UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
August
13, 2015
Date of Report (date of earliest event reported)
LEAPFROG ENTERPRISES, INC.
(Exact name of registrant as specified in its charter) |
|
Delaware
(State or other jurisdiction
of incorporation) |
1-31396
(Commission
File Number) |
95-4652013
(IRS Employer
Identification No.) |
6401 Hollis Street, Suite 100
Emeryville, California 94608-1463
(Address of principal executive offices) (Zip Code)
(510) 420-5000
Registrant's telephone number, including
area code |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
| ¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e) At the 2015 annual meeting
of stockholders (the “Annual Meeting”) of LeapFrog Enterprises, Inc. (the “Company” or “we”,
“us” or “our”), held on August 13, 2015, the Company’s stockholders approved an amendment to the
LeapFrog Enterprises, Inc. 2011 Equity and Incentive Plan (the “2011 EIP”). The amendment (i) increased the number
of shares of Class A common stock reserved for issuance under the 2011 EIP by 3,500,000 shares; and (ii) decreased the number
of returning shares eligible to be included in the share reserve of the 2011 EIP by 2,148,809 shares.
A more detailed description of the material
terms of the amended and restated 2011 EIP (the “Amended and Restated 2011 EIP”) was included in the Company’s
Definitive Proxy Statement on Schedule 14A (the “Proxy Statement”) filed with the Securities and Exchange Commission
on July 2, 2015 (File No. 001-31396).
The description of the amendments to the
2011 EIP above and the portions of the Proxy Statement containing a description of the Amended and Restated 2011 EIP are not intended
to be complete and are qualified in their entirety by reference to the full text of the Amended and Restated 2011 EIP, which is
attached hereto as Exhibit 10.1 and incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
(a) On May 27, 2015 our board of
directors (the “Board”) approved an amendment (the “Bylaw Amendment”) to our Amended and Restated
Bylaws (“Bylaws”), subject to the approval of a majority of our stockholders. At the Annual Meeting, the
Company’s stockholders approved the Bylaw Amendment and it became effective immediately. The Bylaw Amendment
established Delaware as the exclusive forum for the adjudication of certain types of specified corporate disputes.
A more detailed description of the material
terms of the Bylaws was included in the Proxy Statement.
The description of the amendment to the
Bylaws above and the portions of the Proxy Statement containing a description of the Bylaw Amendment are not intended to be complete
and are qualified in their entirety by reference to the full text of the Bylaw Amendment, which is attached hereto as Exhibit 3.1
and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security
Holders.
The Company held its Annual Meeting
on August 13, 2015. The following proposals were submitted to and acted on by the stockholders at the Annual Meeting:
| · | Proposal 1: Election of our Board’s nine nominees for director
to serve for the ensuing year and until their successors are elected. |
| · | Proposal 2: Ratification of the selection by the audit committee of
our Board of PricewaterhouseCoopers LLP as our independent registered public accounting firm for our fiscal year ending March 31,
2016. |
| · | Proposal 3: Approval of an amendment to our Amended and Restated Bylaws
to adopt Delaware as the exclusive jurisdiction for certain legal proceedings. |
| · | Proposal 4: Approval of an amendment to the LeapFrog Enterprises,
Inc. 2011 Equity and Incentive Plan to increase the number of shares in the share reserve. |
The foregoing proposals are described in
more detail in the Proxy Statement. The final results for the votes regarding each proposal are set forth below.
Proposal 1
The following directors were elected to our Board by the following
votes:
Nominee | |
| For | | |
| Authority Withheld | | |
| Broker Non-Vote | |
John Barbour | |
| 63,405,061 | | |
| 3,515,029 | | |
| 20,789,659 | |
William B. Chiasson | |
| 63,574,700 | | |
| 3,345,390 | | |
| 20,789,659 | |
Thomas J. Kalinske | |
| 48,307,841 | | |
| 18,612,249 | | |
| 20,789,659 | |
Stanley E. Maron | |
| 63,555,004 | | |
| 3,365,086 | | |
| 20,789,659 | |
E. Stanton McKee, Jr. | |
| 63,706,736 | | |
| 3,213,354 | | |
| 20,789,659 | |
Joanna Rees | |
| 64,339,314 | | |
| 2,580,776 | | |
| 20,789,659 | |
Randy O. Rissman | |
| 64,078,107 | | |
| 2,841,983 | | |
| 20,789,659 | |
Caden C. Wang | |
| 64,355,211 | | |
| 2,564,879 | | |
| 20,789,659 | |
Stephen M. Youngwood | |
| 64,479,890 | | |
| 2,440,200 | | |
| 20,789,659 | |
Proposal 2
The proposal to ratify the selection of PricewaterhouseCoopers
LLP as our independent registered public accounting firm for our fiscal year ending March 31, 2016 was ratified by the following
vote:
| For | | |
| Against | | |
| Abstained | |
| 84,481,449 | | |
| 2,657,563 | | |
| 570,736 | |
Proposal 3
The amendment to our Amended and Restated Bylaws to adopt Delaware
as the exclusive jurisdiction for certain legal proceedings was approved by the following vote:
| For | | |
| Against | | |
| Abstained | | |
| Broker Non-Vote | |
| 46,943,550 | | |
| 19,915,243 | | |
| 61,297 | | |
| 20,789,659 | |
Proposal 4
The amendment to the LeapFrog Enterprises, Inc. 2011 Equity
and Incentive Plan to increase the number of shares in the share reserve was approved by the following vote:
| For | | |
| Against | | |
| Abstained | | |
| Broker Non-Vote | |
| 42,679,940 | | |
| 22,948,603 | | |
| 1,291,546 | | |
| 20,789,660 | |
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits.
|
|
|
|
|
Exhibit No. |
|
Description |
|
|
|
|
|
|
3.1 |
|
|
Amended and Restated Bylaws |
|
10.1 |
|
|
LeapFrog Enterprises, Inc. Amended and Restated 2011 Equity and Incentive Plan |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
LeapFrog Enterprises, Inc.
|
|
|
|
|
Date: August 18, 2015 |
By: /s/
Raymond L. Arthur
|
|
Raymond L. Arthur |
|
Chief Financial Officer |
|
|
EXHIBIT INDEX
Exhibit No. |
|
Description |
|
|
|
|
|
|
3.1 |
|
|
Amended and Restated Bylaws |
|
10.1 |
|
|
LeapFrog Enterprises, Inc. Amended and Restated 2011 Equity and Incentive Plan |
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
LEAPFROG ENTERPRISES, INC.,
A DELAWARE CORPORATION
ARTICLE I |
OFFICES |
1 |
Section 1. |
Registered Office |
1 |
Section 2. |
Other Offices |
1 |
ARTICLE II |
CORPORATE SEAL |
1 |
Section 3. |
Corporate Seal |
1 |
ARTICLE III |
STOCKHOLDERS’ MEETINGS |
1 |
Section 4. |
Place Of Meetings |
1 |
Section 5. |
Annual Meetings |
1 |
Section 6. |
Special Meetings |
3 |
Section 7. |
Notice Of Meetings |
4 |
Section 8. |
Quorum |
5 |
Section 9. |
Adjournment And Notice Of Adjourned Meetings |
6 |
Section 10. |
Voting Rights |
6 |
Section 11. |
Joint Owners Of Stock |
6 |
Section 12. |
List Of Stockholders |
6 |
Section 13. |
Action Without Meeting |
7 |
Section 14. |
Organization |
7 |
ARTICLE IV |
DIRECTORS |
8 |
Section 15. |
Number And Term Of Office |
8 |
Section 16. |
Powers |
8 |
Section 17. |
Board of Directors |
8 |
Section 18. |
Vacancies |
9 |
Section 19. |
Resignation |
9 |
Section 20. |
Removal |
9 |
Section 21. |
Meetings |
9 |
Section 22. |
Quorum And Voting |
10 |
Section 23. |
Action Without Meeting |
11 |
Section 24. |
Fees And Compensation |
11 |
Section 25. |
Committees |
11 |
Section 26. |
Organization |
12 |
Section 27. |
Chairman of the Board of Directors |
12 |
ARTICLE V |
OFFICERS |
12 |
Section 28. |
Officers Designated |
12 |
Section 29. |
Tenure And Duties Of Officers |
13 |
Section 30. |
Delegation Of Authority |
14 |
Section 31. |
Resignations |
14 |
Section 32. |
Removal |
14 |
ARTICLE VI |
FORUM FOR ADJUDICATION OF DISPUTES |
14 |
Section 33. |
Forum for Adjudication of Disputes |
14 |
ARTICLE VI |
EXECUTION OF CORPORATE INSTRUMENTS ANDI VOTING OF SECURITIES OWNED BY THE CORPORATION |
14 |
Section 34. |
Execution Of Corporate Instruments |
14 |
Section 35. |
Voting Of Securities Owned By The Corporation |
15 |
ARTICLE VIII |
SHARES OF STOCK |
15 |
Section 36. |
Form And Execution Of Certificates |
15 |
Section 37. |
Lost Certificates |
15 |
Section 38. |
Transfers |
16 |
Section 39. |
Fixing Record Dates |
16 |
Section 40. |
Registered Stockholders |
16 |
ARTICLE IX |
OTHER SECURITIES OF THE CORPORATION |
17 |
Section 41. |
Execution Of Other Securities |
17 |
ARTICLE X |
DIVIDENDS |
17 |
Section 42. |
Declaration Of Dividends |
17 |
Section 43. |
Dividend Reserve |
17 |
ARTICLE XI |
FISCAL YEAR |
18 |
Section 44. |
Fiscal Year |
18 |
ARTICLE XII |
INDEMNIFICATION |
18 |
Section 45. |
Indemnification Of Directors, Officers, Employees And Other Agents |
18 |
ARTICLE XIII |
NOTICES |
21 |
Section 46. |
Notices |
21 |
ARTICLE XIV |
AMENDMENTS |
23 |
Section 47. |
Amendments |
23 |
ARTICLE XV |
BUSINESS COMBINATIONS |
23 |
Section 48. |
Section 203 |
23 |
AMENDED
AND RESTATED BYLAWS
OF
LEAPFROG
ENTERPRISES, INC.,
A DELAWARE CORPORATION
ARTICLE
I
OFFICES
Section 1. Registered Office. The registered office of the corporation
in the State of Delaware shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other
Offices. The corporation shall also have and maintain an office or principal place of business at such place as may be fixed
by the Board of Directors, and may also have offices at such other places, both within and without the State of Delaware as the
Board of Directors may from time to time determine or the business of the corporation may require.
ARTICLE
II
CORPORATE SEAL
Section 3. Corporate
Seal. The Board of Directors may adopt a corporate seal. The corporate seal shall consist of a die bearing the name of the
corporation and the inscription, “Corporate Seal-Delaware.” Said seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
ARTICLE
III
STOCKHOLDERS’ MEETINGS
Section 4. Place
Of Meetings. Meetings of the stockholders of the corporation may be held at such place, either within or without the State
of Delaware, as may be determined from time to time by the Board of Directors. The Board of Directors may, in its sole discretion,
determine that a meeting shall not be held at any place, but may instead be held solely by means of remote communication as provided
under the Delaware General Corporation Law (“DGCL”).
Section 5. Annual Meetings.
(a)
The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other
business as may lawfully come before it, shall be held on such date and at such time as may be designated from time to time by
the Board of Directors. Nominations of persons for election to the Board of Directors of the corporation 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; (ii) by or at the direction of the Board of Directors; 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 the following paragraph and
who is a beneficial owner of shares at the time of the meeting, who is entitled to vote at the meeting and is present at the meeting,
and who has complied with the notice procedures set forth in this Section 5. The foregoing clause (iii) shall be the exclusive
means for a stockholder to nominate directors or propose business (other than business included in the corporation’s proxy
materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) to be brought
before an annual meeting of the stockholders.
(b)
At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought
before the meeting. For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant
to clause (iii) of Section 5(a) of these Bylaws, (i) the stockholder must have given timely notice thereof in writing to the Secretary
of the corporation, (ii) such other business must be a proper matter for stockholder action under DGCL, (iii) if the stockholder,
or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the corporation with a Solicitation
Notice (as defined in clause (F) below of this Section 5(b)), such stockholder or beneficial owner must, in the case of a proposal,
have delivered a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares
required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the corporation’s voting shares reasonably believed by such stockholder
or beneficial owner to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder, and must, in
either case, have included in such materials the Solicitation Notice, and (iv) if no Solicitation Notice relating thereto has been
timely provided pursuant to this section, the stockholder or beneficial owner proposing such business or nomination must not have
solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this Section 5. A stockholder
who complies with the notice procedures set forth in this Section 5 is permitted to present the nomination or stockholder proposal
at the annual meeting of stockholders but is not entitled to have a nominee or stockholder proposal included in the corporation’s
proxy statement in the absence of an applicable rule of the Securities and Exchange Commission requiring the corporation to include
a director nomination or stockholder proposal made by a stockholder in the corporation’s proxy statement. To be timely, a
stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the corporation not later
than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth
(120th) day prior to the first anniversary of the date on which the corporation first mailed its proxy materials (or,
in the absence of proxy materials, its notice of meeting) for the previous year’s annual meeting of stockholders; provided,
however, that 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 delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual
meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting
or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. In
no event shall an adjournment or postponement of an annual meeting, or public announcement thereof, commence a new time period
for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth: (A) as to each
person whom the stockholder proposed to nominate for election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the 1934 Act, including Rule 14a-4(d)
thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as
a director if elected); (B) as to any other business that the 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 in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; (C) as to
the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the
name and address of such stockholder, as they appear on the corporation’s books, and of such beneficial owner, and (ii) the
class and number of shares of the corporation which are owned beneficially and of record by such stockholder and such beneficial
owner; (D) as to the stockholder giving the notice and any Stockholder Associated Person (as defined below) or any member of such
stockholder’s immediate family sharing the same household, whether and the extent to which any hedging or other transaction
or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including,
but not limited to, any short position or any borrowing or lending of shares of stock) has been made, the effect or intent of which
is to mitigate loss or increase profit to or manage the risk or benefit of stock price changes for, or to increase or decrease
the voting power of, such stockholder, such Stockholder Associated Person or family member with respect to any share of stock of
the corporation (each, a “Relevant Hedge Transaction”), (E) as to the stockholder giving the notice and any Stockholder
Associated Person or any member of such stockholder’s immediate family sharing the same household, to the extent not set
forth pursuant to the immediately preceding clause, (i) whether and the extent to which such stockholder, Stockholder Associated
Person or family member has direct or indirect beneficial ownership of any option, warrant, convertible security, stock appreciation
right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any
class or series of shares of the corporation, whether or not such instrument or right shall be subject to settlement in the underlying
class or series of capital stock of the corporation or otherwise, or any other direct or indirect opportunity to profit or share
in any profit derived from any increase or decrease in the value of shares of the corporation (a “Derivative Instrument”),
(ii) any rights to dividends on the shares of the corporation owned beneficially by such stockholder, Stockholder Associated
Person or family member that are separated or separable from the underlying shares of the corporation, (iii) any proportionate
interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership
in which such stockholder, Stockholder Associated Person or family member is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner and (iv) any performance-related fees (other than an asset-based fee) that such stockholder,
Stockholder Associated Person or family member is entitled to based on any increase or decrease in the value of shares of the corporation
or Derivative Instruments, if any, as of the date of such notice (which information shall be supplemented by such stockholder and
beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose such ownership as of the record
date); and (F) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal
is made, whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders
of, in the case of the proposal, at least the percentage of the corporation’s voting shares required under applicable law
to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the corporation’s
voting shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”).
For purposes of this Section 5(b), “Stockholder Associated Person” of any stockholder shall mean (i) any person
controlling or controlled by, directly or indirectly, or acting in concert with, such stockholder, (ii) any beneficial owner
of shares of stock of the corporation owned of record or beneficially by such stockholder and (iii) any person controlling, controlled
by or under common control with such Stockholder Associated Person.
(c)
Only such persons who are nominated in accordance with the procedures set forth in this Section 5 shall be eligible
to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this Section 5. Except as otherwise provided by law, the chairman 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, to declare that such defective proposal or nomination shall not be presented
for stockholder action at the meeting and shall be disregarded.
(d)
In addition to the foregoing provisions of this Section 5, 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 5. 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.
(e)
For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by
a 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.
Section 6. Special
Meetings.
(a)
Special meetings of the stockholders of the corporation may be called, for any purpose or purposes, by (i) the Chairman
of the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors 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 of Directors for adoption).
(b)
The Board of Directors shall determine the date, time and place of such special meeting. Upon determination of the date,
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 7 of these Bylaws. No business may be transacted at such special meeting otherwise
than specified in the notice of meeting. The only matters that may be brought before special meetings of the stockholders are the
matters specified in the notice of such meeting and stockholders shall not be permitted to propose business to be brought before
special meetings of the stockholders. Nothing contained in this paragraph (b) shall be construed as limiting, fixing, or affecting
the time when a meeting of stockholders called by action of the Board of Directors may be held.
(c)
Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the corporation’s notice of meeting (i) by or at the direction of the Board of Directors
or (ii) by any stockholder of the corporation 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 complies with the notice procedures set forth in Section 5
of these Bylaws. In the event the corporation calls a special meeting of stockholders for the purpose of electing one or more directors
to the Board of Directors, any such stockholder 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 the stockholder satisfies the requirements of Section 5(a)(iii) of
these Bylaws and if the stockholder’s notice required by Section 5(b) of these Bylaws shall be delivered to the Secretary
at the principal executive offices of the corporation not earlier than the close of business on the one hundred twentieth (120th)
day prior to such special meeting and not later than the close of business on the later of (i) the ninetieth (90th) day prior to
such meeting, (ii) the tenth (10th) day following the day on which public announcement is first made of the date of the special
meeting and (iii) the tenth (10th) day following the day on which public announcement is first made of the nominees proposed by
the Board of Directors, if any, to be elected at such meeting. In no event shall an adjournment or postponement of a special meeting,
or public announcement thereof, commence a new time period for the giving of a stockholder’s notice as described above. A
stockholder who complies with the notice procedures set forth in Section 5 of these Bylaws is permitted to present the nomination
at the special meeting of stockholders but is not entitled to have a nominee included in the corporation’s proxy statement
in the absence of an applicable rule of the Securities and Exchange Commission requiring the corporation to include a director
nomination made by a stockholder in the corporation’s proxy statement.
(d)
In addition to the foregoing provisions of this Section 6, 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 6.
Section 7. Notice
Of Meetings. Except as otherwise provided by law, notice, given in writing or by electronic transmission, of each meeting
of stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting, such notice to specify the place, if any, date and hour, the record date for determining the
stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled
to notice of the meeting, in the case of special meetings, the purpose or purposes of the meeting, and the means of remote communications,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at any such meeting; provided,
however, where the matter to be acted on is a merger or consolidation of the corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than twenty (20) nor more than sixty (60) days prior to the
date of such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder
at such stockholder’s address as it appears on the records of the corporation. Notice of the time, place, if any, and purpose
of any meeting of stockholders may be waived in writing, signed by the person entitled to notice thereof, or by electronic transmission
by such person, either before or after such meeting, and will be waived by any stockholder by his attendance thereat in person,
by remote communication, if applicable, or by proxy, except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Any stockholder so waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if
due notice thereof had been given.
Section 8. Quorum.
At all meetings of stockholders, except where otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person, by remote communication, if applicable, or by proxy duly authorized, of the holders of
stock representing a majority of the voting power of all outstanding shares of stock entitled to vote shall constitute a quorum
for the transaction of business. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time,
either by the chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other
business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum
is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. Except as otherwise provided by statute or by applicable rules of the principal stock exchange on which the
corporation’s shares are listed, or by the Certificate of Incorporation or these Bylaws, in all matters other than the election
of directors, the affirmative votes cast of the majority of shares present in person, by remote communication, if applicable,
or represented by proxy at the meeting and entitled to vote generally on the subject matter shall be the act of the stockholders.
Except as otherwise provided by statute, the Certificate of Incorporation or these Bylaws, directors shall be elected by a plurality
of the votes cast of the shares present in person, by remote communication, if applicable, or represented by proxy at the meeting
and entitled to vote generally on the election of directors. Where a separate vote by a class or classes or series is required,
except where otherwise provided by statute or by the Certificate of Incorporation or these Bylaws, a majority of the outstanding
shares of such class or classes or series, present in person, by remote communication, if applicable, or represented by proxy
duly authorized, shall constitute a quorum entitled to take action with respect to that vote on that matter. Except where otherwise
provided by statute or by the Certificate of Incorporation or these Bylaws, the affirmative votes cast of the majority (plurality,
in the case of the election of directors) of shares of such class or classes or series present in person, by remote communication,
if applicable, or represented by proxy at the meeting shall be the act of such class or classes or series. For purposes of these
Bylaws, a share present at a meeting, but for which there is an abstention or as to which a stockholder gives no authority or
direction as to a particular proposal or director nominee, shall be counted as present for the purpose of establishing a quorum
but shall not be counted as a vote cast.
Section 9. Adjournment
And Notice Of Adjourned Meetings. Any meeting of stockholders, whether annual or special, may be adjourned from time to time
either by the chairman 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 time and place, if any, thereof and the means of remote communication, if any, are
announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting.
Section 10. Voting
Rights. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders, except as otherwise
provided by law, only persons in whose names shares stand on the stock records of the corporation on the record date, as provided
in Section 12 of these Bylaws, shall be entitled to vote at any meeting of stockholders. Every person entitled to vote shall have
the right to do so either in person, by remote communication, if applicable, or by an agent or agents authorized by a proxy granted
in accordance with Delaware law. An agent so appointed need not be a stockholder. No proxy shall be voted after three (3) years
from its date of creation unless the proxy provides for a longer period.
Section 11. Joint
Owners Of Stock. If shares or other securities having voting power stand of record in the names of two (2) or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if
two (2) or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the following effect: (a) if only one (1) votes, his act binds
all; (b) if more than one (1) votes, the act of the majority so voting binds all; (c) if more than one (1) votes, but the vote
is evenly split on any particular matter, each faction may vote the securities in question proportionally, or may apply to the
Delaware Court of Chancery for relief as provided in the DGCL, Section 217(b). If the instrument filed with the Secretary shows
that any such tenancy is held in unequal interests, a majority or even-split for the purpose of subsection (c) shall be a majority
or even-split in interest.
Section 12. List
Of Stockholders. The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, (a) on a reasonably accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal
place of business of the corporation. In the event that the corporation determines to make the list available on an electronic
network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation.
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 inspected by any stockholder who is present. If the meeting is to be 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.
Section
13. 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.
Section 14. Organization.
(a)
At every meeting of stockholders, the Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the Chief Executive Officer, or if a Chief Executive Officer has not been appointed or is absent, a chairman of the
meeting chosen by a majority in interest of the stockholders entitled to vote, present in person or by proxy, shall act as chairman.
The Secretary, or, in his or her absence, an Assistant Secretary
directed to do so by the chairman of the meeting, shall act as secretary of the meeting.
(b)
The Board of Directors of the corporation 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 of Directors,
if any, the chairman 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 chairman, 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 chairman 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 of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure.
(c)
The corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting
and make a written report thereof. The corporation may designate one or more persons 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 chairman of the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his ability.
(d)
The inspectors shall (i) ascertain the number of shares outstanding and the voting power of each, (ii) determine the
shares represented at a meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine
and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the
inspectors.
(e)
No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after
the closing of the polls unless the Delaware Court of Chancery shall determine otherwise upon application by a stockholder.
(f)
In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of
the proxies, any envelopes submitted with those proxies, any information provided in accordance with Sections 211(e) or 212(c)(2)
of the DGCL, or any information provided pursuant to Section 211(a)(2)(B)(i) or (iii) thereof, ballots and the regular books and
records of the corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than
the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors
consider other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification
pursuant to subsection (d)(v) of this section shall specify the precise information considered by them including the person or
persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained
and the basis for the inspectors’ belief that such information is accurate and reliable.
ARTICLE
IV
DIRECTORS
Section
15. Number And Term Of Office. The authorized number of directors of the corporation shall be fixed exclusively by resolutions
adopted by a majority of the authorized number of directors constituting the Board. Directors need not be stockholders unless
so required by the Certificate of Incorporation. If for any cause, the directors shall not have been elected at an annual meeting,
they may be elected as soon thereafter as convenient at a special meeting of the stockholders called for that purpose in the manner
provided in these Bylaws.
Section
16. Powers. The powers of the corporation shall be exercised, its business conducted and its property controlled by
the Board of Directors, except as may be otherwise provided by statute or by the Certificate of Incorporation.
Section 17. Board of Directors.
Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, directors shall be elected at each annual meeting of stockholders for a term of one year.
Each director shall serve until his successor is duly elected and qualified or until his earlier death, resignation or removal.
No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Section 18. Vacancies.
Any vacancies on the Board of Directors by reason of death, resignation, retirement, disqualification,
removal from office or otherwise and any newly created directorships resulting from any increase in the authorized number of directors
may be filled in the manner provided in the Certificate of Incorporation of the corporation or by the stockholders of the corporation.
The directors so chosen shall hold office for the remainder of the full term of the director for which the vacancy was created
or occurred and until such director’s successor shall have been elected and qualified or, if earlier, until his death, resignation
or removal. A vacancy in the Board of Directors shall be deemed to exist under this Bylaw in the case of the death, removal or
resignation of any director, or if the stockholders fail at any meeting of stockholders at which directors are to be elected
(including any special meeting convened for such purpose) to elect the number of directors then constituting the whole Board of
Directors.
Section 19. Resignation.
Any director may resign at any time by delivering his or her notice in writing or by electronic transmission to the Secretary
of the corporation, such resignation to specify whether it will be effective at a particular time, upon receipt by the Secretary
or at the pleasure of the Board of Directors. If no such specification is made, it shall be deemed effective at the pleasure of
the Board of Directors. When one or more directors shall resign from the Board of Directors, effective at a future date, a majority
of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold
office for the unexpired portion of the term of the director whose place shall be vacated and until his successor shall have been
duly elected and qualified.
Section 20. Removal.
The Board of Directors or any individual director may be removed from office at any time
(a) with cause by the affirmative vote of the holders of a majority of the
voting power of all the then-outstanding shares of capital stock of the corporation entitled to vote generally at an election
of directors, voting together as a single class or (b) without cause by the affirmative vote of the holders of at least sixty-six
and two-thirds percent (66 2/3%) of the voting power of all the then-outstanding
shares of the capital stock of the corporation entitled to vote generally at an election of directors, voting together as a single
class.
Section 21. Meetings.
(a)
Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board of
Directors may be held at any time or date and at any place within or without the State of Delaware which has been designated by
the Board of Directors and publicized among all directors, either orally or in writing, by telephone, including a voice-messaging
system or other system designed to record and communicate messages, by facsimile, or by electronic mail or other electronic means.
No further notice shall be required for regular meetings of the Board of Directors.
(b)
Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board of
Directors may be held at any time and place within or without the State of Delaware whenever called by the Chairman of the Board
of Directors, the Chief Executive Officer or any two or more
directors.
(c)
Meetings by Electronic Communications Equipment. Any member of the Board of Directors, or of any committee thereof,
may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
(d)
Notice of Special Meetings. Notice of the date, time and place of all special meetings of the Board of Directors shall
be delivered orally or in writing, by telephone, including a voice messaging system or other system or technology designed to record
and communicate messages, by facsimile, or by electronic mail or other electronic means, during normal business hours, at least
twenty-four (24) hours before the start of the meeting. If notice is sent by US mail, it shall be mailed by first class mail, charges
prepaid, at least three (3) days before the date of the meeting. Notice of any meeting may be waived in writing, or by electronic
transmission, at any time before or after the meeting and will be waived by any director by attendance thereat, except when the
director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
(e)
Waiver of Notice. The transaction of all business at any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice,
if a quorum be present and if, either before or after the meeting, each of the directors not present who did not receive notice
shall sign a written waiver of notice, or consent to holding such meeting, or approval of the minutes of such meeting, or shall
waive notice by electronic transmission. All such waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Section 22. Quorum And Voting.
(a)
Unless the Certificate of Incorporation requires a greater number,
a quorum of the Board of Directors shall consist of a majority of the exact number of directors fixed from time to time
by the Board of Directors in accordance with the Certificate of Incorporation; provided, however, at any meeting whether
a quorum be present or otherwise, a majority of the directors present may adjourn from time to time until the time fixed for the
next regular meeting of the Board of Directors, without notice other than by announcement at the meeting.
(b)
At each meeting of the Board of Directors at which a quorum is present, all questions and business shall be determined
by the affirmative vote of a majority of the directors present, unless a different vote be required by law, the Certificate of
Incorporation or these Bylaws.
Section 23. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors 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 of Directors
or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if
the minutes are maintained in electronic form.
Section 24. Fees
And Compensation. Directors shall be entitled to such compensation for their services as may be fixed or approved by the Board
of Directors, including, if so approved, by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any,
for attendance at each regular or special meeting of the Board of Directors and at any meeting of a committee of the Board of
Directors. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity
as an officer, agent, employee, or otherwise and receiving compensation therefor.
Section 25. Committees.
(a)
Committees. The Board of Directors may, from time to time, appoint such committees as may be permitted by law. Such
committees appointed by the Board of Directors shall consist of one (1) or more members of the Board of Directors and shall have
such powers and perform such duties as may be prescribed by the resolution or resolutions creating such committees, but in no event
shall any such committee have the power or authority in reference to (i) approving or adopting, or recommending 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 (ii) adopting, amending or repealing
any bylaw of the corporation.
(b)
Term. The Board of Directors, subject to any requirements of any outstanding series of Preferred Stock and the provisions
of subsection (a) of this Section 25, may at any time increase or decrease the number of members of a committee or terminate the
existence of a committee. The membership of a committee member shall terminate on the date of his death or voluntary resignation
from the committee or from the Board of Directors. The Board of Directors may at any time for any reason remove any individual
committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or increase in
the number of members of the committee. The Board of Directors 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, and, in addition, in the absence
or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
(c)
Meetings. Unless the Board of Directors shall otherwise provide, regular meetings of any committee appointed pursuant
to this Section 25 shall be held at such times and places
as are determined by the Board of Directors, or by any such committee, and when notice thereof has been given to each member of
such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee may
be held at any place which has been determined from time to time by such committee, and may be called by any director who is a
member of such committee, upon notice to the members of such committee of the time and place of such special meeting given in the
manner provided for the giving of notice to members of the Board of Directors of the time and place of special meetings of the
Board of Directors. Notice of any special meeting of any committee may be waived in writing at any time before or after the meeting
and will be waived by any director by attendance thereat, except when the director attends such special meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called
or convened. Unless otherwise provided by the Board of Directors in the resolutions authorizing the creation of the committee,
a majority of the authorized number of members of any such committee shall constitute a quorum for the transaction of business,
and the act of a majority of those present at any meeting at which a quorum is present shall be the act of such committee.
Section 26. Organization.
At every meeting of the directors, unless otherwise determined by the Board of Directors, the Chairman of the Board of Directors,
or, if a Chairman has not been appointed or is absent, the Vice Chairman, or if a Vice Chairman has not been appointed or is absent,
the Chief Executive Officer (if a director), or, if the Chief Executive Officer is absent, a chairman of the meeting chosen by
a majority of the directors present, shall preside over the meeting. The Secretary, or in his absence, any Assistant Secretary
or other officer or director directed to do so by the chairman of the meeting, shall act as secretary of the meeting.
Section 27. Chairman
of the Board of Directors. The Chairman of the Board of Directors shall preside at all meetings of the Board of Directors
and the stockholders. The Chairman of the Board of Directors shall perform such other duties as are commonly incident to the position
of Chairman and shall also perform such other duties and have such other powers as the Board of Directors shall designate from
time to time.
ARTICLE
V
OFFICERS
Section 28. Officers
Designated. The officers of the corporation shall be the Chief Executive Officer and
the Secretary. The corporation may also have, at the discretion of the Board, one or more presidents, a chief financial officer,
a treasurer, a controller, one or more vice presidents, one or more assistant vice presidents, one or more assistant treasurers,
one or more assistant controllers, one or more assistant secretaries, and any such other officers as may be appointed in accordance
with the provisions of these bylaws. The Board of Directors may also assign such additional titles to one or more of the
officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other compensation of the officers of the corporation shall be fixed
by or in the manner designated by the Board of Directors.
Section 29. Tenure
And Duties Of Officers.
(a)
General. All officers shall hold office at the pleasure of the Board of Directors and until their successors
shall have been duly elected and qualified, unless any such officer shall sooner resign or be removed. Any officer elected or appointed
by the Board of Directors may be removed at any time by the Board of Directors. If the office of any officer becomes vacant for
any reason, the vacancy may be filled by the Board of Directors.
(b)
Duties of Chief Executive Officer.
The Chief Executive Officer shall preside at all meetings of the stockholders and, if a director, at all meetings of the Board
of Directors, unless the Chairman or Vice Chairman of the Board of Directors has been appointed and is present or as
otherwise determined by the Board of Directors. The Chief Executive Officer shall be the chief executive officer of the corporation
and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and
officers of the corporation.
(c)
Duties of President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chief
Executive Officer, the president shall have general supervision, direction, and control of the business and other officers of the
corporation. The President shall perform other duties commonly incident to the office and shall also perform such other duties
and have such other powers, as the Board of Directors or the Chief Executive Officer shall designate from time to time.
(d)
Duties of Vice Presidents. The Vice Presidents may assume and perform the duties of the President in the absence or
disability of the President or whenever the office of President is vacant. The Vice Presidents shall perform other duties commonly
incident to their office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief
Executive Officer or, if the Chief Executive Officer has not been appointed or is absent, the President shall designate
from time to time.
(e)
Duties of Secretary. The Secretary shall attend all meetings of the stockholders and of the Board of Directors and shall
record all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity with
these Bylaws of all meetings of the stockholders and of all meetings of the Board of Directors and any committee thereof requiring
notice. The Secretary shall perform all other duties provided for in these Bylaws and other duties commonly incident to the office
and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time.
The Chief Executive Officer or, if the Chief Executive Officer has not been appointed or is absent, the President may direct any
Assistant Secretary or other officer to assume and perform the duties of the Secretary in the absence or disability of the Secretary,
and each Assistant Secretary shall perform other duties commonly incident to the office and shall also perform such other duties
and have such other powers as the Board of Directors, the Chief Executive Officer or the President shall designate from time to
time.
(f)
Duties of Chief Financial Officer. The Chief Financial Officer shall keep or cause to be kept the books of account of
the corporation in a thorough and proper manner and shall render statements of the financial affairs of the corporation in such
form and as often as required by the Board of Directors or the Chief Executive Officer or, if the Chief Executive Officer has not
been appointed or is absent, the President. The Chief Financial Officer, subject to the order of the Board of Directors, shall
have the custody of all funds and securities of the corporation. The Chief Financial Officer shall perform other duties commonly
incident to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief
Executive Officer or, if the Chief Executive Officer has not been appointed or is absent, the President shall designate from time
to time. The Chief Executive Officer or, if the Chief Executive Officer has not been appointed or is absent, the President may
direct the Controller, any Assistant Controller or any other officer appointed by the Board to assume and perform the duties of
the Chief Financial Officer in the absence or disability of the Chief Financial Officer and each Controller, Assistant Controller
or such other officer shall perform other duties commonly incident to the office and shall also perform such other duties and have
such other powers as the Board of Directors, the Chief Executive Officer or the President shall designate from time to time.
Section 30. Delegation
Of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer
or agent, notwithstanding any provision hereof.
Section 31. Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board
of Directors or to the Chief Executive Officer or, if the Chief Executive Officer has not been appointed or is absent, the President
or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given,
unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise
specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the corporation under any contract with the resigning officer.
Section 32. Removal. Any officer may be removed from office at any time, either with or without cause, by the affirmative vote of
a majority of the directors in office at the time, or by the unanimous written consent of the directors in office at the time,
or by any committee or by the Chief Executive Officer or by other
superior officers upon whom such power of removal may have been conferred by the Board of Directors.
ARTICLE
VI
FORUM FOR ADJUDICATION
OF DISPUTES
Section 33. Forum for Adjudication of Disputes. Unless the corporation consents in writing to the selection of an alternative forum,
the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action
asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation
or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General
Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine shall be a state or federal court
located within the state of Delaware, in all cases subject to the court’s having personal jurisdiction over the indispensable
parties named as defendants. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of
the Corporation shall be deemed to have notice of and consented to the provisions of this Article VI.
ARTICLE
VII
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION
Section 34. Execution
Of Corporate Instruments. The Board of Directors may, in its discretion, determine the method and designate the signatory
officer or officers, or other person or persons, to execute on behalf of the corporation any corporate instrument or document,
or to sign on behalf of the corporation the corporate name without limitation, or to enter into contracts on behalf of the corporation,
except where otherwise provided by law or these Bylaws, and such execution or signature shall be binding upon the corporation.
All checks and drafts
drawn on banks or other depositaries on funds to the credit of the corporation or in special accounts of the corporation shall
be signed by such person or persons as the Board of Directors shall authorize so to do.
Unless authorized or
ratified by the Board of Directors 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 for any amount.
Section 35. Voting Of Securities Owned By The Corporation. All stock and other securities of other corporations owned or held by
the corporation for itself, or for other parties in any capacity, shall be voted, and all proxies with respect thereto shall be
executed, by the person authorized so to do by resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board of Directors, the Chief Executive Officer, the President, or any Vice President.
ARTICLE
VIII
SHARES OF STOCK
Section 36. Form
And Execution Of Certificates. The shares of the corporation shall be represented by certificates, or shall be uncertificated.
Certificates for the shares of stock of the corporation, if any, shall be in such form as is consistent with the Certificate of
Incorporation and applicable law. Every holder of stock represented by certificate in the corporation shall be entitled to have
a certificate signed by or in the name of the corporation by the Chairman of the Board of Directors, the Chief Executive Officer,
the President or any Vice President and by the Secretary or Assistant Secretary, certifying the number of shares owned by him
in the corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Section 37. Lost Certificates. A new certificate or certificates (or uncertificated shares in lieu of a new certificate) shall be
issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or
destroyed. The corporation may require, as a condition precedent to the issuance of a new certificate or certificates, the owner
of such lost, stolen, or destroyed certificate or certificates, or the owner’s legal representative, to agree to indemnify
the corporation in such manner as it shall require and/or to give the corporation a surety bond in such form and amount as it may
direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have
been lost, stolen, or destroyed.
Section 38. Transfers.
(a)
Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof,
in person or by attorney duly authorized, who shall furnish proper evidence of authority to transfer, and,
in the case of stock represented by certificate, upon the surrender of a properly endorsed certificate or certificates
for a like number of shares.
(b)
The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one
or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes
owned by such stockholders in any manner not prohibited by the DGCL.
Section 39. Fixing
Record Dates.
(a)
In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, subject
to applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors
so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless
the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting
shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of and to vote at a meeting of stockholders shall be at 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. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination
of stockholders entitled to vote at 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 the foregoing provisions of this subsection (a) at the adjourned meeting.
(b)
In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 40. Registered
Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and 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.
ARTICLE
IX
OTHER SECURITIES OF THE CORPORATION
Section 41. Execution
Of Other Securities. All bonds, debentures and other corporate securities of the corporation, other than stock certificates
(covered in Section 36), may be signed by the Chairman of the Board of Directors, the President
or any Vice President, or such other person as may be authorized by the Board of Directors, and the corporate seal impressed thereon
or a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an Assistant Secretary, or the
Chief Financial Officer; provided, however, that where any such bond, debenture or other corporate security shall be authenticated
by the manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to which such bond,
debenture or other corporate security shall be issued, the signatures of the persons signing and attesting the corporate seal
on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be
signed by the Chief Financial Officer of the corporation or such other person as may be authorized by the Board of Directors,
or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond,
debenture or other corporate security, or whose facsimile signature shall appear thereon or on any such interest coupon, shall
have ceased to be such officer before the bond, debenture or other corporate security, or interest coupon, so signed or attested
shall have been delivered, such bond, debenture or other corporate security, or interest coupon, nevertheless may be adopted by
the corporation and issued and delivered as though the person who signed the same or whose facsimile signature shall have been
used thereon had not ceased to be such officer of the corporation.
ARTICLE
X
DIVIDENDS
Section 42. Declaration
Of Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation
and applicable law, if any, may be declared by the Board of Directors pursuant to law at any regular or special meeting. Dividends
may be paid in cash, in property, or in shares of the corporation’s capital stock, subject to the provisions of the Certificate
of Incorporation and applicable law.
Section 43. Dividend
Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves
to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such
other purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board of Directors
may modify or abolish any such reserve in the manner in which it was created.
ARTICLE
XI
FISCAL YEAR
Section 44. Fiscal
Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.
ARTICLE
XII
INDEMNIFICATION
Section 45. Indemnification
Of Directors, Officers, Employees And Other Agents.
(a)
Directors and Officers. The corporation shall indemnify each of its directors and officers to the fullest extent not
prohibited by the DGCL or any other applicable law; provided, however, that the corporation may modify the extent of such
indemnification by individual contracts with its directors; and, provided, further, that the corporation shall not be required
to indemnify any director in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation, (iii)
such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under
the DGCL or any other applicable law or (iv) such indemnification is required to be made under subsection (d).
(b)
Employees and Other Agents. The corporation shall have power to indemnify, and to advance expenses to, its employees
and other agents as set forth in the DGCL or any other applicable law. To the full extent permitted by law, the Board of Directors
shall have the power to delegate the determination of whether indemnification and advancement of expenses shall be given to any
such person, except to officers, to such officers or other persons as the Board of Directors shall determine.
(c)
Expenses. The corporation shall advance to 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, by reason
of the fact that he is or was a director of the corporation, or is or was serving at the request of the corporation as a director
or executive officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition
of such action, suit or proceeding, promptly following request therefor, all expenses incurred by any director in connection with
such proceeding provided, however, that if the DGCL requires, an advancement of expenses incurred by a director
in his or her capacity as a director (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
45 or otherwise.
Notwithstanding the
foregoing, unless otherwise determined pursuant to paragraph (e) of this Section
45, 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 (i) by a majority
vote of directors who were not parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors designated
by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or such directors
so direct, by independent legal counsel in a written opinion, 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 believed was opposed to, the best interests of the corporation.
(d)
Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advances
to directors under this Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for
in a contract between the corporation and the director. Any right to indemnification or advances granted by this Section
45 to a director shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction
if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within
ninety (90) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled
to be paid also the expense of prosecuting the claim. In connection with any claim for indemnification, the corporation shall be
entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible
under the DGCL or any other applicable law for the corporation to indemnify the claimant for the amount claimed. Neither the failure
of the corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is proper under the circumstances because he has
met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard
of conduct. In any suit brought by a director to enforce a right to indemnification or to an advancement of expenses hereunder,
the burden of proving that the director is not entitled to be indemnified, or to such advancement of expenses, under this Section
45 or otherwise shall be on the corporation.
(e)
Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall not be exclusive of any other right
which such person may have or hereafter acquire under any applicable statute, provision of the Certificate of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and
as to action in another capacity while holding office. To the extent that any provision of the Certificate of Incorporation, agreement,
or vote of the stockholders or disinterested directors is inconsistent with these Bylaws, the provision, agreement, or vote shall
take precedence. The corporation is specifically authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL, or by
any other applicable law.
(f)
Survival of Rights. The rights conferred on any person by this Bylaw 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.
(g)
Insurance. To the fullest extent permitted by the DGCL or any other applicable law, the corporation, upon approval by
the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this
Section 45.
(h)
Amendments. Any amendment, repeal or modification of this Section
4 shall only be prospective and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence
of any action or omission to act that is the cause of any proceeding against any agent of the corporation.
(i)
Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction,
then the corporation shall nevertheless indemnify each director, officer, employee or other agent to the full extent permitted
by any applicable portion of this Section 4 that shall not
have been invalidated, or by any other applicable law. If this Section
4 shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the corporation
shall indemnify each director to the full extent not prohibited under any other applicable law.
(j)
Certain Definitions. For the purposes of this Bylaw, the following definitions shall apply:
(1)
The term “proceeding” shall be broadly construed and shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative.
(2)
The term “expenses” shall be broadly construed and shall include, without limitation, court costs, attorneys’
fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred
in connection with any proceeding.
(3)
The term the “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
45 with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation
if its separate existence had continued.
(4)
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.
(5)
References to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to an employee benefit plan; and 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; and a person who acted in good faith and in a manner he 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
45.
ARTICLE
XIII
NOTICES
Section 46. Notices.
(a)
Notice To Stockholders. Written notice to stockholders of stockholder meetings shall be given as provided in Section
7 herein. Without limiting the manner by which notice may otherwise be given effectively to stockholders under any agreement or
contract with such stockholder, and except as otherwise required by law, written notice to stockholders for purposes other than
stockholder meetings may be sent by US mail or nationally recognized overnight courier, or by facsimile or by electronic mail or
other electronic means. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice
to stockholders given by the corporation under any provision of DGCL, the Certificate of Incorporation, or these Bylaws shall be
effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent
shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (i) the
corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with
such consent, and (ii) such inability becomes known to the Secretary or an Assistant Secretary of the corporation or to the transfer
agent or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action. Notice given pursuant to this subsection (a) shall be deemed
given: (1) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
(2) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;
(3) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the
later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form of electronic transmission,
when directed to the stockholder. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent
of the corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. For purposes of these Bylaws, “electronic transmission” means any form
of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved
and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated
process.
(b)
Notice To Directors. Any notice required to be given to any director may be given by the method stated in subsection
(a) of this Section 46, as otherwise provided in these Bylaws, or by overnight delivery service, facsimile, electronic mail or
other electronic means, except that such notice other than one which is delivered personally shall be sent to such address or (in
the case of electronic communication) such e-mail address, facsimile telephone number or other form of electronic address as such
director shall have filed in writing or by electronic communication with the Secretary of the corporation, or, in the absence of
such filing, to the last known post office address of such director.
(c)
Affidavit Of Mailing. An affidavit of mailing, executed by a duly authorized and competent employee of the corporation
or its transfer agent appointed with respect to the class of stock affected, or other agent, specifying the name and address or
the names and addresses of the stockholder or stockholders, or director or directors, to whom any such notice or notices was or
were given, and the time and method of giving the same, shall in the absence of fraud, be prima facie evidence of the facts therein
contained. All notices given by mail, as above provided, shall be deemed to have been given as at the time of mailing, unless otherwise
provided in these Bylaws, and all notices given by means of electronic transmission shall be deemed to have been given as at the
sending time recorded by the electronic transmission equipment operator transmitting the same.
(d)
Methods of Notice. It shall not be necessary that the same method of giving notice be employed in respect of all recipients
of notice, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods
may be employed in respect of any other or others.
(e)
Notice To Person With Whom Communication Is Unlawful. Whenever notice is required to be given, under any provision of
law or of the Certificate of Incorporation or Bylaws of the corporation, to any person with whom communication is unlawful, the
giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given.
In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of
the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled
to receive notice except such persons with whom communication is unlawful.
(f)
Notice to Stockholders Sharing an Address. Except
as otherwise prohibited under DGCL, any notice given under the provisions of DGCL, the Certificate of Incorporation or the Bylaws
shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders
at that address to whom such notice is given. Such consent shall have been deemed to have been given if such stockholder fails
to object in writing to the corporation within 60 days of having been given notice by the corporation of its intention to send
the single notice. Any consent shall be revocable by the stockholder by written notice to the corporation.
(g)
No Effect on Limitations of Time. The period or limitation of time within which any stockholder may exercise any option
or right, or enjoy any privilege or benefit, or be required to act, or within which any director may exercise any power or right,
or enjoy any privilege, pursuant to any notice sent him in the manner above provided, shall not be affected or extended in any
manner by the failure of such a stockholder or such director to receive such notice.
ARTICLE
XIV
AMENDMENTS
Section 47. Amendments.
Subject to the limitations set forth in Section 45(h) of these Bylaws or the provisions of the Certificate of Incorporation,
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 authorized
number of directors. 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
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.
ARTICLE
XV.
BUSINESS COMBINATIONS
Section 48. Section
203. The corporation shall not be governed by Section 203 of the DGCL; provided, however, that this amendment shall not be
effective until twelve (12) months after its adoption on June 4, 2009 and shall not apply to any business combination between
the corporation and any person who became an interested stockholder on or prior to such adoption.
Exhibit 10.1
LeapFrog
Enterprises, Inc.
AMENDED
AND RESTATED 2011 Equity AND Incentive Plan
Adopted
by the Board of Directors: March 17, 2011
Approved
by the Stockholders: June 2, 2011
Amended
and Restated: March 30, 2012
Approved
by the Stockholders: June 5, 2012
Amended
and Restated: June 19, 2015
Approved
by the Stockholders: August 13, 2015
Termination
Date: March 16, 2021
(a)
Successor to and Continuation of Prior Plan. The Plan is intended as the successor to and continuation of the LeapFrog
Enterprises, Inc. 2002 Equity Incentive Plan (the “Prior Plan”). Following the Effective Date, no additional
stock awards shall be granted under the Prior Plan. Any shares remaining available for issuance pursuant to the exercise of options
or issuance or settlement of stock awards under the Prior Plan as of the Effective Date (the “Prior Plan’s Available
Reserve”) shall become available for issuance pursuant to Stock Awards granted hereunder. From and after the Effective
Date, all outstanding stock awards granted under the Prior Plan shall remain subject to the terms of the Prior Plan; provided,
however, any shares subject to outstanding stock awards granted under the Prior Plan that expire or terminate for any reason
prior to exercise or settlement or are forfeited because of the failure to meet a contingency or condition required to vest such
shares or are reacquired or withheld by the Company to satisfy a tax withholding obligation or as consideration for the exercise
of an Option (the “Returning Shares”) shall become available for issuance pursuant to Awards granted
hereunder. All Awards granted on or after the Effective Date of this Plan shall be subject to the terms of this Plan.
(b)
Eligible Award Recipients. The persons eligible to receive Awards are Employees, Directors and Consultants.
(c)
Available Awards. The Plan provides for the grant of the following Awards: (i) Incentive Stock Options, (ii) Nonstatutory
Stock Options, (iii) Stock Appreciation Rights (iv) Restricted Stock Awards, (v) Restricted Stock Unit Awards, (vi) Performance
Stock Awards, (vii) Performance Cash Awards, and (viii) Other Stock Awards.
(d)
Purpose. The Company, by means of the Plan, seeks to secure and retain the services of the group of persons eligible
to receive Awards as set forth in Section 1(b), to provide incentives for such persons to exert maximum efforts for the success
of the Company and any Affiliate and to provide a means by which such eligible recipients may be given an opportunity to benefit
from increases in value of the Class A Common Stock through the granting of Awards.
(a)
Administration by Board. The Board shall administer the Plan unless and until the Board delegates administration of
the Plan to a Committee or Committees, as provided in Section 2(c).
(b)
Powers of Board. The Board shall have the power, subject to, and within the limitations of, the express provisions of
the Plan:
(i)
To determine from time to time (A) which of the persons eligible under the Plan shall be granted Awards; (B) when and
how each Award shall be granted; (C) what type or combination of types of Award shall be granted; (D) the provisions of each Award
granted (which need not be identical), including the time or times when a person shall be permitted to receive cash or Class A
Common Stock pursuant to a Stock Award; (E) the number of shares of Class A Common Stock with respect to which a Stock Award shall
be granted to each such person; and (F) the Fair Market Value applicable to a Stock Award.
(ii)
To construe and interpret the Plan and Awards granted under it, and to establish, amend and revoke rules and regulations
for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan
or in any Stock Award Agreement or in the written terms of a Performance Cash Award, in a manner and to the extent it shall deem
necessary or expedient to make the Plan or Award fully effective.
(iii)
To settle all controversies regarding the Plan and Awards granted under it.
(iv)
To accelerate the time at which an Award may first be exercised or the time during which an Award or any part thereof
will vest in accordance with the Plan, notwithstanding the provisions in the Award stating the time at which it may first be exercised
or the time during which it will vest.
(v)
To suspend or terminate the Plan at any time. Suspension or termination of the Plan shall not impair rights and obligations
under any Award granted while the Plan is in effect except with the written consent of the affected Participant.
(vi)
To amend the Plan in any respect the Board deems necessary or advisable. However, except as provided in Section 9(a)
relating to Capitalization Adjustments, to the extent required by applicable law or listing requirements, stockholder approval
shall be required for any amendment of the Plan that either (A) materially increases the number of shares of Class A Common Stock
available for issuance under the Plan, (B) materially expands the class of individuals eligible to receive Awards under the Plan,
(C) materially increases the benefits accruing to Participants under the Plan or materially reduces the price at which shares of
Class A Common Stock may be issued or purchased under the Plan, (D) materially extends the term of the Plan, or (E) expands the
types of Awards available for issuance under the Plan. Except as provided above, rights under any Award granted before amendment
of the Plan shall not be impaired by any amendment of the Plan unless (1) the Company requests the consent of the affected Participant,
and (2) such Participant consents in writing.
(vii)
To submit any amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan
intended to satisfy the requirements of (A) Section 162(m) of the Code regarding the exclusion of performance-based compensation
from the limit on corporate deductibility of compensation paid to Covered Employees, (B) Section 422 of the Code regarding incentive
stock options or (C) Rule 16b-3.
(viii)
To approve forms of Award Agreements for use under the Plan and to amend the terms of any one or more Awards, including,
but not limited to, amendments to provide terms more favorable to the Participant than previously provided in the Award Agreement,
subject to any specified limits in the Plan that are not subject to Board discretion; provided however, that except with
respect to amendments that disqualify or impair the status of an Incentive Stock Option, a Participant’s rights under any
Award shall not be impaired by any such amendment unless (A) the Company requests the consent of the affected Participant, and
(B) such Participant consents in writing. Notwithstanding the foregoing, subject to the limitations of applicable law, if any,
the Board may amend the terms of any one or more Awards without the affected Participant’s consent if necessary to maintain
the qualified status of the Award as an Incentive Stock Option or to bring the Award into compliance with Section 409A of the Code.
(ix)
Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the
best interests of the Company and that are not in conflict with the provisions of the Plan or Awards.
(x)
To adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by Employees,
Directors or Consultants who are foreign nationals or employed outside the United States.
(c)
Delegation to Committee.
(i)
General. The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration
of the Plan is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board that have been delegated to the Committee, including the power to delegate to a subcommittee
of the Committee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board
shall thereafter be to the Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions
of the Plan, as may be adopted from time to time by the Board. The Committee may, at any time, abolish the subcommittee and/or
revest in the Committee any powers delegated to the subcommittee. The Board may retain the authority to concurrently administer
the Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously delegated.
(ii)
Section 162(m) and Rule 16b-3 Compliance. The Committee may consist solely of two or more Outside Directors, in accordance
with Section 162(m) of the Code, or solely of two or more Non-Employee Directors, in accordance with Rule 16b-3.
(d)
Delegation to an Officer. The Board may delegate to one (1) or more Officers the authority to do one or both of the
following (i) designate Employees who are providing Continuous Service to the Company or any of its Subsidiaries who are not Officers
to be recipients of Options and Stock Appreciation Rights (and, to the extent permitted by applicable law, other Stock Awards)
and the terms thereof, and (ii) determine the number of shares of Common Stock to be subject to such Stock Awards granted to such
Employees; provided, however, that the Board resolutions regarding such delegation shall specify the total number of shares of
Common Stock that may be subject to the Stock Awards granted by such Officer and that such Officer may not grant a Stock Award
to himself or herself. Notwithstanding the foregoing, the Board may not delegate authority to an Officer to determine the Fair
Market Value pursuant to Section 13(w)(iii) below.
(e)
Effect of Board’s Decision. All determinations, interpretations and constructions made by the Board in good faith
shall not be subject to review by any person and shall be final, binding and conclusive on all persons.
(f)
Cancellation and Re-Grant of Stock Awards. Neither the Board nor any Committee shall have the authority to: (i) reduce
the exercise price of any outstanding Options or Stock Appreciation Rights under the Plan, or (ii) cancel any outstanding Options
or Stock Appreciation Rights that have an exercise price or strike price greater than the current Fair Market Value of the Class
A Common Stock in exchange for cash or other Stock Awards under the Plan, unless the stockholders of the Company have approved
such an action within twelve (12) months prior to such an event. Notwithstanding the foregoing, the Board or Committee shall have
the authority, without the approval of the Company’s stockholders, to cancel outstanding Options or Stock Appreciation Rights
that have an exercise price or strike price greater than the current Fair Market Value of the Class A Common Stock in exchange
only for a nominal cash payment of consideration as necessary to effect a cancellation of the Award, provided that such cancellation
is not treated as a repricing under United States generally accepted accounting principles.
| 3. | Shares Subject
to the Plan. |
(a)
Share Reserve. Subject to Section 9(a) relating to Capitalization Adjustments, the aggregate number of shares of Class
A Common Stock that may be issued pursuant to Stock Awards from and after the Effective Date shall not exceed nineteen million
one hundred two thousand seven hundred nineteen (19,102,719) shares (the “Share Reserve”), which number
is the sum of (i) 4,183,697, which is equal to the number of shares subject to the Prior Plan’s Available Reserve, (ii) an
additional 12,200,000 new shares, plus (iii) a maximum of 2,719,022 Returning Shares (which number consists of 1,102,676 which
became available for issuance after approval of the Plan and 1,616,346 shares which remain subject to stock awards under the Prior
Plan as of May 31, 2015). The number of shares available for issuance under the Plan shall be reduced by one (1) share for each
share of Class A Common Stock issued pursuant to any Stock Award granted under the Plan. For clarity, the number of shares reserved
for issuance in this Section 3(a) is a limitation on the number of shares of the Class A Common Stock that may be issued pursuant
to the Plan and does not limit the granting of Stock Awards except as provided in Section 7(a). Shares may be issued in connection
with a merger or acquisition as permitted by, as applicable, NASDAQ Listing Rule 5635(c) or, if applicable, NYSE Listed Company
Manual Section 303A.08, AMEX Company Guide Section 711 or other applicable rule, and such issuance shall not reduce the number
of shares available for issuance under the Plan. Furthermore, if a Stock Award or any portion thereof (i) expires or otherwise
terminates without all of the shares covered by such Stock Award having been issued or (ii) is settled in cash (i.e., the
Participant receives cash rather than stock), such expiration, termination or settlement shall not reduce (or otherwise offset)
the number of shares of Class A Common Stock that may be available for issuance under the Plan.
(b)
Reversion of Shares to the Share Reserve. If any shares of Class A Common Stock issued pursuant to a Stock Award are
forfeited back to the Company because of the failure to meet a contingency or condition required to vest such shares in the Participant,
then the shares that are forfeited shall revert to and again become available for issuance under the Plan. Any shares reacquired
by the Company pursuant to Section 8(g) or as consideration for the exercise of an Option shall again become available for issuance
under the Plan.
(c)
Incentive Stock Option Limit. Notwithstanding anything to the contrary in this Section 3 and, subject to the provisions
of Section 9(a) relating to Capitalization Adjustments, the aggregate maximum number of shares of Class A Common Stock that may
be issued pursuant to the exercise of Incentive Stock Options shall be nineteen million one hundred two thousand seven hundred
nineteen (19,102,719) shares of Class A Common Stock.
(d)
Section 162(m) Limitation on Annual Grants. Subject to the provisions of Section 9(a) relating to Capitalization Adjustments,
at such time as the Company may be subject to the applicable provisions of Section 162(m) of the Code, a maximum of Three Million
Five Hundred Thousand (3,500,000) shares of Class A Common Stock subject to Options, Stock Appreciation Rights and Other Stock
Awards whose value is determined by reference to an increase over an exercise or strike price of at least one hundred percent (100%)
of the Fair Market Value on the date any such Stock Award is granted may be granted to any Participant during any calendar year.
Notwithstanding the foregoing, if any additional Options, Stock Appreciation Rights or Other Stock Awards whose value is determined
by reference to an increase over an exercise or strike price of at least one hundred percent (100%) of the Fair Market Value on
the date the Stock Award are granted to any Participant during any calendar year, compensation attributable to the exercise of
such additional Stock Awards shall not satisfy the requirements to be considered “qualified performance-based compensation”
under Section 162(m) of the Code unless such additional Stock Award is approved by the Company’s stockholders.
(e)
Source of Shares. The stock issuable under the Plan shall be shares of authorized but unissued or reacquired Class A
Common Stock, including shares repurchased by the Company on the open market or otherwise.
(a)
Eligibility for Specific Stock Awards. Incentive Stock Options may be granted only to employees of the Company or a
“parent corporation” or “subsidiary corporation” thereof (as such terms are defined in Sections 424(e)
and (f) of the Code). Stock Awards other than Incentive Stock Options may be granted to Employees, Directors and Consultants; provided,
however, Nonstatutory Stock Options and SARs may not be granted to Employees, Directors and Consultants who are providing Continuous
Service only to any “parent” of the Company, as such term is defined in Rule 405 promulgated under the Securities
Act, unless the stock underlying such Stock Awards is treated as “service recipient stock” under Section 409A
of the Code because the Stock Awards are granted pursuant to a corporate transaction (such as a spin off transaction) or unless
such Stock Awards comply with the distribution requirements of Section 409A of the Code.
(b)
Ten Percent Stockholders. A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the exercise
price of such Option is at least one hundred ten percent (110%) of the Fair Market Value on the date of grant and the Option is
not exercisable after the expiration of five (5) years from the date of grant.
| 5. | Provisions
relating to Options and Stock Appreciation Rights. |
Each Option or SAR
shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. All Options shall be separately
designated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate
certificate or certificates shall be issued for shares of Class A Common Stock purchased on exercise of each type of Option. If
an Option is not specifically designated as an Incentive Stock Option, then the Option shall be a Nonstatutory Stock Option. The
provisions of separate Options or SARs need not be identical; provided, however, that each Option Agreement or Stock Appreciation
Right Agreement shall conform to (through incorporation of provisions hereof by reference in the applicable Award Agreement or
otherwise) the substance of each of the following provisions:
(a)
Term. Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, no Option or SAR shall be exercisable
after the expiration of ten (10) years from the date of its grant or such shorter period specified in the Award Agreement.
(b)
Exercise Price. Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, the exercise price (or
strike price) of each Option or SAR shall be not less than one hundred percent (100%) of the Fair Market Value of the Class A Common
Stock subject to the Option or SAR on the date the Option or SAR is granted. Notwithstanding the foregoing, an Option or SAR may
be granted with an exercise price (or strike price) lower than one hundred percent (100%) of the Fair Market Value of the Class
A Common Stock subject to the Option or SAR if such Option or SAR is granted pursuant to an assumption of or substitution for another
option or stock appreciation right pursuant to a Corporate Transaction and in a manner consistent with the provisions of Sections
409A and, if applicable, 424(a) of the Code. Each SAR will be denominated in shares of Class A Common Stock equivalents.
(c)
Purchase Price for Options. The purchase price of Class A Common Stock acquired pursuant to the exercise of an Option
shall be paid, to the extent permitted by applicable law and as determined by the Board in its sole discretion, by any combination
of the methods of payment set forth below. The Board shall have the authority to grant Options that do not permit all of the following
methods of payment (or otherwise restrict the ability to use certain methods) and to grant Options that require the consent of
the Company to utilize a particular method of payment. The permitted methods of payment are as follows:
(i)
by cash, check, bank draft or money order payable to the Company;
(ii)
pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance
of the stock subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable
instructions to pay the aggregate exercise price to the Company from the sales proceeds;
(iii)
by delivery to the Company (either by actual delivery or attestation) of shares of Class A Common Stock;
(iv)
if the option is a Nonstatutory Stock Option, by a “net exercise” arrangement pursuant to which the Company
will reduce the number of shares of Class A Common Stock issuable upon exercise by the largest whole number of shares with a Fair
Market Value that does not exceed the aggregate exercise price; provided, however, that the Company shall accept a cash
or other payment from the Participant to the extent of any remaining balance of the aggregate exercise price not satisfied by such
reduction in the number of whole shares to be issued; provided, further, that shares of Class A Common Stock will no longer
be subject to an Option and will not be exercisable thereafter to the extent that (A) shares issuable upon exercise are reduced
to pay the exercise price pursuant to the “net exercise,” (B) shares are delivered to the Participant as a result of
such exercise, and (C) shares are withheld to satisfy tax withholding obligations; or
(v)
in any other form of legal consideration that may be acceptable to the Board.
(d)
Exercise and Payment of a SAR. To exercise any outstanding Stock Appreciation Right, the Participant must provide written
notice of exercise to the Company in compliance with the provisions of the Stock Appreciation Right Agreement evidencing such Stock
Appreciation Right. The appreciation distribution payable on the exercise of a Stock Appreciation Right will be not greater than
an amount equal to the excess of (A) the aggregate Fair Market Value (on the date of the exercise of the Stock Appreciation Right)
of a number of shares of Class A Common Stock equal to the number of Class A Common Stock equivalents in which the Participant
is vested under such Stock Appreciation Right, and with respect to which the Participant is exercising the Stock Appreciation Right
on such date, over (B) the strike price that will be determined by the Board at the time of grant of the Stock Appreciation Right.
The appreciation distribution in respect to a Stock Appreciation Right may be paid in Class A Common Stock, in cash, in any combination
of the two or in any other form of consideration, as determined by the Board and contained in the Stock Appreciation Right Agreement
evidencing such Stock Appreciation Right.
(e)
Transferability of Options and SARs. The Board may, in its sole discretion, impose such limitations on the transferability
of Options and SARs as the Board shall determine. In the absence of such a determination by the Board to the contrary, the following
restrictions on the transferability of Options and SARs shall apply:
(i)
Restrictions on Transfer. An Option or SAR shall not be transferable except by will or by the laws of descent and distribution
and shall be exercisable during the lifetime of the Participant only by the Participant; provided, however, that the Board
may, in its sole discretion, permit transfer of the Option or SAR in a manner that is not prohibited by applicable tax and securities
laws upon the Participant’s request. Except as explicitly provided herein, neither an Option nor a SAR may be transferred
for consideration.
(ii)
Domestic Relations Orders. Notwithstanding the foregoing, an Option or SAR may be transferred pursuant to a domestic
relations order; provided, however, that if an Option is an Incentive Stock Option, such Option may be deemed to be a Nonstatutory
Stock Option as a result of such transfer.
(iii)
Beneficiary Designation. Notwithstanding the foregoing, the Participant may, by delivering written notice to the Company,
in a form provided by or otherwise satisfactory to the Company and any broker designated by the Company to effect Option exercises,
designate a third party who, in the event of the death of the Participant, shall thereafter be entitled to exercise the Option
or SAR and receive the Class A Common Stock or other consideration resulting from such exercise. In the absence of such a designation,
the executor or administrator of the Participant’s estate shall be entitled to exercise the Option or SAR and receive the
Class A Common Stock or other consideration resulting from such exercise.
(f)
Vesting Generally. The total number of shares of Class A Common Stock subject to an Option or SAR may vest and therefore
become exercisable in periodic installments that may or may not be equal. The Option or SAR may be subject to such other terms
and conditions on the time or times when it may or may not be exercised (which may be based on the satisfaction of Performance
Goals or other criteria) as the Board may deem appropriate. The vesting provisions of individual Options or SARs may vary. The
provisions of this Section 5(f) are subject to any Option or SAR provisions governing the minimum number of shares of Class A Common
Stock as to which an Option or SAR may be exercised.
(g)
Termination of Continuous Service. Except as otherwise provided in the applicable Award Agreement or other agreement
between the Participant and the Company, if a Participant’s Continuous Service terminates (other than for Cause or upon the
Participant’s death or Disability), the Participant may exercise his or her Option or SAR (to the extent that the Participant
was entitled to exercise such Award as of the date of termination of Continuous Service) but only within such period of time ending
on the earlier of (i) the date three (3) months following the termination of the Participant’s Continuous Service (or such
longer or shorter period specified in the applicable Award Agreement), or (ii) the expiration of the term of the Option or SAR
as set forth in the Award Agreement. If, after termination of Continuous Service, the Participant does not exercise his or her
Option or SAR within the time specified herein or in the Award Agreement (as applicable), the Option or SAR shall terminate.
(h)
Extension of Termination Date. If the exercise of an Option or SAR following the termination of the Participant’s
Continuous Service (other than for Cause or upon the Participant’s death or Disability) would be prohibited at any time solely
because the issuance of shares of Class A Common Stock would violate the registration requirements under the Securities Act, then
the Option or SAR shall terminate on the earlier of (i) the expiration of a total period of three (3) months (that need not be
consecutive) after the termination of the Participant’s Continuous Service during which the exercise of the Option or SAR
would not be in violation of such registration requirements, or (ii) the expiration of the term of the Option or SAR as set forth
in the applicable Award Agreement. In addition, unless otherwise provided in a Participant’s Award Agreement, if the immediate
sale of any Class A Common Stock received upon exercise of an Option or SAR following the termination of the Participant’s
Continuous Service (other than for Cause) would violate the Company’s insider trading policy, then the Option or SAR shall
terminate on the earlier of (i) the expiration of a period equal to the applicable post-termination exercise period after the termination
of the Participant’s Continuous Service during which the sale of the Class A Common Stock received upon exercise of the Option
or SAR would not be in violation of the Company’s insider trading policy, or (ii) the expiration of the term of the Option
or SAR as set forth in the applicable Award Agreement.
(i)
Disability of Participant. Except as otherwise provided in the applicable Award Agreement or other agreement between
the Participant and the Company, if a Participant’s Continuous Service terminates as a result of the Participant’s
Disability, the Participant may exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise
such Option or SAR as of the date of termination of Continuous Service), but only within such period of time ending on the earlier
of (i) the date twelve (12) months following such termination of Continuous Service (or such longer or shorter period specified
in the Award Agreement), or (ii) the expiration of the term of the Option or SAR as set forth in the Award Agreement. If, after
termination of Continuous Service, the Participant does not exercise his or her Option or SAR within the time specified herein
or in the Award Agreement (as applicable), the Option or SAR (as applicable) shall terminate.
(j)
Death of Participant. Except as otherwise provided in the applicable Award Agreement or other agreement between the
Participant and the Company, if (i) a Participant’s Continuous Service terminates as a result of the Participant’s
death, or (ii) the Participant dies within the period (if any) specified in the Award Agreement for exercisability after the termination
of the Participant’s Continuous Service (for a reason other than death), then the Option or SAR may be exercised (to the
extent the Participant was entitled to exercise such Option or SAR as of the date of death) by the Participant’s estate,
by a person who acquired the right to exercise the Option or SAR by bequest or inheritance or by a person designated to exercise
the Option or SAR upon the Participant’s death, but only within the period ending on the earlier of (i) the date eighteen
(18) months following the date of death (or such longer or shorter period specified in the Award Agreement), or (ii) the expiration
of the term of such Option or SAR as set forth in the Award Agreement. If, after the Participant’s death, the Option or SAR
is not exercised within the time specified herein or in the Award Agreement (as applicable), the Option or SAR shall terminate.
(k)
Termination for Cause. Except as explicitly provided otherwise in a Participant’s Award Agreement or other individual
written agreement between the Company or any Affiliate and the Participant, if a Participant’s Continuous Service is terminated
for Cause, the Option or SAR shall terminate immediately upon such Participant’s termination of Continuous Service, and the
Participant shall be prohibited from exercising his or her Option or SAR from and after the time of such termination of Continuous
Service.
(l)
Non-Exempt Employees. No Option or SAR, whether or not vested, granted to an Employee who is a non-exempt employee for
purposes of the Fair Labor Standards Act of 1938, as amended, shall be first exercisable for any shares of Class A Common Stock
until at least six months following the date of grant of the Option or SAR. Notwithstanding the foregoing, consistent with the
provisions of the Worker Economic Opportunity Act, (i) in the event of the Participant’s death or Disability, (ii) upon a
Corporate Transaction in which such Option or SAR is not assumed, continued, or substituted, (iii) upon a Change in Control, or
(iv) upon the Participant’s retirement (as such term may be defined in the Participant’s Award Agreement or in
another applicable agreement or in accordance with the Company’s then current employment policies and guidelines), any such
vested Options and SARs may be exercised earlier than six months following the date of grant. The foregoing provision is intended
to operate so that any income derived by a non-exempt employee in connection with the exercise or vesting of an Option or SAR will
be exempt from his or her regular rate of pay.
| 6. | Provisions
of Stock Awards other than Options and SARs. |
(a)
Restricted Stock Awards. Each Restricted Stock Award Agreement shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. To the extent consistent with the Company’s Bylaws, at the Board’s
election, shares of Class A Common Stock may be (i) held in book entry form subject to the Company’s instructions until any
restrictions relating to the Restricted Stock Award lapse; or (ii) evidenced by a certificate, which certificate shall be
held in such form and manner as determined by the Board. The terms and conditions of Restricted Stock Award Agreements may change
from time to time, and the terms and conditions of separate Restricted Stock Award Agreements need not be identical; provided,
however, that each Restricted Stock Award Agreement shall conform to (through incorporation of the provisions hereof by reference
in the agreement or otherwise) the substance of each of the following provisions:
(i)
Consideration. A Restricted Stock Award may be awarded in consideration for (A) cash, check, bank draft or money order
payable to the Company, (B) past services to the Company or an Affiliate, or (C) any other form of legal consideration (including
future services) that may be acceptable to the Board, in its sole discretion, and permissible under applicable law.
(ii)
Vesting. Shares of Class A Common Stock awarded under the Restricted Stock Award Agreement may be subject to forfeiture
to the Company in accordance with a vesting schedule to be determined by the Board.
(iii)
Termination of Participant’s Continuous Service. If a Participant’s Continuous Service terminates, the Company
may receive through a forfeiture condition or a repurchase right any or all of the shares of Class A Common Stock held by the Participant
that have not vested as of the date of termination of Continuous Service under the terms of the Restricted Stock Award Agreement.
(iv)
Transferability. Rights to acquire shares of Class A Common Stock under the Restricted Stock Award Agreement shall be
transferable by the Participant only upon such terms and conditions as are set forth in the Restricted Stock Award Agreement, as
the Board shall determine in its sole discretion, so long as Class A Common Stock awarded under the Restricted Stock Award Agreement
remains subject to the terms of the Restricted Stock Award Agreement.
(v)
Dividends. A Restricted Stock Award Agreement may provide that any dividends paid on Restricted Stock will be subject
to the same vesting and forfeiture restrictions as apply to the shares subject to the Restricted Stock Award to which they relate.
(b)
Restricted Stock Unit Awards. Each Restricted Stock Unit Award Agreement shall be in such form and shall contain such
terms and conditions as the Board shall deem appropriate. The terms and conditions of Restricted Stock Unit Award Agreements may
change from time to time, and the terms and conditions of separate Restricted Stock Unit Award Agreements need not be identical;
provided, however, that each Restricted Stock Unit Award Agreement shall conform to (through incorporation of the
provisions hereof by reference in the Agreement or otherwise) the substance of each of the following provisions:
(i)
Consideration. At the time of grant of a Restricted Stock Unit Award, the Board will determine the consideration, if
any, to be paid by the Participant upon delivery of each share of Class A Common Stock subject to the Restricted Stock Unit Award.
The consideration to be paid (if any) by the Participant for each share of Class A Common Stock subject to a Restricted Stock Unit
Award may be paid in any form of legal consideration that may be acceptable to the Board, in its sole discretion, and permissible
under applicable law.
(ii)
Vesting. At the time of the grant of a Restricted Stock Unit Award, the Board may impose such restrictions on or conditions
to the vesting of the Restricted Stock Unit Award as it, in its sole discretion, deems appropriate.
(iii)
Payment. A Restricted Stock Unit Award may be settled by the delivery of shares of Class A Common Stock, their cash
equivalent, any combination thereof or in any other form of consideration, as determined by the Board and contained in the Restricted
Stock Unit Award Agreement.
(iv)
Additional Restrictions. At the time of the grant of a Restricted Stock Unit Award, the Board, as it deems appropriate,
may impose such restrictions or conditions that delay the delivery of the shares of Class A Common Stock (or their cash equivalent)
subject to a Restricted Stock Unit Award to a time after the vesting of such Restricted Stock Unit Award.
(v)
Dividend Equivalents. Dividend equivalents may be credited in respect of shares of Class A Common Stock covered by a
Restricted Stock Unit Award, as determined by the Board and contained in the Restricted Stock Unit Award Agreement. At the sole
discretion of the Board, such dividend equivalents may be converted into additional shares of Class A Common Stock covered by the
Restricted Stock Unit Award in such manner as determined by the Board. Any additional shares covered by the Restricted Stock Unit
Award credited by reason of such dividend equivalents will be subject to all of the same terms and conditions of the underlying
Restricted Stock Unit Award Agreement to which they relate.
(vi)
Termination of Participant’s Continuous Service. Except as otherwise provided in the applicable Restricted Stock
Unit Award Agreement, such portion of the Restricted Stock Unit Award that has not vested will be forfeited upon the Participant’s
termination of Continuous Service.
(c)
Performance Awards.
(i)
Performance Stock Awards. A Performance Stock Award is a Stock Award that may vest or may be exercised contingent upon
the attainment during a Performance Period of certain Performance Goals. A Performance Stock Award may, but need not, require the
completion of a specified period of Continuous Service. The length of any Performance Period, the Performance Goals to be achieved
during the Performance Period, and the measure of whether and to what degree such Performance Goals have been attained shall be
conclusively determined by the Committee, in its sole discretion. The maximum number of shares covered by an Award that may be
granted to any Participant in a calendar year attributable to Stock Awards described in this Section 6(c)(i) (whether the grant,
vesting or exercise is contingent upon the attainment during a Performance Period of the Performance Goals) shall not exceed three
million five hundred thousand (3,500,000) shares of Class A Common Stock. The Board may provide for or, subject to such terms and
conditions as the Board may specify, may permit a Participant to elect for, the payment of any Performance Stock Award to be deferred
to a specified date or event. In addition, to the extent permitted by applicable law and the applicable Award Agreement, the Board
may determine that cash may be used in payment of Performance Stock Awards.
(ii)
Performance Cash Awards. A Performance Cash Award is a cash award that may be paid contingent upon the attainment during
a Performance Period of certain Performance Goals. A Performance Cash Award may also require the completion of a specified period
of Continuous Service. At the time of grant of a Performance Cash Award, the length of any Performance Period, the Performance
Goals to be achieved during the Performance Period, and the measure of whether and to what degree such Performance Goals have been
attained shall be conclusively determined by the Committee, in its sole discretion. In any calendar year, the Committee may not
grant a Performance Cash Award that has a maximum value that may be paid to any Participant in excess of one million dollars ($1,000,000).
The Board may provide for or, subject to such terms and conditions as the Board may specify, may permit a Participant to elect
for, the payment of any Performance Cash Award to be deferred to a specified date or event. The Committee may specify the form
of payment of Performance Cash Awards, which may be cash or other property, or may provide for a Participant to have the option
for his or her Performance Cash Award, or such portion thereof as the Board may specify, to be paid in whole or in part in cash
or other property.
(iii)
Board Discretion. The Board retains the discretion to reduce or eliminate the compensation or economic benefit due upon
attainment of Performance Goals and to define the manner of calculating the Performance Criteria it selects to use for a Performance
Period.
(iv)
Section 162(m) Compliance. Unless otherwise permitted in compliance with the requirements of Section 162(m) of the Code
with respect to an Award intended to qualify as “performance-based compensation” thereunder, the Committee shall establish
the Performance Goals applicable to, and the formula for calculating the amount payable under, the Award no later than the earlier
of (a) the date ninety (90) days after the commencement of the applicable Performance Period, or (b) the date on which twenty-five
percent (25%) of the Performance Period has elapsed, and in either event at a time when the achievement of the applicable Performance
Goals remains substantially uncertain. Prior to the payment of any compensation under an Award intended to qualify as “performance-based
compensation” under Section 162(m) of the Code, the Committee shall certify the extent to which any Performance Goals
and any other material terms under such Award have been satisfied (other than in cases where such relate solely to the increase
in the value of the Class A Common Stock). Notwithstanding satisfaction of any completion of any Performance Goals, to the extent
specified at the time of grant of an Award to “covered employees” within the meaning of Section 162(m) of the Code,
the number of shares of Class A Common Stock, Options, cash or other benefits granted, issued, retainable and/or vested under an
Award on account of satisfaction of such Performance Goals may be reduced by the Committee on the basis of such further considerations
as the Committee, in its sole discretion, shall determine.
(d)
Other Stock Awards. Other forms of Stock Awards valued in whole or in part by reference to, or otherwise based on, Class
A Common Stock, including the appreciation in value thereof (e.g., options or stock rights with an exercise price or strike price
less than 100% of the Fair Market Value of the Class A Common Stock at the time of grant) may be granted either alone or in addition
to Stock Awards provided for under Section 5 and the preceding provisions of this Section 6. Subject to the provisions of the Plan,
the Board shall have sole and complete authority to determine the persons to whom and the time or times at which such Other Stock
Awards will be granted, the number of shares of Class A Common Stock (or the cash equivalent thereof) to be granted pursuant to
such Other Stock Awards and all other terms and conditions of such Other Stock Awards.
| 7. | Covenants of
the Company. |
(a)
Availability of Shares. During the terms of the Stock Awards, the Company shall keep available at all times the number
of shares of Class A Common Stock reasonably required to satisfy such Stock Awards.
(b)
Securities Law Compliance. The Company shall seek to obtain from each regulatory commission or agency having jurisdiction
over the Plan such authority as may be required to grant Stock Awards and to issue and sell shares of Class A Common Stock upon
exercise of the Stock Awards; provided, however, that this undertaking shall not require the Company to register under the
Securities Act the Plan, any Stock Award or any Class A Common Stock issued or issuable pursuant to any such Stock Award. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for
the Company deems necessary for the lawful issuance and sale of Class A Common Stock under the Plan, the Company shall be relieved
from any liability for failure to issue and sell Class A Common Stock upon exercise of such Stock Awards unless and until such
authority is obtained. A Participant shall not be eligible for the grant of a Stock Award or the subsequent issuance of Class A
Common Stock pursuant to the Stock Award if such grant or issuance would be in violation of any applicable securities law.
(c)
No Obligation to Notify or Minimize Taxes. The Company shall have no duty or obligation to any Participant to advise
such holder as to the time or manner of exercising such Stock Award. Furthermore, the Company shall have no duty or obligation
to warn or otherwise advise such holder of a pending termination or expiration of a Stock Award or a possible period in which the
Stock Award may not be exercised. The Company has no duty or obligation to minimize the tax consequences of a Stock Award to the
holder of such Stock Award.
(a)
Use of Proceeds from Sales of Class A Common Stock. Proceeds from the sale of shares of Class A Common Stock pursuant
to Stock Awards shall constitute general funds of the Company.
(b)
Corporate Action Constituting Grant of Stock Awards. Corporate action constituting a grant by the Company of a Stock
Award to any Participant shall be deemed completed as of the date of such corporate action, unless otherwise determined by the
Board, regardless of when the instrument, certificate, or letter evidencing the Stock Award is communicated to, or actually received
or accepted by, the Participant.
(c)
Stockholder Rights. No Participant shall be deemed to be the holder of, or to have any of the rights of a holder with
respect to, any shares of Class A Common Stock subject to such Stock Award unless and until (i) such Participant has satisfied
all requirements for exercise of the Stock Award pursuant to its terms, if applicable, and (ii) the issuance of the Class A Common
Stock subject to such Stock Award has been entered into the books and records of the Company.
(d)
No Employment or Other Service Rights. Nothing in the Plan, any Stock Award Agreement or any other instrument executed
thereunder or in connection with any Award granted pursuant thereto shall confer upon any Participant any right to continue to
serve the Company or an Affiliate in the capacity in effect at the time the Stock Award was granted or shall affect the right of
the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, (ii)
the service of a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate, or (iii)
the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable provisions of the corporate
law of the state in which the Company or the Affiliate is incorporated, as the case may be.
(e)
Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market Value (determined at the time
of grant) of Class A Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder
during any calendar year (under all plans of the Company and any Affiliates) exceeds one hundred thousand dollars ($100,000), the
Options or portions thereof that exceed such limit (according to the order in which they were granted) shall be treated as Nonstatutory
Stock Options, notwithstanding any contrary provision of the applicable Option Agreement(s).
(f)
Investment Assurances. The Company may require a Participant, as a condition of exercising or acquiring Class A Common
Stock under any Stock Award, (i) to give written assurances satisfactory to the Company as to the Participant’s knowledge
and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company
who is knowledgeable and experienced in financial and business matters and that he or she is capable of evaluating, alone or together
with the purchaser representative, the merits and risks of exercising the Stock Award; and (ii) to give written assurances satisfactory
to the Company stating that the Participant is acquiring Class A Common Stock subject to the Stock Award for the Participant’s
own account and not with any present intention of selling or otherwise distributing the Class A Common Stock. The foregoing requirements,
and any assurances given pursuant to such requirements, shall be inoperative if (A) the issuance of the shares upon the exercise
or acquisition of Class A Common Stock under the Stock Award has been registered under a then currently effective registration
statement under the Securities Act, or (B) as to any particular requirement, a determination is made by counsel for the Company
that such requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon advice
of counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate
in order to comply with applicable securities laws, including, but not limited to, legends restricting the transfer of the Class
A Common Stock.
(g)
Withholding Obligations. Unless prohibited by the terms of a Stock Award Agreement, the Company may, in its sole discretion,
satisfy any federal, state or local tax withholding obligation relating to an Award by any of the following means or by a combination
of such means: (i) causing the Participant to tender a cash payment; (ii) withholding shares of Class A Common Stock
from the shares of Class A Common Stock issued or otherwise issuable to the Participant in connection with the Award; provided,
however, that no shares of Class A Common Stock are withheld with a value exceeding the minimum amount of tax required to be
withheld by law (or such lesser amount as may be necessary to avoid classification of the Stock Award as a liability for financial
accounting purposes); (iii) withholding cash from an Award settled in cash; (iv) withholding payment from any amounts otherwise
payable to the Participant; or (v) by such other method as may be set forth in the Award Agreement.
(h)
Electronic Delivery. Any reference herein to a “written” agreement or document shall include any agreement
or document delivered electronically or posted on the Company’s intranet (or other shared electronic medium controlled by
the Company to which the Participant has access).
(i)
Deferrals. To the extent permitted by applicable law, the Board, in its sole discretion, may determine that the delivery
of Class A 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. Consistent with Section 409A of the Code, the Board may provide for distributions
while a Participant is still an employee or otherwise providing services to the Company. The Board 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 of Continuous Service, and implement such other terms and conditions consistent with the provisions
of the Plan and in accordance with applicable law.
(j)
Compliance with Section 409A. To the extent that the Board determines that any Award granted hereunder is subject to
Section 409A of the Code, the Award Agreement evidencing such Award shall incorporate the terms and conditions necessary to avoid
the consequences specified in Section 409A(a)(1) of the Code. To the extent applicable, the Plan and Award Agreements shall be
interpreted in accordance with Section 409A of the Code. Notwithstanding anything to the contrary in this Plan (and unless the
Award Agreement specifically provides otherwise), if the shares of Class A Common Stock are publicly traded and 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 shall be made upon a “separation from
service” before a date that is six (6) months following the date of such Participant’s “separation from service”
(as defined in Section 409A of the Code without regard to alternative definitions thereunder) or, if earlier, the date of the Participant’s
death.
| 9. | Adjustments
upon Changes in Stock; Other Corporate Events. |
(a)
Capitalization Adjustments. In the event of a Capitalization Adjustment, the Board shall appropriately and proportionately
adjust: (i) the class(es) and maximum number of securities subject to the Plan pursuant to Section 3(a), (ii) the class(es) and
maximum number of securities that may be issued pursuant to the exercise of Incentive Stock Options pursuant to Section 3(c), (iii)
the class(es) and maximum number of securities that may be awarded to any person pursuant to Sections 3(d) and 6(c)(i) , and (iv)
the class(es) and number of securities and price per share of stock subject to outstanding Stock Awards. The Board shall make such
adjustments, and its determination shall be final, binding and conclusive.
(b)
Dissolution or Liquidation. Except as otherwise provided in the Stock Award Agreement, in the event of a dissolution
or liquidation of the Company, all outstanding Stock Awards (other than Stock Awards consisting of vested and outstanding shares
of Class A Common Stock not subject to a forfeiture condition or the Company’s right of repurchase) shall terminate immediately
prior to the completion of such dissolution or liquidation, and the shares of Class A 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 Stock Award is providing Continuous Service, provided, however, that the Board may, in its sole
discretion, cause some or all Stock Awards to become fully vested, exercisable and/or no longer subject to repurchase or forfeiture
(to the extent such Stock Awards have not previously expired or terminated) before the dissolution or liquidation is completed
but contingent on its completion.
(c)
Corporate Transaction. The following provisions shall apply to Stock Awards in the event of a Corporate Transaction
unless otherwise provided in the instrument evidencing the Stock Award or any other written agreement between the Company or any
Affiliate and the Participant or unless otherwise expressly provided by the Board at the time of grant of a Stock Award. In the
event of a Corporate Transaction, then, notwithstanding any other provision of the Plan, the Board shall take one or more of the
following actions with respect to Stock Awards, contingent upon the closing or completion of the Corporate Transaction:
(i)
arrange for the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent
company) to assume or continue the Stock Award or to substitute a similar stock award for the Stock Award (including, but not limited
to, an award to acquire the same consideration paid to the stockholders of the Company pursuant to the Corporate Transaction);
(ii)
arrange for the assignment of any reacquisition or repurchase rights held by the Company in respect of Class A Common
Stock issued pursuant to the Stock Award to the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s
parent company);
(iii)
accelerate the vesting, in whole or in part, of the Stock Award (and, if applicable, the time at which the Stock Award
may be exercised) to a date prior to the effective time of such Corporate Transaction as the Board shall determine (or, if the
Board shall not determine such a date, to the date that is five (5) days prior to the effective date of the Corporate Transaction),
with such Stock Award terminating if not exercised (if applicable) at or prior to the effective time of the Corporate Transaction;
(iv)
arrange for the lapse of any reacquisition or repurchase rights held by the Company with respect to the Stock Award;
(v)
cancel or arrange for the cancellation of the Stock Award, to the extent not vested or not exercised prior to the effective
time of the Corporate Transaction, in exchange for such cash consideration, if any, as the Board, in its sole discretion, may consider
appropriate; or
(vi)
make a payment, in such form as may be determined by the Board equal to the excess, if any, of (A) the value of the
property the Participant would have received upon the exercise of the Stock Award, over (B) any exercise price payable by such
holder in connection with such exercise.
The Board need not take the same action
or actions with respect to all Stock Awards or portions thereof or with respect to all Participants.
(d)
Change in Control. A Stock Award may be subject to additional acceleration of vesting and exercisability upon or after
a Change in Control as may be provided in the Stock Award Agreement for such Stock Award or as may be provided in any other written
agreement between the Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration
shall occur.
| 10. | Termination
or Suspension of the Plan. |
(a)
Plan Term. The Board may suspend or terminate the Plan at any time. Unless terminated sooner by the Board, the Plan
shall automatically terminate on the day before the tenth (10th) anniversary of the earlier of (i) the date the Plan is adopted
by the Board, or (ii) the date the Plan is approved by the stockholders of the Company. No Awards may be granted under the Plan
while the Plan is suspended or after it is terminated.
(b)
No Impairment of Rights. Suspension or termination of the Plan shall not impair rights and obligations under any Award
granted while the Plan is in effect except with the written consent of the affected Participant.
| 11. | Effective Date
of Plan. |
This Plan shall become
effective on the Effective Date.
The laws of the State
of Delaware shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to
that state’s conflict of laws rules.
| 13. | Definitions.
As used in the Plan, the following definitions shall apply to the capitalized terms indicated below: |
(a)
“Affiliate” means, at the time of determination, any “parent” or “subsidiary”
of the Company as such terms are defined in Rule 405 promulgated under the Securities Act. The Board shall have the authority to
determine the time or times at which “parent” or “subsidiary” status is determined within the foregoing
definition.
(b)
“Award” means a Stock Award or a Performance Cash Award.
(c)
“Award Agreement” means a written agreement between the Company and a Participant evidencing
the terms and conditions of an Award.
(d)
“Board” means the Board of Directors of the Company.
(e)
“Capitalization Adjustment” means any change that is made in, or other events that occur with
respect to, the Class A Common Stock subject to the Plan or subject to any Stock Award after the Effective Date without the receipt
of consideration by the Company through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend,
dividend in property other than cash, large nonrecurring cash dividend, stock split, liquidating dividend, combination of shares,
exchange of shares, change in corporate structure or any similar equity restructuring transaction, as that term is used in Statement
of Financial Accounting Standards No. 123 (revised). Notwithstanding the foregoing, the conversion of any convertible securities
of the Company shall not be treated as a Capitalization Adjustment.
(f)
“Cause” shall have the meaning ascribed to such term in any written agreement
between the Participant and the Company defining such term and, in the absence of such agreement, such term shall mean, with respect
to a Participant, the occurrence of any of the following events that has a material negative impact on the business or reputation
of the Company: (i) such Participant’s attempted commission of, or participation in, a fraud or act of dishonesty against
the Company; (ii) such Participant’s intentional, material violation of any contract or agreement between the Participant
and the Company or of any statutory duty owed to the Company; (iii) such Participant’s unauthorized use or disclosure
of the Company’s confidential information or trade secrets; or (iv) such Participant’s gross misconduct. The determination
that a termination of the Participant’s Continuous Service is either for Cause or without Cause shall be made by the Company,
in its sole discretion. Any determination by the Company that the Continuous Service of a Participant was terminated with or without
Cause for the purposes of outstanding Awards held by such Participant shall have no effect upon any determination of the rights
or obligations of the Company or such Participant for any other purpose.
(g)
“Change in Control” means the occurrence, in a single transaction or in a series of related
transactions, of any one or more of the following:
(i)
any Exchange Act Person (other than Larry Ellison, Michael Milken, Lowell Milken, or any combination of the foregoing)
becomes the Owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction.
(ii)
there is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and,
immediately after the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately
prior thereto do not Own, directly or indirectly, either (A) outstanding voting securities representing more than fifty percent
(50%) of the combined outstanding voting power of the surviving Entity in such merger, consolidation or similar transaction or
(B) more than fifty percent (50%) of the combined outstanding voting power of the parent of the surviving Entity in such merger,
consolidation or similar transaction, in each case in substantially the same proportions as their Ownership of the outstanding
voting securities of the Company immediately prior to such transaction;
(iii)
the stockholders of the Company approve or the Board approves a plan of complete dissolution or liquidation of the Company,
or a complete dissolution or liquidation of the Company shall otherwise occur, except for a liquidation into a parent corporation;
(iv)
there is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated
assets of the Company and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all
of the consolidated assets of the Company and its Subsidiaries to an Entity, more than fifty percent (50%) of the combined voting
power of the voting securities of which are Owned by stockholders of the Company in substantially the same proportions as their
Ownership of the outstanding voting securities of the Company immediately prior to such sale, lease, license or other disposition;
or
Notwithstanding the
foregoing or any other provision of this Plan, (A) the term Change in Control shall not include a sale of assets, merger or other
transaction effected exclusively for the purpose of changing the domicile of the Company, and (B) the definition of Change in Control
(or any analogous term) in an individual written agreement between the Company or any Affiliate and the Participant shall supersede
the foregoing definition with respect to Awards subject to such agreement; provided, however, that if no definition of Change
in Control or any analogous term is set forth in such an individual written agreement, the foregoing definition shall apply.
(h)
“Class A Common Stock” means the Class A common stock of the Company.
(i)
“Code” means the Internal Revenue Code of 1986, as amended, including any applicable regulations
and guidance thereunder.
(j)
“Committee” means a committee of one or more Directors to whom authority has been delegated
by the Board in accordance with Section 2(c).
(k)
“Company” means LeapFrog Enterprises, Inc., a Delaware corporation.
(l)
“Consultant” means any person, including an advisor, who is (i) engaged by the Company or
an Affiliate to render consulting or advisory services and is compensated for such services, or (ii) serving as a member of the
board of directors of an Affiliate and is compensated for such services. However, service solely as a Director, or payment of a
fee for such service, shall not cause a Director to be considered a “Consultant” for purposes of the Plan. Notwithstanding
the foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration Statement under the Securities
Act is available to register either the offer or the sale of the Company’s securities to such person.
(m)
“Continuous Service” means that the Participant’s service with the Company or an Affiliate,
whether as an Employee, Director or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant
renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity for which the Participant
renders such service, provided that there is no interruption or termination of the Participant’s service with the Company
or an Affiliate, shall not terminate a Participant’s Continuous Service; provided, however, if the Entity for which
a Participant is rendering services ceases to qualify as an Affiliate, as determined by the Board, in its sole discretion, such
Participant’s Continuous Service shall be considered to have terminated on the date such Entity ceases to qualify as an Affiliate.
To the extent permitted by law, the Board or the chief executive officer of the Company, in that party’s sole discretion,
may determine whether Continuous Service shall be considered interrupted in the case of (i) any leave of absence approved by the
Board or Chief Executive Officer, including sick leave, military leave or any other personal leave, or (ii) transfers between the
Company, an Affiliate, or their successors. Notwithstanding the foregoing, a leave of absence shall be treated as Continuous Service
for purposes of vesting in a Stock Award only to such extent as may be provided in the Company’s leave of absence policy,
in the written terms of any leave of absence agreement or policy applicable to the Participant, or as otherwise required by law.
(n)
“Corporate Transaction” means the consummation, in a single transaction or in a series of
related transactions, of any one or more of the following events:
(i)
a sale or other disposition of all or substantially all, as determined by the Board, in its sole discretion,
of the consolidated assets of the Company and its Subsidiaries;
(ii)
a sale or other disposition of at least ninety percent (90%) of the outstanding securities of the Company;
(iii)
a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or
(iv)
a merger, consolidation or similar transaction following which the Company is the surviving corporation but the shares
of Class A Common Stock outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged
by virtue of the merger, consolidation or similar transaction into other property, whether in the form of securities, cash or otherwise.
(o)
“Covered Employee” shall have the meaning provided in Section 162(m)(3) of the Code.
(p)
“Director” means a member of the Board.
(q)
“Disability” means, with respect to a Participant, the inability of such Participant to engage
in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months,
as provided in Sections 22(e)(3) and 409A(a)(2)(c)(i) of the Code, and shall be determined by the Board on the basis of such medical
evidence as the Board deems warranted under the circumstances.
(r)
“Effective Date” means June 2, 2011.
(s)
“Employee” means any person employed by the Company or an Affiliate. However, service solely
as a Director, or payment of a fee for such services, shall not cause a Director to be considered an “Employee” for
purposes of the Plan.
(t)
“Entity” means a corporation, partnership, limited liability company, or other entity.
(u)
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
(v)
“Exchange Act Person” means any natural person, Entity or “group”
(within the meaning of Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include
(i) the Company or any Subsidiary of the Company, (ii) any employee benefit plan of the Company or any Subsidiary of the Company
or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary of the Company,
(iii) an underwriter temporarily holding securities pursuant to a registered public offering of such securities, (iv) an Entity
Owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their Ownership of stock
of the Company; or (v) any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange
Act) that, as of the Effective Date, is the Owner, directly or indirectly, of securities of the Company representing more than
fifty percent (50%) of the combined voting power of the Company’s then outstanding securities.
(w)
“Fair Market Value” means, as of any date, the value of the Class A Common Stock determined
as follows:
(i)
If the Class A Common Stock is listed on any established stock exchange or traded on any established market, the Fair
Market Value of a share of Class A Common Stock shall be the closing selling price for such stock as quoted on such exchange or
market (or the exchange or market with the greatest volume of trading in the Class A Common Stock) on the date of determination
or, if the day of determination is not a market trading day, the last market trading day prior to the day of determination, as
reported in a source the Board deems reliable.
(ii)
Unless otherwise provided by the Board, if there is no closing sales price for the Class A Common Stock on the date
of determination, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation
exists.
(iii)
In the absence of such markets for the Class A Common Stock, the Fair Market Value shall be determined by the Board
in good faith and in a manner that complies with Sections 409A and 422 of the Code.
(x)
“Incentive Stock Option” means an option granted pursuant to Section 5 of the Plan that is
intended to be, and qualifies as, an “incentive stock option” within the meaning of Section 422 of the Code.
(y)
“Non-Employee Director” means a Director who either (i) is not a current employee or
officer of the Company or an Affiliate, does not receive compensation, either directly or indirectly, from the Company or an Affiliate
for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to which disclosure
would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act (“Regulation S-K”)),
does not possess an interest in any other transaction for which disclosure would be required under Item 404(a) of Regulation S-K,
and is not engaged in a business relationship for which disclosure would be required pursuant to Item 404(b) of Regulation
S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3.
(z)
“Nonstatutory Stock Option” means any option granted pursuant to Section 5 of the Plan that
does not qualify as an Incentive Stock Option.
(aa)
“Officer” means a person who is an officer of the Company within the meaning of Section 16
of the Exchange Act.
(bb)
“Option” means an Incentive Stock Option or a Nonstatutory Stock Option to purchase shares
of Class A Common Stock granted pursuant to the Plan.
(cc)
“Option Agreement” means a written agreement between the Company and an Optionholder evidencing
the terms and conditions of an Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan.
(dd)
“Optionholder” means a person to whom an Option is granted pursuant to the Plan or, if applicable,
such other person who holds an outstanding Option.
(ee)
“Other Stock Award” means an award based in whole or in part by reference to the Class A Common
Stock which is granted pursuant to the terms and conditions of Section 6(d).
(ff)
“Other Stock Award Agreement” means a written agreement between the Company
and a holder of an Other Stock Award evidencing the terms and conditions of an Other Stock Award grant. Each Other Stock Award
Agreement shall be subject to the terms and conditions of the Plan.
(gg)
“Outside Director” means a Director who either (i) is not a current employee of the Company
or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated under Section 162(m) of the
Code), is not a former employee of the Company or an “affiliated corporation” who receives compensation for prior services
(other than benefits under a tax-qualified retirement plan) during the taxable year, has not been an officer of the Company or
an “affiliated corporation,” and does not receive remuneration from the Company or an “affiliated corporation,”
either directly or indirectly, in any capacity other than as a Director, or (ii) is otherwise considered an “outside director”
for purposes of Section 162(m) of the Code.
(hh)
“Own,” “Owned,” “Owner,”
“Ownership” A person or Entity shall be deemed to “Own,” to have “Owned,”
to be the “Owner” of, or to have acquired “Ownership” of securities if such person or Entity, directly
or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares voting power, which includes
the power to vote or to direct the voting, with respect to such securities.
(ii)
“Participant” means a person to whom an Award is granted pursuant to the Plan or, if applicable,
such other person who holds an outstanding Stock Award.
(jj)
“Performance Cash Award” means an award of cash granted pursuant to the terms and conditions
of Section 6(c)(ii).
(kk)
“Performance Criteria” means the one or more criteria that the Board shall select for purposes
of establishing the Performance Goals for a Performance Period. The Performance Criteria that shall be used to establish such Performance
Goals may be based on any one of, or combination of, the following as determined by the Board: (i) earnings (including earnings
per share and net earnings); (ii) earnings before interest, taxes and depreciation; (iii) earnings before interest, taxes, depreciation
and amortization; (iv) total stockholder return; (v) return on equity or average stockholder’s equity; (vi) return on assets,
investment, or capital employed; (vii) stock price; (viii) margin (including gross margin); (ix) income (before or after taxes);
(x) operating income; (xi) operating income after taxes; (xii) pre-tax profit; (xiii) operating cash flow; (xiv) sales or revenue
targets; (xv) increases in revenue or product revenue; (xvi) expenses and cost reduction goals; (xvii) improvement in or attainment
of working capital levels; (xiii) economic value added (or an equivalent metric); (xix) market share; (xx) cash flow; (xxi) cash
flow per share; (xxii) share price performance; (xxiii) debt reduction; (xxiv) implementation or completion of projects or processes;
(xxv) customer satisfaction; (xxvi) stockholders’ equity; (xxvii) capital expenditures; (xxiii) debt levels; (xxix) operating
profit or net operating profit; (xxx) workforce diversity; (xxxi) growth of net income or operating income; (xxxii) billings; and
(xxxiii) to the extent that an Award is not intended to comply with Section 162(m) of the Code, other measures of performance selected
by the Board.
(ll)
“Performance Goals” means, for a Performance Period, the one or more goals established by
the Board for the Performance Period based upon the Performance Criteria. Performance Goals may be based on a Company-wide basis,
with respect to one or more business units, divisions, Affiliates, or business segments, and in either absolute terms or relative
to the performance of one or more comparable companies or the performance of one or more relevant indices. Unless specified otherwise
by the Board (i) in the Award Agreement at the time the Award is granted or (ii) in such other document setting forth the Performance
Goals at the time the Performance Goals are established, the Board may make adjustments in the method of calculating the attainment
of Performance Goals for a Performance Period as follows: (1) to exclude restructuring and/or other nonrecurring charges; (2) to
exclude exchange rate effects, as applicable, for non-U.S. dollar denominated Performance Goals; (3) to exclude the effects of
changes to generally accepted accounting principles; (4) to exclude the effects of any statutory adjustments to corporate tax rates;
(5) to exclude the effects of any “extraordinary items” as determined under generally accepted accounting principles;
(6) to exclude the dilutive effects of acquisitions or joint ventures; (7) to assume that any business divested by the Company
achieved performance objectives at targeted levels during the balance of a Performance Period following such divestiture; (8) to
exclude the effect of any change in the outstanding shares of common stock of the Company by reason of any stock dividend or split,
stock repurchase, reorganization, recapitalization, merger, consolidation, spin-off, combination or exchange of shares or other
similar corporate change, or any distributions to common shareholders other than regular cash dividends; and (9) to exclude the
effect of any other unusual, non-recurring gain or loss or other extraordinary item.
(mm)
“Performance Period” means the period of time selected by the Board over which the attainment
of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to and the payment
of a Stock Award or a Performance Cash Award. Performance Periods may be of varying and overlapping duration, at the sole discretion
of the Board.
(nn)
“Performance Stock Award” means a Stock Award granted under the terms and conditions of Section
6(c)(i).
(oo)
“Plan” means this LeapFrog Enterprises, Inc. 2011 Equity and Incentive Plan.
(pp)
“Restricted Stock Award” means an award of shares of Class A Common Stock which is granted
pursuant to the terms and conditions of Section 6(a).
(qq)
“Restricted Stock Award Agreement” means a written agreement between the Company and a holder
of a Restricted Stock Award evidencing the terms and conditions of a Restricted Stock Award grant. Each Restricted Stock Award
Agreement shall be subject to the terms and conditions of the Plan.
(rr)
“Restricted Stock Unit Award” means a right to receive shares of Class A Common
Stock which is granted pursuant to the terms and conditions of Section 6(b).
(ss)
“Restricted Stock Unit Award Agreement” means a written agreement between the
Company and a holder of a Restricted Stock Unit Award evidencing the terms and conditions of a Restricted Stock Unit Award grant.
Each Restricted Stock Unit Award Agreement shall be subject to the terms and conditions of the Plan.
(tt)
“Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule
16b-3, as in effect from time to time.
(uu)
“Securities Act” means the Securities Act of 1933, as amended.
(vv)
“Stock Appreciation Right” or “SAR” means a right
to receive the appreciation on Class A Common Stock that is granted pursuant to the terms and conditions of Section 5.
(ww)
“Stock Appreciation Right Agreement” means a written agreement between the Company and a holder
of a Stock Appreciation Right evidencing the terms and conditions of a Stock Appreciation Right grant. Each Stock Appreciation
Right Agreement shall be subject to the terms and conditions of the Plan.
(xx)
“Stock Award” means any right to receive Class A Common Stock granted under the Plan, including
an Incentive Stock Option, a Nonstatutory Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, a Stock Appreciation
Right, a Performance Stock Award or any Other Stock Award.
(yy)
“Stock Award Agreement” means a written agreement between the Company and a Participant evidencing
the terms and conditions of a Stock Award grant. Each Stock Award Agreement shall be subject to the terms and conditions of the
Plan.
(zz)
“Subsidiary” means, with respect to the Company, (i) any corporation of which more than fifty
percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company,
and (ii) any partnership, limited liability company or other entity in which the Company has a direct or indirect interest (whether
in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%).
(aaa)
“Ten Percent Stockholder” means a person who Owns (or is deemed to Own pursuant to Section
424(d) of the Code) stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of
the Company or any Affiliate.
Leapfrog (NYSE:LF)
Historical Stock Chart
From Jul 2024 to Aug 2024
Leapfrog (NYSE:LF)
Historical Stock Chart
From Aug 2023 to Aug 2024