Attached files
file | filename |
---|---|
EX-23.3 - CONSENT OF K.K. MEHTA CPA ASSOCIATES, PLLC - Charge Enterprises, Inc. | goig_ex233.htm |
EX-23.2 - CONSENT OF SELIGSON & GIANNATTASIO, LLP - Charge Enterprises, Inc. | goig_ex232.htm |
EX-23.1 - CONSENT OF ACCELL AUDIT & COMPLIANCE, P.A - Charge Enterprises, Inc. | goig_ex231.htm |
S-1/A - FORM S-1/A - Charge Enterprises, Inc. | goig_s1a.htm |


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Exhibit 10.17
CHARGE ENTERPRISES, INC.
2020 OMNIBUS EQUITY INCENTIVE PLAN
(Amended and Restated as of May 7, 2021)
Section
1. Purpose
of Plan.
The
name of the Plan is the Charge Enterprises, Inc. 2020 Omnibus
Equity Incentive Plan. The purposes of the Plan are to
(i) provide an additional incentive to selected employees,
directors and independent contractors of the Company or its
Affiliates whose contributions are essential to the growth and
success of the Company, (ii) strengthen the commitment of such
individuals to the Company and its Affiliates, (iii) motivate
those individuals to faithfully and diligently perform their
responsibilities and (iv) attract and retain competent and
dedicated individuals whose efforts will result in the long-term
growth and profitability of the Company. To accomplish these
purposes, the Plan provides that the Company may grant Options,
Stock Appreciation Rights, Restricted Stock, Restricted Stock
Units, Other Stock-Based Awards or any combination of the
foregoing.
Section
2. Definitions.
For
purposes of the Plan, the following terms shall be defined as set
forth below:
(a) “Administrator” means the
Board, or, if and to the extent the Board does not administer the
Plan, the Committee in accordance with Section 3
hereof.
(b) “Affiliate”
means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Person specified as of any date of
determination.
(c) “Applicable
Laws” means the
applicable requirements under U.S. federal and state corporate
laws, U.S. federal and state securities laws, including the Code,
any stock exchange or quotation system on which the Common Stock is
listed or quoted and the applicable laws of any other country or
jurisdiction where Awards are granted under the Plan, as are in
effect from time to time.
(d) “Award”
means any Option, Stock Appreciation Right, Restricted Stock,
Restricted Stock Unit or Other Stock-Based Award granted under the
Plan.
(e) “Award
Agreement” means any
written notice, agreement, contract or other instrument or document
evidencing an Award, including through electronic medium, which
shall contain such terms and conditions with respect to an Award as
the Administrator shall determine, consistent with the
Plan.
(f) “Beneficial
Owner” (or any variant
thereof) has the meaning defined in Rule 13d-3 under the Exchange
Act.
(g) “Board”
means the Board of Directors of the Company.
(h) “Bylaws”
mean the bylaws of the Company, as may be amended and/or restated
from time to time.
(i) “Cause”
has the meaning assigned to such term in any individual service,
employment or severance agreement or Award Agreement with the
Participant or, if no such agreement exists or if such agreement
does not define “Cause,” then “Cause” means
(i) the conviction, guilty plea or plea of “no
contest” by the Participant to any felony or a crime
involving moral turpitude or the Participant’s commission of
any other act or omission involving dishonesty or fraud,
(ii) the substantial and repeated failure of the Participant
to perform duties of the office held by the Participant,
(iii) the Participant’s gross negligence, willful
misconduct or breach of fiduciary duty with respect to the Company
or any of its Subsidiaries or Affiliates, (iv) any breach by
the Participant of any restrictive covenants to which the
Participant is subject, and/or (v) the Participant’s
engagement in any conduct which is or can reasonably be expected to
be materially detrimental or injurious to the business or
reputation of the Company or its Affiliates. Any voluntary
termination of employment or service by the Participant in
anticipation of an involuntary termination of the
Participant’s employment or service, as applicable, for Cause
shall be deemed to be a termination for Cause.
(j) “Change in Capitalization”
means any (i) merger, consolidation, reclassification,
recapitalization, spin-off, spin-out, repurchase or other
reorganization or corporate transaction or event, (ii) special
or extraordinary dividend or other extraordinary distribution
(whether in the form of cash, Common Stock or other property),
stock split, reverse stock split, share subdivision or
consolidation, (iii) combination or exchange of shares or
(iv) other change in corporate structure, which, in any such
case, the Administrator determines, in its sole discretion, affects
the Shares such that an adjustment pursuant to Section 5 hereof is
appropriate.
(k) “Change in
Control” means the first
occurrence of an event set forth in any one of the following
paragraphs following the Effective Date:
(1) any Person is or
becomes the Beneficial Owner, directly or indirectly, of securities
of the Company (not including in the securities Beneficially Owned
by such Person which were acquired directly from the Company or any
Affiliate thereof) representing more than fifty percent (50%) of
the combined voting power of the Company’s then outstanding
securities, excluding any Person who becomes such a Beneficial
Owner in connection with a transaction described in clause (i) of
paragraph (3) below; or
(2) the date on which
individuals who constitute the Board as of the Effective Date and
any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including, but not limited to, a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by
the Company’s stockholders was approved or recommended by a
vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the Effective Date or whose
appointment, election or nomination for election was previously so
approved or recommended cease for any reason to constitute a
majority of the number of directors serving on the Board;
or
(3) there is
consummated a merger or consolidation of the Company or any direct
or indirect Subsidiary with any other corporation or other entity,
other than (i) a merger or consolidation (A) which
results in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any Subsidiary, fifty percent (50%) or more of the
combined voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation and (B) following which the
individuals who comprise the Board immediately prior thereto
constitute at least a majority of the board of directors of the
Company, the entity surviving such merger or consolidation or, if
the Company or the entity surviving such merger or consolidation is
then a Subsidiary, the ultimate parent thereof, or (ii) a
merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of securities
of the Company (not including in the securities Beneficially Owned
by such Person any securities acquired directly from the Company or
its Affiliates) representing more than fifty percent (50%) of the
combined voting power of the Company’s then outstanding
securities; or
(4) the stockholders of
the Company approve a plan of complete liquidation or dissolution
of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets, other than (A) a sale or disposition
by the Company of all or substantially all of the Company’s
assets to an entity, more than fifty percent (50%) of the combined
voting power of the voting securities of which are owned by
stockholders of the Company following the completion of such
transaction in substantially the same proportions as their
ownership of the Company immediately prior to such sale or
(B) a sale or disposition of all or substantially all of the
Company’s assets immediately following which the individuals
who comprise the Board immediately prior thereto constitute at
least a majority of the board of directors of the entity to which
such assets are sold or disposed or, if such entity is a
subsidiary, the ultimate parent thereof.
Notwithstanding
the foregoing, (i) a Change in Control shall not be deemed to
have occurred by virtue of the consummation of any transaction or
series of integrated transactions immediately following which the
holders of Common Stock immediately prior to such transaction or
series of transactions continue to have substantially the same
proportionate ownership in an entity which owns all or
substantially all of the assets of the Company immediately
following such transaction or series of transactions and
(ii) to the extent required to avoid accelerated taxation
and/or tax penalties under Section 409A of the Code, a Change in
Control shall be deemed to have occurred under the Plan with
respect to any Award that constitutes deferred compensation under
Section 409A of the Code only if a change in the ownership or
effective control of the Company or a change in ownership of a
substantial portion of the assets of the Company shall also be
deemed to have occurred under Section 409A of the Code. For
purposes of this definition of Change in Control, the term
“Person” shall not include (i) the Company or any
Subsidiary thereof, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any
Subsidiary thereof, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of shares of the Company.
(l) “Code”
means the Internal Revenue Code of 1986, as amended from time to
time, or any successor thereto.
(m) “Committee”
means any committee or subcommittee the Board may appoint to
administer the Plan. Subject to the discretion of the Board, the
Committee shall be composed entirely of individuals who meet the
qualifications of a “non-employee director” within the
meaning of Rule 16b-3 under the Exchange Act and any other
qualifications required by the applicable stock exchange on which
the Common Stock is traded.
(n) “Common
Stock” means the common
stock of the Company, par value $0.0001 per
share.
(o) “Company”
means Charge Enterprises,, Inc., a Delaware corporation (or any
successor company, except as the term “Company” is used
in the definition of “Change in Control”
above).
(p) “Disability”
has the meaning assigned to such term in any individual service,
employment or severance agreement or Award Agreement with the
Participant or, if no such agreement exists or if such agreement
does not define “Disability,” then
“Disability” means that a Participant, as determined by
the Administrator in its sole discretion, (i) is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, or
(ii) is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve
(12) months, receiving income replacement benefits for a period of
not less than three (3) months under an accident and health plan
covering employees of the Company or an Affiliate
thereof.
(q) “Eligible
Recipient” means an
employee, director or independent contractor of the Company or any
Affiliate of the Company who has been selected as an eligible
participant by the Administrator; provided,
however,
to the extent required to avoid accelerated taxation and/or tax
penalties under Section 409A of the Code, an Eligible Recipient of
an Option or a Stock Appreciation Right means an employee,
non-employee director or independent contractor of the Company or
any Affiliate of the Company with respect to whom the Company is an
“eligible issuer of service recipient stock” within the
meaning of Section 409A of the Code.
(r) “Exchange
Act” means the Securities
Exchange Act of 1934, as amended from time to
time.
(s) “Exempt
Award” shall mean the
following:
(1) An Award granted in
assumption of, or in substitution for, outstanding awards
previously granted by a corporation or other entity acquired by the
Company or any of its Subsidiaries or with which the Company or any
of its Subsidiaries combines by merger or otherwise. The terms and
conditions of any such Awards may vary from the terms and
conditions set forth in the Plan to the extent the Administrator at
the time of grant may deem appropriate, subject to Applicable
Laws.
(2) An award that an
Eligible Recipient purchases at Fair Market Value (including awards
that an Eligible Recipient elects to receive in lieu of fully
vested compensation that is otherwise due) whether or not the
Shares are delivered immediately or on a deferred
basis.
(t) “Exercise
Price” means,
(i) with respect to any Option, the per share price at which a
holder of such Option may purchase Shares issuable upon exercise of
such Award, and (ii) with respect to a Stock Appreciation
Right, the base price per share of such Stock Appreciation
Right.
(u) “Fair Market
Value” of a share of
Common Stock or another security as of a particular date shall mean
the fair market value as determined by the Administrator in its
sole discretion; provided, that, (i) if the Common Stock or
other security is admitted to trading on a national securities
exchange, the fair market value on any date shall be the closing
sale price reported on such date, or if no shares were traded on
such date, on the last preceding date for which there was a sale of
a share of Common Stock on such exchange, or (ii) if the
Common Stock or other security is then traded in an
over-the-counter market, the fair market value on any date shall be
the average of the closing bid and asked prices for such share in
such over-the-counter market for the last preceding date on which
there was a sale of such share in such market.
(v) “Free Standing
Rights” has the meaning
set forth in Section 8.
(w) “Good
Reason” has the meaning
assigned to such term in any individual service, employment or
severance agreement or Award Agreement with the Participant or, if
no such agreement exists or if such agreement does not define
“Good Reason,” “Good Reason” and any
provision of this Plan that refers to “Good Reason”
shall not be applicable to such Participant.
(x) “Incentive
Compensation” means
annual cash bonus and any Award.
(y) “ISO” means an Option intended to be and
designated as an “incentive stock option” within the
meaning of Section 422 of the Code.
(z) “Nonqualified Stock
Option” shall mean an
Option that is not designated as an ISO.
(aa) “Option”
means an option to purchase shares of Common Stock granted pursuant
to Section 7 hereof. The term “Option” as used in the
Plan includes the terms “Nonqualified Stock Option” and
“ISO.”
(bb) “Other
Stock-Based Award” means
a right or other interest granted pursuant to Section 10 hereof
that may be denominated or payable in, valued in whole or in part
by reference to, or otherwise based on or related to, Common Stock,
including, but not limited to, unrestricted Shares, dividend
equivalents or performance units, each of which may be subject to
the attainment of performance goals or a period of continued
provision of service or employment or other terms or conditions as
permitted under the Plan.
(cc) “Participant”
means any Eligible Recipient selected by the Administrator,
pursuant to the Administrator’s authority provided for in
Section 3 below, to receive grants of Awards, and, upon his or her
death, his or her successors, heirs, executors and administrators,
as the case may be.
(dd) “Person”
shall have the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d)
thereof.
(ee) “Plan”
means this 2020 Omnibus Equity Incentive Plan as amended and
restated herein and as may be amended from time to
time.
(ff) “Prior
Plan” shall mean the
Charge Enterprises, Inc. as last amended and restated on January
11, 2021.
(hh) “Restatement
Date” shall mean
May 7, 2021 pursuant to Section 17.
(ii) “Restricted
Period” has the meaning
set forth in Section 9.
(jj) “Restricted
Stock” means a Share
granted pursuant to Section 9 below subject to certain restrictions
that lapse at the end of a specified period (or periods) of time
and/or upon attainment of specified performance
objectives.
(kk) “Restricted
Stock Unit” means the
right granted pursuant to Section 9 hereof to receive a Share at
the end of a specified restricted period (or periods) of time
and/or upon attainment of specified performance
objectives.
(ll) “Rule
16b-3” has the meaning
set forth in Section 3.
(mm) “Section
16 Officer” means any
officer of the Company whom the Board has determined is subject to
the reporting requirements of Section 16 of the Exchange Act,
whether or not such individual is a Section 16 Officer at the time
the determination to recoup compensation is
made.
(nn) “Shares”
means Common Stock reserved for issuance under the Plan, as
adjusted pursuant to the Plan, and any successor (pursuant to a
merger, consolidation or other reorganization)
security.
(oo) “Stock
Appreciation Right” means
a right granted pursuant to Section 8 hereof to receive an amount
equal to the excess, if any, of (i) the aggregate Fair Market
Value, as of the date such Award or portion thereof is surrendered,
of the Shares covered by such Award or such portion thereof, over
(ii) the aggregate Exercise Price of such Award or such
portion thereof.
(pp) “Subsidiary”
means, with respect to any Person, as of any date of determination,
any other Person as to which such first Person owns or otherwise
controls, directly or indirectly, more than 50% of the voting
shares or other similar interests or a sole general partner
interest or managing member or similar interest of such other
Person.
(qq) “Transfer”
has the meaning set forth in Section 15.
Section
3. Administration.
(a) The Plan shall be
administered by the Administrator and shall be administered, to the
extent applicable, in accordance with Rule 16b-3 under the Exchange
Act (“Rule
16b-3”).
(b) Pursuant to the
terms of the Plan, the Administrator, subject, in the case of any
Committee, to any restrictions on the authority delegated to it by
the Board, shall have the power and authority, without
limitation:
(1) to select those
Eligible Recipients who shall be Participants;
(2) to determine
whether and to what extent Options, Stock Appreciation Rights,
Restricted Stock, Restricted Stock Units, Other Stock-Based Awards
or a combination of any of the foregoing, are to be granted
hereunder to Participants;
(3) to determine the
number of Shares to be covered by each Award granted
hereunder;
(4) to determine the
terms and conditions, not inconsistent with the terms of the Plan,
of each Award granted hereunder (including, but not limited to,
(i) the restrictions applicable to Restricted Stock or
Restricted Stock Units and the conditions under which restrictions
applicable to such Restricted Stock or Restricted Stock Units shall
lapse, (ii) the performance goals and periods applicable to
Awards, (iii) the Exercise Price of each Option and each Stock
Appreciation Right or the purchase price of any other Award,
(iv) the vesting schedule and terms applicable to each Award,
(v) the number of Shares or amount of cash or other property
subject to each Award and (vi) subject to the requirements of
Section 409A of the Code (to the extent applicable) any amendments
to the terms and conditions of outstanding Awards, including, but
not limited to, extending the exercise period of such Awards and
accelerating the payment schedules of such Awards and/or, to the
extent specifically permitted under the Plan, accelerating the
vesting schedules of such Awards);
(5) to determine the
terms and conditions, not inconsistent with the terms of the Plan,
which shall govern all written instruments evidencing
Awards;
(6) to determine the
Fair Market Value in accordance with the terms of the
Plan;
(7) to determine the
duration and purpose of leaves of absence which may be granted to a
Participant without constituting termination of the
Participant’s service or employment for purposes of Awards
granted under the Plan;
(8) to adopt, alter and
repeal such administrative rules, regulations, guidelines and
practices governing the Plan as it shall from time to time deem
advisable;
(9) to construe and
interpret the terms and provisions of, and supply or correct
omissions in, the Plan and any Award issued under the Plan (and any
Award Agreement relating thereto), and to otherwise supervise the
administration of the Plan and to exercise all powers and
authorities either specifically granted under the Plan or necessary
and advisable in the administration of the Plan; and
(10) to
prescribe, amend and rescind rules and regulations relating to
sub-plans established for the purpose of satisfying applicable
non-United States laws or for qualifying for favorable tax
treatment under applicable non-United States laws, which rules and
regulations may be set forth in an appendix or appendixes to the
Plan.
(c) Subject to Section
5, neither the Board nor the Committee shall have the authority to
(i) reprice or cancel and regrant any Award at a lower exercise,
base or purchase price or cancel any Award with an exercise, base
or purchase price in exchange for cash, property or other Awards
without first obtaining the approval of the Company’s
stockholders; or (ii) accelerate the vesting of any Awards (except
pursuant to Section 11).
(d) All decisions made
by the Administrator pursuant to the provisions of the Plan shall
be final, conclusive and binding on all Persons, including the
Company and the Participants.
(e) The expenses of
administering the Plan shall be borne by the Company and its
Affiliates.
(f) If at any time or
to any extent the Board shall not administer the Plan, then the
functions of the Administrator specified in the Plan shall be
exercised by the Committee. Except as otherwise provided in the
Articles of Incorporation or Bylaws of the Company, any action of
the Committee with respect to the administration of the Plan shall
be taken by a majority vote at a meeting at which a quorum is duly
constituted or unanimous written consent of the Committee’s
members.
Section
4. Shares
Reserved for Issuance Under the Plan.
(a) Subject to Section
5 hereof, the number of shares of Common Stock that are reserved
and available for issuance pursuant to Awards granted under the
Plan shall be equal to 50,000,000 shares; provided, that, shares of Common Stock
issued under the Plan with respect to an Exempt Award shall not
count against such share limit.
(b) Shares issued under
the Plan may, in whole or in part, be authorized but unissued
Shares or Shares that shall have been or may be reacquired by the
Company in the open market, in private transactions or otherwise.
If an Award entitles the Participant to receive or purchase Shares,
the number of Shares covered by such Award or to which such Award
relates shall be counted on the date of grant of such Award against
the aggregate number of Shares available for granting Awards under
the Plan. If any Shares subject to an Award are forfeited,
cancelled, exchanged or surrendered or if an Award otherwise
terminates or expires without a distribution of Shares to the
Participant, the Shares with respect to such Award shall, to the
extent of any such forfeiture, cancellation, exchange, surrender,
termination or expiration, again be available for granting Awards
under the Plan. Notwithstanding the foregoing, Shares surrendered
or withheld as payment of either the Exercise Price of an Award
(including Shares otherwise underlying a Stock Appreciation Right
that are retained by the Company to account for the Exercise Price
of such Stock Appreciation Right) and/or withholding taxes in
respect of an Award shall no longer be available for grant under
the Plan. In addition, (i) to the extent an Award is
denominated in shares of Common Stock, but paid or settled in cash,
the number of shares of Common Stock with respect to which such
payment or settlement is made shall again be available for grants
of Awards pursuant to the Plan and (ii) shares of Common Stock
underlying Awards that can only be settled in cash shall not be
counted against the aggregate number of shares of Common Stock
available for Awards under the Plan. Upon the exercise of any Award
granted in tandem with any other Awards, such related Awards shall
be cancelled to the extent of the number of Shares as to which the
Award is exercised and, notwithstanding the foregoing, such number
of Shares shall no longer be available for grant under the
Plan.
(c) No more than
50,000,000 Shares shall be issued pursuant to the exercise of
ISOs.
Section
5. Equitable
Adjustments.
In the
event of any Change in Capitalization, an equitable substitution or
proportionate adjustment shall be made in (i) the aggregate
number and kind of securities reserved for issuance under the Plan
pursuant to Section 4, (ii) the kind, number of securities
subject to, and the Exercise Price subject to outstanding Options
and Stock Appreciation Rights granted under the Plan,
(iii) the kind, number and purchase price of Shares or other
securities or the amount of cash or amount or type of other
property subject to outstanding Restricted Stock, Restricted Stock
Units or Other Stock-Based Awards granted under the Plan; and/or
(iv) the terms and conditions of any outstanding Awards
(including, without limitation, any applicable performance targets
or criteria with respect thereto); provided, however, that any fractional
shares resulting from the adjustment shall be eliminated. Such
other equitable substitutions or adjustments shall be made as may
be determined by the Administrator, in its sole discretion. Without
limiting the generality of the foregoing, in connection with a
Change in Capitalization, the Administrator may provide, in its
sole discretion, but subject in all events to the requirements of
Section 409A of the Code, for the cancellation of any outstanding
Award granted hereunder in exchange for payment in cash or other
property having an aggregate Fair Market Value equal to the Fair
Market Value of the Shares, cash or other property covered by such
Award, reduced by the aggregate Exercise Price or purchase price
thereof, if any; provided, however, that if the Exercise
Price or purchase price of any outstanding Award is equal to or
greater than the Fair Market Value of the shares of Common Stock,
cash or other property covered by such Award, the Administrator may
cancel such Award without the payment of any consideration to the
Participant. Further, without limiting the generality of the
foregoing, with respect to Awards subject to foreign laws,
adjustments made hereunder shall be made in compliance with
applicable requirements. Except to the extent determined by the
Administrator, any adjustments to ISOs under this Section 5 shall
be made only to the extent not constituting a
“modification” within the meaning of
Section 424(h)(3) of the Code. The Administrator’s
determinations pursuant to this Section 5 shall be final, binding
and conclusive.
Section
6. Eligibility.
The
Participants in the Plan shall be selected from time to time by the
Administrator, in its sole discretion, from those individuals that
qualify as Eligible Recipients.
Section
7. Options.
(a) General. Options granted under
the Plan shall be designated as Nonqualified Stock Options or ISOs.
Each Participant who is granted an Option shall enter into an Award
Agreement with the Company, containing such terms and conditions as
the Administrator shall determine, in its sole discretion,
including, among other things, the Exercise Price of the Option,
the term of the Option and provisions regarding exercisability of
the Option, and whether the Option is intended to be an ISO or a
Nonqualified Stock Option (and in the event the Award Agreement has
no such designation, the Option shall be a Nonqualified Stock
Option). The provisions of each Option need not be the same with
respect to each Participant. More than one Option may be granted to
the same Participant and be outstanding concurrently hereunder.
Options granted under the Plan shall be subject to the terms and
conditions set forth in this Section 7 and shall contain such
additional terms and conditions, not inconsistent with the terms of
the Plan, as the Administrator shall deem desirable and set forth
in the applicable Award Agreement.
(b) Exercise Price. The Exercise
Price of Shares purchasable under an Option shall be determined by
the Administrator in its sole discretion at the time of grant, but
in no event shall the exercise price of an Option be less than one
hundred percent (100%) of the Fair Market Value of a share of
Common Stock on the date of grant.
(c) Option Term. The maximum term
of each Option shall be fixed by the Administrator, but no Option
shall be exercisable more than ten (10) years after the date such
Option is granted. Each Option’s term is subject to earlier
expiration pursuant to the applicable provisions in the Plan and
the Award Agreement. Notwithstanding the foregoing, subject to
Section 4(d) of the Plan, the Administrator shall have the
authority to accelerate the exercisability of any outstanding
Option at such time and under such circumstances as the
Administrator, in its sole discretion, deems
appropriate.
(d) Exercisability. Each Option
shall be exercisable at such time or times and subject to such
terms and conditions, including the attainment of performance
goals, as shall be determined by the Administrator in the
applicable Award Agreement. The Administrator may also provide that
any Option shall be exercisable only in installments, and the
Administrator may waive such installment exercise provisions at any
time, in whole or in part, based on such factors as the
Administrator may determine in its sole discretion.
(e) Method of Exercise. Options may
be exercised in whole or in part by giving written notice of
exercise to the Company specifying the number of whole Shares to be
purchased, accompanied by payment in full of the aggregate Exercise
Price of the Shares so purchased in cash or its equivalent, as
determined by the Administrator. As determined by the
Administrator, in its sole discretion, with respect to any Option
or category of Options, payment in whole or in part may also be
made (i) by means of consideration received under any cashless
exercise procedure approved by the Administrator (including the
withholding of Shares otherwise issuable upon exercise),
(ii) in the form of unrestricted Shares already owned by the
Participant which have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the Shares as to which
such Option shall be exercised, (iii) any other form of
consideration approved by the Administrator and permitted by
Applicable Laws or (iv) any combination of the
foregoing.
(f) ISOs. The terms and conditions
of ISOs granted hereunder shall be subject to the provisions of
Section 422 of the Code and the terms, conditions, limitations and
administrative procedures established by the Administrator from
time to time in accordance with the Plan. At the discretion of the
Administrator, ISOs may be granted only to an employee of the
Company, its “parent corporation” (as such term is
defined in Section 424(e) of the Code) or a Subsidiary of the
Company.
(1) ISO Grants to 10% Stockholders.
Notwithstanding anything to the contrary in the Plan, if an ISO is
granted to a Participant who owns shares representing more than ten
percent (10%) of the voting power of all classes of shares of the
Company, its “parent corporation” (as such term is
defined in Section 424(e) of the Code) or a Subsidiary of the
Company, the term of the ISO shall not exceed five (5) years from
the time of grant of such ISO and the Exercise Price shall be at
least one hundred and ten percent (110%) of the Fair Market Value
of the Shares on the date of grant.
(2) $100,000 Per Year Limitation For ISOs.
To the extent the aggregate Fair Market Value (determined on the
date of grant) of the Shares for which ISOs are exercisable for the
first time by any Participant during any calendar year (under all
plans of the Company) exceeds $100,000, such excess ISOs shall be
treated as Nonqualified Stock Options.
(3) Disqualifying Dispositions. Each
Participant awarded an ISO under the Plan shall notify the Company
in writing immediately after the date the Participant makes a
“disqualifying disposition” of any Share acquired
pursuant to the exercise of such ISO. A “disqualifying
disposition” is any disposition (including any sale) of such
Shares before the later of (i) two years after the date of
grant of the ISO and (ii) one year after the date the
Participant acquired the Shares by exercising the ISO. The Company
may, if determined by the Administrator and in accordance with
procedures established by it, retain possession of any Shares
acquired pursuant to the exercise of an ISO as agent for the
applicable Participant until the end of the period described in the
preceding sentence, subject to complying with any instructions from
such Participant as to the sale of such Shares.
(g) Rights as Stockholder. A
Participant shall have no rights to dividends, dividend equivalents
or distributions or any other rights of a stockholder with respect
to the Shares subject to an Option until the Participant has given
written notice of the exercise thereof, and has paid in full for
such Shares and has satisfied the requirements of Section 15
hereof.
(h) Termination of Employment or
Service. Treatment of an Option upon termination of
employment of a Participant shall be provided for by the
Administrator in the Award Agreement.
(i) Other Change in Employment or Service
Status. An Option shall be affected, both with regard to
vesting schedule and termination, by leaves of absence, including
unpaid and un-protected leaves of absence, changes from full-time
to part-time employment, partial Disability or other changes in the
employment status or service status of a Participant, in the
discretion of the Administrator.
Section
8. Stock
Appreciation Rights.
(a) General. Stock Appreciation
Rights may be granted either alone (“Free Standing Rights”) or
in conjunction with all or part of any Option granted under the
Plan (“Related
Rights”). Related Rights may be granted either at or
after the time of the grant of such Option. The Administrator shall
determine the Eligible Recipients to whom, and the time or times at
which, grants of Stock Appreciation Rights shall be made. Each
Participant who is granted a Stock Appreciation Right shall enter
into an Award Agreement with the Company, containing such terms and
conditions as the Administrator shall determine, in its sole
discretion, including, among other things, the number of Shares to
be awarded, the Exercise Price per Share, and all other conditions
of Stock Appreciation Rights. Notwithstanding the foregoing, no
Related Right may be granted for more Shares than are subject to
the Option to which it relates. The provisions of Stock
Appreciation Rights need not be the same with respect to each
Participant. Stock Appreciation Rights granted under the Plan shall
be subject to the following terms and conditions set forth in this
Section 8 and shall contain such additional terms and conditions,
not inconsistent with the terms of the Plan, as the Administrator
shall deem desirable, as set forth in the applicable Award
Agreement.
(b) Awards; Rights as Stockholder.
A Participant shall have no rights to dividends or any other rights
of a stockholder with respect to the shares of Common Stock, if
any, subject to a Stock Appreciation Right until the Participant
has given written notice of the exercise thereof and has satisfied
the requirements of Section 15 hereof.
(c) Exercise Price. The Exercise
Price of Shares purchasable under a Stock Appreciation Right shall
be determined by the Administrator in its sole discretion at the
time of grant, but in no event shall the exercise price of a Stock
Appreciation Right be less than one hundred percent (100%) of the
Fair Market Value of a share of Common Stock on the date of
grant.
(d) Exercisability.
(1) Stock Appreciation
Rights that are Free Standing Rights shall be exercisable at such
time or times and subject to such terms and conditions as shall be
determined by the Administrator in the applicable Award
Agreement.
(2) Stock Appreciation
Rights that are Related Rights shall be exercisable only at such
time or times and to the extent that the Options to which they
relate shall be exercisable in accordance with the provisions of
Section 7 hereof and this Section 8 of the Plan.
(e) Payment Upon
Exercise.
(1) Upon the exercise
of a Free Standing Right, the Participant shall be entitled to
receive up to, but not more than, that number of Shares equal in
value to the excess of the Fair Market Value as of the date of
exercise over the Exercise Price per share specified in the Free
Standing Right multiplied by the number of Shares in respect of
which the Free Standing Right is being exercised.
(2) A Related Right may
be exercised by a Participant by surrendering the applicable
portion of the related Option. Upon such exercise and surrender,
the Participant shall be entitled to receive up to, but not more
than, that number of Shares equal in value to the excess of the
Fair Market Value as of the date of exercise over the Exercise
Price specified in the related Option multiplied by the number of
Shares in respect of which the Related Right is being exercised.
Options which have been so surrendered, in whole or in part, shall
no longer be exercisable to the extent the Related Rights have been
so exercised.
(3) Notwithstanding the
foregoing, the Administrator may determine to settle the exercise
of a Stock Appreciation Right in cash (or in any combination of
Shares and cash).
(f) Termination of Employment or
Service. Treatment of a Stock Appreciation Right upon
termination of employment of a Participant shall be provided for by
the Administrator in the Award Agreement.
(g) Term.
(1) The term of each
Free Standing Right shall be fixed by the Administrator, but no
Free Standing Right shall be exercisable more than ten (10) years
after the date such right is granted.
(2) The term of each
Related Right shall be the term of the Option to which it relates,
but no Related Right shall be exercisable more than ten (10) years
after the date such right is granted.
(h) Other Change in Employment or Service
Status. Stock Appreciation Rights shall be affected, both
with regard to vesting schedule and termination, by leaves of
absence, including unpaid and un-protected leaves of absence,
changes from full-time to part-time employment, partial Disability
or other changes in the employment or service status of a
Participant, in the discretion of the Administrator.
Section
9. Restricted
Stock and Restricted Stock Units.
(a) General. Restricted Stock or
Restricted Stock Units may be issued under the Plan. The
Administrator shall determine the Eligible Recipients to whom, and
the time or times at which, Restricted Stock or Restricted Stock
Units shall be made. Each Participant who is granted Restricted
Stock or Restricted Stock Units shall enter into an Award Agreement
with the Company, containing such terms and conditions as the
Administrator shall determine, in its sole discretion, including,
among other things, the number of Shares to be awarded; the price,
if any, to be paid by the Participant for the acquisition of
Restricted Stock or Restricted Stock Units; the period of time
restrictions, performance goals or other conditions that apply to
Transferability, delivery or vesting of such Awards (the
“Restricted
Period”); and all other conditions applicable to the
Restricted Stock and Restricted Stock Units. If the restrictions,
performance goals or conditions established by the Administrator
are not attained, a Participant shall forfeit his or her Restricted
Stock or Restricted Stock Units, in accordance with the terms of
the grant. The provisions of the Restricted Stock or Restricted
Stock Units need not be the same with respect to each
Participant.
(b) Awards and Certificates. Except
as otherwise provided below in Section 9(c), (i) each
Participant who is granted an Award of Restricted Stock may, in the
Company’s sole discretion, be issued a share certificate in
respect of such Restricted Stock; and (ii) any such
certificate so issued shall be registered in the name of the
Participant, and shall bear an appropriate legend referring to the
terms, conditions and restrictions applicable to any such Award.
The Company may require that the share certificates, if any,
evidencing Restricted Stock granted hereunder be held in the
custody of the Company until the restrictions thereon shall have
lapsed, and that, as a condition of any Award of Restricted Stock,
the Participant shall have delivered a share transfer form,
endorsed in blank, relating to the Shares covered by such Award.
Certificates for shares of unrestricted Common Stock may, in the
Company’s sole discretion, be delivered to the Participant
only after the Restricted Period has expired without forfeiture in
such Restricted Stock Award. With respect to Restricted Stock Units
to be settled in Shares, at the expiration of the Restricted
Period, share certificates in respect of the shares of Common Stock
underlying such Restricted Stock Units may, in the Company’s
sole discretion, be delivered to the Participant, or his legal
representative, in a number equal to the number of shares of Common
Stock underlying the Restricted Stock Units Award. Notwithstanding
anything in the Plan to the contrary, any Restricted Stock or
Restricted Stock Units to be settled in Shares (at the expiration
of the Restricted Period, and whether before or after any vesting
conditions have been satisfied) may, in the Company’s sole
discretion, be issued in uncertificated form. Further,
notwithstanding anything in the Plan to the contrary, with respect
to Restricted Stock Units, at the expiration of the Restricted
Period, Shares, or cash, as applicable, shall promptly be issued
(either in certificated or uncertificated form) to the Participant,
unless otherwise deferred in accordance with procedures established
by the Company in accordance with Section 409A of the Code, and
such issuance or payment shall in any event be made within such
period as is required to avoid the imposition of a tax under
Section 409A of the Code.
(c) Restrictions and Conditions.
The Restricted Stock or Restricted Stock Units granted pursuant to
this Section 9 shall be subject to the following restrictions and
conditions and any additional restrictions or conditions as
determined by the Administrator at the time of grant or, subject to
Section 409A of the Code where applicable, thereafter:
(1) The Administrator
may, in its sole discretion, provide for the lapse of restrictions
in installments and may accelerate or waive such restrictions in
whole or in part based on such factors and such circumstances as
the Administrator may determine, in its sole discretion, including,
but not limited to, the attainment of certain performance goals,
the Participant’s termination of employment or service with
the Company or any Affiliate thereof, or the Participant’s
death or Disability. Notwithstanding the foregoing, upon a Change
in Control, the outstanding Awards shall be subject to Section 11
hereof.
(2) Except as provided
in the applicable Award Agreement, the Participant shall generally
have the rights of a stockholder of the Company with respect to
Restricted Stock during the Restricted Period; provided, however, that dividends
declared during the Restricted Period with respect to an Award,
shall only become payable if (and to the extent) the underlying
Restricted Stock vests. Except as provided in the applicable Award
Agreement, the Participant shall generally not have the rights of a
stockholder with respect to Shares subject to Restricted Stock
Units during the Restricted Period; provided, however, that, subject to
Section 409A of the Code, an amount equal to dividends declared
during the Restricted Period with respect to the number of Shares
covered by Restricted Stock Units shall, unless otherwise set forth
in an Award Agreement, be paid to the Participant at the time (and
to the extent) Shares in respect of the related Restricted Stock
Units are delivered to the Participant. Certificates for Shares of
unrestricted Common Stock may, in the Company’s sole
discretion, be delivered to the Participant only after the
Restricted Period has expired without forfeiture in respect of such
Restricted Stock or Restricted Stock Units, except as the
Administrator, in its sole discretion, shall otherwise
determine.
(3) The rights of
Participants granted Restricted Stock or Restricted Stock Units
upon termination of employment or service as a director or
independent contractor to the Company or to any Affiliate thereof
terminates for any reason during the Restricted Period shall be set
forth in the Award Agreement.
(d) Form of Settlement. The
Administrator reserves the right in its sole discretion to provide
(either at or after the grant thereof) that any Restricted Stock
Unit represents the right to receive the amount of cash per unit
that is determined by the Administrator in connection with the
Award.
Section
10. Other
Stock-Based Awards.
Other
Stock-Based Awards may be issued under the Plan. Subject to the
provisions of the Plan, the Administrator shall have sole and
complete authority to determine the individuals to whom and the
time or times at which such Other Stock-Based Awards shall be
granted. Each Participant who is granted an Other Stock-Based Award
shall enter into an Award Agreement with the Company, containing
such terms and conditions as the Administrator shall determine, in
its sole discretion, including, among other things, the number of
shares of Common Stock to be granted pursuant to such Other
Stock-Based Awards, or the manner in which such Other Stock-Based
Awards shall be settled (e.g., in shares of Common Stock, cash or
other property), or the conditions to the vesting and/or payment or
settlement of such Other Stock-Based Awards (which may include, but
not be limited to, achievement of performance criteria) and all
other terms and conditions of such Other Stock-Based Awards. In the
event that the Administrator grants a bonus in the form of Shares,
the Shares constituting such bonus shall, as determined by the
Administrator, be evidenced in uncertificated form or by a book
entry record or a certificate issued in the name of the Participant
to whom such grant was made and delivered to such Participant as
soon as practicable after the date on which such bonus is payable.
Notwithstanding anything set forth in the Plan to the contrary, any
dividend or dividend equivalent Award issued hereunder shall be
subject to the same restrictions, conditions and risks of
forfeiture as apply to the underlying Award.
Section
11. Change
in Control.
Unless
otherwise determined by the Administrator and evidenced in an Award
Agreement, in the event that (a) a Change in Control occurs,
and (b) the Participant is employed by the Company or any of its
Affiliates immediately prior to the consummation of such Change in
Control then upon the consummation of such Change in Control, the
Administrator, in its sole and absolute discretion,
may:
(a) provide that any
unvested or unexercisable portion of any Award carrying a right to
exercise become fully vested and exercisable; and
(b) cause the
restrictions, deferral limitations, payment conditions and
forfeiture conditions applicable to an Award granted under the Plan
to lapse and such Awards shall be deemed fully vested and any
performance conditions imposed with respect to such Awards shall be
deemed to be fully achieved at target performance
levels.
If the
Administrator determines in its discretion pursuant to Section
3(b)(4) hereof to accelerate the vesting of Options and/or Share
Appreciation Rights in connection with a Change in Control, the
Administrator shall also have discretion in connection with such
action to provide that all Options and/or Stock Appreciation Rights
outstanding immediately prior to such Change in Control shall
expire on the effective date of such Change in
Control.
Section
12. Amendment
and Termination.
The
Board may amend, alter or terminate the Plan at any time, but no
amendment, alteration or termination shall be made that would
impair the rights of a Participant under any Award theretofore
granted without such Participant’s consent. The Board shall
obtain approval of the Company’s stockholders for any
amendment that would require such approval in order to satisfy the
requirements of any rules of the stock exchange on which the Common
Stock is traded or other Applicable Law. Subject to Section 3(c),
the Administrator may amend the terms of any Award theretofore
granted, prospectively or retroactively, but, subject to Section 5
of the Plan and the immediately preceding sentence, no such
amendment shall materially impair the rights of any Participant
without his or her consent.
Section
13. Unfunded
Status of Plan.
The
Plan is intended to constitute an “unfunded” plan for
incentive compensation. With respect to any payments not yet made
to a Participant by the Company, nothing contained herein shall
give any such Participant any rights that are greater than those of
a general creditor of the Company.
Section
14. Withholding
Taxes.
Each
Participant shall, no later than the date as of which the value of
an Award first becomes includible in the gross income of such
Participant for purposes of applicable taxes, pay to the Company,
or make arrangements satisfactory to the Administrator regarding
payment of an amount up to the maximum statutory tax rates in the
Participant’s applicable jurisdiction with respect to the
Award, as determined by the Company. The obligations of the Company
under the Plan shall be conditional on the making of such payments
or arrangements, and the Company shall, to the extent permitted by
Applicable Laws, have the right to deduct any such taxes from any
payment of any kind otherwise due to such Participant. Whenever
cash is to be paid pursuant to an Award, the Company shall have the
right to deduct therefrom an amount sufficient to satisfy any
applicable withholding tax requirements related thereto. Whenever
Shares or property other than cash are to be delivered pursuant to
an Award, the Company shall have the right to require the
Participant to remit to the Company in cash an amount sufficient to
satisfy any related taxes to be withheld and applied to the tax
obligations; provided, that, with the approval of the
Administrator, a Participant may satisfy the foregoing requirement
by either (i) electing to have the Company withhold from
delivery of Shares or other property, as applicable, or
(ii) delivering already owned unrestricted shares of Common
Stock, in each case, having a value not exceeding the applicable
taxes to be withheld and applied to the tax obligations. Such
already owned and unrestricted shares of Common Stock shall be
valued at their Fair Market Value on the date on which the amount
of tax to be withheld is determined and any fractional share
amounts resulting therefrom shall be settled in cash. Such an
election may be made with respect to all or any portion of the
Shares to be delivered pursuant to an award. The Company may also
use any other method of obtaining the necessary payment or
proceeds, as permitted by Applicable Laws, to satisfy its
withholding obligation with respect to any Award.
Section
15. Transfer
of Awards.
Until
such time as the Awards are fully vested and/or exercisable in
accordance with the Plan or an Award Agreement, no purported sale,
assignment, mortgage, hypothecation, transfer, charge, pledge,
encumbrance, gift, transfer in trust (voting or other) or other
disposition of, or creation of a security interest in or lien on,
any Award or any agreement or commitment to do any of the foregoing
(each, a “Transfer”) by any holder
thereof in violation of the provisions of the Plan or an Award
Agreement will be valid, except with the prior written consent of
the Administrator, which consent may be granted or withheld in the
sole discretion of the Administrator. Any purported Transfer of an
Award or any economic benefit or interest therein in violation of
the Plan or an Award Agreement shall be null and void ab initio and shall not create any
obligation or liability of the Company, and any Person purportedly
acquiring any Award or any economic benefit or interest therein
transferred in violation of the Plan or an Award Agreement shall
not be entitled to be recognized as a holder of such Shares or
other property underlying such Award. Unless otherwise determined
by the Administrator in accordance with the provisions of the
immediately preceding sentence, an Option or a Stock Appreciation
Right may be exercised, during the lifetime of the Participant,
only by the Participant or, during any period during which the
Participant is under a legal Disability, by the Participant’s
guardian or legal representative.
Section
16. Continued
Employment or Service.
Neither
the adoption of the Plan nor the grant of an Award shall confer
upon any Eligible Recipient any right to continued employment or
service with the Company or any Affiliate thereof, as the case may
be, nor shall it interfere in any way with the right of the Company
or any Affiliate thereof to terminate the employment or service of
any of its Eligible Recipients at any time.
Section
17. Effective
Date.
On the
Restatement Date, the Board approved the amendment and restatement
of the prior Plan into this Plan, subject to and conditioned upon
obtaining company stockholder approval. The Prior Plan will remain
in effect for issuing new Awards until the Restatement Date, and
the Prior Plan will continue to govern Awards that were issued
under the Prior Plan before the Restatement Date.
Section
18. Electronic
Signature.
Participant’s
electronic signature of an Award Agreement shall have the same
validity and effect as a signature affixed by hand.
Section
19. Term
of Plan.
No
Award shall be granted pursuant to the Plan on or after the tenth
anniversary of the Effective Date, but Awards theretofore granted
may extend beyond that date.
Section
20. Securities
Matters and Regulations.
(a) Notwithstanding
anything herein to the contrary, the obligation of the Company to
sell or deliver Shares with respect to any Award granted under the
Plan shall be subject to all Applicable Laws, rules and
regulations, including all applicable federal and state securities
laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the
Administrator. The Administrator may require, as a condition of the
issuance and delivery of certificates evidencing shares of Common
Stock pursuant to the terms hereof, that the recipient of such
shares make such agreements and representations, and that such
certificates bear such legends, as the Administrator, in its sole
discretion, deems necessary or advisable.
(b) Each Award is
subject to the requirement that, if at any time the Administrator
determines that the listing, registration or qualification of
Shares is required by any securities exchange or under any state or
federal law, or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in
connection with, the grant of an Award or the issuance of Shares,
no such Award shall be granted or payment made or Shares issued, in
whole or in part, unless listing, registration, qualification,
consent or approval has been effected or obtained free of any
conditions not acceptable to the Administrator.
(c) In the event that
the disposition of Shares acquired pursuant to the Plan is not
covered by a then current registration statement under the
Securities Act and is not otherwise exempt from such registration,
such Shares shall be restricted against transfer to the extent
required by the Securities Act or regulations thereunder, and the
Administrator may require a Participant receiving Common Stock
pursuant to the Plan, as a condition precedent to receipt of such
Common Stock, to represent to the Company in writing that the
Common Stock acquired by such Participant is acquired for
investment only and not with a view to distribution.
Section
21. Section
409A of the Code.
The
Plan as well as payments and benefits under the Plan are intended
to be exempt from, or to the extent subject thereto, to comply with
Section 409A of the Code, and, accordingly, to the maximum
extent permitted, the Plan shall be interpreted in accordance
therewith. Notwithstanding anything contained herein to the
contrary, to the extent required in order to avoid accelerated
taxation and/or tax penalties under Section 409A of the Code,
the Participant shall not be considered to have terminated
employment or service with the Company for purposes of the Plan and
no payment shall be due to the Participant under the Plan or any
Award until the Participant would be considered to have incurred a
“separation from service” from the Company and its
Affiliates within the meaning of Section 409A of the Code. Any
payments described in the Plan that are due within the “short
term deferral period” as defined in Section 409A of the
Code shall not be treated as deferred compensation unless
Applicable Law requires otherwise. Notwithstanding anything to the
contrary in the Plan, to the extent that any Awards (or any other
amounts payable under any plan, program or arrangement of the
Company or any of its Affiliates) are payable upon a separation
from service and such payment would result in the imposition of any
individual tax and penalty interest charges imposed under
Section 409A of the Code, the settlement and payment of such
awards (or other amounts) shall instead be made on the first
business day after the date that is six (6) months following
such separation from service (or death, if earlier). Each amount to
be paid or benefit to be provided under this Plan shall be
construed as a separate identified payment for purposes of
Section 409A of the Code. The Company makes no representation
that any or all of the payments or benefits described in this Plan
will 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 any such payment. The Participant shall be solely
responsible for the payment of any taxes and penalties incurred
under Section 409A.
Section
22. Notification
of Election Under Section 83(b) of the Code.
If any
Participant shall, in connection with the acquisition of shares of
Common Stock under the Plan, make the election permitted under
Section 83(b) of the Code, such Participant shall notify the
Company of such election within ten (10) days after filing
notice of the election with the Internal Revenue
Service.
Section
23. No
Fractional Shares.
No
fractional shares of Common Stock shall be issued or delivered
pursuant to the Plan. The Administrator shall determine whether
cash, other Awards, or other property shall be issued or paid in
lieu of such fractional shares or whether such fractional shares or
any rights thereto shall be forfeited or otherwise
eliminated.
Section
24. Beneficiary.
A
Participant may file with the Administrator a written designation
of a beneficiary on such form as may be prescribed by the
Administrator and may, from time to time, amend or revoke such
designation. If no designated beneficiary survives the Participant,
the executor or administrator of the Participant’s estate
shall be deemed to be the Participant’s
beneficiary.
Section
25. Paperless
Administration.
In the
event that the Company establishes, for itself or using the
services of a third party, an automated system for the
documentation, granting or exercise of Awards, such as a system
using an internet website or interactive voice response, then the
paperless documentation, granting or exercise of Awards by a
Participant may be permitted through the use of such an automated
system.
Section
26. Severability.
If any
provision of the Plan is held to be invalid or unenforceable, the
other provisions of the Plan shall not be affected but shall be
applied as if the invalid or unenforceable provision had not been
included in the Plan.
Section
27. Clawback.
(a) If the Company is
required to prepare a financial restatement due to the material
non-compliance of the Company with any financial reporting
requirement, then the Committee may require any Section 16
Officer to repay or forfeit to the Company, and each
Section 16 Officer agrees to so repay or forfeit, that part of
the Incentive Compensation received by that Section 16 Officer
during the three-year period preceding the publication of the
restated financial statement that the Committee determines was in
excess of the amount that such Section 16 Officer would have
received had such Incentive Compensation been calculated based on
the financial results reported in the restated financial statement.
The Committee may take into account any factors it deems reasonable
in determining whether to seek recoupment of previously paid
Incentive Compensation and how much Incentive Compensation to
recoup from each Section 16 Officer (which need not be the
same amount or proportion for each Section 16 Officer),
including any determination by the Committee that a Section 16
Officer engaged in fraud, willful misconduct or committed grossly
negligent acts or omissions which materially contributed to the
events that led to the financial restatement. The amount and form
of the Incentive Compensation to be recouped shall be determined by
the Committee in its sole and absolute discretion, and recoupment
of Incentive Compensation may be made, in the Committee’s
sole and absolute discretion, through the cancellation of vested or
unvested Awards, cash repayment or both.
(b) Notwithstanding any
other provisions in this Plan, any Award which is subject to
recovery under any Applicable Laws, government regulation or stock
exchange listing requirement, will be subject to such deductions
and clawback as may be required to be made pursuant to such
Applicable Law, government regulation or stock exchange listing
requirement (or any policy adopted by the Company pursuant to any
such law, government regulation or stock exchange listing
requirement).
Section
28. Governing
Law.
The
Plan shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to principles
of conflicts of law of such state.
Section
29. Indemnification.
To the
extent allowable pursuant to applicable law, each member of the
Board and the Administrator and any officer or other employee to
whom authority to administer any component of the Plan is
designated shall be indemnified and held harmless by the Company
from any loss, cost, liability, or expense that may be imposed upon
or reasonably incurred by such member in connection with or
resulting from any claim, action, suit, or proceeding to which he
or she may be a party or in which he or she may be a party or in
which he or she may be involved by reason of any action or failure
to act pursuant to the Plan and against and from any and all
amounts paid by him or her in satisfaction of judgment in such
action, suit, or proceeding against him or her; provided, however,
that he or she gives the Company an opportunity, at its own
expense, to handle and defend the same before he or she undertakes
to handle and defend it on his or her own behalf. The foregoing
right of indemnification shall not be exclusive of any other rights
of indemnification to which such individuals may be entitled
pursuant to the Company’s Articles of Incorporation or
Bylaws, as a matter of law, or otherwise, or any power that the
Company may have to indemnify them or hold them
harmless.
Section
30. Titles
and Headings, References to Sections of the Code or Exchange
Act.
The
titles and headings of the sections in the Plan are for convenience
of reference only and, in the event of any conflict, the text of
the Plan, rather than such titles or headings, shall control.
References to sections of the Code or the Exchange Act shall
include any amendment or successor thereto.
Section
31. Successors.
The
obligations of the Company under the Plan shall be binding upon any
successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to substantially
all of the assets and business of the Company.
Section
32. Relationship
to other Benefits.
No
payment pursuant to the Plan shall be taken into account in
determining any benefits under any pension, retirement, savings,
profit sharing, group insurance, welfare, or other benefit plan of
the Company or any Affiliate except to the extent otherwise
expressly provided in writing in such other plan or an agreement
thereunder.
Adopted
and Approved:
January
11, 2021
Amended
and Restated: May 7,
2021
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