This Amendment assumes an exchange ratio of 1-for-1,000 for the
reverse and a 100-for-1 ratio for the forward split.
(1) Effective at 6:00 p.m. (Eastern Time) on
the effective date of the certificate of amendment adding this paragraph to Article Fourth of the Certificate of Incorporation
(the “Reverse Split Effective Time”), each share of the Common Stock, par value $0.0001 per share, of the Corporation
outstanding at the Reverse Split Effective Time shall, without any action on the part of the holder thereof, automatically be reclassified
and changed into one one-one thousandths (1/1,000th) of a share of Common Stock, par value $0.0001 per share, of the Corporation;
provided, however , that (i) if the foregoing reverse stock split (the “Reverse Split”) would result in the record
account of any holder of Common Stock having a number of shares of Common Stock that is, in the aggregate, less than one (1) share
(“Fractional Shares”), such Fractional Shares shall, without any action on the part of the holder thereof, automatically
be canceled in the Reverse Split; and (ii) in the Reverse Split, all of the Fractional Shares shall automatically be converted
into the right to receive the Cash-Out Price thereof upon surrender by the holder thereof of the certificate or certificates representing
such Fractional Shares. For purposes hereof, the term “Cash-Out Price” will be determined based on the average daily
closing price per share of the common stock on the OTC Pink Sheets Market for the five trading days immediately before and including
the effective date of the Reverse/Forward Split, without interest. From and after the Reverse Split Effective Time, each holder
of Fractional Shares shall have no further interest as a stockholder in the Corporation in respect of such Fractional Shares.
Effective at 6:01 p.m. (Eastern Time) on the
effective date of the certificate of amendment adding this paragraph to Article Fourth of the Certificate of Incorporation (the
“Forward Split Effective Time”): (i) each whole share of the Common Stock, par value $0.0001 per share, of the Corporation
outstanding at the Forward Split Effective Time (after giving effect to the Reverse Split at the Reverse Split Effective Time)
shall, without any action on the part of the holder thereof, automatically be reclassified and changed into one hundred (100) shares
of Common Stock, par value $0.0001 per share, of the Corporation; and (ii) fractions of a share outstanding at the Forward Split
Effective Time (after giving effect to the Reverse Split at the Reverse Split Effective Time) shall be proportionately reclassified
and changed.
EXHIBIT B
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Amendment of Charter Documents
|
Nevada law requires a vote of the corporation’s board
of directors followed by the affirmative vote of the majority of shares present or in person and entitled to vote to approve any
amendment to the articles of incorporation. If any proposed amendment would adversely alter or change any preference or any relative
or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition
to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class
or series adversely affected by the amendment.
|
Delaware law requires a vote of a corporation’s board of directors followed by the affirmative vote of the majority of shares present in person or represented by proxy and entitled to vote to approve any amendment to the certificate of incorporation, unless a greater percentage vote is required by the certificate of incorporation. Where a separate vote by class or series is required, the affirmative vote of a majority of the shares of such class or series is required unless the certificate of incorporation requires a greater percentage vote. Further, Delaware law states that if an amendment would (i) increase or decrease the aggregate number of authorized shares of a class, (ii) increase or decrease the par value of shares of a class, or (iii) alter or change the powers, preferences or special rights of a particular class or series of stock so as to affect them adversely, the class or series so affected shall be given the power to vote as a class notwithstanding the absence of any specifically enumerated power in the certificate of incorporation.
|
The Delaware Certificate of Incorporation will also provide that the affirmative vote of the holders of at least 66 2/3% of the voting power of all then-outstanding shares of 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, alter or repeal the provisions in the Certificate of Incorporation relating to election of directors, amendments to the Bylaws, ability of stockholders to take action by written consent, indemnification and amendments to the Certificate of Incorporation.
|
|
Amendment of Bylaws
|
Nevada law provides that, unless otherwise prohibited by any bylaw adopted
by the stockholders, the directors may adopt, amend or repeal any bylaw, including any bylaw adopted by the stockholders. The articles
of incorporation may grant the authority to adopt, amend or repeal bylaws exclusively to the directors.
GlyEco’s Articles of Incorporation currently provide
that the Board may adopt, amend and repeal bylaws made by the Board, and that the Corporation’s stockholders may amend or
repeal the Corporation’s Bylaws or adopt new bylaws even though the Board of Directors may also amend or repeal the Corporation’s
Bylaws or adopt new bylaws. The adoption or amendment of a bylaw that adds, changes or deletes a greater or lower quorum requirement
or a greater voting requirement for stockholders or the Board of Directors must meet the same quorum and voting requirement then
in effect.
|
Delaware law also states that the power to adopt, amend or repeal the bylaws of a corporation shall be vested in the stockholders entitled to vote, provided that the corporation in its certificate of incorporation may confer such power on the board of directors, although the power vested in the stockholders is not divested or limited where the board of directors also has such power.
|
Delaware law restricts the ability of the Board to amend the company’s
bylaws unless the company’s certificate of incorporation provides otherwise.
The Delaware Certificate of Incorporation and the GlyEco-Delaware Bylaws
expressly empower the Board to adopt, amend or repeal our Bylaws. Stockholders will continue to only be permitted to adopt, alter,
amend or repeal bylaws by a vote of 2/3rds of the outstanding shares of stock entitled to vote upon the election of directors.
|
|
Number of Authorized Directors
|
GlyEco’s existing Bylaws provide that the Board shall consist of no less than one (1) and no more than nine (9) members, the specific number to be set by resolution of the Board of Directors. The number of directors may be changed from time to time by amendment to the Bylaws.
|
The GlyEco-Delaware Bylaws provide that the number of directors shall be fixed from time to time by the Board pursuant to a resolution adopted by a majority of the total number of directors.
|
The GlyEco-Delaware Bylaws are similar to our current Bylaws, but provide more flexibility to the Board to determine the number of directors by providing that the number can be set simply by resolution, whereas the current Bylaws require the Board to amend the Bylaws to set a number of directors above fifteen.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Filling Vacancies on the Board of Directors
|
The NRS provides that all vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors, though less than a quorum, unless it is otherwise provided in the articles of incorporation. Unless otherwise provided in the articles of incorporation, pursuant to a resignation by a director, the board may fill the vacancy or vacancies with each director so appointed to hold office during the remainder of the term of office of the resigning director or directors.
|
Delaware law provides that, unless otherwise provided in the certificate of incorporation or bylaws of a corporation, vacancies may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Further, if, at the time of filling any vacancy, the directors then in office shall constitute less than a majority of the whole board, the Delaware Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.
|
Delaware law provides greater protection to the company’s stockholders by permitting stockholders representing at least 10% of the issued and outstanding shares to apply to the Delaware Court of Chancery to have an election of directors in the situation where the directors in office constitute less than a majority of the whole Board.
|
|
Removal of Directors
|
Under Nevada law, any one or all of the directors of a corporation may
be removed by the holders of not less than two-thirds of the voting power of a corporation’s issued and outstanding stock.
Nevada law does not distinguish between removal of directors with or without cause.
GlyEco’s existing Bylaws provide that any director may
be removed, with or without cause, by a vote of the holders of two-thirds of the voting power of the issued and outstanding stock
entitled to vote.
|
With limited exceptions applicable to classified boards and cumulative voting provisions, under Delaware law, directors of a corporation without a classified board may be removed, with or without cause, by the holders of a majority of shares then entitled to vote in an election of directors.
|
To comply with Delaware law, the GlyEco-Delaware Bylaws will provide that a director may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Interested Party Transactions
|
Nevada law provides that no contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other entity of which one or more of its directors or officers are directors or officers, or in which one or more of its directors or officers have a financial interest, is void or voidable if (a) the director’s or officer’s interest in the contract or transaction is known to the Board, committee or stockholders and the transaction is approved or ratified by the Board, committee or stockholders in good faith by a vote sufficient for the purpose (without counting the vote of the interested director or officer), (b) the fact of the common interest is not known to the director or officer at the time the transaction is brought before the Board, or (c) the contract or transaction is fair to the corporation at the time it is authorized or approved.
|
Delaware law provides that no contract or transaction between
a corporation and one or more of its directors or officers, or between a corporation and any other entity of which one or more
of its directors or officers are directors or officers, or in which one or more of its directors or officers have a financial
interest, is void
or voidable if (a) the material facts as to the director’s
or officer’s relationship or interest and as to the contract or transaction are disclosed or known to the board
of directors or a committee thereof, which authorizes the contract
or transaction in good faith by the affirmative vote of a majority of the disinterested directors, even though the disinterested
directors are less than a quorum, (b) the material facts as to the director’s or officer’s relationship or interest
and as to the contract or transaction are disclosed or
known to the stockholders entitled to vote thereon and the
contract or transaction is specifically approved in good faith by the stockholders, or (c) the contract or transaction is fair
to the corporation as of the time it is authorized, approved or ratified by the board of directors, a committee thereof or the
stockholders.
|
Nevada and Delaware law are substantially similar, with Delaware law providing additional provisions for the approval of related party transactions by stockholders.
|
|
Stockholder Voting-Quorum
|
Nevada law provides that a majority of the voting power, present in person or by proxy at a meeting of stockholders (regardless of whether the proxy has authority to vote on all matters), constitutes a quorum for the transaction of business.
|
Delaware law provides that a majority of shares entitled to vote, present in person or by proxy, constitutes a quorum at a stockholder meeting.
|
Nevada and Delaware law are substantially similar in respect to quorum requirements.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Duration of Proxies
|
Under the NRS, a proxy is effective only for a period of six months, unless it is coupled with an interest or unless provided otherwise in the proxy, which duration may not exceed seven years.
|
Under the DGCL, a proxy executed by a stockholder will remain valid for a period of three years, unless the proxy provides for a longer period.
|
The statutory default under Delaware law provides for proxies to remain valid for a longer duration than the statutory default under the NRS.
|
|
Stockholder Vote for Mergers and Other Corporate
Reorganizations
|
Under Nevada law, a majority of outstanding shares entitled to vote, as well as approval by the board of directors, is required for a merger or a sale of substantially all of the assets of the corporation. Generally, Nevada law does not require a stockholder vote of the surviving corporation in a merger if: (a) the plan of merger does not amend the existing articles of incorporation; (b) each share of stock of the surviving corporation outstanding immediately before the effective date of the merger is an identical outstanding share after the merger; (c) the number of voting shares outstanding immediately after the merger, plus the number of voting shares issued as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights and warrants issued pursuant to the merger, will not exceed by more than 20% the total number of voting shares of the surviving domestic corporation outstanding immediately before the merger; and (d) the number of participating shares outstanding immediately after the merger, plus the number of participating shares issuable as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights and warrants issued pursuant to the merger, will not exceed by more than 20% the total number of participating shares outstanding immediately before the merger.
|
Under Delaware law, a majority of outstanding shares entitled to vote, as well as approval by the board of directors, is required for a merger or a sale of substantially all of the assets of the corporation. Generally, Delaware law does not require a stockholder vote of the surviving corporation in a merger (unless the corporation provides otherwise in its certificate of incorporation) if: (a) the plan of merger does not amend the existing certificate of incorporation; (b) each share of stock of the surviving corporation outstanding immediately before the effective date of the merger is an identical outstanding share after the effective date of the merger; and (c) either no shares of common stock of the surviving corporation and no shares, securities or obligations convertible into such stock are to be issued or delivered under the plan of merger, or the authorized unissued shares or shares of common stock of the surviving corporation to be issued or delivered under the plan of merger plus those initially issuable upon conversion of any other shares, securities or obligations to be issued or delivered under such plan do not exceed 20% of the shares of common stock of such constituent corporation outstanding immediately prior to the effective date of the merger.
|
Nevada and Delaware law are substantially similar in relation to stockholder approval of mergers and other corporate reorganizations.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Special Meetings of Stockholders
|
Under Nevada law, unless otherwise provided in the articles of incorporation or bylaws, the entire Board, any two directors or the president may call annual and special meetings of the stockholders and directors.
|
Under Delaware law, a special meeting of stockholders may be called by the Board or by such persons as may be authorized by the certificate of incorporation or by the bylaws.
|
Nevada law provides for the explicit authority of any two directors and the president to call special meetings, whereas Delaware law leaves discretion to the certificate of incorporation or the bylaws.
|
|
Calling Special Meetings of Stockholders
|
Our existing bylaws provide that special meetings of stockholders may be called by the Chief Executive Officer, the Chairman of the Board or the Board pursuant to a resolution adopted by a majority of the total number of authorized directors. Our Secretary may call a special meeting upon the written request of the stockholders of record entitled to cast not less than 10% of the votes at such special meeting.
|
The GlyEco-Delaware Bylaws provide that a special meeting of stockholders may be called at any time by the Board or such persons as may be authorized by the certificate of incorporation or the bylaws. The GlyEco-Delaware Bylaws provide that a special meeting of stockholders may be called by the Chief Executive Officer, the Chairperson of the Board or the Board pursuant to a resolution adopted by a majority of the total number of authorized directors.
|
The GlyEco-Delaware Bylaws will no longer provide that a special meeting may be called upon the written request of the stockholders of record entitled to cast not less than 10% of the votes at such special meeting.
|
|
Failure to Hold an Annual Meeting of Stockholders
|
Nevada law provides that if a corporation fails to elect directors within 18 months after the last election of directors, a Nevada district court will have jurisdiction in equity and may order an election upon petition of one or more stockholders holding at least 15% of the voting power.
|
Delaware law provides that if an annual meeting for election of directors is not held on the date designated or an action by written consent to elect directors in lieu of an annual meeting has not been taken within 30 days after the date designated for the annual meeting, or if no date has been designated, for a period of 13 months after the latest to occur of the organization of the corporation, its last annual meeting or the last action by written consent to elect directors in lieu of an annual meeting, the Court of Chancery may summarily order a meeting to be held upon the application of any stockholder or director.
|
Delaware law provides for a shorter interval than Nevada law (13 months versus 18 months) before a stockholder can apply to a court to order a meeting for the election of directors. Nevada law requires that application be made by a stockholder holding at least 15% of the voting power, whereas Delaware law permits any stockholder or director to make the application.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Adjournment of Stockholder Meetings
|
Under the NRS, a corporation is not required to give any notice of an adjourned meeting or of the business to be transacted at an adjourned meeting, other than by announcement at the meeting at which the adjournment is taken, unless the Board fixes a new record date for the adjourned meeting.
|
Under the DGCL, if a meeting of stockholders is adjourned due to lack of a quorum and the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting must be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting.
|
Delaware law requires companies to provide stockholders of record entitled to vote with notice of the new record date for an adjourned meeting.
|
|
Limitation on Director Liability
|
Under Nevada law, unless the articles of incorporation or an amendment thereto (filed on or after October 1, 2003) provides for greater individual liability, a director or officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that: (a) the director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer; and (b) the breach of those duties involved intentional misconduct, fraud or a knowing violation of law.
|
Under Delaware law, if a corporation’s certificate of incorporation so provides, the personal liability of a director for breach of fiduciary duty as a director may be eliminated or limited. A corporation’s certificate of incorporation, however, may not limit or eliminate a director’s personal liability (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, (c) for the payment of unlawful dividends, stock repurchases or redemptions, or (d) for any transaction in which the director received an improper personal benefit.
|
Delaware law is more extensive in the enumeration of actions under which a company may not eliminate a director’s personal liability.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Indemnification
|
Under Nevada law, a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. However, indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that in view of all the circumstances, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. To the extent that such person has been successful on the merits or otherwise in defense of any proceeding subject to the Nevada indemnification laws, the corporation shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense.
|
Under Delaware law, a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if: the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. A director or officer who is successful, on the merits or otherwise in defending any proceeding subject to the Delaware corporate statutes’ indemnification provisions shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
|
The indemnification provisions of the NRS and the DGCL are substantially
similar as both the NRS and the DGCL permit a corporation to indemnify officers, directors, employees and agents for actions taken
in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal action, which they had no reasonable cause to believe that such conduct was unlawful.
We expect to enter into the Delaware Indemnification Agreement with
our executive officers and directors based upon the indemnification provisions of the DGCL.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Advancement of Expenses
|
Nevada law provides that the articles of incorporation, the bylaws or an agreement made by the corporation may provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation.
|
Delaware law provides that expenses incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that such person is not entitled to be indemnified by the corporation as authorized under the indemnification laws of Delaware. Such expenses may be so paid upon such terms and conditions as the corporation deems appropriate. Under Delaware law, unless otherwise provided in its certificate of incorporation or bylaws, a corporation has the discretion whether or not to advance expenses.
|
Nevada law and Delaware law are substantially similar in regards to the advancement of expenses.
|
|
Declaration and Payment of Dividends
|
Under Nevada law, except as otherwise provided in the articles of incorporation, a board of directors may authorize and the corporation may make distributions to its stockholders, including distributions on shares that are partially paid. However, no distribution may be made if, after giving effect to such distribution: (a) the corporation would not be able to pay its debts as they become due in the usual course of business; or (b) except as otherwise specifically allowed by the articles of incorporation, the corporation’s total assets would be less than the sum of its total liabilities plus the amount that would be needed, if the corporation were to be dissolved at the time of distribution, to satisfy the preferential rights upon dissolution of stockholders whose preferential rights are superior to those receiving the distribution.
|
Under Delaware law, subject to any restriction contained in a corporation’s certificate of incorporation, the board of directors may declare, and the corporation may pay, dividends or other distributions upon the shares of its capital stock either (a) out of “surplus” or (b) in the event that there is no surplus, out of the net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. Dividends may not be paid if the capital of the corporation is less than the total amount of capital represented by the outstanding stock of all classes having a preference upon the distribution of assets. “Surplus” is defined as the excess of the net assets of the corporation over the amount determined to be the capital of the corporation by the board of directors (which amount cannot be less than the aggregate par value of all issued shares of capital stock).
|
Delaware law is more restrictive than Nevada law with respect to when dividends may be declared and paid.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Business Combinations
|
Nevada law prohibits certain business combinations between a Nevada corporation and an interested stockholder for three years after such person becomes an interested stockholder. Generally, an interested stockholder is a holder who is the beneficial owner of 10% or more of the voting power of a corporation’s outstanding stock and at any time within three years immediately before the date in question was the beneficial owner of 10% or more of the then outstanding stock of the corporation. After the three year period, business combinations remain prohibited unless they are (a) approved by the board of directors prior to the date that the person first became an interested stockholder or by a majority of the outstanding voting power not beneficially owned by the interested party, or (b) the interested stockholder satisfies certain fair-value requirements. An interested stockholder is (i) a person that beneficially owns, directly or indirectly, 10% or more of the voting power of the outstanding voting shares of a corporation, or (ii) an affiliate or associate of the corporation who, at any time within the past three years, was an interested stockholder of the corporation.
|
Delaware law prohibits, in certain circumstances, a “business combination” between the corporation and an “interested stockholder” within three years of the stockholder becoming an “interested stockholder.” Generally, an “interested stockholder” is a holder who, directly or indirectly, controls 15% or more of the outstanding voting stock or is an affiliate of the corporation and was the owner of 15% or more of the outstanding voting stock at any time within the three-year period prior to the date upon which the status of an “interested stockholder” is being determined. This provision does not apply where, among other things, (i) the transaction which resulted in the individual becoming an interested stockholder is approved by the corporation’s board of directors prior to the date the interested stockholder acquired such 15% interest, (ii) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the outstanding voting stock of the corporation at the time the transaction commenced, or (iii) at or after the date the person becomes an interested stockholder, the business combination is approved by a majority of the board of directors of the corporation and an affirmative vote of at least 66 2/3% of the outstanding voting stock at an annual or special meeting and not by written consent, excluding stock owned by the interested stockholder. This provision also does not apply if a stockholder acquires a 15% interest inadvertently and divests itself of such ownership and would not have been a 15% stockholder in the preceding three years but for the acquisition of ownership.
|
Nevada law and Delaware law provide for different thresholds in determining whether or not a person is an “interested stockholder.” Under Delaware law, since the threshold is higher, we will be able to engage in certain transactions with stockholders that would otherwise be prohibited under Nevada law.
|
|
Provision
|
NRS and GlyEco-Nevada
Articles of Incorporation
and Bylaws
|
DGCL, Delaware
Certificate of
Incorporation and
Delaware Bylaws
|
Other Important
Provisions
|
|
Taxes and Fees
|
Nevada charges corporations incorporated in Nevada nominal annual corporate fees based on the value of the corporation’s authorized stock with a minimum fee of $35,000, as well as a $200 business license fee, and does not impose any franchise taxes on corporations.
|
Delaware imposes annual franchise tax fees on all corporations incorporated in Delaware. The annual fee ranges from a nominal fee to a maximum of $180,000, based on an equation consisting of the number of shares authorized, the number of shares outstanding and the net assets of the corporation.
|
|
APPENDIX
A
GLYECO,
INC.
2017
INCENTIVE COMPENSATION PLAN
1. PURPOSE.
The purpose of this Plan is to provide incentives to attract, retain and motivate eligible persons whose present and potential
contributions are important to the success of the Company, and any Parents and Subsidiaries that exist now or in the future, by
offering them an opportunity to participate in the Company’s future performance through the grant of Awards. Capitalized
terms not defined elsewhere in the text are defined in Section 31.
2. SHARES
SUBJECT TO THE PLAN.
2.1.
Number
of Shares Available
. Subject to Sections 2.4, 2.6 and 21 and any other applicable provisions hereof, the total number of Shares
reserved and available for grant and issuance pursuant to this Plan as of the date of adoption of the Plan by the Board, is 10,000,000
Shares.
2.2.
Lapsed,
Returned Awards
. Shares subject to Awards, and Shares issued under the Plan under any Award, will again be available for grant
and issuance in connection with subsequent Awards under this Plan to the extent such Shares: (a) are subject to issuance
upon exercise of an Option or SAR granted under this Plan but which cease to be subject to the Option or SAR for any reason other
than exercise of the Option or SAR; (b) are subject to Awards granted under this Plan that are forfeited or are repurchased
by the Company; (c) are subject to Awards granted under this Plan that otherwise terminate without such Shares being issued;
or (d) are surrendered pursuant to an Exchange Program. To the extent an Award under the Plan is paid out in cash rather
than Shares, such cash payment will not result in reducing the number of Shares available for issuance under the Plan. Shares
used to pay the exercise price of an Award or withheld to satisfy the tax withholding obligations related to an Award will become
available for future grant or sale under the Plan. For the avoidance of doubt, Shares that otherwise become available for grant
and issuance because of the provisions of this Section 2.2 shall not include Shares subject to Awards that initially became
available because of the substitution clause in Section 21.2 hereof.
2.3.
Minimum
Share Reserve
. At all times the Company shall reserve and keep available a sufficient number of Shares as shall be required
to satisfy the requirements of all outstanding Awards granted under this Plan.
2.4.
Automatic
Share Reserve Increase
. The number of Shares available for grant and issuance under the Plan shall be increased on January 1,
of each of the ten (10) calendar years during the term of the Plan, by the lesser of (i) five percent (5%) of the
total number of Shares issued and outstanding on each December 31 immediately prior to the date of increase or (ii) such
number of Shares as may be determined by the Board.
2.5.
Limitations
.
No more than One Hundred Fifty Thousand (150,000) Shares shall be issued pursuant to the exercise of ISOs.
2.6.
Adjustment
of Shares
. If the number of outstanding Shares is changed by a stock dividend, recapitalization, tender offer, stock split,
reverse stock split, subdivision, combination, reclassification or similar change in the capital structure of the Company, without
consideration, then (a) the number of Shares reserved for issuance and future grant under the Plan set forth in Section 2.1,
(b) the Exercise Prices of and number of Shares subject to outstanding Options and SARs, (c) the number of Shares subject
to other outstanding Awards, (d) the maximum number of shares that may be issued as ISOs set forth in Section 2.5, (e) the
maximum number of Shares that may be issued to an individual or to a new Employee in any one calendar year set forth in Section 3
and (f) the number of Shares that are granted as Awards to Non-Employee Directors as set forth in Section 12, shall
be proportionately adjusted, subject to any required action by the Board or the stockholders of the Company and in compliance
with applicable securities laws; provided that fractions of a Share will not be issued.
3. ELIGIBILITY.
ISOs may be granted only to Employees. All other Awards may be granted to Employees, Consultants, Directors and Non-Employee Directors
of the Company or any Parent or Subsidiary of the Company; provided such Consultants, Directors and Non-Employee Directors render
bona fide services not in connection with the offer and sale of securities in a capital-raising transaction.
4. ADMINISTRATION.
4.1.
Committee
Composition; Authority
. This Plan will be administered by the Committee or by the Board acting as the Committee. Subject to
the general purposes, terms and conditions of this Plan, and to the direction of the Board, the Committee will have full power
to implement and carry out this Plan, except, however, the Board shall establish the terms for the grant of an Award to Non-Employee
Directors. The Committee will have the authority to:
a. Construe
and interpret this Plan, any Award Agreement and any other agreement or document executed pursuant to this Plan;
b. Prescribe,
amend and rescind rules and regulations relating to this Plan or any Award;
c. Select
persons to receive Awards;
d. Determine
the form and terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or times when Awards may vest and be exercised (which
may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation
regarding any Award or the Shares relating thereto, based in each case on such factors as the Committee will determine;
e. Determine
the number of Shares or other consideration subject to Awards;
f. Determine
the Fair Market Value in good faith and interpret the applicable provisions of this Plan and the definition of Fair Market Value
in connection with circumstances that impact the Fair Market Value, if necessary;
g. Determine
whether Awards will be granted singly, in combination with, in tandem with, in replacement of, or as alternatives to, other Awards
under this Plan or any other incentive or compensation plan of the Company or any Parent or Subsidiary of the Company;
h. Grant
waivers of Plan or Award conditions;
i. Determine
the vesting, exercisability and payment of Awards;
j. Correct
any defect, supply any omission or reconcile any inconsistency in this Plan, any Award or any Award Agreement;
k. Determine
whether an Award has been earned;
l. Determine
the terms and conditions of any, and to institute any Exchange Program;
m. Reduce
or waive any criteria with respect to Performance Factors;
n. Adjust
Performance Factors to take into account changes in law and accounting or tax rules as the Committee deems necessary or appropriate
to reflect the impact of extraordinary or unusual items, events or circumstances to avoid windfalls or hardships provided that
such adjustments are consistent with the regulations promulgated under Section 162(m) of the Code with respect to persons
whose compensation is subject to Section 162(m) of the Code;
o. Adopt
rules and/or procedures (including the adoption of any sub-plan under this Plan) relating to the operation and administration
of the Plan to accommodate requirements of local law and procedures outside of the United States;
p. Make
all other determinations necessary or advisable for the administration of this Plan; and
q. Delegate
any of the foregoing to a subcommittee consisting of one or more executive officers pursuant to a specific delegation.
4.2
Committee Interpretation
and Discretion
. Any determination made by the Committee with respect to any Award shall be made in its sole discretion at
the time of grant of the Award or, unless in contravention of any express term of the Plan or Award, at any later time, and such
determination shall be final and binding on the Company and all persons having an interest in any Award under the Plan. Any dispute
regarding the interpretation of the Plan or any Award Agreement shall be submitted by the Participant or Company to the Committee
for review. The resolution of such a dispute by the Committee shall be final and binding on the Company and the Participant. The
Committee may delegate to one or more executive officers the authority to review and resolve disputes with respect to Awards held
by Participants who are not Insiders, and such resolution shall be final and binding on the Company and the Participant.
4.3
Section 162(m)
of the Code and Section 16 of the Exchange Act
. When necessary or desirable for an Award to qualify as “performance-based
compensation” under Section 162(m) of the Code the Committee shall include at least two (2) persons who are “outside
directors” (as defined under Section 162(m) of the Code) and at least two (2) such “outside directors”
(or a majority if more than two (2) then serve on the Committee) shall approve the grant of such Award and timely determine (as
applicable) the Performance Period and any Performance Factors upon which vesting or settlement of any portion of such Award is
to be subject. When required by Section 162(m) of the Code, prior to settlement of any such Award at least two (2) such “outside
directors” (or a majority if more than two (2) then serve on the Committee) then serving on the Committee shall determine
and certify in writing the extent to which such Performance Factors have been timely achieved and the extent to which the Shares
subject to such Award have thereby been earned. Awards granted to Participants who are subject to Section 16 of the Exchange
Act must be approved by two or more “non-employee directors” (as defined in the regulations promulgated under Section 16
of the Exchange Act). With respect to Participants whose compensation is subject to Section 162(m) of the Code, and provided
that such adjustments are consistent with the regulations promulgated under Section 162(m) of the Code, the Committee may
adjust the performance goals to account for changes in law and accounting and to make such adjustments as the Committee deems
necessary or appropriate to reflect the impact of extraordinary or unusual items, events or circumstances to avoid windfalls or
hardships, including without limitation (i) restructurings, discontinued operations, extraordinary items, and other unusual
or non-recurring charges, (ii) an event either not directly related to the operations of the Company or not within the reasonable
control of the Company’s management, or (iii) a change in accounting standards required by generally accepted accounting
principles.
4.4
Documentation
.
The Award Agreement for a given Award, the Plan and any other documents may be delivered to, and accepted by, a Participant or
any other person in any manner (including electronic distribution or posting, filed publicly at www.sec.gov (or any successor
website thereto), or posted on the Company’s intranet (or other shared electronic medium controlled by the Company to which
the Participant has access)) that meets applicable legal requirements.
5. OPTIONS.
The Committee may grant Options to Participants and will determine whether such Options will be ISOs or NQSOs, the number of Shares
subject to the Option, the Exercise Price of the Option, the period during which the Option may vest and be exercised, and all
other terms and conditions of the Option, subject to the following:
5.1.
Option
Grant
. Each Option granted under this Plan will identify the Option as an ISO or an NQSO. An Option may be, but need not be,
awarded upon satisfaction of such Performance Factors during any Performance Period as are set out in advance in the Participant’s
individual Award Agreement. If the Option is being earned upon the satisfaction of Performance Factors, then the Committee will:
(x) determine the nature, length and starting date of any Performance Period for each Option; and (y) select from among
the Performance Factors to be used to measure the performance, if any. Performance Periods may overlap and Participants may participate
simultaneously with respect to Options that are subject to different performance goals and other criteria.
5.2.
Date
of Grant
. The date of grant of an Option will be the date on which the Committee makes the determination to grant such Option,
or a specified future date. The Award Agreement and a copy of this Plan will be delivered to the Participant within a reasonable
time after the granting of the Option.
5.3.
Exercise
Period
. Options may be vested and exercisable within the times or upon the conditions as set forth in the Award Agreement
governing such Option; provided, however, that no Option will be exercisable after the expiration of ten (10) years from
the date the Option is granted; and provided further that no ISO granted to a person who, at the time the ISO is granted, directly
or by attribution owns more than ten percent (10%) of the total combined voting power of all classes of stock of the Company
or of any Parent or Subsidiary of the Company (“Ten Percent Stockholder ”) will be exercisable after the expiration
of five (5) years from the date the ISO is granted. The Committee also may provide for Options to become exercisable at one
time or from time to time, periodically or otherwise, in such number of Shares or percentage of Shares as the Committee determines.
5.4.
Exercise
Price
. The Exercise Price of an Option will be determined by the Committee when the Option is granted; provided that: (i) the
Exercise Price of an Option will be not less than one hundred percent (100%) of the Fair Market Value of the Shares on the
date of grant; and (ii) the Exercise Price of any ISO granted to a Ten Percent Stockholder will not be less than one hundred
ten percent (110%) of the Fair Market Value of the Shares on the date of grant. Payment for the Shares purchased may be made
in accordance with Section 11 and the Award Agreement and in accordance with any procedures established by the Company.
5.5.
Method
of Exercise
. Any Option granted hereunder will be vested and exercisable according to the terms of the Plan and at such times
and under such conditions as determined by the Committee and set forth in the Award Agreement. An Option may not be exercised
for a fraction of a Share. An Option will be deemed exercised when the Company receives: (i) notice of exercise (in such
form as the Committee may specify from time to time) from the person entitled to exercise the Option; and (ii) full payment
for the Shares with respect to which the Option is exercised (together with applicable withholding taxes). Full payment may consist
of any consideration and method of payment authorized by the Committee and permitted by the Award Agreement and the Plan. Shares
issued upon exercise of an Option will be issued in the name of the Participant. Until the Shares are issued (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of
the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will
be made for a dividend or other right for which the Record Date is prior to the date the Shares are issued, except as provided
in Section 2.6 of the Plan. Exercising an Option in any manner will decrease the number of Shares thereafter available, both
for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.
5.6.
Termination
.
The exercise of an Option will be subject to the following (except as may be otherwise provided in an Award Agreement):
a. If
the Participant is Terminated for any reason except for Cause or the Participant’s death or Disability, then the Participant
may exercise such Participant’s Options only to the extent that such Options would have been exercisable by the Participant
on the Termination Date no later than ninety (90) days after the Termination Date (or such shorter time period or longer
time period not exceeding five (5) years as may be determined by the Committee, with any exercise beyond three (3) months
after the Termination Date deemed to be the exercise of an NQSO), but in any event no later than the expiration date of the Options.
b. If
the Participant is Terminated because of the Participant’s death (or the Participant dies within ninety (90) days after
a Termination other than for Cause or because of the Participant’s Disability), then the Participant’s Options may
be exercised only to the extent that such Options would have been exercisable by the Participant on the Termination Date and must
be exercised by the Participant’s legal representative, or authorized assignee, no later than twelve (12) months after
the Termination Date (or such shorter time period not less than six (6) months or longer time period not exceeding five (5) years
as may be determined by the Committee), but in any event no later than the expiration date of the Options.
c. If
the Participant is Terminated because of the Participant’s Disability, then the Participant’s Options may be exercised
only to the extent that such Options would have been exercisable by the Participant on the Termination Date and must be exercised
by the Participant (or the Participant’s legal representative or authorized assignee) no later than twelve (12) months
after the Termination Date (with any exercise beyond (a) three (3) months after the Termination Date when the Termination
is for a Disability that is not a “permanent and total disability” as defined in Section 22(e)(3) of the Code,
or (b) twelve (12) months after the Termination Date when the Termination is for a Disability that is a “permanent
and total disability” as defined in Section 22(e)(3) of the Code, deemed to be exercise of an NQSO), but in any event
no later than the expiration date of the Options.
d. If
the Participant is terminated for Cause, then Participant’s Options shall expire on such Participant’s Termination
Date, or at such later time and on such conditions as are determined by the Committee, but in any no event later than the expiration
date of the Options. Unless otherwise provided in the Award Agreement, Cause will have the meaning set forth in the Plan.
5.7.
Limitations
on Exercise
. The Committee may specify a minimum number of Shares that may be purchased on any exercise of an Option, provided
that such minimum number will not prevent any Participant from exercising the Option for the full number of Shares for which it
is then exercisable.
5.8.
Limitations
on ISOs
. With respect to Awards granted as ISOs, to the extent that the aggregate Fair Market Value of the Shares with respect
to which such ISOs are exercisable for the first time by the Participant during any calendar year (under all plans of the Company
and any Parent or Subsidiary) exceeds Five Hundred Thousand Dollars ($500,000), such Options will be treated as NQSOs. For purposes
of this Section 5.8, ISOs will be taken into account in the order in which they were granted. The Fair Market Value of the
Shares will be determined as of the time the Option with respect to such Shares is granted. In the event that the Code or the
regulations promulgated thereunder are amended after the Effective Date to provide for a different limit on the Fair Market Value
of Shares permitted to be subject to ISOs, such different limit will be automatically incorporated herein and will apply to any
Options granted after the effective date of such amendment.
5.9.
Modification,
Extension or Renewal
. The Committee may modify, extend or renew outstanding Options and authorize the grant of new Options
in substitution therefor, provided that any such action may not, without the written consent of a Participant, impair any of such
Participant’s rights under any Option previously granted. Any outstanding ISO that is modified, extended, renewed or otherwise
altered will be treated in accordance with Section 424(h) of the Code. Subject to Section 18 of this Plan, by written
notice to affected Participants, the Committee may reduce the Exercise Price of outstanding Options without the consent of such
Participants; provided, however, that the Exercise Price may not be reduced below the Fair Market Value on the date the action
is taken to reduce the Exercise Price.
5.10.
No
Disqualification
. Notwithstanding any other provision in this Plan, no term of this Plan relating to ISOs will be interpreted,
amended or altered, nor will any discretion or authority granted under this Plan be exercised, so as to disqualify this Plan under
Section 422 of the Code or, without the consent of the Participant affected, to disqualify any ISO under Section 422
of the Code.
6. RESTRICTED
STOCK AWARDS.
6.1.
Awards
of Restricted Stock
. A Restricted Stock Award is an offer by the Company to sell to a Participant Shares that are subject
to restrictions (“Restricted Stock”). The Committee will determine to whom an offer will be made, the number of Shares
the Participant may purchase, the Purchase Price, the restrictions under which the Shares will be subject and all other terms
and conditions of the Restricted Stock Award, subject to the Plan.
6.2.
Restricted Stock Purchase
Agreement
. All purchases under a Restricted Stock Award will be evidenced by an Award Agreement. Except as may otherwise be
provided in an Award Agreement, a Participant accepts a Restricted Stock Award by signing and delivering to the Company an Award
Agreement with full payment of the Purchase Price, within thirty (30) days from the date the Award Agreement was delivered
to the Participant. If the Participant does not accept such Award within thirty (30) days, then the offer of such Restricted
Stock Award will terminate, unless the Committee determines otherwise.
6.3.
Purchase Price
.
The Purchase Price for a Restricted Stock Award will be determined by the Committee and may be less than Fair Market Value on
the date the Restricted Stock Award is granted. Payment of the Purchase Price must be made in accordance with Section 11
of the Plan, and the Award Agreement and in accordance with any procedures established by the Company.
6.4.
Terms
of Restricted Stock Awards
. Restricted Stock Awards will be subject to such restrictions as the Committee may impose or are
required by law. These restrictions may be based on completion of a specified number of years of service with the Company or upon
completion of Performance Factors, if any, during any Performance Period as set out in advance in the Participant’s Award
Agreement. Prior to the grant of a Restricted Stock Award, the Committee shall: (a) determine the nature, length and starting
date of any Performance Period for the Restricted Stock Award; (b) select from among the Performance Factors to be used to
measure performance goals, if any; and (c) determine the number of Shares that may be awarded to the Participant. Performance
Periods may overlap and a Participant may participate simultaneously with respect to Restricted Stock Awards that are subject
to different Performance Periods and having different performance goals and other criteria.
6.5.
Termination
of Participant
. Except as may be set forth in the Participant’s Award Agreement, vesting ceases on such Participant’s
Termination Date (unless determined otherwise by the Committee).
7. STOCK
BONUS AWARDS.
7.1.
Awards
of Stock Bonuses
. A Stock Bonus Award is an award to an eligible person of Shares for services to be rendered or for past
services already rendered to the Company or any Parent or Subsidiary. All Stock Bonus Awards shall be made pursuant to an Award
Agreement. No payment from the Participant will be required for Shares awarded pursuant to a Stock Bonus Award, except for any
taxes required as outlined under Section 13.
7.2.
Terms
of Stock Bonus Awards
. The Committee will determine the number of Shares to be awarded to the Participant under a Stock Bonus
Award and any restrictions thereon. These restrictions may be based upon completion of a specified number of years of service
with the Company or upon satisfaction of performance goals based on Performance Factors during any Performance Period as set out
in advance in the Participant’s Stock Bonus Agreement. Prior to the grant of any Stock Bonus Award the Committee shall:
(a) determine the nature, length and starting date of any Performance Period for the Stock Bonus Award; (b) select from
among the Performance Factors to be used to measure performance goals; and (c) determine the number of Shares that may be
awarded to the Participant. Performance Periods may overlap and a Participant may participate simultaneously with respect to Stock
Bonus Awards that are subject to different Performance Periods and different performance goals and other criteria.
7.3.
Form
of Payment to Participant
. Payment may be made in the form of cash, whole Shares, or a combination thereof, based on the Fair
Market Value of the Shares earned under a Stock Bonus Award on the date of payment, as determined in the sole discretion of the
Committee.
7.4.
Termination
of Participation
. Except as may be set forth in the Participant’s Award Agreement, vesting ceases on such Participant’s
Termination Date (unless determined otherwise by the Committee).
8. STOCK
APPRECIATION RIGHTS.
8.1.
Awards
of SARs
. A SAR is an award to a Participant that may be settled in cash, or Shares (which may consist of Restricted Stock),
having a value equal to (a) the difference between the Fair Market Value on the date of exercise over the Exercise Price
multiplied by (b) the number of Shares with respect to which the SAR is being settled (subject to any maximum number of Shares
that may be issuable as specified in an Award Agreement). All SARs shall be made pursuant to an Award Agreement.
8.2.
Terms
of SARs
. The Committee will determine the terms of each SAR including, without limitation: (a) the number of Shares subject
to the SAR; (b) the Exercise Price and the time or times during which the SAR may be settled; (c) the consideration
to be distributed on settlement of the SAR; and (d) the effect of the Participant’s Termination on each SAR. The Exercise
Price of the SAR will be determined by the Committee when the SAR is granted, and may not be less than Fair Market Value. A SAR
may be awarded upon satisfaction of Performance Factors, if any, during any Performance Period as are set out in advance in the
Participant’s individual Award Agreement. If the SAR is being earned upon the satisfaction of Performance Factors, then
the Committee will: (x) determine the nature, length and starting date of any Performance Period for each SAR; and (y) select
from among the Performance Factors to be used to measure the performance, if any. Performance Periods may overlap and Participants
may participate simultaneously with respect to SARs that are subject to different Performance Factors and other criteria.
8.3.
Exercise
Period and Expiration Date
. A SAR will be exercisable within the times or upon the occurrence of events determined by the
Committee and set forth in the Award Agreement governing such SAR. The SAR Agreement shall set forth the expiration date; provided
that no SAR will be exercisable after the expiration of ten (10) years from the date the SAR is granted. The Committee may
also provide for SARs to become exercisable at one time or from time to time, periodically or otherwise (including, without limitation,
upon the attainment during a Performance Period of performance goals based on Performance Factors), in such number of Shares or
percentage of the Shares subject to the SAR as the Committee determines. Except as may be set forth in the Participant’s
Award Agreement, vesting ceases on such Participant’s Termination Date (unless determined otherwise by the Committee). Notwithstanding
the foregoing, the rules of Section 5.6 also will apply to SARs.
8.4.
Form
of Settlement
. Upon exercise of a SAR, a Participant will be entitled to receive payment from the Company in an amount determined
by multiplying (i) the difference between the Fair Market Value of a Share on the date of exercise over the Exercise Price;
times (ii) the number of Shares with respect to which the SAR is exercised. At the discretion of the Committee, the payment
from the Company for the SAR exercise may be in cash, in Shares of equivalent value, or in some combination thereof. The portion
of a SAR being settled may be paid currently or on a deferred basis with such interest or dividend equivalent, if any, as the
Committee determines, provided that the terms of the SAR and any deferral satisfy the requirements of Section 409A of the
Code.
8.5.
Termination
of Participation
. Except as may be set forth in the Participant’s Award Agreement, vesting ceases on such Participant’s
Termination Date (unless determined otherwise by the Committee).
9. RESTRICTED
STOCK UNITS.
9.1.
Awards
of Restricted Stock Units
. A Restricted Stock Unit (“RSU”) is an award to a Participant covering a number of Shares
that may be settled in cash, or by issuance of those Shares (which may consist of Restricted Stock). All RSUs shall be made pursuant
to an Award Agreement.
9.2.
Terms
of RSUs
. The Committee will determine the terms of an RSU including, without limitation: (a) the number of Shares subject
to the RSU; (b) the time or times during which the RSU may be settled; (c) the consideration to be distributed on settlement;
and (d) the effect of the Participant’s Termination on each RSU. An RSU may be awarded upon satisfaction of such performance
goals based on Performance Factors during any Performance Period as are set out in advance in the Participant’s Award Agreement.
If the RSU is being earned upon satisfaction of Performance Factors, then the Committee will: (x) determine the nature, length
and starting date of any Performance Period for the RSU; (y) select from among the Performance Factors to be used to measure
the performance, if any; and (z) determine the number of Shares deemed subject to the RSU. Performance Periods may overlap
and participants may participate simultaneously with respect to RSUs that are subject to different Performance Periods and different
performance goals and other criteria.
9.3.
Form
and Timing of Settlement
. Payment of earned RSUs shall be made as soon as practicable after the date(s) determined by the
Committee and set forth in the Award Agreement. The Committee, in its sole discretion, may settle earned RSUs in cash, Shares,
or a combination of both. The Committee may also permit a Participant to defer payment under a RSU to a date or dates after the
RSU is earned provided that the terms of the RSU and any deferral satisfy the requirements of Section 409A of the Code.
9.4.
Termination
of Participant
. Except as may be set forth in the Participant’s Award Agreement, vesting ceases on such Participant’s
Termination Date (unless determined otherwise by the Committee).
10. PERFORMANCE
AWARDS.
10.1.
Performance
Awards
. A Performance Award is an award to a Participant of a cash bonus or a Performance Share bonus. Grants of Performance
Awards shall be made pursuant to an Award Agreement.
10.2.
Terms
of Performance Awards
. The Committee will determine, and each Award Agreement shall set forth, the terms of each award of
Performance Award including, without limitation: (a) the amount of any cash bonus; (b) the number of Shares deemed subject
to a Performance Share bonus; (c) the Performance Factors and Performance Period that shall determine the time and extent
to which each Performance Award shall be settled; (d) the consideration to be distributed on settlement; and (e) the
effect of the Participant’s Termination on each Performance Award. In establishing Performance Factors and the Performance
Period the Committee will: (x) determine the nature, length and starting date of any Performance Period; and (y) select
from among the Performance Factors to be used. Prior to settlement the Committee shall determine the extent to which Performance
Awards have been earned. Performance Periods may overlap and Participants may participate simultaneously with respect to Performance
Awards that are subject to different Performance Periods and different performance goals and other criteria.
10.3.
Value,
Earning and Timing of Performance Shares
. Any Performance Share bonus will have an initial value equal to the Fair Market
Value of a Share on the date of grant. After the applicable Performance Period has ended, the holder of a Performance Share bonus
will be entitled to receive a payout of the number of Shares earned by the Participant over the Performance Period, to be determined
as a function of the extent to which the corresponding Performance Factors or other vesting provisions have been achieved. The
Committee, in its sole discretion, may pay an earned Performance Share bonus in the form of cash, in Shares (which have an aggregate
Fair Market Value equal to the value of the earned Performance Shares at the close of the applicable Performance Period) or in
a combination thereof. Performance Share bonuses may also be settled in Restricted Stock.
10.4.
Termination
of Participant
. Except as may be set forth in the Participant’s Award Agreement, vesting ceases on such Participant’s
Termination Date (unless determined otherwise by the Committee).
11. PAYMENT
FOR SHARE PURCHASES. Payment from a Participant for Shares purchased pursuant to this Plan may be made in cash or by check or,
where expressly approved for the Participant by the Committee and where permitted by law (and to the extent not otherwise set
forth in the applicable Award Agreement):
11.1. By
cancellation of indebtedness of the Company to the Participant;
11.2. By
surrender of shares of the Company held by the Participant that have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Award will be exercised or settled;
11.3. By
waiver of compensation due or accrued to the Participant for services rendered or to be rendered to the Company or a Parent or
Subsidiary of the Company;
11.4. By
consideration received by the Company pursuant to a broker-assisted or other form of cashless exercise program implemented by
the Company in connection with the Plan;
11.5. By
any combination of the foregoing; or
11.6. By
any other method of payment as is permitted by applicable law.
12. GRANTS
TO NON-EMPLOYEE DIRECTORS.
12.1.
Types
of Awards
. Non-Employee Directors are eligible to receive any type of Award offered under this Plan except ISOs. Awards pursuant
to this Section 12 may be automatically made pursuant to policy adopted by the Board, or made from time to time as determined
in the discretion of the Board.
12.2.
Eligibility
.
Awards pursuant to this Section 12 shall be granted only to Non-Employee Directors. A Non-Employee Director who is elected
or re-elected as a member of the Board will be eligible to receive an Award under this Section 12.
12.3.
Vesting,
Exercisability and Settlement
. Except as set forth in Section 21, Awards shall vest, become exercisable and be settled
as determined by the Board. With respect to Options and SARs, the exercise price granted to Non-Employee Directors shall not be
less than the Fair Market Value of the Shares at the time that such Option or SAR is granted.
12.4.
Election
to receive Awards in Lieu of Cash
. A Non-Employee Director may elect to receive his or her annual retainer payments and/or
meeting fees from the Company in the form of cash or Awards or a combination thereof, as determined by the Committee. Such Awards
shall be issued under the Plan. An election under this Section 12.4 shall be filed with the Company on the form prescribed
by the Company.
13. WITHHOLDING
TAXES.
13.1.
Withholding
Generally
. Whenever Shares are to be issued in satisfaction of Awards granted under this Plan, the Company may require the
Participant to remit to the Company, or to the Parent or Subsidiary employing the Participant, an amount sufficient to satisfy
applicable U.S. federal, state, local and international withholding tax requirements or any other tax liability legally due
from the Participant prior to the delivery of Shares pursuant to exercise or settlement of any Award. Whenever payments in satisfaction
of Awards granted under this Plan are to be made in cash, such payment will be net of an amount sufficient to satisfy applicable
U.S. federal, state, local and international withholding tax requirements or any other tax liability legally due from the
Participant.
13.2.
Stock
Withholding
. The Committee, in its sole discretion and pursuant to such procedures as it may specify from time to time and
to limitations of local law, may require or permit a Participant to satisfy such tax withholding obligation or any other tax liability
legally due from the Participant, in whole or in part by (without limitation) (i) paying cash, (ii) electing to have
the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the minimum statutory amount required
to be withheld, or (iii) delivering to the Company already-owned Shares having a Fair Market Value equal to the minimum amount
required to be withheld. The Fair Market Value of the Shares to be withheld or delivered will be determined as of the date that
the taxes are required to be withheld.
14. TRANSFERABILITY.
14.1.
Transfer
Generally
. Unless determined otherwise by the Committee or pursuant to Section 14.2, an Award may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution.
If the Committee makes an Award transferable, including, without limitation, by instrument to an inter vivos or testamentary trust
in which the Awards are to be passed to beneficiaries upon the death of the trustor (settlor) or by gift to a Permitted Transferee,
such Award will contain such additional terms and conditions as the Committee deems appropriate. All Awards shall be exercisable:
(i) during the Participant’s lifetime only by (A) the Participant, or (B) the Participant’s guardian
or legal representative; (ii) after the Participant’s death, by the legal representative of the Participant’s
heirs or legatees; and (iii) in the case of all awards except ISOs, by a Permitted Transferee.
14.2.
Award
Transfer Program
. Notwithstanding any contrary provision of the Plan, the Committee shall have all discretion and authority
to determine and implement the terms and conditions of any Award Transfer Program instituted pursuant to this Section 14.2
and shall have the authority to amend the terms of any Award participating, or otherwise eligible to participate in, the Award
Transfer Program, including (but not limited to) the authority to (i) amend (including to extend) the expiration date, post-termination
exercise period and/or forfeiture conditions of any such Award, (ii) amend or remove any provisions of the Award relating
to the Award holder’s continued service to the Company, (iii) amend the permissible payment methods with respect to
the exercise or purchase of any such Award, (iv) amend the adjustments to be implemented in the event of changes in the capitalization
and other similar events with respect to such Award, and (v) make such other changes to the terms of such Award as the Committee
deems necessary or appropriate in its sole discretion.
15. PRIVILEGES
OF STOCK OWNERSHIP; RESTRICTIONS ON SHARES.
15.1.
Voting
and Dividends
. No Participant will have any of the rights of a stockholder with respect to any Shares until the Shares are
issued to the Participant, except for any dividend equivalent rights permitted by an applicable Award Agreement. After Shares
are issued to the Participant, the Participant will be a stockholder and have all the rights of a stockholder with respect to
such Shares, including the right to vote and receive all dividends or other distributions made or paid with respect to such Shares;
provided, that if such Shares are Restricted Stock, then any new, additional or different securities the Participant may become
entitled to receive with respect to such Shares by virtue of a stock dividend, stock split or any other change in the corporate
or capital structure of the Company will be subject to the same restrictions as the Restricted Stock; provided, further, that
the Participant will have no right to retain such stock dividends or stock distributions with respect to Shares that are repurchased
at the Participant’s Purchase Price or Exercise Price, as the case may be, pursuant to Section 15.2.
15.2.
Restrictions
on Shares
. At the discretion of the Committee, the Company may reserve to itself and/or its assignee(s) a right to repurchase
(a “Right of Repurchase”) a portion of any or all Unvested Shares held by a Participant following such Participant’s
Termination at any time within ninety (90) days after the later of the Participant’s Termination Date and the date
the Participant purchases Shares under this Plan, for cash and/or cancellation of purchase money indebtedness, at the Participant’s
Purchase Price or Exercise Price, as the case may be.
16. CERTIFICATES.
All Shares or other securities whether or not certificated, delivered under this Plan will be subject to such stock transfer orders,
legends and other restrictions as the Committee may deem necessary or advisable, including restrictions under any applicable U.S.
federal, state or foreign securities law, or any rules, regulations and other requirements of the SEC or any stock exchange or
automated quotation system upon which the Shares may be listed or quoted and any non-U.S. exchange controls or securities law
restrictions to which the Shares are subject.
17. ESCROW;
PLEDGE OF SHARES. To enforce any restrictions on a Participant’s Shares, the Committee may require the Participant to deposit
all certificates representing Shares, together with stock powers or other instruments of transfer approved by the Committee, appropriately
endorsed in blank, with the Company or an agent designated by the Company to hold in escrow until such restrictions have lapsed
or terminated, and the Committee may cause a legend or legends referencing such restrictions to be placed on the certificates.
Any Participant who is permitted to execute a promissory note as partial or full consideration for the purchase of Shares under
this Plan will be required to pledge and deposit with the Company all or part of the Shares so purchased as collateral to secure
the payment of the Participant’s obligation to the Company under the promissory note; provided, however, that the Committee
may require or accept other or additional forms of collateral to secure the payment of such obligation and, in any event, the
Company will have full recourse against the Participant under the promissory note notwithstanding any pledge of the Participant’s
Shares or other collateral. In connection with any pledge of the Shares, the Participant will be required to execute and deliver
a written pledge agreement in such form as the Committee will from time to time approve. The Shares purchased with the promissory
note may be released from the pledge on a pro rata basis as the promissory note is paid.
18. REPRICING;
EXCHANGE AND BUYOUT OF AWARDS. Without prior stockholder approval the Committee may (i) reprice Options or SARS (and where
such repricing is a reduction in the Exercise Price of outstanding Options or SARS, the consent of the affected Participants is
not required provided written notice is provided to them, notwithstanding any adverse tax consequences to them arising from the
repricing), and (ii) with the consent of the respective Participants (unless not required pursuant to Section 5.9 of
the Plan), pay cash or issue new Awards in exchange for the surrender and cancellation of any, or all, outstanding Awards.
19. SECURITIES
LAW AND OTHER REGULATORY COMPLIANCE. An Award will not be effective unless such Award is in compliance with all applicable U.S.
and foreign federal and state securities laws, rules and regulations of any governmental body, and the requirements of any stock
exchange or automated quotation system upon which the Shares may then be listed or quoted, as they are in effect on the date of
grant of the Award and also on the date of exercise or other issuance. Notwithstanding any other provision in this Plan, the Company
will have no obligation to issue or deliver certificates for Shares under this Plan prior to: (a) obtaining any approvals
from governmental agencies that the Company determines are necessary or advisable; and/or (b) completion of any registration
or other qualification of such Shares under any state or federal or foreign law or ruling of any governmental body that the Company
determines to be necessary or advisable. The Company will be under no obligation to register the Shares with the SEC or to effect
compliance with the registration, qualification or listing requirements of any foreign or state securities laws, stock exchange
or automated quotation system, and the Company will have no liability for any inability or failure to do so.
20. NO
OBLIGATION TO EMPLOY. Nothing in this Plan or any Award granted under this Plan will confer or be deemed to confer on any Participant
any right to continue in the employ of, or to continue any other relationship with, the Company or any Parent or Subsidiary of
the Company or limit in any way the right of the Company or any Parent or Subsidiary of the Company to terminate Participant’s
employment or other relationship at any time.
21. CORPORATE
TRANSACTIONS.
21.1.
Assumption or Replacement of Awards by
Successor
. In the event of a Corporate Transaction any or all outstanding Awards may be assumed or replaced by the successor
corporation, which assumption or replacement shall be binding on all Participants. In the alternative, the successor corporation
may substitute equivalent Awards or provide substantially similar consideration to Participants as was provided to stockholders
(after taking into account the existing provisions of the Awards). The successor corporation may also issue, in place of outstanding
Shares of the Company held by the Participant, substantially similar shares or other property subject to repurchase restrictions
no less favorable to the Participant. In the event such successor or acquiring corporation (if any) refuses to assume, convert,
replace or substitute Awards, as provided above, pursuant to a Corporate Transaction, then notwithstanding any other provision
in this Plan to the contrary, such Awards shall have their vesting accelerate as to all shares subject to such Award (and any
applicable right of repurchase fully lapse) immediately prior to the Corporate Transaction and then such Awards will terminate.
In addition, in the event such successor or acquiring corporation (if any) refuses to assume, convert, replace or substitute Awards,
as provided above, pursuant to a Corporate Transaction, the Committee will notify the Participant in writing or electronically
that such Award will be exercisable for a period of time determined by the Committee in its sole discretion, and such Award will
terminate upon the expiration of such period. Awards need not be treated similarly in a Corporate Transaction.
21.2.
Assumption
of Awards by the Company
. The Company, from time to time, also may substitute or assume outstanding awards granted by another
company, whether in connection with an acquisition of such other company or otherwise, by either; (a) granting an Award under
this Plan in substitution of such other company’s award; or (b) assuming such award as if it had been granted under
this Plan if the terms of such assumed award could be applied to an Award granted under this Plan. Such substitution or assumption
will be permissible if the holder of the substituted or assumed award would have been eligible to be granted an Award under this
Plan if the other company had applied the rules of this Plan to such grant. In the event the Company assumes an award granted
by another company, the terms and conditions of such award will remain unchanged (except that the Purchase Price or the Exercise
Price, as the case may be, and the number and nature of Shares issuable upon exercise or settlement of any such Award will be
adjusted appropriately pursuant to Section 424(a) of the Code). In the event the Company elects to grant a new Option in
substitution rather than assuming an existing option, such new Option may be granted with a similarly adjusted Exercise Price.
Substitute Awards shall not reduce the number of Shares authorized for grant under the Plan or authorized for grant to a Participant
in any calendar year.
21.3.
Non-Employee
Directors’ Awards
. Notwithstanding any provision to the contrary herein, in the event of a Corporate Transaction, the
vesting of all Awards granted to Non-Employee Directors shall accelerate and such Awards shall become exercisable (as applicable)
in full prior to the consummation of such event at such times and on such conditions as the Committee determines.
22. ADOPTION
AND STOCKHOLDER APPROVAL. This Plan shall be submitted for the approval of the Company’s stockholders, consistent with applicable
laws, within twelve (12) months before or after the date this Plan is adopted by the Board.
23. TERM
OF PLAN/GOVERNING LAW. Unless earlier terminated as provided herein, this Plan will become effective on the Effective Date and
will terminate ten (10) years from the date this Plan is adopted by the Board. This Plan and all Awards granted hereunder
shall be governed by and construed in accordance with the laws of the State of Delaware.
24. AMENDMENT
OR TERMINATION OF PLAN. The Board may at any time terminate or amend this Plan in any respect, including, without limitation,
amendment of any form of Award Agreement or instrument to be executed pursuant to this Plan; provided, however, that the Board
will not, without the approval of the stockholders of the Company, amend this Plan in any manner that requires such stockholder
approval; provided further, that a Participant’s Award shall be governed by the version of this Plan then in effect at the
time such Award was granted.
25. NON-EXCLUSIVITY
OF THE PLAN. Neither the adoption of this Plan by the Board, the submission of this Plan to the stockholders of the Company for
approval, nor any provision of this Plan will be construed as creating any limitations on the power of the Board to adopt such
additional compensation arrangements as it may deem desirable, including, without limitation, the granting of stock awards and
bonuses otherwise than under this Plan, and such arrangements may be either generally applicable or applicable only in specific
cases.
26. INSIDER
TRADING POLICY. Each Participant who receives an Award shall comply with any policy adopted by the Company from time to time covering
transactions in the Company’s securities by Employees, officers and/or directors of the Company.
27. DEFERRALS. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMMITTEE, IN ITS SOLE DISCRETION, MAY DETERMINE THAT THE DELIVERY OF COMMON STOCK
OR THE PAYMENT OF CASH, UPON THE EXERCISE, VESTING OR SETTLEMENT OF ALL OR A PORTION OF ANY AWARD MAY BE DEFERRED AND MAY ESTABLISH
PROGRAMS AND PROCEDURES FOR DEFERRAL ELECTIONS TO BE MADE BY PARTICIPANTS. DEFERRALS BY PARTICIPANTS WILL BE MADE IN ACCORDANCE
WITH SECTION 409A OF THE CODE (TO THE EXTENT APPLICABLE TO A PARTICIPANT). CONSISTENT WITH SECTION 409A OF THE CODE,
THE COMMITTEE MAY PROVIDE FOR DISTRIBUTIONS WHILE A PARTICIPANT IS STILL AN EMPLOYEE OR OTHERWISE PROVIDING SERVICES TO THE COMPANY.
THE COMMITTEE IS AUTHORIZED TO MAKE DEFERRALS OF AWARDS AND DETERMINE WHEN, AND IN WHAT ANNUAL PERCENTAGES, PARTICIPANTS MAY RECEIVE
PAYMENTS, INCLUDING LUMP SUM PAYMENTS, FOLLOWING THE PARTICIPANT’S TERMINATION WITH THE COMPANY, AND IMPLEMENT SUCH OTHER
TERMS AND CONDITIONS CONSISTENT WITH THE PROVISIONS OF THE PLAN AND IN ACCORDANCE WITH APPLICABLE LAW.
28. COMPLIANCE
WITH SECTION 409A. UNLESS OTHERWISE EXPRESSLY PROVIDED FOR IN AN AWARD AGREEMENT, THE PLAN AND AWARD AGREEMENTS
WILL BE INTERPRETED TO THE GREATEST EXTENT POSSIBLE IN A MANNER THAT MAKES THE PLAN AND THE AWARDS GRANTED HEREUNDER EXEMPT FROM
SECTION 409A OF THE CODE, AND, TO THE EXTENT NOT SO EXEMPT, IN COMPLIANCE WITH SECTION 409A OF THE CODE. IF THE COMMITTEE
DETERMINES THAT ANY AWARD GRANTED HEREUNDER IS NOT EXEMPT FROM AND IS THEREFORE SUBJECT TO SECTION 409A OF THE CODE, THE
AWARD AGREEMENT EVIDENCING SUCH AWARD WILL INCORPORATE THE TERMS AND CONDITIONS NECESSARY TO AVOID THE CONSEQUENCES SPECIFIED
IN SECTION 409A(A)(1) OF THE CODE, AND TO THE EXTENT AN AWARD AGREEMENT IS SILENT ON TERMS NECESSARY FOR COMPLIANCE, SUCH
TERMS ARE HEREBY INCORPORATED BY REFERENCE INTO THE AWARD AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS PLAN (AND
UNLESS THE AWARD AGREEMENT SPECIFICALLY PROVIDES OTHERWISE), IF THE SHARES OF COMMON STOCK ARE PUBLICLY TRADED, AND IF A PARTICIPANT
HOLDING AN AWARD THAT CONSTITUTES “DEFERRED COMPENSATION” UNDER SECTION 409A OF THE CODE IS A “SPECIFIED
EMPLOYEE” FOR PURPOSES OF SECTION 409A OF THE CODE, NO DISTRIBUTION OR PAYMENT OF ANY AMOUNT THAT IS DUE BECAUSE OF
A “SEPARATION FROM SERVICE” (AS DEFINED IN SECTION 409A OF THE CODE WITHOUT REGARD TO ALTERNATIVE DEFINITIONS
THEREUNDER) WILL BE ISSUED OR PAID BEFORE THE DATE THAT IS SIX (6) MONTHS FOLLOWING THE DATE OF SUCH PARTICIPANT’S
“SEPARATION FROM SERVICE” OR, IF EARLIER, THE DATE OF THE PARTICIPANT’S DEATH, UNLESS SUCH DISTRIBUTION OR PAYMENT
CAN BE MADE IN A MANNER THAT COMPLIES WITH SECTION 409A OF THE CODE, AND ANY AMOUNTS SO DEFERRED WILL BE PAID IN A LUMP SUM
ON THE DAY AFTER SUCH SIX (6) MONTH PERIOD ELAPSES, WITH THE BALANCE PAID THEREAFTER ON THE ORIGINAL SCHEDULE.
29. CLAWBACK/RECOVERY. ALL
AWARDS GRANTED UNDER THE PLAN WILL BE SUBJECT TO RECOUPMENT IN ACCORDANCE WITH ANY CLAWBACK POLICY THAT THE COMPANY IS REQUIRED
TO ADOPT PURSUANT TO THE LISTING STANDARDS OF ANY NATIONAL SECURITIES EXCHANGE OR ASSOCIATION ON WHICH THE COMPANY’S SECURITIES
ARE LISTED OR AS IS OTHERWISE REQUIRED BY THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT OR OTHER APPLICABLE LAW.
IN ADDITION, THE COMMITTEE MAY IMPOSE SUCH OTHER CLAWBACK, RECOVERY OR RECOUPMENT PROVISIONS IN AN AWARD AGREEMENT AS THE COMMITTEE
DETERMINES NECESSARY OR APPROPRIATE, INCLUDING, BUT NOT LIMITED TO, A REACQUISITION RIGHT IN RESPECT OF PREVIOUSLY ACQUIRED SHARES
OF COMMON STOCK OR OTHER CASH OR PROPERTY UPON THE OCCURRENCE OF CAUSE. NO RECOVERY OF COMPENSATION UNDER SUCH A CLAWBACK POLICY
WILL BE AN EVENT GIVING RISE TO A RIGHT TO RESIGN FOR “GOOD REASON” OR “CONSTRUCTIVE TERMINATION” (OR
SIMILAR TERM) UNDER ANY AGREEMENT WITH THE COMPANY, THE PARENT, OR A SUBSIDIARY.
30. DISSOLUTION
OR LIQUIDATION. EXCEPT AS OTHERWISE PROVIDED IN THE AWARD AGREEMENT, IN THE EVENT OF A DISSOLUTION OR LIQUIDATION
OF THE COMPANY, ALL OUTSTANDING AWARDS (OTHER THAN AWARDS CONSISTING OF VESTED AND OUTSTANDING SHARES OF COMMON STOCK NOT SUBJECT
TO A FORFEITURE CONDITION OR THE COMPANY’S RIGHT OF REPURCHASE) WILL TERMINATE IMMEDIATELY PRIOR TO THE COMPLETION OF SUCH
DISSOLUTION OR LIQUIDATION, AND THE SHARES OF COMMON STOCK SUBJECT TO THE COMPANY’S REPURCHASE RIGHTS OR SUBJECT TO A FORFEITURE
CONDITION MAY BE REPURCHASED OR REACQUIRED BY THE COMPANY NOTWITHSTANDING THE FACT THAT THE HOLDER OF SUCH AWARD IS PROVIDING
CONTINUOUS SERVICES TO THE COMPANY; PROVIDED, HOWEVER, THAT THE COMMITTEE MAY, IN ITS SOLE DISCRETION, CAUSE SOME OR ALL AWARDS
TO BECOME FULLY VESTED, EXERCISABLE AND/OR NO LONGER SUBJECT TO REPURCHASE OR FORFEITURE (TO THE EXTENT SUCH AWARDS HAVE NOT PREVIOUSLY
EXPIRED OR TERMINATED) BEFORE THE DISSOLUTION OR LIQUIDATION IS COMPLETED BUT CONTINGENT ON ITS COMPLETION.
31. DEFINITIONS.
As used in this Plan, and except as elsewhere defined herein, the following terms will have the following meanings:
“Award”
means any award under the Plan, including any Option, Restricted Stock, Stock Bonus, Stock Appreciation Right, Restricted Stock
Unit, or award of Performance Shares.
“Award
Agreement” means, with respect to each Award, the written or electronic agreement between the Company and the Participant
setting forth the terms and conditions of the Award, which shall be in substantially a form (which need not be the same for each
Participant) that the Committee has from time to time approved, and will comply with and be subject to the terms and conditions
of this Plan.
“Award
Transfer Program” means any program instituted by the Committee which would permit Participants the opportunity to transfer
any outstanding Awards to a financial institution or other person or entity approved by the Committee.
“Board”
means the Board of Directors of the Company.
“Cause”
means (i) embezzlement or misappropriation of funds; (ii) conviction of, or entry of a plea of nolo contendre to, a
felony involving moral turpitude; (iii) commission of material acts of dishonesty, fraud, or deceit; (iv) breach of
any material provisions of any employment agreement; (v) habitual or willful neglect of duties; (vi) breach of fiduciary
duty; or (vii) material violation of any other duty whether imposed by law or the Board.
“Code”
means the United States Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
“Committee”
means the Compensation Committee of the Board or those persons to whom administration of the Plan, or part of the Plan, has been
delegated as permitted by law.
“Common
Stock” means the common stock of the Company.
“Company”
means GlyEco, Inc., or any successor corporation.
“Consultant”
means any person, including an advisor or independent contractor, engaged by the Company or a Parent or Subsidiary to render services
to such entity.
“Corporate
Transaction” means the occurrence of any of the following events: (i) any “person” (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3
of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the
total voting power represented by the Company’s then-outstanding voting securities; (ii) the consummation of the sale
or disposition by the Company of all or substantially all of the Company’s assets; (iii) the consummation of a merger
or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after
such merger or consolidation or (iv) any other transaction which qualifies as a “corporate transaction” under
Section 424(a) of the Code wherein the stockholders of the Company give up all of their equity interest in the Company (except
for the acquisition, sale or transfer of all or substantially all of the outstanding shares of the Company).
“Director”
means a member of the Board.
“Disability”
means in the case of incentive stock options, total and permanent disability as defined in Section 22(e)(3) of the Code and
in the case of other Awards, that the Participant is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous
period of not less than 12 months.
“Effective
Date” means November 14, 2017.
“Employee”
means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of the Company. Neither
service as a Director nor payment of a director ’s fee by the Company will be sufficient to constitute “employment”
by the Company.
“Exchange
Act” means the United States Securities Exchange Act of 1934, as amended.
“Exchange
Program” means a program pursuant to which (i) outstanding Awards are surrendered, cancelled or exchanged for cash,
the same type of Award or a different Award (or combination thereof) or (ii) the exercise price of an outstanding Award is
increased or reduced.
“Exercise
Price” means, with respect to an Option, the price at which a holder may purchase the Shares issuable upon exercise of an
Option and with respect to a SAR, the price at which the SAR is granted to the holder thereof.
“Fair
Market Value” means, as of any date, the value of a share of the Company’s Common Stock determined as follows:
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(a)
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If
such Common Stock is publicly traded and is then listed on a national securities exchange, its closing price on the date of
determination on the principal national securities exchange on which the Common Stock is listed or admitted to trading as
reported in The Wall Street Journal or such other source as the Committee deems reliable;
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(b)
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If
such Common Stock is publicly traded but is neither listed nor admitted to trading on a national securities exchange, the
average of the closing bid and asked prices on the date of determination as reported in The Wall Street Journal or such other
source as the Committee deems reliable;
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(c)
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In
the case of an Option or SAR grant made on the Effective Date, the price per share at which shares of the Company’s
Common Stock are initially offered for sale to the public by the Company’s underwriters in the initial public offering
of the Company’s Common Stock pursuant to a registration statement filed with the SEC under the Securities Act; or
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(d)
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If
none of the foregoing is applicable, by the Board or the Committee in good faith.
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“Insider”
means an officer or director of the Company or any other person whose transactions in the Company’s Common Stock are subject
to Section 16 of the Exchange Act.
“ISO”
means any Incentive Stock Option within the meaning of the Code.
“Non-Employee
Director” means a Director who is not an Employee of the Company or any Parent or Subsidiary.
“NQSO”
means any Nonqualified Stock Option within the meaning of the Code.
“Option”
means an award of an option to purchase Shares pursuant to Section 5.
“Parent”
means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if each of such corporations
other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
“Participant”
means a person who holds an Award under this Plan.
“Performance
Award” means cash or stock granted pursuant to Section 10 or Section 12 of the Plan.
“Performance
Factors” means any of the factors selected by the Committee and specified in an Award Agreement, from among the following
objective measures, either individually, alternatively or in any combination, applied to the Company as a whole or any business
unit or Subsidiary, either individually, alternatively, or in any combination, on a GAAP or non-GAAP basis, and measured, to the
extent applicable on an absolute basis or relative to a pre-established target, to determine whether the performance goals established
by the Committee with respect to applicable Awards have been satisfied:
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(e)
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Earnings
(which may include earnings before interest and taxes, earnings before taxes, and net earnings);
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(i)
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Controllable
operating profit, or net operating profit;
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(l)
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Operating
expenses or operating expenses as a percentage of revenue;
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(o)
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Total
stockholder return;
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(q)
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Return
on assets or net assets;
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(r)
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The
Company’s stock price;
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(s)
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Growth
in stockholder value relative to a pre-determined index;
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(u)
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Return
on invested capital;
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(v)
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Cash
Flow (including free cash flow or operating cash flows)
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(w)
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Cash
conversion cycle;
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(x)
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Economic
value added;
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(y)
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Individual
confidential business objectives;
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(z)
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Contract
awards or backlog;
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(aa)
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Overhead
or other expense reduction;
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(cc)
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Strategic
plan development and implementation;
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(dd)
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Succession
plan development and implementation;
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(ee)
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Improvement
in workforce diversity;
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(ff)
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Customer
indicators;
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(gg)
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New
product invention or innovation;
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(hh)
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Attainment
of research and development milestones;
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(ii)
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Improvements
in productivity;
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(kk)
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Attainment
of objective operating goals and employee metrics; and
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The
Committee may, in recognition of unusual or non-recurring items such as acquisition-related activities or changes in applicable
accounting rules, provide for one or more equitable adjustments (based on objective standards) to the Performance Factors to preserve
the Committee ’s original intent regarding the Performance Factors at the time of the initial award grant. It is within
the sole discretion of the Committee to make or not make any such equitable adjustments.
“Performance
Period” means the period of service determined by the Committee, during which years of service or performance is to be measured
for the Award.
“Performance Share” means a performance share bonus granted as a Performance Award.
“Permitted
Transferee” means any 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)
of the Employee, any person sharing the Employee ’s household (other than a tenant or employee), a trust in which these
persons (or the Employee) have more than 50% of the beneficial interest, a foundation in which these persons (or the Employee)
control the management of assets, and any other entity in which these persons (or the Employee) own more than 50% of the voting
interests.
“Plan”
means this GlyEco, Inc. 2017 Incentive Compensation Plan.
“Purchase
Price” means the price to be paid for Shares acquired under the Plan, other than Shares acquired upon exercise of an Option
or SAR.
“Restricted Stock Award”
means an award of Shares pursuant to Section 6 or Section 12 of the Plan, or issued pursuant to the early exercise of
an Option.
“Restricted
Stock Unit” means an Award granted pursuant to Section 9 or Section 12 of the Plan.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended.
“Shares”
means shares of the Company’s Common Stock and the common stock of any successor security.
“Stock
Appreciation Right” or “SAR” means an Award granted pursuant to Section 8 or Section 12 of the Plan.
“Stock Bonus”
means an Award granted pursuant to Section 7 or Section 12 of the Plan.
“Subsidiary”
means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other corporations in such chain.
“Termination”
or “Terminated” means, for purposes of this Plan with respect to a Participant, that the Participant has for any reason
ceased to provide services as an employee, officer, director, consultant, independent contractor or advisor to the Company or
a Parent or Subsidiary of the Company. An employee will not be deemed to have ceased to provide services in the case of (i) sick
leave, (ii) military leave, or (iii) any other leave of absence approved by the Committee; provided, that such leave
is for a period of not more than ninety (90) days, unless reemployment upon the expiration of such leave is guaranteed by contract
or statute or unless provided otherwise pursuant to formal policy adopted from time to time by the Company and issued and promulgated
to employees in writing. In the case of any employee on an approved leave of absence, the Committee may make such provisions respecting
suspension of vesting of the Award while on leave from the employ of the Company or a Parent or Subsidiary of the Company as it
may deem appropriate, except that in no event may an Award be exercised after the expiration of the term set forth in the applicable
Award Agreement. In the event of military leave, if required by applicable laws, vesting shall continue for the longest period
that vesting continues under any other statutory or Company approved leave of absence and, upon a Participant’s returning
from military leave (under conditions that would entitle him or her to protection upon such return under the Uniform Services
Employment and Reemployment Rights Act), he or she shall be given vesting credit with respect to Awards to the same extent as
would have applied had the Participant continued to provide services to the Company throughout the leave on the same terms as
he or she was providing services immediately prior to such leave. An employee shall have terminated employment as of the date
he or she ceases to be employed (regardless of whether the termination is in breach of local laws or is later found to be invalid)
and employment shall not be extended by any notice period or garden leave mandated by local law. The Committee will have sole
discretion to determine whether a Participant has ceased to provide services for purposes of the Plan and the effective date on
which the Participant ceased to provide services (the “Termination Date”).
“Unvested
Shares” means Shares that have not yet vested or are subject to a right of repurchase in favor of the Company (or any successor
thereto).
APPENDIX B
GlyEco,
INC.
2017
EMPLOYEE STOCK PURCHASE PLAN
TABLE
OF CONTENTS
GLYECO,
INC.
2017
EMPLOYEE STOCK PURCHASE PLAN
Section
1. Purpose.
The
purpose of the GlyEco, INC. 2017 EMPLOYEE STOCK PURCHASE PLAN (the “Plan”) is to promote the interest of GlyEco, Inc.,
a Nevada corporation (“GlyEco”) and its stockholders by providing employees of GlyEco and its Designated Subsidiaries
with an opportunity to purchase Common Stock of GlyEco through accumulated payroll deductions. By encouraging stock ownership,
GlyEco seeks to attract, retain and motivate employees and to encourage them to devote their best efforts to the business and
financial success of GlyEco. It is the intention of GlyEco to have the Plan qualify as an “Employee Stock Purchase Plan”
under Section 423 of the Code. The provisions of the Plan, accordingly, shall be construed in a manner consistent with the requirements
of that section of the Code.
Section
2. Definitions.
For
purposes of the Plan, the following capitalized terms shall have the following meanings:
2.1
“Board of Directors” or “Board” means the Board of Directors of GlyEco.
2.2
“Code” means the Internal Revenue Code of 1986, as amended.
2.3
“Committee” means the compensation committee of the Board, and shall consist solely of three or more Board members
who are not employees of GlyEco or any Subsidiary unless otherwise determined by the Board. If no compensation committee exists,
or for any other reason as may be determined by the Board it decides to serve as the Committee, the Board shall be considered
the Committee and may take any action under the Plan that would otherwise be the responsibility of the Committee.
2.4
“Common Stock” means the common stock, $0.0001 par value, of GlyEco.
2.5
“Compensation” means all base straight time gross earnings and commissions, but exclusive of payments for overtime,
shift premium, incentive compensation, incentive payments, bonuses and other compensation.
2.6
“Designated Subsidiary” means any Subsidiary that has been designated by the Committee from time to time in its sole
discretion as eligible to participate in the Plan.
2.7
“Employee” means any individual who is an employee of GlyEco or a Designated Subsidiary as the term is used in Treasury
Regulation Section 1.423-2(e) and described in Treasury Regulation Section 1.421-1(h); PROVIDED, HOWEVER, EMPLOYEES WHO HAVE BEEN
EMPLOYED LESS THAN THIRTY (30) DAYS PRIOR TO THE APPLICABLE OFFERING PERIOD, EMPLOYEES WHOSE CUSTOMARY EMPLOYMENT WITH GLYECO
IS TWENTY (20) HOURS OR LESS PER WEEK, EMPLOYEES WHOSE CUSTOMARY EMPLOYMENT WITH GLYECO IS FOR NOT MORE THAN FIVE (5) MONTHS IN
ANY CALENDAR YEAR, AND EMPLOYEES WHO ARE RESIDENTS OF OR EMPLOYED IN ANY JURISDICTION IN WHICH SUCH A PLAN IS PROHIBITED UNDER
APPLICABLE LAW SHALL NOT BE DEEMED EMPLOYEES FOR THE PURPOSES OF THIS PLAN. For purposes of the Plan, the employment relationship
shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by GlyEco. Where
the period of leave exceeds 90 days and the individual’s right to reemployment is not guaranteed either by statute or by
contract, the employment relationship shall be deemed to have terminated on the 91st day of such leave.
2.8
“Enrollment Date” means the first Trading Day of each Offering Period.
2.9
“Exercise Date” means the last Trading Day of each Offering Period.
2.10
“Fair Market Value” means, as of any date, the value of Common Stock determined as follows:
2.10.1
If there should be a public market for the Common Stock on such date, the closing price of the Common Stock as reported on such
date on the composite tape of the principal national securities exchange on which the Common Stock is listed or admitted to trading,
or, if no composite tape exists for such national securities exchange on such date, then the closing price on the principal national
securities exchange on which the Common Stock is listed or admitted to trading.
2.10.2
If the Common Stock is not listed or admitted on a national securities exchange, the arithmetic mean of the closing bid price
and closing asked price for the Common Stock on such date as quoted on the National Association of Securities Dealers Automated
Quotation System (or such market in which such prices are regularly quoted).
2.10.3
If the day is not a Trading Day, and as a result, paragraphs 2.10.1 and 2.10.2 above are inapplicable, the “Fair Market
Value” of the Stock shall be determined as of the next earlier Trading Day. If paragraphs 2.10.1 and 2.10.2 above are otherwise
inapplicable, then the “Fair Market Value” of the Common Stock shall be as determined in good faith by the Committee.
2.11
“Highly Compensated Employee” has the same meaning as the term is used in Section 414(q) of the Code.
2.12
“Offering Periods” means the period of approximately six (6) months during which an option shall be granted and may
be exercised pursuant to the Plan, commencing on the first Trading Day on or after July 1
st
and January 1
st
of each year following the approval of the Plan by GlyEco’s stockholders and the Board of Directors, and terminating on
the last Trading Day in the periods ending six (6) months later from each beginning date. Notwithstanding the foregoing, the first
Offering Period shall commence on
January 1, 2018
and shall terminate on the last
trading day on or before
June 30, 2028. T
he duration and timing of Offering Periods
may be changed pursuant to Section 4 of this Plan.
2.13
“Plan” means this GlyEco, Inc. 2017 Employee Stock Purchase Plan.
2.14
“Purchase Price” means the lesser of 85% of the Fair Market Value of a share of Common Stock on the Exercise Date
of the current Offering Period or 85% of the Fair Market Value of a share of Common Stock on the Grant Date of the current Offering
Period; provided however, that the Purchase Price may be adjusted by the Board or the Committee pursuant to Section 20.
2.15
“Reserves” means the number of shares of Common Stock covered by each option under the Plan that have not yet been
exercised and the number of shares of Common Stock that have been authorized for issuance under the Plan but not yet placed under
option.
2.16
“Subsidiary” has the meaning set forth for “subsidiary corporation” in Section 424(f) of the Code, whereby
a Subsidiary means any corporation (other than the employer corporation) in an unbroken chain of corporations beginning with the
employer corporation if, at the time of the granting of the option, each of the corporations other than the last corporation in
the unbroken chain owns stock possessing 50 percent or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
2.17
“GlyEco” means GlyEco, Inc., a Nevada corporation.
2.18
“Trading Day” means a day on which the quotation medium, market, or exchange on which GlyEco is then-traded is open
for trading.
Section
3. Eligibility.
3.1
Any individual who is an Employee of GlyEco or a Designated Subsidiary on a given Enrollment Date shall be eligible to participate
in the Plan.
3.2
Notwithstanding any provision of the Plan to the contrary, no Employee shall be granted an option under the Plan: (i) to the extent
that, immediately after the grant, such Employee (or any other person whose stock would be attributed to such Employee pursuant
to section 424(d) of the Code) would own stock of GlyEco and/or hold outstanding options to purchase such stock possessing five
percent (5%) or more of the total combined voting power or value of all classes of the stock of GlyEco or of any Subsidiary thereof;
or (ii) to the extent that his or her rights to purchase stock under all employee stock purchase plans of GlyEco and its Subsidiaries
would accrue at a rate which exceeds Two Hundred, Fifty Thousand Dollars ($250,000) of fair market value of such stock (determined
at the time such option is granted) for each calendar year in which such option is outstanding at any time.
Section
4. Offering Periods.
The
Plan shall be implemented by consecutive Offering Periods with a new Offering Period commencing and ending as set forth in Section
2.12, or on such other date as the Committee shall determine, and continuing thereafter until terminated in accordance with Section
20 hereof; provided, however, that the first Offering Period under the Plan shall commence pursuant to Section 2.12. Subject to
compliance with the requirements of Section 423 of the Code (or any successor rule or provision or any other applicable law, regulation
or stock exchange rule), the Committee shall have the power to change the duration of Offering Periods (including the commencement
dates thereof) with respect to future offerings without shareholder approval if such change is announced at least five (5) days
prior to the scheduled beginning of the first Offering Period to be affected thereafter.
Section
5. Participation.
5.1
An eligible Employee may become a participant in the Plan by completing a Subscription Agreement authorizing payroll deductions
in the form of
Exhibit A
to this Plan and filing it with GlyEco’s payroll office prior to the applicable Enrollment
Date.
5.2
Payroll deductions for a participant shall commence on the first payroll following the Enrollment Date after GlyEco receives the
participant’s Subscription Agreement and shall end on the last payroll in the Offering Period to which such Subscription
Agreement is applicable, unless sooner terminated by the participant as provided in Section 10 hereof.
Section
6. Payroll Deductions.
6.1
At the time a participant files his or her Subscription Agreement, he or she shall elect to have payroll deductions made on each
payday during the Offering Period in an amount not exceeding fifty percent (50%) of the Compensation that he or she receives on
each payday during the Offering Period.
6.2
All payroll deductions made for a participant shall be credited to his or her account under the Plan and shall be withheld in
whole percentages only. A participant may not make any additional payments into such account.
6.3
A participant may discontinue his or her participation in the Plan as provided in Section 10 hereof, or may increase or decrease
the rate of his or her payroll deductions during the Offering Period by completing or filing with GlyEco a new Subscription Agreement
authorizing a change in payroll deduction rate. The Committee may, in its discretion, limit the number of participation rate changes
during any Offering Period. The change in rate shall be effective with the first full payroll period following five (5) business
days after GlyEco’s receipt of the new Subscription Agreement unless GlyEco elects to process a given change in participation
more quickly. A participant’s Subscription Agreement shall remain in effect for successive Offering Periods unless terminated
as provided in Section 10 hereof.
6.4
Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 3.2 hereof, a
participant’s payroll deductions may be decreased to zero percent (0%) at any time during an Offering Period. Payroll deductions
shall recommence at the rate provided in such participant’s Subscription Agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year, unless terminated by the participant as provided in Section 10
hereof.
6.5
At the time the option is exercised, in whole or in part, or at the time some or all of GlyEco’s Common Stock issued under
the Plan is disposed of, the participant must make adequate provision for GlyEco’s federal, state, or other tax withholding
obligations, if any, which arise upon the exercise of the option or the disposition of the Common Stock. At any time, GlyEco may,
but shall not be obligated to, withhold from the participant’s Compensation the amount necessary for GlyEco to meet applicable
withholding obligations, including any withholding of any tax or benefits that may be attributable to the sale or early disposition
of Common Stock by the Employee.
Section
7. Grant of Option.
On
the Enrollment Date of each Offering Period, each eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date during such Offering Period (at the applicable Purchase Price) up to a number of shares
of GlyEco’s Common Stock determined by dividing such Employee’s payroll deductions accumulated prior to such Exercise
Date and retained in the participant’s account as of the Exercise Date by the applicable Purchase Price; provided, however,
in no event will an eligible Employee be permitted to purchase more than a number of shares equal to the result of $250,000 divided
by the Fair Market Value of GlyEco’s Common Stock on the first Trading Day during such Offering Period (subject to adjustment
upon changes in capitalization of GlyEco as provided in Section 19 hereof ); and provided further that such purchase shall be
subject to the limitations set forth in Sections 3.2 and 13 hereof. Exercise of the option shall occur as provided in Section
8 hereof, unless the participant has withdrawn pursuant to Section 10 hereof. The option shall expire on the last day of the Offering
Period.
Section
8. Exercise of Option.
8.1
Unless a participant withdraws from the Plan as provided in Section 10 hereof, his or her option for the purchase of shares shall
be exercised automatically on the Exercise Date, and the maximum number of full shares subject to option shall be purchased for
such participant at the applicable Purchase Price with the accumulated payroll deductions in his or her account. No fractional
shares shall be purchased; any payroll deductions accumulated in a participant’s account which are not sufficient to purchase
a full share shall be retained in the participant’s account for the subsequent Offering Period, subject to earlier withdrawal
by the participant as provided in Section 10 hereof. Any other monies left over in a participant’s account after the Exercise
Date shall be returned to the participant or, at the election of the participant, maintained in the Plan for use in subsequent
Offering Periods. During a participant’s lifetime, a participant’s option to purchase shares hereunder is exercisable
only by him or her.
8.2
If the Committee determines that, on a given Exercise Date, the number of shares with respect to which options are to be exercised
may exceed: (i) the number of shares of Common Stock that were available for sale under the Plan on the Enrollment Date of the
applicable Offering Period; or (ii) the number of shares available for sale under the Plan on such Exercise Date, the Committee
may in its sole discretion: (x) provide that GlyEco shall make a pro rata allocation of the shares of Common Stock available for
purchase on such Enrollment Date or Exercise Date, as applicable, in as uniform a manner as shall be practicable and as it shall
determine in its sole discretion to be equitable among all participants exercising options to purchase Common Stock on such Exercise
Date, and continue all Offering Periods then in effect; or (y) provide that GlyEco shall make a pro rata allocation of the shares
available for purchase on such Enrollment Date or Exercise Date, as applicable, in as uniform a manner as shall be practicable
and as it shall determine in its sole discretion to be equitable among all participants exercising options to purchase Common
Stock on such Exercise Date, and terminate any or all other Offering Periods then in effect pursuant to Section 20 hereof. GlyEco
may make pro rata allocation of the shares available on the Enrollment Date of any applicable Offering Period pursuant to the
preceding sentence, notwithstanding any authorization of additional shares for issuance under the Plan by GlyEco’s shareholders
subsequent to such Enrollment Date.
Section
9. Delivery.
Certificates
evidencing the shares purchased upon exercise of a participant’s option will be issued by GlyEco’s transfer agent
as promptly as practicable after each Exercise Date on which a purchase of shares occurs. Notwithstanding the foregoing, shares
purchased upon exercise of a participant’s option may be held electronically by an uncertificated book-entry by GlyEco’s
transfer agent or by the Plan administrator.
Section
10. Withdrawal.
10.1
A participant may withdraw all but not less than all the payroll deductions credited to his or her account and not yet used to
exercise his or her option under the Plan at any time by giving written notice to GlyEco in the form of
Exhibit B
to this
Plan. All of the participant’s payroll deductions credited to his or her account shall be paid to such participant promptly
after receipt of notice of withdrawal and such participant’s option for the Offering Period shall be automatically terminated,
and no further payroll deductions for the purchase of shares shall be made for such Offering Period. If a participant withdraws
from an Offering Period, payroll deductions shall not resume at the beginning of the succeeding Offering Period unless the participant
delivers to GlyEco a new Subscription Agreement.
10.2
A participant’s withdrawal from an Offering Period shall not have any effect upon his or her eligibility to participate
in any similar plan which may hereafter be adopted by GlyEco or in succeeding Offering Periods which commence after the termination
of the Offering Period from which the participant withdraws.
Section
11. Termination of Employment.
Upon
a participant’s ceasing to be an Employee, for any reason, he or she shall be deemed to have elected to withdraw from the
Plan and the payroll deductions credited to such participant’s account during the Offering Period but not yet used to exercise
the option shall be returned to such participant or, in the case of his or her death, to the person or persons entitled thereto
under Section 15 hereof, and such participant’s option shall be automatically terminated. The preceding sentence notwithstanding,
a participant who receives payment in lieu of notice of termination of employment shall be treated as continuing to be an Employee
for the participant’s customary number of hours per week of employment during the period in which the participant is subject
to such payment in lieu of notice.
Section
12. Interest.
No
interest shall accrue on the payroll deductions of a participant in the Plan.
Section
13. Stock
13.1
Subject to adjustment upon changes in capitalization of GlyEco as provided in Section 19 hereof, the maximum number of shares
of GlyEco’s Common Stock which shall be made available for sale under the Plan shall be 10,000,000 shares.
13.2
The participant shall have no interest or voting right in shares covered by his or her option until such option has been exercised.
13.3
Shares to be delivered to a participant under the Plan shall be registered in the name of the participant or in the name of the
participant and his or her spouse jointly with the right or survivorship.
Section
14. Administration.
The
Board or the Committee, as determined in the sole discretion of the Board, shall administer the Plan. The Board or the Committee
shall have full and exclusive discretionary authority to construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding, decision and determination made by the Board or the
Committee shall, to the full extent permitted by law, be final and binding upon all parties.
Section
15. Designation of Beneficiary.
15.1
A participant, in its Subscription Agreement, may designate a beneficiary who is to receive any shares and cash, if any, from
the participant’s account under the Plan in the event of such participant’s death subsequent to an Exercise Date on
which the option is exercised but prior to delivery to such participant of such shares and cash. In addition, a participant may
file a written designation of a beneficiary who is to receive any cash from the participant’s account under the Plan in
the event of such participant’s death prior to exercise of the option. If a participant is married and the designated beneficiary
is not the spouse, spousal consent shall be required for such designation to be effective.
15.2
Such designation of beneficiary may be changed by the participant at any time by written notice. In the event of the death of
a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant’s
death, GlyEco shall deliver such shares and/or cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of GlyEco), GlyEco, in its discretion, may deliver such shares
and/or cash to the spouse or to any one or more dependents or relatives of the participant, or if no spouse, dependent or relative
is known to GlyEco, then to such other person as GlyEco may designate.
Section
16. Transferability.
Neither
payroll deductions credited to a participant’s account nor any rights with regard to the exercise of an option or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws
of descent and distribution or as provided in Section 15 hereof) by the participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect, except that GlyEco may treat such act as an election to withdraw funds from
an Offering Period in accordance with Section 10 hereof.
Section
17. Use of Funds.
All
payroll deductions received or held by GlyEco under the Plan may be used by GlyEco for any corporate purpose, and GlyEco shall
not be obligated to segregate such payroll deductions.
Section
18. Reports.
Individual
accounts shall be maintained for each participant in the Plan. Statements of account shall be given to participating Employees
at least annually, which statements shall set forth the amounts of payroll deductions, the Purchase Price, the number of shares
purchased and the remaining cash balance, if any.
Section
19. Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, Merger or Asset Sale.
19.1
Changes in Capitalization. Subject to any required action by the shareholders of GlyEco, the Reserves, the maximum number of shares
each participant may purchase each Purchase Period (pursuant to Section 7), as well as the price per share and the number of shares
of Common Stock covered by each option under the Plan which has not yet been exercised shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by GlyEco; provided, however, that conversion of any convertible securities of GlyEco
shall not be deemed to have been “effected without receipt of consideration”. Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no
issuance by GlyEco of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an
option.
19.2
Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of GlyEco, the Offering Period then in progress
shall be shortened by setting a new Exercise Date (the “New Exercise Date”), and shall terminate immediately prior
to the consummation of such proposed dissolution or liquidation, unless provided otherwise by the Committee. The New Exercise
Date shall be before the date of GlyEco’s proposed dissolution or liquidation. The Committee shall notify each participant
in writing, at least ten (10) business days prior to the New Exercise Date, that the Exercise Date for the participant’s
option has been changed to the New Exercise Date and that the participant’s option shall be exercised automatically on the
New Exercise Date, unless prior to such date the participant has withdrawn from the Offering Period as provided in Section 10
hereof.
19.3
Merger or Asset Sale. In the event of a proposed sale of all or substantially all of the assets of GlyEco, or the merger of GlyEco
with or into another corporation, each outstanding option shall be assumed or an equivalent option substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation, unless the successor corporation refuses to do so. In the
event that the successor corporation refuses to assume or substitute for the option, any Offering Periods then in progress shall
be shortened by setting a new Exercise Date (the “New Exercise Date”) upon which the Offering Period then in progress
shall end. The New Exercise Date shall be before the date of GlyEco’s proposed sale or merger. The Committee shall notify
each participant in writing, at least ten (10) business days prior to the New Exercise Date, that the Exercise Date for the participant’s
option has been changed to the New Exercise Date and that the participant’s option shall be exercised automatically on the
New Exercise Date, unless prior to such date the participant has withdrawn from the Offering Period as provided in Section 10
hereof.
Section
20. Amendment or Termination.
20.1
The Board of Directors or the Committee may at any time and for any reason terminate or amend the Plan. Except as provided in
Section 19 hereof, no such termination can affect options previously granted, provided that an Offering Period may be terminated
by the Board of Directors or the Committee on any Exercise Date if the Board or the Committee determines that the termination
of the Offering Period or the Plan is in the best interests of GlyEco and its shareholders. Except as provided in Section 19 and
this Section 20 hereof, no amendment may make any change in any option theretofore granted which adversely affects the rights
of any participant. To the extent necessary to comply with Section 423 of the Code (or any successor rule or provision or any
other applicable law, regulation or stock exchange rule), GlyEco shall obtain shareholder approval of any amendments to the Plan
in such a manner and to such a degree as required.
20.2
Subject to compliance with the requirements of Section 423 of the Code (or any successor rule or provision or any other applicable
law, regulation or stock exchange rule), but without shareholder consent and without regard to whether any participant rights
may be considered to have been “adversely affected,” the Board or the Committee shall be entitled to change the Offering
Periods, limit the frequency and/or number of changes in the amount withheld during an Offering Period, establish the exchange
ratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount
designated by a participant in order to adjust for delays or mistakes in GlyEco’s processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each participant properly correspond with amounts withheld from the participant’s
Compensation, and establish such other limitations or procedures as the Board or the Committee determines in its sole discretion
advisable which are consistent with the Plan.
20.3
Subject to compliance with the requirements of Section 423 of the Code (or any successor rule or provision or any other applicable
law, regulation or stock exchange rule), in the event the Board or the Committee determines that the ongoing operation of the
Plan may result in unfavorable financial accounting consequences, the Board or the Committee may, in its discretion and, to the
extent necessary or desirable, modify or amend the Plan to reduce or eliminate such accounting consequence including, but not
limited to:
20.3.1
altering the Purchase Price for any Offering Period including an Offering Period underway at the time of the change in Purchase
Price;
20.3.2
shortening any Offering Period so that Offering Period ends on a new Exercise Date, including an Offering Period underway at the
time of the Board action; and
20.3.3
allocating shares.
Such
modifications or amendments shall not require stockholder approval or the consent of any Plan participants.
Section
21. Conditions Upon Issuance of Shares.
Shares
shall not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such shares
pursuant thereto shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the shares may then be listed, and shall be further subject to the approval
of counsel for GlyEco with respect to such compliance.
As
a condition to the exercise of an option, GlyEco may require the person exercising such option to represent and warrant at the
time of any such exercise that the shares are being purchased only for investment and without any present intention to sell or
distribute such shares if, in the opinion of counsel for GlyEco, such a representation is required by any of the aforementioned
applicable provisions of law.
Section
22. Term of Plan.
The
Plan shall become effective upon the earlier to occur of its adoption by the Board of Directors or its approval by the shareholders
of GlyEco. It shall continue in effect for a term of ten (10) years unless sooner terminated under Section 20 hereof.
Section
23. Notices.
All
notices or other communications by a participant to GlyEco under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by GlyEco at the location, or by the person, designated by GlyEco for the receipt thereof.
EXHIBIT
A
GlyEco,
INC.
2017
EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION
AGREEMENT
Original
Application Enrollment Date: __________
__________
Change
in Payroll Deduction Rate
__________
Change
of Beneficiary(ies)
1.
I hereby elect to participate in the GlyEco, Inc. 2017 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”)
and subscribe to purchase shares of GlyEco’s Common Stock in accordance with this Subscription Agreement and the Employee
Stock Purchase Plan.
2.
I hereby authorize payroll deductions from each paycheck in the amount of __% of my Compensation on each payday (FROM 1% TO 50%
but in no event greater than $250,000) during the Offering Period in accordance with the Employee Stock Purchase Plan (please
note that no fractional percentages are permitted).
3.
I understand that these payroll deductions shall be accumulated for the purchase of shares of Common Stock at the applicable Purchase
Price determined in accordance with the Employee Stock Purchase Plan. I understand that if I do not withdraw from an Offering
Period, any accumulated payroll deductions will be used to automatically exercise my option.
4.
I have received a copy of the complete Employee Stock Purchase Plan. I understand that my participation in the Employee Stock
Purchase Plan is in all respects subject to the terms of the Plan. I understand that my ability to exercise the option under this
Subscription Agreement is subject to shareholder approval of the Employee Stock Purchase Plan.
5.
Shares purchased for me under the Employee Stock Purchase Plan should be issued in the name(s) of (Employee or Employee and Spouse
only): __________.
6.
I understand that if I dispose of any shares received by me pursuant to the Plan within 2 years after the Enrollment Date (the
first day of the Offering Period during which I purchased such shares) or one year after the Exercise Date, I will be treated
for federal income tax purposes as having received ordinary income at the time of such disposition in an amount equal to the excess
of the amount I received in such disposition over the price which I paid for the shares. I hereby agree to notify GlyEco in writing
within 30 days after the date of any disposition of my shares and I will make adequate provision for Federal, state or other tax
withholding obligations, if any, which arise upon the disposition of the Common Stock. GlyEco may, but will not be obligated to,
withhold from my compensation the amount necessary to meet any applicable withholding obligation including any withholding necessary
to make available to GlyEco any tax deductions or benefits attributable to sale or early disposition of Common Stock by me. If
I dispose of such shares at any time after the expiration of the 2-year and 1-year holding periods, I understand that I will be
treated for federal income tax purposes as having received income only at the time of such disposition, and that such income will
be taxed as ordinary income only to the extent of an amount equal to the lesser of: (l) the excess of the fair market value of
the shares at the time of such disposition over the purchase price which I paid for the shares; or (2) the excess of the fair
market value of the shares at the time the Enrollment Date (the first day of the Offering Period during which I purchased such
shares) over the purchase price which I paid for the shares. The remainder of the gain, if any, recognized on such disposition
will be taxed as capital gain.
7.
I hereby agree to be bound by the terms of the Employee Stock Purchase Plan. The effectiveness of this Subscription Agreement
is dependent upon my eligibility to participate in the Employee Stock Purchase Plan.
8.
In the event of my death, I hereby designate the following as my beneficiary(ies) to receive all payments and shares due me under
the Employee Stock Purchase Plan:
|
NAME:
(Please print)
|
|
|
|
|
|
|
(First)
|
(Middle)
|
(Last)
|
|
|
|
|
|
|
|
Relationship
|
|
|
|
|
|
|
|
(Address)
|
|
|
|
|
|
|
|
Employee’s
Social Security Number: _________________
|
|
|
|
|
|
|
Employee’s
Address:
|
|
|
I
UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY
ME.
|
Dated:
_______________
|
|
|
|
|
|
|
Signature
of Employee
|
|
Dated:
_____________
|
|
|
|
|
|
|
Spouse’s
Signature (If beneficiary is other than spouse)
|
EXHIBIT
B
GlyEco,
INC.
2017
EMPLOYEE STOCK PURCHASE PLAN
NOTICE
OF WITHDRAWAL
The
undersigned participant in the Offering Period of the GlyEco, Inc. 2017 Employee Stock Purchase Plan which began on , 201_ (the
“Enrollment Date”) hereby notifies GlyEco that he or she hereby withdraws from the Offering Period. He or she hereby
directs GlyEco to pay to the undersigned as promptly as practicable all the payroll deductions credited to his or her account
with respect to such Offering Period. The undersigned understands and agrees that his or her option for such Offering Period will
be automatically terminated. The undersigned understands further that no further payroll deductions will be made for the purchase
of shares in the current Offering Period and the undersigned shall be eligible to participate in succeeding Offering Periods only
by delivering to GlyEco a new Subscription Agreement.
|
Name
and Address of Participant:
|
|
|
|
Signature:____________________
|
|
|
|
Date:_______________________
|
APPENDIX
C
PLAN
OF CONVERSION
of
GLYECO,
INC.,
a
Nevada corporation
into
GLYECO,
INC.,
a
Delaware corporation
This Plan of Conversion
,
dated as of [ ],
2017 (including all of the Exhibits attached hereto, this “
Plan
”
)
, is hereby adopted by GlyEco,
Inc., a Nevada corporation, in order to set forth the terms, conditions and procedures governing the conversion of GlyEco, Inc.
from a Nevada corporation to a Delaware corporation pursuant to Section 265 of the General Corporation Law of the State of
Delaware, as amended (the “
DGCL
”), and Section 92A.120 of the Nevada Revised Statutes, as amended
(the “
NRS
”).
RECITALS
Whereas
,
GlyEco, Inc. is a corporation organized and existing under the laws of the State of Nevada (the “
Converting Entity
”);
Whereas
,
the Board of Directors of the Converting Entity has determined that it would be advisable and in the best interests of the Converting
Entity and its stockholders for the Converting Entity to convert from a Nevada corporation to a Delaware corporation pursuant
to Section 265 of the DGCL and Section 92A.120 of the NRS;
Whereas
,
the form, terms and provisions of this Plan have been authorized, approved and adopted by the Board of Directors of the Converting
Entity;
Whereas
,
the Board of Directors of the Converting Entity has submitted this Plan to the stockholders of the Converting Entity for approval;
and
Whereas
,
this Plan has been authorized, approved and adopted by the holders of a majority of the voting power of the stockholders of the
Converting Entity.
Now,
Therefore
, the Converting Entity hereby adopts
this Plan as follows:
PLAN
OF CONVERSION
1.
Conversion;
Effect of Conversion
.
(a) Upon
the Effective Time (as defined in Section 3 below), the Converting Entity shall be converted from a Nevada corporation to
a Delaware corporation pursuant to Section 265 of the DGCL and Section 92A.120 of the NRS (the “
Conversion
”)
and the Converting Entity, as converted to a Delaware corporation (the “
Converted Entity
”), shall thereafter
be subject to all of the provisions of the DGCL, except that notwithstanding Section 106 of the DGCL, the existence of the
Converted Entity shall be deemed to have commenced on the date the Converting Entity commenced its existence in the State of Nevada.
(b) Upon
the Effective Time, by virtue of the Conversion and without any further action on the part of the Converting Entity or its stockholders,
the Converted Entity shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the Converting
Entity existing immediately prior to the Effective Time. Upon the Effective Time, by virtue of the Conversion and without any
further action on the part of the Converting Entity or its stockholders, for all purposes of the laws of the State of Delaware,
all of the rights, privileges and powers of the Converting Entity existing immediately prior to the Effective Time, and all property,
real, personal and mixed, and all debts due to the Converting Entity existing immediately prior to the Effective Time, as well
as all other things and causes of action belonging to the Converting Entity existing immediately prior to the Effective Time,
shall remain vested in the Converted Entity and shall be the property of the Converted Entity and the title to any real property
vested by deed or otherwise in the Converting Entity existing immediately prior to the Effective Time shall not revert or be in
any way impaired by reason of the Conversion; but all rights of creditors and all liens upon any property of the Converting Entity
existing immediately prior to the Effective Time shall be preserved unimpaired, and all debts, liabilities and duties of the Converting
Entity existing immediately prior to the Effective Time shall remain attached to the Converted Entity upon the Effective Time,
and may be enforced against the Converted Entity to the same extent as if said debts, liabilities and duties had originally been
incurred or contracted by the Converted Entity in its capacity as a corporation of the State of Delaware. The rights, privileges,
powers and interests in property of the Converting Entity existing immediately prior to the Effective Time, as well as the debts,
liabilities and duties of the Converting Entity existing immediately prior to the Effective Time, shall not be deemed, as a consequence
of the Conversion, to have been transferred to the Converted Entity upon the Effective Time for any purpose of the laws of the
State of Delaware.
(c) The
Conversion shall not be deemed to affect any obligations or liabilities of the Converting Entity incurred prior to the Conversion
or the personal liability of any person incurred prior to the Conversion.
(d) Upon
the Effective Time, the name of the Converted Entity shall remain unchanged and continue to be “GlyEco, Inc.”
(e) The
Converting Entity intends for the Conversion to constitute a tax-free reorganization qualifying under Section 368(a) of the
Internal Revenue Code of 1986, as amended.
2.
Filings
. As
promptly as practicable following the adoption of this Plan by the Board of Directors and the stockholders of the Converting Entity,
the Converting Entity shall cause the Conversion to be effective by:
(a) executing
and filing (or causing the execution and filing of) Articles of Conversion pursuant to Section 92A.205 of the NRS, substantially
in the form of
EXHIBIT A
hereto (the “
Nevada Articles of Conversion
”), with the
Secretary of State of the State of Nevada;
(b) executing
and filing (or causing the execution and filing of) a Certificate of Conversion pursuant to Sections 103 and 265 of the DGCL,
substantially in the form of
EXHIBIT B
hereto (the “
Delaware Certificate of Conversion
”),
with the Secretary of State of the State of Delaware; and
(c) executing
and filing (or causing the execution and filing of) a Certificate of Incorporation of the Converted Entity, substantially in the
form of
EXHIBIT C
hereto (the “
Delaware Certificate of Incorporation
”), with the
Secretary of State of the State of Delaware.
3.
Effective
Time
. The Conversion shall become effective upon the last to occur of the filing of the Nevada Articles of Conversion,
the Delaware Certificate of Conversion and the Delaware Certificate of Incorporation (the time of the effectiveness of the Conversion,
the “
Effective Time
”).
4.
Effect
of Conversion on Common Stock
. Upon the Effective Time, by virtue of the Conversion and without any further action
on the part of the Converting Entity or its stockholders, each share of Common Stock, $0.001 par value per share, of the Converting
Entity (“
Converting Entity Common Stock
”) that is issued and outstanding immediately prior to the Effective
Time shall convert into one validly issued, fully paid and nonassessable share of Common Stock, $0.0001 par value per share, of
the Converted Entity (“
Converted Entity Common Stock
”).
5.
Effect
of Conversion on Outstanding Stock Options
. Upon the Effective Time, by virtue of the Conversion and without any
further action on the part of the Converting Entity or its stockholders, each option to acquire shares of Converting Entity Common
Stock outstanding immediately prior to the Effective Time shall convert into an equivalent option to acquire, upon the same terms
and conditions (including the vesting schedule and exercise price per share applicable to each such option) as were in effect
immediately prior to the Effective Time, the same number of shares of Converted Entity Common Stock.
6.
Effect
of Conversion on Shares of Restricted Stock
. Upon the Effective Time, by virtue of the Conversion and without any
further action on the part of the Converting Entity or its stockholders, each restricted share of Converting Entity Common Stock
outstanding immediately prior to the Effective Time shall convert into an equivalent restricted share of Converted Entity Common
Stock with the same terms and conditions (including the vesting schedule applicable to each such share) as were in effect immediately
prior to the Effective Time.
7.
Effect
of Conversion on Outstanding Warrants or Other Rights
. Upon the Effective Time, by virtue of the Conversion and
without any further action on the part of the Converting Entity or its stockholders, each warrant or other right to acquire shares
of Converting Entity Common Stock or Converting Entity Preferred Stock outstanding immediately prior to the Effective Time shall
convert into an equivalent warrant or other right to acquire, upon the same terms and conditions (including the exercise price
per share applicable to each such warrant or other right) as were in effect immediately prior to the Effective Time, the same
number of shares of Converted Entity Common Stock or Converted Entity Preferred Stock, respectively.
8.
Effect
of Conversion on Stock Certificates
. All of the outstanding certificates representing shares of Converting Entity
Common Stock immediately prior to the Effective Time shall be deemed for all purposes to continue to evidence ownership of and
to represent the same number of shares of Converted Entity Common Stock.
9.
Effect
of Conversion on Employee Benefit, Stock Option or Other Similar Plans
. Upon the Effective Time, by virtue of the Conversion
and without any further action on the part of the Converting Entity or its stockholders, each employee benefit plan, stock option
plan or other similar plan to which the Converting Entity is a party shall continue to be a plan of the Converted Entity. To the
extent that any such plan provides for the issuance of Converting Entity Common Stock, upon the Effective Time, such plan shall
be deemed to provide for the issuance of Converted Entity Common Stock.
10.
Further
Assurances
. If, at any time after the Effective Time, the Converted Entity shall determine or be advised that any
deeds, bills of sale, assignments, agreements, documents or assurances or any other acts or things are necessary, desirable or
proper, consistent with the terms of this Plan, (a) to vest, perfect or confirm, of record or otherwise, in the Converted
Entity its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties
or assets of the Converting Entity existing immediately prior to the Effective Time, or (b) to otherwise carry out the purposes
of this Plan, the Converted Entity and its officers and directors (or their designees), are hereby authorized to solicit in the
name of the Converted Entity any third-party consents or other documents required to be delivered by any third-party, to execute
and deliver, in the name and on behalf of the Converted Entity, all such deeds, bills of sale, assignments, agreements, documents
and assurances and do, in the name and on behalf of the Converted Entity, all such other acts and things necessary, desirable
or proper to vest, perfect or confirm its right, title or interest in, to or under any of the rights, privileges, immunities,
powers, purposes, franchises, properties or assets of the Converting Entity existing immediately prior to the Effective Time and
otherwise to carry out the purposes of this Plan.
11.
Effect
of Conversion on Directors and Officers
. Upon the Effective Time, by virtue of the Conversion and without any further
action on the part of the Converting Entity or its stockholders, the members of the Board of Directors and the officers of the
Converting Entity holding their respective offices in the Converting Entity existing immediately prior to the Effective Time shall
continue in their respective offices as members of the Board of Directors and officers, respectively, of the Converted Entity.
12.
Delaware
Bylaws
. Upon the Effective Time, the bylaws of the Converted Entity shall be the Bylaws of GlyEco, Inc., substantially
in the form of
EXHIBIT D
hereto.
13.
Delaware
Indemnification Agreements
. As promptly as practicable following the Effective Time, the Converted Entity shall
enter into an Indemnification Agreement substantially in the form of
EXHIBIT E
hereto with each member of
the Board of Directors of the Converted Entity and each executive officer of the Converted Entity.
14.
Copy
of Plan of Conversion
. After the Conversion, a copy of this Plan will be kept on file at the offices of the Converted
Entity, and any stockholder of the Converted Entity (or former stockholder of the Converting Entity) may request a copy of this
Plan at no charge at any time.
15.
Termination
. At
any time prior to the Effective Time, this Plan may be terminated and the transactions contemplated hereby may be abandoned by
action of the Board of Directors of the Converting Entity if, in the opinion of the Board of Directors of the Converting Entity,
such action would be in the best interests of the Converting Entity and its stockholders. In the event of termination of this
Plan, this Plan shall become void and of no further force or effect.
16.
Third
Party Beneficiaries
. This Plan shall not confer any rights or remedies upon any person other than as expressly
provided herein.
17.
Severability
. Whenever
possible, each provision of this Plan will be interpreted in such manner as to be effective and valid under applicable law, but
if any provision of this Plan is held to be prohibited by or invalid under applicable law, such provision will be ineffective
only to the extent of such prohibition or invalidity, without invalidating the remainder of this Plan.
I
n
Witness
Whereof
,
the undersigned hereby causes this Plan to be duly executed as of the date hereof.
|
|
|
|
|
|
GLYECO,
INC.,
|
|
|
a
Nevada corporation
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
Ian Rhodes
Title:
Chief Executive Officer
|
APPENDIX
D
|
|
|
|
|
|
|
|
BARBARA
K. CEGAVSKE
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775)
684-5708
Website:
www.nvsos.gov
|
|
|
|
|
|
|
|
|
|
|
Articles
of Conversion
(PURSUANT
TO NRS 92A.205)
Page
1
|
|
|
|
|
|
|
|
|
|
USE
BLACK INK ONLY - DO NOT HIGHLIGHT
|
|
|
ABOVE
SPACE IS FOR OFFICE USE ONLY
|
|
Articles
of Conversion
(Pursuant
to NRS 92A.205)
|
|
1.
|
Name
and jurisdiction of organization of constituent entity and resulting entity:
|
|
|
|
|
|
|
|
|
|
GlyEco,
Inc.
|
|
|
|
|
|
Name
of constituent entity
|
|
|
|
|
|
|
|
|
|
Nevada
|
|
Corporation
|
|
|
|
Jurisdiction
|
|
Entity
type *
|
|
|
|
|
|
|
|
and,
|
|
|
|
|
|
GlyEco,
Inc.
|
|
|
|
|
|
Name
of resulting entity
|
|
|
|
|
|
|
|
|
|
Delaware
|
|
Corporation
|
|
|
|
Jurisdiction
|
|
Entity
type *
|
|
|
|
|
|
|
|
|
2.
|
A
plan of conversion has been adopted by the constituent entity in compliance with the law of the jurisdiction governing the
constituent entity.
|
|
|
3.
|
Location
of plan of conversion: (check one)
|
|
|
☐
|
The
entire plan of conversion is attached to these articles.
|
|
|
☑
|
The
complete executed plan of conversion is on file at the registered office or principal place of business of the resulting entity.
|
|
|
☐
|
The
complete executed plan of conversion for the resulting domestic limited
partnership is
on file at the records
office required by NRS 88.330.
|
*
corporation, limited partnership, limited-liability limited partnership, limited-liability company or business trust.
|
|
|
|
|
This
form must be accompanied by appropriate fees.
|
|
Nevada
Secretary of State 92A Conversion Page 1
|
|
|
|
Revised:
1-5-15
|
|
|
|
|
|
|
|
|
|
BARBARA
K. CEGAVSKE
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775)
684-5708
Website:
www.nvsos.gov
|
|
|
|
|
|
|
|
|
|
|
Articles
of Conversion
(PURSUANT
TO NRS 92A.205)
Page
2
|
|
|
|
|
|
|
|
|
|
USE
BLACK INK ONLY - DO NOT HIGHLIGHT
|
|
|
ABOVE
SPACE IS FOR OFFICE USE ONLY
|
|
|
|
|
|
|
|
|
|
4.
|
Forwarding
address where copies of process may be sent by the Secretary of State of Nevada (if a foreign entity is the resulting entity
in the conversion):
|
|
|
5.
|
Effective
date and time of filing: (optional) (must not be later than 90 days after the certificate is filed)
|
|
|
6.
|
Signatures
- must be signed by:
|
1
.
If constituent entity is a Nevada entity: an officer of each Nevada corporation; all general partners of each Nevada limited partnership
or limited-liability limited partnership; a manager of each Nevada limited-liability company with managers or one member if there
are no managers; a trustee of each Nevada business trust; a managing partner of a Nevada limited-liability partnership (a.k.a.
general partnership governed by NRS chapter 87).
2.
If constituent entity is a foreign entity: must be signed by the constituent entity in the manner provided by the law governing
it.
GlyEco,
Inc.
Name
of
constituent
entity
*
Pursuant to NRS 92A.205(4) if the conversion takes effect on a later date specified in the articles of conversion pursuant to
NRS 92A.240, the constituent document filed with the Secretary of State pursuant to paragraph (b) subsection 1 must state
the name and the jurisdiction of the constituent entity and that the existence of the resulting entity does not begin until the
later date.
This
statement must be included within the resulting entity’s articles.
FILING
FEE: $350.00
IMPORTANT:
Failure
to include any of the above information and submit with the proper fees may cause this filing to be rejected.
|
|
|
|
|
|
|
Nevada
Secretary of State 92A Conversion Page 2
|
|
This
form must be accompanied by appropriate fees.
|
|
Revised:
1-5-15
|
APPENDIX E
STATE
OF DELAWARE
CERTIFICATE
OF CONVERSION
FROM
A NON-DELAWARE CORPORATION
TO
A DELAWARE CORPORATION
PURSUANT
TO SECTION 265 OF THE
DELAWARE
GENERAL CORPORATION LAW
|
1.
|
The
jurisdiction where the Non-Delaware Corporation first formed is the State of Nevada.
|
|
2.
|
The
jurisdiction immediately prior to filing this Certificate is the State of Nevada.
|
|
3.
|
The
date the Non-Delaware Corporation first formed is October 21, 2011.
|
|
4.
|
The
name of the Non-Delaware Corporation immediately prior to filing this Certificate is GlyEco, Inc.
|
|
5.
|
The
name of the Corporation as set forth in the Certificate of Incorporation is GlyEco, Inc.
|
I
n
Witness
Whereof
,
the undersigned being duly authorized to sign on behalf of the converting Non-Delaware Corporation has executed this Certificate
on , 2017.
|
|
|
|
|
|
|
GLYECO,
INC.,
a
Nevada corporation
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
Ian Rhodes
Title:
Chief Executive Officer
|
APPENDIX
F
CERTIFICATE
OF INCORPORATION
OF
GLYECO,
INC.
ARTICLE
I
The
name of the corporation is GlyEco, Inc. (the “
Corporation
”).
ARTICLE
II
The
address of the registered offices of the Corporation in the State of Delaware is [__________________]. The name of its registered
agent in charge thereof is [_________________].
ARTICLE
III
The
purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as the same may be amended and supplemented from time to time (the “
DGCL
”).
ARTICLE
IV
A. The
total number of shares which the Corporation shall have authority to issue is [___________] shares of capital stock, of which
[___________] shares shall be designated Common Stock, $0.0001 par value per share (“
Common Stock
”),
and [___________] shall be designated Preferred Stock, $0.0001 par value per share (“
Preferred Stock
”).
1.
Common
Stock
. All preferences, voting powers, relative, participating, optional or other special rights and privileges, and qualifications,
limitations, or restrictions of the Common Stock are expressly made subject and subordinate to those that may be fixed with respect
to any shares of the Preferred Stock. Except as otherwise required by law or this Certificate of Incorporation, each share of
Common Stock shall entitle the holder thereof to one (1) vote, in person or by proxy, on each matter submitted to a vote
of stockholders of the Corporation. Subject to the preferential rights of the Preferred Stock, the holders of shares of Common
Stock shall be entitled to receive, when and if declared by the Board of Directors, out of the assets of the Corporation which
are by law available therefor, dividends payable either in cash, in property or in shares of capital stock. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation, after distribution in full of the preferential amounts,
if any, to be distributed to the holders of shares of the Preferred Stock, holders of Common Stock shall be entitled, unless otherwise
provided by law or this Certificate of Incorporation, to receive all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively.
2.
Preferred
Stock
. The Preferred Stock may be issued from time to time in one or more series, as determined by the Board of
Directors of the Corporation (the “
Board of Directors
”). The Board of Directors is expressly
authorized to provide for the issue, in one or more series, of all or any of the remaining shares of Preferred Stock and, in
the resolution or resolutions providing for such issue, to establish for each such series the number of its shares, the
voting powers, full or limited, of the shares of such series, or that such shares shall have no voting powers, and the
designations, preferences and relative, participating, optional or other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof. The Board of Directors is further expressly authorized to increase or
decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the
number of which was fixed by it, subsequent to the issuance of shares of such series then outstanding, subject to the powers,
preferences and rights, and the qualifications, limitations and restrictions thereof stated in the Certificate of
Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the
number of shares of any series is so decreased, then the shares constituting such decrease shall resume the status which they
had prior to the adoption of the resolution originally fixing the number of shares of such series.
ARTICLE
V
A. The
business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws of the Corporation.
The members of the Board of Directors shall be elected at each annual meeting of stockholders to hold office until the next annual
meeting. Directors need not be stockholders of the Corporation. Each director, including a director elected or appointed to fill
a vacancy, shall hold office until the expiration of the term for which elected or appointed and until a successor has been elected
and qualified, or until his or her death, resignation or removal; except that if any such election shall not be so held, such
election shall take place at a stockholders’ meeting called in accordance with the DGCL.
B. Notwithstanding
the foregoing provisions of this Article V, each director shall serve until his or her successor is duly elected and qualified
or until his or her death, resignation, or removal.
C. One
or more members of the Board of Directors (including the entire Board of Directors) may be removed at any time with or without
cause by the holders of a majority of the shares then entitled to vote generally in the election of directors. Notwithstanding
the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall
have the right, voting separately as a class, to elect one or more directors of this corporation, the provisions of Clause C of
this Article V shall not apply with respect to the director or directors elected by such holders of Preferred Stock.
D. Subject
to the rights of the holders of any series of Preferred Stock then outstanding, vacancies occurring on the Board of Directors
for any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled
only by the vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining
director. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office for
the remainder of the full term of the director for which the vacancy was created or occurred and until his or her successor shall
have been duly elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise
required by law, or by this Certificate of Incorporation or the Bylaws of the Corporation, may exercise the powers of the full
Board of Directors until the vacancy is filled.
ARTICLE
VI
A. In
furtherance of and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly
empowered to adopt, amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of the Corporation
by the Board of Directors shall require the approval of a majority of the directors then in office. The stockholders shall also
have power to adopt, amend or repeal the Bylaws 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, such
action by stockholders shall require the affirmative vote of the holders of at least 66 2/3% 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.
B. The
directors of the Corporation need not be elected by written ballot unless the Bylaws of the Corporation so provide.
ARTICLE
VII
A. No
action shall be taken by the stockholders of the Corporation except at an annual or special meeting of the stockholders called
in accordance with the Bylaws of the Corporation, and no action shall be taken by the stockholders by written consent.
B. 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 Bylaws of the Corporation.
ARTICLE
VIII
A. To
the fullest extent permitted by the DGCL, 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. If the DGCL 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 DGCL, as so amended.
B. Neither
any amendment nor repeal of this Article VIII, nor the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article VIII, shall eliminate or reduce the effect of this Article VIII in respect of any matter occurring, or any cause
of action, suit or proceeding accruing or arising or that, but for this Article VIII, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
ARTICLE
IX
A. Subject
to any provisions in the Bylaws of the Corporation related to indemnification of directors or officers of the Corporation,
the Corporation is authorized to indemnify, to the fullest extent permitted by applicable law, any director, officer,
employee or agent of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“
Proceeding
”) by reason of the fact that he or she is or was a director, officer, employee or agent
of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee
benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with any such Proceeding.
B. A
right to indemnification or to advancement of expenses arising under a provision of this Certificate of Incorporation or the Bylaws
of the Corporation shall not be eliminated or impaired by an amendment to this Certificate of Incorporation or the Bylaws of the
Corporation after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative
action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the
time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
ARTICLE
X
The
Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject
to this reservation. Notwithstanding any other provision of this Certificate of Incorporation, and in addition to any other vote
that may be required by law or the terms of any series of Preferred Stock, the affirmative vote of the holders of at least 66
2/3% of the voting power of all then-outstanding shares of 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, alter or repeal Article V, Article VI, Article
VII, Article VIII, Article IX and Article X.
ARTICLE
XI
The
name and mailing address of the incorporator of the Corporation are as follows:
David
E. Danovitch, Esq.
Robinson
Brog Leinwand Greene Genovese & Gluck P.C.
875
3
rd
Avenue, 9
th
Floor
New
York, NY 10022
*
* * *
I,
The Undersigned
,
for the purpose of forming a corporation under the
laws of the State of Delaware, do make, file and record this Certificate of Incorporation, and do certify that the facts herein
stated are true, and I have accordingly hereunto set my hand this day of ,
2017.
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[David
E. Danovitch], Incorporator
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APPENDIX
G
BYLAWS
OF
GLYECO,
INC.
a
Delaware corporation
SECTION
1. OFFICES
The
principal office of GlyEco, Inc., a Delaware corporation (“
Corporation
”), shall be located at the principal
place of business or such other place as the Board of Directors (the “
Board
”) may designate. The Corporation
may have such other offices, either within or without the State of Delaware, as the Board may designate or as the business of
the Corporation may require from time to time.
SECTION
2. STOCKHOLDERS
2.1
Annual Meeting
(a)
The annual meeting of the stockholders shall be held on such date and at such time as shall be fixed by resolution of the Board,
at the principal office of the Corporation, or such other place as fixed by the Board, for the purpose of electing directors and
transacting such other business as may properly come before that meeting;
provided
,
however
, that the
Board may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by Section 211 of the General Corporation Law of the State of Delaware (the “
DGCL
”).
Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders may be made
at an annual meeting of stockholders: (i) pursuant to the Corporation’s notice of meeting of stockholders (with respect
to business other than nominations); (ii) brought specifically by or at the direction of the Board; or (iii) by any
stockholder of the Corporation who was a stockholder of record at the time of giving the stockholder’s notice provided for
in Section 2.1(b) , who is entitled to vote at the meeting and who complied with the notice procedures set forth in this
Section 2.1. For the avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to make nominations
and submit other business (other than matters properly included in the Corporation’s notice of meeting of stockholders and
proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder
(the “
1934 Act
”)) before an annual meeting of stockholders.
(b)
At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under
Delaware law and as shall have been properly brought before the meeting.
(i)
For nominations for the election to the Board to be properly brought before an annual meeting by a stockholder pursuant to clause
(iii) of Section 2.1(a) the stockholder must deliver written notice to the Secretary at the principal executive offices
of the Corporation on a timely basis as set forth in Section 2.1(b)(iii) and must update and supplement such written notice
on a timely basis as set forth in Section 2.1(c). Such stockholder’s notice shall set forth: (A) as to each nominee
such stockholder proposes to nominate at the meeting: (1) the name, age, business address and residence address of such nominee,
(2) the principal occupation or employment of such nominee, (3) the class and number of shares of each class of capital
stock of the Corporation which are, directly or indirectly, owned of record and beneficially by such nominee, (4) the date
or dates on which such shares were acquired and the investment intent of such acquisition, and (5) such other information
concerning such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election of such
nominee as a director in an election contest (even if an election contest is not involved), or that is otherwise required to be
disclosed pursuant to Section 14 of the 1934 Act and the rules and regulations promulgated thereunder (including such person’s
written consent to being named as a nominee and to serving as a director if elected); and (B) the information required by
Section 2.1(b)(iv). The Corporation may require any proposed nominee to furnish such other information as it may reasonably
require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could
be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such proposed nominee.
(ii)
Other than proposals sought to be included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act,
for business other than nominations for the election to the Board to be properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of Section 2.1(a), the stockholder must deliver written notice to the Secretary at the principal
executive offices of the Corporation on a timely basis as set forth in Section 2.1(b)(iii), and must update and supplement
such written notice on a timely basis as set forth in Section 2.1(c). Such stockholder’s notice shall set forth: (A) as
to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated
benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the Corporation’s
capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any
Proponent; and (B) the information required by Section 2.1(b)(iv).
(iii)
To be timely, the written notice required by Section 2.1(b)(i) or 2.1(b)(ii) must be received by the Secretary of the Corporation
at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90
th
) day
nor earlier than the close of business on the one hundred twentieth (120
th
) day prior to the first anniversary
of the preceding year’s annual meeting;
provided, however
, that, subject to the last sentence of this Section 2.1(b)(iii),
in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than
thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely
must be so received by the Secretary of the Corporation not earlier than the close of business on the one hundred twentieth (120
th
) day
prior to such annual meeting and not later than the close of business on the later of the ninetieth (90
th
) day
prior to such annual meeting or the tenth (10
th
) day following the day on which public announcement of the date
of such meeting is first made. In no event shall an adjournment or a postponement of an annual meeting for which notice has been
given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice
as described above.
(iv)
The written notice required by Section 2.1(b)(i) or 2.1(b)(ii) shall also set forth, as of the date of the notice and
as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made
(each, a “
Proponent
” and collectively, the “
Proponents
”): (A) the
name and address of each Proponent, as they appear on the Corporation’s books; (B) the class, series and number of
shares of the Corporation that are, directly or indirectly, owned beneficially and of record by each Proponent; (C) a
description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or
proposal between or among any Proponent and any of its affiliates or associates, and any others (including their names)
acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a
representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the
Corporation entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to nominate the person
or persons specified in the notice (with respect to a notice under Section 2.1(b)(i)) or to propose the business that is
specified in the notice (with respect to a notice under Section 2.1(b)(ii)); (E) a representation as to whether the
Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of the
Corporation’s voting shares to elect such nominee or nominees (with respect to a notice under
Section 2.1(b)(i)) or to carry such proposal (with respect to a notice under Section 2.1(b)(ii)); (F) to the
extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such
stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent
during the previous twelve (12) month period, including the date of the transactions and the class, series and number of
securities involved in, and the material economic terms of, such Derivative Transactions.
For
purposes of Sections 2.1 and 2.2, a “
Derivative Transaction
” means any agreement, arrangement, interest
or understanding entered into by, or on behalf or for the benefit of, any Proponent or any of its affiliates or associates, whether
record or beneficial:
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(w)
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the
value of which is derived in whole or in part from the value of any class or series of shares or other securities of the Corporation,
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(x)
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which
otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities
of the Corporation,
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(y)
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the
effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or
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(z)
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which
provides the right to vote or increase or decrease the voting power of such Proponent, or any of its affiliates or associates,
with respect to any securities of the Corporation, which agreement, arrangement, interest or understanding may include, without
limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position,
profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares
(whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate
interest of such Proponent in the securities of the Corporation held by any general or limited partnership, or any limited
liability company, of which such Proponent is, directly or indirectly, a general partner or managing member.
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(c)
A stockholder providing written notice required by Section 2.1(b)(i) or (ii) shall update and supplement such
notice in writing, if necessary, so that the information provided or required to be provided in such notice is true and
correct in all material respects as of (i) the record date for the determination of stockholders entitled to notice of
the meeting, and (ii) the date that is ten (10) business days prior to the meeting and, in the event of any
adjournment or postponement thereof, five (5) business days prior to such adjourned or postponed meeting. In the case of
an update and supplement pursuant to clause (i) of this Section 2.1(c), such update and supplement shall be
received by the Secretary of the Corporation at the principal executive offices of the Corporation not later than five
(5) business days after the record date for the meeting. In the case of an update and supplement pursuant to clause
(ii) of this Section 2.1(c), such update and supplement shall be received by the Secretary at the principal
executive offices of the Corporation not later than two (2) business days prior to the date for the meeting, and, in the
event of any adjournment or postponement thereof, two (2) business days prior to such adjourned or postponed
meeting.
(d)
Notwithstanding anything in Section 2.1(b)(iii) to the contrary, in the event that the number of directors of the Board is
increased and there is no public announcement of the appointment of a director, or, if no appointment was made, of the vacancy,
made by the Corporation at least ten (10) days before the last day a stockholder may deliver a notice of nomination in accordance
with Section 2.1(b)(iii), a stockholder’s notice required by this Section 2.1 and which complies with the requirements
in Section 2.1(b)(i), other than the timing requirements in Section 2.1(b)(iii), shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary of the
Corporation at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the Corporation.
(e)
A person shall not be eligible for election or re-election as a director unless the person is nominated either in accordance with
clause (ii) of Section 2.1(a), or in accordance with clause (iii) of Section 2.1(a). Except as otherwise required
by law, the Chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made, or proposed, as the case may be, in accordance with the procedures set forth in these
Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, or the Proponent does not act in accordance
with the representations in Sections 2.1(b)(iv)(D) and 2.1(b)(iv)(E), to declare that such proposal or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded, notwithstanding that proxies in respect of such nominations
or such business may have been solicited or received.
(f)
Notwithstanding the foregoing provisions of this Section 2.1, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholders’ meeting, a stockholder must also comply with all applicable
requirements of the 1934 Act and the rules and regulations thereunder. Nothing in these Bylaws shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the
1934 Act;
provided
,
however
, that any references in these Bylaws to the 1934 Act or the rules and regulations
thereunder are not intended to and shall not limit the requirements applicable to proposals and/or nominations to be considered
pursuant to Section 2.1(a)(iii).
(g)
For purposes of Sections 2.1 and 2.2,
(i)
“
public announcement
” shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act; and
(ii)
“
affiliates
” and “
associates
” shall have the meanings set forth in Rule 405
under the Securities Act of 1933, as amended (the “
1933 Act
”).
2.2 Special
Meetings
(a)
Special meetings of the stockholders of the Corporation may be called, for any purpose as is a proper matter for stockholder action
under Delaware law, by (i) the Chairperson of the Board, (ii) the Chief Executive Officer, or (iii) the Board pursuant
to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented to the Board for adoption). A special meeting
may not be called by any other person or persons.
(b)
For a special meeting called pursuant to Section 2.2(a), the Board shall determine the time and place of such special meeting.
Following determination of the time and place of the meeting, the Secretary shall cause a notice of meeting to be given to the
stockholders entitled to vote, in accordance with the provisions of Section 2.4. No business may be transacted at a special
meeting otherwise than as specified in the notice of meeting.
(c)
Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be
elected (i) by or at the direction of the Board, or (ii) by any stockholder who is a stockholder of record at the time
of giving notice provided for in this paragraph, who shall be entitled to vote at the meeting and who delivers written notice
to the Secretary of the Corporation setting forth the information required by Section 2.1(b)(i). In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder of
record may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s
notice of meeting, if written notice setting forth the information required by Section 2.1(b)(i) shall be received by the
Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the
later of the ninetieth (90th) day prior to such meeting or the tenth (10th) day following the day on which public announcement
is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. The
stockholder shall also update and supplement such information as required under Section 2.1(c). In no event shall an adjournment
or a postponement of a special meeting for which notice has been given, or the public announcement thereof has been made, commence
a new time period for the giving of a stockholder’s notice as described above.
(d)
Notwithstanding the foregoing provisions of this Section 2.2, a stockholder must also comply with all applicable requirements
of the 1934 Act and the rules and regulations thereunder with respect to matters set forth in this Section 2.2. Nothing in
these Bylaws shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to Rule 14a-8 under the 1934 Act;
provided
,
however
, that any references in these
Bylaws to the 1934 Act or the rules and regulations thereunder are not intended to and shall not limit the requirements applicable
to nominations for the election to the Board and/or proposals of other business to be considered pursuant to Section 2.2(c).
2.3 Place
of Meeting
All
meetings shall be held at the principal office of the Corporation, or at such other place as designated by the Board, either within
or without the State of Delaware.
2.4 Notice
of Meeting
(a)
The Corporation shall cause to be delivered to each stockholder entitled to notice of, or to vote at, an annual or special meeting
of stockholders, either personally or by mail, not less than ten (10) days nor more than sixty (60) days before that
meeting, written notice stating the date, time and place of that meeting, the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting,
the purpose or purposes for which that meeting is called.
(b)
Notice to a stockholder of an annual or special stockholders’ meeting shall be in writing. Such notice, if in comprehensible
form, is effective (i) when mailed, if it is deposited in the United States mail, postage pre-paid, and is correctly addressed
to that stockholder’s address as specified in the Corporation’s then current record of stockholders, or (ii) when
received by that stockholder, if it is delivered by electronic transmission, facsimile transmission or private courier.
(c)
If an annual or special stockholders’ meeting is adjourned to a different date, time, or place, notice of the new date,
time, or place shall not be required if the new date, time, or place is announced at that meeting before adjournment, unless a
new record date for the adjourned meeting is, or must be, fixed pursuant to (i) Section 2.6, or (ii) the DGCL.
2.5 Waiver
of Notice
(a)
Whenever any notice is required to be given to any stockholder pursuant to the provisions of these Bylaws, the Certificate of
Incorporation or the DGCL, a waiver thereof in writing, signed by the person or persons entitled to such notice or by electronic
transmission by such person, whether before or after such meeting, and delivered to the Corporation for inclusion in the minutes
for filing with the corporate records, shall be deemed equivalent to the giving of such notice.
(b)
The attendance of a stockholder at a meeting in person, by remote communication or, if applicable, by proxy shall be a waiver
of each objection to lack of, or defect in, notice of such meeting or of consideration of a particular matter at that meeting,
unless that stockholder, at the beginning of that meeting or prior to consideration of such matter, objects to holding that meeting,
transacting business at that meeting, or considering the matter when presented at that meeting.
2.6 Fixing
of Record Date for Determining Stockholders
For
the purpose of determining stockholders entitled to notice of, or to vote at, any meeting of stockholders, or any adjournment
thereof, or stockholders entitled to receive payment of any dividend, or to make a determination of stockholders for any other
purpose, the Board may fix in advance a date as the record date for any such determination. Such record date shall be not more
than sixty (60) days nor less than ten (10) days prior to the date of any such meeting nor more than sixty (60) days
before any other action to which the record date relates. If no record date is fixed for the determination of stockholders entitled
to notice of, or to vote at, a meeting, or to receive payment of a dividend, the record date shall be the close of business on
the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held. Such determination shall apply to any adjournment of that meeting;
provided
,
however
,
that the Board may fix a new record date for the adjourned meeting, and in such case shall also fix as the record date for stockholders
entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled
to vote in accordance with Section 213 of the DGCL and this Section 2.6 at the adjourned meeting.
2.7 Stockholders’
List
At
least ten (10) days before every meeting of stockholders, a complete alphabetical list of the stockholders entitled to notice
of that meeting shall be made, arranged by voting group, and within each voting group by class or series, with the address of
and number of shares held by each stockholder;
provided
,
however
, if the record date for determining the
stockholders entitled to vote is less than ten (10) days before the meeting date, the list will reflect the stockholders
entitled to vote as of the tenth (10th) day before the meeting. If the meeting is to be held at a place, then the list shall
be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder
who is present. If the meeting is held solely by means of remote communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required
to access such list shall be provided with the notice of the meeting. Such list shall presumptively determine the identity of
the stockholders entitled to vote at the meeting and then number of shares held by each of them.
2.8 Quorum
The
holders of a majority of the voting power of the capital stock issued and outstanding and entitled to vote, represented in person
or by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders. If a quorum is not present
for a matter to be acted upon, then either (a) the Chairperson of the meeting, or (b) a majority of the voting power
of the stockholders entitled to vote at that meeting may adjourn that meeting from time to time. If the necessary quorum is present
or represented at a reconvened meeting following such an adjournment, any business may be transacted that might have been transacted
at the meeting as originally called.
2.9 Manner
of Acting
If
a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action, unless the affirmative vote of a greater number
is required by these Bylaws, the Certificate of Incorporation or the DGCL.
2.10 Proxies
A
stockholder may vote by proxy executed in writing by that stockholder or by his or her attorney-in-fact. Such proxy shall be effective
when received by the Secretary of the Corporation or other officer or agent authorized to tabulate votes at the meeting, but no
such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. All proxies
must be filed with the Secretary of the Corporation at the beginning of each meeting in order to be counted in any vote at the
meeting. Subject to the limitation set forth in the last clause of the second sentence of this Section 2.10, a duly executed
proxy that does not state that it is irrevocable shall continue in full force and effect unless (a) revoked by the person
executing it, before the vote pursuant to that proxy, by a writing delivered to the Corporation stating that the proxy is revoked
or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing the proxy, or
(b) written notice of the death or incapacity of the maker of that proxy is received by the Corporation before the vote pursuant
to that proxy is counted.
2.11 Voting
of Shares
Each
outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of stockholders.
2.12 Voting
for Directors
Each
stockholder may vote, in person or by proxy, the number of shares owned by such stockholder that are entitled to vote at an election
of directors, for as many persons as there are directors to be elected and for whose election such shares have a right to vote.
Unless otherwise provided in the Certificate of Incorporation, directors are elected by a plurality of the votes cast by shares
present in person or represented by proxy at the meeting and entitled to vote in the election at a meeting at which a quorum is
present.
2.13 Voting
of Shares by Corporation
The
Chairperson of the Board, the President, any vice president, the treasurer, the Secretary or assistant Secretary of the Corporation,
or any other person authorized by the Board or the president or a vice president, is authorized to vote, represent, and exercise
on behalf of the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the
name of the Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized
to do so by proxy or power of attorney duly executed by such person having the authority.
2.14 Adjournment
And Notice Of Adjourned Meetings
Any
meeting of stockholders, whether annual or special, may be adjourned from time to time either by the Chairperson of the meeting
or by the vote of a majority of the shares present in person, by remote communication, if applicable, or represented by proxy
at the meeting. When a meeting is adjourned to another time or place, if any, notice need not be given of the adjourned meeting
if the date, time and place, if any, thereof and the means of remote communications (if any) by which the stockholders and proxy
holders may be deemed present in person and vote at such adjourned meeting, are announced at the meeting at which the adjournment
is taken;
provided
,
however
, that if the adjournment is for more than 30 days or a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each stockholder of record entitled to vote
at the meeting. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original
meeting.
2.15 Action
Without Meeting
No
action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these
Bylaws, and no action shall be taken by the stockholders by written consent or by electronic transmission.
2.16 Organization
(a)
At every meeting of stockholders, the Chairperson of the Board, or, if a Chairperson has not been appointed or is absent, the
president, or, if the president is absent, a Chairperson of the meeting chosen by a majority in interest of the stockholders entitled
to vote, present in person or by proxy, shall act as Chairperson. The secretary, or another person directed to do so by the president,
shall act as secretary of the meeting.
(b)
The Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary,
appropriate or convenient. Subject to such rules and regulations of the Board, if any, the Chairperson of the meeting shall have
the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such
Chairperson, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing
an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those
present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized and
constituted proxies and such other persons as the Chairperson shall permit, restrictions on entry to the meeting after the time
fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of
the opening and closing of the polls for balloting on matters which are to be voted on by ballot. The date and time of the opening
and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
Unless and to the extent determined by the Board or the Chairperson of the meeting, meetings of stockholders shall not be required
to be held in accordance with rules of parliamentary procedure.
2.17 Inspectors
of Election
The
Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting
and make a written report thereof. The Corporation may designate one or more persons to act as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge
of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according
to the best of his or her ability.
Such
inspectors shall:
|
|
(a)
|
determine
the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence
of a quorum, and the authenticity, validity, and effect of proxies;
|
|
|
(b)
|
receive
votes, ballots or consents;
|
|
|
(c)
|
hear
and determine all challenges and questions in any way arising in connection with the right to vote;
|
|
|
(d)
|
count
and tabulate all votes or consents;
|
|
|
(e)
|
determine
when the polls shall close;
|
|
|
(f)
|
determine
the result; and
|
|
|
(g)
|
do
any other acts that may be proper to conduct the election or vote with fairness to all stockholders.
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SECTION
3. BOARD OF DIRECTORS
3.1 General
Powers
The
business and affairs of the Corporation shall be managed by the Board, except as may be otherwise provided in these Bylaws, the
Certificate of Incorporation or the DGCL.
3.2 Number,
Tenure and Qualifications
The
authorized number of directors shall be determined from time to time by resolution of the Board;
provided
that
the Board shall consist of at least one (1) member. No reduction of the authorized number of directors shall have the effect
of removing any director before that director’s term of office expires. The terms of the directors expire at the next annual
stockholder’s meeting following their election. Despite the expiration of a director’s term, however, the director
shall continue to serve until such director’s successor is elected and qualifies. Directors need not be stockholders unless
so required by the Certificate of Incorporation.
3.3 Annual
and Regular Meetings
An
annual meeting of the Board shall be held without additional notice immediately after and at the same place as the annual meeting
of stockholders.
By
resolution, the Board, or any committee thereof, may specify the time and place for holding regular meetings thereof, either within
or outside the State of Delaware, without notice other than such resolution.
3.4 Special
Meetings
Special
meetings of the Board or any committee designated by the Board may be called by or at the request of the Chairperson of the Board,
or the President or any two directors and, in the case of any special meeting of any committee designated by the Board, by the
Chairperson thereof. The person or persons authorized to call special meetings may fix any place either within or without the
State of Delaware as the place for holding any special Board or committee meeting called by them.
3.5 Meetings
by Telecommunications
Members
of the Board or any committee designated by the Board may participate in a meeting of the Board or such committee by use of any
means of telecommunications equipment pursuant to which all persons participating may simultaneously hear each other during such
meeting. Participation by such method shall be deemed presence in person at such meeting.
3.6 Notice
of Special Meetings
Notice
of a special Board or committee meeting specifying the date, time and place of such meeting shall be given to a director in writing,
by electronic transmission or orally by telephone or in person as specified below. Neither the business to be transacted at, nor
the purpose of, any special meeting need be specified in the notice of such meeting.
3.6.1 Personal
Delivery
If
delivery is by personal service, the notice shall be effective if delivered at the address specified on the records of the Corporation
at least 24 hours before the date and time of the meeting.
3.6.2 Delivery
by Mail
If
notice is delivered by mail, the notice shall be deemed effective if deposited in the official government mail at least five (5) days
before the date and time of the meeting properly addressed to a director at his or her address specified on the records of the
Corporation with postage prepaid.
3.6.3 Oral
Notice
If
notice is delivered orally, by telephone or in person, the notice shall be effective if personally given to a director at least
24 hours before the date and time of the meeting.
3.6.4 Notice
by Facsimile Transmission
If
notice is delivered by facsimile transmission, the notice shall be deemed effective if the content thereof is transmitted to the
office of a director, at the facsimile number specified on the records of the Corporation, at least 24 hours before the date and
time of the meeting, and receipt is either confirmed by confirming transmission equipment or acknowledged by the receiving office.
3.6.5 Notice
by Private Courier
If
notice is delivered by private courier, the notice shall be deemed effective if delivered to the courier, properly addressed and
prepaid, by such time that the courier guarantees delivery at least 24 hours before the date and time of the meeting.
3.6.6 Notice
by Other Electronic Means
If
notice is delivered by electronic mail or other electronic means, the notice shall be delivered at least 24 hours before the date
and time of the meeting.
3.7 Waiver
of Notice
3.7.1 Written
Waiver
Whenever
any notice is required to be given to any director pursuant to the provisions of these Bylaws, the Certificate of Incorporation
or the DGCL, a waiver thereof in writing, executed at any time, specifying the meeting for which notice is waived, signed by the
person or persons entitled to such notice, and filed with the minutes or corporate records, shall be deemed equivalent to the
giving of such notice.
Waiver
of notice by electronic transmission shall be the equivalent of an executed written waiver and may be delivered at any time before
or after the meeting.
3.7.2 Waiver
by Attendance
The
attendance of a director at a Board or committee meeting shall constitute a waiver of notice of such meeting, unless such director,
at the beginning of the meeting, or promptly upon such director’s arrival, objects to holding the meeting or transacting
any business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
3.8 Quorum
A
majority of the number of directors determined by or in the manner provided by these Bylaws shall constitute a quorum for the
transaction of business at any meeting of the Board.
3.9 Manner
of Acting
The
act of the majority of the directors present at a Board or committee meeting at which there is a quorum shall be the act of the
Board or committee, unless the vote of a greater number is required by these Bylaws, the Certificate of Incorporation or the DGCL.
3.10 Action
by Board of Directors or Committee Without a Meeting
Any
action which could be taken at a meeting of the Board or of any committee appointed by the Board may be taken without a meeting,
if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and such
writing or writings or transmission or transmissions are filed with the minutes of proceedings of the Board or committee. The
action shall be effective when the last signature is placed on the consent, unless the consent specifies an earlier or later date.
Such written consent, which shall have the same effect as a unanimous vote of the directors or such committee, shall be inserted
in the minute book as if it were the minutes of a Board or committee meeting.
3.11 Resignation
Any
director may resign at any time by delivering notice in writing or by electronic transmission to the Chairperson of the Board,
the Board, or to the registered office of the Corporation. Such resignation shall take effect at the time specified in the notice,
or if no time is specified, upon delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board.
3.12 Removal
Subject
to any limitations imposed by the DGCL, one or more members of the Board (including the entire Board) may be removed at any time,
with or without cause, by the affirmative vote of the holders of a majority of the voting power of all the then outstanding shares
of voting stock of the Corporation entitled to vote at an election of directors. No reduction of the authorized number of directors
shall have the effect of removing any director prior to the expiration of such director’s term of office.
3.13 Vacancies
Any
vacancy occurring on the Board, including a vacancy resulting from an increase in the number of directors, may be filled by the
stockholders, by the Board, by the affirmative vote of a majority of the remaining directors though less than a quorum of the
Board, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of his or
her predecessor in office; except that the term of a director elected by the Board to fill a vacancy expires at the next stockholders’
meeting at which directors are elected. Any directorship to be filled by reason of an increase in the number of directors may
be filled by the affirmative vote of a majority of the number of directors fixed by these Bylaws prior to such increase for a
term of office continuing only until the next election of directors by the stockholders. Any directorship not so filled by the
directors shall be filled by election at the next annual meeting of stockholders or at a special meeting of stockholders called
for that purpose. A vacancy that will occur at a specific later date by reason of a resignation effective at such later date or
otherwise may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.
If
at any time, by reason of death or resignation or other cause, the Corporation should have no directors in office, then any officer
or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like
responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions
of the Certificate of Incorporation or these Bylaws, or may apply to the Court of Chancery for a decree summarily ordering an
election as provided in Section 211 of the DGCL.
If,
at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least 10% of the voting stock at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211
of the DGCL as far as applicable.
3.14 Minutes
The
Board shall keep minutes of its meetings and shall cause them to be recorded in books kept for that purpose.
3.15 Executive
and Other Committees
3.15.1 Creation
of Committees
The
Board, by resolution adopted by a majority of the number of directors fixed in the manner provided by these Bylaws, may
appoint standing or temporary committees, including an Executive Committee, from its own number. The Board may designate one
or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such absent or disqualified member. The Board may
invest such committee(s) with such powers as it may see fit, subject to such conditions as may be prescribed by the Board,
these Bylaws, the Certificate of Incorporation and the DGCL.
3.15.2 Authority
of Committees
Any
such committee, to the extent provided in the resolution of the Board or in these Bylaws, shall have and may exercise all the
powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal
of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to
(a) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors)
expressly required by the DGCL to be submitted to stockholders for approval, or (b) adopt, amend or repeal any Bylaw of the
Corporation.
3.15.3 Quorum
and Manner of Acting
A
majority of the number of directors composing any committee of the Board, as established and fixed by resolution of the Board,
shall constitute a quorum for the transaction of business at any meeting of such committee.
3.15.4 Minutes
of Meetings
All
committees so appointed shall keep regular minutes of their meetings and shall cause them to be recorded in books kept for that
purpose.
3.15.5 Resignation
Any
member of any committee may resign at any time by delivering written notice thereof to the Board, the Chairperson of the Board
or the Corporation. Any such resignation shall take effect at the time specified in the notice, or if no time is specified, upon
delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board.
3.15.6 Removal
The
Board may remove from office any member of any committee elected or appointed by it, but only by the affirmative vote of not less
than a majority of the number of directors fixed by or in the manner provided by these Bylaws.
3.16 Compensation
By
resolution of the Board, directors and committee members may be paid their expenses, if any, of attendance at each Board or committee
meeting, or a fixed sum for attendance at each Board or committee meeting, or a staled salary as a director or a committee member,
or a combination of the foregoing. No such payment shall preclude any director or committee member from serving the Corporation
in any other capacity and receiving compensation therefor.
3.17 Chairperson
of the Board of Directors
If
appointed, the Chairperson of the Board shall perform such duties as shall be assigned to him or her by the Board from time to
time and shall preside over meetings of the Board and stockholders unless an officer is appointed or designated by the Board as
Chairperson of such meeting.
SECTION
4. OFFICERS
4.1 Number
The
officers of the Corporation shall be a President, a Secretary and a Treasurer, or the equivalent thereof, each of whom shall be
appointed by the Board. One or more Vice Presidents and such other officers and assistant officers, including a Chairperson of
the Board, may be appointed by the Board; such officers and assistant officers to hold office for such period, have such authority
and perform such duties as are provided in these Bylaws or as may be provided by resolution of the Board. Any officer may be assigned
by the Board any additional title that the Board deems appropriate. The Board may delegate to any officer or agent the power to
appoint any such subordinate officers or agents and to prescribe their respective terms of office, authority and duties. Any two
or more offices may be held by the same person.
4.2 Appointment
and Term of Office
The
officers of the Corporation shall be appointed by the Board. Unless an officer dies, resigns, or is removed from office, he or
she shall hold office until his or her successor is appointed.
4.3 Resignation
Any
officer may resign at any time by delivering notice in writing or by electronic transmission to the Corporation. Any such resignation
shall take effect at the time specified in the notice, or if no time is specified, upon delivery. Unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board.
4.4 Removal
Subject
to the rights, if any, of an officer or agent under any contract of employment, any officer or agent appointed by the Board may
be removed by the affirmative vote of a majority of directors in office at the time, with or without cause, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of
itself create contract rights.
4.5 Vacancies
A
vacancy in any office because of death, resignation, removal, disqualification, creation of a new office or any other cause may
be filled by the Board for the unexpired portion of the term, or for a new term established by the Board. If a resignation is
made effective at a later date, and the Corporation accepts such future effective date, the Board may fill the pending vacancy
before the effective date, if the Board provides that the successor does not take office until the effective date.
4.6 Chairperson
of the Board of Directors
If
appointed, the position of Chairperson of the Board shall not constitute an officer position of the Corporation, unless specifically
designated as such by the Board. The Chairperson of the Board shall be a Board position as outlined in Section 3.17.
4.7 President
The
President shall be the chief executive officer of the Corporation unless some other officer is so designated by the Board, shall
preside over meetings of the Board and stockholders in the absence of a Chairperson of the Board and, subject to the Board’s
control, shall supervise and control all of the assets, business and affairs of the Corporation. The President shall have authority
to sign deeds, mortgages, bonds, contracts, or other instruments, except when the signing and execution thereof have been expressly
delegated by the Board or by these Bylaws to some other officer or agent of the Corporation, or are required by law to be otherwise
signed or executed by some other officer or in some other manner. In general, the President shall perform all duties incidental
to the office of the President and such other duties as are prescribed by the Board from time to time.
4.8 Vice
President
In
the event of the death of the President or his or her inability to act, the Vice President (or if there is more than one Vice
President, the Vice President who was designated by the Board as the successor to the President, or if no Vice President is so
designated, the Vice President first appointed to such office) shall perform the duties of the President, except as may be limited
by resolution of the Board, with all the powers of and subject to all the restrictions upon the President. Vice Presidents shall
have, to the extent authorized by the President or the Board, the same powers as the President to sign deeds, mortgages, bonds,
contracts or other instruments. Vice Presidents shall perform such other duties as from time to time may be assigned to them by
the President or by the Board.
4.9 Secretary
The
Secretary shall (a) prepare and keep the minutes of meetings of the stockholders and the Board in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required
by law; (c) be responsible for custody of the corporate records and seal of the Corporation; (d) keep registers of the
address of each stockholder and director; (e) have general charge of the stock transfer books of the Corporation; and (f) in
general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him
or her by the President or by the Board. In the absence of the Secretary, an Assistant Secretary may perform the duties of the
Secretary.
4.10 Treasurer
If
required by the Board, the Treasurer shall give a bond for the faithful discharge of his or her duties in such amount and with
such surety or sureties as the Board shall determine. The Treasurer shall have charge and custody of and be responsible for all
funds and securities of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the Corporation in banks, trust companies or other depositories selected
in accordance with the provisions of these Bylaws; and in general perform all of the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her by the President or by the Board. In the absence of the
Treasurer, an Assistant Treasurer may perform the duties of the Treasurer.
4.11 Salaries
The
salaries of the officers shall be fixed from time to time by the Board or by any person or persons to whom the Board has delegated
such authority. No officer shall be prevented from receiving such salary by reason of the fact that he or she is also a Director
of the Corporation.
SECTION
5. CONTRACTS, LOANS,
CHECKS
AND DEPOSITS
5.1 Contracts
The
Board may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument
in the name of and on behalf of the Corporation. Such authority may be general or confined to specific instances.
Unless
so ratified by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority
to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or any amount.
5.2 Loans
to Directors, Officers or Employees
Except
as otherwise prohibited under applicable law, the Corporation may lend money to or guarantee the obligation of a director, officer
or employee of the Corporation if the Board determines that the loan or guarantee may be reasonably expected to benefit the Corporation.
The fact that a loan or guarantee is made in violation of this provision shall not affect the borrower’s liability on the
loan.
5.3 Checks,
Drafts, Etc.
All
checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation
shall be signed by such officer or officers, or agent or agents, of the Corporation and in such manner as is from time to time
determined by resolution of the Board.
SECTION
6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Issuance
of Shares
No
shares of the Corporation shall be issued unless authorized by the Board, which authorization shall include the maximum number
of shares to be issued and the consideration to be received for each share. Before the Corporation issues shares, the Board shall
determine that the consideration received or to be received for such shares is adequate. In the absence of fraud, such determination
by the Board shall be conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares
are validly issued, fully paid and nonassessable.
6.2 Certificates
for Shares
The
shares of the Corporation shall be represented by certificates or shall be uncertificated. Certificates representing shares of
the Corporation, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law and as
shall be determined by the Board. Such certificates shall be signed by, or in the name of the Corporation by the Chairperson of
the Board or the President or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary or any Assistant
Secretary. Any or all of the signatures on the certificate may be a facsimile. The Corporation shall not have power to issue a
certificate in bearer form. All certificates shall be consecutively numbered or otherwise identified.
Notwithstanding
anything to the contrary in these Bylaws, at all times that the Corporation’s stock is listed on a stock exchange, such
shares shall comply with all direct registration system eligibility requirements established by such exchange, including any requirement
that shares of the Corporation’s stock be eligible for issue in book-entry form. All issuances and transfers of shares of
the Corporation’s stock shall be entered on the books of the Corporation with all information necessary to comply with such
direct registration system eligibility requirements, including the name and address of the person to whom the shares are issued,
the number of shares issued and the date of issue.
6.3 Stock
Records
The
stock transfer books shall be kept at the registered office or principal place of business of the Corporation or at the office
of the Corporation’s transfer agent or registrar. The name and address of each person to whom shares are issued, together
with the class and number of shares represented by each stock certificate, if any, and the date of issue thereof, shall be entered
on the stock transfer books of the Corporation. The person in whose name shares stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes, and the Corporation shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
6.4 Restriction
on Transfer
6.4.1 Securities
Laws
A
written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the
Corporation that may be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate
representing such shares or, in the case of uncertificated shares, contained in a notice to the registered owner of such shares,
may be enforced against the holder of such shares or any successor or transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.
6.4.2 Other
Restrictions
In
addition, the front or back of all certificates shall include conspicuous written notice of any further restrictions which may
be imposed on the transferability of such shares.
6.5 Transfer
of Shares
Transfer
of shares of the Corporation shall be made only on the stock transfer books of the Corporation pursuant to authorization or document
of transfer made by the holder of record thereof or by his or her legal representative, who shall furnish proper evidence of authority
to transfer, or by his or her attorney-in-fact authorized by power of attorney duly executed and filed with the Secretary of the
Corporation. In the case of shares of the Corporation represented by certificates, certificates surrendered to the Corporation
for transfer shall be cancelled and no transfer of such shares shall be made until the former certificates for a like number of
shares have been surrendered and cancelled.
6.6 Lost
or Destroyed Certificates
In
the case of shares of the Corporation represented by certificates, where such certificate or certificates are lost, destroyed
or mutilated, a new certificate may be issued therefor upon such terms and indemnity to the Corporation as the Board may prescribe.
6.7
Transfer Agent and Registrar
The
Board may from time to time appoint one or more Transfer Agents and one or more Registrars for the shares of the Corporation,
with such powers and duties as the Board shall determine by resolution.
6.8 Officer,
Transfer Agent or Registrar Ceasing to Act
In
case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
6.9 Fractional
Shares
The
Corporation shall not issue fractional shares.
SECTION
7. BOOKS AND RECORDS
The
Corporation shall keep correct and complete books and records of account, stock transfer books, minutes of the proceedings of
its stockholders and Board and such other records as may be necessary or advisable.
SECTION
8. FISCAL YEAR
The
fiscal year of the Corporation shall be the calendar year;
provided
,
however
, that the Board may select
a different fiscal year by resolution at any time for purposes of federal income taxes, or otherwise.
SECTION
9. SEAL
The
Board may adopt a seal of the Corporation, which will consist of the name of the Corporation and the state of its incorporation.
SECTION
10. INDEMNIFICATION
10.1 Right
to Indemnification of Directors and Officers
Any
person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereafter a “
proceeding
”), by reason of the
fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter
an “
indemnitee
”), shall be indemnified and held harmless by the Corporation to the fullest extent authorized
by the DGCL, as the same exists or may hereafter be amended, (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expense,
liability and loss (including attorney’s fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith,
provided
such person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Such indemnification
shall continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s
heirs, executors and administrators;
provided
,
however
, that, except as provided in Section 10.3
or with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the
Board.
10.2 Right
to Advancement of Expenses
The
right to indemnification conferred in Section 10.1 shall include the right to be paid by the Corporation the expenses incurred
in defending any proceeding for which such right to indemnification is applicable in advance of its final disposition (hereinafter
an “
advancement of expenses
”);
provided
,
however
, that, if the DGCL requires,
an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall
be made only upon delivery to the Corporation of an undertaking (hereinafter an “
undertaking
”), by or
on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal (hereinafter a “
final adjudication
”) that such indemnitee
is not entitled to be indemnified for such expenses under this Section or otherwise.
Notwithstanding
the foregoing, unless such right is acquired other than pursuant to this Section 10, no advance shall be made by the
Corporation to an officer of the Corporation (except by reason of the fact that such officer is or was a director of the
Corporation, in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and promptly made (a) by the Board by a majority vote
of the disinterested directors, even though less than a quorum, or (b) by a committee of disinterested directors
designated by majority vote of the disinterested directors, even though less than a quorum, or (c) if there are no
disinterested directors or the disinterested directors so direct, by independent legal counsel in a written opinion to the
Board, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and
convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to
the best interests of the Corporation.
10.3 Right
of Indemnitee to Bring Suit
The
rights to indemnification and to the advancement of expenses conferred in Sections 10.1 and 10.2 shall be contract rights. If
a claim under Sections 10.1 and 10.2 is not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover
the full amount of the claim. If the indemnitee is successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the indemnitee shall be entitled to
be paid also the expense of prosecuting or defending such suit to the fullest extent permitted by law. In any suit brought by
the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled
to be indemnified, or to such advancement of expenses, under this Section 10 or otherwise shall be on the Corporation.
10.4 Non-Exclusivity
of Rights
The
rights conferred on any person in this Section 10 shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, these Bylaws, agreement, vote of stockholders
or disinterested directors or otherwise.
10.5 Insurance
The
Corporation may purchase and maintain insurance, at its expense, to protect itself and any person who was or is a director, officer,
employee or agent of the Corporation or was or is serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
10.6 Indemnification
of Employees and Agents of the Corporation
The
Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification, and to the advancement
of expenses, to any employee or agent of the Corporation to the fullest extent of the provisions of this Section 10 with
respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
10.7 No
Presumption of Bad Faith
The
termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed
to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that the person
had reasonable cause to believe that the conduct was unlawful.
10.8 Survival
of Rights
The
rights conferred on any person by this Section 10 shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
10.9 Amendments
to Law
For
purposes of this Section 10, the meaning of “
law
” within the phrase “
to the fullest
extent not prohibited by law
” shall include, but not be limited to, the DGCL, as the same exists on the date hereof
or as it may be amended;
provided
,
however
, that in the case of any such amendment, such amendment shall
apply only to the extent that it permits the Corporation to provide broader indemnification rights than the DGCL permitted the
Corporation to provide prior to such amendment.
10.10 Savings
Clause
If
this Section 10 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, the Corporation
shall indemnify each director, officer or other agent to the fullest extent permitted by any applicable portion of this Section 10
that shall not have been invalidated, or by any other applicable law.
10.11 Certain
Definitions
For
the purposes of this Section 10, the following definitions shall apply:
(a)
The term “
proceeding
” shall be broadly construed and shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement and appeal of any threatened, pending or completed action, suit or proceeding, whether
brought in the right of the Corporation or otherwise and whether civil, criminal, administrative or investigative, in which the
director or officer may be or may have been involved as a party or otherwise by reason of the fact that the director or officer
is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise.
(b)
The term “
expenses
” shall be broadly construed and shall include, without limitation, all costs, charges
and expenses (including fees and disbursements of attorneys, accountants and other experts) actually and reasonably incurred by
a director or officer in connection with any proceeding, all expenses of investigations, judicial or administrative proceedings
or appeals, and any expenses of establishing a right to indemnification under these Bylaws, but shall not include amounts paid
in settlement, judgments or fines.
(c)
“
Corporation
” shall mean GlyEco, Inc. and any successor corporation thereof. The term “
corporation
”
shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Section 10 with respect to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
(d)
References to a “
director
”, “
executive officer
”, “
officer
”,
“
employee
” or “
agent
” of the Corporation shall include, without limitation,
situations where such person is serving at the request of the Corporation as, respectively, a director, executive officer, officer,
employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(e)
References to “
other enterprises
” shall include employee benefit plans. References to “
fines
”
shall include any excise taxes assessed on a person with respect to any employee benefit plan. References to “
serving
at the request of the Corporation
” shall include any service as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries. A person who acted in good faith and in a manner the person reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “
not
opposed to the best interests of the Corporation
” as referred to in this Section 10.
SECTION
11. AMENDMENTS
The
Board is expressly empowered to adopt, alter, amend or repeal these Bylaws. Any adoption, alteration, amendment or repeal of these
Bylaws by the Board shall require the approval of a majority of the authorized number of directors. The stockholders also shall
have power to adopt, alter, amend or repeal these Bylaws;
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 the Certificate of Incorporation,
such action by stockholders shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%)
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.
The
foregoing Bylaws were adopted by the Board of Directors of the Corporation on ,
2017.
[___________________]
Secretary
APPENDIX
H
INDEMNITY
AGREEMENT
THIS INDEMNITY AGREEMENT
(this
“
Agreement
”) dated as of
, 20 , is made by and between
GLYECO, INC.,
a
Delaware corporation (the “
Company
”), and
(“
Indemnitee
”).
RECITALS
A.
The
Company desires to attract and retain the services of highly qualified individuals as directors, officers, employees and agents.
B.
The
Company’s bylaws (the “
Bylaws
”) require that the Company indemnify its directors, and empowers the Company
to indemnify its officers, employees and agents, as authorized by the General Corporation Law of the State of Delaware, as amended
(the “
DGCL
”), under which the Company is organized and such Bylaws expressly provide that the indemnification
provided therein is not exclusive and contemplates that the Company may enter into separate agreements with its directors, officers
and other persons to set forth specific indemnification provisions.
C.
Indemnitee
does not regard the protection currently provided by applicable law, the Company’s governing documents and available insurance
as adequate under the present circumstances, and the Company has determined that Indemnitee and other directors, officers, employees
and agents of the Company may not be willing to serve or continue to serve in such capacities without additional protection.
[
D.
The
Company and Indemnitee are parties to that certain Indemnity Agreement, dated on or about [ ]
(the
“Prior Agreement”
), and, subsequent to the parties entering into the Prior Agreement, the Company
reincorporated from the State of Nevada to the State of Delaware; and]
[D/E.]
The
Company desires and has requested Indemnitee to [serve][continue to serve] as a director, officer, employee or agent of the Company,
as the case may be, and has proffered this Agreement to Indemnitee as an additional inducement to serve in such capacity.
[
E./F.
This
Agreement would amend and restate the Prior Agreement, as set forth herein.]
[E./F./G.]
Indemnitee
is willing to serve, or to continue to serve, as a director, officer, employee or agent of the Company, as the case may be, if
Indemnitee is furnished the indemnity provided for herein by the Company.
AGREEMENT
NOW THEREFORE
,
in consideration of the mutual covenants and agreements set forth herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions.
(a) Agent
.
For purposes of this Agreement, the term “agent” of the Company means any person who: (i) is or was a
director, officer, employee or other fiduciary of the Company or a subsidiary of the Company; or (ii) is or was serving
at the request or for the convenience of, or representing the interests of, the Company or a subsidiary of the Company, as a
director, officer, employee or other fiduciary of a foreign or domestic corporation, partnership, joint venture, trust or
other enterprise.
(b) Expenses
.
For purposes of this Agreement, the term “expenses” shall be broadly construed and shall include, without limitation,
all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’, witness,
or other professional fees and related disbursements, and other out-of-pocket costs of whatever nature), actually and reasonably
incurred by Indemnitee in connection with the investigation, defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement, the DGCL or otherwise, and amounts paid in settlement by or on behalf of Indemnitee,
but shall not include any judgments, fines or penalties actually levied against Indemnitee for such individual’s violations
of law. The term “expenses” shall also include reasonable compensation for time spent by Indemnitee for which he is
not compensated by the Company or any subsidiary or third party (i) for any period during which Indemnitee is not an agent,
in the employment of, or providing services for compensation to, the Company or any subsidiary; and (ii) if the rate of compensation
and estimated time involved is approved by the directors of the Company who are not parties to any action with respect to which
expenses are incurred, for Indemnitee while an agent of, employed by, or providing services for compensation to, the Company or
any subsidiary.
(c) Proceedings
.
For purposes of this Agreement, the term “proceeding” shall be broadly construed and shall include, without limitation,
any threatened, pending, or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or
otherwise and whether of a civil, criminal, administrative or investigative nature, and whether formal or informal in any case,
in which Indemnitee was, is or will be involved as a party or otherwise by reason of: (i) the fact that Indemnitee is or
was a director or officer of the Company; (ii) the fact that any action taken by Indemnitee or of any action on Indemnitee’s
part while acting as director, officer, employee or agent of the Company; or (iii) the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, and in any such case described above, whether or not serving in any such capacity at
the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses may be provided
under this Agreement.
(d) Subsidiary
.
For purposes of this Agreement, the term “subsidiary” means any corporation or limited liability company of which
more than 50% of the outstanding voting securities or equity interests are owned, directly or indirectly, by the Company and one
or more of its subsidiaries, and any other corporation, limited liability company, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, employee,
agent or fiduciary.
(e) Independent
Counsel
. For purposes of this Agreement, the term “independent counsel” means a law firm, or a partner (or, if
applicable, member) of such a law firm, that is experienced in matters of corporation law and neither presently is, nor in the
past five (5) years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either
such party, or (ii) any other party to the proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “independent counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.
2. Agreement
to Serve
. Indemnitee will serve, or continue to serve, as a director, officer, employee or agent of the Company or any subsidiary,
as the case may be, faithfully and to the best of his or her ability, at the will of such corporation (or under separate agreement,
if such agreement exists), in the capacity Indemnitee currently serves as an agent of such corporation, so long as Indemnitee
is duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws or other applicable charter
documents of such corporation, or until such time as Indemnitee tenders his or her resignation in writing; provided, however,
that nothing contained in this Agreement is intended as an employment agreement between Indemnitee and the Company or any of its
subsidiaries or to create any right to continued employment of Indemnitee with the Company or any of its subsidiaries in any capacity.
The
Company acknowledges that it has entered into this Agreement and assumes the obligations imposed on it hereby, in addition to
and separate from its obligations to Indemnitee under the Bylaws, to induce Indemnitee to serve, or continue to serve, as a director,
officer, employee or agent of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving
as a director, officer, employee or agent of the Company.
3. Indemnification.
(a) Indemnification
in Third Party Proceedings
. Subject to Section 10 below, the Company shall indemnify Indemnitee to the fullest extent
permitted by the DGCL, as the same may be amended from time to time (but, only to the extent that such amendment permits Indemnitee
to broader indemnification rights than the DGCL permitted prior to adoption of such amendment), if Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any proceeding, for any and all expenses, actually and reasonably incurred
by Indemnitee in connection with the investigation, defense, settlement or appeal of such proceeding.
(b) Indemnification
in Derivative Actions and Direct Actions by the Company
. Subject to Section 10 below, the Company shall indemnify Indemnitee
to the fullest extent permitted by the DGCL, as the same may be amended from time to time (but, only to the extent that such amendment
permits Indemnitee to broader indemnification rights than the DGCL permitted prior to adoption of such amendment), if Indemnitee
is a party to or threatened to be made a party to or otherwise involved in any proceeding by or in the right of the Company to
procure a judgment in its favor, against any and all expenses actually and reasonably incurred by Indemnitee in connection with
the investigation, defense, settlement, or appeal of such proceedings.
4. Indemnification
of Expenses of Successful Party
. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has
been successful on the merits or otherwise in defense of any proceeding or in defense of any claim, issue or matter therein, including
the dismissal of any action without prejudice, the Company shall indemnify Indemnitee against all expenses actually and reasonably
incurred in connection with the investigation, defense or appeal of such proceeding.
5. Partial
Indemnification
. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some
or a portion of any expenses actually and reasonably incurred by Indemnitee in the investigation, defense, settlement or appeal
of a proceeding, but is precluded by applicable law or the specific terms of this Agreement to indemnification for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
6. Advancement
of Expenses
. To the extent not prohibited by law, the Company shall advance the expenses incurred by Indemnitee in connection
with any proceeding, and such advancement shall be made within twenty (20) days after the receipt by the Company of a statement
or statements requesting such advances (which shall include invoices received by Indemnitee in connection with such expenses but,
in the case of invoices in connection with legal services, any references to legal work performed or to expenditures made that
would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with the invoice) and upon request
of the Company, an undertaking to repay the advancement of expenses if and to the extent that it is ultimately determined by a
court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified
by the Company. Advances shall be unsecured, interest free and without regard to Indemnitee’s ability to repay the expenses.
Advances shall include any and all expenses actually and reasonably incurred by Indemnitee pursuing an action to enforce Indemnitee’s
right to indemnification under this Agreement, or otherwise and this right of advancement, including expenses incurred preparing
and forwarding statements to the Company to support the advances claimed. Indemnitee acknowledges that the execution and delivery
of this Agreement shall constitute an undertaking providing that Indemnitee shall, to the fullest extent required by law, repay
the advance if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not
subject to appeal, that Indemnitee is not entitled to be indemnified by the Company. The right to advances under this Section 6
shall continue until final disposition of any proceeding, including any appeal therein. This Section 6 shall not apply to
any claim made by Indemnitee for which indemnity is excluded pursuant to Section 10(b).
7. Notice
and Other Indemnification Procedures.
(a) Notification
of Proceeding
. Indemnitee will notify the Company in writing promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any proceeding or matter which may be subject to indemnification
or advancement of expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company
of any obligation which it may have to Indemnitee under this Agreement or otherwise.
(b) Request
for Indemnification and Indemnification Payments
. Indemnitee shall notify the Company promptly in writing upon receiving notice
of any demand, judgment or other requirement for payment that Indemnitee reasonably believes to be subject to indemnification
under the terms of this Agreement, and shall request payment thereof by the Company. Indemnification payments requested by Indemnitee
under Section 3 hereof shall be made by the Company no later than sixty (60) days after receipt of the written request
of Indemnitee. Claims for advancement of expenses shall be made under the provisions of Section 6 herein.
(c) Application
for Enforcement
. In the event the Company fails to make timely payments as set forth in Sections 6 or 7(b) above, Indemnitee
shall have the right to apply to any court of competent jurisdiction for the purpose of enforcing Indemnitee’s right to
indemnification or advancement of expenses pursuant to this Agreement. In such an enforcement hearing or proceeding, the burden
of proof shall be on the Company to prove that indemnification or advancement of expenses to Indemnitee is not required under
this Agreement or permitted by applicable law. Any determination by the Company (including its Board of Directors, stockholders
or independent counsel) that Indemnitee is not entitled to indemnification hereunder, shall not be a defense by the Company to
the action nor create any presumption that Indemnitee is not entitled to indemnification or advancement of expenses hereunder.
(d) Indemnification
of Certain Expenses
. The Company shall indemnify Indemnitee against all expenses incurred in connection with any hearing or
proceeding under this Section 7 unless the Company prevails in such hearing or proceeding on the merits in all material respects.
8. Assumption
of Defense
. In the event the Company shall be requested by Indemnitee to pay the expenses of any proceeding, the Company,
if appropriate, shall be entitled to assume the defense of such proceeding, or to participate to the extent permissible in such
proceeding, with counsel reasonably acceptable to Indemnitee. Upon assumption of the defense by the Company and the retention
of such counsel by the Company, the Company shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same proceeding, provided that Indemnitee shall have the right to employ separate counsel
in such proceeding at Indemnitee’s sole cost and expense. Notwithstanding the foregoing, if Indemnitee’s counsel delivers
a written notice to the Company stating that such counsel has reasonably concluded that there may be a conflict of interest between
the Company and Indemnitee in the conduct of any such defense or the Company shall not, in fact, have employed counsel or otherwise
actively pursued the defense of such proceeding within a reasonable time, then in any such event the fees and expenses of Indemnitee’s
counsel to defend such proceeding shall be subject to the indemnification and advancement of expenses provisions of this Agreement.
9. Insurance.
To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees,
or agents of the Company or of any subsidiary (“D&O Insurance”), Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof,
the Company has D&O Insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policies.
10. Exceptions.
(a) Certain
Matters
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms
of this Agreement to indemnify Indemnitee on account of any proceeding with respect to (i) remuneration paid to
Indemnitee if it is determined by final judgment or other final adjudication that such remuneration was in violation of law
(and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission believes
that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication, as indicated in
Section 10(d) below); (ii) a final judgment rendered against Indemnitee for an accounting, disgorgement or
repayment of profits made from the purchase or sale by Indemnitee of securities of the Company against Indemnitee or in
connection with a settlement by or on behalf of Indemnitee to the extent it is acknowledged by Indemnitee and the Company
that such amount paid in settlement resulted from Indemnitee’s conduct from which Indemnitee received monetary personal
profit, pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, or other
provisions of any federal, state or local statute or rules and regulations thereunder; (iii) a final judgment or other
final adjudication that Indemnitee’s conduct was in bad faith, knowingly fraudulent or deliberately dishonest or
constituted willful misconduct (but only to the extent of such specific determination); or (iv) on account of conduct
that is established by a final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or
resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of the
foregoing sentence, a final judgment or other adjudication may be reached in either the underlying proceeding or action in
connection with which indemnification is sought or a separate proceeding or action to establish rights and liabilities under
this Agreement.
(b) Claims
Initiated by Indemnitee
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated to indemnify
or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought by Indemnitee against the Company
or its directors, officers, employees or other agents and not by way of defense, except (i) with respect to proceedings brought
to establish or enforce a right to indemnification under this Agreement or under any other agreement, provision in the Bylaws
or Certificate of Incorporation or applicable law, or (ii) with respect to any other proceeding initiated by Indemnitee that
is either approved by the Board of Directors or Indemnitee’s participation is required by applicable law. However, indemnification
or advancement of expenses may be provided by the Company in specific cases if the Board of Directors determines it to be appropriate.
(c) Unauthorized
Settlements
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms
of this Agreement to indemnify Indemnitee under this Agreement for any amounts paid in settlement of a proceeding effected without
the Company’s written consent. Neither the Company nor Indemnitee shall unreasonably withhold consent to any proposed settlement;
provided, however, that the Company may in any event decline to consent to (or to otherwise admit or agree to any liability for
indemnification hereunder in respect of) any proposed settlement if the Company is also a party in such proceeding and determines
in good faith that such settlement is not in the best interests of the Company and its stockholders.
(d) Securities
Act Liabilities
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify Indemnitee or otherwise act in violation of any undertaking appearing in and required by
the rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration
statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K
currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit
the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act
on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee
specifically agrees that any such undertaking shall supersede the provisions of this Agreement and to be bound by any such undertaking.
11. Contribution
Claims.
(a)
If
the indemnification provided in Section 3 is unavailable in whole or in part and may not be paid to Indemnitee for any reason
other than those set forth in Section 10, then in respect to any proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such proceeding), to the fullest extent permitted by applicable law, the Company, in lieu of indemnifying
Indemnitee, shall pay, in the first instance, for any and all expenses, actually and reasonably incurred by Indemnitee in connection
with the investigation, defense, settlement or appeal of such proceeding without requiring Indemnitee to contribute to such payment,
and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.
(b)
With
respect to a proceeding brought against directors, officers, employees or agents of the Company (other than Indemnitee), to the
fullest extent permitted by applicable law, the Company shall indemnify Indemnitee from any claims for contribution that may be
brought by any such directors, officers, employees or agents of the Company (other than Indemnitee) who may be jointly liable
with Indemnitee, to the same extent Indemnitee would have been entitled to such indemnification under this Agreement if such proceeding
had been brought against Indemnitee.
12. Nonexclusivity
and Survival of Rights
.
(a)
The
provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which Indemnitee may at any time be entitled under any provision of applicable law, the Company’s Certificate of
Incorporation, Bylaws or other agreements, both as to action in Indemnitee’s official capacity and Indemnitee’s action
as an agent of the Company, in any court in which a proceeding is brought, and Indemnitee’s rights hereunder shall continue
after Indemnitee has ceased acting as an agent of the Company and shall inure to the benefit of the heirs, executors, administrators
and assigns of Indemnitee. The obligations and duties of the Company to Indemnitee under this Agreement shall be binding on the
Company and its successors and assigns until terminated in accordance with its terms. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Company, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company
would be required to perform if no such succession had taken place.
(b)
No
amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in his or her corporate status prior to such amendment,
alteration or repeal. To the extent that a change in the DGCL, whether by statute or judicial decision, permits greater indemnification
or advancement of expenses than would be afforded currently under the Company’s Certificate of Incorporation, the Bylaws
and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and
every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, by Indemnitee
shall not prevent the concurrent assertion or employment of any other right or remedy by Indemnitee.
13. Term
.
This Agreement shall continue until and terminate upon the later of: (a) five (5) years after the date that Indemnitee
shall have ceased to serve as a director or and/or officer, employee or agent of the Company; or (b) one (1) year after
the final termination of any proceeding, including any appeal then pending, in respect to which Indemnitee was granted rights
of indemnification or advancement of expenses hereunder.
No
legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against an Indemnitee
or an Indemnitee’s estate, spouse, heirs, executors or personal or legal representatives after the expiration of five (5) years
from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such five-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to such cause of action, such shorter period shall govern.
14. Subrogation
.
In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who, at the request and expense of the Company, shall execute all papers required and shall do everything
that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
15. Interpretation
of Agreement
. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or hereafter permitted by law.
16. Severability
.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the
validity, legality and enforceability of the remaining provisions of the Agreement (including without limitation, all portions
of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable and to give
effect to Section 15 hereof.
17. Amendment
and Waiver
. No supplement, modification, amendment, or cancellation of this Agreement shall be binding unless executed in
writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
18. Notice
.
Except as otherwise provided herein, any notice or demand which, by the provisions hereof, is required or which may be given to
or served upon the parties hereto shall be in writing and, if by telegram, telecopy or telex, shall be deemed to have been validly
served, given or delivered when sent, if by overnight delivery, courier or personal delivery, shall be deemed to have been validly
served, given or delivered upon actual delivery and, if mailed, shall be deemed to have been validly served, given or delivered
three (3) business days after deposit in the United States mail, as registered or certified mail, with proper postage prepaid
and addressed to the party or parties to be notified at the addresses set forth on the signature page of this Agreement (or such
other address(es) as a party may designate for itself by like notice). If to the Company, notices and demands shall be delivered
to the attention of the Secretary of the Company.
19. Governing
Law
. This Agreement shall be governed exclusively by and construed according to the laws of the State of Delaware, as applied
to contracts between Delaware residents entered into and to be performed entirely within Delaware.
20. Counterparts
.
This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but
all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence
the existence of this Agreement.
21. Headings
.
The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.
22. Entire
Agreement
. This Agreement amends and restates the Prior Agreement in its entirety and constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written
and oral, between the parties with respect to the subject matter of this Agreement; provided, however, that this Agreement is
a supplement to and in furtherance of the Company’s Certificate of Incorporation, the Bylaws, the DGCL and any other applicable
law, and shall not be deemed a substitute therefor, and does not diminish or abrogate any rights of Indemnitee thereunder.
[
Signature Page Follows
]
In Witness Whereof
,
the parties hereto have entered into this Agreement effective as of the date first above written.
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INDEMNITEE
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Signature of Indemnitee
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Print or Type Name of Indemnitee
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Address:
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