Blueprint
Exhibit 6
iCONSUMER
CORP.
2016
EQUITY INCENTIVE PLAN
ARTICLE
1
Establishment and
Purposes of the Plan.
iConsumer Corp., a
Delaware corporation (the “Company”), hereby
establishes this equity incentive plan to be known as the iConsumer
Corp. 2016 Equity Incentive Plan (the “Plan”). The Plan
was duly adopted by the Board of Directors of the Company (the
“Board”) on December 31, 2016 (the
“Effective Date”).
1.1
Purposes of the Plan.
The purposes of this Plan are:
(a)
to attract and
retain the best available personnel for positions of substantial
responsibility;
(b)
to provide
additional incentive to Employees, Directors and Consultants;
and
(c)
to promote the
success of the Company’s business.
ARTICLE
2
Definitions
2.1
As used herein, the
following terms shall have the meanings set forth below, unless
otherwise clearly required by the context:
(a)
“Adverse Conduct” means,
for purposes of Article 13, any conduct that violates the
non-disclosure, non-compete or employment agreement between the
Awardee and the Company, as appliacable for any individual Awardee,
the terms of which are hereby incorporated by reference. In lieu of
any such agreement, Adverse Conduct shall mean any of the
following:
(1)
In the case of an
Awardee who is an Employee, the Awardee’s rendering of
services for any organization or engaging directly or indirectly in
any business which is or becomes competitive with the Company, or
which organization or business, or the rendering of services to
such organization or business, is or becomes otherwise prejudicial
to or in conflict with the interests of the Company in violation of
any noncompetition or other similar agreement between the Company
and the Employee;
(2)
An Awardee’s
unauthorized disclosure to anyone outside the Company, or the use
in other than the Company’s business, of any confidential
information or material relating to the business of the Company,
acquired by the Awardee either during or after employment with the
Company or either during or after having provided services to the
Company as a Consultant;
(3)
An Awardee’s
failure or refusal to disclose promptly and to assign to the
Company, all right, title and interest in any invention or idea,
patentable or not, made or conceived by the Awardee during
employment by the Company, relating in any manner to the actual or
anticipated business, research or development work of the Company
or the failure or refusal to do anything reasonably necessary to
enable the Company to secure a patent where appropriate in the
United States and in other countries where the Awardee has a legal
obligation to so disclose, assign or take such
actions;
(4)
Activity by the
Awardee that results in termination of the Awardee’s
employment or services for the Company for Cause;
(5)
An Awardee’s
violation of any written Company rules, policies, procedures or
guidelines regarding business conduct, where such rules, policies,
procedures or guidelines have been distributed or made available to
the Awardee; or
(6)
Any attempt
directly or indirectly to induce any employee of the Company to be
employed or perform services elsewhere or any attempt directly or
indirectly to solicit the trade or business of any current or
prospective customer, supplier or partner of the Company in
violation of any noncompetition or other similar agreement between
the Company and the Employee;
(b)
“Applicable Laws” means
the requirements relating to the administration of stock incentive
plans under U.S. state corporate laws, rules and regulations, U.S.
federal and state securities laws, rules and regulations, the Code,
any stock exchange or quotation system on which the Shares are
listed or quoted and the applicable laws of any foreign country or
jurisdiction where Awards are, or will be, granted under the
Plan.
(c)
“Award” means an Option,
Stock Appreciation Right, Restricted Stock, Restricted Stock Unit,
Performance Award or Bonus Shares granted under the
Plan.
(d)
“Award Agreement” means a
written or electronic agreement between an Awardee and the Company
evidencing the terms and conditions of an Award granted pursuant to
the Plan. An Award Agreement is subject to the terms and conditions
of the Plan.
(e)
“Awardee” means the
Service Provider-recipient of an outstanding Award granted under
the Plan.
(f)
“Board” means the Board of
Directors of the Company.
(g)
“Bonus Shares” means
Shares that are granted to a Service Provider pursuant to Article
11 of the Plan without cost and without restrictions in recognition
of past performance (whether determined by reference to another
employee benefit plan of the Company or otherwise) or as an
incentive to become a Service Provider of the Company or a
Subsidiary.
(h)
“Cause” means, unless
otherwise defined for a particular Awardee in an Award Agreement or
in an employment or consulting agreement between the Company and
such Awardee which addresses the effect of a termination for Cause
(as therein defined) on benefits hereunder:
(1)
an Awardee’s
commission of a felony or other crime involving fraud, dishonesty
or moral turpitude;
(2)
an Awardee’s
willful or reckless misconduct in the performance of the
Awardee’s duties;
(3)
an Awardee’s
habitual neglect of duties; provided, however that the Awardee is
given at least ten (10) days prior written notice of such habitual
neglect and the opportunity to cure any curable neglect;
or
(4)
an Awardee’s
breach or violation of any agreement between the Awardee and the
Company, including but not limited to any noncompetition,
nonsolicitation, or nondisclosure undertaking, or of any Company
policy
Notwithstanding the
foregoing, for purposes of clauses (2) and (3) above, Cause shall
not include bad judgment or negligent acts not amounting to
habitual neglect of duties. An Awardee who agrees to resign his
affiliation with the Company or a Subsidiary in lieu of being
terminated for Cause may be deemed to have been terminated for
Cause for purposes of this Plan.
(i)
“Change in
Control” means the occurrence of any of the following
events:
(1)
Any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented
by the Company’s then outstanding voting
securities;
(2)
The consummation of
the sale or disposition by the Company of all or substantially all
of the Company’s assets;
(3)
A change in the
composition of the Board occurring within a two (2)-year period, as
a result of which fewer than a majority of the directors are
Incumbent Directors. “Incumbent Directors” means
directors who either (A) are Directors as of the effective date of
the Plan, or (B) are elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but
will not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to
the election of directors to the Company); or
(4)
The consummation of
a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity or its parent) at least fifty percent (50%)
of the total voting power represented by the voting securities of
the Company or such surviving entity or its parent outstanding
immediately after such merger or consolidation.
(j)
“Code” means the Internal
Revenue Code of 1986, as amended, and any regulations and rulings
thereunder.
(k)
“Committee” means the
Board or the committee of the Board designated by the Board to
administer this Plan in accordance with Article 4 of the
Plan.
(l)
“Company” means iConsumer
Corp., a Delaware corporation.
(m)
“Consultant” means a
person, including an advisor, engaged by the Company or a Parent or
Subsidiary to render services to such entity (other than an
Employee or Director).
(n)
“Date of Grant” means the
date on which the Committee completes the corporate action granting
an Award or such other later date following the completion of such
corporate action as is established by the Committee and set forth
in the Award Agreement. Notice of a grant shall be provided to each
Awardee within a reasonable time after the date of such
grant.
(o)
“Director” means a member
of the Board.
(p)
“Disability” or
“Disabled”
means:
(1)
as to an Incentive
Stock Option, a total and permanent disability as defined in Code
Section 22(e)(3);
(2)
as to an Award
(other than an Incentive Stock Option), that constitutes
“deferred compensation” for purposes of Code Section
409A:
(A)
The Awardee is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a
continuous period of not less than 12 months;
(B)
The Awardee is, by
reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than three
months under an accident and health plan covering employees of the
Company;
(C)
The Awardee is
determined to be totally disabled by the Social Security
Administration; or
(D)
The Awardee is
determined to be disabled under a disability insurance program
applying the definition of disability set forth in either
Subsection (A) or (C) of this definition; and
(3)
As to all other
Awards, as determined by the Committee.
(q)
“Effective Date” means
December 31, 2016.
(r)
“Employee” means any
person, including Officers and Directors, employed by the Company
or any Parent or Subsidiary of the Company. Neither service as a
Director nor payment of a director’s fee by the Company shall
be sufficient to constitute “employment” by the
Company.
(s)
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and any regulations
and rulings thereunder.
(t)
“Fair Market Value” means,
as of any date, the value of the Shares determined as
follows:
(1)
If the Shares are
listed on any established stock exchange or a national market
system, including without limitation the Nasdaq Global Market, The
Nasdaq Global Select Market or The Nasdaq Capital Market of The
Nasdaq Stock Market, its Fair Market Value shall be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system for the last market
trading day prior to the time of determination, as reported in
The Wall Street Journal or
such other source as the Committee deems reliable;
(2)
If the Shares are
regularly quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a Share shall be
the mean between the high bid and low asked prices for the Share on
the last market trading day prior to the day of determination, as
reported in The Wall Street
Journal or such other source as the Committee deems
reliable; or
(3)
In the absence of
an established market for the Shares, the Fair Market Value shall
be determined in good faith by the Committee by the reasonable
application of a reasonable valuation method based on the facts and
circumstances as of the valuation date consistent with Treasury
Regulation 1.409A-1(b)(iv)(B).
(u)
“Incentive Stock Option”
means an Option intended to qualify as an incentive stock option
within the meaning of Code Section 422.
(v)
“Modification” means any
change in the terms of an Option or a Stock Appreciation Right (or
change in the terms of the Plan or applicable Option or Stock
Appreciation Right agreement) that may provide the holder of the
Option or Stock Appreciation Right with a direct or indirect
reduction in the exercise price of the Option or Stock Appreciation
Right, or an additional deferral feature, or an extension or
renewal of the Option or Stock Appreciation Right, regardless of
whether the holder in fact benefits from the change in
terms.
(1)
An extension of an
Option or Stock Appreciation Right refers to the granting to the
holder of an additional period of time within which to exercise the
Option or Stock Appreciation Right.
(2)
A renewal of an
Option or Stock Appreciation Right is the granting by the Company
of the same rights or privileges contained in the original Option
or Stock Appreciation Right on the same terms and
conditions.
(3)
Notwithstanding the
foregoing provisions of this Section 2.1(y)(3), it is not a
Modification of an Option or Stock Appreciation Right to provide an
additional period of time within which to exercise the Option or
Stock Appreciation Right if such additional period of time ends no
later than (i) the original term of the Option or Stock
Appreciation Right, or (ii) ten (10) years, and it is not a
Modification to change the terms of an Option or Stock Appreciation
Right in any of the ways or for any of the purposes specifically
described in applicable Treasury Regulations under Code Section
409A as not resulting in a modification, extension or renewal of a
stock right, or the granting of a new stock right, for purposes of
that section.
(w)
“Nonstatutory Stock
Option” means an Option not intended to qualify as an
Incentive Stock Option.
(x)
“Notice of Grant” means a
written or electronic notice evidencing certain terms and
conditions of an individual Award grant. The Notice of Grant is
part of the Award Agreement.
(y)
“Officer” means a person
who is an officer of the Company within the meaning of Section 16
of the Exchange Act.
(z)
“Option” means a stock
option granted under the Plan pursuant to Article 6 of the
Plan.
(aa)
“Option Agreement” means
an Award Agreement between the Company and an Optionee evidencing
the terms and conditions of an individual Option granted to the
Optionee pursuant to the Plan. The Option Agreement is subject to
the terms and conditions of the Plan.
(bb)
“Optioned Stock”
means the Shares subject to an Option.
(cc)
“Optionee” means the
holder of an outstanding Option granted under the
Plan.
(dd)
“Parent” means a
“parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(ee)
“Performance Award” means
an Award granted under the Plan pursuant to Article 10 of the
Plan.
(ff)
“Performance Factors”
means the performance of the Company or any Subsidiary, division,
business unit or individual using one of the following measures,
either on an operating or GAAP basis where applicable, and
including measuring the performance of any of the following
relative to a defined peer group of companies: revenue; net
revenue; revenue growth; net revenue growth; earnings (including on
a per share basis); earnings growth rate (including on a per share
basis); earnings before interest, taxes, depreciation and
amortization (“EBITDA”); total shareholder return;
profitability; return on equity; return on capital; return on
assets, cash flow, including free cash flow; cost savings; process
improvement goals; achievement of balance sheet or income statement
objective goals; product units shipped; membership acquisition and
retention goals; and capital expenditures. When establishing
Performance Factors for a Performance Period, the Committee may
exclude any or all “extraordinary items” as determined
under U.S. generally accepted accounting principles, including
without limitation, the charges or costs associated with
restructurings of the Company, discontinued operations, other
unusual or nonrecurring items, and the cumulative effects of
accounting changes.
(gg)
“Performance Period” means
the period of 12 months or longer, but not exceeding five years,
established by the Committee in connection with the grant of an
Award for which the Committee has established performance
objectives.
(hh)
“Parent” means a
“parent corporation,” whether now or hereafter
existing, as defined in Code Section 424(e).
(ii)
“Plan” means this
iConsumer Corp. 2016 Equity Incentive Plan, as amended from time to
time.
(jj)
“Restricted Stock” means
Shares granted under the Plan pursuant to Article 8 of the
Plan.
(kk)
“Restricted Stock
Agreement” means an Award Agreement between the
Company and an Awardee evidencing the terms and conditions of a
grant of Restricted Stock to the Awardee. The Restricted Stock
Agreement is subject to the terms and conditions of the
Plan.
(ll)
“Restricted Stock Unit”
means an Award granted under the Plan pursuant to Article 9 of the
Plan.
(mm)
“Rule 16b-3” means Rule
16b-3 of the Exchange Act or any successor to Rule 16b-3, as in
effect when discretion is being exercised with respect to the
Plan.
(nn)
“Securities Act” means the
Securities Act of 1933, as amended, and any regulations and rulings
thereunder.
(oo)
“Service Provider” means
an Employee, Director or Consultant.
(pp)
“Share” means a share of
Series A, Non-Voting Preferred Stock of the Company, as adjusted in
accordance with Article 12 of the Plan.
(qq)
“Stock Appreciation Right”
means a right to receive Shares or cash from the Company pursuant
to Article 7 of the Plan.
(rr)
“Subsidiary” means a
“subsidiary corporation”, whether now or hereafter
existing, as defined in Code Section 424(f).
(ss)
“Termination” means the
termination of an Awardee’s employment or service with the
Company and all Subsidiaries. An Employee’s transfer between
locations of the Company or between the Company, its Parent, any
Subsidiary, or any successor does not constitute a Termination. A
Service Provider for a Subsidiary shall, however, incur a
Termination if the Subsidiary ceases to be a Subsidiary and the
Service Provider does not immediately thereafter become a Service
Provider of the Company or another Subsidiary.
(1)
A Service Provider
who is an Employee shall not incur a Termination in the case of any
leave of absence approved by the Company, except,
that:
(2)
For purposes of
Incentive Stock Options, no leave of absence may exceed ninety (90)
days, unless reemployment upon expiration of such leave is
guaranteed by statute or contract. If reemployment upon expiration
of a leave of absence approved by the Company is not so guaranteed,
on the one hundred eighty-first (181st) day of such leave, any
Incentive Stock Option held by the Optionee shall cease to be
treated as an Incentive Stock Option and shall be treated for tax
purposes as a Nonstatutory Stock Option.
(3)
For purposes of an
Award (other than an Incentive Stock Option), that constitutes
“deferred compensation” for purposes of Code Section
409A, if reemployment upon expiration of a leave of absence
approved by the Company is not guaranteed by statute or contract,
the Awardee shall be deemed to have incurred a Termination on the
one hundred eighty-first (181st) day of such leave.
2.2
In addition,
certain terms used herein that are capitalized and set forth in
quotes shall have the definitions ascribed to them in the first
place in which they are used.
2.3
In applying the
Plan’s definitions, the masculine shall include the feminine
and the singular shall include the plural, and vice
versa.
ARTICLE
3
Type of
Awards; Shares Subject to the Plan
3.1
Types of Awards. The following
types of Awards may be granted under the Plan: Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units,
Performance Awards, and Bonus Shares. Options granted under the
Plan may be Incentive Stock Options or Nonstatutory Stock Options,
as determined by the Committee at the time of grant.
3.2
Shares Subject to the Plan.
Subject to adjustment as provided in Article 12 of the Plan, the
maximum number of Shares which may be awarded or sold under the
Plan is twenty million (20,000,000) Shares. All of the Shares that
may be issued under this Plan may be issued upon the exercise of
Options that qualify as Incentive Stock Options. The Shares may be
authorized, but unissued, or reacquired Series A Non-Voting
Preferred Stock.
(a)
If an Award covered
by one or more Shares is settled in cash or is forfeited without
the delivery of Shares, such Shares shall again become available
for future grant or sale under the Plan (unless the Plan has been
terminated).
(b)
If an Option or
Stock Appreciation Right expires or becomes unexercisable without
having been exercised in full, the unpurchased Share or Shares
which were subject thereto shall become available for future grant
or sale under the Plan (unless the Plan has terminated); provided,
however, that Shares that have actually been issued under the Plan
shall not be returned to the Plan and shall not become available
for future distribution under the Plan;
(c)
If an Optionee
tenders previously-acquired Shares in payment of the exercise price
of an Option or if Shares are withheld in payment of the Option
exercise price, the number of Shares represented thereby shall
again be available for further Awards under the Plan;
(d)
If a Stock
Appreciation Right is exercised and settled in Shares, the
difference between the total Shares exercised and the net Shares
delivered shall again be available for further awards under the
Plan; and
(e)
If an Awardee
tenders previously-acquired Shares in satisfaction of applicable
tax withholding obligations, or if any Shares covered by an Award
are not delivered to the Awardee because such Shares are withheld
to satisfy applicable tax withholding obligations, such Shares
shall again be available for further Awards under the
Plan.
3.3
Individual Award Limits. The
maximum number of Shares with respect to which Awards may be
granted in a single calendar year to an individual Awardee
(including Awards that are denominated in Shares but may be settled
by payment of an equivalent amount in cash) may not exceed two
million (2,000,000) Shares. The maximum amount of Awards
denominated in cash (including Awards that are denominated in cash
but may be settled by payment of an equivalent amount in Shares)
that may be granted in a single calendar year to an individual
Awardee may not exceed $500,000.
3.4
Substitute Awards. The
Committee may grant Awards under the Plan in substitution for stock
and stock based awards held by service providers of another
corporation in connection with a merger or consolidation of the
other corporation with the Company or a Subsidiary or the
acquisition by the Company or a Subsidiary of property or stock of
the other corporation. The Committee may direct that the substitute
Awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances. Such substitution of
any outstanding stock option or stock appreciation right must
satisfy the requirements of Treasury Regulation §1.424-1 and
Code Section 409A, as applicable. Any substitute Awards granted
under the Plan shall not count against the share limitation set
forth in Section 3.2 of the Plan.
ARTICLE
4
Administration of the Plan
(a)
Multiple Administrative Bodies.
The Board shall appoint a committee of the Board to administer the
Plan. The committee so appointed may consist of the Board
itself.
(1)
The Board may
appoint different committees to administer the Plan with respect to
different groups of Service Providers, in which case, the Board
shall specify the duties and authority of each such committee, and,
to the extent such authority has been delegated by the Board, each
such committee shall be the “Committee” for purposes of
the Plan.
(2)
The Board may
delegate to the Company’s chief executive officer all or part
of the Committee’s duties with respect to Awards, including
the granting thereof. To the extent such authority has been
delegated by the Board, the Company’s chief executive officer
shall be the “Committee” for purposes of the
Plan.
(3)
The Board may
revoke or amend the terms of a delegation at any time but such
action shall not invalidate any prior actions of the Board’s
delegate or delegates that were consistent with the terms of the
Plan.
(4)
Unless expressly
delegated, the Board has reserved to itself the authority to amend,
alter, suspend or terminate the Plan.
(b)
Rule 16b-3. To the extent that
the Committee determines it to be desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the Plan shall be
administered by a Committee of two or more “non-employee
directors” within the meaning of Rule 16-3 and the
transactions contemplated hereunder shall be structured to satisfy
the requirements for exemption under Rule 16b-3.
(c)
Exchange Requirements. To the
extent required, the Plan shall be administered by a Committee of
“independent directors” within the meaning of any
applicable stock exchange rule.
4.2
Powers of the Committee.
Subject to the provisions of the Plan and subject to the specific
duties delegated by the Board to such Committee, the Committee
shall have the authority, in its sole discretion:
(a)
to determine type
of Awards (i.e., Options, Stock Appreciation Rights, Restricted
Stock, Restricted Stock Units, Performance Awards and/or Bonus
Shares) to be granted hereunder;
(b)
to determine the
Fair Market Value;
(c)
to select the
Service Providers to whom Awards may be granted;
(d)
to determine the
number of Shares to be covered by each Award granted
hereunder;
(e)
to approve forms of
agreements for use under the Plan;
(f)
to determine the
terms and conditions, not inconsistent with the terms of the Plan,
of any Award granted hereunder. Such terms and conditions include,
but are not limited to:
(1)
in the case of an
Option or Stock Appreciation Right, the time or times when Options
may be exercised (which may be based on performance
objectives);
(2)
in the case of a
grant of Restricted Stock, the amount (if any) of the consideration
to be paid by a Service Provider for such Restricted
Stock;
(3)
any vesting
acceleration or waiver of forfeiture restrictions with respect to
Awards, and any restriction or limitation regarding any Award or
the Shares relating thereto, based in each case on such factors as
the Committee, in its sole discretion, shall
determine;
(g)
to construe and
interpret the terms of the Plan and Awards granted pursuant to the
Plan;
(h)
to prescribe, amend
and rescind rules and regulations relating to the Plan, including
rules and regulations relating to sub-plans established for the
purpose of qualifying for preferred tax treatment under foreign tax
laws;
(i)
to modify or amend
each Award (subject to Article 16 of the Plan);
(j)
to allow Optionees
to satisfy withholding tax obligations by electing to have the
Company withhold from the Shares to be issued upon exercise of an
Award that number of Shares having a Fair Market Value equal to the
amount required to be withheld. The Fair Market Value of the Shares
to be withheld shall be determined on the date that the amount of
tax to be withheld is to be determined. All elections by an
Optionee to have Shares withheld for this purpose shall be made in
such form and under such conditions as the Committee may deem
necessary or advisable;
(k)
to authorize any
person to execute on behalf of the Company any instrument required
to effect the grant of an Award previously granted by the
Committee;
(l)
to cancel any
unexpired or unpaid Options if at any time the Committee determines
the Optionee is not in compliance with the terms and conditions
(including, but not limited to any noncompete or nonsolicitation
provisions) of the Option Agreement related to such Options;
and
(m)
to make all other
determinations deemed necessary or advisable for administering the
Plan.
4.3
Effect of Committee’s Decision.
The Committee’s decisions, determinations and interpretations
shall be final and binding on all Awardees and any other holders of
Awards. No member of the Board or of any of the Committees
administering the Plan shall be liable for any action or
determination made with respect to the Plan or any grant
thereunder.
ARTICLE
5
Eligibility
5.1
The Committee may
grant Nonstatutory Stock Options, Restricted Stock, Restricted
Stock Awards, Performance Awards, and Bonus Shares to all Service
Providers. Incentive Stock Options may be granted only to
Employees. The provisions of Awards need not be the same with
respect to each recipient. Each grant of an Award shall be
confirmed by, and subject to the terms of an Award
Agreement.
ARTICLE
6
Options
Generally. Subject to the
limitations of the Plan, the Committee may make grants of Options
to Service Providers.
6.2
Designation As Either An Incentive
Stock Option or As A Nonstatutory Stock Option; $100,000
Limitation. Each Option shall be designated in the Option
Agreement as either an Incentive Stock Option or a Nonstatutory
Stock Option. However, notwithstanding such designation, to the
extent that the aggregate Fair Market Value of the Shares with
respect to which Incentive Stock Options are exercisable for the
first time by the Optionee during any calendar year (under all
plans of the Company and any Parent or Subsidiary) exceeds One
Hundred Thousand Dollars ($100,000), such Options shall be treated
as Nonstatutory Stock Options. For purposes of this Section 6.2,
Incentive Stock Options shall be taken into account in the order in
which they were granted. The Fair Market Value of the Shares shall
be determined as of the time the Option with respect to such Shares
is granted.
6.3
Option Term. The term of each
Option shall be ten (10) years from the date of grant or such
shorter term as may be provided in the Option Agreement. In the
case of an Incentive Stock Option granted to an Optionee who, at
the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or any Parent
or Subsidiary, the term of the Incentive Stock Option shall be five
(5) years from the date of grant or such shorter term as may be
provided in the Option Agreement.
6.4
Exercise Price. The per share
exercise price for the Shares to be issued pursuant to exercise of
an Option shall be determined by the Committee, subject to the
following:
(a)
In the case of an
Incentive Stock Option,
(1)
granted to an
Employee who, at the time the Incentive Stock Option is granted,
owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than one
hundred ten percent (110%) of the Fair Market Value per Share on
the Date of Grant.
(2)
granted to any
Employee other than an Employee described in paragraph (1)
immediately above, the per Share exercise price shall be no less
than one hundred percent (100%) of the Fair Market Value per Share
on the Date of Grant.
(b)
In the case of a
Nonstatutory Stock Option, the per Share exercise price shall be
determined by the Committee; provided, however, that the per Share
exercise price shall not be less than one hundred percent (100%) of
the Fair Market Value per Share on the Date of Grant.
6.5
Waiting Period and Exercise
Dates. At the time an Option is granted, the Committee shall
fix the period within which the Option may be exercised and shall
determine any conditions which must be satisfied before the Option
may be exercised.
6.6
Form of Consideration. The
Committee shall determine the acceptable form of consideration for
exercising an Option, including the method of payment. Such
consideration may consist entirely of:
(c)
other Shares which
(1) in the case of Shares acquired upon exercise of an Option,
have been owned by the Optionee for more than six (6) months on the
date of surrender, and (2) have a Fair Market Value on the
date of surrender equal to the aggregate exercise price of the
Shares as to which said Option shall be exercised;
(d)
consideration
received by the Company under a cashless exercise program
implemented by the Company in connection with the Plan to the
extent permitted by Applicable Laws;
(e)
a reduction in the
amount of any Company liability to the Optionee;
(f)
any combination of
the foregoing methods of payment; or
(g)
such other
consideration and method of payment for the issuance of Shares to
the extent permitted by Applicable Laws.
In the
case of an Incentive Stock Option, the Committee shall determine
the acceptable form of consideration at the time of
grant.
6.7
Procedure for Exercise;
Rights as a Shareholder. Any Option granted hereunder shall
be exercisable according to the terms of the Plan and at such times
and under such conditions as determined by the Committee and set
forth in the Option Agreement. Unless the Committee provides
otherwise, vesting of any Option granted hereunder shall be tolled
during any unpaid leave of absence. An Option may not be exercised
for a fraction of a Share.
(a)
An Option shall be
deemed exercised when the Company receives: (i) written or
electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, (ii)
full payment for the Shares with respect to which the Option is
exercised, and (iii) any other written representations, covenants,
and undertakings that the Company may prescribe in the Option
Agreement. Full payment may consist of any consideration and method
of payment authorized by the Committee and permitted by the Option
Agreement and the Plan. Shares issued upon exercise of an Option
shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his or her spouse. Until
the Shares are issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights
as a shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Company shall issue
(or cause to be issued) such Shares promptly after the Option is
exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are
issued, except as provided in Article 12 of the Plan.
(b)
Exercising an
Option in any manner shall decrease the number of Shares thereafter
available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is
exercised.
(c)
The Committee may
suspend the right to exercise a Stock Option at any time when the
Committee determines that allowing the exercise and issuance of
Stock would violate any federal or state securities or other laws.
The Committee may provide that any time periods to exercise the
Stock Option are extended during a period of
suspension.
6.8
Notification under Code Section
83(b). If the Optionee, in connection with the exercise of
any Option, makes the election permitted under Code
Section 83(b) to include in such Optionee’s gross income
in the year of transfer the amounts specified in Code Section
83(b), then such Optionee shall notify the Company of such election
within ten (10) days of filing the notice of the election with the
Internal Revenue Service, in addition to any filing and
notification required pursuant to regulations issued under Code
Section 83(b). The Committee may, in connection with the grant
of an Option or at any time thereafter prior to such an election
being made, prohibit an Optionee from making the election described
above.
6.9
Buyout Provisions. The
Committee may at any time offer to buy out for a payment in cash or
Shares an Option previously granted based on such terms and
conditions as the Committee shall establish and communicate to the
Optionee at the time that such offer is made.
6.10
Modifications Generally
Prohibited. Once granted, no Modification shall be made in
respect to any Option if such Modification would result in the
Option constituting a deferral of compensation or having an
additional deferral feature within the meaning of applicable
Treasury Regulations under Code Section 409A.
6.11
Non-Transferability of Options.
An Option that is an Incentive Stock Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or by the laws of descent or distribution
and may be exercised, during the lifetime of the Optionee, only by
the Optionee. Unless determined otherwise by the Committee, a
Nonstautory Stock Option may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than
by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Optionee, only by the
Optionee. If the Committee grants a Nonstatutory Stock Option that
is transferable, the Option Agreement for such Nonstatutory Stock
Option shall contain such additional terms and conditions governing
the Option’s transferability as the Committee deems
appropriate.
6.12
Termination of Service Provider For
Cause. If a Service Provider is terminated for Cause, any
unexercised Option shall terminate effective immediately upon such
termination.
6.13
Disability of Optionee. If an
Optionee ceases to be a Service Provider as a result of the
Optionee’s Disability, the Optionee may exercise his or her
Option within such period of time as is specified in the Option
Agreement to the extent the Option is vested and exercisable on the
date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement);
provided, however, that the time specified in the Option Agreement
shall not be less than six (6) months. In the absence of a
specified time in the Option Agreement, the Option shall remain
exercisable for twelve (12) months following the Optionee’s
termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option
within the time specified herein, the Option shall terminate, and
the Shares covered by such Option shall revert to the
Plan.
6.14
Death of Optionee. If
an Optionee dies while a Service Provider, the Option may be
exercised within such period of time as is specified in the Option
Agreement (but in no event later than the expiration of the term of
such Option as set forth in the Notice of Grant), by the
Optionee’s estate or by a person who acquires the right to
exercise the Option by bequest or inheritance, but only to the
extent that the Option is vested and exercisable on the date of
death; provided, however, that the time specified in the Option
Agreement shall not be less than six (6) months. In the absence of
a specified time in the Option Agreement, the Option shall remain
exercisable for six (6) months following the Optionee’s
death. If, at the time of death, the Optionee is not vested as to
his or her entire Option, the Shares covered by the unvested
portion of the Option shall immediately revert to the Plan. The
Option may be exercised by the executor or administrator of the
Optionee’s estate or, if none, by the person(s) entitled to
exercise the Option under the Optionee’s will or the laws of
descent or distribution. If the Option is not so exercised within
the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall revert to the
Plan.
6.15
For Any Other Reason. If an
Optionee ceases to be a Service Provider, other than for Cause or
upon the Optionee’s death or Disability, the Optionee may
exercise his or her Option within such period of time as is
specified in the Option Agreement to the extent that the Option is
vested and exercisable on the date of termination (but in no event
later than the expiration of the term of such Option as set forth
in the Option Agreement); provided, however, that the time
specified in the Option Agreement shall not be less than thirty
(30) days. In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for three (3) months
following the Optionee’s termination. If, on the date of
termination, the Optionee is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option
shall revert to the Plan. If, after termination, the Optionee does
not exercise his or her Option within the time specified by the
Committee, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
ARTICLE
7
Stock
Appreciation Rights
7.1
Generally. Subject to the
limitations of the Plan, the Committee may grant Stock Appreciation
Rights to Service Providers. Stock Appreciation Rights may be
granted in connection with, and on the same Date of Grant, as all
or any part of an Option to a Service Provider or may be granted as
a separate Award.
7.2
Stock Appreciation Rights Not Granted
In Connection With Options. The following provisions apply
to all Stock Appreciation Rights that are not granted in connection
with Options:
(a)
Described. A Stock Appreciation
Right shall entitle the Awardee, upon exercise of all or any part
of the Stock Appreciation Right, to receive in exchange from the
Company an amount equal to the excess of (x) the Fair Market Value
on the date of exercise of the Shares covered by the surrendered
Stock Appreciation Right over (y) the Fair Market Value of the
Shares on the Date of Grant of the Stock Appreciation Right. The
Committee may not revise or amend a Stock Appreciation Right to
reduce the Fair Market Value of the Stock Appreciation Right on the
Date of Grant, except as provided in Article 12 of the
Plan.
(b)
Term. The term of each Stock
Appreciation Right shall be ten (10) years from the Date of Grant
or such shorter term as may be provided in the Award Agreement. No
Stock Appreciation Right may be exercised after the expiration of
its term.
(c)
Waiting Period and Exercise
Dates. At the time a Stock Appreciation Right is granted,
the Committee shall fix the period within which the Stock
Appreciation Right may be exercised and shall determine any
conditions which must be satisfied before the Stock Appreciation
Right may be exercised. A Stock Appreciation Right may only be
exercised at a time when the Fair Market Value of the Shares
covered by the Stock Appreciation Right exceeds the Fair Market
Value of the Shares on the Date of Grant of the Stock Appreciation
Right.
(d)
Exercise. Any Stock
Appreciation Right granted hereunder shall be exercisable according
to the terms of the Plan and at such times and under such
conditions as determined by the Committee and set forth in the
Award Agreement. Unless the Committee provides otherwise, vesting
of any Stock Appreciation Right granted hereunder shall be tolled
during any unpaid leave of absence. A Stock Appreciation Right may
not be exercised for a fraction of a Share.
(e)
Effect of Exercise Upon Available
Shares. Exercising a Stock Appreciation Right in any manner
shall decrease the number of Shares thereafter available, both for
purposes of the Plan and for sale under the Stock Appreciation
Right, by the number of Shares as to which the Stock Appreciation
Right is exercised.
(f)
Notification under Code Section
83(b). If the Awardee, in connection with the exercise of
any Stock Appreciation Right, makes the election permitted under
Code Section 83(b) to include in such Awardee’s gross income
in the year of transfer the amounts specified in Code Section
83(b), then such Awardee shall notify the Company of such election
within ten (10) days of filing the notice of the election with the
Internal Revenue Service, in addition to any filing and
notification required pursuant to regulations issued under Code
Section 83(b). The Committee may, in connection with the grant of a
Stock Appreciation Right or at any time thereafter prior to such an
election being made, prohibit an Awardee from making the election
described above.
(g)
Buyout Provisions. The
Committee may at any time offer to buy out for a payment in cash or
Shares a Stock Appreciation Right previously granted based on such
terms and conditions as the Committee shall establish and
communicate to the Awardee at the time that such offer is
made.
(h)
Non-Transferability of Stock
Appreciation Rights. Unless determined otherwise by the
Committee, a Stock Appreciation Right may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and
may be exercised, during the lifetime of the Awardee, only by the
Awardee. If the Committee grants a Stock Appreciation Right that is
transferable, the Award Agreement for such Stock Appreciation Right
shall contain such additional terms and conditions governing the
Stock Appreciation Right’s transferability as the Committee
deems appropriate.
(i)
Termination of Service Provider For
Cause. If a Service Provider is terminated for Cause, any
unexercised Stock Appreciation Right shall terminate effective
immediately upon such termination.
(j)
Disability of Awardee. If an
Awardee ceases to be a Service Provider as a result of the
Awardee’s Disability, the Awardee may exercise his or her
Stock Appreciation Right within such period of time as is specified
in the Award Agreement to the extent the Stock Appreciation Right
is vested and exercisable on the date of termination (but in no
event later than the expiration of the term of such Stock
Appreciation Right as set forth in the Award Agreement); provided,
however, that the time specified in the Award Agreement shall not
be less than six (6) months. In the absence of a specified time in
the Award Agreement, the Stock Appreciation Right shall remain
exercisable for twelve (12) months following the Awardee’s
termination. If, on the date of termination, the Awardee is not
vested as to his or her entire Stock Appreciation Right, the Shares
covered by the unvested portion of the Stock Appreciation Right
shall revert to the Plan. If, after termination, the Awardee does
not exercise his or her Stock Appreciation Right within the time
specified herein, the Stock Appreciation Right shall terminate, and
the Shares covered by such Stock Appreciation Right shall revert to
the Plan.
(k)
Death of Awardee. If an Awardee
dies while a Service Provider, the Stock Appreciation Right may be
exercised within such period of time as is specified in the Award
Agreement (but in no event later than the expiration of the term of
such Stock Appreciation Right as set forth in the Notice of Grant),
by the Awardee’s estate or by a person who acquires the right
to exercise the Stock Appreciation Right by bequest or inheritance,
but only to the extent that the Stock Appreciation Right is vested
and exercisable on the date of death; provided, however, that the
time specified in the Award Agreement shall not be less than six
(6) months. In the absence of a specified time in the Award
Agreement, the Stock Appreciation Right shall remain exercisable
for six (6) months following the Awardee’s death. If, at the
time of death, the Awardee is not vested as to his or her entire
Stock Appreciation Right, the Shares covered by the unvested
portion of the Stock Appreciation Right shall immediately revert to
the Plan. The Stock Appreciation Right may be exercised by the
executor or administrator of the Awardee’s estate or, if
none, by the person(s) entitled to exercise the Stock Appreciation
Right under the Awardee’s will or the laws of descent or
distribution. If the Stock Appreciation Right is not so exercised
within the time specified herein, the Stock Appreciation Right
shall terminate, and the Shares covered by such Stock Appreciation
Right shall revert to the Plan.
(l)
For Any Other Reason. If an
Awardee ceases to be a Service Provider, other than for Cause or
upon the Awardee’s death or Disability, the Awardee may
exercise his or her Stock Appreciation Right within such period of
time as is specified in the Award Agreement to the extent that the
Stock Appreciation Right is vested and exercisable on the date of
termination (but in no event later than the expiration of the term
of such Stock Appreciation Right as set forth in the Award
Agreement); provided, however, that the time specified in the Award
Agreement shall not be less than thirty (30) days. In the absence
of a specified time in the Award Agreement, the Stock Appreciation
Right shall remain exercisable for three (3) months following the
Awardee’s termination. If, on the date of termination, the
Awardee is not vested as to his or her entire Stock Appreciation
Right, the Shares covered by the unvested portion of the Stock
Appreciation Right shall revert to the Plan. If, after termination,
the Awardee does not exercise his or her Stock Appreciation Right
within the time specified by the Committee, the Stock Appreciation
Right shall terminate, and the Shares covered by such Stock
Appreciation Right shall revert to the Plan.
7.3
Stock Appreciation Rights Granted In
Connection With Options. The following provisions apply to
all Stock Appreciation Rights that are granted in connection with
Options:
(a)
A Stock
Appreciation Right granted in connection with an Option must be
granted on the same Date of Grant as the Option to which it
relates.
(b)
A Stock
Appreciation Right granted in connection with an Option shall
entitle the Awardee, upon exercise of all or any part of the Stock
Appreciation Right, to surrender to the Company unexercised that
portion of the underlying Option relating to the same number of
Shares as is covered by the Stock Appreciation Right (or the
portion of the Stock Appreciation Right so exercised) and to
receive in exchange from the Company an amount equal to the excess
of (x) the Fair Market Value on the date of exercise of the Shares
covered by the surrendered portion of the underlying Option over
(y) the exercise price of the Shares covered by the surrendered
portion of the underlying Option.
(c)
Upon the exercise
of a Stock Appreciation Right and surrender of the related portion
of the underlying Option, the Option, to the extent surrendered,
shall not thereafter be exercisable.
(d)
Subject to any
further conditions upon exercise imposed by the Committee, a Stock
Appreciation Right shall be exercisable only to the extent that the
related Option is exercisable and a Stock Appreciation Right shall
lapse or be forfeited no later than the date on which the related
Option lapses or is forfeited.
(e)
A Stock
Appreciation Right shall terminate and shall no longer be
exercisable upon the exercise of the related Option.
(f)
The Stock
Appreciation Right is only transferable when the related Options
are otherwise transferable.
(g)
A Stock
Appreciation Right may only be exercised at a time when the Fair
Market Value of the Shares covered by the Stock Appreciation Right
exceeds the exercise price of the Shares covered by the underlying
Option.
7.4
Form of Payment. The manner in
which the Company’s obligation arising upon the exercise of a
Stock Appreciation Right shall be paid shall be determined by the
Committee and shall be set forth in the Award Agreement. The Award
Agreement may provide for payment in (i) Shares, (ii) cash, (iii) a
fixed combination of Shares or cash, or (iv) the Committee may
reserve the right to determine the manner of payment at the time
the Stock Appreciation Right is exercised. Shares issued upon the
exercise of a Stock Appreciation Right shall be valued at their
Fair Market Value on the date of exercise. Any Shares issued upon
exercise of a Stock Appreciation Right shall be issued in the name
of the Awardee or, if requested by the Awardee, in the name of the
Awardee and his or her spouse. Until Shares are issued (as
evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), in payment of
a Stock Appreciation Right, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to
the Stock Appreciation Right, notwithstanding the exercise of the
Stock Appreciation Right. The Company shall issue (or cause to be
issued) Shares that are to be issued in payment of a Stock
Appreciation Right promptly after the Stock Appreciation Right is
exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are
issued, except as provided in Article 12 of the Plan.
7.5
Procedure for Exercise; Rights As a
Shareholder. A Stock Appreciation Right shall be deemed
exercised when the Company receives a written or electronic notice
of exercise (in accordance with the Award Agreement) from the
person entitled to exercise the Stock Appreciation Right. In
addition, if the Stock Appreciation Right provides for the delivery
of Shares in settlement of the Company’s obligation under the
Stock Appreciation Right, prior to the delivery of Shares, the
Company must also receive from the person entitled to exercise the
Stock Appreciation Right any other written representations,
covenants, and undertakings that the Company may prescribe in the
Award Agreement.
7.6
Modifications Generally
Prohibited. Once granted, no Modification shall be made in
respect to any Stock Appreciation Right if such Modification would
result in the Stock Appreciation Right constituting a deferral of
compensation or having an additional deferral feature within the
meaning of applicable Treasury Regulations under Code Section
409A.
ARTICLE
8
Restricted
Stock
8.1
Generally. Subject to the
limitations of the Plan, the Committee may make grants of
Restricted Stock to Service Providers.
8.2
Administration. Shares of
Restricted Stock may be granted either alone or in addition to
other Awards granted under the Plan. The Committee shall determine
the Service Providers to whom, and the time(s) at which grants of
Restricted Stock will be made, the number of shares to be awarded
to any Service Provider, the amount of the consideration (if any)
that is to be paid, the time(s) within which, and the conditions
under which such Restricted Stock may be subject to forfeiture, and
any other terms and conditions of the Awards, in addition to those
contained in this Article 8.
8.3
Awards and Certificates. As a
condition to the grant of Restricted Stock under the Plan, each
Awardee shall execute and deliver to the Company (i) an agreement
in form and substance satisfactory to the Committee reflecting the
conditions and restrictions imposed upon the Shares awarded, (ii)
the consideration, if any, to be paid for the Shares, and (iii) any
other written representations, covenants, and undertakings that the
Committee may prescribe in the Restricted Stock Agreement.
Certificates for Shares delivered pursuant to such Awards may, if
the Committee so determines, bear a legend referring to the
restrictions and the instruments to which such Shares of Restricted
Stock are subject.
8.4
Form of Consideration. The
consideration for Restricted Stock (if any) shall consist entirely
of cash.
8.5
Notification under Code Section
83(b). If, in connection with a grant of Restricted Stock,
the Awardee makes the election permitted under Code
Section 83(b) to include in such Awardee’s gross income
in the year of transfer the amounts specified in Code Section
83(b), then such Awardee shall notify the Company of such election
within ten (10) days of filing the notice of the election with the
Internal Revenue Service, in addition to any filing and
notification required pursuant to regulations issued under Code
Section 83(b). The Committee may, in connection with the grant
of Restricted Stock or at any time thereafter prior to such an
election being made, prohibit an Awardee from making the election
described above.
8.6
Buyout Provisions. The
Committee may at any time offer to buy out for a payment in cash,
Restricted Stock previously granted based on such terms and
conditions as the Committee shall establish and communicate to the
Awardee at the time that such offer is made.
8.7
Terms and Conditions. Subject
to the provisions of the Plan and the applicable Restricted Stock
Agreement, during a period set by the Committee, commencing with
the date of such Award (the “Restriction Period”),
unless the Committee has determined otherwise, the Awardee shall
not be permitted to sell, assign, transfer, pledge or otherwise
encumber shares of Restricted Stock. The Committee may provide for
the lapse of such restrictions in installments or otherwise and may
accelerate or waive such restrictions, in whole or in part, in each
case based on period of service, performance of the Awardee or of
the Company for which the Awardee is employed or such other factors
or criteria as the Committee may determine. If the Committee grants
Restricted Stock that is immediately transferable, the Restricted
Stock Agreement shall contain such additional terms and conditions
regarding transferability as the Committee deems
appropriate.
8.8
Rights as a Shareholder. Except
as otherwise provided in this Plan and the applicable Restricted
Stock Agreement, the Awardee shall have, with respect to the Shares
of Restricted Stock, all of the rights of a stockholder of the
Company holding the class or series of stock that is the subject of
the Restricted Stock, including, if applicable, the right to vote
the Shares and the right to receive any cash dividends. Absent a
provision regarding the disposition of dividends in the applicable
Restricted Stock Agreement, any dividend payable with respect to
Restricted Stock shall be paid to the Service Provider no later
than the end of the calendar year in which the same dividends on
Shares are paid to the shareholders of such Shares generally, or if
later, the 15th day of the third
month following the date on which the same dividends on Shares are
paid to the Shares’ shareholders.
8.9
Termination for Cause. If a
Service Provider is terminated for Cause, any Restricted Stock
previously granted to the Service Provider that remains unvested as
of the date of termination shall be forfeited effective immediately
upon such termination.
8.10
Termination Other Than for
Cause. Except as otherwise provided in the applicable
Restricted Stock Agreement or as determined by the Committee, if a
Service Provider ceases to be a Service Provider other than for
Cause, any Restricted Stock previously granted to the Service
Provider that remains unvested as of the date of cessation shall be
forfeited immediately upon such cessation.
ARTICLE
9
Restricted Stock
Units
9.1
Generally. Subject to the
limitations of the Plan, the Committee may make grants of
Restricted Stock Units to Service Providers. A Restricted Stock
Unit is the grant of a right to receive a Share or the Fair Market
Value in cash of a Share, in the future, at such time and
contingent upon such terms as the Committee shall
establish.
9.2
Administration. Restricted
Stock Units may be granted either alone or in addition to other
Awards granted under the Plan. The Committee shall determine the
Service Providers to whom, and the time(s) at which grants of
Restricted Stock Units will be made, the number of Restricted Stock
Units to be awarded to any Service Provider, the time(s) within
which, and the conditions under which such Restricted Stock Unit
may be subject to forfeiture, and any other terms and conditions of
the Awards, in addition to those contained in this Article
9.
9.3
Terms and Conditions. The
Committee shall establish as to each grant of Restricted Stock
Units the terms and conditions upon which such Restricted Units
shall become vested. The Committee may base the vesting of
Restricted Stock Units upon (i) the continued employment or service
of the Awardee, (ii) the achievement of performance objectives, or
(iii) a combination thereof. The Committee may provide for the
vesting of Restricted Stock Units in installments or otherwise and
may accelerate or waive such restrictions, in whole or in part, in
each case based on period of service, performance of the Awardee or
of the Company for which the Awardee is employed or such other
factors or criteria as the Committee may determine.
9.4
Dividend Equivalents. If (and
only if) expressly authorized in the applicable Award Agreement, in
the event that the Company pays any cash or other dividend or makes
any other distribution in respect of the Shares, a Service Provider
will be credited with an additional number of Restricted Stock
Units (including fractions thereof) determined by dividing (i) the
amount of cash, or the value (as determined by the Committee) of
any securities or other property, paid or distributed in respect of
a Share by (ii) the Fair Market Value of a Share for the date of
such payment or distribution, and multiplying the result of such
division by (iii) the number of Restricted Stock Units that were
credited to a Service Provider immediately prior to the date of the
dividend or other distribution. Credits shall be made effective as
of the date of the dividend or other distribution in respect of the
Shares to the bookkeeping account to which the Service
Provider’s Restricted Stock Units are credited. Dividends
credited to a Service Provider shall be subject to the same
restrictions and shall be distributed at the same time and in the
same manner as the Restricted Stock Units to which they
relate.
9.5
Non-Transferability. Restricted
Stock Units may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner.
9.6
No Rights as a Shareholder. A
Service Provider who is to receive settlement of his or her vested
Restricted Stock Units by the delivery of Shares shall have no
rights as a shareholder of the Company until the Shares are
actually issued to the Service Provider pursuant to the terms of
the applicable Award Agreement. The Shares may be issued without
consideration.
9.7
Termination for Cause. If a
Service Provider is terminated for Cause, any Restricted Stock
Units previously granted to the Service Provider that have not been
settled by the delivery of cash or Shares shall be forfeited
effective immediately upon such termination.
9.8
Termination Other Than for
Cause. Except as otherwise provided in the applicable Award
Agreement or as determined by the Committee, if a Service Provider
ceases to be a Service Provider other than for Cause, any
Restricted Stock Units previously granted to the Service Provider
that remain unvested as of the date of cessation shall be forfeited
immediately upon such cessation.
9.9
Form of Payment. The manner in
which the Company shall settle its obligation (if any) arising out
of the grant of a grant of Restricted Stock Units shall be
determined by the Committee and shall be set forth in the Award
Agreement. The Award Agreement may provide for payment in (i)
Shares, (ii) cash, (iii) a fixed combination of Shares or cash, or
(iv) the Committee may reserve the right to determine the manner of
payment at the time that the Restricted Stock Units are
settled.
(a)
Shares issued in
settlement of Restricted Stock Units shall be valued at (i) their
Fair Market Value on the date of payment for purposes of
determining the amount of compensation paid to the Awardee, and
(ii) as provided in the Award Agreement for any other
purpose.
(b)
In addition, if the
Award Agreement for a grant of Restricted Stock Units provides for
the delivery of Shares in settlement of the Company’s
obligation under the Award, prior to the delivery of any Shares,
the Company must also receive from the Awardee any other written
representations, covenants, and undertakings that the Company may
prescribe in the Award Agreement.
(c)
Any Shares issued
upon settlement of Restricted Stock Units shall be issued in the
name of the Awardee or, if requested by the Awardee, in the name of
the Awardee and his or her spouse. Until Shares are actually issued
(as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), in
settlement of Restricted Stock Units, no right to vote or receive
dividends or any other rights as a shareholder shall exist with
respect to the Award. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the
Shares are issued, except as provided in Article 12 of the
Plan.
ARTICLE
10
Performance
Awards
10.1
Generally. Subject to the
limitations of the Plan, the Committee may make grants of
Performance Awards to Service Providers. A Performance Award shall
consist of the right to receive a payment that is contingent upon
the attainment of one or more performance objectives during a
Performance Period. Performance Awards may be denominated in cash
(e.g., units valued at $100 at target level of performance) or
Shares. Each grant of Performance Awards shall be evidenced by an
Award Agreement, which shall set forth the terms and conditions of
the Performance Award.
10.2
Establishment of Performance
Criteria. On or prior to the Date of Grant of a Performance
Award, the Committee shall establish for such Performance
Award:
(a)
The Performance
Period;
(b)
One or more
performance objectives;
(c)
The formula for
determining the amount or amounts that shall be earned under the
Performance Award, if any, based upon the degree of attainment of
the applicable performance objectives;
(d)
The conditions
under which an Awardee shall forfeit the Performance
Award;
(e)
Such other terms
and conditions that the Committee shall establish.
10.3
Performance Objectives.
Performance objectives may include a threshold level of performance
below which no payout or vesting will occur, target levels of
performance at which a full payout of full vesting will occur,
and/or a maximum level of performance at which a specified
additional payout or vesting will occur. Unless otherwise provided
in the Award Agreement, the Committee shall have the right to
reduce or increase the amount payable to an Awardee with respect to
an Award from the amount that would be payable by application of
the Award’s formula.
10.4
Determination of Award Amount.
At the expiration of the Performance Period, the Committee shall
determine (i) the extent to which the predetermined performance
objectives have been achieved during the Performance Period, (ii)
the resulting value of the Performance Awards, and (iii) the
payment, if any, owed to the Awardee.
10.5
Non-Transferability.
Performance Awards may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any
manner.
10.6
Form of Payment. The manner in
which the Company shall settle its obligation (if any) arising out
of the grant of a Performance Award shall be determined by the
Committee and shall be set forth in the Award Agreement. The Award
Agreement may provide for payment in (i) Shares, (ii) cash, (iii) a
fixed combination of Shares or cash, or (iv) the Committee may
reserve the right to determine the manner of payment at the time
the Performance Award is settled.
(a)
Shares issued in
settlement of a Performance Award shall be valued at (i) their Fair
Market Value on the date of payment for purposes of determining the
amount of compensation paid to the Awardee, and (ii) as provided in
the Award Agreement for any other purpose (e.g., for purpose of
converting a Performance Award denominated in cash into Shares for
purposes of payment).
(b)
In addition, if the
Award Agreement for a Performance Award provides for the delivery
of Shares in settlement of the Company’s obligation under the
Award, prior to the delivery of any Shares, the Company must also
receive from the Awardee any other written representations,
covenants, and undertakings that the Company may prescribe in the
Award Agreement.
(c)
Any Shares issued
upon settlement of Performance Awards shall be issued in the name
of the Awardee or, if requested by the Awardee, in the name of the
Awardee and his or her spouse. Until Shares are actually issued (as
evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), in settlement
of a Performance Award grant, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to
the Award. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are
issued, except as provided in Article 12 of the Plan.
ARTICLE
11
Bonus
Shares
11.1
Generally. Subject to the
limitations of the Plan, the Committee may grant Bonus Shares to
any Service Provider, in such amount and upon such terms, at any
time and from time to time as the Committee in its sole discretion
shall determine.
11.2
Awards and Certificates. Prior
to the delivery of any Shares to the Awardee in payment of a grant
of Bonus Shares, the Company must receive from the Awardee any
other written representations, covenants, and undertakings that the
Company may prescribe in the Award Agreement. Any Shares issued
with respect to a grant of Bonus Shares shall be issued in the name
of the Awardee or, if requested by the Awardee, in the name of the
Awardee and his or her spouse. Until Shares are actually issued (as
evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a shareholder
shall exist with respect to the Award. No adjustment will be made
for a dividend or other right for which the record date is prior to
the date the Shares are issued, except as provided in Article 12 of
the Plan.
11.3
Non-Transferability. Until
actually delivered to the Awardee, Bonus Shares may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any
manner.
ARTICLE
12
Adjustments Upon Changes in Capitalization,
Dissolution, Merger or Asset Sale
12.1
Changes in Capitalization.
Subject to any required action by the shareholders of the Company,
the number of Shares covered by each outstanding Award, and the
number of Shares which have been authorized for issuance under the
Plan but as to which no Awards have yet been granted or which have
been returned to the Plan as well as the price per Share covered by
each outstanding Option and the base amount per Share of each Stock
Appreciation Right, shall be proportionately adjusted for any
increase or decrease in the number of issued Shares resulting from
a stock split, reverse stock split, stock dividend, combination or
reclassification of the Share, or any other increase or decrease in
the number of issued Shares effected without receipt of
consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to
have been “effected without receipt of consideration”;
provided, however, that with respect to Incentive Stock Options, no
such adjustment shall be authorized to the extent that such
adjustment would cause the Plan to violate Code
Section 422(b)(1); provided further, that with respect to
Options and Stock Appreciation Rights, no such adjustment shall be
authorized to the extent such adjustment would cause the Options
and Stock Appreciation Rights to become “deferred
compensation” subject to Code Section 409A. Such adjustment
shall be made by the Committee, whose determination in that respect
shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of Shares subject to an
Award.
ARTICLE
13
Cancellation and
Rescission of Awards
13.1
Cancellation of Awards. Unless
the Award Agreement specifies otherwise, the Committee may cancel,
rescind, suspend, withhold, or otherwise limit or restrict any
unexercised (in the case of Options or Stock Appreciation Rights),
unvested, or unpaid Award at any time if the Awardee is not in
compliance with all applicable provisions of the Award Agreement
and the Plan, or if the Awardee has engaged in any Adverse
Conduct.
13.2
Certification of Compliance May Be
Required. Upon exercise, payment or delivery pursuant to an
Award, the Committee may require the Awardee to certify, in a
manner acceptable to the Company, that the Awardee is in compliance
with the terms and conditions of the Plan.
13.3
Rescission of Awards. Unless
the Award Agreement specifies otherwise, for a period of two (2)
years following the exercise, payment or delivery of an Award (the
“Rescission Period”), the Committee may rescind any
such exercise, payment, or delivery of the Award upon its
determination that the Awardee has engaged in Adverse Conduct prior
to the delivery of the Award or during the Rescission Period. In
the event of any such rescission, the Awardee shall pay to the
Company the amount of any gain realized or payment received as a
result of the rescinded exercise, payment or delivery, in such
manner and on such terms and conditions as may be
required.
ARTICLE
14
Change
in Control Provisions
14.1
In the event of a
merger or Change in Control, each outstanding Award will be treated
as the Committee determines, including, without limitation, that
each Award be assumed or an equivalent option or right substituted
by the successor corporation or a Parent or Subsidiary of the
successor corporation. The Committee will not be required to treat
all Awards similarly in the transaction.
14.2
In the event that
the successor corporation does not assume or substitute for the
Award, the Awardee will fully vest in and have the right to
exercise all of his or her outstanding Options and Stock
Appreciation Rights, including Shares as to which such Awards would
not otherwise be vested or exercisable, all restrictions on
Restricted Stock and Restricted Stock Units will lapse, and, with
respect to Awards with performance-based vesting, all performance
goals or other vesting criteria will be deemed achieved at one
hundred percent (100%) of target levels and all other terms and
conditions met. In addition, if an Option or Stock Appreciation
Right is not assumed or substituted in the event of a Change in
Control, the Committee will notify the Awardee in writing or
electronically that the Option or Stock Appreciation Right will be
fully vested and exercisable for a period of time determined by the
Committee in its sole discretion, and the Option or Stock
Appreciation Right will terminate upon the expiration of such
period.
14.3
For the purposes of
this Article 14, an Award will be considered assumed if, following
the Change in Control, the Award confers the right to purchase or
receive, for each Share subject to the Award immediately prior to
the Change in Control, the consideration (whether stock, cash, or
other securities or property) received in the Change in Control by
holders of Series A Non-Voting Preferred Shares for each Share held
on the effective date of the transaction (and if holders were
offered a choice of consideration, the type of consideration chosen
by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the Change in
Control is not solely common stock of the successor corporation or
its Parent, the Committee may, with the consent of the successor
corporation, provide for the consideration to be received upon the
exercise of an Option or Stock Appreciation Right or upon the
payout of a Restricted Stock Unit, or Performance Award, for each
Share subject to such Award (or in the case of an Award settled in
cash, the number of implied shares determined by dividing the value
of the Award by the per share consideration received by holders of
Series A Non-Voting Preferred Stock in the Change in Control), to
be solely common stock of the successor corporation or its Parent
equal in fair market value to the per share consideration received
by holders of Series A Non-Voting Preferred Stock in the Change in
Control.
14.4
Notwithstanding
anything in this Article 14 to the contrary, an Award that vests,
is earned or paid-out upon the satisfaction of one or more
performance goals will not be considered assumed if the Company or
its successor modifies any of such performance goals without the
Awardee’s consent; provided, however, a modification to such
performance goals only to reflect the successor corporation’s
post-Change in Control corporate structure will not be deemed to
invalidate an otherwise valid Award assumption.
ARTICLE
15
Amendment and Termination of the Plan
15.1
Amendment and Termination. The
Board may at any time amend, alter, suspend or terminate the
Plan.
15.2
Shareholder Approval. The
Company shall obtain shareholder approval of any Plan amendment to
the extent necessary and desirable to comply with Applicable
Laws.
15.3
Effect of Amendment or Termination.
No amendment, alteration, suspension or termination of the Plan
shall impair the rights of any Awardee, unless mutually agreed
otherwise between the Awardee and the Committee, which agreement
must be in writing and signed by the Awardee and the Company.
Termination of the Plan shall not affect the Committee’s
ability to exercise the powers granted to it hereunder with respect
to Awards granted under the Plan prior to the date of such
termination.
ARTICLE
16
Conditions Upon Issuance of Shares
16.1
Legal Compliance. Shares shall
not be issued pursuant to the exercise of an Award unless the
exercise of such Award and the issuance and delivery of such Shares
shall comply with Applicable Laws and shall be further subject to
the approval of counsel for the Company with respect to such
compliance. Under no circumstances shall the Company be obligated
to effect or maintain any registration under the Securities Act or
other similar Applicable Laws.
16.2
Investment Representations. As
a condition to the exercise of an Award, the Company may require
the person exercising such Award to represent and warrant at the
time of any such exercise that the Shares are being purchased only
for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the
Company, such a representation is required.
16.3
Restrictions on Share
Transferability. The Committee may include in the Award
Agreement such restrictions on any Shares acquired pursuant to the
exercise or vesting of an Award as it may deem advisable, including
restrictions under applicable federal securities laws.
16.4
Shareholder Agreement. To the
extent Shares are issued pursuant to any Award Agreement under the
Plan, receipt of such Shares shall be conditioned upon execution of
any existing Company shareholder agreement by the person exercising
such Award.
ARTICLE
17
Additional
Provisions
17.1
Term of Plan. Subject to
Section 18.6 of the Plan, the Plan shall become effective upon its
adoption by the Board. It shall continue in effect for a term of
ten (10) years unless terminated earlier under Article 16 of the
Plan.
17.2
Unfunded Status of Plan. It is
intended that the Plan shall constitute an “unfunded”
plan for incentive and deferred compensation. The Committee may
authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver stock or make
payments; provided, however, that the existence of such trusts or
other arrangements is consistent with the “unfunded”
status of the Plan.
17.3
No Right to Continue As A Service
Provider. Neither the Plan nor any Award shall confer upon
an Awardee any right with respect to continuing the Awardee’s
relationship as a Service Provider with the Company, nor shall they
interfere in any way with the Awardee’s right or the
Company’s right to terminate such relationship at any time,
with or without Cause.
17.4
Inability to Obtain Authority.
The inability or failure of the Company to obtain authority from
any regulatory body having jurisdiction, which authority is deemed
by the Company’s counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have
been obtained.
17.5
Reservation of Shares.
The Company, during the term of this Plan, will at all times
reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
17.6
Shareholder Approval. The Plan
shall be subject to approval by the shareholders of the Company
within twelve (12) months after the date the Plan is adopted. Such
shareholder approval shall be obtained in the manner and to the
degree required under Applicable Laws. If such shareholder approval
is not obtained, all Awards granted under the Plan shall be
cancelled.
17.7
No Right to Participation. No
Employee, Director or Consultant shall have the right to be
selected to receive an Award, or, having been so selected, to be
selected to receive a future Award.
17.8
Successors. All obligations of
the Company under the Plan with respect to Awards granted hereunder
shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect
purchase, merger, consolidation, or otherwise of all or
substantially all of the business or assets of the
Company.
17.9
Severability. If any part of
the Plan is declared by any court or governmental authority to be
unlawful or invalid, such unlawfulness or invalidity shall not
invalidate any other part of the Plan. Any Section or part of a
Section so declared to be unlawful or invalid shall, if possible,
be construed in a manner which will give effect to the terms of
such Section or part of a Section to the fullest extent possible
while remaining lawful and valid.
17.10
Designation of Beneficiary. The
Committee may establish procedures allowing an Awardee to designate
a beneficiary or beneficiaries to exercise any Award or receive any
payment under any Award payable on or after the Awardee’s
death.
17.11
Governing Law. The Plan shall
be construed in accordance with and governed by the laws of the
State of Delaware.
17.12
Code Section 409A. To the
extend that any Award shall constitute “deferred
compensation” subject to Code Section 409A, such Award shall
be administered in accordance with the requirements of Code section
409A(a)(2)(A)(i), which prohibits the distribution of compensation
subject to Code section 409A to a "specified employee" of a
publicly traded company any earlier than six months after the date
of separation of service in the case of a distribution by reason of
a separation of service.
Executed this 31st
day of December, 2016.
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iCONSUMER
CORP.
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By:
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/s/
Robert
N. Grosshandler
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Its:
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President
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