INFORMATION
STATEMENT
Pursuant
to Section 14(c) of the
Exchange
Act of 1934
Check
the appropriate box:
[ ]
Preliminary Information Statement
[ ]
Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2))
[X]
Definitive Information Statement
ALPHA-EN
CORPORATION
(Name
of Registrant as Specified In Its Charter)
Payment
of Filing Fee (Check the Appropriate Box):
[X]
No fee required
[ ]
Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11
(1)
Title of each class of securities to which transaction applies:
(2)
Aggregate number of securities to which transaction applies:
(3)
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11:
(4)
Proposed maximum aggregate value of transaction:
(5)
Total fee paid:
[ ]
Check box if any party of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and
the date of its filing.
(1)
Amount Previously Paid:
(2)
Form, Schedule or Registration Statement No.:
(3)
Filing Party:
(4)
Date Filed:
ALPHA-EN
CORPORATION
120
White Plains Road, Suite 425
Tarrytown,
New York 10591
NOTICE
OF STOCKHOLDER ACTION BY WRITTEN CONSENT
June
1, 2017
To
the Stockholders of alpha-En Corporation:
The
enclosed Information Statement is being furnished to the stockholders of alpha-En Corporation, a Delaware corporation (“alpha-En”
or the “Company”), to provide notice of action by written consent of the holders of at least 75% the outstanding shares
of our common stock approving: (i) the amendment and restatement of our Certificate of Incorporation to effect an increase in
the number of authorized shares of stock from thirty-eight million (38,000,000) to sixty million (60,000,000) shares and certain
other changes described in the accompanying Information Statement (as so amended, the “Restated Certificate”); and
(ii) the adoption of the Company’s 2016 Omnibus Equity Plan (the “2016 Equity Plan”). The approval of the Restated
Certificate was obtained on March 29, 2017 from stockholders that owned 25,478,097 of the Company’s common stock, representing
approximately 75.2% of the voting rights of the stockholders entitled to vote on March 29, 2017. The approval of the 2016 Equity
Plan was obtained on June 27, 2016 from stockholders that owned 21,951,139 shares of the Company’s common stock, representing
approximately 75.0% of the voting rights of the stockholders entitled to vote as of June 27, 2016. Pursuant to applicable law,
the Restated Certificate will not be effectuated until twenty days after the mailing of this Information Statement and after the
filing of the Restated Certificate with the Delaware Secretary of State.
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
Because
the written consent of the holders of the requisite number of shares of our common stock with respect to the approval of the Restated
Certificate and the 2016 Equity Plan satisfies all applicable stockholder voting requirements, we are not asking for a proxy.
Please do not send us one. This notice and Information Statement is being sent to you for information purposes only.
This
notice and the accompanying Information Statement is being mailed on or about June 2, 2017 to stockholders of record at the close
of business on May 12, 2017.
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By
Order of the Board of Directors,
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/s/
s Jerome I. Feldman
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Jerome
I. Feldman
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Executive
Chairman and Treasurer
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ALPHA-EN
CORPORATION
120
White Plains Road, Suite 425
Tarrytown,
New York 10591
INFORMATION
STATEMENT
GENERAL
INFORMATION
This
Information Statement is being furnished to the stockholders of alpha-En Corporation (“alpha-En” or the “Company”)
in connection with actions to be taken by the Company as a result of (a) a unanimous written consent of our board of directors
and the written consent of the holders of 25,478,097 shares of the Company’s common stock, representing approximately 75.2%
of the voting rights of the stockholders entitled to vote, as of the record date of March 29, 2017, and (b) a unanimous written
consent of our board of directors and the written consent of the holders of 21,951,139 shares of the Company’s common stock,
representing approximately 75.0% of the voting rights of the stockholders entitled to vote, as of the record date of June 27,
2016 (the stockholders voting by such written consents, the “Consenting Stockholders”). The actions are as follows:
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(i)
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effectuate
the amendment and restatement our Certificate of Incorporation (the “Restated Certificate”) to:
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increase
the number of authorized shares of all classes of stock which the Company has authority to issue from thirty-eight million
(38,000,000) to sixty million (60,000,000) shares;
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allow
for our board of directors to authorize the issuance of shares of preferred stock in series, to establish the number of shares
to be included in each such series and to fix the designations, powers, preferences and rights of the shares of such series;
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allow
for the number of authorized shares of preferred stock to be increased or decreased by the affirmative vote of the holders
of shares of capital stock of the Company representing a majority of the votes represented by all outstanding shares of capital
stock of the Company entitled to vote, irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation
Law;
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increase
the number of votes required to remove a director from office from the affirmative vote of the holders of at least fifty percent
(50%) of all the then-outstanding shares of capital stock of the Company entitled to vote generally in the election of directors,
voting together as a single class to a majority of the voting power of all the then-outstanding shares of capital stock of
the Company entitled to vote generally in the election of directors, voting together as a single class;
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increase
the number of votes required to adopt, amend, or repeal the by-laws of the Company from the affirmative vote of the holders
of at least fifty percent (50%) of the voting power of all the then-outstanding shares of the capital stock of the Company
entitled to vote generally in the election of directors, voting together as a single class to a majority of the voting power
of all the then-outstanding shares of the capital stock of the Company entitled to vote generally in the election of directors,
voting together as a single class; and
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decrease
the number of votes required to amend or repeal Article NINTH, Section C of Article FIFTH, Article SIXTH, Article SEVENTH,
or Article EIGHTH of the Certificate of Incorporation from the affirmative vote of the holders of at least seventy-five (75%)
to a majority of the voting power of all of the then-outstanding shares of the capital stock of the Company entitled to vote
generally in the election of directors, voting together as a single class;
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(ii)
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approve
the Company’s 2016 Omnibus Equity Plan (the “2016 Equity Plan”).
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This
Information Statement is being furnished to you to notify you of the approval of the Restated Certificate and the 2016 Equity
Plan, and shall constitute notice to you of the Consenting Stockholders taking action by written consent under Section 228 of
the Delaware General Corporation Law. No other stockholder approvals are required or necessary to effectuate the Restated Certificate
and the 2016 Equity Plan.
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
Effective
Date of Corporate Actions
The
Restated Certificate will be effective when filed with the Delaware Secretary of State. The Company will make such filing no earlier
than 20 calendar days after the date this Information Statement is first mailed to our stockholders.
The
approval of the 2016 Equity Plan will be effective 20 calendar days after the date this Information Statement is first mailed
to our stockholders.
No
Appraisal Rights
The
Delaware General Corporation Law does not provide for appraisal rights in connection with the approval of the Restated Certificate
or the 2016 Equity Plan.
Expenses
of this Information Statement
The
entire cost of furnishing this Information Statement will be borne by alpha-En. We may also reimburse brokerage firms, banks and
other agents for the cost of forwarding copies of this Information Statement to beneficial owners.
DESCRIPTION
OF STOCKHOLDER ACTIONS
The
Restated Certificate and the 2016 Equity Plan were unanimously approved by our board of directors on March 29, 2017 and June 27,
2016, respectively. The approval of the Restated Certificate was obtained on March 29, 2017 from stockholders that owned 25,478,097
of the Company’s common stock, representing approximately 75.2% of the voting rights of the stockholders entitled to vote
on March 29, 2017. The approval of the 2016 Equity Plan was obtained on June 27, 2016 from stockholders that owned 21,951,139
shares of the Company’s common stock, representing approximately 75.0% of the voting rights of the stockholders entitled
to vote as of June 27, 2016. These votes constituted a sufficient number of votes to approve the Restated Certificate and the
2016 Equity Plan under the Company’s Certificate of Incorporation and Bylaws and the Delaware General Corporation Law.
Amendment
and Restatement of the Certificate of Incorporation
Our
board of directors believes that the amendment and restatement of the Company’s Certificate of Incorporation contained in
the Restated Certificate are in the best interests of the Company and its stockholders as they will (1) provide alpha-En with
a sufficient number of shares of common stock to satisfy the Company’s obligations to issue shares upon the conversion or
exercise of outstanding warrants and other convertible securities, (2) will provide alpha-En with available shares that can be
issued for various corporate purposes, including acquisitions, stock dividends, stock splits, stock options, convertible debt
and equity financings, which will enable alpha-En to promptly take advantage of market conditions and the availability of favorable
opportunities without the delay and expense associated with holding a special meeting of stockholders, and (3) implement certain
other changes to reflect updates to Delaware law and current governance practices.
The
following is a brief summary of the provisions to be amended in the Restated Certificate. This summary is qualified in its entirety
by reference to the text of the Restated Certificate, a copy of which is attached as Annex A to this Information Statement.
Increase
in Authorized Shares
Section
A of Article FOURTH of the Company’s Certificate of Incorporation was amended to increase the number of authorized shares
of stock from thirty-eight million (38,000,000) to sixty million (60,000,000) shares, which increased the total number of authorized
common shares from thirty-five million (35,000,000) to fifty-seven million (57,000,000) shares. In addition to the authorized
shares of common stock, the Company is also authorized to issue up to one million (1,000,000) shares of Class B common stock,
par value one cent ($0.01) per share, and two million (2,000,000) shares of preferred stock, par value one cent ($0.01) per share.
The additional shares of common stock authorized under the Restated Certificate have rights identical to the currently outstanding
common stock of the Company.
Section
C of Article FOURTH will allow for our board of directors to authorize the issuance of shares of preferred stock in series, to
establish the number of shares to be included in each such series and to fix the designations, powers, preferences and rights
of the shares of such series.
The
increase in authorized shares will provide a sufficient number of shares to issue shares upon the conversion or exercise of all
of alpha-En’s existing obligations to holders of securities convertible into or exercisable for shares of common stock.
Additionally, alpha-En may issue shares of common stock in connection with a future financing. The increase will provide our board
of directors with the ability to issue additional authorized shares of stock without further vote of the stockholders of alpha-En,
except as provided under Delaware corporate law or under the rules of any national securities exchange on which shares of stock
of alpha-En may be listed. Under alpha-En’s Certificate of Incorporation, the alpha-En stockholders do not have preemptive
rights to subscribe to additional securities which may be issued by alpha-En, which means that current stockholders do not have
a prior right to purchase any new issuance of capital stock of alpha-En in order to maintain their proportionate ownership of
alpha-En’s stock.
The
issuance of any additional shares of alpha-En common stock would both dilute the equity interest and the earnings per share of
existing holders of the Company’s common stock. Such dilution may be substantial depending upon the amount of shares issued.
The newly authorized shares will have voting and other rights identical to those of the currently issued common stock. However,
the increase could have a dilutive effect on the voting power of existing stockholders.
The
authorization of additional common stock, under certain circumstances, may also have an anti-takeover effect. For example, it
may be possible for our board of directors to delay or impede a takeover or transfer of control of alpha-En by causing such additional
authorized shares to be issued to holders who might side with our board of directors in opposing a takeover bid that our board
of directors determines is not in the best interests of alpha-En and our stockholders. The increased authorized capital therefore
may have the effect of discouraging unsolicited takeover attempts and thereby limit the opportunity for stockholders to dispose
of their shares at the higher price generally available in takeover attempts or that may be available under a merger proposal.
However, our board of directors is not aware of any attempt to take control of alpha-En and our board of directors did not propose
the increase in alpha-En’s authorized capital with the intent that it be utilized as a type of anti-takeover device.
Change
in the Votes Required to Increase or Decrease the Number of Authorized Shares of Preferred Stock
Section
C of Article FOURTH of the Company’s Certificate of Incorporation is being amended to allow for the number of authorized
shares of preferred stock to be increased or decreased by the affirmative vote of the holders of shares of capital stock of the
Company representing a majority of the votes represented by all outstanding shares of capital stock of the Company entitled to
vote, irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation Law.
In
order for the holders of shares of capital stock of the Company representing a majority of the votes represented by all outstanding
shares of capital stock of the Company entitled to vote to be able to increase or decrease the number of authorized shares of
preferred stock, a provision stating such must be included in the Company’s Certificate of Incorporation. By amending the
Company’s Certificate of Incorporation to include such a provision, the holders of preferred stock will not have the right
to vote as a separate class for votes pertaining to increasing or decreasing the number of authorized shares of preferred stock,
unless such right is otherwise granted in the Company’s Certificate of Incorporation.
Increase
in the Number of Votes Required to Remove a Director from Office
Section
D of Article SIXTH of the Company’s Certificate of Incorporation is being amended to increase the number of votes required
to remove a director from office from the affirmative vote of the holders of at least fifty percent (50%) of the voting power
of all the then-outstanding shares of capital stock of the Company entitled to vote generally in the election of directors, voting
together as a single class, to the affirmative vote of a majority of the voting power of all the then-outstanding shares of capital
stock of the Company entitled to vote generally in the election of directors, voting together as a single class.
Section
141(k) of the Delaware General Corporation Law states any director may be removed by the holders of a majority of the shares then
entitled to vote at an election of the directors. The increase in the number of votes required to remove a director makes the
Company’s Certificate of Incorporation consistent with the Delaware General Corporation Law.
Increase
in the Number of Votes Required to Adopt, Amend, or Repeal the By-laws of the Company
Article
SEVENTH of the Company’s Certificate of Incorporation is being amended to increase the number of votes required to adopt,
amend, or repeal the by-laws of the Company from the affirmative vote of the holders of at least fifty percent (50%) of the voting
power of all the then-outstanding shares of the capital stock of the Company entitled to vote generally in the election of directors,
voting together as a single class, to a majority of the voting power of all the then-outstanding shares of the capital stock of
the Company entitled to vote generally in the election of directors, voting together as a single class.
Decrease
in the Number of Votes Required to Amend or Repeal Certain Sections of the Company’s Certificate of Incorporation
Article
NINTH of the Company’s Certificate of Incorporation is being amended to decrease the number of votes required to amend or
repeal Article NINTH, Section C of Article FIFTH, Article SIXTH, Article SEVENTH, or Article EIGHTH of the Company’s Certificate
of Incorporation from the affirmative vote of the holders of at least seventy-five (75%) of the voting power of all of the then-outstanding
shares of the capital stock of the Company entitled to vote generally in the election of directors, voting together as a single
class, to a majority of the voting power of all of the then-outstanding shares of the capital stock of the Company entitled to
vote generally in the election of directors, voting together as a single class.
Approval
of 2016 Equity Plan
Our
board of directors and management believe that the effective use of stock-based long-term incentive compensation is vital to our
ability to achieve strong performance in the future. The 2016 Equity Plan will maintain and enhance the key policies and practices
adopted by our management and board of directors to align employee and stockholder interests. In addition, our future success
depends, in large part, upon our ability to maintain a competitive position in attracting, retaining and motivating key personnel.
We believe that the adoption of the 2016 Equity Plan is essential to permit our management to continue to provide long-term, equity-based
incentives to present and future employees.
The
2016 Equity Plan has been approved by the Consenting Stockholders in order to ensure (i) favorable federal income tax treatment
for grants of incentive stock options under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”),
and (ii) continued eligibility to receive a federal income tax deduction for certain compensation paid under the 2016 Equity Plan
by complying with Rule 162(m) of the Code. The Company has reserved a total of 8,870,000 shares of our authorized common stock
for issuance under the 2016 Equity Plan.
The
following is a brief summary of the 2016 Equity Plan. This summary is qualified in its entirety by reference to the text of the
2016 Equity Plan, a copy of which is attached as Annex B to this Information Statement.
General
The
2016 Equity Plan enables our board of directors to provide equity-based incentives through grants of awards to the Company’s
present and future employees, directors, consultants and other third party service providers.
Shares
issued under the 2016 Equity Plan through the settlement, assumption or substitution of outstanding awards or obligations to grant
future awards as a condition of acquiring another entity will not reduce the maximum number of shares of common stock reserved
for issuance under the 2016 Equity Plan. In addition, the number of shares of common stock subject to the 2016 Equity Plan, any
number of shares subject to any numerical limit in the 2016 Equity Plan, and the number of shares and terms of any incentive award
may be adjusted in the event of any change in our outstanding common stock by reason of any stock dividend, spin-off, split-up,
stock split, reverse stock split, recapitalization, reclassification, merger, consolidation, liquidation, business combination
or exchange of shares or similar transaction.
Administration
The
compensation committee of our board of directors (or such other committee as is designated by our board of directors, or in the
absence of any such committee, the full board of directors) (the “Committee”), will administer the 2016 Equity Plan.
Subject to the terms of the 2016 Equity Plan, the Committee will have complete authority and discretion to determine the terms
of awards under the 2016 Equity Plan.
Stock
Options
The
2016 Equity Plan authorizes the grant of Incentive Stock Options and Non-Qualified Stock Options (each an “Option”).
Options granted under the 2016 Equity Plan entitle the grantee, upon exercise, to purchase a specified number of shares of common
stock from us at a specified exercise price per share. The administrator of the 2016 Equity Plan will determine the period during
which an Option may be exercised, as well as any Option vesting schedule, except that no Option may be exercised more than 10
years after the date of grant. The exercise price for shares of common stock covered by an Option cannot be less than the fair
market value of the common stock on the date of grant. Under the 2016 Equity Plan, a participant may not surrender an Option for
the grant of a new Option with a lower exercise price or another award.
The
aggregate fair market value, determined on the date of grant, of shares for which Incentive Stock Options granted under the 2016
Equity Plan become exercisable by a participant during any calendar year shall not exceed $100,000, and any amount in excess of
$100,000 shall be treated as Non-Qualified Stock Options. No participant may be granted Incentive Stock Options for greater than
200,000 shares of common stock in any calendar year. If an Incentive Stock Option is granted to any employee of the Company who
owns more than 10% of the total combined voting securities of the Company, the option price of such Incentive Stock Option shall
be at least 110% of the fair market value of the common stock on the date of grant, and such Incentive Stock Option shall not
be exercisable more than five years after the date of grant.
Exercise
of Stock Options
An
Option’s exercise price may be paid in cash or by certified check at the time the Option is exercised, or, at the discretion
of the Committee, (1) a reload option whereby the exercise price is paid by exchange of other common stock with a fair market
value equal to the Option exercise price; (2) a “cashless” exchange established with a broker; (3) by reducing the
number of shares of common stock otherwise deliverable upon exercise with the fair market value equal to the aggregate Option
exercise price; or (4) any combination of the previous methods.
SARs
Concurrently
with the award of any Option, the administrator of the 2016 Equity Plan may award to the Option holder a related SAR, which permits
the Option holder to be paid the appreciation on the related Option in lieu of exercising the Option. Additionally, the administrator
may award free-standing SARs that are not affiliated with Options granted under the 2016 Equity Plan. Any SARs related to Incentive
Stock Options must be granted together with the related Option. Any SARs with respect to Non-Qualified Stock Options may be granted
together or separately from the related Option. SARs may be exercised only for such period of time as the underlying Options are
exercisable, in no event more than 10 years from the date of grant. If any SAR is exercised by the holder of the SAR, any underlying
Option shall be cancelled, and the shares of common stock underlying such Option shall no longer be available for awards under
the 2016 Equity Plan.
Restricted
Stock Awards
The
2016 Equity Plan also authorizes the grant of Restricted Stock Awards on terms and conditions established by our board of directors,
which may include performance conditions. The terms and conditions will include the designation of a restriction period during
which the shares are not transferable and are subject to forfeiture.
Change
in Control
The
administrator of the 2016 Equity Plan may make provisions in awards with respect to a change in control. Under the 2016 Equity
Plan, in the event of a change of control and absent any terms to the contrary in an award, our board of directors may take such
actions to provide for one or more of: (a) accelerating the vesting of any or all awards; (b) assuming or substituting any
or all outstanding awards; and (c) cashing out any or all outstanding awards immediately before the change in control.
Duration,
Amendment and Termination
The
administrator of the 2016 Equity Plan may suspend or terminate the 2016 Equity Plan without stockholder approval or ratification
at any time or from time to time. Unless sooner terminated, the 2016 Equity Plan will terminate on the tenth anniversary of its
effective date. The administrator may also amend the 2016 Equity Plan at any time, except that no amendment shall be effective
unless approved by our stockholders, to the extent stockholder approval is necessary to satisfy any applicable laws. No change
may be made that increases the total number of shares of common stock reserved for issuance pursuant to awards or reduces the
minimum exercise price for options or exchange of options for other awards, unless such change is authorized by our stockholders.
A termination or amendment of the 2016 Equity Plan will not, without the consent of the participant, adversely affect a participant’s
rights under a previously granted award.
Restrictions
on Transfer
Incentive
Stock Options may not be transferred or exercised by another person except by will or by the laws of descent and distribution.
Nonqualified Stock Options may, in the sole discretion of the Committee, be transferrable to certain permitted transferees as
provided in the individual award agreements.
Federal
Income Tax Information
The
following is a general summary of the current federal income tax treatment of awards, which are authorized to be granted under
the 2016 Equity Plan, based upon the current provisions of the Code and regulations promulgated thereunder. The rules governing
the tax treatment of such awards are quite technical, so the following discussion of tax consequences is necessarily general in
nature and is not complete. In addition, statutory provisions are subject to change, as are their interpretations, and their application
may vary in individual circumstances. Finally, this discussion does not address the tax consequences under applicable state and
local law.
Incentive
Stock Options
A
participant will not recognize income on the grant or exercise of an Incentive Stock Option. However, the difference between the
exercise price and the fair market value of the common stock on the date of exercise is an adjustment item for purposes of the
alternative minimum tax. If a participant does not exercise an Incentive Stock Option within certain specified periods after termination
of employment, the participant will recognize ordinary income on the exercise of an Incentive Stock Option in the same manner
as on the exercise of a Non-Qualified Stock Option, as described below. The general rule is that gain or loss from the sale or
exchange of shares of common stock acquired on the exercise of an Incentive Stock Option will be treated as capital gain or loss.
If certain holding period requirements are not satisfied, however, the participant generally will recognize ordinary income at
the time of the disposition. Gain recognized on the disposition in excess of the ordinary income resulting therefrom will be capital
gain, and any loss recognized will be a capital loss.
Non-Qualified
Stock Options
A
participant generally is not required to recognize income on the grant of a Non-Qualified Stock Option, a stock appreciation right,
restricted stock units, a performance grant, or a stock award. Instead, ordinary income generally is required to be recognized
on the date the Non-Qualified Stock Option or stock appreciation right is exercised, or in the case of restricted stock units,
performance grants, and stock awards, upon the issuance of shares and/or the payment of cash pursuant to the terms of the incentive
award. In general, the amount of ordinary income required to be recognized is (a) in the case of a Non-Qualified Stock Option,
an amount equal to the excess, if any, of the fair market value of the shares on the exercise date over the exercise price, (b)
in the case of a stock appreciation right, the amount of cash and/or the fair market value of any shares received upon exercise
plus the amount of taxes withheld from such amounts, and (c) in the case of restricted stock units, performance grants, and stock
awards, the amount of cash and/or the fair market value of any shares received in respect thereof, plus the amount of taxes withheld
from such amounts.
Gain
or Loss on Sale or Exchange of Shares
In
general, gain or loss from the sale or exchange of shares of common stock granted or awarded under the 2016 Equity Plan will be
treated as capital gain or loss, provided that the shares are held as capital assets at the time of the sale or exchange. However,
if certain holding period requirements are not satisfied at the time of a sale or exchange of shares acquired upon exercise of
an incentive stock option (a “disqualifying disposition”), a participant generally will be required to recognize ordinary
income upon such disposition.
Deductibility
by Company
The
Company generally is not allowed a deduction in connection with the grant or exercise of an Incentive Stock Option. However, if
a participant is required to recognize ordinary income as a result of a disqualifying disposition, we will be entitled to a deduction
equal to the amount of ordinary income so recognized. In general, in the case of a Non-Qualified Stock Option (including an Incentive
Stock Option that is treated as a Non-Qualified Stock Option), a stock appreciation right, restricted stock, restricted stock
units, performance grants, and stock awards, the Company will be allowed a deduction in an amount equal to the amount of ordinary
income recognized by a participant, provided that certain income tax reporting requirements are satisfied.
Performance-Based
Compensation
Subject
to certain exceptions, Section 162(m) of the Code disallows federal income tax deductions for compensation paid by a publicly-held
corporation to certain executives (generally the five highest paid officers) to the extent the amount paid to an executive exceeds
$1 million for the taxable year. The 2016 Equity Plan has been designed to allow the Committee to grant stock options, stock appreciation
rights, restricted stock, restricted stock units, and performance grants that qualify under an exception to the deduction limit
of Section 162(m) for performance-based compensation.
THE
FOREGOING IS ONLY A SUMMARY OF THE EFFECT OF U.S. FEDERAL INCOME TAXATION WITH RESPECT TO THE GRANT AND EXERCISE OF AWARDS UNDER
THE 2016 EQUITY PLAN. IT DOES NOT PURPORT TO BE COMPLETE, AND DOES NOT DISCUSS THE TAX CONSEQUENCES OF AN INDIVIDUAL’S DEATH
OR THE PROVISIONS OF THE INCOME TAX LAWS OF ANY MUNICIPALITY, STATE OR FOREIGN COUNTRY IN WHICH ANY ELIGIBLE INDIVIDUAL MAY RESIDE.
New
Plan Benefits
Following
approval of the 2016 Equity Plan as described above by our board of directors and stockholders that owned approximately 75.0%
of the voting rights of our then outstanding voting securities, our board of directors approved of equity awards under the 2016
Equity Plan to each of the executive officers named below, and all other employees, respectively:
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Name and Principal Position
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Common Stock Underlying Options Granted
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Option Exercise Price Per Share
($)
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Option Expiration Date
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Market Value of Common Stock Underlying Options Granted
($)(3)
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Nathan J. Wasserman
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500,000
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(1)
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$
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1.10
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1/27/2022
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$
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900,000
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Chief Financial Officer
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Executive Group
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500,000
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$
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1.10
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1/27/2022
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$
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900,000
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Non-Executive Director Group
|
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—
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|
|
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—
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|
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—
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—
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Non-Executive Employee Group
|
|
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125,000
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|
|
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—
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(2
|
)
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—
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(2
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)
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$
|
225,000
|
|
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(1)
|
Represents
an option award granted on January 27, 2017 to Mr. Wasserman to purchase a total of 500,000 shares of common stock at an exercise
price of $1.10 per share, of which 150,000 vested upon the date of grant, 150,000 will vest on his one year anniversary of
service and 200,000 will vest on his second year anniversary of service.
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(2)
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Consists
of 25,000 options granted with an exercise price of $1.75 per share and an expiration date of September 23, 2021 and 100,000
options granted with an exercise price of $1.08 per share and an expiration date of December 6, 2021.
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(3)
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The
market value of the common stock underlying the option grants is based on the closing price of $1.80 per share of our common
stock as quoted on the OTC Pink Open Market as of May 9, 2017.
|
The
terms and number of stock options or other awards to be granted in the future under the 2016 Equity Plan are to be determined
in the discretion of the Committee. Since no determinations regarding future awards or grants have yet been made, the benefits
or amounts that will be received by or allocated to the Company’s executive officers or other eligible employees or non-employee
directors in the future cannot be determined at this time.
Director
Compensation
Directors
currently receive no compensation for serving on our board of directors, other than reimbursement of reasonable expenses for attendance
at board meetings. No compensation was paid to our directors in the year ending December 31, 2016.
INTEREST
OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
No
director, officer, associate of any director, officer or any other person has any substantial interest, direct or indirect, by
security holdings or otherwise, in any action covered by the related resolutions adopted by our board of directors, which is not
shared by all other stockholders other than as a result of receiving common stock (or awards related thereto) under the 2016 Equity
Plan.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the information and reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and in accordance with the Exchange Act, we file periodic reports, documents, and other information with the Securities
and Exchange Commission relating to our business, financial statements, and other matters. These reports and other information
may be inspected and are available for copying at the offices of the Securities and Exchange Commission, 100 F Street, N.E., Washington,
DC 20549. Our SEC filings are also available to the public on the SEC’s website at http://www.sec.gov and on our website
at https://alpha-encorp.com/investor-relations/. These reports are also available to any stockholder at no cost upon written request
to the Company.
Delivery
of Documents to Stockholders Sharing an Address
Only
one Information Statement is being delivered to multiple stockholders sharing an address, unless we have received contrary instructions
from one or more of the stockholders. We will undertake to deliver promptly upon written or oral request a separate copy of the
Information Statement to a stockholder at a shared address to which a single copy of the Information Statement was delivered.
You may make such a written or oral request by contacting the Company at 120 White Plains Road, Suite 425, Tarrytown, New York
10591 or (914) 418-2000. Additionally, if current stockholders with a shared address received multiple copies of this Information
Statement and would prefer us to mail one copy of future mailings to stockholders at the shared address, notification of that
request may also be made by mail or telephone call to our principal executive offices as set forth above.
APPENDICES
|
Annex
A -
|
Amended
and Restated Certificate of Incorporation
|
|
|
|
|
Annex
B -
|
2016
Equity Plan
|
Annex
A
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ALPHA-EN
CORPORATION
Under
Section 245 of the
General
Corporation Law
The
undersigned, being, respectively, the president and secretary, hereby certify as follows:
First
:
The name of the corporation is alpha-En Corporation.
Second
:
The date it first filed its Certificate of Incorporation with the Secretary of State is March 7, 1997.
Third
:
The Certificate of Incorporation is amended and restated as herein set forth in full:
“
FIRST
:
The name of the corporation is alpha-En Corporation. (hereinafter referred to as the “Corporation”).
Second
:
The address of the registered office of the Corporation in the State of Delaware is National Registered Agents, Inc., 160 Greentree
Drive, Suite 101, Dover, Delaware 19904, County of Kent. The name of the registered agent of the Corporation at the address is
United Corporate Service, Inc.
Third
:
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware
General Corporation Law.
Fourth
:
A.
The total number of shares of all classes of stock which the Corporation shall have authority to issue is sixty million (60,000,000),
consisting of fifty-seven million (57,000,000) shares of common stock, par value one cent ($0.01) per share (the “Common
Stock”), one million (1,000,000) shares of Class B common stock, par value one cent ($0.01) per share (the “Class
B Common Stock”), and two million (2,000,000) shares of preferred stock, par value one cent ($0.01) per share (the “Preferred
Stock”).
B.
The designations, preferences, privileges and voting powers of the shares of each class of common stock of the Corporation, and
the restrictions or qualifications thereof, are as follows:
1.
a. The holders of the Common Stock and the holders of the Class B Common Stock shall be entitled to the same rights and privileges,
except as hereinafter set forth, and shall share equally, share and share alike, in the distribution of any funds which the Board
of Directors may declare or set aside or pay out as dividends and shall share equally, share and share alike, in the distribution
of all assets of the Corporation after the payment of its debts or liabilities in the event of any liquidation, dissolution or
winding up of the Corporation.
b.
In any and all matters requiring the vote or consent of the stockholders of the Corporation, each issued and outstanding share
of the Common Stock shall be entitled to one (1) vote and each issued and outstanding share of Class B Common Stock shall be entitled
to ten (10) votes.
c.
In case the Corporation shall at any time (i) declare a stock dividend upon its Common Stock payable in shares of its Common Stock
or (ii) mark any distribution upon its Common Stock payable in shares of Common Stock or (iii) subdivide its outstanding shares
of Common Stock into a greater number of shares, or (iv) subdivide its outstanding shares of Common Stock into a smaller amount
of shares, then and in any of such events the Corporation shall make, declare or effect a similar but ratable stock dividend or
distribution or subdivision on the shares of Class B Common Stock but payable in shares of Class B Common Stock and only on a
share for share basis.
d.
Any holder of Class B Common Stock may at any time convert all or any of the shares of such stock held by him or her into shares
of Common Stock of the Corporation at the rate of one (1) share of Common Stock for one (1) share of Class B Common Stock, without
any adjustment for dividends or otherwise, by surrender to the Corporation at any office of the Corporation or at the office of
the Corporation’s transfer agent thereof for cancellation of the certificate or certificates representing the Common Stock
so to be converted, and, upon such surrender, shall be entitled to receive therefor one or more certificates for the number of
shares of Common Stock the Corporation shall be required to issue on said conversion as hereinabove specified.
2.
Shares of Common Stock and Class B Common Stock of the Corporation may be issued, from time to time, by the Corporation for such
consideration, wholly or partly, in cash, any tangible or intangible property or any benefit to the Corporation, as may be determined,
from time to time, by the Board of Directors, and such determination by the Board of Directors shall be final and conclusive.
All shares of Common Stock and Class B Common Stock of the Corporation issued as herein provided shall be deemed fully paid stock
and not liable for any further call or assessment thereon, and the holder of such shares shall not be liable for any further payments
in respect thereto.
3.
No holder of any of the shares of the stock of the Corporation of any class shall be entitled, as such holder, to purchase or
subscribe for any unissued stock of any class or any additional shares of any class to be issued by reason of any increase of
the authorized capital stock of the Corporation of any class, or bonds, certificates of indebtedness, debentures or other securities
convertible into stock of the Corporation, or carrying any right to purchase stock of any class, but any such unissued stock or
such additional authorized issue of any stock or of other securities convertible into stock or carrying any right to purchase
stock may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations, or
associations and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its discretion.
C.
The board of directors is authorized, subject to any limitations prescribed by law, to provide for the issuance of shares of Preferred
Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware (such certificate being hereinafter
referred to as a “Preferred Stock Designation”), to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences, and rights of the shares of each such series, and any qualifications,
limitations or restrictions thereof. The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more series of Preferred
Stock that may be required by the terms of the Certificate of Incorporation) the affirmative vote of the holders of shares of
capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of
the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.
Fifth
:
The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
A.
The business and affairs of the Corporation shall be managed by or under the direction of the board of directors. In addition
to the powers and authority expressly ·conferred upon them by statute or by this Certificate of Incorporation or the by-laws
of the Corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised
or done by the Corporation.
B.
The directors of the Corporation need not be elected by written ballot unless the by-laws so provide.
C.
Special meetings of stockholders of the Corporation may be called only by the Chairman of the Board or the President or by the
board of directors acting pursuant to a resolution adopted by a majority of the Whole Board. For purposes of this Certificate
of Incorporation, the term “Whole Board” shall mean the total number of authorized directors whether or not there
exist any vacancies in previously authorized directorships.
Sixth
:
A.
Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances,
the number of directors shall be fixed from time to time exclusively by the board of directors pursuant to a resolution adopted
by a majority of the Whole Board. The directors, other than those who may be elected by the holders of any series of Preferred
Stock under specified circumstances, shall be divided into three classes, with the term of office of the first class to expire
at the Corporation’s first annual meeting of stockholders, the term of office of the second class to expire at the Corporation’s
second annual meeting of stockholders and the term of office of the third class to expire at the Corporation’s third annual
meeting of stockholders. At each annual meeting of stockholders, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election.
B.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies in the board of directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall, unless otherwise provided by law or by resolution of the
board of directors, be filled only by a majority vote of the directors then in office, though less than a quorum, and directors
so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class
to which they have been chosen expires. No decrease in the authorized number of directors shall shorten the term of any incumbent
director.
C.
Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the manner provided in the by-laws of the Corporation.
D.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, any directors, or the entire board of
directors, may be removed from office at any time, but only by the affirmative vote of the holders of at least a majority of the
voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election
of directors, voting together as a single class.
Seventh
:
The board of directors is expressly empowered to adopt, amend or repeal by-laws of the Corporation. Any adoption, amendment or
repeal of the by-laws of the Corporation by the board of directors shall require the approval of a majority of the Whole Board.
The stockholders shall also have power to adopt, amend or repeal the by-laws of the Corporation; provided, however, that, in addition
to any vote of the holders of any class or series of stock of the Corporation required by law or by this Certificate of Incorporation,
the affirmative vote of the holders of at least a majority of the voting power of all the then-outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be
required to adopt, amend or repeal any provision of the bylaws of the Corporation.
Eighth
:
A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing a violation
of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any
repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such repeal or modification.
Ninth
:
The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation;
provided, however, that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law that
might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock
of this Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least a
majority of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class, shall be required to amend or repeal this Article NINTH, Section
C of Article FIFTH, Article SIXTH, Article SEVENTH, or Article EIGHTH.
Fourth
:
This amended and restated certificate was adopted by the Board of Directors and authorized by the consent, in writing, setting
forth the action so taken, unanimously signed by the holders of at least seventy five percent of the outstanding shares entitled
to vote thereon pursuant to Sections 228 and 242 of the General Corporation Law of the State of Delaware.
IN
WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury,
this 29th day of March, 2017.
|
|
ALPHA-EN
CORPORATION
|
|
|
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|
|
/s/
Jerome I. Feldman
|
|
|
Jerome
I. Feldman
|
|
|
Executive
Chairman and Treasurer
|
Annex
B
Alpha-En
Corporation Equity Plan
1.
Purpose; Eligibility
.
1.1
General Purpose
.
The name of this plan is the alpha-En Corporation 2016 Omnibus Equity Plan (the “
Plan
”). The purposes of the
Plan are to (a) enable alpha-En Corporation, a Delaware corporation (the “
Company
”), and any Affiliate to attract
and retain the types of Employees, Consultants, and Directors who will contribute to the Company’s long range success; (b)
provide incentives that align the interests of Employees, Consultants, and Directors with those of the shareholders of the Company;
and (c) promote the success of the Company’s business.
1.2
Eligible Award Recipients
.
The persons eligible to receive Awards are the Employees, Consultants, and Directors of the Company and its Affiliates and such
other individuals designated by the Committee who are reasonably expected to become Employees, Consultants, and Directors after
the receipt of Awards.
1.3
Available Awards
.
Awards that may be granted under the Plan include: (a) Incentive Stock Options, (b) Non-qualified Stock Options, (c) Stock Appreciation
Rights, and (d) Restricted Awards.
2.
Definitions
.
“Affiliate”
means a corporation or other entity that, directly or through one or more intermediaries, controls, is controlled by, or is
under common control with the Company.
“
Applicable
Laws
” means the requirements related to or implicated by the administration of the Plan under applicable state corporate
law, United States federal and state securities laws, the Code, any stock exchange or quotation system on which the shares of
Common Stock are listed or quoted, and the applicable laws of any foreign country or jurisdiction where Awards are granted under
the Plan.
“
Award
”
means any right granted under the Plan, including an Incentive Stock Option, a Non-qualified Stock Option, a Stock Appreciation
Right, or a Restricted Award.
“
Award
Agreement
” means a written agreement, contract, certificate or other instrument or document evidencing the terms and
conditions of an individual Award granted under the Plan which may, in the discretion of the Company, be transmitted electronically
to any Participant. Each Award Agreement shall be subject to the terms and conditions of the Plan.
“
Beneficial
Owner
” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act),
such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the
right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable
only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding
meaning.
“
Board
”
means the Board of Directors of the Company, as constituted at any time.
“
Cause
”
means:
|
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With
respect to any Employee or Consultant:
(a)
If the Employee or Consultant is a party to an employment or service agreement with the Company or its Affiliates and
such agreement provides for a definition of Cause, the definition contained therein; or
(b)
If no such agreement exists, or if such agreement does not define Cause: (i) the commission of, or plea of guilty or no
contest to, a felony or a crime involving moral turpitude or the commission of any other act involving willful malfeasance
or material fiduciary breach with respect to the Company or an Affiliate; (ii) conduct that results in or is reasonably
likely to result in harm to the reputation or business of the Company or any of its Affiliates; (iii) gross negligence
or willful misconduct with respect to the Company or an Affiliate; or (iv) material violation of state or federal securities
laws.
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|
With
respect to any Director, a determination by a majority of the disinterested Board members
that the Director has engaged in any of the following:
(a)
malfeasance in office;
(b)
gross misconduct or neglect;
(c)
false or fraudulent misrepresentation inducing the director’s appointment;
(d)
willful conversion of corporate funds; or
(e)
repeated failure to participate in Board meetings on a regular basis despite having received proper notice of the meetings
in advance.
|
The
Committee, in its absolute discretion, shall determine the effect of all matters and questions relating to whether a Participant
has been discharged for Cause.
“
Change
in Control
”
|
|
(a)
The direct or indirect sale, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its subsidiaries, taken
as a whole, to any Person that is not a subsidiary of the Company;
(b)
The Incumbent Directors cease for any reason to constitute at least a majority of the Board;
(c)
The date which is 10 business days prior to the consummation of a complete liquidation or dissolution of the Company;
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(d)
The acquisition by any Person of Beneficial Ownership of 50% or more (on a fully diluted
basis) of either (i) the then outstanding shares of Common Stock of the Company, taking
into account as outstanding for this purpose such Common Stock issuable upon the exercise
of options or warrants, the conversion of convertible stock or debt, and the exercise
of any similar right to acquire such Common Stock (the “
Outstanding Company
Common Stock
”) or (ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of directors (the
“
Outstanding Company Voting Securities
”);
provided, however
,
that for purposes of this Plan, the following acquisitions shall not constitute a Change
in Control: (A) any acquisition by the Company or any Affiliate, (B) any acquisition
by any employee benefit plan sponsored or maintained by the Company or any subsidiary,
(C) any acquisition which complies with clauses, (i), (ii) and (iii) of subsection (e)
of this definition or (D) in respect of an Award held by a particular Participant, any
acquisition by the Participant or any group of persons including the Participant (or
any entity controlled by the Participant or any group of persons including the Participant);
or
(e)
The consummation of a reorganization, merger, consolidation, statutory share exchange or similar form of corporate transaction
involving the Company that requires the approval of the Company’s shareholders, whether for such transaction or
the issuance of securities in the transaction (a “
Business Combination
”), unless immediately following
such Business Combination: (i) more than 50% of the total voting power of (A) the entity resulting from such Business
Combination (the “
Surviving Company
”), or (B) if applicable, the ultimate parent entity that directly
or indirectly has beneficial ownership of sufficient voting securities eligible to elect a majority of the members of
the board of directors (or the analogous governing body) of the Surviving Company (the “
Parent Company
”),
is represented by the Outstanding Company Voting Securities that were outstanding immediately prior to such Business Combination
(or, if applicable, is represented by shares into which the Outstanding Company Voting Securities were converted pursuant
to such Business Combination), and such voting power among the holders thereof is in substantially the same proportion
as the voting power of the Outstanding Company Voting Securities among the holders thereof immediately prior to the Business
Combination; (ii) no Person (other than any employee benefit plan sponsored or maintained by the Surviving Company or
the Parent Company) is or becomes the Beneficial Owner, directly or indirectly, of 50% or more of the total voting power
of the outstanding voting securities eligible to elect members of the board of directors of the Parent Company (or the
analogous governing body) (or, if there is no Parent Company, the Surviving Company); and (iii) at least a majority of
the members of the board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent
Company, the Surviving Company) following the consummation of the Business Combination were Board members at the time
of the Board’s approval of the execution of the initial agreement providing for such Business Combination.
|
“
Code
”
means the Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall
be deemed to include a reference to any regulations promulgated thereunder.
“
Committee
”
means a committee of one or more members of the Board appointed by the Board to administer the Plan in accordance with
Section
3.3
and
Section 3.4
.
“
Common
Stock
” means the common stock, $0.01 par value per share, of the Company, or such other securities of the Company as
may be designated by the Committee from time to time in substitution thereof.
“
Company
”
means alpha-En Corporation, a Delaware corporation, and any successor thereto.
“
Consultant
”
means any individual who is engaged by the Company or any Affiliate to render consulting or advisory services.
“
Continuous
Service
” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant
or Director, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated
merely because of a change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee,
Consultant or Director or a change in the entity for which the Participant renders such service,
provided that
there is
no interruption or termination of the Participant’s Continuous Service;
provided further that
if any Award is subject
to Section 409A of the Code, this sentence shall only be given effect to the extent consistent with Section 409A of the Code.
For example, a change in status from an Employee of the Company to a Director of an Affiliate will not constitute an interruption
of Continuous Service. The Committee or its delegate, in its sole discretion, may determine whether Continuous Service shall be
considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any
other personal or family leave of absence.
“
Covered
Employee
” has the same meaning as set forth in Section 162(m)(3) of the Code, as interpreted by IRS Notice 2007-49.
“
Deferred
Stock Units (DSUs)
” has the meaning set forth in
Section 7.2
hereof.
“
Director
”
means a member of the Board.
“
Disability
”
means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment;
provided, however,
for purposes of determining the term of an Incentive Stock Option pursuant to
Section 6.10
hereof, the term Disability shall have the meaning ascribed to it under Section 22(e)(3) of the Code. The
determination of whether an individual has a Disability shall be determined under procedures established by the Committee. Except
in situations where the Committee is determining Disability for purposes of the term of an Incentive Stock Option pursuant to
Section 6.10
hereof within the meaning of Section 22(e)(3) of the Code, the Committee may rely on any determination that
a Participant is disabled for purposes of benefits under any long-term disability plan maintained by the Company or any Affiliate
in which a Participant participates.
“
Disqualifying
Disposition
” has the meaning set forth in
Section 14.12
.
“
Effective
Date
” shall mean the date as of which this Plan is adopted by the Board.
“
Employee
”
means any person, including an Officer or Director, employed by the Company or an Affiliate;
provided, that,
for purposes
of determining eligibility to receive Incentive Stock Options, an Employee shall mean an employee of the Company or a parent or
subsidiary corporation within the meaning of Section 424 of the Code. Mere service as a Director or payment of a director’s
fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate.
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended.
“
Fair
Market Value
” means, as of any date, the value of the Common Stock as determined below. If the Common Stock is listed
on any established stock exchange or a national market system, including without limitation, the New York Stock Exchange or the
NASDAQ Stock Market, the Fair Market Value shall be the closing price of a share of Common Stock (or if no sales were reported
the closing price on the date immediately preceding such date) as quoted on such exchange or system on the day of determination,
as reported in the
Wall Street Journal
. In the absence of an established market for the Common Stock, the Fair Market Value
shall be determined in good faith by the Committee and such determination shall be conclusive and binding on all persons.
“
Free
Standing Rights
” has the meaning set forth in
Section 7.1(a)
.
“
Good
Reason
” means:
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|
(a)
If an Employee or Consultant is a party to an employment or service agreement with the
Company or its Affiliates and such agreement provides for a definition of Good Reason,
the definition contained therein; or
(b)
If no such agreement exists or if such agreement does not define Good Reason, the occurrence of one or more of the following
without the Participant’s express written consent, which circumstances are not remedied by the Company within thirty
(30) days of its receipt of a written notice from the Participant describing the applicable circumstances (which notice
must be provided by the Participant within ninety (90) days of the Participant’s knowledge of the applicable circumstances):
(i) any material, adverse change in the Participant’s duties, responsibilities, authority, title, status or reporting
structure; (ii) a material reduction in the Participant’s base salary or bonus opportunity; or (iii) a geographical
relocation of the Participant’s principal office location by more than fifty (50) miles.
|
“
Grant
Date
” means the date on which the Committee adopts a resolution, or takes other appropriate action, expressly granting
an Award to a Participant that specifies the key terms and conditions of the Award or, if a later date is set forth in such resolution,
then such date as is set forth in such resolution.
“
Incentive
Stock Option
” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of
the Code.
“
Incumbent
Directors
” means individuals who, on the Effective Date, constitute the Board,
provided that
any individual becoming
a Director subsequent to the Effective Date whose election or nomination for election to the Board was approved by a vote of at
least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement
of the Company in which such person is named as a nominee for Director without objection to such nomination) shall be an Incumbent
Director. No individual initially elected or nominated as a director of the Company as a result of an actual or threatened election
contest with respect to Directors or as a result of any other actual or threatened solicitation of proxies by or on behalf of
any person other than the Board shall be an Incumbent Director.
“
Non-Employee
Director
” means a Director who is a “non-employee director” within the meaning of Rule 16b-3.
“
Non-qualified
Stock Option
” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock
Option.
“
Officer
”
means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
“
Option
”
means an Incentive Stock Option or a Non-qualified Stock Option granted pursuant to the Plan.
“
Optionholder
”
means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding
Option.
“
Option
Exercise Price
” means the price at which a share of Common Stock may be purchased upon the exercise of an Option.
“
Outside
Director
” means a Director who is an “outside director” within the meaning of Section 162(m) of the Code
and Treasury Regulations Section 1.162-27(e)(3) or any successor to such statute and regulation.
“
Participant
”
means an eligible person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding
Award.
“
Permitted
Transferee
” means: (a) a member of the Optionholder’s immediate family (child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships), any person sharing the Optionholder’s household (other
than a tenant or employee), a trust in which these persons have more than 50% of the beneficial interest, a foundation in which
these persons (or the Optionholder) control the management of assets, and any other entity in which these persons (or the Optionholder)
own more than 50% of the voting interests; (b) third parties designated by the Committee in connection with a program established
and approved by the Committee pursuant to which Participants may receive a cash payment or other consideration in consideration
for the transfer of a Non-qualified Stock Option; and (c) such other transferees as may be permitted by the Committee in its sole
discretion.
“
Plan
”
means this alpha-En Corporation 2016 Omnibus Equity Plan, as amended and/or amended and restated from time to time.
“
Related
Rights
” has the meaning set forth in
Section 7.1(a)
.
“
Restricted
Award
” means any Award granted pursuant to
Section 7.2(a)
.
“
Restricted
Period
” has the meaning set forth in
Section 7.2(a)
.
“
Rule
16b-3
” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to
time.
“
Securities
Act
” means the Securities Act of 1933, as amended.
“
Stock
Appreciation Right
” means the right pursuant to an Award granted under
Section 7.1
to receive, upon exercise,
an amount payable in cash or shares equal to the number of shares subject to the Stock Appreciation Right that is being exercised
multiplied by the excess of (a) the Fair Market Value of a share of Common Stock on the date the Award is exercised, over (b)
the exercise price specified in the Stock Appreciation Right Award Agreement.
“
Stock
for Stock Exchange
” has the meaning set forth in
Section 6.4
.
“
Ten
Percent Shareholder
” means a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes of stock of the Company or of any of its Affiliates.
3.
Administration
.
3.1
Authority of Committee
.
The Plan shall be administered by the Committee or, in the Board’s sole discretion, by the Board. Subject to the terms of
the Plan, the Committee’s charter and Applicable Laws, and in addition to other express powers and authorization conferred
by the Plan, the Committee shall have the authority:
(a)
to construe and interpret the Plan and apply its provisions;
(b)
to promulgate, amend, and rescind rules and regulations relating to the administration of the Plan;
(c)
to authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan;
(d)
to delegate its authority to one or more Officers of the Company with respect to Awards that do not involve Covered Employees
or “insiders” within the meaning of Section 16 of the Exchange Act;
(e)
to determine when Awards are to be granted under the Plan and the applicable Grant Date;
(f)
from time to time to select, subject to the limitations set forth in this Plan, those Participants to whom Awards shall be granted;
(g)
to determine the number of shares of Common Stock to be made subject to each Award;
(h)
to determine whether each Option is to be an Incentive Stock Option or a Non-qualified Stock Option;
(i)
to prescribe the terms and conditions of each Award, including, without limitation, the exercise price and medium of payment and
vesting provisions, and to specify the provisions of the Award Agreement relating to such grant;
(j)
to amend any outstanding Awards, including for the purpose of modifying the time or manner of vesting, or the term of any outstanding
Award;
provided, however
, that if any such amendment impairs a Participant’s rights or increases a Participant’s
obligations under his or her Award or creates or increases a Participant’s federal income tax liability with respect to
an Award, such amendment shall also be subject to the Participant’s consent;
(k)
to determine the duration and purpose of leaves of absences which may be granted to a Participant without constituting termination
of their employment for purposes of the Plan, which periods shall be no shorter than the periods generally applicable to Employees
under the Company’s employment policies;
(l)
to make decisions with respect to outstanding Awards that may become necessary upon a change in corporate control or an event
that triggers anti-dilution adjustments;
(m)
to interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any
instrument or agreement relating to, or Award granted under, the Plan; and
(n)
to exercise discretion to make any and all other determinations which it determines to be necessary or advisable for the administration
of the Plan.
The
Committee also may modify the purchase price or the exercise price of any outstanding Award,
provided that
if the modification
effects a repricing, shareholder approval shall be required before the repricing is effective.
3.2
Committee Decisions Final
.
All decisions made by the Committee pursuant to the provisions of the Plan shall be final and binding on the Company and the Participants,
unless such decisions are determined by a court having jurisdiction to be arbitrary and capricious.
3.3
Delegation
.
The Committee or, if no Committee has been appointed, the Board may delegate administration of the Plan to a committee or committees
of one or more members of the Board, and the term “
Committee
” shall apply to any person or persons to whom
such authority has been delegated, or, in the absence of any delegation, the Board itself. The Committee shall have the power
to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this
Plan to the Board or the Committee shall thereafter be to the committee or subcommittee), subject, however, to such resolutions,
not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the
Committee at any time and revest in the Board the administration of the Plan. The members of the Committee shall be appointed
by and serve at the pleasure of the Board. From time to time, the Board may increase or decrease the size of the Committee, add
additional members to, remove members (with or without cause) from, appoint new members in substitution therefor, and fill vacancies,
however caused, in the Committee. The Committee shall act pursuant to a vote of the majority of its members or, in the case of
a Committee comprised of only two members, the unanimous consent of its members, whether present or not, or by the written consent
of the majority of its members and minutes shall be kept of all of its meetings and copies thereof shall be provided to the Board.
Subject to the limitations prescribed by the Plan and the Board, the Committee may establish and follow such rules and regulations
for the conduct of its business as it may determine to be advisable.
3.4
Committee Composition
.
Except as otherwise determined by the Board, the Committee shall consist solely of two or more Non-Employee Directors who are
also Outside Directors. In the absence of a Committee, the Board shall serve as the Committee under the Plan. The Board shall
have discretion to determine whether or not it intends to comply with the exemption requirements of Rule 16b-3 and/or Section
162(m) of the Code. However, if the Board intends to satisfy such exemption requirements, with respect to Awards to any Covered
Employee and with respect to any insider subject to Section 16 of the Exchange Act, the Committee shall be a compensation committee
of the Board that at all times consists solely of two or more Non-Employee Directors who are also Outside Directors. Within the
scope of such authority, the Board or the Committee may (a) delegate to a committee of one or more members of the Board who are
not Outside Directors the authority to grant Awards to eligible persons who are either (i) not then Covered Employees and are
not expected to be Covered Employees at the time of recognition of income resulting from such Award or (ii) not persons with respect
to whom the Company wishes to comply with Section 162(m) of the Code or (b) delegate to a committee of one or more members of
the Board who are not Non-Employee Directors the authority to grant Awards to eligible persons who are not then subject to Section
16 of the Exchange Act. Nothing herein shall create an inference that an Award is not validly granted under the Plan in the event
Awards are granted under the Plan by a compensation committee of the Board that does not at all times consist solely of two or
more Non-Employee Directors who are also Outside Directors.
3.5
Indemnification
.
In addition to such other rights of indemnification as they may have as Directors or members of the Committee, and to the extent
allowed by Applicable Laws, the Committee shall be indemnified by the Company against the reasonable expenses, including attorney’s
fees, actually incurred in connection with any action, suit or proceeding or in connection with any appeal therein, to which the
Committee may be party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted
under the Plan, and against all amounts paid by the Committee in settlement thereof (
provided, however
, that the settlement
has been approved by the Company, which approval shall not be unreasonably withheld) or paid by the Committee in satisfaction
of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such Committee did not act in good faith and in a manner which such person reasonably believed to be in
the best interests of the Company, or in the case of a criminal proceeding, had no reason to believe that the conduct complained
of was unlawful;
provided, however
, that within 60 days after institution of any such action, suit or proceeding, such
Committee shall, in writing, offer the Company the opportunity at its own expense to handle and defend such action, suit or proceeding.
4.
Shares Subject to the Plan
.
4.1
Subject to adjustment in accordance with
Section 11
, a total of 8,870,000 shares of Common Stock shall be available for
the grant of Awards under the Plan. During the terms of the Awards, the Company shall keep available at all times the number of
shares of Common Stock required to satisfy such Awards.
4.2
Shares of Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued
shares, treasury shares or shares reacquired by the Company in any manner.
4.3
Any shares of Common Stock subject to an Award that is canceled, forfeited or expires prior to exercise or realization, either
in full or in part, shall again become available for issuance under the Plan. Notwithstanding anything to the contrary contained
herein: shares subject to an Award under the Plan shall not again be made available for issuance or delivery under the Plan if
such shares are (a) shares tendered in payment of an Option, (b) shares delivered or withheld by the Company to satisfy any tax
withholding obligation, or (c) shares covered by a stock-settled Stock Appreciation Right or other Awards that were not issued
upon the settlement of the Award.
5.
Eligibility
.
5.1
Eligibility for Specific Awards
.
Incentive Stock Options may be granted only to Employees. Awards other than Incentive Stock Options may be granted to Employees,
Consultants and Directors and those individuals whom the Committee determines are reasonably expected to become Employees, Consultants
and Directors following the Grant Date.
5.2
Ten Percent Shareholders
.
A Ten Percent Shareholder shall not be granted an Incentive Stock Option unless the Option Exercise Price is at least 110% of
the Fair Market Value of the Common Stock at the Grant Date and the Option is not exercisable after the expiration of five years
from the Grant Date.
6.
Option Provisions
.
Each Option granted under the Plan shall be evidenced by an Award Agreement. Each Option so granted shall be subject to the conditions
set forth in this Section 6, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable
Award Agreement. All Options shall be separately designated Incentive Stock Options or Non-qualified Stock Options at the time
of grant, and, if certificates are issued, a separate certificate or certificates will be issued for shares of Common Stock purchased
on exercise of each type of Option. Notwithstanding the foregoing, the Company shall have no liability to any Participant or any
other person if an Option designated as an Incentive Stock Option fails to qualify as such at any time or if an Option is determined
to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code and the terms of
such Option do not satisfy the requirements of Section 409A of the Code. The provisions of separate Options need not be identical,
but each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance
of each of the following provisions:
6.1
Term
.
Subject to the provisions of
Section 5.2
regarding Ten Percent Shareholders, no Incentive Stock Option shall be exercisable
after the expiration of 10 years from the Grant Date. The term of a Non-qualified Stock Option granted under the Plan shall be
determined by the Committee;
provided, however
, no Non-qualified Stock Option shall be exercisable after the expiration
of 10 years from the Grant Date.
6.2
Exercise Price of an Incentive Stock Option
.
Subject to the provisions of
Section 5.2
regarding Ten Percent Shareholders, the Option Exercise Price of each Incentive
Stock Option shall be not less than 100% of the Fair Market Value of the Common Stock subject to the Option on the Grant Date.
Notwithstanding the foregoing, an Incentive Stock Option may be granted with an Option Exercise Price lower than that set forth
in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying
the provisions of Section 424(a) of the Code.
6.3
Exercise Price of a Non-qualified Stock Option
.
The Option Exercise Price of each Non-qualified Stock Option shall be not less than 100% of the Fair Market Value of the Common
Stock subject to the Option on the Grant Date. Notwithstanding the foregoing, a Non-qualified Stock Option may be granted with
an Option Exercise Price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption
or substitution for another option in a manner satisfying the provisions of Section 409A of the Code.
6.4
Consideration
.
The Option Exercise Price of Common Stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable
statutes and regulations, either (a) in cash or by certified or bank check at the time the Option is exercised or (b) in the discretion
of the Committee, upon such terms as the Committee shall approve, the Option Exercise Price may be paid: (i) by delivery to the
Company of other Common Stock, duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal
to the Option Exercise Price (or portion thereof) due for the number of shares being acquired, or by means of attestation whereby
the Participant identifies for delivery specific shares of Common Stock that have an aggregate Fair Market Value on the date of
attestation equal to the Option Exercise Price (or portion thereof) and receives a number of shares of Common Stock equal to the
difference between the number of shares thereby purchased and the number of identified attestation shares of Common Stock (a “
Stock
for Stock Exchange
”); (ii) a “cashless” exercise program established with a broker; (iii) by reduction in
the number of shares of Common Stock otherwise deliverable upon exercise of such Option with a Fair Market Value equal to the
aggregate Option Exercise Price at the time of exercise; (iv) any combination of the foregoing methods; or (v) in any other form
of legal consideration that may be acceptable to the Committee. Unless otherwise specifically provided in the Option, the exercise
price of Common Stock acquired pursuant to an Option that is paid by delivery (or attestation) to the Company of other Common
Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the Company that
have been held for more than six months (or such longer or shorter period of time required to avoid a charge to earnings for financial
accounting purposes). Notwithstanding the foregoing, during any period for which the Common Stock is publicly traded (i.e., the
Common Stock is listed on any established stock exchange or a national market system) an exercise by a Director or Officer that
involves or may involve a direct or indirect extension of credit or arrangement of an extension of credit by the Company, directly
or indirectly, in violation of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited with respect to any Award
under this Plan.
6.5
Transferability of an Incentive Stock Option
.
An Incentive Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering
written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of
the Optionholder, shall thereafter be entitled to exercise the Option.
6.6
Transferability of a Non-qualified Stock Option
.
A Non-qualified Stock Option may, in the sole discretion of the Committee, be transferable to a Permitted Transferee, upon written
approval by the Committee to the extent provided in the Award Agreement. If the Non-qualified Stock Option does not provide for
transferability, then the Non-qualified Stock Option shall not be transferable except by will or by the laws of descent and distribution
and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the
Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party
who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.
6.7
Vesting of Options
. Each Option may, but need not, vest
and therefore become exercisable in periodic installments that may, but need not, be equal. The Option may be subject to such
other terms and conditions on the time or times when it may be exercised (which may be based on performance or other criteria)
as the Committee may deem appropriate. The vesting provisions of individual Options may vary, but unless otherwise specified in
any individual Award Agreement, an Option will vest at the rate of twenty percent (20%) on each anniversary of the Grant Date
over five (5) years, such that on the fifth anniversary of the Grant Date, the Option shall be 100% vested and exercisable.
No
Option may be exercised for a fraction of a share of Common Stock. The Committee may, but shall not be required to, provide for
an acceleration of vesting and exercisability in the terms of any Award Agreement upon the occurrence of a specified event.
6.8
Termination of Continuous Service
.
Unless otherwise provided in an Award Agreement or in an employment agreement the terms of which have been approved by the Committee,
in the event an Optionholder’s Continuous Service terminates (other than upon the Optionholder’s death or Disability),
the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of
the date of termination) but only within such period of time ending on the earlier of (a) the date three months following the
termination of the Optionholder’s Continuous Service or (b) the expiration of the term of the Option as set forth in the
Award Agreement;
provided that
, if the termination of Continuous Service is by the Company for Cause, all outstanding Options
(whether or not vested) shall immediately terminate and cease to be exercisable. If, after termination, the Optionholder does
not exercise his or her Option within the time specified in the Award Agreement, the Option shall terminate.
6.9
Extension of Termination Date
.
An Optionholder’s Award Agreement may also provide that if the exercise of the Option following the termination of the Optionholder’s
Continuous Service for any reason would be prohibited at any time because the issuance of shares of Common Stock would violate
the registration requirements under the Securities Act or any other state or federal securities law or the rules of any securities
exchange or interdealer quotation system, then the Option shall terminate on the earlier of (a) the expiration of the term of
the Option in accordance with
Section 6.1
or (b) the expiration of a period after termination of the Participant’s
Continuous Service that is three months after the end of the period during which the exercise of the Option would be in violation
of such registration or other securities law requirements.
6.10
Disability of Optionholder
.
Unless otherwise provided in an Award Agreement, in the event that an Optionholder’s Continuous Service terminates as a
result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder
was entitled to exercise such Option as of the date of termination), but only within such period of time ending on the earlier
of (a) the date 12 months following such termination or (b) the expiration of the term of the Option as set forth in the Award
Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified herein or in
the Award Agreement, the Option shall terminate.
6.11
Death of Optionholder
.
Unless otherwise provided in an Award Agreement, in the event an Optionholder’s Continuous Service terminates as a result
of the Optionholder’s death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such
Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option
by bequest or inheritance or by a person designated to exercise the Option upon the Optionholder’s death, but only within
the period ending on the earlier of (a) the date 12 months following the date of death or (b) the expiration of the term of such
Option as set forth in the Award Agreement. If, after the Optionholder’s death, the Option is not exercised within the time
specified herein or in the Award Agreement, the Option shall terminate.
6.12
Incentive Stock Option $100,000 Limitation
.
To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans of the Company
and its Affiliates) exceeds $100,000, the Options or portions thereof which exceed such limit (according to the order in which
they were granted) shall be treated as Non-qualified Stock Options.
7.
Provisions of Awards Other Than Options
.
7.1
Stock Appreciation Rights
.
(a)
General
Each
Stock Appreciation Right granted under the Plan shall be evidenced by an Award Agreement. Each Stock Appreciation Right so granted
shall be subject to the conditions set forth in this Section 7.1, and to such other conditions not inconsistent with the Plan
as may be reflected in the applicable Award Agreement. Stock Appreciation Rights may be granted alone (“
Free Standing
Rights
”) or in tandem with an Option granted under the Plan (“
Related Rights
”).
(b)
Grant Requirements
Any
Related Right that relates to a Non-qualified Stock Option may be granted at the same time the Option is granted or at any time
thereafter but before the exercise or expiration of the Option. Any Related Right that relates to an Incentive Stock Option must
be granted at the same time the Incentive Stock Option is granted.
(c)
Term of Stock Appreciation Rights
The
term of a Stock Appreciation Right granted under the Plan shall be determined by the Committee;
provided, however
, no Stock
Appreciation Right shall be exercisable later than the tenth anniversary of the Grant Date.
(d)
Vesting of Stock Appreciation Rights
Each
Stock Appreciation Right may, but need not, vest and therefore become exercisable in periodic installments that may, but need
not, be equal. The Stock Appreciation Right may be subject to such other terms and conditions on the time or times when it may
be exercised as the Committee may deem appropriate. The vesting provisions of individual Stock Appreciation Rights may vary, but
unless otherwise specified in an individual Award Agreement, a Stock Appreciation Right will vest at the rate of twenty percent
(20%) on each anniversary of the Grant Date over five (5) years, such that on the fifth anniversary of the Grant Date, the Stock
Appreciation Right shall be 100% vested and exercisable. No Stock Appreciation Right may be exercised for a fraction of a share
of Common Stock. The Committee may, but shall not be required to, provide for an acceleration of vesting and exercisability in
the terms of any Stock Appreciation Right upon the occurrence of a specified event.
(e)
Exercise and Payment
Upon
exercise of a Stock Appreciation Right, the holder shall be entitled to receive from the Company an amount equal to the number
of shares of Common Stock subject to the Stock Appreciation Right that is being exercised multiplied by the excess of (i) the
Fair Market Value of a share of Common Stock on the date the Award is exercised, over (ii) the exercise price specified in the
Stock Appreciation Right or related Option. Payment with respect to the exercise of a Stock Appreciation Right shall be made on
the date of exercise. Payment shall be made in the form of shares of Common Stock (with or without restrictions as to substantial
risk of forfeiture and transferability, as determined by the Committee in its sole discretion), cash or a combination thereof,
as determined by the Committee.
(f)
Exercise Price
The
exercise price of a Free Standing Stock Appreciation Right shall be determined by the Committee, but shall not be less than 100%
of the Fair Market Value of one share of Common Stock on the Grant Date of such Stock Appreciation Right. A Related Right granted
simultaneously with or subsequent to the grant of an Option and in conjunction therewith or in the alternative thereto shall have
the same exercise price as the related Option, shall be transferable only upon the same terms and conditions as the related Option,
and shall be exercisable only to the same extent as the related Option;
provided, however
, that a Stock Appreciation Right,
by its terms, shall be exercisable only when the Fair Market Value per share of Common Stock subject to the Stock Appreciation
Right and related Option exceeds the exercise price per share thereof and no Stock Appreciation Rights may be granted in tandem
with an Option unless the Committee determines that the requirements of
Section 7.1(b)
are satisfied.
(g)
Reduction in the Underlying Option Shares
Upon
any exercise of a Related Right, the number of shares of Common Stock for which any related Option shall be exercisable shall
be reduced by the number of shares for which the Stock Appreciation Right has been exercised. The number of shares of Common Stock
for which a Related Right shall be exercisable shall be reduced upon any exercise of any related Option by the number of shares
of Common Stock for which such Option has been exercised.
7.2
Restricted Awards
.
(a)
General
A
Restricted Award is an Award of actual shares of Common Stock (“
Restricted Stock
”) or hypothetical Common Stock
units (“
Restricted Stock Units
”) having a value equal to the Fair Market Value of an identical number of shares
of Common Stock, which may, but need not, provide that such Restricted Award may not be sold, assigned, transferred or otherwise
disposed of, pledged or hypothecated as collateral for a loan or as security for the performance of any obligation or for any
other purpose for such period (the “
Restricted Period
”) as the Committee shall determine. Each Restricted Award
granted under the Plan shall be evidenced by an Award Agreement. Each Restricted Award so granted shall be subject to the conditions
set forth in this Section 7.2, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable
Award Agreement.
(b)
Restricted Stock and Restricted Stock Units
(i)
Each Participant granted Restricted Stock shall execute and deliver to the Company an Award Agreement with respect to the Restricted
Stock setting forth the restrictions and other terms and conditions applicable to such Restricted Stock. If the Committee determines
that the Restricted Stock shall be held by the Company or in escrow rather than delivered to the Participant pending the release
of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (A)
an escrow agreement satisfactory to the Committee, if applicable and (B) the appropriate blank stock power with respect to the
Restricted Stock covered by such agreement. If a Participant fails to execute an agreement evidencing an Award of Restricted Stock
and, if applicable, an escrow agreement and stock power, the Award shall be null and void. Except as otherwise provided in an
Award Agreement, the Participant shall not have the rights and privileges of a shareholder as to such Restricted Stock during
the Restricted Period, such as the right to vote such Restricted Stock and the right to receive dividends.
(ii)
The terms and conditions of a grant of Restricted Stock Units shall be reflected in an Award Agreement. No shares of Common Stock
shall be issued at the time a Restricted Stock Unit is granted, and the Company will not be required to set aside a fund for the
payment of any such Award. A Participant shall have no voting rights with respect to any Restricted Stock Units granted hereunder.
The Committee may also grant Restricted Stock Units with a deferral feature, whereby settlement is deferred beyond the vesting
date until the occurrence of a future payment date or event set forth in an Award Agreement (“
Deferred Stock Units
”).
(c)
Restrictions
(i)
Restricted Stock awarded to a Participant shall be subject to the following restrictions until the expiration of the Restricted
Period, and to such other terms and conditions as may be set forth in the applicable Award Agreement: (A) if an escrow arrangement
is used, the Participant shall not be entitled to delivery of the stock certificate; (B) the shares shall be subject to the restrictions
on transferability set forth in the Award Agreement; (C) the shares shall be subject to forfeiture to the extent provided in the
applicable Award Agreement; and (D) to the extent such shares are forfeited, the stock certificates shall be returned to the Company,
and all rights of the Participant to such shares and as a shareholder with respect to such shares shall terminate without further
obligation on the part of the Company.
(ii)
Restricted Stock Units and Deferred Stock Units awarded to any Participant shall be subject to (A) forfeiture until the expiration
of the Restricted Period to the extent provided in the applicable Award Agreement, and to the extent such Restricted Stock Units
or Deferred Stock Units are forfeited, all rights of the Participant to such Restricted Stock Units or Deferred Stock Units shall
terminate without further obligation on the part of the Company and (B) such other terms and conditions as may be set forth in
the applicable Award Agreement.
(iii)
The Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock, Restricted Stock Units
and Deferred Stock Units whenever it may determine that, by reason of changes in Applicable Laws or other changes in circumstances
arising after the date the Restricted Stock or Restricted Stock Units or Deferred Stock Units are granted, such action is appropriate.
(d)
Restricted Period
Except
as otherwise specified in an individual Award Agreement, a Restricted Award will vest at the rate of twenty percent (20%) on each
anniversary of the Grant Date over five (5) years, such that on the fifth anniversary of the Grant Date, the Restricted Award
shall be 100% vested.
No
Restricted Award may be granted or settled for a fraction of a share of Common Stock. The Committee may, but shall not be required
to, provide for an acceleration of vesting in the terms of any Award Agreement upon the occurrence of a specified event.
(e)
Delivery of Restricted Stock and Settlement of Restricted Stock Units
Upon
the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in
Section
7.2(c)
and 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 or her beneficiary, without charge, the stock certificate evidencing the shares of Restricted Stock which
have not then been forfeited and with respect to which the Restricted Period has expired (to the nearest full share) and any cash
dividends or stock dividends credited to the Participant’s account with respect to such Restricted Stock and the interest
thereon, if any. Upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, or at the
expiration of the deferral period with respect to any outstanding Deferred Stock Units, the Company shall deliver to the Participant,
or his or her beneficiary, without charge, one share of Common Stock for each such outstanding vested Restricted Stock Unit or
Deferred Stock Unit (“
Vested Unit
”);
provided, however
, that, if explicitly provided in the applicable
Award Agreement, the Committee may, in its sole discretion, elect to pay cash or part cash and part Common Stock in lieu of delivering
only shares of Common Stock for Vested Units. If a cash payment is made in lieu of delivering shares of Common Stock, the amount
of such payment shall be equal to the Fair Market Value of the Common Stock as of the date on which the Restricted Period lapsed
in the case of Restricted Stock Units, or the delivery date in the case of Deferred Stock Units, with respect to each Vested Unit.
(f)
Stock Restrictions
Each
certificate representing Restricted Stock awarded under the Plan shall bear a legend in such form as the Company deems appropriate.
8.
Securities Law Compliance
.
Each Award Agreement shall provide that no shares of Common Stock shall be purchased or sold thereunder unless and until (a) any
then applicable requirements of state or federal laws and regulatory agencies have been fully complied with to the satisfaction
of the Company and its counsel and (b) if required to do so by the Company, the Participant has executed and delivered to the
Company a letter of investment intent in such form and containing such provisions as the Committee may require. The Company shall
use reasonable efforts to seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority
as may be required to grant Awards and to issue and sell shares of Common Stock upon exercise of the Awards;
provided, however
,
that this undertaking shall not require the Company to register under the Securities Act the Plan, any Award or any Common Stock
issued or issuable pursuant to any such Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of Common Stock
under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such
Awards unless and until such authority is obtained.
9.
Use of Proceeds from Stock
.
Proceeds from the sale of Common Stock pursuant to Awards, or upon exercise thereof, shall constitute general funds of the Company.
10.
Miscellaneous
.
10.1
Acceleration of Exercisability and Vesting
.
The Committee shall have the power to accelerate the time at which an Award may first be exercised or the time during which an
Award or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Award stating the time
at which it may first be exercised or the time during which it will vest.
10.2
Shareholder Rights
.
Except as provided in the Plan or an Award Agreement, no Participant shall be deemed to be the holder of, or to have any of the
rights of a holder with respect to, any shares of Common Stock subject to such Award unless and until such Participant has satisfied
all requirements for exercise of the Award pursuant to its terms and no adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions of other rights for which the record date is prior to the date
such Common Stock certificate is issued, except as provided in
Section 11
hereof.
10.3
No Employment or Other Service Rights
.
Nothing in the Plan or any instrument executed or Award granted pursuant thereto shall confer upon any Participant any right to
continue to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted or shall affect the
right of the Company or an Affiliate to terminate (a) the employment of an Employee with or without notice and with or without
Cause or (b) the service of a Director pursuant to the By-laws of the Company or an Affiliate, and any applicable provisions of
the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be.
10.4
Transfer; Approved Leave of Absence
.
For purposes of the Plan, no termination of employment by an Employee shall be deemed to result from either (a) a transfer of
employment to the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another, or (b) an approved
leave of absence for military service or sickness, or for any other purpose approved by the Company, if the Employee’s right
to reemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was
granted or if the Committee otherwise so provides in writing, in either case, except to the extent inconsistent with Section 409A
of the Code if the applicable Award is subject thereto.
10.5
Withholding Obligations
.
To the extent provided by the terms of an Award Agreement and subject to the discretion of the Committee, the Participant may
satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under an
Award by any of the following means (in addition to the Company’s right to withhold from any compensation paid to the Participant
by the Company) or by a combination of such means: (a) tendering a cash payment; (b) authorizing the Company to withhold shares
of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition
of Common Stock under the Award,
provided, however
, that no shares of Common Stock are withheld with a value exceeding
the minimum amount of tax required to be withheld by law; or (c) delivering to the Company previously owned and unencumbered shares
of Common Stock of the Company.
11.
Adjustments Upon Changes in Stock
.
In the event of changes in the outstanding Common Stock or in the capital structure of the Company by reason of any stock or extraordinary
cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any recapitalization, reorganization,
merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after the Grant Date of any
Award, Awards granted under the Plan and any Award Agreements, the exercise price of Options and Stock Appreciation Rights, the
maximum number of shares of Common Stock subject to all Awards stated in
Section 4
and the maximum number of shares of
Common Stock with respect to which any one person may be granted Awards during any period stated in
Section 4
and Section
7.4(d)(vi) will be equitably adjusted or substituted, as to the number, price or kind of a share of Common Stock or other consideration
subject to such Awards to the extent necessary to preserve the economic intent of such Award. In the case of adjustments made
pursuant to this Section 11, unless the Committee specifically determines that such adjustment is in the best interests of the
Company or its Affiliates, the Committee shall, in the case of Incentive Stock Options, ensure that any adjustments under this
Section 11 will not constitute a modification, extension or renewal of the Incentive Stock Options within the meaning of Section
424(h)(3) of the Code and in the case of Non-qualified Stock Options, ensure that any adjustments under this Section 11 will not
constitute a modification of such Non-qualified Stock Options within the meaning of Section 409A of the Code. Any adjustments
made under this Section 11 shall be made in a manner which 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.
12.
Effect of Change in Control
.
12.1
Unless otherwise provided in an Award Agreement, notwithstanding any provision of the Plan to the contrary:
In
the event of a Change in Control, all Options and Stock Appreciation Rights shall become immediately exercisable with respect
to 100% of the shares subject to such Options or Stock Appreciation Rights, and/or the Restricted Period shall expire immediately
with respect to 100% of the shares of Restricted Stock or Restricted Stock Units.
To
the extent practicable, any actions taken by the Committee under the immediately preceding clause shall occur in a manner and
at a time which allows affected Participants the ability to participate in the Change in Control with respect to the shares of
Common Stock subject to their Awards.
12.2
In addition, in the event of a Change in Control, the Committee may in its discretion and upon at least 10 days’ advance
notice to the affected persons, cancel any outstanding Awards and pay to the holders thereof, in cash or stock, or any combination
thereof, the value of such Awards based upon the price per share of Common Stock received or to be received by other shareholders
of the Company in the event. In the case of any Option or Stock Appreciation Right with an exercise price (or SAR Exercise Price
in the case of a Stock Appreciation Right) that equals or exceeds the price paid for a share of Common Stock in connection with
the Change in Control, the Committee may cancel the Option or Stock Appreciation Right without the payment of consideration therefor.
12.3
The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to
all or substantially all of the assets and business of the Company and its Affiliates, taken as a whole.
13.
Amendment of the Plan and Awards
.
13.1
Amendment of Plan
. The Board at any time,
and from time to time, may amend or terminate the Plan. However, except as provided in
Section 11
relating to adjustments
upon changes in Common Stock and
Section 13.3
, no amendment shall be effective unless approved by the shareholders of the
Company to the extent shareholder approval is necessary to satisfy any Applicable Laws. At the time of such amendment, the Board
shall determine, upon advice from counsel, whether such amendment will be contingent on shareholder approval.
13.2
Shareholder Approval
.
The Board may, in its sole discretion, submit any other amendment to the Plan for shareholder approval.
13.3
Contemplated Amendments
.
It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide
eligible Employees, Consultants and Directors with the maximum benefits provided or to be provided under the provisions of the
Code and the regulations promulgated thereunder relating to Incentive Stock Options or to the nonqualified deferred compensation
provisions of Section 409A of the Code and/or to bring the Plan and/or Awards granted under it into compliance therewith.
13.4
No Impairment of Rights
.
Rights under any Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (a) the
Company requests the consent of the Participant and (b) the Participant consents in writing.
13.5
Amendment of Awards
.
The Committee at any time, and from time to time, may amend the terms of any one or more Awards;
provided, however
, that
the Committee may not affect any amendment which would otherwise constitute an impairment of the rights under any Award unless
(a) the Company requests the consent of the Participant and (b) the Participant consents in writing.
14.
General Provisions
.
14.1
Forfeiture Events
.
The Committee may specify in an Award Agreement that the Participant’s rights, payments and benefits with respect to an
Award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain events, in addition
to applicable vesting conditions of an Award. Such events may include, without limitation, breach of non-competition, non-solicitation,
confidentiality, or other restrictive covenants that are contained in the Award Agreement or otherwise applicable to the Participant,
a termination of the Participant’s Continuous Service for Cause, or other conduct by the Participant that is detrimental
to the business or reputation of the Company and/or its Affiliates.
14.2
Clawback
. Notwithstanding any other provisions
in this Plan, any Award
shall be subject to clawback, cancellation,
recoupment, rescission, payback, reduction or other similar action in accordance with the terms of any Company clawback or similar
policy or any applicable law related to such actions, as may be in effect from time to time. Participants shall acknowledge and
consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy
that may apply to the Participant, whether adopted prior to or following the grant date of the Award, and any provision of applicable
law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and Participants shall consent
to the Company taking such actions as may be necessary to effectuate any such policy or applicable law, without further consideration
or action.
14.3
Other Compensation Arrangements
.
Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, subject to
shareholder approval if such approval is required; and such arrangements may be either generally applicable or applicable only
in specific cases.
14.4
Sub-plans
.
The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying blue sky, securities, tax or
other laws of various jurisdictions in which the Company intends to grant Awards. Any sub-plans shall contain such limitations
and other terms and conditions as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of
the Plan, but each sub-plan shall apply only to the Participants in the jurisdiction for which the sub-plan was designed.
14.5
Unfunded Plan
.
The Plan shall be unfunded. Neither the Company, the Board nor the Committee shall be required to establish any special or separate
fund or to segregate any assets to assure the performance of its obligations under the Plan.
14.6
Recapitalizations
.
Each Award Agreement shall contain provisions required to reflect the provisions of
Section 11
.
14.7
Delivery
.
Upon exercise of a right granted under this Plan, the Company shall issue Common Stock or pay any amounts due within a reasonable
period of time thereafter. Subject to any statutory or regulatory obligations the Company may otherwise have, for purposes of
this Plan, 30 days shall be considered a reasonable period of time.
14.8
No Fractional Shares
.
No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Committee shall determine whether
cash, additional Awards or other securities or property shall be issued or paid in lieu of fractional shares of Common Stock or
whether any fractional shares should be rounded, forfeited or otherwise eliminated.
14.9
Other Provisions
.
The Award Agreements authorized under the Plan may contain such other provisions not inconsistent with this Plan, including, without
limitation, restrictions upon the exercise of the Awards, as the Committee may deem advisable.
14.10
Section 409A
.
The Plan is intended to comply with Section 409A of the Code to the extent subject thereto, and, accordingly, to the maximum extent
permitted, the Plan shall be interpreted and administered to be in compliance therewith. Any payments described in the Plan that
are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred
compensation unless Applicable Laws require otherwise. Notwithstanding anything to the contrary in the Plan, to the extent required
to avoid accelerated taxation and tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits
that would otherwise be provided pursuant to the Plan during the six (6) month period immediately following the Participant’s
termination of Continuous Service shall instead be paid on the first payroll date after the six-month anniversary of the Participant’s
separation from service (or the Participant’s death, if earlier). Notwithstanding the foregoing, neither the Company nor
the Committee shall have any obligation to take any action to prevent the assessment of any excise tax or penalty on any Participant
under Section 409A of the Code and neither the Company nor the Committee will have any liability to any Participant for such tax
or penalty.
14.11
Disqualifying Dispositions
.
Any Participant who shall make a “disposition” (as defined in Section 424 of the Code) of all or any portion of shares
of Common Stock acquired upon exercise of an Incentive Stock Option within two years from the Grant Date of such Incentive Stock
Option or within one year after the issuance of the shares of Common Stock acquired upon exercise of such Incentive Stock Option
(a “
Disqualifying Disposition
”) shall be required to immediately advise the Company in writing as to the occurrence
of the sale and the price realized upon the sale of such shares of Common Stock.
14.12
Section 16
.
It is the intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements
of Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule
16b-3, or any other rule promulgated under Section 16 of the Exchange Act, and will not be subject to short-swing liability under
Section 16 of the Exchange Act. Accordingly, if the operation of any provision of the Plan would conflict with the intent expressed
in this Section 14.13, such provision to the extent possible shall be interpreted and/or deemed amended so as to avoid such conflict.
14.13
Section 162(m)
.
To the extent the Committee issues any Award that is intended to be exempt from the deduction limitation of Section 162(m) of
the Code, the Committee may, without shareholder or grantee approval, amend the Plan or the relevant Award Agreement retroactively
or prospectively to the extent it determines necessary in order to comply with any subsequent clarification of Section 162(m)
of the Code required to preserve the Company’s federal income tax deduction for compensation paid pursuant to any such Award.
14.14
Beneficiary Designation
.
Each Participant under the Plan may from time to time name any beneficiary or beneficiaries by whom any right under the Plan is
to be exercised in case of such Participant’s death. Each designation will revoke all prior designations by the same Participant,
shall be in a form reasonably prescribed by the Committee and shall be effective only when filed by the Participant in writing
with the Company during the Participant’s lifetime.
14.15
Expenses
.
The costs of administering the Plan shall be paid by the Company.
14.16
Severability
.
If any of the provisions of the Plan or any Award Agreement is held to be invalid, illegal or unenforceable, whether in whole
or in part, such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability
and the remaining provisions shall not be affected thereby.
14.17
Plan Headings
.
The headings in the Plan are for purposes of convenience only and are not intended to define or limit the construction of the
provisions hereof.
14.18
Non-Uniform Treatment
.
The Committee’s determinations under the Plan need not be uniform and may be made by it selectively among persons who are
eligible to receive, or actually receive, Awards. Without limiting the generality of the foregoing, the Committee shall be entitled
to make non-uniform and selective determinations, amendments and adjustments, and to enter into non-uniform and selective Award
Agreements.
15.
Effective Date of Plan
.
The Plan shall become effective as of the Effective Date, but no Award shall be exercised (or, in the case of a stock Award, shall
be granted) unless and until the Plan has been approved by the shareholders of the Company, which approval shall be within twelve
(12) months before or after the date the Plan is adopted by the Board.
16.
Termination or Suspension of the Plan
.
The Plan shall terminate automatically on the tenth anniversary of the date the Plan is adopted by the Board and approved by the
shareholders of the Company. No Award shall be granted pursuant to the Plan after such date, but Awards theretofore granted may
extend beyond that date. The Board may suspend or terminate the Plan at any earlier date pursuant to
Section 13.1
hereof.
No Awards may be granted under the Plan while the Plan is suspended or after it is terminated.
17.
Choice of Law
.
The law of the State of Delaware shall govern all questions concerning the construction, validity and interpretation of this Plan,
without regard to such state’s conflict of law rules.
As
adopted by the Board of Directors of alpha-En Corporation on this 27th day of June, 2016.
As
approved by the shareholders of alpha-En Corporation on this 27th day of June, 2016.