UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C
(Rule 14c-101)
Information Statement Pursuant to Section 14(c) of the
Securities
Exchange Act
of 1934
Check the appropriate
box:
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Preliminary
Information Statement
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Confidential, for Use
of the Commission Only (as permitted by Rule 14c-5(d)(2))
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Definitive
Information Statement
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BERGIO
INTERNATIONAL, INC.
(Name of
Registrant as Specified In Its Charter)
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1
BERGIO
INTERNATIONAL, INC.
12 Daniel
Road E.
Fairfield, NJ
07004
973)
227-3230
NOTICE OF
ACTION BY WRITTEN CONSENT OF THE HOLDERS OF THE MAJORITY
VOTING POWER
OF THE COMPANY’S COMMON STOCK
WE ARE NOT
ASKING YOU FOR A PROXY
AND YOU ARE
REQUESTED NOT TO SEND US A PROXY
Dear
Shareholders:
As
detailed in the Form 8-K filed with the Securities and Exchange
Commission (the “Commission” or the “SEC”) on July 9, 2021, Bergio
International, Inc., a Wyoming corporation (the “Company”) is
providing this notice that on July 9, 2021, Berge Abajian, the
holder of all 75 shares of Series A Super voting Preferred Stock
(the “Majority Shareholder”) as of the close of business on July 9,
2021 (the “Record Date”), which constitute approximately 75% of the
voting power of the Company, approved by written consent the 2021
Bergio International, Inc. Stock Incentive Plan (the “Incentive
Plan” or the “Plan”) set forth below (in lieu of a meeting of
shareholders. On July 9, 2021, the Board of Directors of the
Company (the “Board”) unanimously approved the Plan.
Pursuant to Rule 14c-2 promulgated under the Securities Exchange
Act of 1934, as amended, the Plan will not be effective until 20
days after the date that a copy of this Information Statement is
mailed to each of our shareholders.
No
action is required by you. The accompanying Information Statement
is furnished only to inform our shareholders who did not execute
the written consent of the Plan, in accordance with the
requirements of the Securities and Exchange Commission’s rules and
regulations and the Wyoming Business Corporation Act. This
Information Statement will be mailed on or about [_____], 2022 to
all of our shareholders of record as of the close of business on
the Record Date.
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By Order of the Board
of Directors,
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/s/ Berge
Abajian
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Berge Abajian
Chief Executive
Officer
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July 11,
2022
2
INFORMATION STATEMENT PURSUANT TO SECTION 14(c) OF THE
SECURITIES EXCHANGE ACT OF 1934 AND REGULATION 14C PURSUANT
THERETO
[_____________], 2022
BERGIO INTERNATIONAL, INC.
12
Daniel Road E
Fairfield, NJ 07004
(973) 227-3230
This
Information Statement is distributed by Bergio International, Inc.,
(the “Company,” “we,” “our” and “us”) to inform our shareholders of
actions taken without a meeting by the written consent of Berge
Abajian, the holder of all 75 shares of Series A Super voting
Preferred Stock (the “Majority Shareholder”) as of the close of
business on July 9, 2021 (the “Record Date”), which constitutes 75%
of the voting power of the Company (the “Written Consent”).
THE PLAN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF THE PLAN, NOR UPON
THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS
INFORMATION STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
WE
ARE NOT ASKING YOU FOR A PROXY, AND YOU ARE REQUESTED NOT TO SEND
US A PROXY
This
Information Statement has been filed with the Commission and is
being furnished by the Board to the holders of record as of the
Record Date of our outstanding common stock, pursuant to Rule 14c-2
promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and the Wyoming Business Corporation Act (the
“Act”).
The cost
of preparing, printing and mailing this Information Statement will
be paid by us. We will reimburse brokerage firms and other
custodians, nominees and fiduciaries for reasonable expenses
incurred by them in sending this Information Statement to the
beneficial owners of our common stock.
This
Information Statement informs shareholders that on July 9, 2021,
the Board and Majority Shareholder, adopted and approved the Plan.
As of the Record Date, there were 598,512,073 shares of common
stock outstanding, and the Majority Shareholder beneficially owned
75% of the voting power of the Company by virtue of his ownership
of all 75 shares of the Company’s Series A Super voting Preferred
Stock, each share of which is authorized to vote the equivalent of
1% of all of the issued and outstanding votes of every class of the
Company’s securities. Accordingly, the Written Consent executed by
the Majority Shareholder pursuant to the Act and the Company’s
charter documents is sufficient to approve the Plan and no further
shareholder action is required to approve the Plan. No payment was
made to any person or entity in consideration of execution of the
Written Consent.
Accordingly, all necessary corporate approvals to effectuate the
Plan have been obtained. We are not seeking approval from our
remaining shareholders. This Information Statement is furnished
solely for the purpose of informing our shareholders, in the manner
required by the Exchange Act and the Act, of the approval of the
Plan. Pursuant to Section 14(c) of the Exchange Act and Rule 14c-2
promulgated pursuant thereto, the Plan will not be effective until
at least 20 days after the date this Information Statement is
mailed to each of our shareholders. The Plan are expected to become
effective on or after [_______], 2022.
The Plan
approved by the Majority Shareholders by written consent are not
corporate actions for which shareholders of a Wyoming corporation
are entitled to a dissenter’s rights under the Act.
Our
shareholders as of the Record Date are being furnished copies of
this Information Statement. This Information Statement will be
mailed or furnished to our shareholders on or about [_______],
2022.
3
QUESTIONS AND ANSWERS ABOUT
THIS INFORMATION STATEMENT AND THE TRANSACTIONS
Q.
Why did I receive this Information Statement?
A. The
Exchange Act and the Act require us to provide you with information
regarding the Plan, even though your vote is neither required nor
requested to approve the Plan.
Q.
Why am I not being asked to vote on the Plan?
A. The
Board unanimously adopted, approved and recommended the approval of
the Plan and determined that the Plan is advisable and in the best
interests of the Company and our shareholders. The Plan has also
been approved by the written consent of the Majority Shareholders.
Such approval is sufficient under the Act and no further approval
by our shareholders is required. Therefore, your vote is not
required and is not being sought. We are not asking you for a proxy
and you are requested not to send us a proxy.
Q.
What do I need to do now?
A.
Nothing. This Information Statement is provided to you solely for
your information and does not require or request you to do
anything.
THE
2021 STOCK INCENTIVE PLAN
This
section describes the material provisions of the Incentive Plan,
but does not purport to describe all of the terms of the Incentive
Plan. The following summary is qualified in its entirety by
reference to the complete text of the Incentive Plan, which is
attached as Appendix A
hereto.
Purpose of the
Plan. The purpose of the Incentive Plan is to provide a
means through which the Company, and the other members of the
Company Group, may attract and retain key personnel, and to provide
a means whereby directors, officers, employees, consultants and
advisors of the Company and the other members of the Company Group
can acquire and maintain an equity interest in the Company, or be
paid incentive compensation measured by reference to the value of
common stock, thereby strengthening their commitment to the welfare
of the Company Group and aligning their interests with those of the
Company’s shareholders. For purposes of the Incentive Plan, the
term “Company Group” means the Company, its subsidiaries, if any,
and any other affiliates of the Company designated as a member of
the Company Group by the Board.
Number of Reserved
Shares. Subject to a change in capital structure or a change
in control, the aggregate number of shares which may be issued or
transferred pursuant to awards under the Incentive Plan will be
equal to 1,000,000,000 shares of common stock (the “Plan Share
Reserve”), and from and after the Effective Date, no further grants
will be made under any stock incentive Plan adopted by the Company
prior to July 9, 2021. The “Effective Date” means the date that the
Plan is approved by the shareholders of the Company. Each award
granted under the Incentive Plan will reduce the Plan Share Reserve
by the number of shares underlying the award.
Additional
Limits.
Performance-Based Award Limitation. Awards that are designed
to comply with the performance-based exception from the tax
deductibility limitation of Code Section 162(m) shall be subject to
the following rules:
a)The
number of shares of Common Stock that may be granted in the form of
Options in a single fiscal year to a Participant may not exceed
10,000,000, as adjusted pursuant to Section 14.4.
b)The
number of shares of Common Stock that may be granted in the form of
SARs in a single fiscal year to a Participant may not exceed
10,000,000, as adjusted pursuant to Section 14.4.
4
c)The
number of shares of Common Stock that may be granted in the form of
Restricted Stock Awards in a single fiscal year to a Participant
may not exceed 500,000,000, as adjusted pursuant to Section
14.4.
d)The
number of Restricted Stock Units that may be granted in a single
fiscal year to a Participant may not exceed 10,000,000, as adjusted
pursuant to Section 14.4.
e)The
number of shares of Common Stock that may be granted as Performance
Award shares in a single fiscal year to a Participant may not
exceed 50,000,000 as adjusted pursuant to Section 14.4.
f)The
maximum amount that may be paid to a Participant for Performance
Award units granted in a single fiscal year to the Participant may
not exceed $5,000,000.
Board as
Administrator. The Board will administer the Incentive Plan.
To the extent required to comply with the provisions of Rule 16b-3
promulgated under the Exchange Act (if the Board is not acting as
the Board under the Incentive Plan) it is intended that each member
of the Board will, at the time such member takes any action with
respect to an award under the Incentive Plan that is intended to
qualify for the exemptions provided by Rule 16b-3 promulgated under
the Exchange Act be a “non-employee director” within the meaning of
Rule 16b-3. However, the fact that a Board member will fail to
qualify as a “non-employee director” will not invalidate any award
granted by the Board that is otherwise validly granted under the
Incentive Plan.
Eligibility.
Participation in the Plan shall be open to all employees, officers,
directors, and consultants of the Company, or of any Affiliate of
the Company, as may be selected by the Administrator from time to
time. However, only employees of the Company, and of any
Parent or Subsidiary of the Company, shall be eligible for the
grant of an Incentive Stock Option. The grant of an Award at any
time to any person shall not entitle that person to a grant of an
Award at any future time.
International
Participants. With respect to participants who reside or
work outside of the U.S., the Board may, in its sole discretion,
amend the terms of the Incentive Plan and create or amend sub-Plan
or amend outstanding awards with respect to such participants in
order to conform such terms with the requirements of local law, to
obtain more favorable tax or other treatment for a participant or
any member of the Company Group, or to facilitate administration of
the Incentive Plan.
Options.
General. Each
option granted under the Incentive Plan will be evidenced by an
award agreement, which agreement need not be the same for each
participant. Each option so granted will be subject to the
conditions set forth in this section, and to such other conditions
not inconsistent with the Incentive Plan as may be reflected in the
applicable award agreement. All options granted under the Incentive
Plan will be nonqualified stock options unless the applicable award
agreement expressly states that the option is intended to be an
incentive stock option. Incentive stock options will be granted
only to Eligible Persons who are employees of a member of the
Company Group, and no incentive stock option will be granted to any
Eligible Person who is ineligible to receive an incentive stock
option under the Code. No option will be treated as an incentive
stock option unless the Incentive Plan has been approved by the
shareholders of the Company in a manner intended to comply with the
shareholder approval requirements of Section 422(b)(1) of the Code,
provided that any option intended to be an incentive stock option
will not fail to be effective solely on account of a failure to
obtain such approval, but rather such option will be treated as a
nonqualified stock option unless and until such approval is
obtained. In the case of an incentive stock option, the terms and
conditions of such grant will be subject to, and comply with, such
rules as may be prescribed by Section 422 of the Code. If for any
reason an option intended to be an incentive stock option (or any
portion thereof) will not qualify as an incentive stock option,
then, to the extent of such nonqualification, such option or
portion thereof will be regarded as a nonqualified stock option
appropriately granted under the Incentive Plan.
Exercise
Price. Except as otherwise provided by the Board in the case
of substitute awards, the exercise price (“Exercise Price”) per
share for each option will not be less than 100% of the Grant Date
Fair Market Value of such share; provided, however, that in the
case of an incentive stock option granted to an employee who, at
the time of the grant of such option, owns stock representing more
than 10% of the voting power of all classes of stock of any member
of the Company Group that also qualifies as a “subsidiary
corporation” under Section 424(f) of the Code, the Exercise Price
per share will not be less than 110% of the Grant Date Fair Market
Value per share.
5
Vesting and
Expiration. Options will vest and become exercisable in such
manner and on such date or dates or upon such event or events as
determined by the Board. Options will expire upon a date determined
by the Board, not to exceed ten years from the date of grant (the
“Option Period”); provided, that if the Option Period (other than
in the case of an incentive stock option) would expire at a time
when trading in the shares is prohibited by applicable laws, then
the Option Period will be automatically extended until the
thirtieth day following the expiration of such prohibition.
Notwithstanding the foregoing, in no event will the Option Period
exceed five years from the date of grant in the case of an
incentive stock option granted to a participant who on the date of
grant owns stock representing more than 10% of the voting power of
all classes of stock of the Company or any member of the Company
Group that qualifies as a “subsidiary corporation” under Section
424(f) of the Code.
Method of Exercise
and Form of Payment. No shares will be issued pursuant to
any exercise of an option until payment in full of the Exercise
Price therefore is received by the Company and the participant has
paid to the Company (or one or more of its subsidiaries or
affiliates, as applicable) an amount equal to any satisfy tax
obligations relating to a Participant’s participation in the Plan,
which are legally applicable to the Participant (“Tax-Related
Items”). Options that have become exercisable may be exercised by
delivery of a notice of exercise in such form and accordance with
such procedures as the Board may specify from time to time
accompanied by payment of the Exercise Price. The Exercise Price
will be payable: (i) in cash, check, cash equivalent and/or shares
valued at the Fair Market Value at the time the option is exercised
(including, pursuant to procedures approved by the Board, by means
of attestation of ownership of a sufficient number of shares in
lieu of actual issuance of such shares to the Company); provided,
that such shares are not subject to any pledge or other security
interest and have been held by the participant for at least six
months (or such other period as established from time to time by
the Board in order to avoid adverse accounting treatment applying
generally accepted accounting principles); or (ii) by such other
method as the Board may permit, in its sole discretion, including,
without limitation (A) in other property having a fair market value
on the date of exercise equal to the Exercise Price; (B) by means
of a broker-assisted “cashless exercise” pursuant to which the
Company is delivered (including telephonically to the extent
permitted by the Board) a copy of irrevocable instructions to a
stockbroker to sell the shares otherwise issuable upon the exercise
of the option and to deliver promptly to the Company an amount
equal to the Exercise Price; or (C) a “net exercise” procedure
effected by withholding the minimum number of shares otherwise
issuable in respect of an option that are needed to pay the
Exercise Price. The permissible methods of payment of the Exercise
Price with respect to a particular option grant may be specified in
the applicable award agreement. Any fractional shares will be
settled in cash.
Notification upon
Disqualifying Disposition of an Incentive Stock Option. Each
participant awarded an incentive stock option under the Incentive
Plan will notify the Company in writing immediately after the date
the participant makes a disqualifying disposition of any shares
acquired pursuant to the exercise of such incentive stock option. A
disqualifying disposition is any disposition (including, without
limitation, any sale) of such shares before the later of (i) the
date that is two years after the date of grant of the incentive
stock option, or (ii) the date that is one year after the date of
exercise of the incentive stock option. We may, if determined by
the Board and in accordance with procedures established by the
Board, retain possession, as agent for the applicable participant,
of any shares acquired pursuant to the exercise of an incentive
stock option until the end of the period described in the preceding
sentence, subject to complying with any instructions from such
participant as to the sale of such shares.
No Rights as a
Shareholder. Except as otherwise specifically provided in
the Plan or any award agreement, no Person will be entitled to the
privileges of ownership in respect of shares which are subject to
awards hereunder until such shares have been issued or delivered to
such Person.
Effective Date;
Duration. The Incentive Plan will be effective as of the
Effective Date. The expiration date of the Incentive Plan, on and
after which date no awards may be granted hereunder, will be the
tenth anniversary of the earlier of the date the Board adopts the
Incentive Plan and the date the Company’s shareholders approve the
Incentive Plan; provided, however, that such expiration will not
affect awards then outstanding, and the terms and conditions of the
Incentive Plan will continue to apply to such awards.
Stock Appreciation
Rights.
General. Each
SAR granted under the Incentive Plan will be evidenced by an award
agreement, which agreement need not be the same for each
participant. Each SAR so granted will be subject to the conditions
set forth in this section, and to such other conditions not
inconsistent with the Incentive Plan as may be reflected in the
applicable award agreement.
6
SAR Base
Price. Except as otherwise provided by the Board in the case
of substitute awards, the SAR Base Price for each SAR will not be
less than 100% of the Grant Date Fair Market Value of such share.
The “SAR Base Price” means, as to any stock appreciation right, the
price per share designated as the base value above which
appreciation in value is measured.
Vesting and
Expiration. SARs will vest and become exercisable in such
manner and on such date or dates or upon such event or events as
determined by the Board. SARs will expire upon a date determined by
the Board, not to exceed ten years from the date of grant.
Time and Conditions
of Exercise. A SAR will entitle the participant (or other
person entitled to exercise the SAR pursuant to the Incentive Plan)
to exercise all or a specified portion of the SAR (to the extent
then exercisable pursuant to its terms) and to receive from the
Company an amount equal to the excess of the aggregate Fair Market
Value of the shares on the date the SAR is exercised over the SAR
Base Price, less applicable Tax-Related Items, subject to any
limitations the Board may impose. Payment of the amounts determined
under this section will be in cash, in shares (based on the Fair
Market Value of the shares as of the date the SAR is exercised) or
a combination of both, as determined by the Board in the award
agreement. Any fractional shares will be settled in cash. SARs that
have become exercisable may be exercised by delivery of a notice of
exercise to the Company (in such form as the Board may specify from
time to time). Until the shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no dividends or Dividend
Equivalent Right will be paid, and no right to vote or receive
dividends or Dividend Equivalent Rights or any other rights as a
shareholder will exist with respect to the shares subject to a SAR,
notwithstanding the exercise of the SAR.
Tandem SARs. A
SAR may be granted in connection with an option, either at the time
of grant or at any time thereafter during the term of the option. A
SAR granted in connection with an option will entitle the holder,
upon exercise, to surrender the option or any portion thereof to
the extent unexercised, with respect to the number of shares as to
which such SAR is exercised, and to receive payment of an amount
computed as described in this section. The option will, to the
extent and when surrendered, cease to be exercisable. A SAR granted
in connection with an option hereunder will have a SAR Base Price
equal to the Exercise Price of the option, will be exercisable at
such time or times, and only to the extent, that the related option
is exercisable, and will expire no later than the related option
expires. If a related option is exercised in whole or in part, then
the SAR related to the shares purchased terminates as of the date
of such exercise.
Restricted Stock and
Restricted Stock Units.
Restricted
stock awards and restricted stock unit awards may be granted
subject to such conditions and restrictions as may be established
by the Commission and set forth in the applicable award
agreement.
Rights as
Stockholder. A participant generally will have the rights
and privileges of a stockholder as to shares of restricted stock,
including the right to vote such restricted stock. To the extent
shares of restricted stock are forfeited, all rights of the
participant to such shares and as a stockholder with respect
thereto will terminate without further obligations on the part of
the Company. A participant will have no rights or privileges as a
stockholder as to restricted stock units.
Vesting.
Restricted stock and restricted stock units will vest and any
applicable restricted period will lapse in such manner and on such
date or dates or upon such event or events as determined by the
Board.
Other Equity-Based
Awards.
The Board
may grant other equity based awards under the Incentive Plan,
denominated in shares or based upon the value or otherwise related
to the shares, to Eligible Persons, alone or in tandem with other
awards, in such amounts and, dependent on such other conditions as
the Board will from time to time in its sole discretion determine.
Each such award will be evidenced by an award agreement and will be
subject to such conditions not inconsistent with the Incentive Plan
as may be reflected in the applicable award agreement.
New
Plan Benefits
No awards
have been granted, and no shares have been issued under the
Incentive Plan. Future grants under the Incentive Plan will be made
at the discretion of our Board of Directors and accordingly, are
not yet determinable.
7
In
addition, the value of the awards granted under the Incentive Plan
will depend on a number of factors, including the fair market value
of our common stock on future dates and the exercise decisions made
by the participants. Consequently, it is not possible to determine
the benefits that might be received by participants receiving
discretionary grants under the Incentive Plan.
Federal Income Tax
Consequences. The following is a brief summary of the
principal United States federal income tax consequences of
participation in the Incentive Plan, based on current United States
federal income tax law. This summary is not intended to be
exhaustive, does not constitute tax advice and, among other things,
does not describe state, local or foreign tax consequences, which
may be substantially different. Participants will be urged to
consult their own advisors as to specific tax consequences.
Section 409A of the
Code. Notwithstanding any provision of the Incentive Plan or
award agreement to the contrary, it is intended that the provisions
of the Incentive Plan comply with Section 409A of the Code, and all
provisions of the Incentive Plan will be construed and interpreted
in a manner consistent with the requirements for avoiding taxes or
penalties under Section 409A of the Code. Each participant is
solely responsible and liable for the satisfaction of all taxes and
penalties that may be imposed on or in respect of such participant
in connection with the Incentive Plan (including any taxes and
penalties under Section 409A of the Code), and neither the Service
Recipient nor any other member of the Company Group will have any
obligation to indemnify or otherwise hold such participant (or any
beneficiary) harmless from any or all of such taxes or penalties.
With respect to any award that is considered “deferred
compensation” subject to Section 409A of the Code, references in
the Incentive Plan to “termination of employment” (and
substantially similar phrases) will mean “separation from service”
within the meaning of Section 409A of the Code. For purposes of
Section 409A of the Code, each of the payments that may be made in
respect of any award granted under the Incentive Plan is designated
as separate a payment.
Notwithstanding anything in the Incentive Plan or award agreement
to the contrary, if a participant is a “specified employee” within
the meaning of Section 409A(a)(2)(B)(i) of the Code, no payments in
respect of any awards that are “deferred compensation” subject to
Section 409A of the Code and which would otherwise be payable on
the date of or a date or period that is by reference to the
participant’s “separation from service” (as defined in Section 409A
of the Code) will be made to such participant prior to the date
that is six months after the date of such participant’s “separation
from service” or, if earlier, the date of the participant’s death.
Unless the award agreement provides otherwise, following any
applicable six month delay, all such delayed payments will be paid
in a single lump sum on the earliest date permitted under Section
409A of the Code that is also a business day.
Unless
otherwise provided by the Board in an award agreement or otherwise,
in the event that the timing of payments in respect of any award
(that would otherwise be considered “deferred compensation” subject
to Section 409A of the Code) would be accelerated upon the
occurrence of (A) a Change in Control, no such acceleration will be
permitted unless the event giving rise to the Change in Control
satisfies the definition of a change in the ownership or effective
control of a corporation, or a change in the ownership of a
substantial portion of the assets of a corporation pursuant to
Section 409A of the Code; or (B) a Disability, no such acceleration
will be permitted unless the Disability also satisfies the
definition of “Disability” pursuant to Section 409A of the
Code.
WHERE YOU
CAN OBTAIN ADDITIONAL
INFORMATION
This
Information Statement should be read in conjunction with certain
reports that we previously filed with the Commission. We are
subject to the informational requirements of the Exchange Act and,
in accordance therewith, we file reports, proxy statements and
other information including annual and quarterly reports on Form
10-K and Form 10-Q with the Commission. Reports and other
information that we file can be obtained upon written request
addressed to the Commission, Public Reference Section, 100 F Street
NW, Washington D.C. 20549, at prescribed rates. The Commission
maintains a website on the Internet (http://www.sec.gov) that
contains the filings of issuers that file electronically with the
Commission through the EDGAR system. Copies of such filings may
also be obtained by writing to Bergio International, Inc., 12
Daniel Road E, Fairfield, New Jersey 07004.
DELIVERY
OF DOCUMENTS AND
HOUSEHOLDING
The
Commission has adopted rules that permit companies and
intermediaries such as brokers, to satisfy the delivery
requirements for Information Statements with respect to two or more
shareholders sharing the same address by delivering a single
Information Statement addressed to those shareholders. This
process, which is commonly referred to as “householding,”
potentially provides extra convenience for shareholders, is
environmentally friendly, and represents cost savings for
companies.
8
For this
Information Statement, the Company’s transfer agent or brokers may
be householding this Information Statement and the documents
incorporated by reference that we are enclosing with the
Information Statement. A single Information Statement will be
delivered to multiple shareholders sharing an address unless
contrary instructions have been received from the effected
shareholders. Once you have received notice from your broker or the
Company that either of them will be householding communications to
your address, householding will continue until you are notified
otherwise or until you revoke your consent.
If at any
time, you no longer wish to participate in householding and would
prefer to receive separate periodic reports, or if you currently
receive multiple copies of the Information Statement or other
periodic reports at your address and would like to request
householding by the Company, please notify your broker if your
shares are not held directly in your name. If you own your shares
directly rather than through a brokerage account, you should direct
your written request directly to:
BERGIO
INTERNATIONAL, INC.,
Attn:
Chief Executive Officer
12 Daniel
Road E
Fairfield,
New Jersey 07004
(973)
227-3230 Telephone
OTHER
MATTERS
Only one
Information Statement is being delivered to multiple shareholders
sharing an address. If you are a shareholder at a shared address to
which a single copy of this Information Statement was delivered and
you desire to obtain a separate copy of the documents delivered,
please contact the person at the address or telephone number
described below.
We hereby
undertake to deliver promptly upon written or oral request a
separate copy of the Information Statement to a shareholder at a
shared address to which a single copy of the documents was
delivered.
As a
matter of regulatory compliance, the Company is sending you this
Information Statement that describes the purpose and effect of the
Plan. Your consent to the approval of the Plan is not required and
is not being solicited in connection herewith. This Information
Statement is intended to provide the Company’s shareholders
information required by the rules and regulations of the Exchange
Act and the Act.
WE ARE
NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY. THE ATTACHED MATERIAL IS FOR INFORMATIONAL PURPOSES
ONLY.
IF
YOU HAVE ANY QUESTIONS REGARDING THIS INFORMATION STATEMENT, PLEASE
CONTACT:
BERGIO
INTERNATIONAL, INC.,
Attn:
Corporate Secretary,
12
Daniel Road E
Fairfield, NJ 07004
(973)
227-3230 Telephone
|
By Order of the Board
of Directors,
|
|
|
|
/s/ Berge
Abajian
|
|
Berge Abajian
Chief Executive
Officer
|
9
Appendix A
Bergio International, Inc.
2021 Stock Incentive Plan
Establishment, Purpose and Types of Awards
Bergio International, Inc., a Wyoming corporation (the “Company”),
hereby establishes the Bergio International, Inc. 2021 Stock
Incentive Plan (the “Plan”). The purpose of the Plan is to
promote the long-term growth and profitability of the Company by
(i) providing key people with incentives to improve stockholder
value and to contribute to the growth and financial success of the
Company, and (ii) enabling the Company to attract, retain and
reward the best-available persons.
The Plan permits the granting of stock Options (including incentive
stock options qualifying under Code Section 422 and nonqualified
stock options), Stock Appreciation Rights, restricted or
unrestricted Stock Awards, Restricted Stock Units, Performance
Awards, other stock-based awards, or any combination of the
foregoing.
Definitions
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
“Administrator” shall mean the committee or committees as
may be appointed by the Board from time to time to administer the
Plan, or if no such committee is appointed, the Board itself.
“Affiliate” shall mean any entity, whether now or hereafter
existing, which controls, is controlled by, or is under common
control with, the Company (including, but not limited to, joint
ventures, limited liability companies, and partnerships). For
this purpose, “control” shall mean ownership of 50% or more of the
total combined voting power or value of all classes of stock or
interests of the entity.
“Award” shall mean any stock Option, Stock Appreciation
Right, Stock Award, Restricted Stock Unit, Performance Award, or
other stock-based award.
“Board” shall mean the Board of Directors of the
Company.
“Change in Control” shall mean the occurrence of one or more
of the change in ownership or control events set forth in Treasury
Regulation Section 1.409A-3(i)(5).
“Code” shall mean the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder.
“Common Stock” shall mean shares of common stock of the
Company, par value $0.00001 per share.
“Exchange Act” shall mean the Securities Exchange Act of
1934, as amended.
“Fair Market Value” So long as the Common Stock is
registered under Section 12(b) or (g) of the Exchange Act, “Fair
Market Value” shall mean, as applicable, (i) either the closing
price or the average of the high and low sale price on the relevant
date, as determined in the Administrator’s discretion, quoted on
the OTC Markets, New York Stock Exchange, or the Nasdaq National
Market; (ii) the last sale price on the relevant date quoted on the
OTC Markets, New York Stock Exchange, or the Nasdaq National
Market; (iii) the average of the high bid and low asked prices on
the relevant date quoted on the OTC Markets, New York Stock
Exchange, or the Nasdaq National Market or a comparable service as
determined in the Administrator’s discretion; or (iv) if the Common
Stock is not quoted by any of the above, the average of the closing
bid and asked prices on the relevant date furnished by a
professional market maker for the Common Stock, or by such other
source, selected by the Administrator. If no public trading
of the Common Stock occurs on the relevant date, then Fair Market
Value shall be determined as of the next preceding date
on which trading of the Common Stock does occur. In the event
that the Common Stock is not registered under Section 12(b) or (g)
of the Exchange Act, Fair Market Value shall mean, with respect to
a share of the Company’s Common Stock for any purpose on a
particular date, the value determined by the Administrator in
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good faith; provided that for purpose of any Option or any Award
that is deferred compensation subject to Code Section 409A, such
value shall be determined reasonably in a manner that satisfies
Code Section 409A.
“Grant Agreement” shall mean a written document
memorializing the terms and conditions of an Award granted pursuant
to the Plan and shall incorporate the terms of the Plan.
“Incentive Stock Option” shall mean an Option that is an
“incentive stock option” within the meaning of Code Section 422, or
any successor provision, and that is designated by the
Administrator as an Incentive Stock Option.
“Nonqualified Stock Option” means an Option other than an
Incentive Stock Option.
“Option” means the right to purchase a stated number of
shares of Common Stock at a stated price for a stated period of
time, granted pursuant to Section 7.
“Parent” shall mean a corporation, whether now or hereafter
existing, within the meaning of the definition of “parent
corporation” provided in Code Section 424(f), or any successor
thereto.
“Participant” shall mean an employee, officer, director or
consultant of the Company, or of any Affiliate of the Company to
whom an Award is granted pursuant to the Plan, or upon the death of
the Participant, his or her successors, heirs, executors, and
administrators, as the case may be.
“Performance Awards” shall mean an Award of a number of
shares or units granted to a Participant pursuant to Section 11
that is paid out based on the achievement of stated performance
criteria or Performance Goals during a stated period of time.
“Performance Goals” shall mean the objectives established by
the Administrator in its sole discretion with respect to any
performance-based Awards that relate to one or more business
criteria within the meaning of Code Section 162(m). Performance
Goals may include or be based upon, without limitation: sales;
gross revenue; gross margins; internal rate of return; cost; ratio
of debt to debt plus equity; profit before tax; earnings before
interest and taxes; earnings before interest, taxes, depreciation,
and amortization; earnings per share; operating earnings; economic
value added; ratio of operating earnings to capital spending; cash
flow; free cash flow; net operating profit; net income; net
earnings; net sales or net sales growth; price of Common Stock;
return on capital, net assets, equity, or shareholders’ equity;
segment income; market share; productivity ratios; expense targets;
working capital targets; or total return to shareholders.
Performance Goals may (a) be used to measure the
performance of the Company as a whole or any Subsidiary, business
unit or segment of the Company, (b) include or exclude (or be
adjusted to include or exclude) extraordinary items, the impact of
charges for restructurings, discontinued operations and other
unusual and non-recurring items, and the cumulative effects of tax
or accounting changes, each as defined by generally accepted
accounting principles and as identified in the financial
statements, notes to the financial statements, management's
discussion and analysis or other Securities and Exchange Commission
filings, and/or (c) reflect absolute entity performance or a
relative comparison of entity performance to the performance of a
peer group, index, or other external measure, in each case as
determined by the Administrator in its sole discretion.
“Restricted Stock Units” shall mean an Award granted to a
Participant pursuant to Section 10, denominated in units, providing
a Participant the right to receive payment at a future date after
the lapse of restrictions or achievement of performance criteria or
Performance Goals or other conditions determined by the
Administrator.
“Stock Appreciation Right” or “SAR” shall mean the right to
receive an amount calculated as provided in a grant pursuant to
Section 8.
“Stock Award” shall mean an Award of restricted or
unrestricted Common Stock granted to a Participant pursuant to
Section 9 and the other provisions of the Plan.
“Subsidiary” and “subsidiaries” shall mean only a
corporation or corporations, whether now or hereafter existing,
within the meaning of the definition of “subsidiary corporation”
provided in Code Section 424(f), or any successor thereto.
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“Ten Percent Owner” means a person who owns, or is deemed
within the meaning of Section 422(b)(6) of the Code to own, stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company (or any Parent or Subsidiary of the
Company). Whether a person is a Ten Percent Owner shall be
determined with respect to an Option based on the facts existing
immediately prior to the grant date of the Option.
Administration
Administration of the Plan. The Plan shall be
administered by the Board or the Administrator.
Powers of the Administrator or Board. The
Administrator or Board shall have all the powers vested in it by
the terms of the Plan, such powers to include authority, in its
sole and absolute discretion, to grant Awards under the Plan,
prescribe Grant Agreements evidencing such Awards and establish
programs for granting Awards.
The Administrator or Board shall have full power and authority to
take all other actions necessary to carry out the purpose and
intent of the Plan, including, but not limited to, the authority
to: (i) determine the eligible persons to whom, and the time
or times at which Awards shall be granted; (ii) determine the types
of Awards to be granted; (iii) determine the number of shares to be
covered by or used for reference purposes for each Award; (iv)
impose such terms, limitations, restrictions and conditions upon
any such Award as the Administrator or Board shall deem
appropriate; (v) modify, amend, extend or renew outstanding Awards,
or accept the surrender of outstanding Awards and substitute new
Awards (provided however, that, except as provided in Section 14.4
of the Plan, any modification that would materially adversely
affect any outstanding Award shall not be made without the consent
of the holder); (vi) accelerate or otherwise change the time in
which an Award may be exercised or becomes payable and to waive or
accelerate the lapse, in whole or in part, of any restriction or
condition with respect to such Award, including, but not limited
to, any restriction or condition with respect to the vesting or
exercisability of an Award following termination of any grantee’s
employment or other relationship with the Company (vii) establish
objectives and conditions, including Performance Goals, if any, for
earning Awards and determining whether Awards will be paid after
the end of a performance period, (viii) make adjustments in the
Performance Goals in recognition of unusual or nonrecurring events
affecting the Company or the financial statements of the Company,
or in response to changes in applicable laws, regulations, or
accounting principles, and (ix) provide for forfeiture of
outstanding Awards and recapture of realized gains and other
realized value in such events as determined by the Administrator or
Board, which include, but are not limited to, a breach of
restrictive covenants or an intentional or negligent misstatement
of financial records.
The Administrator or Board shall have full power and authority, in
its sole and absolute discretion, to administer and interpret the
Plan and to adopt and interpret such rules, regulations,
agreements, guidelines and instruments for the administration of
the Plan and for the conduct of its business as the Administrator
or Board deems necessary or advisable.
Non-Uniform Determinations. The Administrator’s or
Board’s determinations under the Plan (including without
limitation, determinations of the persons to receive Awards, the
form, amount and timing of such Awards, the terms and provisions of
such Awards and the Grant Agreements evidencing such Awards) need
not be uniform and may be made by the Administrator selectively
among persons who receive, or are eligible to receive, Awards under
the Plan, whether or not such persons are similarly situated.
Limited Liability. To the maximum extent permitted by
law, no member of the Administrator or Board shall be liable for
any action taken or decision made in good faith relating to the
Plan or any Award thereunder.
Indemnification. To the maximum extent permitted by
law and by the Company's charter and by-laws, the members of the
Administrator or Board shall be indemnified by the Company in
respect of all their activities under the Plan.
Effect of Administrator’s or Board’s Decision.
All actions taken and decisions and determinations made by
the Administrator or Board on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the
Administrator’s or Board’s sole and absolute discretion and shall
be conclusive and binding on all parties concerned, including the
Company, its stockholders, any Participants in the Plan and any
other employee, consultant, or director of the Company, and their
respective successors in interest.
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Shares Available for the Plan
Shares Available for Awards. Subject to adjustments as
provided in Section 14.4 of the Plan, the shares of Common Stock
that may be issued with respect to Awards granted under the Plan
shall not exceed an aggregate of 1,000,000,000 shares of Common
Stock. The Company shall reserve such number of shares for
Awards under the Plan, subject to adjustments as provided in
Section 14.4 of the Plan. The maximum number of shares of Common
Stock under the Plan that may be issued as Incentive Stock Options
shall 100,000,000 shares. Shares may be authorized but
unissued Common Stock or authorized and issued Common Stock held in
the Company’s treasury. If any Award, or portion of an Award,
under the Plan expires or terminates unexercised, becomes
unexercisable or is forfeited or otherwise terminated, surrendered
or canceled as to any shares, or if any shares of Common Stock are
surrendered to the Company in connection with any Award (whether or
not such surrendered shares were acquired pursuant to any Award),
the shares subject to such Award and the surrendered shares shall
thereafter be available for further Awards under the Plan;
provided, however, that any such shares that are surrendered to the
Company in connection with any Award or that are otherwise
forfeited after issuance shall not be available for purchase
pursuant to Incentive Stock Options. Shares under substitute
awards pursuant to Section 14.4 for grants made under a plan of an
acquired business entity shall not reduce the maximum number of
shares that may be issued under the Plan.
Performance-Based Award Limitation. Awards that are
designed to comply with the performance-based exception from the
tax deductibility limitation of Code Section 162(m) shall be
subject to the following rules:
(a)The
number of shares of Common Stock that may be granted in the form of
Options in a single fiscal year to a Participant may not exceed
10,000,000, as adjusted pursuant to Section 14.4.
(b)The
number of shares of Common Stock that may be granted in the form of
SARs in a single fiscal year to a Participant may not exceed
10,000,000, as adjusted pursuant to Section 14.4.
(c)The
number of shares of Common Stock that may be granted in the form of
Restricted Stock Awards in a single fiscal year to a Participant
may not exceed 500,000,000, as adjusted pursuant to Section 14.4.
(d)The
number of Restricted Stock Units that may be granted in a single
fiscal year to a Participant may not exceed 10,000,000, as adjusted
pursuant to Section 14.4.
(e)The
number of shares of Common Stock that may be granted as Performance
Award shares in a single fiscal year to a Participant may not
exceed 50,000,000 as adjusted pursuant to Section 14.4.
(f)The
maximum amount that may be paid to a Participant for Performance
Award units granted in a single fiscal year to the Participant may
not exceed $5,000,000.
Participation
Participation in the Plan shall be open to all employees, officers,
directors, and consultants of the Company, or of any Affiliate of
the Company, as may be selected by the Administrator from time to
time. However, only employees of the Company, and of any
Parent or Subsidiary of the Company, shall be eligible for the
grant of an Incentive Stock Option. The grant of an Award at any
time to any person shall not entitle that person to a grant of an
Award at any future time.
Awards
Awards that may be granted under the Plan consist of Options, Stock
Appreciation Rights, Stock Awards, Restricted Stock Units,
Performance Awards and other stock-based awards. The
Administrator or Board, in its sole discretion, establishes the
terms of all Awards granted under the Plan. Awards may be
granted individually or in tandem with other types of Awards.
All Awards are subject to the terms and conditions provided
in the Grant Agreement. If there is any
inconsistency between the terms of the Plan and a Grant Agreement,
the terms of the Plan shall control unless the Grant Agreement
explicitly states that an exception to the Plan is being made.
By accepting an Award, a Participant agrees that the Award
shall be subject to all of the terms and provisions of the Plan and
the applicable Grant Agreement.
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Stock Options
Terms and Grant Agreement. Subject to the terms of the
Plan, Options may be granted to Participants at any time as
determined by the Administrator. The Administrator or Board shall
determine, and the Grant Agreement shall reflect, the following for
each Option granted:
·the number of shares subject to
each Option;
·duration of the Option (provided
that no Option shall have an expiration date later than the 10th
anniversary of the date of grant and no Incentive Stock Option that
is granted to any Participant who is a Ten Percent Owner shall have
an expiration date later than the fifth anniversary of the date of
grant);
·vesting requirements that
specify a vesting period;
·whether the Option is an
Incentive Stock Option or a Nonqualified Stock Option; provided,
however, no Option shall be an Incentive Stock Option unless so
designated by the Administrator or Board at the time of grant or in
the Grant Agreement evidencing such Option;
·the exercise price for each
Option, which, except with respect to substitute awards complying
with Code Section 424 and regulations thereunder, shall not be less
than the Fair Market Value on the date of the grant (with respect
to Incentive Stock Options, 110% of the Fair Market Value on the
date of grant for any Participant who is a Ten Percent
Owner);
·the permissible method(s) of
payment of the exercise price;
·the rights of the Participant
upon termination of employment or service as a director;
and
·any other terms or conditions
established by the Administrator or Board.
Exercise of Options. Options shall be exercisable at
such times and subject to such restrictions and conditions as the
Administrator or Board, in its sole discretion, deems appropriate,
which need not be the same for all Participants.
An Option shall be exercised by delivering written notice as
specified in the Grant Agreement on the form of notice provided by
the Company. Options may be exercised in whole or in part.
The exercise price of any Option shall be payable to the Company in
full, in cash or in cash equivalent approved by the Adminstrator,
by tendering (if permitted by the Adminstrator or Board) previously
acquired Common having an aggregate Fair Market Value at the time
of exercise equal to the total Option exercise price (provided that
the tendered Common Stock must have been held by the Participant
for any period required by the Adminstrator or Board), or by any
other means that the Adminstrator or Board determines to be
consistent with the Plan's purpose and applicable law. For a
Participant who is subject to Section 16 of the Exchange Act, the
Company may require that the method of payment comply with Section
16 and the rules and regulations thereunder. Any payment in
shares of Common Stock, if permitted, shall be made by delivering
the shares to the secretary of the Company, duly endorsed in blank
or accompanied by stock powers duly executed in blank, together
with any other documents and evidence as the secretary shall
require (or delivering a certification or attestation of ownership
of such Common Stock, if permitted by the Adminstrator or
Board).
Certificates for shares of Common Stock purchased upon the exercise
of an Option shall be issued in the name of or for the account of
the Participant or other person entitled to receive the shares and
delivered to the Participant or other person as soon as practicable
following the effective date on which the Option is exercised.
Incentive Stock Options. Notwithstanding
anything in the Plan to the contrary, no term of the Plan relating
to Incentive Stock Options shall be interpreted, amended, or
altered, nor shall any discretion or authority granted under the
Plan be exercised so as to disqualify the Plan under Code Section
422, or, without the consent of any affected Participant, to cause
any Incentive Stock Option previously granted to fail to qualify
for the federal income tax treatment afforded under Code Section
421. An Option shall be considered to be an Incentive Stock Option
only to the extent that the number of shares of Common Stock for
which the Option first becomes exercisable in a
A-5
calendar year do not have an aggregate Fair Market Value (as of the
date of the grant of the Option) in excess of the “current limit.”
The current limit for any optionee for any calendar year
shall be $10,000,000 minus the aggregate Fair Market Value at the
date of grant of the number of shares of Common Stock available for
purchase for the first time in the same year under each other
incentive option previously granted to the optionee under all other
plans of the Company and Affiliates. Any Common Stock which
would cause the foregoing limit to be violated shall be deemed to
have been granted under a separate Nonqualified Stock Option,
otherwise identical in its terms to those of the Incentive Stock
Option. The current limit will be calculated according to the
chronological order in which the Options were granted.
Reduction in Price or Reissuance. In no event shall
the Administrator or Board cancel any outstanding Option for the
purpose of (i) providing a replacement award under this or another
Company plan, or (ii) cashing out an Option, unless such cash-out
occurs in conjunction with a Change in Control. Additionally,
in no event shall the Administrator or Board, without first
receiving shareholder approval, (a) cancel any outstanding Option
for the purpose of reissuing the Option to the Participant at a
lower exercise price or (b) reduce the exercise price of a
previously issued Option.
Notification of Disqualifying Disposition. If any
Participant shall make any disposition of shares issued pursuant to
the exercise of an Incentive Stock Option under the circumstances
described in Code Section 421(b) (relating to certain disqualifying
dispositions), such Participant shall notify the Company of such
disposition within ten (10) calendar days thereof.
Stock Appreciation Rights
Terms and Agreement. Subject to the terms of the Plan,
Stock Appreciation Rights may be granted to Participants at any
time as determined by the Administrator or Board. The grant
price of the SAR shall be at least equal to one hundred percent
(100%) of the Fair Market Value of Stock as determined on the date
of the grant, except with respect to substitute awards complying
with Code Section 424 and regulations thereunder. The
Administrator or Board shall determine, and the Grant Agreement
shall reflect, the following for each SAR granted:
·the number of shares subject to
each SAR;
·whether the SAR is a Related SAR
or a Freestanding SAR (as defined below);
·the duration of the SAR
(provided however, that no SAR shall have an expiration date later
than the date after the 10th anniversary of the date of
grant);
·vesting requirements;
·rights of the Participant upon
termination of employment or service as a director; and
·any other terms or conditions
established by the Administrator.
Related and Freestanding SARs. A Stock
Appreciation Right may be granted in connection with an Option,
either at the time of grant or at any time thereafter during the
term of the Option (a “Related SAR”), or may be granted unrelated
to an Option (a “Freestanding SAR”).
Surrender of Option. A Related SAR shall require the
holder, upon exercise, to surrender the Option with respect to the
number of shares as to which the SAR is exercised, in order to
receive payment. The Option will, to the extent surrendered,
cease to be exercisable.
Reduction in Number of Shares Subject to Related
SARs. For Related SARs, the number of shares subject to
the SAR shall not exceed the number of shares subject to the
Option. For example, if the SAR covers the same number of
shares as the Option, the exercise of a portion of the Option shall
reduce the number of shares subject to the SAR to the number of
shares remaining under the Option. If the Related SAR covers
fewer shares than the Option, the exercise of a portion of the
Option shall reduce the number of shares subject to the SAR to the
extent necessary so that the number of remaining shares subject to
the SAR is not more than the remaining shares under the Option.
A-6
Exercisability. Subject to Section 8.7 and to any
rules and restrictions imposed by the Administrator, a Related SAR
will be exercisable at the time or times, and only to the extent,
that the Option is exercisable and will not be transferable except
to the extent that the Option is transferable. A Freestanding
SAR will be exercisable as determined by the Administrator or Board
but in no event after 10 years from the date of grant.
Payment. Upon the exercise of a Stock Appreciation
Right, the holder will be entitled to receive payment of an amount
determined by multiplying:
The excess of the Fair Market Value on the date of exercise over
the Fair Market Value on the date of grant, by
The number of shares with respect to which the SAR is being
exercised.
The Administrator or Board may limit the amount payable upon
exercise of a Stock Appreciation Right. Any limitation must
be determined as of the date of grant and noted on the Grant
Agreement evidencing the grant.
Payment may be made in cash, Common Stock, or a combination of cash
and Common Stock, in the Administrator’s or Board’s sole
discretion. No fractional shares shall be used for such
payment and the Administrator or Boad shall determine whether cash
shall be given in lieu of such fractional shares or whether such
fractional shares shall be eliminated.
Reduction in Price or Reissuance. In no event shall
the Administrator or Board cancel any outstanding Stock
Appreciation Right for the purpose of (i) providing a replacement
award under this or another Company plan, or (ii) cashing out a
Stock Appreciation Right, unless such cash-out occurs in
conjunction with a change in control. Additionally, in no
event shall the Administrator or Board, without first receiving
shareholder approval, (a) cancel any outstanding Stock Appreciation
Right for the purpose of reissuing the Stock Appreciation Right to
the Participant at a lower exercise price or (b) reduce the
exercise price of a previously issued Stock Appreciation Right.
Additional Terms. The Administrator or Board may
impose additional conditions or limitations on the exercise of a
Stock Appreciation Right as it may deem necessary or desirable to
secure for holders the benefits of Rule 16b-3, or any successor
provision, or as it may otherwise deem advisable.
Stock Awards
Terms and Agreement. Subject to the terms of the Plan,
shares of restricted or unrestricted Common Stock may be granted to
Participants at any time as determined by the Administrator or
Board. The Administrator or Board shall determine, and the
Grant Agreement shall reflect, the following for the Stock Awards
granted:
·the number of shares of
granted;
·the purchase price, if any, to
be paid by the Participant for each share of Common
Stock;
·the restriction period
established, if any;
·any requirements with respect to
elections under Code Section 83(b);
·rights of the Participant upon
termination of employment or service as a director; and
·any other terms or conditions
established by the Administrator or Board.
Restriction Period. At the time of the grant of the
Stock Award, the Administrator or Board may establish a restriction
period for the shares granted, which may be time-based, based on
the achievement of specified Performance Goals, a combination of
time- and Performance Goal-based, or based on any other criteria
the Administrator or Board deems appropriate. The
Administrator or Board may divide the shares into classes and
assign a different restriction period for each class. The
Administrator or Board may impose additional conditions or
restrictions upon the vesting of the Stock Award as it deems fit in
its sole discretion. If all applicable conditions are
satisfied, then upon the termination of the restriction period with
respect to a share of restricted Common Stock, the share shall vest
and the restrictions shall lapse. To the extent required to
ensure that a Performance Goal-based
A-7
Award of the Stock Award to an executive officer is deductible by
the Company pursuant to Code Section 162(m), any such Award shall
vest only upon the Administrator’s or Board’s determination that
the Performance Goals applicable to the Award have been
attained.
Restrictions on Transfer Prior to Vesting. Prior to
the vesting of a restricted Stock Award, the Participant may not
sell, assign, pledge, hypothecate, transfer, or otherwise encumber
the Stock Award. Upon any attempt to transfer rights in a
share of restricted Common Stock, the share and all related rights
shall immediately be forfeited by the Participant. Upon the
vesting of a restricted Stock Award, the transfer restrictions of
this section shall lapse with respect to that share.
Rights as a Shareholder. Except for the restrictions
set forth here and unless otherwise determined by the Administrator
or Board, the Participant shall have all the rights of a
shareholder with respect to shares of a Stock Award, including but
not limited to the right to vote and the right to receive
dividends, provided that the Administrator or Board, in its sole
discretion, may require that any dividends paid on shares of a
restricted Stock Award be held in escrow until all restrictions on
the shares have lapsed.
Section 83(b) Election. The Administrator or Board may
provide in the Grant Agreement that the Award is conditioned upon
the Participant making or not making an election under Code Section
83(b). If the Participant makes an election pursuant to Code
Section 83(b), the Participant shall be required to file a copy of
the election with the Company within ten (10) calendar days.
Restricted Stock Units
Terms and Agreement. Subject to the terms of the Plan,
Restricted Stock Units may be granted to Participants at any time
as determined by the Administrator or Board. The
Administrator or Board shall determine, and the Grant Agreement
shall reflect, the following for the Restricted Stock Units
granted:
·the number of Restricted Stock
Units awarded;
·the purchase price, if any, to
be paid by the Participant for each Restricted Stock
Unit;
·the restriction period
established, if any;
·whether dividend equivalents
will be credited with respect to Restricted Stock Units, and, if
so, any accrual, forfeiture or payout restrictions on the dividend
equivalents;
·rights of the Participant upon
termination of employment or service as a director; and
·any other terms or conditions
established by the Administrator or Board.
To the extent a Restricted Stock Unit Award constitutes “deferred
compensation” within the meaning of Code Section 409A, the
Administrator or Boad shall establish Grant Agreement terms and
provisions that comply with Code Section 409A and regulations
thereunder.
Restriction Period. At the time of the
grant of Restricted Stock Units, the Administrator or Board may
establish a restriction period, which may be time-based, based on
the achievement of specified Performance Goals, a combination of
time and Performance Goal-based, or based on any other criteria the
Administrator or Board deems appropriate. The Administrator
or Board may divide the awarded Restricted Stock Units into classes
and assign a different restriction period for each class. The
Administrator or Board may impose any additional conditions or
restrictions upon the vesting of the Restricted Stock Units as it
deems fit in its sole discretion. If all applicable
conditions are satisfied, then upon the termination of the
restriction period with respect to a Restricted Stock Unit, the
Unit shall vest. To the extent required to ensure that a
Performance Goal-based Award of Restricted Stock Units to an
executive officer is deductible by the Company pursuant to Code
Section 162(m), any such Award shall become vested only upon the
Administrator’s or Board’s determination that the Performance Goals
applicable to the Award, if any, have been attained.
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Payment. Upon vesting of a Restricted Stock Unit, the
Participant shall be entitled to receive payment of an amount equal
to the Fair Market Value of one share of Stock. Payment may
be made in cash, Stock, or a combination of cash and Stock, in the
Administrator’s or Board’s sole discretion.
Performance Awards
Terms and Agreement. Subject to the terms of the Plan,
Performance Awards may be granted to Participants at any time as
determined by the Administrator or Board. The Administrator
or Board shall determine, and the Grant Agreement shall reflect,
the following for the Performance Awards granted:
·the number of shares or units
awarded;
·the performance period and
performance criteria or Performance Goals applicable to the
Award;
·whether dividend equivalents
will be credited with respect to Performance Awards, and if so, any
accrual, forfeiture, or payout restrictions on the dividend
equivalents;
·the rights of the Participant
upon termination of employment or service as a director (which may
be different based on the reason for termination); and
·any other terms or conditions
established by the Administrator or Board.
To the extent an Award constitutes “deferred compensation” within
the meaning of Code Section 409A, the Administrator or Board shall
establish Grant Agreement terms and provisions that comply with
Code Section 409A and regulations thereunder.
Payment. After the applicable performance period has
ended, the Administrator or Board will review the performance
criteria and/or Performance Goals and determine the amount payable
with respect to the Award, based upon the extent to which the
performance criteria and/or Performance Goals have been attained
within the performance period and any other applicable terms and
conditions. Payment of an earned Performance Award may be
made in cash, Common Stock, or a combination of cash and Common
Stock, as determined by the Administrator or Board in its sole
discretion.
Other Stock-Based Awards
The Administrator or Board may from time to time grant other
stock-based awards to eligible Participants in such amounts, on
such terms and conditions, and for such consideration, including no
consideration or such minimum consideration as may be required by
law, as it shall determine. Other stock-based awards may be
denominated in cash, in Common Stock or other securities, in
stock-equivalent units, in stock appreciation units, in securities
or debentures convertible into Common Stock, or in any combination
of the foregoing and may be paid in Common Stock or other
securities, in cash, or in a combination of Common Stock or other
securities and cash, all as determined in the sole discretion of
the Administrator or Board.
Change in Control Provisions
Except as otherwise provided in any written agreement between the
Participant and the Company or its Affiliate in effect when a
Change in Control occurs, in the event an acquiring company does
not assume Plan Awards:
·all outstanding Options and
Stock Appreciation Rights shall become fully vested and
exercisable;
·for Performance Awards, to the
extent consistent with Section 162(m), all Performance Goals or
performance criteria shall be deemed achieved at target levels and
all other terms and conditions met, with Award payout prorated for
the portion of the performance period completed as of the Change in
Control and payment to occur within 45 days of the Change in
Control;
·all restrictions and conditional
applicable to any restricted Stock Award shall lapse;
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·all restrictions and conditions
applicable to any Restricted Stock Units shall lapse and payment
shall be made within 45 days of the Change in Control;
·all other Awards shall be
delivered or paid within 45 days of the Change in
Control.
Miscellaneous
Withholding of Taxes. Grantees and holders of Awards
shall pay to the Company or its Affiliate, or make provision
satisfactory to the Administrator or Board for payment of, any
taxes required to be withheld in respect of Awards under the Plan
no later than the date of the event creating the tax liability.
The Company or its Affiliate may, to the extent permitted by
law, deduct any such tax obligations from any payment of any kind
otherwise due to the grantee or holder of an Award. In the
event that payment to the Company or its Affiliate of such tax
obligations is made in shares of Common Stock, such shares shall be
valued at Fair Market Value on the applicable date for such
purposes.
Transferability. Except as otherwise provided in this
Section, Awards shall not be transferable, and no Award or interest
therein may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of
descent and distribution. However, the Award of a
Nonstatutory Option or Restricted Stock may be transferred by the
Participant through a gift or domestic relations order in
settlement of marital property rights to any of the following
donees or transferees and may be reacquired by the Participant from
any of such donors or transferees (each a “Permitted
Transferee”):
(a)any
“family member,” which includes any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling,
niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships and any individual sharing the Participant’s
household (other than a tenant or employee);
(b)a
trust in which family members have more than 50% of the beneficial
interest;
(c)a
foundation in which family members (or the Participant) control the
management of assets; and
(d)any
other entity in which family members (or the Participant) own more
than 50% of the voting interests,
provided, that (x) any such transfer is without payment of any
value whatsoever; and (y) subsequent transfers of transferred
Awards shall be prohibited except in accordance with this Section.
Following transfer, any such Awards and any securities issued
pursuant thereto shall continue to be subject to the same terms and
conditions as were applicable immediately prior to transfer
(including but not limited to risks of forfeiture), provided
that the term of the Plan and the Grant Agreement shall continue to
be applied with respect to the original Participant, and any Awards
shall be exercisable by the transferee only to the extent and for
the periods specified in the Grant Agreement. No
transfer of an Award by will or the laws of descent and
distribution shall be effective to bind the Company unless the
Administrator or Board has been furnished with (a) written notice
and a copy of the will and/or such evidence as the Administrator or
Board may deem necessary to establish the validity of the transfer,
and (b) an agreement by the transferee to comply with all the terms
and conditions of the Award that would have applied to the
Participant and to be bound by the acknowledgments made by the
Participant in connection with the grant of the Award. Unless
otherwise determined by the Administrator or Board in accord with
the provisions of the first sentence of this subsection, an Award
may be exercised during the lifetime of the grantee, only by the
grantee or, during the period the grantee is under a legal
disability, by the grantee’s guardian or legal representative.
Adjustments; Business Combinations. In the event of
changes in the Common Stock of the Company by reason of any stock
dividend, spin-off, split-up, recapitalization, merger,
consolidation, business combination or exchange of shares and the
like, the Administrator or Board shall, in its discretion and
without the consent of holders of Awards, make appropriate
adjustments to (i) the maximum number and kind of shares reserved
for issuance or with respect to which Awards may be granted under
the Plan as provided in Section 4 of the Plan, and (ii) the number,
kind and price of shares covered by outstanding Awards. In
the event of any such changes in the Common Stock, the
Administrator or Board shall, in its discretion and without the
consent of holders of Awards, make any other adjustments in
outstanding Awards, including but not limited to reducing the
number of shares subject to
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Awards or providing or mandating alternative settlement methods
such as settlement of the Awards in cash or in shares of Common
Stock or other securities of the Company or of any other
entity.
The Administrator or Board is authorized to make, in its discretion
and without the consent of holders of Awards, adjustments in the
terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events affecting the
Company, or the financial statements of the Company or any
Affiliate, or of changes in applicable laws, regulations, or
accounting principles, whenever the Administrator or Board
determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan.
Substitution of Awards in Mergers and Acquisitions.
Awards may be granted under the Plan from time to time in
substitution for Awards held by employees, officers, consultants or
directors of entities who become or are about to become employees,
officers, consultants or directors of the Company or an Affiliate
as the result of a merger or consolidation of the employing entity
with the Company or an Affiliate, or the acquisition by the Company
or an Affiliate of the assets or stock of the employing entity.
The terms and conditions of any substitute Awards so granted
may vary from the terms and conditions set forth herein to the
extent that the Administrator or Board deems appropriate at the
time of grant to conform without dilution or enlargement of
benefits the substitute Awards to the provisions of the awards for
which they are substituted.
Stock Restriction Agreement and Voting Trust. As a condition
precedent to the grant of any Award under the Plan, the exercise
pursuant to such an Award, or to the delivery of certificates for
shares issued pursuant to any Award, the Administrator or Board may
require the grantee or the grantee’s successor or permitted
transferee, as the case may be, to become a party to a stock
restriction agreement of the Company and/or a voting trust
agreement in such form(s) as the Administrator or Board may
determine from time to time.
Termination, Amendment and Modification of the Plan.
The Administrator or Board may terminate, amend or modify the
Plan or any portion thereof at any time. Notwithstanding the
foregoing, no amendment shall be made without shareholder approval
if approval is required under applicable law or the rules of any
stock exchange on which the Company is listed.
Non-Guarantee of Employment or Service. Nothing in the
Plan or in any Grant Agreement thereunder shall confer any right on
an individual to continue in the service of the Company or shall
interfere in any way with the right of the Company to terminate
such service at any time with or without cause or notice.
Compliance with Securities Laws; Listing and Registration.
If at any time the Administrator or Board determines that the
delivery of Common Stock under the Plan is or may be unlawful under
the laws of any applicable jurisdiction, or federal or state
securities laws, the right to exercise an Award or receive shares
of Common Stock pursuant to an Award shall be suspended until the
Administrator or Board determines that such delivery is
lawful. The Company shall have no obligation to effect any
registration or qualification of the Common Stock under federal or
state laws.
The Company may require that a grantee, as a condition to exercise
of an Award, and as a condition to the delivery of any share
certificate, make such written representations (including
representations to the effect that such person will not dispose of
the Common Stock so acquired in violation of federal or state
securities laws) and furnish such information as may, in the
opinion of counsel for the Company, be appropriate to permit the
Company to issue the Common Stock in compliance with applicable
federal and state securities laws. The stock certificates for
any shares of Common Stock issued pursuant to this Plan may bear a
legend restricting transferability of the shares of Common Stock
unless such shares are registered or an exemption from registration
is available under the Securities Act and applicable state
securities laws.
No Trust or Fund Created. Neither the Plan nor any
Award shall create or be construed to create a trust or separate
fund of any kind or a fiduciary relationship between the Company
and a grantee or any other person. To the extent that any
grantee or other person acquires a right to receive payments from
the Company pursuant to an Award, such right shall be no greater
than the right of any unsecured general creditor of the
Company.
Section 409A. Unless the Adminstrator or Board
expressly determines otherwise, Awards (and any amendmenst thereto)
are intended to be exempt from Code Section 409A as stock rights or
short-term deferrals and, accordingly, the terms of any Awards
shall be construed and administered to preserve such exemption
(including with respect to the time of payment following a lapse of
restrictions applicable to an Award). To the extent that
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Section 409A applies to a particular Award granted under the Plan
(notwithstanding the preceding sentence), then the terms of the
Award shall be construed and administered to permit the Award to
comply with Section 409A, including, if necessary, by delaying the
payment of any Award payable upon separation from service to a
Participant who is a “specified employee” (as defined in Code
Section 409A and determined consistently for all of the Company’s
arrangements that are subject to Code Section 409A), for a period
of six months and one day after such Participant’s separation from
service, and by construing any reference to “termination of
employment” or the like to be a “separation from service” within
the meaning of Code Section 409A. In the event any
person is subject to income inclusion, additional interest or
taxes, or any other adverse consequences under Code Section 409A,
then neither the Company, the Administrator, the Board nor its or
their employees, designees, agents or contractors shall be liable
to any Participant or other persons in connection with such adverse
consequences under Code Section 409A.
No Fractional Shares. No fractional shares of Stock
shall be issued or delivered pursuant to the Plan. The
Administrator or Board shall determine whether cash, other Awards,
or other property shall be issued or paid in lieu of any fractional
shares or whether fractional shares or any rights to fractional
shares shall be forfeited or otherwise eliminated.
Beneficiary. A Participant may file with the
Administrator or Board a written designation of a beneficiary on
the form prescribed by the Administrator or Board and may, from
time to time, amend or revoke the designation. If no
designated beneficiary survives the Participant, the Participant’s
spouse, if any, shall be deemed to be the Participant’s
beneficiary. If the Participant does not have a spouse, the
executor or administrator of the Participant’s estate shall be
deemed to be the Participant’s beneficiary.
Section 162(m). The Plan is designed and intended, and
all provisions shall be construed in a manner, to comply, to the
extent applicable, with Code Section 162(m) and the regulations
thereunder. To the extent permitted by Code Section 162(m),
the Administrator or Board shall have sole discretion to reduce or
eliminate payment of the amount of any Award which might
otherwise become payable upon attainment of a Performance Goal.
Form of Communication. Any election, application,
claim, notice, or other communication required or permitted to be
made by a Participant to the Administrator or Board or the Company
shall be made in writing and in such form as the Company may
prescribe. Any communication shall be effective upon receipt
by Berge Abajian, President, at berge@bergio.com.
Severability. If any provision of the Plan is held to
be invalid or unenforceable, the other provisions of the Plan shall
not be affected.
Governing Law. The validity, construction
and effect of the Plan, of Grant Agreements entered into pursuant
to the Plan, and of any rules, regulations, determinations or
decisions made by the Administrator or Board relating to the Plan
or such Grant Agreements, and the rights of any and all persons
having or claiming to have any interest therein or thereunder,
shall be determined exclusively in accordance with applicable
federal laws and the laws of the State of Wyoming without regard to
its conflict of laws principles.
Effective Date; Termination Date. The Plan is
effective as of the date on which the Plan is adopted by the Board,
subject to approval of the stockholders within twelve months before
or after such date. No Award shall be granted under the Plan
after the close of business on the day immediately preceding the
tenth anniversary of the effective date of the Plan. Subject
to other applicable provisions of the Plan, all Awards made under
the Plan prior to such termination of the Plan shall remain in
effect until such Awards have been satisfied or terminated in
accordance with the Plan and the terms of such Awards.
Date Approved by the Board:__________________________________
Date Approved by the Stockholders:_____________________________
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