As filed with the U.S. Securities and Exchange Commission on December 20, 2013
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ORACLE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware | 54-2185193 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
500 Oracle Parkway
Redwood City, California 94065
(Address of Principal Executive Offices, Including Zip Code)
Oracle Corporation Amended and Restated 2000 Long-Term Equity Incentive Plan
Bitzer Mobile Inc. 2011 Stock Incentive Plan, as amended
(Full title of the plan)
Dorian Daley
Senior Vice President, General Counsel & Secretary
Oracle Corporation
500 Oracle Parkway
Redwood City, California 94065
(Name and address of agent for service)
(650) 506-7000
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of securities to be registered |
Amount to be registered (3) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee | ||||
Common Stock, par value $0.01 per share, under the Oracle Corporation Amended and Restated 2000 Long-Term Equity Incentive Plan (1) |
305,000,000 | $33.46 (4) | $10,205,300,000 | $1,314,442.64 | ||||
Common Stock, par value $0.01 per share, under the Bitzer Mobile Inc. 2011 Stock Incentive Plan, as amended (2) |
29,345 | $4.71 (5) | $138,215 | $17.80 | ||||
TOTAL |
305,029,345 | $1,314,460.44 | ||||||
| ||||||||
|
(1) | This Registration Statement (the Registration Statement) registers the issuance of the increase in the number of shares of common stock of Oracle Corporation (the Registrant), par value $0.01 (the Common Stock) that may be granted under the Oracle Corporation Amended and Restated 2000 Long-Term Equity Incentive Plan as approved by the Registrants stockholders on October 31, 2013. |
(2) | This Registration Statement also registers the issuance of common stock of Oracle Corporation issuable pursuant to equity awards assumed by Registrant as a result of the consummation on November 14, 2013, of the transaction contemplated by the Agreement and Plan of Merger, dated as of November 14, 2013, by and among the Registrant, OC Acquisition LLC, a subsidiary of Registrant, Bitzer Mobile Inc. and certain other parties thereto. |
(3) | Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement also covers an indeterminate number of additional shares that may be offered or issued as a result of stock splits, stock dividends or similar transactions. |
(4) | The proposed maximum offering price per share is based on the average of the high and low per share prices of the Common Stock as reported on the New York Stock Exchange on December 13, 2013 in accordance with Rule 457(h)(1) and Rule 457(c) promulgated under the Securities Act. |
(5) | The proposed maximum offering price per share is based on $4.71, the weighted average exercise price per share of the outstanding options to purchase 29,345 shares of Common Stock in accordance with Rule 457(h)(1) promulgated under the Securities Act. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the Commission) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated herein by reference:
1. The Registrants Annual Report on Form 10-K for the fiscal year ended May 31, 2013 filed with the Commission on June 26, 2013 pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the Exchange Act).
2. The Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, 2013 filed with the Commission on September 20, 2013 pursuant to Section 13 of the Exchange Act and the Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended November 30, 2013 filed with the Commission on December 20, 2013 pursuant to Section 13 of the Exchange Act.
3. Each of the Registrants Current Reports on Form 8-K filed with the Commission pursuant to Section 13 of the Exchange Act on July 10, 2013, July 16, 2013, September 18, 2013, November 1, 2013 and December 18, 2013, only to the extent filed and not furnished.
4. The description of the Registrants Common Stock included in the Registrants registration statement on pages 7 through 8 of Form S-3 (Reg. No. 333-187919), filed with the Commission on April 15, 2013, including any amendments or reports filed for the purpose of updating such descriptions.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Brian S. Higgins, who is issuing the opinion of the Registrants Legal Department on the legality of the Registrants Common Stock offered hereby, is Vice President, Associate General Counsel and Assistant Secretary of the Registrant and holds employee stock options to purchase Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrants Amended and Restated Certificate of Incorporation includes a provision that eliminates the personal liability of each of its directors for monetary damages for breach of such directors fiduciary duty as a director, except for liability: (a) for any breach of the directors duty of loyalty to the Registrant or its stockholders; (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; (c) under Section 174 of the Delaware General Corporation Law; or (d) for any transaction from which the director derived an improper personal benefit. The directors liability will be further limited to the extent permitted by any future amendments to the Delaware General Corporation Law authorizing the further limitation or elimination of the liability of directors. In addition, as permitted by Section 145 of the Delaware General Corporation Law, the Bylaws of the Registrant provide that: (i) the Registrant is required to indemnify its directors and officers to the fullest extent permitted by Delaware law, including those circumstances in which indemnification would otherwise be discretionary; (ii) the Registrant is required to advance expenses, as incurred, to such directors and officers in connection with defending a proceeding (except that it is not required to advance expenses to a person against whom the Registrant brings a claim for breach of the duty of loyalty, failure to act in good faith, intentional misconduct, knowing violation of the law or deriving an improper personal benefit); (iii) the rights conferred in the Bylaws are not exclusive and the Registrant is authorized to enter into indemnification agreements with such directors, officers and employees; (iv) the Registrant is required to maintain director and officer liability insurance to the extent it determines that such insurance is reasonably available; and (v) the Registrant may not retroactively amend the Bylaw provisions in a way that is adverse to such directors and officers.
The Registrant has entered into indemnification agreements with its directors and a number of its officers containing provisions which provide for the indemnification of such directors or officers, as applicable, to the fullest extent permitted by Delaware law.
The indemnification provisions in the Bylaws, and any indemnification agreements entered into between the Registrant and its directors or officers, may be sufficiently broad to permit indemnification of the Registrants directors and officers for liabilities arising under the Securities Act.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. |
Description of Exhibit | |
5.1 | Opinion of Counsel | |
23.1 | Consent of Counsel (included in Exhibit 5.1) | |
23.2 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
24.1 | Power of Attorney (included on Signature Page) | |
99.1 | Oracle Corporation Amended and Restated 2000 Long-Term Equity Incentive Plan (incorporated by reference herein to Exhibit 10.04 of Oracle Corporations Quarterly Report on Form 10-Q filed with the Commission on December 20, 2013) | |
99.2 | Bitzer Mobile Inc. 2011 Stock Incentive Plan, as amended |
Item 9. Undertakings.
a. | The undersigned Registrant hereby undertakes: |
1. | To file, during any period in which offers or sales are being made pursuant to this Registration Statement, a post-effective amendment to this Registration Statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which is registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in Calculation of Registration Fee table in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
2. | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
3. | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
b. | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
c. | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 6Indemnification of Directors and Officers, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Redwood City, State of California, on this 20th day of December 2013.
ORACLE CORPORATION | ||
By: |
/s/ DORIAN DALEY | |
Name: | Dorian Daley | |
Title: |
Senior Vice President, General Counsel and Secretary |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Safra A. Catz and Dorian Daley, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and additions to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date | ||
/s/ LAWRENCE J. ELLISON Lawrence J. Ellison |
Chief Executive Officer and Director (Principal Executive Officer) |
December 20, 2013 | ||
/s/ SAFRA A. CATZ Safra A. Catz |
President, Chief Financial Officer and Director (Principal Financial Officer) |
December 20, 2013 | ||
/s/ WILLIAM COREY WEST William Corey West |
Senior Vice President, Corporate Controller and Chief Accounting Officer (Principal Accounting Officer) | December 20, 2013 | ||
/s/ JEFFREY O. HENLEY Jeffrey O. Henley |
Chairman of the Board of Directors | December 20, 2013 | ||
/s/ JEFFREY S. BERG Jeffrey S. Berg |
Director | December 20, 2013 | ||
/s/ H. RAYMOND BINGHAM H. Raymond Bingham |
Director | December 20, 2013 | ||
/s/ MICHAEL J. BOSKIN Michael J. Boskin |
Director |
December 20, 2013 | ||
/s/ BRUCE R. CHIZEN Bruce R. Chizen |
Director |
December 20, 2013 | ||
/s/ GEORGE H. CONRADES George H. Conrades |
Director |
December 20, 2013 | ||
/s/ HECTOR GARCIA-MOLINA Hector Garcia-Molina |
Director |
December 20, 2013 | ||
/s/ MARK V. HURD Mark V. Hurd |
President and Director |
December 20, 2013 | ||
/s/ NAOMI O. SELIGMAN Naomi O. Seligman |
Director |
December 20, 2013 |
EXHIBIT INDEX
Exhibit No. |
Description of Exhibit | |
5.1 | Opinion of Counsel | |
23.1 | Consent of Counsel (included in Exhibit 5.1) | |
23.2 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
24.1 | Power of Attorney (included on Signature Page) | |
99.1 | Oracle Corporation Amended and Restated 2000 Long-Term Equity Incentive Plan (incorporated by reference herein to Exhibit 10.04 of Oracle Corporations Quarterly Report on Form 10-Q filed with the Commission on December 20, 2013) | |
99.2 | Bitzer Mobile Inc. 2011 Stock Incentive Plan, as amended |
Exhibit 5.1
[ORACLE LETTERHEAD]
December 20, 2013
Oracle Corporation
500 Oracle Parkway
Redwood City, California 94065
Ladies and Gentlemen:
I am Vice President, Associate General Counsel and Assistant Secretary of Oracle Corporation (the Company), and I offer this opinion in connection with the Registration Statement on Form S-8 (the Registration Statement) to be filed with the Securities and Exchange Commission on or about December 20, 2013, in connection with the registration under the Securities Act of 1933, as amended, of 305,029,345 shares of the Common Stock of the Company, par value $0.01 (the Shares), of which 305,000,000 shares are to be issued under the Companys Amended and Restated 2000 Long-Term Equity Incentive Plan (the Oracle Plan) and 29,345 shares are issuable pursuant to equity awards assumed by the Company pursuant to the terms of the Agreement and Plan of Merger dated as of November 14, 2013 (the Merger Agreement), by and among the Company, OC Acquisition LLC, Bitzer Mobile Inc. (Bitzer) and certain other parties thereto. Pursuant to the Merger Agreement, the Company assumed outstanding equity awards of Bitzer under the Bitzer Mobile Inc. 2011 Stock Incentive Plan, as amended (together with the Oracle Plan, a Plan).
I have examined such documents and such matters of fact and law as I have deemed necessary to examine relating to the issuance of the Shares. It is my opinion that the Shares, when delivered pursuant to the terms of the applicable Plan, will be validly issued, fully paid and nonassessable.
I consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to myself in the Registration Statement and any amendments thereto.
Sincerely, |
/s/ BRIAN S. HIGGINS |
Brian S. Higgins |
Vice President, Associate General Counsel and Assistant Secretary |
Exhibit 23.2
Consent of Ernst & Young LLP,
Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Oracle Corporation Amended and Restated 2000 Long-Term Equity Incentive Plan and the Bitzer Mobile Inc. 2011 Stock Incentive Plan, as amended, of our reports dated June 26, 2013, with respect to the consolidated financial statements and schedule of Oracle Corporation and the effectiveness of internal control over financial reporting of Oracle Corporation included in its Annual Report (Form 10-K) for the year ended May 31, 2013, filed with the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
San Jose, California
December 20, 2013
Exhibit 99.2
BITZER MOBILE INC.
2011 STOCK INCENTIVE PLAN
Adopted by the Board on February 18, 2011
Approved by the Stockholders on February 18, 2011
TABLE OF CONTENTS
SECTION 1. | PURPOSE | 1 | ||||
SECTION 2. | DEFINITIONS | 1 | ||||
2.1 |
Board | 1 | ||||
2.2 |
Change in Control | 1 | ||||
2.3 |
Code | 2 | ||||
2.4 |
Committee | 2 | ||||
2.5 |
Company | 2 | ||||
2.6 |
Consultant | 2 | ||||
2.7 |
Disability | 2 | ||||
2.8 |
Employee | 2 | ||||
2.9 |
Exchange Act | 2 | ||||
2.10 |
Exercise Price | 2 | ||||
2.11 |
Fair Market Value | 2 | ||||
2.12 |
ISO | 2 | ||||
2.13 |
NSO | 3 | ||||
2.14 |
Option | 3 | ||||
2.15 |
Optionee | 3 | ||||
2.16 |
Outside Director | 3 | ||||
2.17 |
Parent | 3 | ||||
2.18 |
Plan | 3 | ||||
2.19 |
Purchase Price | 3 | ||||
2.20 |
Purchaser | 3 | ||||
2:21 |
Restricted Share Agreement | 3 | ||||
2.22 |
Securities Act | 3 | ||||
2.23 |
Service | 3 | ||||
2.24 |
Share | 3 | ||||
2.25 |
Stock | 3 | ||||
2.26 |
Stock Option Agreement | 4 | ||||
2.27 |
Subsidiary | 4 | ||||
2.28 |
Ten-Percent Stockholder | 4 | ||||
SECTION 3. | ADMINISTRATION | 4 | ||||
3.1 |
General Rule | 4 | ||||
3.2 |
Board Authority and Responsibility | 4 | ||||
SECTION 4. | ELIGIBILITY | 4 | ||||
4.1 |
General Rule | 4 | ||||
SECTION 5. | STOCK SUBJECT TO PLAN | 4 | ||||
5.1 |
Share Limit | 4 | ||||
5.2 |
Additional Shares | 5 |
-i-
SECTION 6. | RESTRICTED SHARES | 5 | ||||
6.1 |
Restricted Share Agreement | 5 | ||||
6.2 |
Duration of Offers and Nontransferability of Purchase Rights | 5 | ||||
6.3 |
Purchase Price | 5 | ||||
6.4 |
Repurchase Rights and Transfer Restrictions | 5 | ||||
SECTION 7. | STOCK OPTIONS | 5 | ||||
7.1 |
Stock Option Agreement | 5 | ||||
7.2 |
Number of Shares; Kind of Option | 6 | ||||
7.3 |
Exercise Price | 6 | ||||
7.4 |
Term | 6 | ||||
7.5 |
Exercisability | 6 | ||||
7.6 |
Repurchase Rights and Transfer Restrictions | 6 | ||||
7.7 |
Transferability of Options | 7 | ||||
7.8 |
Exercise of Options on Termination of Service | 7 | ||||
7.9 |
No Rights as a Stockholder | 7 | ||||
7.10 |
Modification, Extension and Renewal of Options | 7 | ||||
SECTION 8. | PAYMENT FOR SHARES | 7 | ||||
8.1 |
General | 7 | ||||
8.2 |
Surrender of Stock | 8 | ||||
8.3 |
Services Rendered | 8 | ||||
8.4 |
Promissory Notes | 8 | ||||
8.5 |
Exercise/Sale | 8 | ||||
8.6 |
Exercise/Pledge | 8 | ||||
8.7 |
Other Forms of Payment | 8 | ||||
SECTION 9. | ADJUSTMENT OF SHARES | 8 | ||||
9.1 |
General | 8 | ||||
9.2 |
Dissolution or Liquidation | 9 | ||||
9.3 |
Mergers and Consolidations | 9 | ||||
9.4 |
Reservation of Rights | 9 | ||||
SECTION 10. | REPURCHASE RIGHTS | 9 | ||||
10.1 |
Companys Right To Repurchase Shares | 9 | ||||
SECTION 11. | WITHHOLDING AND OTHER TAXES | 10 | ||||
11.1 |
General | 10 | ||||
11.2 |
Share Withholding | 10 | ||||
11.3 |
Cashless Exercise/Pledge | 10 | ||||
11.4 |
Other Forms of Payment | 10 | ||||
11.5 |
Employer Fringe Benefit Taxes | 10 | ||||
SECTION 12. | SECURITIES LAW REQUIREMENTS | 10 | ||||
12.1 |
General | 10 | ||||
12.2 |
Dividend Rights | 10 | ||||
SECTION 13. | NO RETENTION RIGHTS | 11 |
-ii-
SECTION 14. | DURATION AND AMENDMENTS | 11 | ||||
14.1 |
Term of the Plan | 11 | ||||
14.2 |
Right to Amend or Terminate the Plan | 11 | ||||
14.3 |
Effect of Amendment or Termination | 11 | ||||
SECTION 15. | EXECUTION | 12 | ||||
APPENDIX A. AMENDMENT | A-1 |
-iii-
BITZER MOBILE INC.
2011 STOCK INCENTIVE PLAN
SECTION 1. PURPOSE.
The Plan was adopted by the Board of Directors effective February 18, 2011. The purpose of the Plan is to offer selected service providers the opportunity to acquire equity in the Company through awards of Options (which may constitute incentive stock options or nonstatutory stock options) and the award or sale of Shares.
The award of Options and the award or sale of Shares under the Plan is intended to be exempt from the securities qualification requirements of the California Corporations Code by satisfying the exemption under section 25102(o) of the California Corporations Code. However, awards of Options and the award or sale of Shares may be made in reliance upon other state securities law exemptions. To the extent that such other exemptions are relied upon, the terms of this Plan which are included only to comply with section 25102(0) shall be disregarded to the extent provided in the Stock Option Agreement or Restricted Share Agreement. In addition, to the extent that section 25102(0) or the regulations promulgated thereunder are amended to delete any requirements set forth in such law or regulations, the terms of this Plan which are included only to comply with section 25102(0) or the regulations promulgated thereunder as in effect prior to any such amendment shall be disregarded to the extent permitted by applicable law.
SECTION 2. DEFINITIONS.
2.1 | Board shall mean the Board of Directors of the Company, as constituted from time to time. |
2.2 | Change in Control shall mean the occurrence of any of the following events: |
(a) | The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization fifty percent (50%) or more of the voting power of the outstanding securities of each of (A) the continuing or surviving entity and (B) any direct or indirect parent corporation of such continuing or surviving entity; |
(b) | The consummation of the sale, transfer or other disposition of all or substantially all of the Companys assets or the stockholders of the Company approve a plan of complete liquidation of the Company; or |
(c) | Any person (as defined below) who, by the acquisition or aggregation of securities, is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Companys then outstanding securities ordinarily (and apart from rights accruing under special circumstances) having the right to vote at elections of directors (the |
-1-
Base Capital Stock); except that any change in the relative beneficial ownership of the Companys securities by any person resulting solely from a reduction in the aggregate number of outstanding shares of Base Capital Stock, and any decrease thereafter in such persons ownership of securities, shall be disregarded until such person increases in any manner, directly or indirectly, such persons beneficial ownership of any securities of the Company. |
For purposes of Section 2.2(c), the term person shall have the same meaning as when used in sections 13(d) and 14(d) of the Exchange Act but shall exclude (1) a trustee or other fiduciary holding securities under an employee benefit plan maintained by the Company or a Parent or Subsidiary and (2) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the Stock.
Notwithstanding the foregoing, the term Change in Control shall not include (a) a transaction the sole purpose of which is to change the state of the Companys incorporation, (b) a transaction the sole purpose of which is to form a holding company that will be owned in substantially the same proportions by the persons who held the Companys securities immediately before such transaction, (c) a transaction the sole purpose of which is to make an initial public offering of the Companys Stock or (d) any change in the beneficial ownership of the securities of the Company as a result of a private financing of the Company that is approved by the Board.
2.3 | Code shall mean the Internal Revenue Code of 1986, as amended. |
2.4 | Committee shall mean the committee designated by the Board, which is authorized to administer the Plan, as described in Section 3 hereof. |
2.5 | Company shall mean Bitzer Mobile Inc., a Delaware corporation. |
2.6 | Consultant shall mean a consultant or advisor who is not an Employee or Outside Director and who performs bona fide services for the Company, a Parent or Subsidiary. |
2.7 | Disability shall mean a condition that renders an individual unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment. |
2.8 | Employee shall mean any individual who is a common-law employee of the Company, a Parent or a Subsidiary and who is an employee within the meaning of section 340l(c) of the Code and regulations issued thereunder. |
2.9 | Exchange Act shall mean the U.S. Securities and Exchange Act of 1934, as amended. |
2.10 | Exercise Price shall mean the amount for which one Share may be purchased upon the exercise of an Option, as specified in a Stock Option Agreement. |
2.11 | Fair Market Value means, with respect to a Share, the market price of one Share of Stock, determined by the Board in good faith. Such determination shall be conclusive and binding on all persons. |
2.12 | ISO shall mean an incentive stock option described in section 422(b) of the Code. |
-2-
2.13 | NSO shall mean a stock option that is not an ISO. |
2.14 | Option shall mean an ISO or NSO granted under the Plan and entitling the holder to purchase Shares. |
2.15 | Optionee shall mean a person that holds an Option. |
2.16 | Outside Director shall mean a member of the Board of the Company, a Parent or a Subsidiary who is not an Employee. |
2.17 | Parent shall mean any corporation (other than the Company) in an unbroken chain of corporations ending with the Company, if each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date. |
2.18 | Plan shall mean the Bitzer Mobile Inc. 2011 Stock Incentive Plan. |
2.19 | Purchase Price shall mean the consideration for which one Share may be acquired under the Plan (other than upon exercise of an Option). |
2.20 | Purchaser shall mean a person to whom the Board has offered the right to acquire Shares under the Plan (other than upon exercise of an Option). |
2.21 | Restricted Share Agreement shall mean the agreement between the Company and a Purchaser who acquires Shares under the Plan that contains the terms, conditions and restrictions pertaining to the acquisition of such Shares. |
2.22 | Securities Act shall mean the U.S. Securities Act of 1933, as amended. |
2.23 | Service shall mean service as an Employee, a Consultant or an Outside Director, subject to such further limitations as may be set forth in the applicable Stock Option Agreement or Restricted Share Agreement. Service shall be deemed to continue during a bona fide leave of absence approved by the Company in writing if and to the extent that continued crediting of Service for purposes of the Plan is expressly required by the terms of such leave or by applicable law, as determined by the Company. However, for purposes of determining whether an Option is entitled to ISO status, and to the extent required under the Code, an Employees employment will be treated as terminating three (3) months after such Employee went on leave, unless such Employees right to return to active work is guaranteed by law or by a contract or such Employee immediately returns to active work. The Company determines which leaves count toward Service, and when Service terminates for all purposes under the Plan. |
2.24 | Share shall mean one share of Stock, as adjusted in accordance with Section 9 (if applicable). |
2.25 | Stock shall mean the common stock of the Company. |
-3-
2.26 | Stock Option Agreement shall mean the agreement between the Company and an Optionee which contains the terms, conditions and restrictions pertaining to the Optionees Option. |
2.27 | Subsidiary means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date. |
2.28 | Ten-Percent Stockholder means an individual who owns more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company, its Parent or any of its Subsidiaries. In determining stock ownership for purposes of this Section 2.28, the attribution rules of section 424(d) of the Code shall be applied. |
SECTION 3. ADMINISTRATION.
3.1 | General Rule. The Plan shall be administered by the Board. However, the Board may delegate any or all administrative functions under the Plan otherwise exercisable by the Board to one or more Committees. Each Committee shall consist of at least one member of the Board who has been appointed by the Board. Each Committee shall have the authority and be responsible for such functions as the Board has assigned to it. If a Committee has been appointed, any reference to the Board in the Plan shall be construed as a reference to the Committee to whom the Board has assigned a particular function. To the extent permitted by applicable law, the Board may also authorize one or more officers of the Company to designate Employees, other than such authorized officer or officers, to receive awards and/or to determine the number of such awards to be received by such persons; provided, however, that the Board shall specify the total number of awards that such officer or officers may so award. |
3.2 | Board Authority and Responsibility. Subject to the provisions of the Plan, the Board shall have full authority and discretion to take any actions it deems necessary or advisable for the administration of the Plan. All decisions, interpretations and any other actions of the Board with respect to the Plan shall be final and binding on all persons deriving rights under the Plan. |
SECTION 4. ELIGIBILITY.
4.1 | General Rule. Only Employees shall be eligible for the grant of ISOs. Only Employees, Consultants and Outside Directors shall be eligible for the grant of NSOs or the award or sale of Shares. |
SECTION 5. STOCK SUBJECT TO PLAN.
5.1 | Share Limit. Subject to Sections 5.2 and 9, the aggregate number of Shares which may be issued under the Plan shall not exceed 1,000,000 Shares. The number of Shares which are subject to Options or other rights outstanding at any time shall not exceed the number of Shares which then remain available for issuance under the Plan. The Company, during |
-4-
the term of the Plan, shall at all times reserve and keep available sufficient Shares to satisfy the requirements of the Plan. Shares offered under the Plan may be authorized but unissued Shares or treasury Shares. |
5.2 | Additional Shares. In the event that any outstanding Option or other right expires or is canceled for any reason, the Shares allocable to the unexercised portion of such Option or other right shall remain available for issuance pursuant to the Plan. If a Share previously issued under the Plan is reacquired by the Company pursuant to a forfeiture provision, then such Share shall again become available for issuance under the Plan. |
SECTION 6. RESTRICTED SHARES.
6.1 | Restricted Share Agreement. Each award or sale of Shares under the Plan (other than upon exercise of an Option) shall be evidenced by a Restricted Share Agreement between the Purchaser and the Company. Such award or sale shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions imposed by the Board, as set forth in the Restricted Share Agreement, that are not inconsistent with the Plan. The provisions of the various Restricted Share Agreements entered into under the Plan need not be identical. |
6.2 | Duration of Offers and Nontransferability of Purchase Rights. Any right to acquire Shares (other than an Option) shall automatically expire if not exercised by the Purchaser within thirty (30) days after the Company communicates the grant of such right to the Purchaser. Such right shall be nontransferable and shall be exercisable only by the Purchaser to whom the right was granted. |
6.3 | Purchase Price. To the extent an award consists of newly issued Shares, the award recipient shall furnish consideration having a value not less than the par value of such Shares as determined by the Board. Subject to the foregoing in this Section 6.3, the Board shall determine the amount of the Purchase Price in its sole discretion. The Purchase Price shall be payable in a form described in Section 8. |
6.4 | Repurchase Rights and Transfer Restrictions. Each award or sale of Shares shall be subject to such forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Board may determine, subject to the requirements of Section 10. Such restrictions shall be set forth in the applicable Restricted Share Agreement and shall apply in addition to any restrictions otherwise applicable to holders of Shares generally. |
SECTION 7. STOCK OPTIONS.
7.1 | Stock Option Agreement. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. The Option shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions imposed by the Board, as set forth in the Stock Option Agreement, which are not inconsistent with the Plan. The provisions of the various Stock Option Agreements entered into under the Plan need not be identical. |
-5-
7.2 | Number of Shares; Kind of Option. Each Stock Option Agreement shall specify the number of Shares that are subject to the Option and shall provide for the adjustment of such number in accordance with Section 9. The Stock Option Agreement shall also specify whether the Option is intended to be an ISO_ or an NSO. |
7.3 | Exercise Price. Each Stock Option Agreement shall set forth the Exercise Price, which shall be payable in a form described in Section 8. Subject to the following requirements, the Exercise Price under any Option shall be determined by the Board in its sole discretion: |
(a) | Minimum Exercise Price for ISOs. The Exercise Price per Share of an ISO shall not be less than one hundred percent (100%) of the Fair Market Value of a Share on the date of grant; provided, however, that the Exercise Price per Share of an ISO granted to a Ten-Percent Stockholder shall not be less than one hundred ten percent (110%) of the Fair Market Value of a Share on the date of grant. |
(b) | Minimum Exercise Price for NSOs. The Exercise Price per Share of an NSO shall not be less than one-hundred percent (100%) of the Fair Market Value of a Share on the date of grant. |
7.4 | Term. Each Stock Option Agreement shall specify the term of the Option. The term of an Option shall in no event exceed ten (10) years from the date of grant. The term of an ISO granted to a Ten-Percent Stockholder shall not exceed five (5) years from the date of grant. Subject to the foregoing, the Board in its sole discretion shall determine when an Option shall expire. |
7.5 | Exercisability. Each Stock Option Agreement shall specify the date when all or any installment of the Option is to become exercisable; provided, however, that no Option shall be exercisable unless the Optionee has delivered to the Company an executed copy of the Stock Option Agreement. Subject to the following restrictions, the Board in its sole discretion shall determine when all or any installment of an Option is to become exercisable and may, in its discretion, provide for accelerated exercisability in the event of a Change in Control or other events: |
(a) | Options Granted to Outside Directors. The exercisability of an Option granted to an Optionee for service as an Outside Director shall be automatically accelerated in full in the event of a Change in Control. |
(b) | Early Exercise. A Stock Option Agreement may permit the Optionee to exercise the Option as to Shares that are subject to a right of repurchase by the Company in accordance with the requirements of Section 10.1. |
7.6 | Repurchase Rights and Transfer Restrictions. Shares purchased on exercise of Options shall be subject to such forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Board may determine, subject to the requirements of Section 10. Such restrictions shall be set forth in the applicable Stock Option Agreement and shall apply in addition to any restrictions otherwise applicable to holders of Shares generally. |
-6-
7.7 | Transferability of Options. During an Optionees lifetime, his or her Options shall be exercisable only by the Optionee or by the Optionees guardian or legal representatives, and shall not be transferable other than by beneficiary designation, will or the laws of descent and distribution. Notwithstanding the foregoing, however, to the extent permitted by the Board in its sole discretion, an NSO may be transferred by the Optionee to a revocable trust or to one or more family members or a trust established for the benefit of the Optionee and/or one or more family members to the extent permitted by section 260.140.4l(c) of Title 10 of the California Code of Regulations and Rule 701 of the Securities Act. |
7.8 | Exercise of Options on Termination of Service. Each Option shall set forth the extent to which the Optionee shall have the right to exercise the Option following termination of the Optionees Service. Each Stock Option Agreement shall provide the Optionee with the right to exercise the Option following the Optionees termination of Service during the Option term, to the extent the Option was exercisable for vested Shares upon termination of Service, for at least thirty (30) days if termination of Service is due to any reason other than cause, death or Disability, and for at least six (6) months after termination of Service if due to death or Disability (but in no event later than the expiration of the Option term). If the Optionees Service is terminated for cause, the Stock Option Agreement may provide that the Optionees right to exercise the Option terminates immediately on the effective date of the Optionees termination. To the extent the Option was not exercisable for vested Shares upon termination of Service, the Option shall terminate when the Optionees Service terminates. Subject to the foregoing, such provisions shall be determined in the sole discretion of the Board, need not be uniform among all Options issued pursuant to the Plan, and may reflect distinctions based on the reasons for termination of Service. |
7.9 | No Rights as a Stockholder. An Optionee, or a transferee of an Optionee, shall have no rights as a stockholder with respect to any Shares covered by the Option until such person becomes entitled to receive such Shares by filing a notice of exercise and paying the Exercise Price pursuant to the terms of the Option. No adjustments shall be made, except as provided in Section 9. |
7.10 | Modification, Extension and Renewal of Options. Within the limitations of the Plan, the Board may modify, extend or renew outstanding Options or may accept the cancellation of outstanding Options (to the extent not previously exercised), whether or not granted hereunder, in return for the grant of new Options for the same or a different number of Shares and at the same or a different Exercise Price. The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, materially impair his or her rights or increase the Optionees obligations under such Option. |
SECTION 8. PAYMENT FOR SHARES.
8.1 | General. The entire Purchase Price or Exercise Price of Shares issued under the Plan shall be payable in cash, cash equivalents or one of the other forms provided in this Section 8. |
-7-
8.2 | Surrender of Stock. To the extent permitted by the Board in its sole discretion, payment may be made in whole or in part by surrendering (in good form for transfer), or attesting to ownership of, Shares which have already been owned by the Optionee; provided, however, that payment may not be made in such form if such action would cause the Company to recognize any (or additional) compensation expense with respect to the Option for financial reporting purposes. Such Shares shall be valued at their Fair Market Value on the date of Option exercise. |
8.3 | Services Rendered. As determined by the Board in its discretion, Shares may be awarded under the Plan in consideration of past or future services rendered to the Company, a Parent or Subsidiary. |
8.4 | Promissory Notes. To the extent permitted by the Board in its sole discretion, payment may be made in whole or in part with a full-recourse promissory note executed by the Optionee or Purchaser. The interest rate payable under the promissory note shall not be less than the minimum rate required to avoid the imputation of income for U.S. federal income tax purposes. Shares shall be pledged as security for payment of the principal amount of the promissory note, and interest thereon; provided that if the Optionee or Purchaser is a Consultant, such note must be collateralized with such additional security to the extent required by applicable laws. In no event shall the stock certificate(s) representing such Shares be released to the Optionee or Purchaser until such note is paid in full. Subject to the foregoing, the Board shall determine the term, interest rate and other provisions of the note. |
8.5 | Exercise/Sale. To the extent permitted by the Board in its sole discretion, and if a public market for the Shares exists, payment may be made in whole or in part by delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker approved by the Company to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of all or part of the Exercise Price and any withholding taxes. |
8.6 | Exercise/Pledge. To the extent permitted by the Board in its sole discretion, and if a public market for the Shares exists, payment may be made in whole or in part by delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker or lender approved by the Company to pledge Shares, as security for a loan, and to deliver all or part of the loan proceeds to the Company in payment of all or part of the Exercise Price and any withholding taxes. |
8.7 | Other Forms of Payment. To the extent permitted by the Board in its sole discretion, payment may be made in any other form that is consistent with applicable laws, regulations and rules. |
SECTION 9. ADJUSTMENT OF SHARES.
9.1 | General. In the event of a subdivision of the outstanding Stock, a declaration of a dividend payable in Shares, a declaration of an extraordinary dividend payable in a form other than Shares in an amount that has a material effect on the Fair Market Value of the Stock, a combination or consolidation of the outstanding Stock into a lesser number of Shares, a recapitalization, a spin-off, a reclassification, or a similar occurrence, the Board shall make appropriate adjustments to the following: (i) the number of Shares available |
-8-
for future awards under Section 5; (ii) the number of Shares covered by each outstanding Option; (iii) the Exercise Price under each outstanding Option; and (iv) the price of Shares subject to the Companys right of repurchase. |
9.2 | Dissolution or Liquidation. To the extent not previously exercised or settled, Options shall terminate immediately prior to the dissolution or liquidation of the Company. |
9.3 | Mergers and Consolidations. In the event that the Company is a party to a merger or other consolidation, or in the event of a transaction providing for the sale of all or substantially all of the Companys stock or assets, outstanding Options shall be subject to the agreement of merger, consolidation or sale. Such agreement may provide for one or more of the following: (i) the continuation of the outstanding Options by the Company, if the Company is a surviving corporation; (ii) the assumption of the Plan and outstanding Options by the surviving corporation or its parent; (iii) the substitution by the surviving corporation or its parent of options with substantially the same terms for such outstanding Options; (iv) immediate exercisability of such outstanding Options followed by the cancellation of such Options; or (v) settlement of the intrinsic value of the outstanding Options (whether or not then exercisable) in cash or cash equivalents or equity (including cash or equity subject to deferred vesting and delivery consistent with the vesting restrictions applicable to such Options or the underlying Shares) followed by the cancellation of such Options; in each case without the Optionees consent. |
9.4 | Reservation of Rights. Except as provided in this Section 9, an Optionee or offeree shall have no rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend or any other increase or decrease in the number of shares of stock of any class. Any issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or Exercise Price of Shares subject to an Option. The grant of an Option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets. |
SECTION 10. REPURCHASE RIGHTS.
10.1 | Companys Right To Repurchase Shares. The Company shall have the right to repurchase Shares that have been acquired through an award or sale of Shares or exercise of an Option upon termination of the Purchasers or Optionees Service if provided in the applicable Restricted Share Agreement or Stock Option Agreement. The Board in its sole discretion shall determine when the right to repurchase shall lapse as to all or any portion of the Shares, and may, in its discretion, provide for accelerated vesting in the event of a Change in Control or other events; provided, however, that the right to repurchase shall lapse as to all of the Shares issued to an Outside Director for service as an Outside Director in the event of Change in Control. |
-9-
SECTION 11. WITHHOLDING AND OTHER TAXES.
11.1 | General. An Optionee or Purchaser or his or her successor shall pay, or make arrangements satisfactory to the Board for the satisfaction of, any federal, state, local or foreign withholding tax obligations that may arise in connection with the Plan. The Company shall not be required to issue any Shares or make any cash payment under the Plan until such obligations are satisfied. |
11.2 | Share Withholding. The Board may permit an Optionee or Purchaser to satisfy all or part of his or her withholding or income tax obligations by having the Company withhold all or a portion of any Shares that would otherwise be issued to him or her upon exercise of an Option, or by surrendering all or a portion of any Shares that he or she previously acquired; provided, however, that in no event may an Optionee or Purchaser surrender Shares in excess of the legally required withholding amount based on the minimum statutory withholding rates for federal and state tax purposes that apply to supplemental taxable income. Such Shares shall be valued at their Fair Market Value on the date when taxes otherwise would be withheld in cash. Any payment of taxes by assigning Shares to the Company may be subject to restrictions, including any restrictions required by rules of any federal or state regulatory body or other authority. All elections by Optionees or Purchasers to have Shares withheld for this purpose shall be made in such form and under such conditions as the Board may deem necessary or advisable. |
11.3 | Cashless Exercise/Pledge. The Board may provide that if Company Shares are publicly traded at the time of exercise, arrangements may be made to meet the Optionees or Purchasers withholding obligation by cashless exercise or pledge. |
11.4 | Other Forms of Payment. The Board may permit such other means of tax withholding as it deems appropriate. |
11.5 | Employer Fringe Benefit Taxes. To the extent permitted by applicable federal, state, local and foreign law, an Optionee or Purchaser shall be liable for any fringe benefit tax that may be payable by the Company and/or the Optionees or Purchasers employer in connection with any award granted to the Optionee or Purchaser under the Plan, which the Company and/or employer may collect by any reasonable method established by the Company and/or employer. |
SECTION 12. SECURITIES LAW REQUIREMENTS.
12.1 | General. Shares shall not be issued under the Plan unless the issuance and delivery of such Shares complies with (or is exempt from) all applicable requirements of law, including (without limitation) the Securities Act, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Companys securities may then be listed. |
12.2 | Dividend Rights. A Restricted Share Agreement may require that the holders of Shares invest any cash dividends received in additional Shares. Such additional Shares shall be subject to the same conditions and restrictions as the award with respect to which the dividends were paid. |
-10-
SECTION 13. NO RETENTION RIGHTS.
No provision of the Plan, or any right or Option granted under the Plan, shall be construed to give any Optionee or Purchaser any right to become an Employee, to be treated as an Employee, or to continue in Service for any period of time, or restrict in any way the rights of the Company (or Parent or subsidiary to whom the Optionee or Purchaser provides Service), which rights are expressly reserved, to terminate the Service of such person at any time and for any reason, with or without cause, without thereby incurring any liability to him or her.
SECTION 14. DURATION AND AMENDMENTS.
14.1 | Term of the Plan. The Plan, as set forth herein, shall become effective on the date of its adoption by the Board, subject to the approval of the Companys stockholders. In the event that the stockholders fail to approve the Plan within twelve (12) months after its adoption by the Board, any grants, exercises or sales that have already occurred under the Plan shall be rescinded, and no additional grants, exercises or sales shall be made under the Plan after such date. The Plan shall terminate automatically ten (10) years after its adoption by the Board. The Plan may be terminated on any earlier date pursuant to Section 14.2 below. |
14.2 | Right to Amend or Terminate the Plan. The Board may amend, suspend, or terminate the Plan at any time and for any reason. An amendment of the Plan shall not be subject to the approval of the Companys stockholders unless it (i) increases the number of Shares available for issuance under the Plan (except as provided in Section 9) or (ii) materially changes the class of persons who are eligible for the grant of Options or the award or sale of Shares. |
14.3 | Effect of Amendment or Termination. No Shares shall be issued or sold under the Plan after the termination thereof, except upon exercise of an Option granted prior to such termination. The termination of the Plan, or any amendment thereof, shall not adversely affect any Shares previously issued or any Option previously granted under the Plan without the holders consent. |
-11-
SECTION 15. EXECUTION.
To record the adoption of the Plan by the Board on February 18, 2011, effective on such date, the Company has caused its authorized officer to execute the same.
BITZER MOBILE INC. |
/s/ Amer Haider |
Amer Haider |
Chairman of the Board |
-12-
AMENDMENT TO
BITZER MOBILE INC.
2011 STOCK INCENTIVE PLAN
In accordance with Section 14.2 of the Bitzer Mobile Inc. 2011 Stock Incentive Plan (the Plan), the Plan is hereby amended as follows, effective as of the Effective Time (as defined in the Merger Agreement):
1. | Section 1.0 of the Plan is hereby amended such that a new second sentence is added to read as follows: |
The Plan was most recently amended effective as of the Effective Time (as defined in a certain Agreement and Plan of Merger by and among OC Acquisition LLC, a Delaware limited liability company (Parent), Blitzen Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent, the Company, and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as Holder Representative, dated as of November 14, 2013 (the Merger Agreement)).
2. | Section 4.1 of the Plan is hereby amended in its entirety to read as follows: |
General Rule. Only Employees shall be eligible for the grant of ISOs. Only Employees, Consultants and Outside Directors shall be eligible for the grant of NSOs or the award of sale of Shares; provided, however, that from and after the Effective Time (as defined in the Merger Agreement), no further Awards shall be granted under the Plan.
3. | Section 9.3 of the Plan is hereby amended to add the following last sentence: |
In addition to, and in no way limiting the foregoing, in the case of and subject to the consummation of the Merger (pursuant to the Merger Agreement), this Plan and all unvested Options hereunder that provide for an exercise price per share that is equal to or less than the Per Share Merger Consideration (as defined in the Merger Agreement) may be assumed by the successor entity (such Options, the Assumed Options).
4. | Section 14.2 of the Plan is hereby amended to added the following last sentence: |
Notwithstanding anything in this Plan to the contrary, in the case of and subject to the consummation of the Merger (pursuant to the Merger Agreement), the exercise price of an Assumed Option may not be reduced, and no Assumed Option may be amended or cancelled for the purpose of repricing, replacing or regranting such Assumed Option with an exercise price that is less than the original exercise price of such Assumed Option.
To record the amendment of the Plan, Bitzer Mobile Inc. has executed this document this 14th day of November, 2013.
BITZER MOBILE INC. | ||
By: | /s/ Naeem Zafar | |
Title: | Chief Executive Officer |
A-1