its intent to assume the
defense, the Company shall have sole control over such defense with
counsel of the Company's choice. The foregoing right of
indemnification shall not be available to an Indemnifiable Person
to the extent that a final judgment or other final adjudication (in
either case not subject to further appeal) binding upon such
Indemnifiable Person determines that the acts or omissions of such
Indemnifiable Person giving rise to the indemnification claim
resulted from such Indemnifiable Person's bad faith, fraud or
willful criminal act or omission or that such right of
indemnification is otherwise prohibited by law or by the Company's
Certificate of Incorporation or Bylaws. The foregoing right of
indemnification shall not be exclusive of any other rights of
indemnification to which any such Indemnifiable Person may be
entitled under the Company's Certificate of Incorporation or
Bylaws, as a matter of law, or otherwise, or any other power that
the Company may have to indemnify such Indemnifiable Persons or
hold them harmless.
(f) Notwithstanding anything to the contrary contained in this
Plan, the Board may, in its sole discretion, at any time and from
time to time, grant Awards and administer this Plan with respect to
such Awards. In any such case, the Board shall have all the
authority granted to the Committee under this Plan.
5. Grant of Awards; Shares Subject to this Plan;
Limitations.
(a) The Committee may, from time to time, grant Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units,
Stock Bonus Awards and/or Performance Compensation Awards to one or
more Eligible Persons. Subject to Section 12 of this Plan, the
Committee is authorized to deliver under this Plan an aggregate of
one million eight hundred seventy-five thousand (1,875,000) Common
Shares. Notwithstanding the foregoing, directors of the Company or
an Affiliate who are not employees of the Company or an Affiliate
may not be granted Awards denominated in Common Shares that exceed
in the aggregate six hundred twenty-five thousand (625,000) Common
Shares; provided, that the foregoing limitation shall not apply to
any Award made pursuant to an election by a director to receive an
Award in lieu of all or a portion of the annual and/or committee
retainers and annual meeting fee payable to such director.
(b) Common Shares underlying Awards under this Plan that are
forfeited, cancelled, expire unexercised, or are settled in cash
shall be available again for Awards under this Plan at the same
ratio at which they were previously granted. Notwithstanding the
foregoing, the following Common Shares shall not be available again
for Awards under the Plan: (i) shares tendered or held back upon
the exercise of an Option or settlement of an Award to cover the
Exercise Price of an Award; (ii) shares that are used or withheld
to satisfy tax withholding obligations of the Participant; and
(iii) shares subject to a Stock Appreciation Right that are not
issued in connection with the stock settlement of the SAR upon
exercise thereof.
(c) Awards that do not entitle the holder thereof to receive or
purchase Common Shares shall not be counted against the aggregate
number of Common Shares available for Awards under the Plan.
(d) Common Shares delivered by the Company in settlement of
Awards may be authorized and unissued shares, shares held in the
treasury of the Company, shares purchased on the open market or by
private purchase, or any combination of the foregoing.
(e) Subject to compliance with Section 1.409A-3(f) of the
Treasury Regulations, Awards may, in the sole discretion of the
Committee, be granted under this Plan in assumption of, or in
substitution for, outstanding awards previously granted by an
entity acquired by the Company or with which the Company combines
("Substitute Awards"). The number of Common Shares underlying any
Substitute Awards shall be counted against the aggregate number of
Common Shares available for Awards under this Plan; provided,
however that Common Shares issued under Substitute Awards granted
in substitution for awards previously granted by an entity that is
acquired by or merged with the Company or an Affiliate shall not be
counted against the aggregate number of Common Shares available for
Awards under the Plan.
(f) Notwithstanding any provision in the Plan to the contrary
(but subject to adjustment as provided in Section 12), the
Committee shall not grant to any one Eligible Person in any one
calendar year Awards (i) for more than 10% of the Available Shares
in the aggregate or (ii) payable in cash in an amount exceeding
$5,000,000 in the aggregate.
6. Eligibility. Participation shall be limited to Eligible
Persons who have entered into an Award Agreement or who have
received written notification from the Committee, or from a person
designated by the Committee, that they have been selected to
participate in this Plan.
7. Options.
(a) Generally. Each Option granted under this Plan shall be
evidenced by an Award Agreement (whether in paper or electronic
medium (including email or the posting on a web site maintained by
the Company or a third party under contract with the Company)).
Each Option so granted shall be subject to the conditions set forth
in this Section 7, and to such other conditions not inconsistent
with this Plan as may be reflected in the applicable Award
Agreement. All Options granted under this Plan shall be
Nonqualified Stock Options unless the applicable Award Agreement
expressly states that the Option is intended to be an Incentive
Stock Option. Notwithstanding any designation of an Option, to the
extent that the aggregate Fair Market Value of Common Shares with
respect to which Options designated as Incentive Stock Options are
exercisable for the first time by any Participant during any
calendar year (under all plans of the Company or any Subsidiary)
exceeds $100,000, such excess Options shall be treated as
Nonqualified Stock Options. Incentive Stock Options shall be
granted only to Eligible Persons who are employees of the Company
and its Affiliates, and no Incentive Stock Option shall be granted
to any Eligible Person who is ineligible to receive an Incentive
Stock Option under the Code. No Option shall be treated as an
Incentive Stock Option unless this Plan has been approved by the
stockholders of the Company in a manner intended to comply with the
stockholder approval requirements of Section 422(b)(1) of the Code,
provided that any Option intended to be an Incentive Stock Option
shall not fail to be effective solely on account of a failure to
obtain such approval, but rather such Option shall be treated as a
Nonqualified Stock Option unless and until such approval is
obtained. In the case of an Incentive Stock Option, the terms and
conditions of such grant shall be subject to and comply with such
rules as may be prescribed by Section 422 of the Code. If for any
reason an Option intended to be an Incentive Stock Option (or any
portion thereof) shall not qualify as an Incentive Stock Option,
then, to the extent of such nonqualification, such Option or
portion thereof shall be regarded as a Nonqualified Stock Option
appropriately granted under this Plan.
(b) Exercise Price. The exercise price ("Exercise Price") per
Common Share for each Option shall not be less than 100% of the
Fair Market Value of such share determined as of the Date of Grant;
provided, however, that in the case of an Incentive Stock Option
granted to an employee who, at the time of the grant of such
Option, owns shares representing more than 10% of the voting power
of all classes of shares of the Company or any Affiliate, the
Exercise Price per share shall not be less than 110% of the Fair
Market Value per share on the Date of Grant; and, provided further,
that notwithstanding any provision herein to the contrary, the
Exercise Price shall not be less than the par value per Common
Share.
(c) Vesting and Expiration. Options shall vest and become
exercisable in such manner and on such date or dates determined by
the Committee and as set forth in the applicable Award Agreement,
and shall expire after such period, not to exceed ten (10) years
from the Date of Grant, as may be determined by the Committee (the
"Option Period"); provided, however, that the Option Period shall
not exceed five (5) years from the Date of Grant in the case of an
Incentive Stock Option granted to a Participant who on the Date of
Grant owns shares representing more than 10% of the voting power of
all classes of shares of the Company or any Affiliate; and,
provided, further, that notwithstanding any vesting dates set by
the Committee, the Committee may, in its sole discretion,
accelerate the exercisability of any Option, which acceleration
shall not affect the terms and conditions of such Option other than
with respect to exercisability. Unless otherwise provided by the
Committee in an Award Agreement:
(i) an Option shall vest and become exercisable with respect to
one-third of the Common Shares subject to such Option on each of
the first three anniversaries of the Date of Grant; provided,
however, that the Committee may designate a purchase price below
Fair Market Value on the date of grant if the Option is granted in
substitution for a stock option previously granted by an entity
that is acquired by or merged with the Company or an Affiliate;
(ii) the unvested portion of an Option shall expire upon
termination of employment or service of the Participant granted the
Option, and the vested portion of such Option shall remain
exercisable for:
(A) one year following termination of employment or service by
reason of such Participant's death or Disability (with the
determination of Disability to be made by the Committee on a case
by case basis), but not later than the expiration of the Option
Period;
(B) for directors, officers and employees of the Company only,
for ninety (90) days following termination of employment or service
by reason of such Participant's Retirement;
(C) 90 calendar days following termination of employment or
service for any reason other than such Participant's death,
Disability or Retirement, and other than such Participant's
termination of employment or service for Cause, but not later than
the expiration of the Option Period; and
(iii) both the unvested and the vested portion of an Option
shall immediately expire upon the termination of the Participant's
employment or service by the Company for Cause.
Notwithstanding the foregoing provisions of Section 7(c) and
consistent with the requirements of applicable law, the Committee,
in its sole discretion, may extend the post-termination of
employment period during which a Participant may exercise vested
Options.
(d) Method of Exercise and Form of Payment. No Common Shares
shall be delivered pursuant to the exercise of an Option until
payment in full of the Exercise Price therefor is received by the
Company and the Participant has paid to the Company an amount equal
to any applicable federal, state, local and/or foreign income and
employment taxes withheld. Options that have become exercisable may
be exercised by delivery of written or electronic notice of
exercise to the Company in accordance with the terms of the Award
Agreement accompanied by payment of the Exercise Price. The
Exercise Price shall be payable (i) in cash, check (subject to
collection), cash equivalent and/or vested Common Shares valued at
the Fair Market Value at the time the Option is exercised
(including, pursuant to procedures approved by the Committee, by
means of attestation of ownership of a sufficient number of Common
Shares in lieu of actual delivery of such shares to the Company);
provided, however, that such Common Shares are not subject to any
pledge or other security interest and; (ii) by such other method as
the Committee may permit in accordance with applicable law, in its
sole discretion, including without limitation: (A) in other
property having a fair market value (as determined by the Committee
in its discretion) on the date of exercise equal to the Exercise
Price or (B) if there is a public market for the Common Shares at
such time, by means of a broker-assisted "cashless exercise"
pursuant to which the Company is delivered a copy of irrevocable
instructions to a stockbroker to sell the Common Shares otherwise
deliverable upon the exercise of the Option and to deliver promptly
to the Company an amount equal to the Exercise Price or (C) by a
"net exercise" method whereby the Company withholds from the
delivery of the Common Shares for which the Option was exercised
that number of Common Shares having a Fair Market Value equal to
the aggregate Exercise Price for the Common Shares for which the
Option was exercised. Any fractional Common Shares shall be settled
in cash.
(e) Notification upon Disqualifying Disposition of an Incentive
Stock Option. Each Participant awarded an Incentive Stock Option
under this Plan shall notify the Company in writing immediately
after the date he makes a disqualifying disposition of any Common
Shares acquired pursuant to the exercise of such Incentive Stock
Option. A disqualifying disposition is any disposition (including,
without limitation, any sale) of such Common Shares before the
later of (A) two years after the Date of Grant of the Incentive
Stock Option or (B) one year after the date of exercise of the
Incentive Stock Option. The Company may, if determined by the
Committee and in accordance with procedures established by the
Committee, retain possession of any Common Shares acquired pursuant
to the exercise of an Incentive Stock Option as agent for the
applicable Participant until the end of the period described in the
preceding sentence.
(f) Compliance with Laws, etc. Notwithstanding the foregoing, in
no event shall a Participant be permitted to exercise an Option in
a manner that the Committee determines would violate the
Sarbanes-Oxley Act of 2002, if applicable, or any other applicable
law or the applicable rules and regulations of the Securities and
Exchange Commission or the applicable rules and regulations of any
securities exchange or inter-dealer quotation system on which the
securities of the Company are listed or traded.
8. Stock Appreciation Rights.
(a) Generally. Each SAR granted under this Plan shall be
evidenced by an Award Agreement (whether in paper or electronic
medium (including email or the posting on a web site maintained by
the Company or a third party under contract with the Company)).
Each SAR so granted shall be subject to the conditions set forth in
this Section 8, and to such other conditions not inconsistent with
this Plan as may be reflected in the applicable Award Agreement.
Any Option granted under this Plan may include tandem SARs (i.e.,
SARs granted in conjunction with an Award of Options under this
Plan). The Committee also may award SARs to Eligible Persons
independent of any Option.
(b) Exercise Price. The Exercise Price per Common Share for each
Option granted in connection with a SAR shall not be less than 100%
of the Fair Market Value of such share determined as of the Date of
Grant; provided, however, that the Committee may designate a
purchase price below Fair Market Value on the date of grant if the
SAR is granted in substitution for an appreciation right previously
granted by an entity that is acquired by or merged with the Company
or an Affiliate.
(c) Vesting and Expiration. A SAR granted in connection with an
Option shall become exercisable and shall expire according to the
same vesting schedule and expiration provisions as the
corresponding Option. A SAR granted independent of an Option shall
vest and become exercisable and shall expire in such manner and on
such date or dates determined by the Committee and shall expire
after such period, not to exceed ten years, as may be determined by
the Committee (the "SAR Period"); provided, however, that
notwithstanding any vesting dates set by the Committee, the
Committee may, in its sole discretion, accelerate the
exercisability of any SAR, which acceleration shall not affect the
terms and conditions of such SAR other than with respect to
exercisability. Unless otherwise provided by the Committee in an
Award Agreement:
(i) a SAR shall vest and become exercisable with respect to
one-third of the Common Shares subject to such SAR on each of the
first three anniversaries of the Date of Grant;
(ii) the unvested portion of a SAR shall expire upon termination
of employment or service of the Participant granted the SAR, and
the vested portion of such SAR shall remain exercisable for:
(A) one year following termination of employment or service by
reason of such Participant's death or Disability (with the
determination of Disability to be made by the Committee on a case
by case basis), but not later than the expiration of the SAR
Period;
(B) for directors, officers and employees of the Company only,
for the remainder of the SAR Period following termination of
employment or service by reason of such Participant's
Retirement;
(C) 90 calendar days following termination of employment or
service for any reason other than such Participant's death,
Disability or Retirement, and other than such Participant's
termination of employment or service for Cause, but not later than
the expiration of the SAR Period; and
(iii) both the unvested and the vested portion of a SAR shall
expire immediately upon the termination of the Participant's
employment or service by the Company for Cause.
(d) Method of Exercise. SARs that have become exercisable may be
exercised by delivery of written or electronic notice of exercise
to the Company in accordance with the terms of the Award,
specifying the number of SARs to be exercised and the date on which
such SARs were awarded. Notwithstanding the foregoing, if on the
last day of the Option Period (or in the case of a SAR independent
of an Option, the SAR Period), the Fair Market Value exceeds the
Strike Price, the Participant has not exercised the SAR or the
corresponding Option (if applicable), and neither the SAR nor the
corresponding Option (if applicable) has expired, such SAR shall be
deemed to have been exercised by the Participant on such last day
and the Company shall make the appropriate payment therefor.
(e) Payment. Upon the exercise of a SAR, the Company shall pay
to the Participant an amount equal to the number of Common Shares
subject to the SAR that are being exercised multiplied by the
excess, if any, of the Fair Market Value of one Common Share on the
exercise date over the Strike Price, less an amount equal to any
applicable federal, state, local and non-U.S. income and employment
taxes withheld. The Company shall pay such amount in cash, in
Common Shares valued at Fair Market Value, or any combination
thereof, as determined by the Committee. Any fractional Common
Share shall be settled in cash.
9. Restricted Stock and Restricted Stock Units.
(a) Generally. Each grant of Restricted Stock and Restricted
Stock Units shall be evidenced by an Award Agreement (whether in
paper or electronic medium (including email or the posting on a web
site maintained by the Company or a third party under contract with
the Company)). Each such grant shall be subject to the conditions
set forth in this Section 9, and to such other conditions not
inconsistent with this Plan as may be reflected in the applicable
Award Agreement. Restricted Stock and Restricted Stock Units shall
be subject to such restrictions on transferability and other
restrictions as the Committee may impose (including, for example,
limitations on the right to vote Restricted Stock or the right to
receive dividends on the Restricted Stock). These restrictions may
lapse separately or in combination at such times, under such
circumstances, in such installments, upon the satisfaction of
Performance Goals or otherwise, as the Committee determines at the
time of the grant of an Award or thereafter. Except as otherwise
provided in an Award Agreement, a Participant shall have none of
the rights of a stockholder with respect to Restricted Stock Units
until such time as Common Shares are paid in settlement of such
Awards.
(b) Restricted Accounts; Escrow or Similar Arrangement. Unless
otherwise determined by the Committee, upon the grant of Restricted
Stock, a book entry in a restricted account shall be established in
the Participant's name at the Company's transfer agent and, if the
Committee determines that the Restricted Stock shall be held by the
Company or in escrow rather than held in such restricted account
pending the release of the applicable restrictions, the Committee
may require the Participant to additionally execute and deliver to
the Company (i) an escrow agreement satisfactory to the Committee,
if applicable, and (ii) the appropriate share power (endorsed in
blank) with respect to the Restricted Stock covered by such
agreement. If a Participant shall fail to execute an agreement
evidencing an Award of Restricted Stock and, if applicable, an
escrow agreement and blank share power within the amount of time
specified by the Committee, the Award shall be null and void ab
initio. Subject to the restrictions set forth in this Section 9 and
the applicable Award Agreement, the Participant generally shall
have the rights and privileges of a stockholder as to such
Restricted Stock, including without limitation the right to vote
such Restricted Stock and the right to receive dividends, if
applicable. To the extent shares of Restricted Stock are forfeited,
any share certificates issued to the Participant evidencing such
shares shall be returned to the Company, and all rights of the
Participant to such shares and as a stockholder with respect
thereto shall terminate without further obligation on the part of
the Company.
(c) Vesting; Acceleration of Lapse of Restrictions. Unless
otherwise provided by the Committee in an Award Agreement: (i) the
Restricted Period shall lapse with respect to one-third of the
Restricted Stock and Restricted Stock Units on each of the first
three anniversaries of the Date of Grant ; and (ii) the unvested
portion of Restricted Stock and Restricted Stock Units shall
terminate and be forfeited upon the termination of employment or
service of the Participant granted the applicable Award.
(d) Delivery of Restricted Stock and Settlement of Restricted
Stock Units. (i) Upon the expiration of the Restricted Period with
respect to any shares of Restricted Stock, the restrictions set
forth in the applicable Award Agreement shall be of no further
force or effect with respect to such shares, except as set forth in
the applicable Award Agreement. If an escrow arrangement is used,
upon such expiration, the Company shall deliver to the Participant,
or his beneficiary, without charge, the share certificate
evidencing the shares of Restricted Stock that have not then been
forfeited and with respect to which the Restricted Period has
expired (rounded down to the nearest full share). Dividends, if
any, that may have been withheld by the Committee and attributable
to any particular share of Restricted Stock shall be distributed to
the Participant in cash or, at the sole discretion of the
Committee, in shares of Common Stock having a Fair Market Value
equal to the amount of such dividends, upon the release of
restrictions on such shares of Restricted Stock and, if such shares
of Restricted Stock are forfeited, the Participant shall have no
right to such dividends (except as otherwise set forth by the
Committee in the applicable Award Agreement).
(e) Unless otherwise provided by the Committee in an Award
Agreement, upon the expiration of the Restricted Period with
respect to any outstanding Restricted Stock Units and no later than
the 75(th) day of the calendar year following the calendar year in
which such expiration occurs, the Company shall deliver to the
Participant, or his beneficiary, without charge, one Common Share
for each such outstanding Restricted Stock Unit; provided, however,
that the Committee may, in its sole discretion and subject to the
requirements of Section 409A of the Code, elect to (i) pay cash or
part cash and part Common Share in lieu of delivering only Common
Shares in respect of such Restricted Stock Units or (ii) defer the
delivery of Common Shares (or cash or part Common Shares and part
cash, as the case may be) beyond the 75(th) day of the calendar
year following the calendar year in which the expiration of the
Restricted Period occurs if such delivery would result in a
violation of applicable law until such time as is no longer the
case. If a cash payment is made in lieu of delivering Common
Shares, the amount of such payment shall be equal to the Fair
Market Value of the Common Shares as of the date on which the
Restricted Period lapsed with respect to such Restricted Stock
Units, less an amount equal to any applicable federal, state, local
and non-U.S. income and employment taxes withheld. Notwithstanding
anything contained herein to the contrary, the Committee in an
Award Agreement may, in a manner consistent with the applicable
requirements of Section 409A of the Code, enable a Participant to
elect to defer the date on which settlement of the Restricted Stock
Units shall occur.
10. Stock Bonus Awards. The Committee may issue unrestricted
Common Shares, or other Awards denominated in Common Shares, under
this Plan to Eligible Persons, either alone or in tandem with other
awards, in such amounts as the Committee shall from time to time in
its sole discretion determine. Each Stock Bonus Award granted under
this Plan shall be evidenced by an Award Agreement (whether in
paper or electronic medium (including email or the posting on a web
site maintained by the Company or a third party under contract with
the Company)). Each Stock Bonus Award so granted shall be subject
to such conditions not inconsistent with this Plan as may be
reflected in the applicable Award Agreement.
11. Performance Compensation Awards.
(a) Generally. The provisions of the Plan are intended to enable
Options and Stock Appreciation Rights granted hereunder to certain
Eligible Persons to qualify for an exemption under Section 162(m)
of the Code. The Committee shall have the authority, at the time of
grant of any Award described in Sections 7 through 10 of this Plan,
to designate such Award as a Performance Compensation Award
intended to qualify as "performance-based compensation" under
Section 162(m) of the Code. The Committee shall have the authority
to make an award of a cash bonus to any Participant and designate
such Award as a Performance Compensation Award intended to qualify
as "performance-based compensation" under Section 162(m) of the
Code.
(b) Discretion of Committee with Respect to Performance
Compensation Awards. With regard to a particular Performance
Period, the Committee shall have sole discretion to select the
length of such Performance Period, the type(s) of Performance
Compensation Awards to be issued, the Performance Criteria that
will be used to establish the Performance Goal(s), the kind(s)
and/or level(s) of the Performance Goals(s) that is (are) to apply
and the Performance Formula. Within the first 90 calendar days of a
Performance Period (or, if longer or shorter, within the maximum
period allowed under Section 162(m) of the Code, if applicable),
the Committee shall, with regard to the Performance Compensation
Awards to be issued for such Performance Period, exercise its
discretion with respect to each of the matters enumerated in the
immediately preceding sentence and record the same in writing.
(c) Performance Criteria. The Performance Criteria that will be
used to establish the Performance Goal(s) shall be based on the
attainment of specific levels of performance of the Company and/or
one or more Affiliates, divisions or operational units, or any
combination of the foregoing, as determined by the Committee, which
criteria may be based on one or more of the following business
criteria: (i) revenue; (ii) sales; (iii) profit (net profit, gross
profit, operating profit, economic profit, profit margins or other
corporate profit measures); (iv) earnings (EBIT, EBITDA, earnings
per share, or other corporate earnings measures); (v) net income
(before or after taxes, operating income or other income measures);
(vi) cash (cash flow, cash generation or other cash measures);
(vii) stock price or performance; (viii) total stockholder return
(stock price appreciation plus reinvested dividends divided by
beginning share price); (ix) economic value added; (x) return
measures (including, but not limited to, return on assets, capital,
equity, investments or sales, and cash flow return on assets,
capital, equity, or sales); (xi) market share; (xii) improvements
in capital structure; (xiii) expenses (expense management, expense
ratio, expense efficiency ratios or other expense measures); (xiv)
business expansion or consolidation (acquisitions and
divestitures); (xv) internal rate of return or increase in net
present value; (xvi) working capital targets relating to inventory
and/or accounts receivable; (xvii) inventory management; (xviii)
service or product delivery or quality; (xix) customer
satisfaction; (xx) employee retention; (xxi) safety standards;
(xxii) productivity measures; (xxiii) cost reduction measures;
and/or (xxiv) strategic plan development and implementation. Any
one or more of the Performance Criteria adopted by the Committee
may be used on an absolute or relative basis to measure the
performance of the Company and/or one or more Affiliates as a whole
or any business unit(s) of the Company and/or one or more
Affiliates or any combination thereof, as the Committee may deem
appropriate, or any of the above Performance Criteria may be
compared to the performance of a selected group of comparison
companies, or a published or special index that the Committee, in
its sole discretion, deems appropriate, or as compared to various
stock market indices. The Committee also has the authority to
provide for accelerated vesting of any Award based on the
achievement of Performance Goals pursuant to the Performance
Criteria specified in this paragraph. To the extent required under
Section 162(m) of the Code, the Committee shall, within the first
90 calendar days of a Performance Period (or, if longer or shorter,
within the maximum period allowed under Section 162(m) of the
Code), define in an objective fashion the manner of calculating the
Performance Criteria it selects to use for such Performance Period
and thereafter promptly communicate such Performance Criteria to
the Participant.
(d) Modification of Performance Goal(s). In the event that
applicable tax and/or securities laws change to permit Committee
discretion to alter the governing Performance Criteria without
obtaining stockholder approval of such alterations, the Committee
shall have sole discretion to make such alterations without
obtaining stockholder approval. For purposes of clarity and without
limiting the Committee's authority set forth above, at the time it
establishes Performance Criteria to be used with any Performance
Compensation Award, the Committee may specify one or more events
requiring an adjustment to the calculation of the Performance Goal,
including but not limited to: (i) asset write-downs; (ii)
litigation or claim judgments or settlements; (iii) the effect of
changes in tax laws, accounting principles, or other laws or
regulatory rules affecting reported results; (iv) any
reorganization and restructuring programs; (v) acquisitions or
divestitures; (vi) any other specific items that are unusual in
nature or infrequently occurring, or objectively determinable
category thereof; (viii) foreign exchange gains and losses; and
(ix) a change in the Company's fiscal year. The Committee may
reserve discretion to make or not make one or more adjustments as
specified in a Performance Compensation Award, but only to the
extent that such discretion is Negative Discretion.
(e) Payment of Performance Compensation Awards.
(i) Condition to Receipt of Payment. Unless otherwise provided
in the applicable Award Agreement, a Participant must be employed
by, or in service to, the Company on the last day of a Performance
Period to be eligible for payment in respect of a Performance
Compensation Award for such Performance Period.
(ii) Limitation. A Participant shall be eligible to receive
payment in respect of a Performance Compensation Award only to the
extent that: (A) the Performance Goals for such period are
achieved; and (B) all or some of the portion of such Participant's
Performance Compensation Award has been earned for the Performance
Period based on the application of the Performance Formula to such
achieved Performance Goals.
(iii) Certification. Following the completion of a Performance
Period, the Committee shall review and certify in writing whether,
and to what extent, the Performance Goals for the Performance
Period have been achieved and, if so, calculate and certify in
writing that amount of the Performance Compensation Awards earned
for the period based upon the Performance Formula. The Committee
shall then determine the amount of each Participant's Performance
Compensation Award actually payable for the Performance Period and,
in so doing, may apply Negative Discretion.
(iv) Use of Negative Discretion. In determining the actual
amount of an individual Participant's Performance Compensation
Award for a Performance Period, the Committee may reduce or
eliminate the amount of the Performance Compensation Award earned
under the Performance Formula in the Performance Period through the
use of Negative Discretion if, in its sole judgment, such reduction
or elimination is appropriate. The Committee shall not have the
discretion, except as is otherwise provided in this Plan, to (A)
grant or provide payment in respect of Performance Compensation
Awards for a Performance Period if the Performance Goals for such
Performance Period have not been attained; or (B) increase a
Performance Compensation Award above the applicable limitations set
forth in Section 5 of this Plan.
(f) Timing of Award Payments. Performance Compensation Awards
granted for a Performance Period shall be paid to Participants as
soon as administratively practicable following completion of the
certifications required by this Section 11, but in no event later
than two-and-one-half months following the end of the fiscal year
during which the Performance Period is completed in order to comply
with the short-term deferral rules under Section 1.409A-1(b)(4) of
the Treasury Regulations. Notwithstanding the foregoing, payment of
a Performance Compensation Award may be delayed, as permitted by
Section 1.409A-2(b)(7)(i) of the Treasury Regulations, to the
extent that the Company reasonably anticipates that if such payment
were made as scheduled, the Company's tax deduction with respect to
such payment would not be permitted due to the application of
Section 162(m) of the Code.
12. Changes in Capital Structure and Similar Events. In the
event of (a) any dividend or other distribution (whether in the
form of cash, Common Shares, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, amalgamation, consolidation, split-up, split-off,
combination, repurchase or exchange of Common Shares or other
securities of the Company, issuance of warrants or other rights to
acquire Common Shares or other securities of the Company, or other
similar corporate transaction or event (including, without
limitation, a Change in Control) that affects the Common Shares, or
(b) unusual or nonrecurring events (including, without limitation,
a Change in Control) affecting the Company, any Affiliate, or the
financial statements of the Company or any Affiliate, or changes in
applicable rules, rulings, regulations or other requirements of any
governmental body or securities exchange or inter-dealer quotation
system, accounting principles or law, such that in either case an
adjustment is determined by the Committee in its sole discretion to
be necessary or appropriate in order to prevent dilution or
enlargement of rights, then the Committee shall make any such
adjustments that are equitable, including without limitation any or
all of the following:
(i) adjusting any or all of (A) the number of Common Shares or
other securities of the Company (or number and kind of other
securities or other property) that may be delivered in respect of
Awards or with respect to which Awards may be granted under this
Plan (including, without limitation, adjusting any or all of the
limitations under Section 5 of this Plan) and (B) the terms of any
outstanding Award, including, without limitation, (1) the number of
Common Shares or other securities of the Company (or number and
kind of other securities or other property) subject to outstanding
Awards or to which outstanding Awards relate, (2) the Exercise
Price or Strike Price with respect to any Award or (3) any
applicable performance measures (including, without limitation,
Performance Criteria and Performance Goals);
(ii) subject to the requirements of Section 409A of the Code,
providing for a substitution or assumption of Awards, accelerating
the exercisability of, lapse of restrictions on, or termination of,
Awards or providing for a period of time for exercise prior to the
occurrence of such event; and
(iii) subject to the requirements of Section 409A of the Code,
canceling any one or more outstanding Awards and causing to be paid
to the holders thereof, in cash, Common Shares, other securities or
other property, or any combination thereof, the value of such
Awards, if any, as determined by the Committee (which if applicable
may be based upon the price per Common Share received or to be
received by other stockholders of the Company in such event),
including without limitation, in the case of an outstanding Option
or SAR, a cash payment in an amount equal to the excess, if any, of
the Fair Market Value (as of a date specified by the Committee) of
the Common Shares subject to such Option or SAR over the aggregate
Exercise Price or Strike Price of such Option or SAR, respectively
(it being understood that, in such event, any Option or SAR having
a per share Exercise Price or Strike Price equal to, or in excess
of, the Fair Market Value of a Common Share subject thereto may be
canceled and terminated without any payment or consideration
therefor); provided, however, that in the case of any "equity
restructuring" (within the meaning of the Financial Accounting
Standards Board Statement of Financial Accounting Standards No. 123
(revised 2004) or ASC Topic 718, or any successor thereto), the
Committee shall make an equitable or proportionate adjustment to
outstanding Awards to reflect such equity restructuring. Any
adjustment in Incentive Stock Options under this Section 12 (other
than any cancellation of Incentive Stock Options) shall be made
only to the extent not constituting a "modification" within the
meaning of Section 424(h)(3) of the Code, and any adjustments under
this Section 12 shall be made in a manner that does not adversely
affect the exemption provided pursuant to Rule 16b-3 under the
Exchange Act. The Company shall give each Participant notice of an
adjustment hereunder and, upon notice, such adjustment shall be
conclusive and binding for all purposes.
13. Effect of Change in Control. Except to the extent otherwise
provided in an Award Agreement, in the event of a Change in
Control, notwithstanding any provision of this Plan to the
contrary, with respect to all or any portion of a particular
outstanding Award or Awards:
(a) all of the then outstanding Options and SARs shall
immediately vest and become immediately exercisable as of a time
prior to the Change in Control;
(b) the Restricted Period shall expire as of a time prior to the
Change in Control (including without limitation a waiver of any
applicable Performance Goals);
(c) Performance Periods in effect on the date the Change in
Control occurs shall end on such date, and the Committee shall (i)
determine the extent to which Performance Goals with respect to
each such Performance Period have been met based upon such audited
or unaudited financial information or other information then
available as it deems relevant and (ii) cause the Participant to
receive partial or full payment of Awards for each such Performance
Period based upon the Committee's determination of the degree of
attainment of the Performance Goals, or assuming that the
applicable "target" levels of performance have been attained or on
such other basis determined by the Committee.
To the extent practicable, any actions taken by the Committee
under the immediately preceding clauses (a) through (c) shall occur
in a manner and at a time which allows affected Participants the
ability to participate in the Change in Control transactions with
respect to the Common Shares subject to their Awards.
14. Amendments and Termination.
(a) Amendment and Termination of this Plan. The Board may amend,
alter, suspend, discontinue, or terminate this Plan or any portion
thereof at any time; provided, that (i) no amendment to the
definition of Eligible Person in Section 2(q), Section 5(b),
Section 11(c) or Section 14(b) (to the extent required by the
proviso in such Section 14(b)) shall be made without stockholder
approval and (ii) no such amendment, alteration, suspension,
discontinuation or termination shall be made without stockholder
approval if such approval is necessary to comply with any tax or
regulatory requirement applicable to this Plan (including, without
limitation, as necessary to comply with any rules or requirements
of any national securities exchange or inter-dealer quotation
system on which the Common Shares may be listed or quoted or to
prevent the Company from being denied a tax deduction under Section
162(m) of the Code); and, provided, further, that any such
amendment, alteration, suspension, discontinuance or termination
that would materially and adversely affect the rights of any
Participant or any holder or beneficiary of any Award theretofore
granted shall not to that extent be effective without the prior
written consent of the affected Participant, holder or
beneficiary.
(b) Amendment of Award Agreements. The Committee may, to the
extent consistent with the terms of any applicable Award Agreement,
waive any conditions or rights under, amend any terms of, or alter,
suspend, discontinue, cancel or terminate, any Award theretofore
granted or the associated Award Agreement, prospectively or
retroactively; provided, however, that any such waiver, amendment,
alteration, suspension, discontinuance, cancellation or termination
that would materially and adversely affect the rights of any
Participant with respect to any Award theretofore granted shall not
to that extent be effective without the consent of the affected
Participant.
15. General.
(a) Award Agreements. Each Award under this Plan shall be
evidenced by an Award Agreement, which shall be delivered to the
Participant (whether in paper or electronic medium (including email
or the posting on a web site maintained by the Company or a third
party under contract with the Company)) and shall specify the terms
and conditions of the Award and any rules applicable thereto,
including without limitation, the effect on such Award of the
death, Disability or termination of employment or service of a
Participant, or of such other events as may be determined by the
Committee. The Company's failure to specify any term of any Award
in any particular Award Agreement shall not invalidate such term,
provided such terms was duly adopted by the Board or the
Committee.
(b) Nontransferability; Trading Restrictions.
(i) Each Award shall be exercisable only by a Participant during
the Participant's lifetime, or, if permissible under applicable
law, by the Participant's legal guardian or representative. No
Award may be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by a Participant other than by
will or by the laws of descent and distribution and any such
purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance shall be void and unenforceable against the
Company or an Affiliate; provided that the designation of a
beneficiary shall not constitute an assignment, alienation, pledge,
attachment, sale, transfer or encumbrance.
(ii) Notwithstanding the foregoing, the Committee may, in its
sole discretion, permit Awards (other than Incentive Stock Options)
to be transferred by a Participant, with or without consideration,
subject to such rules as the Committee may adopt consistent with
any applicable Award Agreement to preserve the purposes of this
Plan, to: (A) any person who is a "family member" of the
Participant, as such term is used in the instructions to Form S-8
under the Securities Act (collectively, the "Immediate Family
Members"); (B) a trust solely for the benefit of the Participant
and his or her Immediate Family Members; or (C) a partnership or
limited liability company whose only partners or stockholders are
the Participant and his or her Immediate Family Members; or (D) any
other transferee as may be approved either (I) by the Board or the
Committee in its sole discretion, or (II) as provided in the
applicable Award Agreement (each transferee described in clauses
(A), (B), (C) and (D) above is hereinafter referred to as a
"Permitted Transferee"); provided, that the Participant gives the
Committee advance written notice describing the terms and
conditions of the proposed transfer and the Committee notifies the
Participant in writing that such a transfer would comply with the
requirements of this Plan.
(iii) The terms of any Award transferred in accordance with
subparagraph (ii) above shall apply to the Permitted Transferee and
any reference in this Plan, or in any applicable Award Agreement,
to a Participant shall be deemed to refer to the Permitted
Transferee, except that (A) Permitted Transferees shall not be
entitled to transfer any Award, other than by will or the laws of
descent and distribution; (B) Permitted Transferees shall not be
entitled to exercise any transferred Option unless there shall be
in effect a registration statement on an appropriate form covering
the Common Shares to be acquired pursuant to the exercise of such
Option if the Committee determines, consistent with any applicable
Award Agreement, that such a registration statement is necessary or
appropriate; (C) the Committee or the Company shall not be required
to provide any notice to a Permitted Transferee, whether or not
such notice is or would otherwise have been required to be given to
the Participant under this Plan or otherwise; and (D) the
consequences of the termination of the Participant's employment by,
or services to, the Company or an Affiliate under the terms of this
Plan and the applicable Award Agreement shall continue to be
applied with respect to the Participant, including, without
limitation, that an Option shall be exercisable by the Permitted
Transferee only to the extent, and for the periods, specified in
this Plan and the applicable Award Agreement.
(iv) The Committee shall have the right, either on an
Award-by-Award basis or as a matter of policy for all Awards or one
or more classes of Awards, to condition the delivery of vested
Common Shares received in connection with such Award on the
Participant's agreement to such restrictions as the Committee may
determine.
(c) Tax Withholding.
(i) A Participant shall be required to pay to the Company or any
Affiliate, or the Company or any Affiliate shall have the right and
is hereby authorized to withhold, from any cash, Common Shares,
other securities or other property deliverable under any Award or
from any compensation or other amounts owing to a Participant, the
amount (in cash, Common Shares, other securities or other property)
of any required withholding taxes in respect of an Award, its
exercise, or any payment or transfer under an Award or under this
Plan and to take such other action as may be necessary in the
opinion of the Committee or the Company to satisfy all obligations
for the payment of such withholding and taxes. In addition, the
Committee, in its discretion, may make arrangements mutually
agreeable with a Participant who is not an employee of the Company
or an Affiliate to facilitate the payment of applicable income and
self-employment taxes.
(ii) Without limiting the generality of clause (i) above, the
Committee may, in its sole discretion, permit a Participant to
satisfy, in whole or in part, the foregoing withholding liability
by (A) the delivery of Common Shares (which are not subject to any
pledge or other security interest) owned by the Participant having
a fair market value equal to such withholding liability or (B)
having the Company withhold from the number of Common Shares
otherwise issuable or deliverable pursuant to the exercise or
settlement of the Award a number of shares with a fair market value
equal to such withholding liability (but no more than the maximum
individual statutory rate for the applicable tax jurisdiction).
(d) No Claim to Awards; No Rights to Continued Employment;
Waiver. No employee of the Company or an Affiliate, or other
person, shall have any claim or right to be granted an Award under
this Plan or, having been selected for the grant of an Award, to be
selected for a grant of any other Award. There is no obligation for
uniformity of treatment of Participants or holders or beneficiaries
of Awards. The terms and conditions of Awards and the Committee's
determinations and interpretations with respect thereto need not be
the same with respect to each Participant and may be made
selectively among Participants, whether or not such Participants
are similarly situated. Neither this Plan nor any action taken
hereunder shall be construed as giving any Participant any right to
be retained in the employ or service of the Company or an
Affiliate, nor shall it be construed as giving any Participant any
rights to continued service on the Board. The Company or any of its
Affiliates may at any time dismiss a Participant from employment or
discontinue any consulting relationship, free from any liability or
any claim under this Plan, unless otherwise expressly provided in
this Plan or any Award Agreement. By accepting an Award under this
Plan, a Participant shall thereby be deemed to have waived any
claim to continued exercise or vesting of an Award or to damages or
severance entitlement related to non-continuation of the Award
beyond the period provided under this Plan or any Award Agreement,
notwithstanding any provision to the contrary in any written
employment contract or other agreement between the Company and its
Affiliates and the Participant, whether any such agreement is
executed before, on or after the Date of Grant.
(e) International Participants. With respect to Participants who
reside or work outside of the United States of America and who are
not (and who are not expected to be) "covered employees" within the
meaning of Section 162(m) of the Code, the Committee may in its
sole discretion amend the terms of this Plan or outstanding Awards
(or establish a sub-plan) with respect to such Participants in
order to conform such terms with the requirements of local law or
to obtain more favorable tax or other treatment for such
Participants, the Company or its Affiliates.
(f) Designation and Change of Beneficiary. Unless otherwise
provided by the Committee in an Award Agreement, each Participant
may file with the Committee a written designation of one or more
persons as the beneficiary(ies) who shall be entitled to receive
the amounts payable with respect to an Award, if any, due under
this Plan upon his or her death. A Participant may, from time to
time, revoke or change his or her beneficiary designation without
the consent of any prior beneficiary by filing a new designation
with the Committee. The last such designation filed with the
Committee shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective
unless received by the Committee prior to the Participant's death,
and in no event shall it be effective as of a date prior to such
receipt. If no beneficiary designation is filed by a Participant,
the beneficiary shall be deemed to be his or her spouse or, if the
Participant is unmarried at the time of death, his or her estate.
Upon the occurrence of a Participant's divorce (as evidenced by a
final order or decree of divorce), any spousal designation
previously given by such Participant shall automatically
terminate.
(g) Termination of Employment/Service. Unless determined
otherwise by the Committee at any point following such event: (i)
neither a temporary absence from employment or service due to
illness, vacation or leave of absence nor a transfer from
employment or service with the Company to employment or service
with an Affiliate (or vice-versa) shall be considered a termination
of employment or service with the Company or an Affiliate; and (ii)
if a Participant's employment with the Company and its Affiliates
terminates, but such Participant continues to provide services to
the Company and its Affiliates in a non-employee capacity (or
vice-versa), such change in status shall not be considered a
termination of employment with the Company or an Affiliate for
purposes of this Plan unless the Committee, in its discretion,
determines otherwise.
(h) No Rights as a Stockholder. Except as otherwise specifically
provided in this Plan or any Award Agreement, no person shall be
entitled to the privileges of ownership in respect of Common Shares
that are subject to Awards hereunder until such shares have been
issued or delivered to that person.
(i) Government and Other Regulations.
(i) The obligation of the Company to settle Awards in Common
Shares or other consideration shall be subject to all applicable
laws, rules, and regulations, and to such approvals by governmental
agencies as may be required. Notwithstanding any terms or
conditions of any Award to the contrary, the Company shall be under
no obligation to offer to sell or to sell, and shall be prohibited
from offering to sell or selling, any Common Shares pursuant to an
Award unless such shares have been properly registered for sale
pursuant to the Securities Act with the Securities and Exchange
Commission or unless the Company has received an opinion of
counsel, satisfactory to the Company, that such shares may be
offered or sold without such registration pursuant to an available
exemption therefrom and the terms and conditions of such exemption
have been fully complied with. The Company shall be under no
obligation to register for sale under the Securities Act any of the
Common Shares to be offered or sold under this Plan. The Committee
shall have the authority to provide that all certificates for
Common Shares or other securities of the Company or any Affiliate
delivered under this Plan shall be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable
under this Plan, the applicable Award Agreement, the federal
securities laws, or the rules, regulations and other requirements
of the Securities and Exchange Commission, any securities exchange
or inter-dealer quotation system upon which such shares or other
securities are then listed or quoted and any other applicable
federal, state, local or non-U.S. laws, and, without limiting the
generality of Section 9 of this Plan, the Committee may cause a
legend or legends to be put on any such certificates to make
appropriate reference to such restrictions. Notwithstanding any
provision in this Plan to the contrary, the Committee reserves the
right to add any additional terms or provisions to any Award
granted under this Plan that it in its sole discretion deems
necessary or advisable in order that such Award complies with the
legal requirements of any governmental entity to whose jurisdiction
the Award is subject.
(ii) The Committee may cancel an Award or any portion thereof if
it determines, in its sole discretion, that legal or contractual
restrictions and/or blockage and/or other market considerations
would make the Company's acquisition of Common Shares from the
public markets, the Company's issuance of Common Shares to the
Participant, the Participant's acquisition of Common Shares from
the Company and/or the Participant's sale of Common Shares to the
public markets, illegal, impracticable or inadvisable. If the
Committee determines to cancel all or any portion of an Award in
accordance with the foregoing, unless doing so would violate
Section 409A of the Code, the Company shall pay to the Participant
an amount equal to the excess of (A) the aggregate Fair Market
Value of the Common Shares subject to such Award or portion thereof
canceled (determined as of the applicable exercise date, or the
date that the shares would have been vested or delivered, as
applicable), over (B) the aggregate Exercise Price or Strike Price
(in the case of an Option or SAR, respectively) or any amount
payable as a condition of delivery of Common Shares (in the case of
any other Award). Such amount shall be delivered to the Participant
as soon
as practicable following the cancellation of such Award or
portion thereof. The Committee shall have the discretion to
consider and take action to mitigate the tax consequence to the
Participant in cancelling an Award in accordance with this
clause.
(j) Payments to Persons Other Than Participants. If the
Committee shall find that any person to whom any amount is payable
under this Plan is unable to care for his affairs because of
illness or accident, or is a minor, or has died, then any payment
due to such person or his estate (unless a prior claim therefor has
been made by a duly appointed legal representative) may, if the
Committee so directs the Company, be paid to his spouse, child,
relative, an institution maintaining or having custody of such
person, or any other person deemed by the Committee to be a proper
recipient on behalf of such person otherwise entitled to payment.
Any such payment shall be a complete discharge of the liability of
the Committee and the Company therefor.
(k) Nonexclusivity of this Plan. Neither the adoption of this
Plan by the Board nor the submission of this Plan to the
stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options or other
equity-based awards otherwise than under this Plan, and such
arrangements may be either applicable generally or only in specific
cases.
(l) No Trust or Fund Created. Neither this Plan nor any Award
shall create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or any
Affiliate, on the one hand, and a Participant or other person or
entity, on the other hand. No provision of this Plan or any Award
shall require the Company, for the purpose of satisfying any
obligations under this Plan, to purchase assets or place any assets
in a trust or other entity to which contributions are made or
otherwise to segregate any assets, nor shall the Company maintain
separate bank accounts, books, records or other evidence of the
existence of a segregated or separately maintained or administered
fund for such purposes. Participants shall have no rights under
this Plan other than as general unsecured creditors of the Company,
except that insofar as they may have become entitled to payment of
additional compensation by performance of services, they shall have
the same rights as other employees under general law.
(m) Reliance on Reports. Each member of the Committee and each
member of the Board shall be fully justified in acting or failing
to act, as the case may be, and shall not be liable for having so
acted or failed to act in good faith, in reliance upon any report
made by the independent public accountant of the Company and/or its
Affiliates and/or any other information furnished in connection
with this Plan by any agent of the Company or the Committee or the
Board, other than himself.
(n) Relationship to Other Benefits. No payment under this Plan
shall be taken into account in determining any benefits under any
pension, retirement, profit sharing, group insurance or other
benefit plan of the Company except as otherwise specifically
provided in such other plan.
(o) Governing Law. The Plan shall be governed by and construed
in accordance with the internal laws of the State of New Jersey
without giving effect to the conflict of laws provisions.
(p) Severability. If any provision of this Plan or any Award or
Award Agreement is or becomes or is deemed to be invalid, illegal,
or unenforceable in any jurisdiction or as to any person or entity
or Award, or would disqualify this Plan or any Award under any law
deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws in
the manner that most closely reflects the original intent of the
Award or the Plan, or if it cannot be construed or deemed amended
without, in the determination of the Committee, materially altering
the intent of this Plan or the Award, such provision shall be
construed or deemed stricken as to such jurisdiction, person or
entity or Award and the remainder of this Plan and any such Award
shall remain in full force and effect.
(q) Obligations Binding on Successors. The obligations of the
Company under this Plan shall be binding upon any successor
corporation or organization resulting from the merger,
amalgamation, consolidation or other reorganization of the Company,
or upon any successor corporation or organization succeeding to
substantially all of the assets and business of the Company.
(r) Code Section 162(m) Approval. If so determined by the
Committee, the provisions of this Plan regarding Performance
Compensation Awards shall be disclosed and reapproved by
stockholders no later than the first stockholder meeting that
occurs in the fifth year following the year in which stockholders
previously approved such provisions, in each case in order for
certain Awards granted after such time to be exempt from the
deduction limitations of Section 162(m) of the Code. Nothing in
this clause, however, shall affect the validity of Awards granted
after such time if such stockholder approval has not been
obtained.
(s) Expenses; Gender; Titles and Headings. The expenses of
administering this Plan shall be borne by the Company and its
Affiliates. Masculine pronouns and other words of masculine gender
shall refer to both men and women. The titles and headings of the
sections in this Plan are for convenience of reference only, and in
the event of any conflict, the text of this Plan, rather than such
titles or headings shall control.
(t) Other Agreements. Notwithstanding the above, the Committee
may require, as a condition to the grant of and/or the receipt of
Common Shares under an Award, that the Participant execute lock-up,
stockholder or other agreements, as it may determine in its sole
and absolute discretion.
(u) Section 409A. The Plan and all Awards granted hereunder are
intended to comply with, or otherwise be exempt from, the
requirements of Section 409A of the Code. The Plan and all Awards
granted under this Plan shall be administered, interpreted, and
construed in a manner consistent with Section 409A of the Code to
the extent necessary to avoid the imposition of additional taxes
under Section 409A(a)(1)(B) of the Code. Notwithstanding anything
in this Plan to the contrary, in no event shall the Committee
exercise its discretion to accelerate the payment or settlement of
an Award where such payment or settlement constitutes deferred
compensation within the meaning of Section 409A of the Code unless,
and solely to the extent that, such accelerated payment or
settlement is permissible under Section 1.409A-3(j)(4) of the
Treasury Regulations. If a Participant is a "specified employee"
(within the meaning of Section 1.409A-1(i) of the Treasury
Regulations) at any time during the twelve (12)-month period ending
on the date of his termination of employment, and any Award
hereunder subject to the requirements of Section 409A of the Code
is to be satisfied on account of the Participant's termination of
employment, satisfaction of such Award shall be suspended until the
date that is six (6) months after the date of such termination of
employment.
(v) Payments. Participants shall be required to pay, to the
extent required by applicable law, any amounts required to receive
Common Shares under any Award made under this Plan.
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
END
RAGUGGBWPUPRGBB
(END) Dow Jones Newswires
December 10, 2018 02:00 ET (07:00 GMT)
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