Attached files
Exhibit
10.4
AMBICOM
HOLDINGS, INC.
2010
INCENTIVE PLAN
SECTION
1. PURPOSE
The
purpose of the AmbiCom Holdings, Inc. 2010 Incentive Plan is to attract, retain
and motivate employees, officers, directors, consultants, agents, advisors and
independent contractors of the Company and its Related Companies by providing
them the opportunity to acquire a proprietary interest in the Company and to
align their interests and efforts to the long-term interests of the Company’s
stockholders.
SECTION
2. DEFINITIONS
Certain
capitalized terms used in the Plan have the meanings set forth in Appendix
A
SECTION
3. ADMINISTRATION
3.1 Administration of the
Plan.
The Plan
shall be administered by the Board or the Compensation Committee. The
Compensation Committee shall be composed of two or more directors, each of whom
is a “non-employee director” within the meaning of Rule 16b-3(b)(3) promulgated
under the Exchange Act, or any successor definition adopted by the Securities
and Exchange Commission. As used in this Plan, the term “Compensation
Committee” shall be construed as if followed by the words “(if any)”; and
nothing in this Plan requires the Board to have a Compensation
Committee.
3.2 Delegation.
Notwithstanding
the foregoing, the Board may delegate responsibility for administering the Plan
with respect to designated classes of Eligible Persons to different committees
consisting of one or more members of the Board, subject to such limitations as
the Board deems appropriate, except with respect to Awards to any Participants
who are then subject to Section 16 of the Exchange Act. Members of
any committee shall serve for such term as the Board may determine, subject to
removal by the Board at any time. To the extent consistent with
applicable law, the Board or the Compensation Committee may authorize one or
more officers of the Company to grant Awards to designated classes of Eligible
Persons, within limits specifically prescribed by the Board or the Compensation
Committee; provided, however, that no such officer shall have or obtain
authority to grant Awards to himself or herself or to any person then subject to
Section 16 of the Exchange Act. All references in the Plan to the
“Committee” shall be, as applicable, to the Board, the Compensation Committee or
any other committee or any officer to whom the Board or the Compensation
Committee has delegated authority to administer the Plan.
3.3 Administration and
Interpretation by Committee.
(a)
Except for the terms and conditions explicitly set forth in the Plan and to the
extent permitted by applicable law, the Committee shall have full power and
exclusive authority, subject to such orders or resolutions not inconsistent with
the provisions of the Plan as may from time to time be adopted by the Board or a
Committee composed of members of the Board, to (i) select the Eligible Persons
to whom Awards may from time to time be granted under the Plan; (ii) determine
the type or types of Award to be granted to each Participant under the Plan;
(iii) determine the number of shares of Common Stock to be covered by each Award
granted under the Plan; (iv) determine the terms and conditions of any Award
granted under the Plan; (v) approve the forms of notice or agreement for use
under the Plan; (vi) determine whether, to what extent and under what
circumstances Awards may be settled in cash, shares of Common Stock or other
property or canceled or suspended; (vii) determine whether, to what extent and
under what circumstances cash, shares of Common Stock, other property and other
amounts payable with respect to an Award shall be deferred either automatically
or at the election of the Participant; (viii) interpret and administer the Plan
and any instrument evidencing an Award, notice or agreement executed or entered
into under the Plan; (ix) establish such rules and regulations as it shall deem
appropriate for the proper administration of the Plan; (x) delegate ministerial
duties to such of the Company’s employees as it so determines; and (xi) make any
other determination and take any other action that the Committee deems necessary
or desirable for administration of the Plan.
(b) The
Committee shall have the right, without stockholder approval, to cancel or amend
outstanding Options or SARs for the purpose of repricing, replacing or
regranting such Options or SARs with Options or SARs that have a purchase or
grant price that is less than the purchase or grant price for the original
Options or SARs except in connection with adjustments provided in Section
15.
(c) The
effect on the vesting of an Award of a Company-approved leave of absence or a
Participant’s working less than full-time shall be determined by the Company’s
chief human resources officer or other person performing that function or, with
respect to directors or executive officers, by the Committee, whose
determination shall be final.
(d)
Decisions of the Committee shall be final, conclusive and binding on all
persons, including the Company, any Participant, any stockholder and any
Eligible Person. A majority of the members of the Committee may
determine its actions.
SECTION 4. SHARES SUBJECT
TO THE PLAN
4.1 Authorized Number of
Shares.
Subject
to adjustment from time to time as provided in Section 15.1, a maximum of Two
Million Two Hundred and Seventy-Seven Thousand Seven Hundred and Seventy Eight
(2,277,778) shares of Common Stock shall be available for issuance under the
Plan. Shares issued under the Plan shall be drawn from authorized and
unissued shares or shares now held or subsequently acquired by the Company as
treasury shares.
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4.2 Share
Usage.
(a)
Shares of Common Stock covered by an Award shall not be counted as used unless
and until they are actually issued and delivered to a Participant. If
any Award lapses, expires, terminates or is canceled prior to the issuance of
shares thereunder or if shares of Common Stock are issued under the Plan to a
Participant and thereafter are forfeited to or otherwise reacquired by the
Company, the shares subject to such Awards and the forfeited or reacquired
shares shall again be available for issuance under the Plan. Any
shares of Common Stock (i) tendered by a Participant or retained by the Company
as full or partial payment to the Company for the purchase price of an Award or
to satisfy tax withholding obligations in connection with an Award, or (ii)
covered by an Award that is settled in cash, or in a manner such that some or
all of the shares of Common Stock covered by the Award are not issued, shall be
available for Awards under the Plan. The number of shares of Common
Stock available for issuance under the Plan shall not be reduced to reflect any
dividends or dividend equivalents that are reinvested into additional shares of
Common Stock or credited as additional shares of Common Stock subject or paid
with respect to an Award.
(b) The
Committee shall also, without limitation, have the authority to grant Awards as
an alternative to or as the form of payment for grants or rights earned or due
under other compensation plans or arrangements of the Company.
(c)
Notwithstanding anything in the Plan to the contrary, the Committee may grant
Substitute Awards under the Plan. Substitute Awards shall not reduce
the number of shares authorized for issuance under the Plan. In the
event that an Acquired Entity has shares available for awards or grants under
one or more preexisting plans not adopted in contemplation of such acquisition
or combination, then, to the extent determined by the Committee, the shares
available for grant pursuant to the terms of such preexisting plan (as adjusted,
to the extent appropriate, using the exchange ratio or other adjustment or
valuation ratio or formula used in such acquisition or combination to determine
the consideration payable to holders of common stock of the entities that are
parties to such acquisition or combination) may be used for Awards under the
Plan and shall not reduce the number of shares of Common Stock authorized for
issuance under the Plan; provided, however, that Awards using such available
shares shall not be made after the date awards or grants could have been made
under the terms of such preexisting plans, absent the acquisition or
combination, and shall only be made to individuals who were not employees or
directors of the Company or a Related Company prior to such acquisition or
combination. In the event that a written agreement between the
Company and an Acquired Entity pursuant to which a merger or consolidation is
completed is approved by the Board and that agreement sets forth the terms and
conditions of the substitution for or assumption of outstanding awards of the
Acquired Entity, those terms and conditions shall be deemed to be the action of
the Committee without any further action by the Committee, except as may be
required for compliance with Rule 16b-3 under the Exchange Act, and the persons
holding such awards shall be deemed to be Participants.
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(d)
Notwithstanding the other provisions in this Section 4.2, the maximum number of
shares that may be issued upon the exercise of Incentive Stock Options shall
equal the aggregate share number stated in Section 4.1, subject to adjustment as
provided in Section 15.1.
SECTION
5. ELIGIBILITY
An Award
may be granted to any employee, officer or director of the Company or a Related
Company whom the Committee from time to time selects. An Award may
also be granted to any consultant, agent, advisor or independent contractor for
bona fide services rendered to the Company or any Related Company that (a) are
not in connection with the offer and sale of the Company’s securities in a
capital-raising transaction and (b) do not directly or indirectly promote or
maintain a market for the Company’s securities.
SECTION
6. AWARDS
6.1 Form, Grant and Settlement
of Awards.
The
Committee shall have the authority, in its sole discretion, to determine the
type or types of Awards to be granted under the Plan. Such Awards may
be granted either alone or in addition to or in tandem with any other type of
Award. Any Award settlement may be subject to such conditions,
restrictions and contingencies as the Committee shall determine.
6.2 Evidence of
Awards.
Awards
granted under the Plan shall be evidenced by a written, including an electronic,
notice or agreement that shall contain such terms, conditions, limitations and
restrictions as the Committee shall deem advisable and that are not inconsistent
with the Plan.
6.3 Deferrals.
The
Committee may permit or require a Participant to defer receipt of the payment of
any Award if and to the extent set forth in the instrument evidencing the Award
at the time of grant. If any such deferral election is permitted or
required, the Committee, in its sole discretion, shall establish rules and
procedures for such payment deferrals, which may include the grant of additional
Awards or provisions for the payment or crediting of interest or dividend
equivalents, including converting such credits to deferred stock unit
equivalents; provided, however, that the terms of any deferrals under this
Section 6.3 shall comply with all applicable law, rules and regulations,
including, without limitation, Section 409A of the Code.
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6.4 Dividends and
Distributions.
Participants
may, if and to the extent the Committee so determines and sets forth in the
instrument evidencing the Award at the time of grant, be credited with dividends
paid with respect to shares of Common Stock underlying an Award in a manner
determined by the Committee in its sole discretion. The Committee may
apply any restrictions to the dividends or dividend equivalents that the
Committee deems appropriate. The Committee, in its sole discretion,
may determine the form of payment of dividends or dividend equivalents,
including cash, shares of Common Stock, Restricted Stock or Stock
Units.
SECTION
7. OPTIONS
7.1 Grant of
Options.
The
Committee may grant Options designated as Incentive Stock Options or
Nonqualified Stock Options.
7.2 Option Exercise
Price.
The
exercise price for shares purchased under an Option shall be at least 100% of
the Fair Market Value on the Grant Date (and shall not be less than the minimum
exercise price required by Section 422 of the Code with respect to Incentive
Stock Options), except in the case of Substitute Awards.
7.3 Term of
Options.
Subject
to earlier termination in accordance with the terms of the Plan and the
instrument evidencing the Option, the maximum term of a Nonqualified Stock
Option shall be ten years from the Grant Date.
7.4 Exercise of
Options.
The
Committee shall establish and set forth in each instrument that evidences an
Option the time at which, or the installments in which, the Option shall vest
and become exercisable, any of which provisions may be waived or modified by the
Committee at any time.
To the
extent an Option has vested and become exercisable, the Option may be exercised
in whole or from time to time in part by delivery to or as directed or approved
by the Company of a properly executed stock option exercise agreement or notice,
in a form and in accordance with procedures established by the Committee,
setting forth the number of shares with respect to which the Option is being
exercised, the restrictions imposed on the shares purchased under such exercise
agreement, if any, and such representations and agreements as may be required by
the Committee, accompanied by payment in full as described in Sections 7.5 and
13. An Option may be exercised only for whole shares and may not be
exercised for less than a reasonable number of shares at any one time, as
determined by the Committee.
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7.5 Payment of Exercise
Price.
The
exercise price for shares purchased under an Option shall be paid in full to the
Company by delivery of consideration equal to the product of the Option exercise
price and the number of shares purchased. Such consideration must be
paid before the Company will issue the shares being purchased and must be in a
form or a combination of forms acceptable to the Committee for that purchase,
which forms may include:
(a)
cash;
(b) check
or wire transfer;
(c)
having the Company withhold shares of Common Stock that would otherwise be
issued on exercise of the Option that have an aggregate Fair Market Value equal
to the aggregate exercise price of the shares being purchased under the
Option;
(d)
tendering (either actually or, so long as the Common Stock is registered under
Section 12(b) or 12(g) of the Exchange Act, by attestation) shares of Common
Stock owned by the Participant that have an aggregate Fair Market Value equal to
the aggregate exercise price of the shares being purchased under the
Option;
(e) so
long as the Common Stock is registered under Section 12(b) or 12(g) of the
Exchange Act, and to the extent permitted by law, delivery of a properly
executed exercise notice, together with irrevocable instructions to a brokerage
firm designated or approved by the Company to deliver promptly to the Company
the aggregate amount of proceeds to pay the Option exercise price and
any withholding tax obligations that may arise in connection with the exercise,
all in accordance with the regulations of the Federal Reserve Board;
or
(f) such
other consideration as the Committee may permit.
7.6 Effect of Termination of
Service.
The
Committee shall establish and set forth in each instrument that evidences an
Option whether the Option shall continue to be exercisable, and the terms and
conditions of such exercise, after a Termination of Service, any of which
provisions may be waived or modified by the Committee at any time. If
not so established in the instrument evidencing the Option, the Option shall be
exercisable according to the following terms and conditions, which may be waived
or modified by the Committee at any time:
(a) Any
portion of an Option that is not vested and exercisable on the date of a
Participant’s Termination of Service shall expire on such date.
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(b) Any
portion of an Option that is vested and exercisable on the date of a
Participant’s Termination of Service shall expire on the earliest to occur
of:
(i) if
the Participant’s Termination of Service occurs for reasons other than Cause,
Retirement, Disability or death, the date that is three months after such
Termination of Service;
(ii) if
the Participant’s Termination of Service occurs by reason of Retirement,
Disability or death, the one-year anniversary of such Termination of Service;
and
(iii) the
Option Expiration Date.
Notwithstanding
the foregoing, if a Participant dies after his or her Termination of Service but
while an Option is otherwise exercisable, the portion of the Option that is
vested and exercisable on the date of such Termination of Service shall expire
upon the earlier to occur of (y) the Option Expiration Date and (z) the one-year
anniversary of the date of death, unless the Committee determines
otherwise.
Also
notwithstanding the foregoing, in case a Participant’s Termination of Service
occurs for Cause, all Options granted to the Participant shall automatically
expire upon first notification to the Participant of such termination, unless
the Committee determines otherwise. If a Participant’s employment or
service relationship with the Company is suspended pending an investigation of
whether the Participant shall be terminated for Cause, all the Participant’s
rights under any Option shall likewise be suspended during the period of
investigation. If any facts that would constitute termination for
Cause are discovered after a Participant’s Termination of Service, any Option
then held by the Participant may be immediately terminated by the Committee, in
its sole discretion.
(c) If
the exercise of the Option following a Participant’s Termination of Service, but
while the Option is otherwise exercisable, would be prohibited solely because
the issuance of Common Stock would violate either the registration requirements
under the Securities Act or the Company’s insider trading policy, then the
Option shall remain exercisable until the earlier of (i) the Option Expiration
Date and (ii) the expiration of a period of three months (or such longer period
of time as determined by the Committee in its sole discretion) after the
Participant’s Termination of Service during which the exercise of the Option
would not be in violation of such Securities Act or insider trading policy
requirements.
SECTION 8. INCENTIVE STOCK
OPTION LIMITATIONS
Notwithstanding
any other provisions of the Plan, the terms and conditions of any Incentive
Stock Options shall in addition comply in all respects with Section 422 of the
Code, or any successor provision, and any applicable regulations thereunder,
including, to the extent required thereunder, the following:
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8.1 Dollar
Limitation.
To the
extent the aggregate Fair Market Value (determined as of the Grant Date) of
Common Stock with respect to which a Participant’s Incentive Stock Options
become exercisable for the first time during any calendar year (under the Plan
and all other stock option plans of the Company and its parent and subsidiary
corporations) exceeds $100,000, such portion in excess of $100,000 shall be
treated as a Nonqualified Stock Option. In the event the Participant
holds two or more such Options that become exercisable for the first time in the
same calendar year, such limitation shall be applied on the basis of the order
in which such Options are granted.
8.2 Eligible
Employees.
Individuals
who are not employees of the Company or one of its parent or subsidiary
corporations may not be granted Incentive Stock Options.
8.3 Exercise
Price.
The
exercise price of an Incentive Stock Option shall be at least 100% of the Fair
Market Value of the Common Stock on the Grant Date, and in the case of an
Incentive Stock Option granted to a Participant who owns more than 10% of the
total combined voting power of all classes of the stock of the Company or of its
parent or subsidiary corporations (a “Ten Percent Stockholder”), shall not be
less than 110% of the Fair Market Value of the Common Stock on the Grant
Date. The determination of more than 10% ownership shall be made in
accordance with Section 422 of the Code.
8.4 Option
Term.
Subject
to earlier termination in accordance with the terms of the Plan and the
instrument evidencing the Option, the maximum term of an Incentive Stock Option
shall not exceed ten years, and in the case of an Incentive Stock Option granted
to a Ten Percent Stockholder, shall not exceed five years.
8.5 Exercisability.
An Option
designated as an Incentive Stock Option shall cease to qualify for favorable tax
treatment as an Incentive Stock Option to the extent it is exercised (if
permitted by the terms of the Option) (a) more than three months after the date
of a Participant’s Termination of Service if termination was for reasons other
than death or disability, (b) more than one year after the date of a
Participant’s Termination of Service if termination was by reason of disability,
or (c) after the Participant has been on leave of absence for more than 90 days,
unless the Participant’s reemployment rights are guaranteed by statute or
contract.
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8.6 Taxation of Incentive Stock
Options.
In order
to obtain certain tax benefits afforded to Incentive Stock Options under Section
422 of the Code, the Participant must hold the shares acquired upon the exercise
of an Incentive Stock Option for two years after the Grant Date and one year
after the date of exercise.
A
Participant may be subject to the alternative minimum tax at the time of
exercise of an Incentive Stock Option. The Participant shall give the
Company prompt notice of any disposition of shares acquired on the exercise of
an Incentive Stock Option prior to the expiration of such holding
periods.
8.7 Code
Definitions.
For the
purposes of this Section 8 “disability,” “parent corporation” and “subsidiary
corporation” shall have the meanings attributed to those terms for purposes of
Section 422 of the Code.
SECTION
9. STOCK APPRECIATION RIGHTS
9.1 Grant of Stock Appreciation
Rights.
The
Committee may grant Stock Appreciation Rights to Participants at any time on
such terms and conditions as the Committee shall determine in its sole
discretion. An SAR may be granted in tandem with an Option or alone
(“freestanding”). The grant price of a tandem SAR shall be equal to
the exercise price of the related Option. The grant price of a
freestanding SAR shall be established in accordance with procedures for Options
set forth in Section 7.2. An SAR may be exercised upon such terms and
conditions and for the term as the Committee determines in its sole discretion;
provided, however, that, subject to earlier termination in accordance with the
terms of the Plan and the instrument evidencing the SAR, the maximum term of a
freestanding SAR shall be ten years, and in the case of a tandem SAR, (a) the
term shall not exceed the term of the related Option and (b) the tandem SAR may
be exercised for all or part of the shares subject to the related Option upon
the surrender of the right to exercise the equivalent portion of the related
Option, except that the tandem SAR may be exercised only with respect to the
shares for which its related Option is then exercisable.
9.2 Payment of SAR
Amount.
Upon the
exercise of an SAR, a Participant shall be entitled to receive payment in an
amount determined by multiplying: (a) the difference between the Fair
Market Value of the Common Stock on the date of exercise over the grant price of
the SAR by (b) the number of shares with respect to which the SAR is
exercised. At the discretion of the Committee as set forth in the
instrument evidencing the Award, the payment upon exercise of an SAR may be in
cash, in shares, in some combination thereof or in any other manner approved by
the Committee in its sole discretion.
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9.3 Waiver of
Restrictions.
Subject
to Section 18.5, the Committee, in its sole discretion, may waive any other
terms, conditions or restrictions on any SAR under such circumstances and
subject to such terms and conditions as the Committee shall deem
appropriate.
SECTION
10. STOCK AWARDS, RESTRICTED STOCK AND STOCK UNITS
10.1 Grant of Stock Awards,
Restricted Stock and Stock Units.
The
Committee may grant Stock Awards, Restricted Stock and Stock Units on such terms
and conditions and subject to such repurchase or forfeiture restrictions, if
any, which may be based on continuous service with the Company or a Related
Company or the achievement of any performance goals, as the Committee shall
determine in its sole discretion, which terms, conditions and restrictions shall
be set forth in the instrument evidencing the Award.
10.2 Vesting of Restricted Stock
and Stock Units.
Upon the
satisfaction of any terms, conditions and restrictions prescribed with respect
to Restricted Stock or Stock Units, or upon a Participant’s release from any
terms, conditions and restrictions of Restricted Stock or Stock Units, as
determined by the Committee, and subject to the provisions of Section 13, (a)
the shares of Restricted Stock covered by each Award of Restricted Stock shall
become freely transferable by the Participant, and (b) Stock Units shall be paid
in shares of Common Stock or, if set forth in the instrument evidencing the
Awards, in cash or a combination of cash and shares of Common
Stock. Any fractional shares subject to such Awards shall be paid to
the Participant in cash.
10.3 Waiver of
Restrictions.
Subject
to Section 18.5, the Committee, in its sole discretion, may waive the repurchase
or forfeiture period and any other terms, conditions or restrictions on any
Restricted Stock or Stock Unit under such circumstances and subject to such
terms and conditions as the Committee shall deem appropriate.
SECTION
11. PERFORMANCE AWARDS
11.1 Performance
Shares.
The
Committee may grant Awards of Performance Shares, designate the Participants to
whom Performance Shares are to be awarded and determine the number of
Performance Shares and the terms and conditions of each such
Award. Performance Shares shall consist of a unit valued by reference
to a designated number of shares of Common Stock, the value of which may be paid
to the Participant by delivery of shares of Common Stock or, if set forth in the
instrument evidencing the Award, of such property as the Committee shall
determine, including, without limitation, cash, shares of Common Stock, other
property, or any combination thereof, upon the attainment of performance goals,
as established by the Committee, and other terms and conditions specified by the
Committee. Subject to Section 18.5, the amount to be paid under an
Award of Performance Shares may be adjusted on the basis of such further
consideration as the Committee shall determine in its sole
discretion.
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11.2 Performance
Units.
The
Committee may grant Awards of Performance Units, designate the Participants to
whom Performance Units are to be awarded and determine the number of Performance
Units and the terms and conditions of each such Award. Performance
Units shall consist of a unit valued by reference to a designated amount of
property other than shares of Common Stock, which value may be paid to the
Participant by delivery of such property as the Committee shall determine,
including, without limitation, cash, shares of Common Stock, other property, or
any combination thereof, upon the attainment of performance goals, as
established by the Committee, and other terms and conditions specified by the
Committee. Subject to Section 18.5, the amount to be paid under an
Award of Performance Units may be adjusted on the basis of such further
consideration as the Committee shall determine in its sole
discretion.
SECTION 12. OTHER STOCK OR
CASH-BASED AWARDS
Subject
to the terms of the Plan and such other terms and conditions as the Committee
deems appropriate, the Committee may grant other incentives payable in cash or
in shares of Common Stock under the Plan.
SECTION
13. WITHHOLDING
The
Company may require the Participant to pay to the Company the amount of (a) any
taxes that the Company is required by applicable federal, state, local or
foreign law to withhold with respect to the grant, vesting or exercise of an
Award (“tax withholding obligations”) and (b) any amounts due from the
Participant to the Company or to any Related Company (“other
obligations”). The Company shall not be required to issue any shares
of Common Stock or otherwise settle an Award under the Plan until such tax
withholding obligations and other obligations are satisfied.
The
Committee may permit or require a Participant to satisfy all or part of the
Participant’s tax withholding obligations and other obligations by (a) paying
cash to the Company, (b) having the Company withhold an amount from any cash
amounts otherwise due or to become due from the Company to the Participant, (c)
having the Company withhold a number of shares of Common Stock that would
otherwise be issued to the Participant (or become vested, in the case of
Restricted Stock) having a Fair Market Value equal to the tax withholding
obligations and other obligations, or (d) surrendering a number of shares of
Common Stock the Participant already owns having a value equal to the tax
withholding obligations and other obligations. The value of the
shares so withheld or tendered may not exceed the employer’s minimum required
tax withholding rate.
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SECTION
14. ASSIGNABILITY
No Award
or interest in an Award may be sold, assigned, pledged (as collateral for a loan
or as security for the performance of an obligation or for any other purpose) or
transferred by a Participant or made subject to attachment or similar
proceedings otherwise than by will or by the applicable laws of descent and
distribution, except to the extent the Participant designates one or more
beneficiaries on a Company-approved form who may exercise the Award or receive
payment under the Award after the Participant’s death. During a
Participant’s lifetime, an Award may be exercised only by the
Participant. Notwithstanding the foregoing and to the extent
permitted by Section 422 of the Code, the Committee, in its sole discretion, may
permit a Participant to assign or transfer an Award subject to such terms and
conditions as the Committee shall specify.
SECTION
15. ADJUSTMENTS
15.1 Adjustment of
Shares.
In the
event, at any time or from time to time, a stock dividend, stock split,
spin-off, combination or exchange of shares, recapitalization, merger,
consolidation, distribution to stockholders other than a normal cash dividend,
or other change in the Company’s corporate or capital structure results in (a)
the outstanding shares of Common Stock, or any securities exchanged therefor or
received in their place, being exchanged for a different number or kind of
securities of the Company or (b) new, different or additional securities of the
Company or any other company being received by the holders of shares of Common
Stock, then the Committee shall make proportional adjustments in (i) the maximum
number and kind of securities available for issuance under the Plan; (ii) the
maximum number and kind of securities issuable as Incentive Stock Options as set
forth in Section 4.2; and (iii) the number and kind of securities that are
subject to any outstanding Award and the per share price of such securities,
without any change in the aggregate price to be paid therefor. The
determination by the Committee, as to the terms of any of the foregoing
adjustments shall be conclusive and binding.
Notwithstanding
the foregoing, the issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property,
or for labor or services rendered, either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, outstanding Awards. Also notwithstanding the foregoing, a
dissolution or liquidation of the Company or a Company Transaction shall not be
governed by this Section 15.1 but shall be governed by Sections 15.2 and 15.3,
respectively.
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15.2 Dissolution or
Liquidation.
To the
extent not previously exercised or settled, and unless otherwise determined by
the Committee in its sole discretion, Awards shall terminate immediately prior
to the dissolution or liquidation of the Company. To the extent a
vesting condition, forfeiture provision or repurchase right applicable to an
Award has not been waived by the Committee, the Award shall be forfeited
immediately prior to the consummation of the dissolution or
liquidation.
15.3 Change in
Control.
Notwithstanding
any other provision of the Plan to the contrary, unless the Committee shall
determine otherwise in the instrument evidencing the Award or in a written
employment, services or other agreement between the Participant and the Company
or a Related Company, in the event of a Change in Control:
(a) All
outstanding Awards, other than Performance Shares and Performance Units, shall
become fully and immediately exercisable, and all applicable deferral and
restriction limitations or forfeiture provisions shall lapse, immediately prior
to the Change in Control and shall terminate at the effective time of the Change
in Control; provided, however, that with respect to a Change in Control that is
a Company Transaction, such Awards shall become fully and immediately
exercisable, and all applicable deferral and restriction limitations or
forfeiture provisions shall lapse, only if and to the extent such Awards are not
converted, assumed or replaced by the Successor Company.
For the
purposes of this Section 15.3(a), an Award shall be considered converted,
assumed or replaced by the Successor Company if following the Company
Transaction the option or right confers the right to purchase or receive, for
each share of Common Stock subject to the Award immediately prior to the Company
Transaction, the consideration (whether stock, cash or other securities or
property) received in the Company Transaction by holders of Common Stock for
each share held on the effective date of the transaction (and if holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares); provided, however, that if
such consideration received in the Company Transaction is not solely common
stock of the Successor Company, the Committee may, with the consent of the
Successor Company, provide for the consideration to be received upon the
exercise of the Option, for each share of Common Stock subject thereto, to be
solely common stock of the Successor Company substantially equal in fair market
value to the per share consideration received by holders of Common Stock in the
Company Transaction. The determination of such substantial equality
of value of consideration shall be made by the Committee, and its determination
shall be conclusive and binding.
(b) All
Performance Shares or Performance Units earned and outstanding as of the date
the Change in Control is determined to have occurred shall be payable in full at
the target level in accordance with the payout schedule pursuant to the
instrument evidencing the Award. Any remaining Performance Shares or
Performance Units (including any applicable performance period) for which the
payout level has not been determined shall be prorated at the target payout
level up to and including the date of such Change in Control and shall be
payable in full at the target level in accordance with the payout schedule
pursuant to the instrument evidencing the Award. Any existing
deferrals or other restrictions not waived by the Committee in its sole
discretion shall remain in effect.
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(c)
Notwithstanding Sections 15.3(a) and 15.3(b), the Committee, in its sole
discretion, may (unless otherwise provided in the instrument evidencing the
Award or in a written employment, services or other agreement between the
Participant and the Company or a Related Company) instead provide in the event
of a Change in Control that is a Company Transaction (i) for adjustments to the
Plan and outstanding Awards as contemplated by Section 15.1 or (ii) that a
Participant’s outstanding Awards shall terminate upon or immediately prior to
such Company Transaction and that such Participant shall receive, in exchange
therefor, a cash payment equal to the amount (if any) by which (x) the value of
the per share consideration received by holders of Common Stock in the Company
Transaction, or, if the Company Transaction is a sale of assets or otherwise
does not result in direct receipt of consideration by holders of Common Stock,
the value of the deemed per share consideration received, in each case as
determined by the Committee in its sole discretion, multiplied by the number of
shares of Common Stock subject to such outstanding Awards (to the extent then
vested and exercisable or whether or not then vested and exercisable, as
determined by the Committee in its sole discretion) exceeds (y) if applicable,
the respective aggregate exercise price or grant price for such
Awards.
15.4 Further Adjustment of
Awards.
Subject
to Sections 15.2 and 15.3, the Committee shall have the discretion, exercisable
at any time before a sale, merger, consolidation, reorganization, liquidation,
dissolution or change in control of the Company, as defined by the Committee, to
take such further action as it determines to be necessary or advisable with
respect to Awards. Such authorized action may include (but shall not
be limited to) establishing, amending or waiving the type, terms, conditions or
duration of, or restrictions on, Awards so as to provide for earlier, later,
extended or additional time for exercise, lifting restrictions and other
modifications, and the Committee may take such actions with respect to all
Participants, to certain categories of Participants or only to individual
Participants. The Committee may take such action before or after
granting Awards to which the action relates and before or after any public
announcement with respect to such sale, merger, consolidation, reorganization,
liquidation, dissolution or change in control that is the reason for such
action.
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15.5
No
Limitations.
The grant
of Awards shall in no way affect the Company’s right to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
15.6 Fractional
Shares.
In the
event of any adjustment in the number of shares covered by any Award, each such
Award shall cover only the number of full shares resulting from such
adjustment.
15.7 Section 409A of the
Code.
Notwithstanding
anything in this Plan to the contrary, (a) any adjustments made pursuant to this
Section 15 or any other amendments to Awards that are considered “deferred
compensation” within the meaning of Section 409A of the Code shall be made in
compliance with the requirements of Section 409A of the Code and (b) any
adjustments made pursuant to this Section 15 or any other amendments to Awards
that are not considered “deferred compensation” subject to Section 409A of the
Code shall be made in such a manner as to ensure that after such adjustment or
amendment the Awards either (i) continue not to be subject to Section 409A of
the Code or (ii) comply with the requirements of Section 409A of the
Code.
SECTION
16. MARKET STANDOFF
In the
event of an underwritten public offering by the Company of its equity securities
pursuant to an effective registration statement filed under the Securities Act
(including any registration statement that registers for resale any shares
issued in the Company’s Alternative Public Offering), no person may sell, make
any short sale of, loan, hypothecate, pledge, grant any option for the purchase
of, or otherwise dispose of or transfer for value or otherwise agree to engage
in any of the foregoing transactions with respect to any shares issued pursuant
to an Award granted under the Plan without the prior written consent of the
Company or its underwriters. Such limitations shall be in effect for
such period of time as may be requested by the Company or such underwriters;
provided, however, that in no event shall such period exceed (a) 180 days after
the effective date of the registration statement for such public offering or (b)
such longer period requested by the underwriter as is necessary to comply with
regulatory restrictions on the publication of research reports (including, but
not limited to, NYSE Rule 472 or NASD Conduct Rule 2711). The
limitations of this Section 16 shall in all events terminate two years after the
effective date of the Company’s Alternative Public Offering.
In the
event of any stock split, stock dividend, recapitalization, combination of
shares, exchange of shares or other change affecting the Company’s outstanding
Common Stock effected as a class without the Company’s receipt of consideration,
any new, substituted or additional securities distributed with respect to any
shares issued as or pursuant to an Award under the Plan shall be immediately
subject to the provisions of this Section 16, to the same extent such shares are
at such time covered by such provisions.
15
In order
to enforce the limitations of this Section 16, the Company may impose
stop-transfer instructions with respect to the purchased shares until the end of
the applicable standoff period.
SECTION
17. AMENDMENT AND TERMINATION
17.1 Amendment, Suspension or
Termination.
The Board
or the Compensation Committee may amend, suspend or terminate the Plan or any
portion of the Plan at any time and in such respects as it shall deem advisable;
provided, however, that, to the extent required by applicable law, regulation or
stock exchange rule, stockholder approval shall be required for any amendment to
the Plan; and provided, further, that any amendment that requires stockholder
approval may be made only by the Board and not by the Compensation
Committee. Subject to Section 17.3, the Committee may amend the terms
of any outstanding Award, prospectively or retroactively.
17.2 Term of the
Plan.
Unless
sooner terminated as provided herein, the Plan shall terminate ten years from
the Effective Date. After the Plan is terminated, no future Awards
may be granted, but Awards previously granted shall remain outstanding in
accordance with their applicable terms and conditions and the Plan’s terms and
conditions. Notwithstanding the foregoing, no Incentive Stock Options
may be granted more than ten years after the later of: (a) the
adoption of the Plan by the Board and (b) the adoption by the Board of any
amendment to the Plan that constitutes the adoption of a new plan for purposes
of Section 422 of the Code.
17.3 Consent of
Participant.
The
amendment, suspension or termination of the Plan or a portion thereof or the
amendment of an outstanding Award shall not, without the Participant’s consent,
materially adversely affect any rights under any Award theretofore granted to
the Participant under the Plan. Any change or adjustment to an
outstanding Incentive Stock Option shall not, without the consent of the
Participant, be made in a manner so as to constitute a “modification” that would
cause such Incentive Stock Option to fail to continue to qualify as an Incentive
Stock Option. Notwithstanding the foregoing, any adjustments made
pursuant to Section 15 shall not be subject to these restrictions.
16
SECTION
18. GENERAL
18.1 No Individual
Rights.
No
individual or Participant shall have any claim to be granted any Award under the
Plan, and the Company has no obligation for uniformity of treatment of
Participants under the Plan.
Furthermore,
nothing in the Plan or any Award granted under the Plan shall be deemed to
constitute an employment contract or confer or be deemed to confer on any
Participant any right to continue in the employ of, or to continue any other
relationship with, the Company or any Related Company or limit in any way the
right of the Company or any Related Company to terminate a Participant’s
employment or other relationship at any time, with or without
cause.
18.2 Issuance of
Shares.
Notwithstanding
any other provision of the Plan, the Company shall have no obligation to issue
or deliver any shares of Common Stock under the Plan or make any other
distribution of benefits under the Plan unless, in the opinion of the Company’s
counsel, such issuance, delivery or distribution would comply with all
applicable laws (including, without limitation, the requirements of the
Securities Act or the laws of any state or foreign jurisdiction) and the
applicable requirements of any securities exchange or similar
entity.
The
Company shall be under no obligation to any Participant to register for offering
or resale or to qualify for exemption under the Securities Act, or to register
or qualify under the laws of any state or foreign jurisdiction, any shares of
Common Stock, security or interest in a security paid or issued under, or
created by, the Plan, or to continue in effect any such registrations or
qualifications if made.
As a
condition to the exercise of an Option or any other receipt of Common Stock
pursuant to an Award under the Plan, the Company may require (a) the Participant
to represent and warrant at the time of any such exercise or receipt that such
shares are being purchased or received only for the Participant’s own account
and without any present intention to sell or distribute such shares and (b) such
other action or agreement by the Participant as may from time to time be
necessary to comply with the federal, state and foreign securities
laws. At the option of the Company, a stop-transfer order against any
such shares may be placed on the official stock books and records of the
Company, and a legend indicating that such shares may not be pledged, sold or
otherwise transferred, unless an opinion of counsel (satisfactory to the
Company, in its sole discretion) is provided stating that such transfer is not
in violation of any applicable law or regulation, may be stamped on stock
certificates to ensure exemption from registration. The Committee may
also require the Participant to execute and deliver to the Company a purchase
agreement or such other agreement as may be in use by the Company at such time
that describes certain terms and conditions applicable to the
shares.
To the
extent the Plan or any instrument evidencing an Award provides for issuance of
stock certificates to reflect the issuance of shares of Common Stock, the
issuance may be effected on a noncertificated basis, to the extent not
prohibited by applicable law or the applicable rules of any stock
exchange.
17
18.3 Indemnification.
Each
person who is or shall have been a member of the Board, or a committee appointed
by the Board, or an officer of the Company to whom authority was delegated in
accordance with Section 3, shall be indemnified and held harmless by the Company
against and from any loss, cost, liability or expense that may be imposed upon
or reasonably incurred by such person in connection with or resulting from any
claim, action, suit or proceeding to which such person may be a party or in
which such person may be involved by reason of any action taken or failure to
act under the Plan and against and from any and all amounts paid by such person
in settlement thereof, with the Company’s approval, or paid by such person in
satisfaction of any judgment in any such claim, action, suit or proceeding
against such person; provided, however, that such person shall give the Company
an opportunity, at its own expense, to handle and defend the same before such
person undertakes to handle and defend it on such person’s own
behalf. This duty to indemnify shall not apply to the extent that (i)
such loss, cost, liability or expense is a result of such person’s own willful
misconduct or (ii) such indemnification is expressly prohibited by
statute.
The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such person may be entitled under the Company’s
certificate of incorporation or bylaws, as a matter of law, or otherwise, or of
any power that the Company may have to indemnify or hold harmless.
18.4 No Rights as a
Stockholder.
Unless
otherwise provided by the Committee or in the instrument evidencing the Award or
in a written employment, services or other agreement, no Award, other than a
Stock Award, shall entitle the Participant to any cash dividend, voting or other
right of a stockholder unless and until the date of issuance under the Plan of
the shares that are the subject of such Award.
18.5 Compliance with Laws and
Regulations.
In
interpreting and applying the provisions of the Plan, any Option granted as an
Incentive Stock Option pursuant to the Plan shall, to the extent permitted by
law, be construed as an “incentive stock option” within the meaning of Section
422 of the Code.
Any Award
granted pursuant to the Plan is intended to comply with the requirements of
Section 409A of the Code, including any applicable regulations and guidance
issued thereunder, and including transition guidance, to the extent Section 409A
of the Code is applicable thereto, and the terms of the Plan and any Award
granted under the Plan shall be interpreted, operated and administered in a
manner consistent with this intention to the extent the Committee deems
necessary or advisable to comply with Section 409A of the Code and any official
guidance issued thereunder. Any payment or distribution that is to be
made under the Plan (or pursuant to an Award under the Plan) to a Participant
who is a “specified employee” of the Company within the meaning of that term
under Section 409A of the Code and as determined by the Committee, on account
of a “separation from service” within the meaning of that term under
Section 409A of the Code, may not be made before the date which is six months
after the date of such “separation from service,” unless the payment or
distribution is exempt from the application of Section 409A of the Code by
reason of the short-term deferral exemption or
otherwise. Notwithstanding any other provision in the Plan, the
Committee, to the extent it deems necessary or advisable in its sole discretion,
reserves the right, but shall not be required, to unilaterally amend or modify
the Plan and any Award granted under the Plan so that the Award qualifies for
exemption from or complies with Section 409A of the Code; provided, however,
that the Committee makes no representations that Awards granted under the Plan
shall be exempt from or comply with Section 409A of the Code and makes no
undertaking to preclude Section 409A of the Code from applying to
Awards granted under the Plan.
18
18.6 Participants in Other
Countries or Jurisdictions.
Without
amending the Plan, the Committee may grant Awards to Eligible Persons who are
foreign nationals on such terms and conditions different from those specified in
the Plan as may, in the judgment of the Committee, be necessary or desirable to
foster and promote achievement of the purposes of the Plan and shall have the
authority to adopt such modifications, procedures, subplans and the like as may
be necessary or desirable to comply with provisions of the laws or regulations
of other countries or jurisdictions in which the Company or any Related Company
may operate or have employees to ensure the viability of the benefits from
Awards granted to Participants employed in such countries or jurisdictions, meet
the requirements that permit the Plan to operate in a qualified or tax-efficient
manner, comply with applicable foreign laws or regulations and meet the
objectives of the Plan.
18.7 No Trust or
Fund.
The Plan
is intended to constitute an “unfunded” plan. Nothing contained
herein shall require the Company to segregate any monies or other property, or
shares of Common Stock, or to create any trusts, or to make any special deposits
for any immediate or deferred amounts payable to any Participant, and no
Participant shall have any rights that are greater than those of a general
unsecured creditor of the Company.
18.8 Successors.
All
obligations of the Company under the Plan with respect to Awards shall be
binding on any successor to the Company, whether the existence of such successor
is the result of a direct or indirect purchase, merger, consolidation, or
otherwise, of all or substantially all the business and/or assets of the
Company.
19
18.9 Severability.
If any
provision of the Plan or any Award is determined to be invalid, illegal or
unenforceable in any jurisdiction, or as to any person, or would disqualify the
Plan or any Award under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to applicable laws,
or, if it cannot be so construed or deemed amended without, in the Committee’s
determination, materially altering the intent of the Plan or the Award, such
provision shall be stricken as to such jurisdiction, person or Award, and the
remainder of the Plan and any such Award shall remain in full force and
effect.
18.10 Choice of Law and
Venue.
The Plan,
all Awards granted thereunder and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by the laws of the United
States, shall be governed by the laws of the State of California without giving
effect to principles of conflicts of law. Participants irrevocably
consent to the nonexclusive jurisdiction and venue of the state and federal
courts located in the State of California.
18.11 Legal
Requirements.
The
granting of Awards and the issuance of shares of Common Stock under the Plan are
subject to all applicable laws, rules and regulations and to such approvals by
any governmental agencies or national securities exchanges as may be
required.
SECTION
19. EFFECTIVE DATE
The
effective date (the “Effective Date”) is the date on which the Plan is adopted
by the Board. If the stockholders of the Company do not approve the
Plan within 12 months after the Board’s adoption of the Plan, any Incentive
Stock Options granted under the Plan will be treated as Nonqualified Stock
Options.
20
APPENDIX
A
DEFINITIONS
As used
in the Plan,
“Acquired Entity”
means any entity acquired by the Company or a Related Company or with which the
Company or a Related Company merges or combines.
“Alternative Public
Offering” means the series of related transactions in which (i) the
shareholders of AmbiCom Acquisition Corp. enters into a share exchange with the
Company which results in AmbiCom Acquisition Corp. becoming a wholly-owned
subsidiary of Med Control, Inc. (ii) shareholders of AmbiCom Acquisition Corp.
receive shares of common stock of the Company in exchange for their shares of
capital stock of AmbiCom Acquisition Corp., and (iv) the Company issues shares
of Common Stock in a private placement of securities.
“Award” means any
Option, Stock Appreciation Right, Stock Award, Restricted Stock, Stock Unit,
Performance Share, Performance Unit, cash-based award or other incentive payable
in cash or in shares of Common Stock as may be designated by the Committee from
time to time.
“Board” means the
Board of Directors of the Company.
“Cause,” unless
otherwise defined in the instrument evidencing an Award or in a written
employment, services or other agreement between the Participant and the Company
or a Related Company, means dishonesty, fraud, serious or willful misconduct,
unauthorized use or disclosure of confidential information or trade secrets, or
conduct prohibited by law (except minor violations), in each case as determined
by the Company’s chief human resources officer or other person performing that
function or, in the case of directors and executive officers, the Committee,
whose determination shall be conclusive and binding.
“Change in Control,”
unless the Committee determines otherwise with respect to an Award at the time
the Award is granted or unless otherwise defined for purposes of an Award in a
written employment, services or other agreement between the Participant and the
Company or a Related Company, means the occurrence of any of the following
events:
(i) An
acquisition by any individual, entity or group, within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act, (a “Person”) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more
than fifty percent (50%) of either (1) the then outstanding shares of Common
Stock of the Company (the “Outstanding Common Stock”) or (2) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Voting Securities”);
excluding, however, the following: (1) any acquisition directly from the
Company, other than an acquisition by virtue of the exercise, exchange or
conversion of any Convertible Securities unless such securities were themselves
acquired directly from the Company, (2) any acquisition by the Company; (3) any
acquisition by John Hwang or any Entity that he controls, or (4) any acquisition
by any Person pursuant to a transaction which complies with clauses (1), (2) and
(3) of subsection (iii) of the definition of “Company Transaction”;
or
21
(ii) Within
any period of 24 consecutive months, a change in the composition of the Board
such that the individuals who, immediately prior to such period, constituted the
Board (such Board shall be hereinafter referred to as the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board; provided,
however, for purposes hereof, that any individual who becomes a member of the
Board during such period, whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the Incumbent Board; but,
provided further, that any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board shall not be so considered as a member
of the Incumbent Board; or
(iii) A
Company Transaction; or
(iv) The
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company, other than to an entity pursuant to a transaction
which would comply with clauses (1), (2) and (3) of the definition of “Company
Transaction”, assuming for this purpose that such transaction were a Company
Transaction.
For
purposes of the definition of “Change of Control” and “Company Transaction”, a
series of transactions undertaken with a common purpose shall be treated as a
single transaction that begins at the consummation of the first transaction in
the series and ends at the consummation of the last transaction in the
series.
“Company Transaction”
means the consummation of (i) a reorganization, merger or consolidation of the
Company or (ii) the sale or other disposition of all or substantially all of the
assets of the Company and its direct and indirect subsidiaries taken as a whole,
except in each case a transaction pursuant to which (1) all or substantially all
of the individuals and entities who are the beneficial owners, respectively, of
the Outstanding Common Stock and Outstanding Voting Securities immediately prior
to such transaction will beneficially own, directly or indirectly, more than
sixty percent (60%) of, respectively, the outstanding shares of common stock,
and the combined voting power of the outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the entity
resulting from such transaction (including, without limitation, an entity which
as a result of such transaction owns the Company or all or substantially all of
the Company’s assets, either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such
transaction, of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be, (2) no Person (other than the Company) will beneficially
own, directly or indirectly, more than twenty-five percent (25%) of,
respectively, the outstanding shares of common stock of the Company resulting
from such transaction or the combined voting power of the outstanding voting
securities of such Company entitled to vote generally in the election of
directors, except to the extent that such ownership existed with respect to the
Company prior to the transaction, and (3) individuals who were members of the
Board immediately prior to the approval by the stockholders of the Company of
such transaction will constitute at least a majority of the members of the board
of directors of the Company resulting from such transaction.
22
“Convertible Security”
means any security convertible into or exchangeable for shares of Common Stock
of the Company, or any option, warrant or other right to acquire shares of
Common Stock of the Company.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time.
“Committee” has the
meaning set forth in Section 3.2.
“Common Stock” means
the common stock of the Company.
“Company” means
AmbiCom Holdings, Inc., a Nevada corporation formerly known as Med Control,
Inc.
“Compensation
Committee” means the Compensation Committee (if any) of the
Board.
“Disability,” unless
otherwise defined by the Committee for purposes of the Plan or in the instrument
evidencing an Award or in a written employment, services or other agreement
between the Participant and the Company or a Related Company, means a mental or
physical impairment of the Participant that is expected to result in death or
that has lasted or is expected to last for a continuous period of 12 months or
more and that causes the Participant to be unable to perform his or her material
duties for the Company or a Related Company and to be engaged in any substantial
gainful activity, in each case as determined by the Company’s chief human
resources officer or other person performing that function or, in the case of
directors and executive officers, the Committee, whose determination shall be
conclusive and binding.
“Effective Date” has
the meaning set forth in Section 19.
“Eligible Person”
means any person eligible to receive an Award as set forth in Section
5.
“Entity” means any
individual, entity or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time.
23
“Fair Market Value”
means the closing price for the Common Stock on any given date during regular
trading, or if not trading on that date, such price on the last preceding date
on which the Common Stock was traded, unless determined otherwise by the
Committee using such methods or procedures as it may establish.
“Grant Date” means the
later of (a) the date on which the Committee completes the corporate action
authorizing the grant of an Award or such later date specified by the Committee
and (b) the date on which all conditions precedent to an Award have been
satisfied, provided that conditions to the exercisability or vesting of Awards
shall not defer the Grant Date.
“Incentive Stock
Option” means an Option granted with the intention that it qualify as an
“incentive stock option” as that term is defined for purposes of Section 422 of
the Code or any successor provision.
“including”, “include”, “includes” and words
of similar import shall be construed broadly as if followed by the phrase
“without limitation”.
“Nonqualified Stock
Option” means an Option other than an Incentive Stock
Option.
“Option” means a right
to purchase Common Stock granted under Section 7.
“Option Expiration
Date” means the last day of the maximum term of an Option.
“Outstanding Company Common
Stock” has the meaning set forth in the definition of “Change in
Control.”
“Outstanding Company Voting
Securities” has the meaning set forth in the definition of “Change in
Control.”
“Parent Company” means
a company or other entity which as a result of a Company Transaction owns the
Company or all or substantially all of the Company’s assets either directly or
through one or more subsidiaries.
“Participant” means
any Eligible Person to whom an Award is granted.
“Performance Award”
means an Award of Performance Shares or Performance Units granted under Section
11.
“Performance Share”
means an Award of units denominated in shares of Common Stock granted under
Section 11.1.
“Performance Unit”
means an Award of units denominated in cash or property other than shares of
Common Stock granted under Section 11.2.
24
“Plan” means the
AmbiCom Holdings, Inc. 2010 Incentive Plan.
‘‘Related Company”
means any entity that is directly or indirectly controlled by, in control of or
under common control with the Company.
“Restricted Stock”
means an Award of shares of Common Stock granted under Section 10, the rights of
ownership of which are subject to restrictions prescribed by the
Committee.
“Retirement,” unless
otherwise defined in the instrument evidencing the Award or in a written
employment, services or other agreement between the Participant and the Company
or a Related Company, means “Retirement” as defined for purposes of the Plan by
the Committee or the Company’s chief human resources officer or other person
performing that function or, if not so defined, means Termination of Service on
or after the date the Participant reaches “normal retirement age,” as that term
is defined in Section 411(a)(8) of the Code.
“Securities Act” means
the Securities Act of 1933, as amended from time to time.
“Stock Appreciation
Right” or “SAR” means a right
granted under Section 9.1 to receive the excess of the Fair Market Value of a
specified number of shares of Common Stock over the grant price.
“Stock Award” means an
Award of shares of Common Stock granted under Section 10, the rights of
ownership of which are not subject to restrictions prescribed by the
Committee.
“Stock Unit” means an
Award denominated in units of Common Stock granted under Section
10.
“Substitute Awards”
means Awards granted or shares of Common Stock issued by the Company in
substitution or exchange for awards previously granted by an Acquired
Entity.
“Successor Company”
means the surviving company, the successor company or Parent Company, as
applicable, in connection with a Company Transaction.
“Termination of
Service” means a termination of employment or service relationship with
the Company or a Related Company for any reason, whether voluntary or
involuntary, including by reason of death, Disability or
Retirement. Any question as to whether and when there has been a
Termination of Service for the purposes of an Award and the cause of such
Termination of Service shall be determined by the Company’s chief human
resources officer or other person performing that function or, with respect to
directors and executive officers, by the Committee, whose determination shall be
conclusive and binding. Transfer of a Participant’s employment or
service relationship between the Company and any Related Company shall not be
considered a Termination of Service for purposes of an Award. Unless
the Committee determines otherwise, a Termination of Service shall be deemed to
occur if the Participant’s employment or service relationship is with an entity
that has ceased to be a Related Company. A Participant’s change in
status from an employee of the Company or a Related Company to a consultant,
advisor or independent contractor of the Company or a Related Company or a
change in status from a consultant, advisor or independent contractor of the
Company or a Related Company to an employee of the Company or a Related Company,
shall not be considered a Termination of Service.
“Vesting Commencement
Date” means the Grant Date or such other date selected by the Committee
as the date from which an Award begins to vest.
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