Attached files
Exhibit 10.1
ATLANTIC
GREEN POWER HOLDING COMPANY
EQUITY
INCENTIVE PLAN
1.
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PURPOSE.
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The
purpose of this Atlantic Green Power Holding Company Equity Incentive Plan (the
“Plan”) is to advance the interests of Stadium Entertainment Holding Corp. (the
“Company”) and its subsidiaries by enhancing the ability of the Company to (i)
attract and retain employees and other persons or entities who are in a position
to make significant contributions to the success of the Company and its
subsidiaries; (ii) reward such persons for such contributions; and (iii)
encourage such persons or entities to take into account the long-term interest
of the Company through ownership of shares of the Company’s common stock, par
value $.000001 per share (the “Common Stock”).
The Plan
is intended to accomplish these objectives by enabling the Company to grant
awards (“Awards”) in the form of incentive stock options (“ISOs”), nonqualified
stock options (“Nonqualified Options”) (ISOs and Nonqualified Options shall be
collectively referred to herein as “Options”), stock appreciation rights
(“SARs”), restricted stock (“Restricted Stock”), deferred stock (“Deferred
Stock”), or other stock based awards (“Other Stock Based Awards”), all as more
fully described below.
2.
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ADMINISTRATION.
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(a)
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The
Plan will be administered by the Board of Directors of the Company (the
“Board”) or, upon its delegation, by the Compensation Committee (the
“Committee”) of the Board of Directors (such party administering the Plan
to be referred to herein as the “Administrator”). The
Administrator may be constituted to permit the Plan to comply with the
“outside director” requirement of Section 162(m)(4)(c)(i) of the Internal
Revenue Code of 1986, as amended (the “Code”), and the regulations
promulgated thereunder, or any successor rules. The
Administrator will determine the recipients of Awards, the times at which
Awards will be made, the size and type or types of Awards to be made to
each recipient, and will set forth in each such Award the terms,
conditions and limitations applicable to the Award
granted. Awards may be made singly, in combination or in
tandem. The Administrator will have full and exclusive power to
interpret the Plan, to adopt rules, regulations and guidelines relating to
the Plan, to grant waivers of Plan restrictions and to make all of the
determinations necessary for its administration. Such
determinations and actions of the Administrator, and all other
determinations and actions of the Administrator made or taken under
authority granted by any provision of the Plan, will be conclusive and
binding on all parties. Except to the extent otherwise required
under Code Section 409A, related regulations, or other guidance, the
Administrator shall have the authority, in its sole discretion, to
accelerate the date that any Award which was not otherwise exercisable,
vested or earned shall become exercisable, vested or earned in whole or in
part without any obligation to accelerate such date with respect to any
other Award granted to any recipient. In addition, the Administrator shall
have the authority and discretion to establish terms and conditions of
Awards as the Administrator determines to be necessary or appropriate to
conform to the applicable requirements or practices of jurisdictions
outside of the United States. In addition to action by meeting in
accordance with applicable laws, any action of the Administrator with
respect to the Plan may be taken by a written instrument signed by all of
the members of the Administrator, and any such action so taken by written
consent shall be as fully effective as if it had been taken by a majority
of the members at a meeting duly held and
called.
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3.
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EFFECTIVE DATE AND
TERM OF PLAN.
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The Plan
will become effective on February 3, 2010.
The Plan
will terminate on February 2, 2020, subject to earlier termination of the Plan
by the Board pursuant to Section 18 herein. No Award may be granted
under the Plan after the termination date of the Plan, but Awards previously
granted may extend beyond that date pursuant to the terms of such
Awards.
4.
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SHARES SUBJECT TO THE
PLAN.
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Subject
to adjustment as provided in Section 16 herein, the aggregate number of shares
of Common Stock reserved for issuance pursuant to Awards granted under the Plan
shall be ten million (10,000,000) shares; provided, however, that
within sixty (60) days of the end of each fiscal year following the adoption of
the Plan, the Board, in its discretion, may increase the aggregate number of
shares of Common Stock available for issuance under the Plan by an amount not
greater than the difference between (i) the number of shares of Common Stock
available for issuance under the Plan on the last day of the immediately
preceding fiscal year, and (ii) the number of shares of Common Stock equal to
15% of the shares of Common Stock outstanding on the last day of the immediately
preceding fiscal year.
The
shares of Common Stock delivered under the Plan may be either authorized but
unissued shares of Common Stock or shares of the Company’s Common Stock held by
the Company as treasury shares, including shares of Common Stock acquired by the
Company in open market and private transactions. No fractional shares
of Common Stock will be delivered pursuant to Awards granted under the Plan and
the Administrator shall determine the manner in which fractional share value
will be treated.
If any
Award requiring exercise by a Participant for delivery of shares of Common Stock
is cancelled or terminates without having been exercised in full, or if any
Award payable in shares of Common Stock or cash is satisfied in cash rather than
Common Stock, the number of shares of Common Stock as to which such Award was
not exercised or for which cash was substituted will be available for future
Awards of Common Stock; provided, however, that
Common Stock subject to an Option cancelled upon the exercise of a SAR shall not
again be available for Awards under the Plan unless, and to the extent that, the
SAR is settled in cash. Shares of Restricted Stock and Deferred Stock
forfeited to the Company in accordance with the Plan and the terms of the
particular Award shall be available again for Awards under the Plan unless the
Administrator determines otherwise.
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5.
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ELIGIBILITY AND
PARTICIPATION.
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Those
eligible to receive Awards under the Plan (each, a “Participant” and
collectively, the “Participants”) will be persons in the employ of the Company
or any of its subsidiaries designated by the Administrator (“Employees”) and
other persons or entities who, in the opinion of the Administrator, are in a
position to make a significant contribution to the success of the Company or its
subsidiaries, including, without limitation, consultants and agents of the
Company or any subsidiary. A “subsidiary” for purposes of the Plan
will be a present or future corporation or other entity of which the Company
owns or controls, or will own or control, more than 50% of the total combined
voting power of all classes of stock or other equity interests.
6.
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OPTIONS.
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(a)
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Nature of
Options. An Option is an Award entitling the Participant
to purchase a specified number of shares of Common Stock at a specified
exercise price. Both ISOs, as defined in Section 422 of the
Code, and Nonqualified Options may be granted under the Plan; provided, however, that
ISOs may be awarded only to
Employees.
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(b)
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Exercise
Price. The exercise price of each Option shall be equal
to the “Fair Market Value” (as defined below) of the Common Stock on the
date the Award is granted to the Participant; provided, however, that
(i) in the Administrator’s discretion, the exercise price of a
Nonqualified Option may be less than the Fair Market Value of the Common
Stock on the date of grant; (ii) with respect to a Participant who owns
more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company, the option price of an ISO granted to
such Participant shall not be less than one hundred and ten percent (110%)
of the Fair Market Value of the Common Stock on the date the Award is
granted; and (iii) with respect to any Option repriced by the
Administrator, the exercise price shall be equal to the Fair Market Value
of the Common Stock on the date such Option is repriced unless otherwise
determined by the Administrator. For purposes of this Plan,
Fair Market Value shall mean the closing price of the Common Stock as
reported on the principal securities exchange on which the Common Stock is
listed, or if not so listed, the last sale price (or the average of the
high asked and low bid prices of the Common Stock if sales price
information is not reported) of the Common Stock as reported by the Nasdaq
Stock Market or, if not reported on the Nasdaq Stock Market, by the NASD
OTC Bulletin Board, “Pink Sheets” or similar quotation
service. If the Common Stock is not publicly traded, Fair
Market Value shall be determined in good faith by the
Board.
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(c)
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Duration of
Options. The term of each Option granted to a
Participant pursuant to an Award shall be determined by the Administrator;
provided, however, that in no case shall an Option be exercisable more
than ten (10) years (five (5) years in the case of an ISO granted to a ten
percent (10%) stockholder as defined in (b) above) from the date of the
Award.
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(d)
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Exercise of Options
and Conditions. Except as otherwise provided in Sections
18 and 19 herein, and except as otherwise provided below with respect to
ISOs, Options granted pursuant to an Award will become exercisable at such
time or times, and subject to such conditions, as the Administrator may
specify at the time of the Award. The Options may be subject to
such restrictions, conditions and forfeiture provisions as the
Administrator may determine, including, but not limited to, restrictions
on transfer, continuous service with the Company or any of its
subsidiaries, achievement of business objectives, and individual, division
and Company performance. To the extent exercisable, an Option
may be exercised either in whole at any time or in part from time to
time. With respect to an ISO granted to a Participant, the Fair
Market Value of the shares of Common Stock on the date of grant which are
exercisable for the first time by a Participant during any calendar year
shall not exceed $100,000.
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(e)
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Payment for and
Delivery of Stock. Full payment for shares of Common Stock
purchased will be made at the time of the exercise of the Option, in whole
or in part. Payment of the purchase price will be made in cash
or in such other form as the Administrator may permit, including, without
limitation, delivery of shares of Common
Stock.
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7.
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STOCK APPRECIATION
RIGHTS.
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(a)
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Nature of Stock
Appreciation Rights. A SAR is an Award entitling the
recipient to receive payment, in cash and/or shares of Common Stock,
determined in whole or in part by reference to appreciation in the value
of a share of Common Stock. A SAR entitles the recipient to
receive in cash and/or shares of Common Stock, with respect to each SAR
exercised, the excess of the Fair Market Value of a share of Common Stock
on the date of exercise over the Fair Market Value of a share of Common
Stock on the date the SAR was
granted.
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(b)
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Grant of
SARs. SARs may be subject to Awards in tandem with, or
independently of, Options granted under the Plan. A SAR granted
in tandem with an Option which is not an ISO may be granted either at or
after the time the Option is granted. A SAR granted in tandem
with an ISO may be granted only at the time the ISO is granted and may
expire no later than the expiration of the underlying
ISO.
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(c)
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Exercise of
SARs. A SAR not granted in tandem with an Option will
become exercisable at such time or times, and on such conditions, as the
Administrator may specify. A SAR granted in tandem with an
Option will be exercisable only at such times, and to the extent, that the
related Option is exercisable. A SAR granted in tandem with an
ISO may be exercised only when the market price of the shares of Common
Stock subject to the ISO exceeds the exercise price of the ISO, and the
SAR may be for no more than one hundred percent (100%) of the difference
between the exercise price of the underlying ISO and the Fair Market Value
of the Common Stock subject to the underlying ISO at the time the SAR is
exercised. At the option of the Administrator, upon exercise, a
SAR may be settled in cash, Common Stock or a combination of
both.
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8.
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RESTRICTED
STOCK.
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A
Restricted Stock Award entitles the recipient to acquire shares of Common Stock,
subject to certain restrictions or conditions, for no cash consideration, if
permitted by applicable law, or for such other consideration as may be
determined by the Administrator. The Award may be subject to such
restrictions, conditions and forfeiture provisions as the Administrator may
determine, including, but not limited to, restrictions on transfer, continuous
service with the Company or any of its subsidiaries, achievement of business
objectives, and individual, division and Company performance. Subject
to such restrictions, conditions and forfeiture provisions as may be established
by the Administrator, any Participant receiving an Award of Restricted Stock
will have all the rights of a stockholder of the Company with respect to the
shares of Restricted Stock, including the right to vote the shares and the right
to receive any dividends thereon.
9.
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DEFERRED
STOCK.
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A
Deferred Stock Award entitles the recipient to receive shares of Common Stock to
be delivered in the future. Delivery of the shares of Common Stock
will take place at such time or times, and on such conditions, as the
Administrator may specify. At the time any Deferred Stock Award is
granted, the Administrator may provide that the Participant will receive an
instrument evidencing the Participant’s right to future delivery of Deferred
Stock.
10.
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OTHER STOCK BASED
AWARDS.
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The
Administrator shall have the right to grant Other Stock Based Awards under the
Plan to Employees which may include, without limitation, the grant of shares of
Common Stock as bonus compensation and the issuance of shares of Common Stock in
lieu of an Employee’s cash compensation.
11.
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AWARD
AGREEMENTS.
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The grant
of any Award under the Plan may be evidenced by an agreement which shall
describe the specific Award granted and the terms and conditions of the
Award. Any Award shall be subject to the terms and conditions of any
such agreement required by the Administrator.
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12.
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TRANSFERS.
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No Award
(other than an outright Award in the form of Common Stock without any
restrictions) may be assigned, pledged or transferred other than by will or by
the laws of descent and distribution and, during a Participant’s lifetime, will
be exercisable only by the Participant or, in the event of a Participant’s
incapacity, by the Participant’s guardian or legal representative.
13.
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RIGHTS OF A
STOCKHOLDER.
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Except as
specifically provided by the Plan, the receipt of an Award will not give a
Participant rights as a stockholder of the Company. The Participant
will obtain such rights, subject to any limitations imposed by the Plan, or the
instrument evidencing the Award, upon actual receipt of shares of Common
Stock.
14.
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CONDITIONS ON DELIVERY
OF STOCK.
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The
Company will not be obligated to deliver any shares of Common Stock pursuant to
the Plan or to remove any restrictions or legends from shares of Common Stock
previously delivered under the Plan until, (a) in the opinion of the Company’s
counsel, all applicable federal and state laws and regulations have been
complied with, (b) until the shares of Common Stock to be delivered have been
listed or authorized to be listed on the exchange or quotation system on which
shares of Common Stock may be then listed or quoted, and (c) until all other
legal matters in connection with the issuance and delivery of such shares of
Common Stock have been approved by the Company’s counsel. If the sale
of shares of Common Stock has not been registered under the Securities Act of
1933, as amended (the “Act”), and qualified under the appropriate “blue sky”
laws, the Company may require, as a condition to exercise of the Award, such
representations and agreements as counsel for the Company may consider
appropriate to avoid violation of such Act and laws and may require that the
certificates evidencing such shares of Common Stock bear an appropriate legend
restricting transfer.
If an
Award is exercised by a Participant’s legal representative, the Company will be
under no obligation to deliver shares of Common Stock pursuant to such exercise
until the Company is satisfied as to the authority of such
representative.
15.
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TAX
WITHHOLDING.
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The
Company will have the right to deduct from any cash payment under the Plan or
otherwise payable to the Participant taxes that are required to be withheld and
to condition the obligation to deliver or vest shares of Common Stock under this
Plan upon the Participant’s paying the Company such amount as the Company may
request to satisfy any liability for applicable withholding
taxes. The obligations of the Company under this Plan shall be
conditioned upon such payment or the making of arrangements satisfactory to the
Company regarding such payments, and the Company, or any of its subsidiaries,
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment otherwise due to the Participant. The Administrator
may in its discretion permit Participants to satisfy all or part of their
withholding liability either by delivery of shares of Common Stock held by the
Participant or by withholding shares of Common Stock to be delivered to a
Participant upon the grant or exercise of an Award.
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16.
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ADJUSTMENT OF
AWARD.
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(a)
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The
Administrator may make or provide for such adjustments in the numbers of
shares of Common Stock covered by outstanding Awards granted hereunder,
and any applicable exercise price provided in outstanding Awards and in
the kind of shares covered thereby, as the Administrator, in its sole
discretion, may determine is equitably required to prevent dilution or
enlargement of the rights of Participants that otherwise would result from
(i) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company,
or (ii) any merger, consolidation, spin-off, split-off, spin-out,
split-up, reorganization, partial or complete liquidation or other
distribution of assets or, issuance of rights or warrants to purchase
securities, or (iii) any other corporate transaction or event having an
effect similar to any of the foregoing. Moreover, in the event
of any such transaction or event, the Administrator, in its discretion,
may provide in substitution for any or all outstanding awards under this
Plan such alternative consideration (including cash), if any, as it may
determine to be equitable in the circumstances and may require in
connection therewith the surrender of all Awards so
replaced. The Administrator may also make or provide for such
adjustments in the numbers of shares specified in Section 4 of this Plan
as the Administrator in its sole discretion may determine is appropriate
to reflect any transaction or event described in this Section 16(a);
provided, however, that any such adjustment to the number specified in
Section 4 will be made only if and to the extent that such adjustment
would not cause any Option intended to qualify as an ISO to fail to so
qualify.
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(b)
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In
the event of (i) a proposal, which is approved by the Board, of any merger
or consolidation involving the Company where the Company is not the
surviving entity or pursuant to which any shares of Common Stock would be
converted into cash, securities or other property of another corporation
or business entity (other than a merger or consolidation in which the
holders of Common Stock immediately prior to the merger or consolidation
continue to own at least 50% of the Common Stock after the merger or
consolidation, or if the Company is not the surviving corporation, at
least 50% of the common stock, or other voting securities, of the
surviving corporation or other business entity immediately after the
merger, consolidation or share exchange), or any sale of substantially all
of the Company’s assets or (ii) any other transaction or series of related
transactions as a result of which a single person or several persons
acting in concert own a majority of the Company’s then outstanding Common
Stock (such merger, consolidation, sale of assets or other transaction
being hereinafter referred to as a “Transaction”), unless otherwise
provided in a resolution adopted by the Board prior to the effectiveness
of the Transaction, all outstanding Options and SARs shall become
exercisable immediately before or contemporaneously with the consummation
of such Transaction and each outstanding share of Restricted Stock and
each outstanding Deferred Stock Award shall immediately become free of all
restrictions and conditions upon consummation of such
Transaction. Unless otherwise approved in a resolution adopted
by the Board prior to the effectiveness of such Transaction, immediately
following the consummation of the Transaction, all outstanding Options and
SARs shall terminate and cease to be
exercisable.
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In lieu
of the foregoing, if the Company will not be the surviving corporation or
entity, the Administrator may arrange to have such acquiring or surviving
corporation or entity, or an “Affiliate” (as defined below) thereof, grant
replacement Awards which shall be immediately exercisable to Participants
holding outstanding Awards.
The term
“Affiliate,” with respect to any Person, shall mean any other Person who is, or
would be deemed to be an “affiliate” or an “associate” of such Person within the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as
amended. The term “Person” shall mean a corporation, association,
partnership, joint venture, limited liability company, trust, organization,
business, individual or government or any governmental agency or political
subdivision thereof.
(c)
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In
the event of the dissolution or liquidation of the Company (except a
dissolution or liquidation relating to a sale of assets or other
reorganization of the Company referred to in the preceding sections), the
outstanding options and SARs shall terminate as of a date fixed by the
Administrator; provided,
however, that not less than thirty (30) days written notice of the
date so fixed shall be given to each Participant who shall have the right
during such period to exercise the Participant’s Options or SARs as to all
or any part of the shares of Common Stock covered
thereby. Further, in the event of the dissolution or
liquidation of the Company, each outstanding share of Restricted Stock and
each outstanding Deferred Stock Award shall immediately become free of all
restrictions and conditions.
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17.
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TERMINATION OF
SERVICE.
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Upon a
Participant’s termination of service with the Company or a subsidiary (if an
employee only of a subsidiary), any outstanding Award shall be subject to the
terms and conditions set forth below, unless otherwise determined by the
Administrator:
(a)
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In
the event a Participant leaves the employ or service of the Company or a
subsidiary of the Company whether voluntarily or otherwise but other than
by reason of the Participant’s death or “disability” (as such term is
defined in Section 22(e)(3) of the Code), each Option and SAR granted to
the Participant shall terminate upon the earlier to occur of (i) the
expiration of the period three (3) months after the date of such
termination and (ii) the date specified in the Option or SAR; provided, that, prior
to the termination of such Option or SAR, the Participant shall be able to
exercise any part of the Option or SAR which is exercisable as of the date
of termination. Further, each outstanding share of Restricted
Stock and each outstanding Deferred Stock Award which remains subject to
any restrictions or conditions of the Award shall be forfeited to the
Company upon such date of
termination.
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(b)
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In
the event a Participant’s employment with or service to the Company or its
subsidiaries terminates by reason of the Participant’s death or
“disability” (as such term is defined in Section 22(e)(3) of the Code),
each Option and SAR granted to the Participant shall become immediately
exercisable in full and shall terminate upon the earlier to occur of (i)
the expiration of the period six (6) months after the date of such
termination and (ii) the date specified in the option or
SAR. Further, each outstanding share of Restricted Stock and
each outstanding Deferred Stock Award shall immediately become free of all
restrictions and conditions upon the date of such
termination.
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18.
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AMENDMENTS AND
TERMINATION.
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(a)
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The
Plan may be amended, altered and/or terminated at any time by the Board;
provided, that
(i) approval of an amendment to the Plan by the stockholders of the
Company shall be required to the extent, if any, that stockholder approval
of such amendment is required by applicable law, rule or regulation; and
(ii) except for adjustments made pursuant to Section 5(c), the exercise
price for any outstanding Option or base price of any outstanding SAR may
not be decreased after the date of grant, nor may any outstanding Option
or SAR be surrendered to the Company as consideration for the grant of a
new Option or SAR with a lower exercise price or base price than the
original Option or SAR, as the case may be, without stockholder approval
of any such action. No action to amend or terminate the Plan shall permit
the acceleration of the time or schedule of any payment of amounts deemed
to involve the deferral of compensation under Code Section 409A, except as
may be otherwise permitted under Code Section 409A, related regulations,
or other guidance.
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(b)
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The
Administrator may amend, alter or terminate any Award granted under the
Plan, prospectively or retroactively, but such amendment, alteration or
termination of an Award shall not, without the consent of the recipient of
an outstanding Award, materially adversely affect the rights of the
recipient with respect to the
Award.
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(c)
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Notwithstanding
Section 18(a) and Section 18(b) herein, the following provisions shall
apply:
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(i)
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The
Administrator shall have unilateral authority to amend the Plan and any
Award (without Participant consent and without stockholder approval,
unless such stockholder approval is required by applicable laws, rules or
regulations) to the extent necessary to comply with applicable laws, rules
or regulations or changes to applicable laws, rules or regulations
(including, but not limited to, Code Section 409A and Code Section 422 or
related regulations or other guidance and federal securities
laws).
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(ii)
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The
Administrator shall have unilateral authority to make adjustments to the
terms and conditions of Awards in recognition of unusual or nonrecurring
events affecting the Company or any Affiliate, or the financial statements
of the Company or any Affiliate, or of changes in accounting principles,
if the Administrator determines that such adjustments are appropriate in
order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan or necessary or
appropriate to comply with applicable accounting
principles.
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(d)
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Notwithstanding
any provision of the Plan, an Award or an Award Agreement to the contrary,
the Administrator may (subject to any requirements imposed under Code
Section 409A, related regulations, or other guidance) cause any Award (or
portion thereof) granted under the Plan to be canceled in consideration of
an alternative Award or cash payment of an equivalent cash value, as
determined by the Administrator in its sole discretion, made to the holder
of such canceled Award.
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19.
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COMPLIANCE WITH CODE
SECTION 409A
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(a)
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Notwithstanding
any other provision in the Plan or an Award to the contrary, if and to the
extent that Code Section 409A is deemed to apply to the Plan or any Award
granted under the Plan, it is the general intention of the Company that
the Plan and all such Awards shall comply with Code Section 409A, related
regulations, or other guidance, and the Plan and any such Award shall, to
the extent practicable, be construed in accordance
therewith. Deferrals of shares issuable pursuant to an Option,
a SAR settled in shares of Common Stock, a Restricted Award or any other
Award otherwise exempt from Code Section 409A, in a manner that would
cause Code Section 409A to apply, shall not be
permitted. Without in any way limiting the effect of the
foregoing, in the event that Code Section 409A, related regulations or
other guidance require that any special terms, provisions or conditions be
included in the Plan or any Award, then such terms, provisions and
conditions shall, to the extent practicable, be deemed to be made a part
of the Plan or Award, as applicable. Further, in the event that the Plan
or any Award shall be deemed not to comply with Code Section 409A or any
related regulations or other guidance, then neither the Company, the
Administrator nor their designees or agents shall be liable to any
Participant or other person for actions, decisions or determinations made
in good faith.
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(b)
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Without
limiting the effect of Section 19(a), above, and notwithstanding any other
provision in the Plan to the contrary, the following provisions shall, to
the extent required under Code Section 409A, related regulations, or other
guidance, apply with respect to Awards deemed to involve the deferral of
compensation under Code Section
409A:
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(i)
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Distributions
may be made with respect to Awards subject to Code Section 409A not
earlier than upon the occurrence of one or more of the following events:
(A) separation of service; (B) disability; (C) death; (D) a specified time
or pursuant to a fixed schedule; (E) a change in the ownership or
effective control of the Corporation, or in the ownership of a substantial
portion of the assets of the Corporation; or (F) the occurrence of an
unforeseeable emergency. Each of the preceding distribution events shall
be defined and interpreted in accordance with Code Section 409A and
related regulations or other
guidance.
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(ii)
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With
respect to Participants who are “key employees” (as defined in Code
Section 409A, related regulations, or other guidance), a distribution due
to separation of service may not be made before the date that is six
months after the date of separation of service (or, if earlier, the date
of death of the Participant), except as may be otherwise permitted
pursuant to Code Section 409A, related regulations, or other guidance. To
the extent that a Participant is subject to this section and a
distribution is to be paid in installments, through an annuity, or in some
other manner where payment will be periodic, the Participant shall be
paid, during the seventh month following separation from service, the
aggregate amount of payments he or she would have received but for the
application of this section; all remaining payments shall be made in their
ordinary course. The previous sentence shall be applicable only
if and to the extent that it complies with Code Section 409A, related
regulations, and other applicable
guidance.
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(iii)
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Unless
permissible under Code Section 409A, related regulations, or other
guidance, acceleration of the time or schedule of any payment under the
Plan is prohibited, except that, to the extent permitted by the
Administrator and to the extent such exceptions do not violate Code
Section 409A, the following accelerations may be permitted in an
Award:
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(A)
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As
necessary to fulfill a domestic relations order (as defined in Code
Section 414(p)(1)(B));
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(B)
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As
necessary to comply with a certificate of divestiture (as defined in Code
Section 1043(b)(2)); and
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(C)
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To
pay the Federal Insurance Contributions Act tax imposed under Code
Sections 3101 and 3121(v)(2) on amounts deferred under the Plan (the “FICA
Amount”), including the income tax at source on wages imposed under Code
Section 3401 on the FICA Amount, and to pay the additional income tax at
source of wages attributable to additional Code Section 3401 wages and
taxes.
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(iv)
|
Except
to the extent otherwise required or permitted under Code Section 409A,
related regulations or other guidance, the Administrator shall (unless an
individual Award Agreement provides otherwise) provide that distributions
pursuant to Awards must be made no later than the later of (A) the date
that is 2-1/2 months from the end of the Participant’s first taxable year
in which the amount is no longer subject to a substantial risk of
forfeiture; or (B) the date that is 2-1/2 months from the end of the
Corporation’s first taxable year in which the amount is no longer subject
to a substantial risk of
forfeiture.
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11
(v)
|
Deferral
Elections:
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(A)
|
In
the sole discretion of the Administrator, a Participant may be permitted
to make an election as to the time and form of any distribution from an
Award, provided that,
except as specified in (B) and (C) below, such election is made not later
than the close of the taxable year preceding the taxable year in which the
services for which the Award is granted are to be performed, or at such
other time or times as may be permitted under Code Section 409A, related
regulations, or other guidance.
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(B)
|
In
the case of the first year in which the Participant becomes eligible to
participant in the Plan, the election described in (A) may be made with
respect to services to be performed subsequent to the election within
thirty (30) days after the date the Participant becomes eligible to
participate in the Plan.
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(C)
|
In
the case of any performance-based compensation (as that term is defined in
Code Section 409A, related regulations, or other guidance), where such
compensation is based on services performed over a period of at least
twelve months, the election described in (A) may be made no later than six
months before the end of the
period.
|
(vi)
|
To
the extent that the Administrator, in its sole discretion, permits a
subsequent election to delay a payment or change the form of payment that
has been specified under (A), (B) or (C) above, the following provisions
shall apply:
|
(A)
|
Such
election may not take effect until twelve months after the date on which
the election is made;
|
(B)
|
Where
the payment is to be made for reasons other than death, disability or
unforeseen hardship, as those terms are defined in Section 18(b)(i),
above, the first payment with respect to which such election is made must
be deferred for a period of not less than five years from the date such
payment would otherwise have been made;
and
|
(C)
|
Any
election related to a payment based upon separation from service, as that
term is defined in Section 18(b)(i), above, may not be made less than
twelve months prior to the date of the first scheduled payment
hereunder.
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20.
|
SUCCESSORS AND
ASSIGNS.
|
The
provisions of this Plan shall be binding upon all successors and assigns of any
such Participant including, without limitation, the estate of any such
Participant and the executors, administrators, or trustees of such estate, and
any receiver, trustee in bankruptcy or representative of the creditors of any
such Participant.
21.
|
MISCELLANEOUS.
|
(a)
|
This
Plan shall be governed by and construed in accordance with the laws of the
State of Delaware.
|
(b)
|
Any
and all funds received by the Company under the Plan may be used for any
corporate purpose.
|
(c)
|
Nothing
contained in the Plan or any Award granted under the Plan shall confer
upon a Participant any right to be continued in the employment of the
Company or any subsidiary, or interfere in any way with the right of the
Company, or its subsidiaries, to terminate the employment relationship at
any time.
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13