Attached files
file | filename |
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8-K - CUSTOM Q 8-K 1-12-2010 - CUSTOM Q INC | form8-k.htm |
EX-2.1 - EXHIBIT 2.1 - CUSTOM Q INC | ex2_1.htm |
EX-3.1 - EXHIBIT 3.1 - CUSTOM Q INC | ex3_1.htm |
EX-99.1 - EXHIBIT 99.1 - CUSTOM Q INC | ex99_1.htm |
EX-10.6 - EXHIBIT 10.6 - CUSTOM Q INC | ex10_6.htm |
EX-21.1 - EXHIBIT 21.1 - CUSTOM Q INC | ex21_1.htm |
EX-10.1 - EXHIBIT 10.1 - CUSTOM Q INC | ex10_1.htm |
EX-99.2 - EXHIBIT 99.2 - CUSTOM Q INC | ex99_2.htm |
EX-10.3 - EXHIBIT 10.3 - CUSTOM Q INC | ex10_3.htm |
EX-10.5 - EXHIBIT 10.5 - CUSTOM Q INC | ex10_5.htm |
EX-10.4 - EXHIBIT 10.4 - CUSTOM Q INC | ex10_4.htm |
Exhibit 10.2
GREENHOUSE
HOLDINGS, INC.
2010
EQUITY INCENTIVE PLAN
1.
Purpose.
The purpose of this Equity Incentive Plan (the “Plan”) is to advance the
interests of GreenHouse Holdings, Inc. (the “Company”) and its Affiliates
(as defined below) by inducing eligible individuals of outstanding ability and
potential to join and remain with, or to provide consulting or advisory services
to, the Company or its Affiliates, by encouraging and enabling eligible
employees, Outside Directors (as defined below), consultants, and advisors to
acquire proprietary interests in the Company, and by providing participating
eligible employees, Outside Directors, consultants, and advisors with an
additional incentive to promote the success of the Company. These purposes are
accomplished by providing for the granting of Incentive Stock Options,
Nonqualified Stock Options, Reload Options, Stock Appreciation Rights, and
Restricted Stock (all as defined below) to eligible employees, Outside
Directors, consultants, and advisors.
2.
Definitions. As used in the Plan, the following
terms have the meanings indicated:
(a) “Affiliate” means a “parent corporation” or a
“subsidiary corporation” (as set forth in Code Sections 424(e) and 424(f),
respectively) of the Company.
(b) “Applicable
Withholding Taxes” means
the aggregate minimum amount of federal, state, local, and foreign income,
payroll, and other taxes that an Employer is required to withhold in connection
with the grant, vesting, or exercise of any Award.
(c) “Award” means an Incentive Stock Option, a
Nonqualified Stock Option, a Reload Option, a Stock Appreciation Right, or
Restricted Stock.
(d) “Beneficiary” means the person or entity designated
by the Participant, in a form approved by the Company, to exercise the
Participant’s rights with respect to an Award after the Participant’s death. If
the Participant does not validly designate a Beneficiary, or if the designated
person no longer exists, then the Participant’s Beneficiary shall be his or her
estate.
(e) “Board” means the Board of Directors of the
Company.
(f) “Cause” shall have the same meaning given to
such term (or other term of similar meaning) in Employment Agreement for
purposes of termination of employment under such agreement, and in the absence
of any such agreement or if such agreement does not include a definition of
“Cause” (or other term of similar meaning), the term “Cause” shall mean (i) any
material breach by the Participant of any agreement to which the Participant and
the Company or an Affiliate are parties, (ii) any continuing act or omission to
act by the Participant which may have a material and adverse effect on the
Company’s business or on the Participant’s ability to perform services for the
Company or an Affiliate, including, without limitation, the commission of any
crime (other than minor traffic violations), or (iii) any material misconduct or
material neglect of duties by the Participant in connection with the business or
affairs of the Company or an Affiliate.
(g) “Change in
Control” means, unless
such term or an equivalent term is otherwise defined with respect to an Award by
the Participant’s Award agreement, any Employment Agreement or in a written
contract of service, the occurrence of any of the following:
(i)
any “person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes
the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing more
than fifty percent (50%) of the total combined voting power of the Company’s
then-outstanding securities entitled to vote generally in the election of
Directors; provided, however, that the following acquisitions shall not
constitute a Change in Control: (1) an acquisition by any such person who on the
Effective Date is the beneficial owner of more than fifty percent (50%) of such
voting power, (2) any acquisition directly from the Company, including, without
limitation, a public offering of securities, (3) any acquisition by the Company,
or (4) any acquisition by an entity owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of the voting securities of the Company; or
(ii) an Ownership Change Event or series of
related Ownership Change Events (collectively, a “Transaction”) in which the stockholders of the
Company immediately before the Transaction do not retain immediately after the
Transaction direct or indirect beneficial ownership of more than fifty percent
(50%) of the total combined voting power of the outstanding securities entitled
to vote generally in the election of Directors or, in the case of an Ownership
Change Event described in Section 2(x)(iii), the entity to which the assets of
the Company were transferred (the “Transferee”), as the case may be;
or
(iii) a liquidation or dissolution of the
Company.
provided,
however, that a Change in Control shall be deemed not to include a transaction
described in subsections (i) or (ii) of this paragraph (g) in which a majority
of the members of the board of directors of the continuing, surviving or
successor entity, or parent thereof, immediately after such transaction is
comprised of incumbent Directors. For purposes of the preceding sentence,
indirect beneficial ownership shall include, without limitation, an interest
resulting from ownership of the voting securities of one or more corporations or
other business entities which own the Company or the Transferee, as the case may
be, either directly or through one or more subsidiary corporations or other
business entities. The Committee shall have the right to determine whether
multiple sales or exchanges of the voting securities of the Company or multiple
Ownership Change Events are related, and its determination shall be final,
binding and conclusive.
(h) “Code” means the Internal Revenue Code of
1986, as amended from time to time, and any rulings or regulations promulgated
thereunder.
(i)
“Committee” means the Board, the Compensation
Committee of the Board, or such other committee of the Board as the Board
appoints to administer the Plan; provided, however, that should Section 162(m)
of the Code and Section 16 of the Securities Exchange Act of 1934 apply to
Awards under the Plan, if any member of the Committee does not qualify as both
an “outside director” for purposes of Code Section 162(m) and a “non-employee
director” for purposes of Rule 16b-3, the remaining members of the Committee
(but not less than two members) shall be constituted as a subcommittee of the
Committee to act as the Committee for purposes of the Plan.
(j)
“Commission” means the U.S. Securities and
Exchange Commission.
(k) “Company” means GreenHouse Holdings, Inc., a
Nevada corporation, and its subsidiaries.
(l)
“Company
Stock” means common stock,
par value $.001 per share, of the Company. In the event of a change in the
capital structure of the Company affecting the common stock (as provided in
Section 14), the shares resulting from such a change in the common stock shall
be deemed to be Company Stock within the meaning of the
Plan.
(m) “Date of
Grant” means the date on
which the Committee grants an Award, or such future date as may be determined by
the Committee.
(n) “Disability” means a disability within the meaning
of Code Section 22(e)(3).
(o) “Employer” means the Company and each Affiliate
that employs one or more Participants.
(p) “Employment
Agreement” means any
written employment or other similar agreement between the Participant and the
Company or an Affiliate.
(q) “Exchange
Act” means the Securities
Exchange Act of 1934, as amended.
(r)
“Fair Market
Value” means on any given
date the fair market value of Company Stock as of such date, as determined by
the Committee. If the Company Stock is listed on a national securities exchange
or traded on the over-the-counter market, Fair Market Value means the closing
selling price or, if not available, the closing bid price or, if not available,
the high bid price of the Company Stock quoted on such exchange, or on the
over-the-counter market as reported by the NASDAQ Stock Market (“NASDAQ”), or if the Company Stock is not
listed on NASDAQ, then by the National Quotation Bureau, Incorporated, on the
day immediately preceding the day on which the Award is granted or exercised, as
the case may be, or, if there is no selling or bid price on that day, the
closing selling price, closing bid price, or high bid price on the most recent
day which precedes that day and for which such prices are
available.
(s) “Incentive Stock
Option” means an Option
that qualifies for favorable income tax treatment under Code Section
422.
(t)
“Mature
Shares” means shares of
Company Stock for which the shareholder has good title, free and clear of all
liens and encumbrances.
(u) “Nonqualified Stock
Option” means an Option
that is not an Incentive Stock Option.
(v) “Option” means a right to purchase Company
Stock granted under the Plan, at a price determined in accordance with the
Plan.
(w) “Outside
Director” means a member
of the Board who is not an employee of, or a consultant or advisor to, the
Company or an Affiliate as of the Date of Grant.
(x) “Ownership Change
Event” means the
occurrence of any of the following with respect to the Company: (i) the direct
or indirect sale or exchange in a single or series of related transactions by
the stockholders of the Company of more than fifty percent (50%) of the voting
stock of the Company; (ii) a merger or consolidation in which the Company is a
party; or (iii) the sale, exchange, or transfer of all or substantially all of
the assets of the Company (other than a sale, exchange or transfer to one or
more subsidiaries of the Company).
(y) “Participant” means any employee, Outside Director,
consultant, or advisor (including independent contractors, professional
advisors, and service providers) of the Company or an Affiliate who receives an
Award under the Plan.
(z)
“Restricted
Stock” means Company Stock
awarded under Section 9 of the Plan.
(aa)
“Reload
Option” means a reload
option grant made in accordance with Section 7 of the Plan.
(bb) “Rule
16b-3” means Rule 16b-3 of
the Commission promulgated under the Exchange Act. A reference in the Plan to
Rule 16b-3 shall include a reference to any corresponding rule (or number
redesignation) of any amendments to Rule 16b-3 enacted after the effective date
of the Plan’s adoption.
(cc) “Securities
Act” means the Securities
Act of 1933, as amended.
(dd) “Stock Appreciation
Right” means a right to
receive amounts awarded under Section
3.
Stock. Subject to Section 14 of the Plan,
there shall be reserved for issuance under the Plan an aggregate of 2,000,000
shares of Company Stock, which may be authorized but unissued shares, or shares
held in the Company’s treasury, or shares purchased from stockholders expressly
for use under the Plan. In addition, shares allocable to Awards granted under
the Plan that expire, are forfeited, are cancelled without the delivery of the
shares, or otherwise terminate unexercised, may again be available for Awards
under the Plan. For purposes of determining the number of shares that are
available for Awards under the Plan, the number shall also include the number of
shares surrendered by a Participant actually or by attestation or retained by
the Company in payment of Applicable Withholding Taxes, and any Mature Shares
surrendered by a Participant upon exercise of an Option or in payment of
Applicable Withholding Taxes. Shares issued under the Plan through the
settlement, assumption, or substitution of outstanding awards or obligations to
grant future awards as a condition of an Employer acquiring another entity shall
not reduce the maximum number of shares available for delivery under the
Plan.
4.
Eligibility. Subject to the terms of the Plan, the
Committee shall have the power and complete discretion, as provided in Section
13, to select eligible employees, Outside Directors, consultants, and advisors
to receive an Award under the Plan; provided, however, that any Award shall be
subject to the following terms and conditions:
(a) Only those individuals who are
employees (including officers) of the Company or an Affiliate at the Date of
Grant shall be eligible to receive an Incentive Stock Option under the
Plan.
(b) All employees (including officers) and
Outside Directors of, or consultants and advisors to, either the Company or an
Affiliate at the Date of Grant shall be eligible to receive Nonqualified Stock
Options, Stock Appreciation Rights, and Restricted Stock; provided, however,
that Nonqualified Stock Options, Stock Appreciation Rights, and Restricted Stock
may not be granted to any such consultants and advisors unless (i) bona fide
services have been or are to be rendered by such consultant or advisor and (ii)
such services are not in connection with the offer or sale of securities in a
capital raising transaction.
(c) Anything herein to the contrary
notwithstanding, any recipient of an Award under the Plan must be includable in
the definition of “employee” provided in the general instructions to Form S-8
Registration Statement under the Securities Act.
(d) The grant of an Award shall not
obligate an Employer to pay any employee, Outside Director, consultant, or
advisor any particular amount of remuneration, to continue the employment of the
employee or engagement of the Outside Director, consultant, or advisor after the
grant, or to make further grants to the employee, Outside Director, consultant,
or advisor at any time thereafter.
5.
Stock
Options.
(a) The Committee may make grants of
Options to Participants. Except as otherwise provided herein, the Committee
shall determine the number of shares for which Options are granted, the Option
exercise price per share, whether the Options are Incentive Stock Options or
Nonqualified Stock Options, and any other terms and conditions to which the
Options are subject.
(b) The exercise price of shares of Company
Stock covered by an Option shall be not less than 100 percent of the Fair Market
Value of Company Stock on the Date of Grant. Except as provided in Section 14,
(i) the exercise price of an Option may not be decreased after the Date of Grant
and (ii) a Participant may not surrender an Option in consideration for the
grant of a new Option with a lower exercise price or another
Award.
(c) All Options granted hereunder shall be
subject to the following terms and conditions:
(i)
All
Options shall be evidenced by a written stock option agreement (the
“Stock
Option Agreement”) setting
forth all the relevant terms of the Award.
(ii) No Option shall be exercisable more
than 10 years after the Date of Grant.
(iii) The aggregate Fair Market Value,
determined at the Date of Grant, of shares for which Incentive Stock Options
become exercisable by a Participant during any calendar year shall not exceed
$100,000 and any amount in excess of $100,000 shall be treated as a
Non-Qualified Stock Option. The maximum aggregate number of shares for which
Incentive Stock Options may be issued under the Plan to any Participant in any
calendar year shall be 200,000.
(iv) If an Incentive Stock Option is granted
to an employee who owns, at the Date of Grant, more than 10 percent of the total
combined voting power of all classes of stock of the Company or an Affiliate,
then (A) the option price of the shares subject to the Incentive Stock Option
shall be at least 110% of the Fair Market Value of the Company Stock at the Date
of Grant and (B) such Incentive Stock Option shall not be exercisable after the
expiration of 5 years from the Date of Grant.
(v) Subject to earlier termination of the
Option as otherwise provided herein and unless otherwise provided in any
Employment Agreement or as provided by the Committee in the grant of an Option
and set forth in or incorporated into the Stock Option Agreement: (A) if the
employment of an employee by, or the services of an Outside Director for, or
consultant or advisor to, the Company or an Affiliate should be terminated for
Cause or terminated voluntarily by the grantee, then any outstanding Option
shall terminate immediately, (B) if such employment or services terminates for
any other reason, any such Option exercisable as of the date of termination may
be exercised at any time within three months of termination. For purposes of
this subsection, (y) the retirement of an individual either pursuant to a
pension or retirement plan maintained by the Company or an Affiliate or at the
applicable normal retirement date prescribed from time to time by the Company
shall be deemed to be termination of the individual’s employment other than
voluntarily or for Cause, and (z) an individual who leaves the employ or
services of the Company or an Affiliate to become an employee or Outside
Director of, or a consultant or advisor to, an entity that has assumed the
Option as a result of a corporate reorganization or the like shall not be
considered to have terminated employment or services.
(vi) Subject to earlier termination of the
Option as otherwise provided herein and unless otherwise provided in any
Employment Agreement or as provided by the Committee in the grant of an Option
and set forth in or incorporated into the Stock Option Agreement, if the holder
of an Option under the Plan ceases employment or services because of Disability
while employed by, or while serving as an Outside Director for or a consultant
or advisor to, the Company or an Affiliate, then such Option may, subject to the
provisions of subsection (viii) below, be exercised at any time within one year
after the termination of employment or services due to the
Disability.
(vii) Subject to earlier termination of the
Option as otherwise provided herein and unless otherwise provided in any
Employment Agreement or as provided by the Committee in the grant of an Option
and set forth in or incorporated into the Stock Option Agreement, if the holder
of an Option under the Plan dies (A) while employed by, or while serving as an
Outside Director for or a consultant or advisor to, the Company or an Affiliate,
or (B) within three months after the termination of employment or services other
than voluntarily by the grantee or for Cause, then such Option may, subject to
the provisions of subsection (viii) below, be exercised by the Participant’s
Beneficiary at any time within one year after the Participant’s
death.
(viii) An Option may not be exercised after
termination of employment, termination of directorship, termination of
consulting or advisory services, Disability or death except to the extent that
the holder was entitled to exercise the Option at the time of such termination
or as otherwise provided in a currently effective written Employment Agreement,
consulting agreement or other related agreement executed between the Company and
the employee, Outside Director or consultant or advisor, and in any event may
not be exercised after the expiration of the Option in accordance with the terms
of the grant.
(ix) The employment relationship of an
employee of the Company or an Affiliate shall be treated as continuing intact
while the employee is on military or sick leave or other bona fide leave of
absence if such leave does not exceed 90 days or, if longer, so long as the
employee’s right to reemployment is guaranteed either by statute or by
contract.
(d) The holder of any Option granted under
the Plan shall have none of the rights of a stockholder with respect to the
shares covered by the Option until such stock shall be transferred to the holder
upon the exercise of the Option.
6.
Grants
to Outside Directors. Awards, other than Incentive Stock
Options, may be made to Outside Directors. The Committee shall have the power
and complete discretion to select Outside Directors to receive Awards. The
Committee shall have the complete discretion, under provisions consistent with
Section 13, to determine the terms and conditions, the nature of the Award and
the number of shares to be allocated as part of each Award for each Outside
Director. The grant of an Award shall not obligate the Company to make further
grants to the Outside Director at any time thereafter or to retain any person as
a director for any period of time.
7.
Reload
Options. The Committee may
grant Options with a reload feature. A reload feature shall only apply when the
exercise price is paid by delivery of Company Stock in accordance with Section
10. The Stock Option Agreement for the Option containing the reload feature
shall provide that the holder of the Option shall receive, contemporaneously
with the payment of the exercise price in shares of Company Stock, a Reload
Option to purchase that number of shares of Company Stock equal to the sum of
(i) the number of shares used to exercise the Option, and (ii) with respect to
Nonqualified Stock Options, the number of shares used to satisfy Applicable
Withholding Taxes. The terms of the Plan applicable to the Option shall be
equally applicable to the Reload Option with the following exceptions: the
option price per share of Company Stock deliverable upon the exercise of the
Reload Option (i) in the case of a Reload Option that is an Incentive Stock
Option being granted to a Participant who owns more than 10 percent of the total
combined voting power of all classes of stock of the Company or an Affiliate,
shall be 110% of the Fair Market Value of a share of Company Stock on the Date
of Grant of the Reload Option, and (ii) in the case of a Reload Option which is
an Incentive Stock Option being granted to any other Participant, or which is a
Nonqualified Stock Option, shall be the Fair Market Value of a share of Company
Stock on the Date of Grant of the Reload Option. The term of the Reload Option
shall be the same as the Option which gave rise to the Reload Option. If the
exercise price of an Option containing a reload feature is paid in cash and not
in shares of Company Stock, the reload feature shall have no application with
respect to such exercise.
8.
Stock
Appreciation Rights.
Concurrently with the award of any Option to purchase one or more shares of
Company Stock, the Committee may, in its sole discretion, award to the optionee
with respect to each share of Company Stock covered by an Option a related Stock
Appreciation Right, which permits the optionee to be paid the appreciation on
the related Option in lieu of exercising the Option. The Committee shall
establish as to each award of Stock Appreciation Rights the terms and conditions
to which the Stock Appreciation Rights are subject; provided, however, that the
following terms and conditions shall apply to all Stock Appreciation
Rights:
(a) A Stock Appreciation Right granted with
respect to an Incentive Stock Option must be granted together with the related
Option. A Stock Appreciation Right granted with respect to a Nonqualified Stock
Option may be granted together with the grant of the related
Option.
(b) A Stock Appreciation Right shall
entitle the Participant, upon exercise of the Stock Appreciation Right, to
receive in exchange an amount equal to the excess of (i) the Fair Market Value
on the date of exercise of Company Stock covered by the surrendered Stock
Appreciation Right over (ii) the Fair Market Value of Company Stock on the Date
of Grant of the Stock Appreciation Right. The Committee may limit the amount
that the Participant will be entitled to receive upon exercise of a Stock
Appreciation Right.
(c) A Stock Appreciation Right may be
exercised only if and to the extent the underlying Option is exercisable, and a
Stock Appreciation Right may not be exercisable in any event more than 10 years
after the Date of Grant.
(d) A Stock Appreciation Right may only be
exercised at a time when the Fair Market Value of Company Stock covered by the
Stock Appreciation Right exceeds the Fair Market Value of Company Stock on the
Date of Grant of the Stock Appreciation Right. The Stock Appreciation Right may
provide for payment in Company Stock or cash, or a fixed combination of Company
Stock and cash, or the Committee may reserve the right to determine the manner
of payment at the time the Stock Appreciation Right is
exercised.
(e) To the extent a Stock Appreciation
Right is exercised, the underlying Option shall be cancelled, and the shares of
Company Stock represented by the Option shall no longer be available for Awards
under the Plan.
9.
Restricted
Stock Awards.
(a) The Committee may make grants of
Restricted Stock to a Participant. The Committee shall establish as to each
award of Restricted Stock the terms and conditions to which the Restricted Stock
is subject, including the period of time before which all restrictions shall
lapse and the Participant shall have full ownership of the Company Stock. The
Committee in its discretion may award Restricted Stock without cash
consideration. All Restricted Stock Awards shall be evidenced by a Restricted
Stock Agreement setting forth all the relevant terms of the
Award.
(b) Restricted Stock may not be sold,
assigned, transferred, pledged, hypothecated, or otherwise encumbered or
disposed of until the restrictions have lapsed or been removed. Certificates
representing Restricted Stock shall be held by the Company until the
restrictions lapse, and the Participant shall provide the Company with
appropriate stock powers endorsed in blank.
10. Method
of Exercise of Options.
(a) Options may be exercised by the
Participant (or his or her legal guardian or personal representative) by giving
written notice of the exercise to the Company at its principal office (attention
of the Corporate Secretary) pursuant to procedures established by the Company.
The notice shall state the number of shares the Participant has elected to
purchase under the Option. Such notice shall be accompanied, or followed within
10 days of delivery thereof, by payment of the full exercise price of such
shares. The exercise price may be paid in cash by means of a check payable to
the order of the Company or, if the terms of an Option permit, (i) by delivery
or attestation of Mature Shares (valued at their Fair Market Value) in
satisfaction of all or any part of the exercise price, (ii) by delivery of a
properly executed exercise notice with irrevocable instructions to a broker to
deliver to the Company the amount necessary to pay the exercise price from the
sale or proceeds of a loan from the broker with respect to the sale of Company
Stock or a broker loan secured by the Company Stock, (iii) by such other
consideration as may be approved by the Committee from time to time to the
extent permitted by applicable law, or (iv) by any combination of (i) through
(iii) hereof.
(b) Unless prior to the exercise of the
Option the shares issuable upon such exercise have been registered with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, the
notice of exercise shall be accompanied by a representation or agreement of the
individual or entity exercising the Option to the Company to the effect that
such shares are being acquired for investment purposes and not with a view to
the distribution thereof, and such other documentation as may be required by the
Company, unless in the opinion of counsel to the Company such representation,
agreement or documentation is not necessary to comply with any such
act.
(c) The Company shall not be obligated to
deliver any Company Stock until the shares have been listed on each securities
exchange or market on which the Company Stock may then be listed or until there
has been qualification under or compliance with such federal or state laws,
rules or regulations as the Company may deem applicable. The Company shall use
reasonable efforts to obtain such listing, qualification and
compliance.
11. Tax
Withholding. Each
Participant shall agree as a condition of receiving an Award payable in the form
of Company Stock to pay to the Employer, or make arrangements satisfactory to
the Employer regarding the payment to the Employer of, Applicable Withholding
Taxes. Under procedures established by the Committee or its delegate, a
Participant may elect to satisfy Applicable Withholding Taxes by (i) making a
cash payment or authorizing additional withholding from cash compensation, (ii)
delivering Mature Shares (valued at their Fair Market Value), or (iii) if the
applicable Stock Option Agreement or Restricted Stock Agreement permits, having
the Company retain that number of shares of Company Stock (valued at their Fair
Market Value) that would satisfy all or a specified portion of the Applicable
Withholding Taxes.
12. Transferability
of Awards. Awards shall
not be transferable except by will or by the laws of descent and
distribution.
13. Administration
of the Plan.
(a) The Committee shall administer the
Plan. Subject to the terms and conditions set forth in the Plan, the Committee
shall have general authority to impose any term, limitation, or condition upon
an Award that the Committee deems appropriate to achieve the objectives of the
Award and of the Plan. The Committee may adopt rules and regulations for
carrying out the Plan with respect to Participants and Beneficiaries. The
interpretation and construction of any provision of the Plan by the Committee
shall be final and conclusive as to any Participant or
Beneficiary.
(b) The Committee shall have the power to
amend the terms and conditions of previously granted Awards so long as the terms
as amended are consistent with the terms of the Plan and provided that the
consent of the Participant is obtained with respect to any amendment that would
be detrimental to him or her, except that such consent will not be required if
such amendment is for the purpose of complying with Rule 16b-3 or any
requirement of the Code or of other securities laws applicable to the
Award.
(c) The Committee shall have the power and
complete discretion (i) to delegate to any individual, or to any group of
individuals employed by the Company or any Affiliate, the authority to grant
Awards under the Plan and (ii) to determine the terms and limitations of any
delegation of authority; provided, however, that the Committee may not delegate
power and discretion to the extent such action would cause noncompliance with,
or the imposition of penalties, excise taxes, or other sanctions under,
applicable corporate law, Rule 16b-3, Code Section 162(m) or 409A, or any other
applicable securities or tax law.
(d) The Committee shall have the power to
include one or more provisions in the terms of Award grants to provide for the
cancellation of an outstanding Award in the event the Participant violates any
agreement or other obligation dealing with non-competition, non-solicitation or
protection of the Company’s confidential information.
14. Change
in Capital Structure; Change of Control.
(a) Change in Capital
Structure. In the event of
a stock dividend, stock split, or combination of shares, share exchange, share
distribution, recapitalization or merger in which the Company is the surviving
corporation, a spin-off or split-off of a subsidiary or Affiliate, or other
change in the Company’s capital stock (including, but not limited to, the
creation or issuance to shareholders generally of rights, options, or warrants
for the purchase of common stock or preferred stock of the Company), the
aggregate number and kind of shares of stock or securities of the Company to be
subject to the Plan and to Awards then outstanding or to be granted, the maximum
number of shares or securities which may be delivered under the Plan under
Sections 3, 5(b), or 8, the per share exercise price of Options, the terms of
Awards, and other relevant provisions shall be proportionately and appropriately
adjusted by the Committee in its discretion, and the determination of the
Committee shall be binding on all persons. If the adjustment would produce
fractional shares with respect to any unexercised Option, the Committee may
adjust appropriately and in a nondiscriminatory manner the number of shares
covered by the Option so as to eliminate the fractional
shares.
(b) Effect of Change in
Control on Options and Stock Appreciation Rights. Subject to the terms of any Employment
Agreement, the Committee may provide in an Award agreement for, or in the event
of a Change in Control may take such actions as it deems appropriate to provide
for, any one or more of the following:
(i) Accelerated
Vesting. The Committee may
provide for the acceleration of the exercisability and vesting in connection
with a Change in Control of any or all outstanding Options and Stock
Appreciation Rights and shares acquired upon the exercise thereof upon such
conditions, including termination of the Participant’s service prior to, upon,
or following such Change in Control, and to such extent as the Committee shall
determine.
(ii) Assumption
or Substitution. In the
event of a Change in Control, the surviving, continuing, successor, or
purchasing entity or parent thereof, as the case may be (the “Acquiror”), may, without the consent of any
Participant, either assume or continue the Company’s rights and obligations
under any or all outstanding Options and Stock Appreciation Rights or substitute
for any or all outstanding Options and Stock Appreciation Rights substantially
equivalent options and stock appreciation rights (as the case may be) for the
Acquiror’s stock. Any Options or Stock Appreciation Rights which are neither
assumed or continued by the Acquiror in connection with the Change in Control
nor exercised as of the time of consummation of the Change in Control shall
terminate and cease to be outstanding effective as of the time of consummation
of the Change in Control.
(iii) Cash-Out. The Committee may, in its sole
discretion and without the consent of any Participant, determine that, upon the
occurrence of a Change in Control, each or any Option or Stock Appreciation
Right outstanding immediately prior to the Change in Control shall be canceled
in exchange for a payment with respect to each vested share (and each unvested
share, if so determined by the Committee) of Company Stock subject to such
canceled Option or Stock Appreciation Right in (A) cash, (B) stock of the
Company or of a corporation or other business entity a party to the Change in
Control, or (C) other property which, in any such case, shall be in an amount
having a Fair Market Value equal to the excess of the Fair Market Value of the
consideration to be paid per share of Company Stock in the Change in Control
over the exercise price per share under such Option or Stock Appreciation Right
(the “Spread”). In the event such determination is
made by the Committee, the Spread (reduced by applicable withholding taxes, if
any) shall be paid to Participants in respect of the vested portion (and
unvested portion, if so determined by the Committee) of their canceled Options
and Stock Appreciation Rights as soon as practicable following the date of the
Change in Control.
(iv) Effect of Change in
Control on Restricted Stock Awards. The Committee may provide for the
acceleration of the vesting of the shares subject to the Restricted Stock Award
upon such conditions, including termination of the Participant’s services to the
Company prior to, upon, or following such Change in Control, and to such extent
as the Committee shall determine.
15. Effective
Date. The effective date
of the Plan is ___ ___, 2009. The Plan shall be submitted to the shareholders of
the Company for approval. Until (i) the Plan has been approved by the Company’s
shareholders, and (ii) the requirements of any applicable federal or state
securities laws have been met, no Restricted Stock shall be awarded, and no
Option shall be granted or exercisable, that is not contingent on these
events.
16. Termination,
Modification. If not
sooner terminated by the Board, this Plan shall terminate at the close of
business on January 2, 2020. No Awards shall be made under the Plan
after its termination. The Board may amend or terminate the Plan as it shall
deem advisable; provided, however, that no change shall be made that increases
the total number of shares of Company Stock reserved for issuance pursuant to
Awards granted under the Plan (except pursuant to Section 14), or reduces the
minimum exercise price for Options, or exchanges an Option for another Award,
unless such change is authorized by the shareholders of the Company. Except as
otherwise specifically provided herein, a termination or amendment of the Plan
shall not, without the consent of the Participant, adversely affect a
Participant’s rights under an Award previously granted to him or
her.
17. American
Jobs Creation Act of 2004.
(a) It is intended that the Plan comply in
all applicable respects with Code Sections 409A(a)(2) through (4), as it may be
amended from time to time, and any rulings, regulations, or other guidelines
promulgated under either or both statutes (such statutes, rulings, regulations
and other guidelines to be referred to collectively herein as “Section 409A”).
This Plan, and any amendments thereto, shall therefore be interpreted and
implemented at all times so as to (i) ensure compliance with Section 409A and
(ii) avoid any penalty or early taxation of any payment or benefit under the
Plan.
(b) Anything herein to the contrary
notwithstanding, the Board shall approve and implement such amendments as it
deems necessary or desirable to ensure compliance with Section 409A and to avoid
any penalty or early taxation of any payment or benefit under this Plan;
provided, however, that no change shall be made that increases the total number
of shares of Company Stock reserved for issuance pursuant to Awards granted
under the Plan (except pursuant to Section 14), or reduces the minimum exercise
price for Options, or exchanges an Option for another Award, unless such change
is authorized by the shareholders of the Company. No such amendment shall
require the consent of any Participant.
18. Interpretation
and Venue. Except to the
extent preempted by applicable federal law, the terms of this Plan shall be
governed by the laws of the State of Nevada without regard to its conflict of
laws rules.