UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): June 11,
2014
XcelMobility Inc.
(Exact
Name of Registrant as Specified in its Charter)
| Nevada |
000-54333 |
98-0561888 |
| (State or other jurisdiction |
(Commission File Number) |
(IRS Employer |
| of incorporation) |
|
Identification No.) |
| 303 Twin Dolphins Drive, Suite 600 |
|
| Redwood City, CA |
94065 |
| (Address of Principal Executive Offices) |
(Zip Code) |
Registrant’s telephone number, including area code: (650)
632-4210
Former Name or Former Address, if Changed Since Last Report:
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
SECTION 5 – CORPORATE GOVERNANCE AND MANAGEMENT
| Item 5.03. |
Amendments to Articles of Incorporation or
Bylaws; Change in Fiscal Year. |
On June 11, 2014, XcelMobility, Inc., a Nevada corporation (the
“Company”) filed a Certificate of Amendment to the Company’s Articles of
Incorporation to increase the total number of authorized shares of common stock
from 100,000,000 to 400,000,000 (the “Certificate of Amendment”). As disclosed
in the Company’s Schedule 14C Information Statement filed with the Securities
and Exchange Commission on May 23, 2014, on May 9, 2014, the board of directors
of the Company and shareholders holding an aggregate of 38,352,000 shares, or
approximately 52.3% of the Company’s common stock, took action by written
consent for the purpose of approving the Certificate of Amendment.
A copy of the Certificate of Amendment is filed herewith as
Exhibit 3.1 and is incorporated herein by reference.
SECTION 8 – OTHER EVENTS
Effective June 11, 2014, the XcelMobility, Inc. 2014 Equity
Incentive Plan (the “Plan”) has been approved and adopted by the Company. As
disclosed in the Company’s Schedule 14C Information Statement filed with the
Securities and Exchange Commission on May 23, 2014, on May 9, 2014, the board of
directors of the Company and shareholders holding an aggregate of 38,352,000
shares, or approximately 52.3% of the Company’s common stock, took action by
written consent for the purpose of approving the Plan.
A copy of the Plan is filed herewith as Exhibit 99.1 and is
incorporated herein by reference.
SECTION 9 – FINANCIAL STATEMENTS AND EXHIBITS
| Item 9.01. |
Financial Statements and Exhibits.
|
SIGNATURE
Pursuant to the requirements of
the Securities Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly authorized.
| |
XcelMobility Inc., |
| |
a Nevada Corporation |
| |
|
| |
|
| Dated: June _, 2014 |
/s/
Ron Strauss |
| |
Ron Strauss |
| |
Chairman of the Board of Directors
|
 |
ROSS MILLER |
| Secretary of State |
| 204 North Carson Street, Suite 1 |
| Carson City, Nevada 89701-4520 |
| (775) 684-5708 |
| Website: www.nvsos.gov
|
Certificate of Amendment
(PURSUANT TO NRS 78.385 AND 78.390)
|
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| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
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Certificate of Amendment to Articles of Incorporation
For Nevada Profit Corporations
(Pursuant to NRS 78.385 and
78.390 - After Issuance of Stock)
1. Name of corporation:
2. The articles have been amended as follows: (provide article
numbers, if available)
|
The Corporation shall have authority to issue a total of
Four Hundred Million (400,000,000) shares of Common Stock, par value
$0.001 per share, and 20,000,000 Preferred Shares, par value $0.001. To
the fullest extent permitted by the laws of the State of Nevada (currently
set forth in NRS 78.195 and 78.1955), as the same now exists or may
hereafter be amended or supplemented, the board of directors may fix and
determine the designations, rights, preferences or other variations of
each class or series within each class of capital stock of the
Corporation. The Corporation may issue the shares of stock for such
consideration as may be fixed by the board of directors.
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3. The vote by which the stockholders holding shares in the
corporation entitling them to exercise at least a majority of the voting power,
or such greater proportion of the voting power as may be required in the case of
a vote by classes or series, or as may be required by the provisions of the
articles of incorporation* have voted in favor of the amendment is:
__________________________________________________
| 4. Effective date and time of filing: (optional) |
Date: ____________________ |
Time: ____________________ |
| |
(must not be later than 90 days
after the certificate is filed) |
5. Signature: (required)
X
__________________________________________________
Signature of Officer
*If any proposed amendment would alter or change any preference
or any relative or other right given to any class or series of outstanding
shares, then the amendment must be approved by the vote, in addition to the
affirmative vote otherwise required, of the holders of shares representing a
majority of the voting power of each class or series affected by the amendment
regardless to limitations or restrictions on the voting power thereof.
IMPORTANT: Failure to include any of the above
information and submit with the proper fees may cause this filing to be
rejected.
| |
Nevada Secretary of State Amend Profit-After
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| This form must be accompanied by appropriate fees.
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Revised: 11-27-13 |
XCELMOBILITY, INC.
2014 EQUITY INCENTIVE
PLAN
1. Purpose.
The purpose of this XcelMobility, Inc. 2014 Equity Incentive Plan (the
“Plan”) is to assist XcelMobility, Inc., a Nevada corporation (the “Company”),
and its subsidiaries in attracting, retaining, and rewarding high-quality
executives, employees, and other persons who provide services to the Company
and/or its Affiliates and Subsidiaries, by enabling these persons to acquire or
increase a proprietary interest in the Company.
2. Definitions.
For purposes of the Plan, the following terms shall be defined as set forth
below, in addition to such terms defined in Section 1 hereof:
(a)
“Affiliate” means an entity which is not a Subsidiary, but in which the Company
has an equity interest, provided, however, that no entity will be considered an
Affiliate for purposes of an Award of Nonqualified Stock Options or SARs to an
employee or director of, or consultant to, the entity unless the Stock would be
considered “service recipient stock” within the meaning of Code Section 409A, in
the context of such an Award.
(b) “Award” means an award under the Plan of Options, SARs, Restricted Stock,
Restricted Stock Units, Performance Shares, Performance Units or Other
Stock-Based Awards granted under the Plan.
(c) “Beneficiary” means the person(s), trust(s) or estate who or which by
designation of the Participant in his or her most recent written beneficiary
designation filed with the Company or by operation of law succeeds to the rights
and obligations of the Participant under the Plan and Award agreement upon such
Participant’s death.
(d) “Board” means the Board of
Directors of the Company.
(e) “Cause” means, unless otherwise
defined in an Award agreement or in an Employment Agreement:
(1) the
commission by the Participant of (A) a felony or (B) any serious crime involving
fraud, dishonesty or breach of trust;
(2) gross negligence or intentional misconduct by the Participant with respect to
the Company or any affiliate thereof or in the performance of his duties to the
Company or any affiliate thereof;
(3) failure to follow a reasonable, lawful and specific direction of the President
and CEO of the Company;
(4) failure by the Participant to cooperate in any corporate investigation, or
(5) breach by the Participant of any material provision of an employment agreement
entered into between the Company or its subsidiaries and the Participant, which
breach is not corrected by the Participant within ten (10) calendar days after
receipt by the Participant of written notice from the Company or Affiliate of
such breach.
For purposes of this definition, no act
or failure to act by the Participant shall be considered “intentional” unless
done or omitted to be done by the Participant in bad faith and without reasonable belief that the Participant’s action or omission was
in the best interests of the Company or Affiliate.
(f) “Change of Control” means the
happening of any of the following events:
(1) The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”)) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (A) the then outstanding shares of Stock (the “Outstanding
Company Common Stock”) or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”), provided, however, that
the following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company; (ii) any acquisition by the Company;
(iii) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any company controlled by the Company; or (iv)
any acquisition by any corporation pursuant to a transaction described in
clauses (A), (B) and (C) of paragraph (3) of this Section 2(f); or
(2) Individuals who, as of the effective date of the Plan, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board, provided, however, that any individual becoming a director subsequent to
such effective date whose election, or nomination for election by the
stockholders of the Company, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(3) Approval by the stockholders of the Company of a reorganization, merger, share
exchange or consolidation (a “Business Combination”), unless, in each case
following such Business Combination: (A) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then-outstanding shares of
common stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation that as a result of such transaction owns the
Company through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be; (B) no Person (excluding any employee benefit plan (or related
trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then-outstanding voting securities of such corporation Company except to the
extent that such Person owned 25% or more of the Outstanding Company Common
Stock or Outstanding Company Voting Securities prior to the Business
Combination; and (C) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
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(4) Approval by the stockholders of the Company of (A) a complete liquidation or
dissolution of the Company or (B) the sale or other disposition of all or
substantially all of the assets of the Company, other than to a corporation with
respect to which, following such sale or other disposition: (i) more than 50%
of, respectively, the then-outstanding shares of common stock of such
corporation and the combined voting power of the then-outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be; (ii) less than 25%
of, respectively, the then outstanding shares of common stock of such Company
and the combined voting power of the then outstanding voting securities of such
Company entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by any Person (excluding any
employee benefit plan (or related trust) of the Company or such Company), except
to the extent that such Person owned 25% or more of the Outstanding Company
Common Stock or Outstanding Company Voting Securities prior to the sale or
disposition; and (iii) at least a majority of the members of the board of
directors of such corporation were members of the Incumbent Board at the time of
the execution of the initial agreement, or of the action of the Board, providing
for such sale or other disposition of assets of the Company or were elected,
appointed or nominated by the Board.
(g) “Change of Control Price” means the greater of (A) the highest Fair Market Value
of a share of Stock during the 60-day period ending on the date of the Change of
Control, and (B) the highest price per share of Stock paid to holders of Stock
in any transaction (or series of transactions) constituting or resulting from
the Change of Control, provided, however, that, in the case of ISOs, unless the
Committee otherwise provides, such price will be based only on transactions
occurring on the date on which the ISOs are cashed out.
(h) “Code” means the Internal Revenue Code of 1986, as amended from time to time,
including regulations thereunder and successor provisions and regulations
thereto.
(i) “Commission” means the Securities and Exchange Commission or any successor
agency.
(j) “Committee” means the Compensation Committee of the Board, if formed, and in the
absence of one, shall mean the Board or its delegate.
(k) “Common Stock” or “Stock” means the common stock of the Company, and such other
securities as may be substituted (or resubstituted) for Common Stock pursuant to
Section 13(d) hereof.
(l) “Company” means XcelMobility, Inc.
or any successor thereto.
(m) “Consultant” means any person who is engaged by the Company or any Subsidiary to
render consulting or advisory services to such entity, and any natural person,
including an advisor, who is engaged by the Company or any Subsidiary, to render
bona fide consulting or advisory services to such entity and who is compensated
for the services.
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(n) “Director” means a member of the
Board.
(o) “Disability” or “Disabled” means
the absence of the Participant from the Participant’s duties with the Company on
a full time basis for 180 consecutive days as a result of incapacity due to
mental or physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and reasonably acceptable to
the Participant or the Participant’s legal representative.
(p) “Effective Date” means June _,
2014.
(q) “Eligible Employee” means such employees of the Company and its Subsidiaries or
Affiliates, including each Executive Officer and employees who may also be
directors of the Company, that are selected by the Committee, in its sole
discretion, from time to time to receive an Award under the Plan. An employee on
leave of absence may be considered as still in the employ of the Company,
Subsidiary or Affiliate for purposes of eligibility for participation in the
Plan.
(r) “Employment Agreement” means, with respect to any Participant, any written
agreement executed by the Participant and the Company, Subsidiary or Affiliate
setting forth the specific terms and conditions of the Participant’s employment
with the Company, Subsidiary or Affiliate.
(s) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time
to time, including rules thereunder and successor provisions and rules thereto.
(t) “Executive Officer” means an executive officer of the Company as defined under
the Exchange Act.
(u) “Fair
Market Value” means, on any date, the average of the opening and closing sales
prices of the Common Stock on the exchange on which the Common Stock is traded
on that date, or if no prices are reported on that date, on the last preceding
date on which such prices of the Common Stock are so reported. In the event the
Common Stock is not publicly traded at the time a determination of its value is
required to be made hereunder, the determination of its fair market value shall
be made by the Committee in such manner as it deems appropriate, consistent with
Treasury regulations and other formal Internal Revenue Service guidance under
Code Section 409A so that Awards of Nonqualified Stock Options or SARs granted
under this Plan shall not constitute deferred compensation subject to Code
Section 409A.
(v) “Good Reason” means the Termination of Employment by the Participant for any of
the following reasons, the occurrence of which has been properly noticed in
writing and such “Good Reason” event has not been cured within ten (10) business
days after Participant’s receipt of such written notice:
(1) involuntary reduction in the Participant’s Base Salary unless such reduction
occurs simultaneously with a reduction in officers’ salaries generally
applicable on a company-wide basis;
(2) involuntary discontinuance or reduction in bonus award opportunities for the
Participant under the Company’s incentive or bonus plan unless a generally
applicable company-wide reduction or elimination of all officers’ bonus awards
occurs simultaneously with such discontinuance or reduction;
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(3) involuntary discontinuance of the Participant’s participation in any employee
benefit plans maintained by the Company, Subsidiary or Affiliate unless such
plans are discontinued by reason of law or loss of tax deductibility to the
Company, Subsidiary or Affiliate with respect to contributions to such plans, or
are discontinued as a matter of Company policy applied equally to all
participants in such plans that are in the same classification of employees as
the Participant;
(4) failure to obtain an assumption of the Company’s, Subsidiary’s or Affiliate’s
obligations under the Participant’s Employment Agreement by any successor to the
Company, Subsidiary or Affiliate (as applicable), regardless of whether such
entity becomes a successor as a result of a merger, consolidation, sale of
assets, or other form of reorganization, except when the rights and obligations
of the Company, Subsidiary or Affiliate under such Employment Agreement are
vested in the successor by operation of law;
(5) involuntary relocation of the Participant’s primary office as specified in the
applicable Award agreement to a location more than fifty (50) miles from the
location of that office; and
(6) material reduction of the Participant’s duties in effect on the effective date
of the Participant’s most current Employment Agreement, provided, however that a
change in title or reporting line will not constitute Good Reason unless such
change is coupled with a material reduction in the actual duties of the
Participant.
(w) “Incentive Stock Option” or “ISO” means any Option intended to be and designated
as an incentive stock option within the meaning of Code Section 422 or any
successor provision thereto.
(x) “Management Objectives” means the measurable performance objective(s) for the
Company or any Subsidiary, Affiliate or any unit, division, geographic region,
or function thereof or any individual that may be established by the Committee
for a Performance Period with respect to any performance-based Awards made under
the Plan, including Options, SARs, Restricted Stock, Restricted Stock Units,
Performance Shares, Performance Units and Other Stock-Based Awards. Management
Objectives may be described in terms of Company-wide objectives or objectives
that are related to the performance of the individual Participant or of the
Affiliate, Subsidiary, division, department, geographic region or function
within the Company in which the Participant is employed. The Management
Objectives for Awards that are intended to constitute “performance-based”
compensation within the meaning of Section 162(m) of the Code will be based on
one or more of the following criteria: earnings per share; total shareholder
return; operating income; net income; cash flow; free cash flow; return on
equity; return on capital; revenue growth; earnings before interest, taxes,
depreciation and amortization (“EBITDA”); stock price; debt-to-capital ratio;
stockholders’ equity per share; operating income as a percent of revenue; gross
profit as a percent of revenue; selling, general and administrative expenses as
a percent of revenue; operating cash flow; pre-tax profit; orders; revenue;
customer value; or any of the foregoing criteria adjusted in a manner prescribed
within the time permitted under Section 162(m) of the Code by the Committee (i)
to exclude one or more specified components of the calculation thereof or (ii)
to include one or more other specified items, including, but not limited to,
exclusions under subsection (i) or inclusions under subsection (ii) designed to
reflect changes during the Performance Period in generally accepted accounting
principles or in tax rates, currency fluctuations, the effects of acquisitions
or dispositions of a business or investments in whole or in part, extraordinary
or nonrecurring items, the gain or loss from claims or litigation and related
insurance recoveries, the effects of impairment of tangible or intangible
assets, or the effects of restructuring or reductions in force or other business recharacterization activities, income
or expense related to defined benefit or defined contribution pension plans,
uninsured losses from natural catastrophes or political and legal developments
affecting the Company’s business (including losses as a result of war,
terrorism, confiscation, expropriation, seizure, new regulatory requirements,
business interruption or similar events).
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(y) “Nonqualified Stock Option” means
any Option that is not an Incentive Stock Option.
(z) “Option” means a right, granted to
a Participant under Section 7 hereof, to purchase Common Stock at a
specified price during specified time periods.
(aa) “Other Stock-Based Award” means an
Award made pursuant to Section 12.
(bb) “Participant” means an Eligible Employee, Director or Consultant who has been
granted an Award under the Plan that remains outstanding, including a person who
is no longer an Eligible Employee, Director or Consultant.
(cc) “Performance Period” means, in
respect of a Performance Share or Performance Unit, a period of time established
by the Committee pursuant to Section 11 of this Plan within which the
Management Objectives relating to such Performance Share or Performance Unit are
to be achieved.
(dd) “Performance Share” means a
bookkeeping entry that records the equivalent of one share of Common Stock
awarded pursuant to Section 11 of this Plan.
(ee) “Performance Unit” means a
bookkeeping entry that records a unit awarded pursuant to Section 11 of
this Plan that has a value specified in the agreement evidencing the Award.
(ff) “Plan” means XcelMobility, Inc. 2014 Equity Incentive Plan, as set forth herein
and as may be amended from time to time.
(gg) “Restricted Stock” means Common Stock awarded to a Participant in accordance
with the provisions of Section 9 of the Plan.
(hh) “Restricted Stock Units” or “RSUs” means an Award made pursuant to Section
10 of this Plan of the right to receive shares of Common Stock at the end of
a specified Restriction Period.
(ii) “Spread Value” means, with respect to a share of Stock subject to an Award, an
amount equal to the excess of the Fair Market Value, on the date such value is
determined, over the Award’s exercise or grant price, if any.
(jj) “Stock Appreciation Right” or
“SAR” means a right granted pursuant to Section 8.
(kk) “Subsidiary” shall have the
meaning set forth in Code Section 424(f).
(ll) “Termination of Employment” means the voluntary or involuntary termination of a
Participant’s employment with the Company or a Subsidiary or Affiliate or any
reason, including death, Disability, or retirement. With respect to an Eligible
Employee who is such solely by virtue of his service on the Board, “Termination
of Employment” means the Eligible Employee’s cessation of service on the Board.
The Committee, in it sole discretion, shall determine whether a Termination of Employment is a result of Disability, and shall
determine whether military or other government or eleemosynary service
constitutes a Termination of Employment. To the extent necessary, “Termination
of Employment” will be limited to those circumstances that constitute a
“separation from service” within the meaning of Section 409A of the Code.
- 6
(mm) “Valuation Date” means each day on which the exchange on which the Common stock
is actively traded is open for business.
3. Administration.
(a) Authority of the Committee.
The Plan shall be administered by the Committee. The Committee shall
have full and final authority, in each case subject to and consistent with the
provisions of the Plan, to: interpret the provisions of the Plan; select
Eligible Employees, Directors and Consultants to become Participants; make
Awards; determine the type, number and other terms and conditions of, and all
other matters relating to, Awards; prescribe Award agreements (which need not be
identical for each Participant); adopt, amend and rescind rules and regulations
for the administration of the Plan; construe and interpret the Plan and Award
agreements and correct defects, supply omissions or reconcile inconsistencies
therein; and make all other decisions and determinations as the Committee may
deem necessary or advisable for the administration of the Plan. Except as
otherwise determined by the Board, unless the context otherwise requires, all
actions and determinations that the Plan contemplates that the Board may take
may be taken by the Committee in its stead.
(b) Manner of Exercise of Committee Authority. Any action of the Committee
shall be final, conclusive and binding on all persons, including the Company,
Affiliates, Subsidiaries, Participants, Beneficiaries, transferees under
Section 13(c) hereof or other persons claiming rights from or through a
Participant, and shareholders. The Committee shall exercise its authority only
by a majority vote of its members at a meeting or without a meeting by a writing
signed by a majority of its members. The express grant of any specific power to
the Committee, and the taking of any action by the Committee, shall not be
construed as limiting any power or authority of the Committee. The Committee may
delegate to officers or managers of the Company, Affiliates or Subsidiaries, or
committees thereof, the authority, subject to such terms as the Committee shall
determine, to perform administrative functions to the extent permitted under
applicable law. The Committee may appoint agents to assist it in administering
the Plan.
(c) Limitation of Liability. The Committee and each member thereof shall be
entitled, in good faith, to rely or act upon any report or other information
furnished to it, him or her by any Executive Officer, other officer or employee
of the Company or a subsidiary, the Company’s independent auditors, consultants
or any other agents assisting in the administration of the Plan. Members of the
Committee and any officer or employee of the Company or a subsidiary acting at
the direction or on behalf of the Committee shall not be personally liable for
any action or determination taken or made in good faith with respect to the
Plan, and shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action or determination.
4. Stock Subject to Plan.
(a) Overall Number of Shares
Available for Delivery. Subject to adjustment as provided in Section
13(d) hereof, the total number of shares of Common Stock reserved and
available for delivery in connection with Awards under the Plan shall be
40,000,000 provided, however, that the total number of shares of Common
Stock with respect to which ISOs may be granted shall not exceed 400,000,000. Any shares of Common Stock delivered under
the Plan shall consist of authorized and issued or unissued shares. Subject to
the adjustments provided in Section 13(d) hereof, no contraction of the
number of shares of Common Stock outstanding will affect the validity or
enforceability of any Awards then outstanding.
- 7
(b) Application of Limitation to Grants of Awards. No Award may be granted if
the number of shares of Common Stock to be delivered in connection with such
Award exceeds the number of shares of Common Stock remaining available under the
Plan minus the number of shares of Common Stock issuable in settlement of or
relating to then-outstanding Options. The Committee may adopt reasonable
counting procedures to ensure appropriate counting, avoid double counting and
make adjustments if the number of shares of Common Stock actually delivered
differs from the number of shares previously counted in connection with an
Award.
(c) Availability of Shares Not Delivered under Awards. Shares of Common Stock
subject to an Award under the Plan which Award is canceled, expired, forfeited
or otherwise terminated without a delivery of shares to the Participant or with
the return to the Company of shares previously delivered, including the number
of shares surrendered in payment of any taxes relating to any Award, hereof will
again be available for Awards under the Plan, except that if any such shares
could not again be available for Awards to a particular Participant under any
applicable law or regulation, such shares shall be available exclusively for
Awards to Participants who are not subject to such limitation. Notwithstanding
the foregoing, (i) shares of Stock tendered in payment of the exercise price of
an Option, (ii) shares of Stock withheld by the Company to satisfy any tax
withholding obligation with respect to an Award, and (iii) shares of Stock that
are repurchased by the Company on the open market with the proceeds of the
exercise of an Option, may not again be available for issuance in connection
with Awards under the Plan. Also notwithstanding the foregoing, if the Spread
Value of a SAR is paid in shares of Stock, the shares representing the excess,
if any, of (a) the number of shares of Stock subject to the SAR over (b) the
number of shares of Stock delivered in payment of the Spread Value may not again
be available for issuance in connection with Awards under the Plan.
5. Eligibility. Awards may be granted under the Plan to
Eligible Employees, Directors and Consultants.
6. Awards – General Terms and Limitations.
(a) Awards Granted at Fair Market
Value. The exercise price of an Option and the grant price of a SAR may not
be less than 100% of the Fair Market Value on the date of grant. In addition, to
the extent that the value of an Other Stock-Based Award is based on Spread
Value, the grant price for the Other Stock-Based Award may not be less than 100%
of the Fair Market Value on the date of grant. Notwithstanding the foregoing, in
connection with any reorganization, merger, consolidation or similar transaction
in which the Company or any Subsidiary or Affiliate of the Company is a
surviving corporation, the Committee may grant Options, SARs or Other
Stock-Based Awards in substitution for similar awards granted under a plan of
another party to the transaction, and in such case the exercise price or grant
price of the substituted Options, SARs or Other Stock-Based Awards granted by
the Company may equal or exceed 100% of the Fair Market Value on the date of
grant reduced by any unrealized gain existing as of the date of the transaction
in the option, stock appreciation right or other award being replaced, with the
adjusted exercise price determined in accordance with the requirements of
Section 409A of the Code (in the case of a Nonqualified Stock Option) or Section
425 of the Code (in the case of an Incentive Stock Option).
(b) Annual Award Limitation. The
total number of Restricted Stock, RSUs and other shares of Stock subject to or underlying Options, SARs,
Performance Shares, Performance Units and Other Stock-Based Awards awarded to
any Participant during any year may not exceed 5,000,000 shares. A Performance
Share or Performance Unit paid to a Participant with respect to any Performance
Period may not exceed $1,000,000 times the number of years in the Performance
Period.
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(c) Performance-Based Awards. In
the discretion of the Committee, any Award granted pursuant to the Plan may be
designated as a performance-based award intended to qualify, through the
application of Management Objectives over a specified Performance Period, as
“performance-based compensation” within the meaning, and in accordance with the
provisions, of Code Section 162(m).
7. Terms of Options.
(a) General. Options may be
granted on the terms and conditions set forth in this Section 7. In
addition, the Committee may impose on any Option or the exercise thereof, at the
date of grant, such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including terms
requiring forfeiture of Options in the event of the Participant’s Termination of
Employment and terms permitting a Participant to make elections relating to his
or her Option. Options granted under the Plan will be in the form of Incentive
Stock Options or Nonqualified Stock Options. The Committee shall (subject to
Section 13(i)) retain full power and discretion to accelerate, waive or
modify, at any time, any term or condition of an Option that is not mandatory
under the Plan.
(b) Specific Terms of Options. The Committee is authorized to grant Options
to Participants on the following terms and conditions:
(1) Exercise Price. The exercise price per share of Common Stock purchasable
under an Option shall be determined by the Committee, provided that such
exercise price shall be not less than the Fair Market Value of a share of Common
Stock on the date of grant of such Option.
(2) Vesting. Each Participant shall acquire a nonforfeitable right to Options
awarded to him in accordance with the provisions of the agreement evidencing the
Award of the Options.
(3) Time and Method of Exercise. The Committee shall determine, at the date
of grant or thereafter, the time(s) at which or the circumstances under which an
Option may be exercised in whole or in part (including based on completion of
future service requirements), the methods by which such exercise price may be
paid or deemed to be paid, the form of such payment, including, without
limitation, cash or Common Stock held for more than six months, and the methods
by or forms in which Common Stock will be delivered or deemed to be delivered to
Participants. The specific circumstances under which a Participant may exercise
an Option will be set forth in the agreement evidencing the Award of the Option
to the Participant.
(4) ISOs. Except as otherwise expressly provided in the Plan, the Committee
may designate, at the time of grant, that the Option is an ISO under Section 422
of the Code. ISOs may be granted only to those Eligible Employees who are
entitled to acquire incentive stock options from the Company under Code Section
422. The terms of any ISO granted under the Plan shall comply in all respects
with the provisions of Code Section 422. Anything in the Plan to the contrary notwithstanding, no term of the Plan
relating to ISOs shall be interpreted, amended or altered, nor shall any
discretion or authority granted under the Plan be exercised, so as to disqualify
either the Plan or any ISO under Code Section 422, unless the Participant has
first requested the change that will result in such disqualification. If any
provision of the Plan or any Option designated by the Committee as an ISO shall
be held not to comply with requirements necessary to entitle such Option to such
tax treatment, then (1) such provision shall be deemed to have contained from
the outset such language as shall be necessary to entitle the Option to the tax
treatment afforded under Section 422 of the Code, and (2) all other provisions
of the Plan and the Award agreement shall remain in full force and effect. An
Option granted under the Plan will be an ISO only if the agreement evidencing
the award of the Option specifically states that the Option is to be an ISO; if
the Agreement does not so state, the Option will be a Nonqualified Stock Option.
In addition, an Option may be an ISO only if it is awarded within ten years
after the Effective Date.
- 9
(5) Term of Options. Options
will terminate after the first to occur of the following:
(i) Expiration of the Option as
provided in the applicable Award agreement as determined by the Committee;
(ii) Termination of the Option Award,
as provided for in Section 7(b)(7), following the Participant’s
Termination of Employment; or
(iii) Ten years from the date of
grant.
(6)
Acceleration/Extension of Exercise Time. The Committee, in its sole
discretion, shall have the right (but shall not in any case be obligated) to
permit purchase of shares under any Option prior to the time such Option would
otherwise vest under the terms of the applicable Award agreement. In addition,
the Committee, in its sole discretion, shall have the right (but shall not in
any case be obligated) to permit any Option granted under the Plan to be
exercised after its termination date described in Section 7(b)(7), but in
no event later than the last day of the term of the Option as set forth in the
applicable Award agreement. Notwithstanding the foregoing, the Committee will
not extend the exercise period of any Option to the extent that the extension
would cause the Option to be considered nonqualified deferred compensation
subject to the provisions of Section 409A.
(7) Exercise of Options Upon Termination of Employment, Death or Disability.
Except as otherwise provided in this Section 7(b)(7) or in Section
7(b)(6), or as otherwise expressly provided in a Participant’s Award
agreement as authorized by the Committee, the right of the Participant to
exercise Options shall terminate upon the Participant’s Termination of
Employment, regardless of whether or not the Options were vested in whole or in
part on the date of Termination of Employment.
(i) Termination of Employment.
Any Option or portion thereof that is not exercisable on the date of a
Participant’s Termination of Employment shall immediately expire, and any Option
or portion thereof which is exercisable on the date of such Termination of
Employment may be exercised during a three-month period after such date (after
which period the Option shall expire), but in no event may the Option be
exercised after its expiration under the terms of the Award agreement.
Notwithstanding the foregoing, if the Participant’s Termination of Employment is
by the Company or an Affiliate for Cause or by the Participant other than for
Good Reason, then any Option or unexercised portion thereof granted to said
Participant shall immediately expire upon such Termination of Employment.
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(ii) Disability or Death of
Participant. In the event of the Disability or death of a Participant under
the Plan while the Participant is employed by the Company or an Affiliate, any
Option or portion thereof which is not exercisable on the date of such
Disability or death shall immediately expire, and any Option or portion thereof
which is exercisable on the date of such Disability or death may be exercised at
any time from time to time, within a one-year period after the date of such
Disability or death, by the Participant, the guardian of his estate, the
executor or administrator of his estate or by the person or persons to whom his
rights under the Option shall pass by will or the laws of descent and
distribution (after which period the Option will expire), but in no event may
the Option be exercised after its expiration under the terms of the Award
agreement, and provided that an exercise of an Incentive Stock Option later than
three months after the date of the Participant’s death shall be treated as the
exercise of a Nonqualified Stock Option.
8. Terms of Stock Appreciation Rights.
(a) General. A SAR represents
the right to receive a payment, in cash, shares of Stock or both (as determined
by the Committee), equal to the Spread Value on the date the SAR is exercised.
The grant price of a SAR and all other applicable terms and conditions will be
established by the Committee in its sole discretion and will be set forth in the
applicable Award agreement. Subject to the terms of the applicable Award
agreement, a SAR will be exercisable, in whole or in part, by giving written
notice of exercise to the Company, but in no event will a SAR be exercisable
later than the tenth anniversary of the date on which it was granted.
(b) Specific Terms of SARs. The
Committee is authorized to grant SARs to Participants on the following terms and
conditions:
(1) Term of SARs. SARs will
terminate after the first to occur of the following:
(i) Expiration of the SAR as provided
in the applicable Award agreement as determined by the Committee;
(ii) Termination of the SAR Award, as
provided for in Section 8(b)(2), following the Participant’s Termination
of Employment; or
(iii) Ten years from the date of
grant.
(2) Exercise of Stock Appreciation
Rights Upon Termination of Employment, Death or Disability. Except as
otherwise provided in this Section 8(b)(2), or as otherwise expressly
provided in a Participant’s Award agreement as authorized by the Committee, the
right of the Participant to exercise the SAR shall terminate upon the
Participant’s Termination of Employment, regardless of whether or not the SAR
was vested in whole or in part on the date of Termination of Employment.
(i) Termination of Employment.
Any SAR or portion thereof that is not exercisable on the date of a
Participant’s Termination of Employment shall immediately expire, and any SAR or
portion thereof which is exercisable on the date of such Termination of
Employment may be exercised during a three-month period after such date (after
which period the SAR shall expire), but in no event may the SAR be exercised after its expiration under the terms of the Award
agreement. Notwithstanding the foregoing, if the Participant’s Termination of
Employment is by the Company or an Affiliate for Cause or by the Participant
other than for Good Reason, then any SAR or unexercised portion thereof granted
to said Participant shall immediately expire upon such Termination of
Employment.
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(ii) Disability or Death of
Participant. In the event of the Disability or death of a Participant under
the Plan while the Participant is employed by the Company or an Affiliate, any
SAR or portion thereof which is not exercisable on the date of such Disability
or death shall immediately expire, and any SAR or portion thereof that is
exercisable on the date of such Disability or death may be exercised at any time
from time to time, within a one-year period after the date of such Disability or
death, by the Participant, the guardian of his estate, the executor or
administrator of his estate or by the person or persons to whom his rights under
the SAR shall pass by will or the laws of descent and distribution (after which
period the SAR will expire), but in no event may the SAR be exercised after is
expiration under the terms of the Award agreement.
9. Terms of Restricted Stock Awards.
(a) General. Shares of
Restricted Stock may be granted on the terms and conditions set forth in this
Section 9. In addition, the Committee may impose on any Award of
Restricted Stock, at the date of grant, such additional terms and conditions,
not inconsistent with the provisions of the Plan, as the Committee shall
determine, including terms requiring forfeiture of shares of Restricted Stock in
the event of the Participant’s Termination of Employment and terms permitting a
Participant to make elections relating to his or her shares of Restricted Stock.
The Committee shall (subject to Section 13(i)) retain full power and
discretion to accelerate, waive or modify, at any time, any term or condition of
an Award of shares of Restricted Stock that is not mandatory under the Plan.
Except in cases in which the Committee is authorized to require other forms of
consideration under the Plan, or to the extent other forms of consideration must
be paid to satisfy the requirements of Delaware law, no consideration other than
services may be required for the grant of any shares of Restricted Stock.
(b) Vesting. Each Participant shall acquire a nonforfeitable right to shares
of Restricted Stock awarded to him in accordance with the provisions of the
agreement evidencing the Award of the Restricted Stock.
(c) Ownership Rights. Subject to the terms of the Plan, to divestment based
on the forfeiture restrictions applying to an Award of Restricted Stock and to
the other terms of the Award agreement, (i) Restricted Stock granted pursuant to
an Award shall for all purposes be issued and outstanding shares of Common
Stock, and (ii) the Participant shall be the record owner of the Restricted
Stock granted by the Award, shall have the right to vote the Restricted Stock as
Common Stock on any matter upon which holders of Common Stock are entitled to
vote, and shall be entitled to dividends and distributions on the Restricted
Stock which are payable with respect to outstanding shares of Common Stock.
10. Terms of Restricted Stock Units.
(a) Agreement to Grant Stock.
Each such grant or sale shall constitute the agreement by the Company to
deliver shares of Common Stock to the Participant in the future in consideration
of the performance of services, but subject to the fulfillment of such
conditions during the Restriction Period as the Board may specify.
- 12
(b) Exercise Price. Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is less
than the Fair Market Value at the date of grant.
(c) Restrictions. Each such grant or sale shall be subject to such forfeiture
and other restrictions as may be determined by the Board at the date of grant,
and may provide for the lapse or other modification of such restrictions in the
event of a Change of Control.
(d) Voting and Dividend Rights. While and to the extent that forfeiture
restrictions apply to an Award, the Participant shall have no right to transfer
any rights under his or her Award and shall have no rights of ownership in the
Restricted Stock Units and shall have no right to vote them, but the Board may,
at or after the date of grant, authorize the payment of dividend equivalents on
the shares underlying such units on either a current or deferred or contingent
basis, either in cash, in additional shares of Common Stock, or in other rights
or property.
11. Performance Shares and Performance Units.
(a) Agreement to Grant Units.
Each grant shall specify the number of Performance Shares or Performance
Units to which it pertains, which number may be subject to adjustment to reflect
changes in compensation or other factors.
(b) Performance Periods. The
Performance Period with respect to each Performance Share or Performance Unit
shall be such period of time commencing with the date of grant as shall be
determined by the Board on the date of grant.
(c) Specification of Performance
Goals. Any grant of Performance Shares or Performance Units shall specify
Management Objectives which, if achieved, will result in payment or early
payment of the Award, and each grant may specify in respect of such specified
Management Objectives a minimum acceptable level of achievement and shall set
forth a formula for determining the number of Performance Shares or Performance
Units that will be earned if performance is at or above the minimum level, but
falls short of full achievement of the specified Management Objectives. The
grant of Performance Shares or Performance Units shall specify that, before the
Performance Shares or Performance Units shall be earned and paid, the Board must
certify that the Management Objectives have been satisfied.
(d) Time and Form of Payment.
Each grant shall specify the time and manner of payment of Performance
Shares or Performance Units that have been earned. Any grant may specify that
the amount payable with respect thereto may be paid by the Company in cash, in
shares of Common Stock or in any combination thereof and may either grant to the
Participant or retain in the Board the right to elect among those alternatives.
(e) Limitations on Awards. Any
grant of Performance Shares may specify that the amount payable with respect
thereto may not exceed a maximum specified by the Board at the Date of Grant.
Any grant of Performance Units may specify that the amount payable or the number
of shares of Common Stock issued with respect thereto may not exceed maximums
specified by the Board at the date of grant.
(f) Dividend Equivalents. The
Board may, at or after the date of grant of Performance Shares, provide for the
payment of dividend equivalents to the holder thereof on either a current or
deferred or contingent basis, either in cash, in additional shares of Common
Stock or in other rights or property.
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12. Other Stock-Based Awards.
(a) Other Stock-Based Awards.
The Committee may grant Awards, other than Options, SARs, Restricted Stock,
RSUs, Performance Shares or Performance Units, that are denominated in, valued
in whole or in part by reference to, or otherwise based on or related to Stock.
The purchase, exercise, exchange or conversion of Other Stock-Based Awards
granted under this Section 12 and all other terms and conditions
applicable to the awards will be determined by the Committee in its sole
discretion and will be set forth in the applicable Award agreement.
13. General Provisions.
(a) Change of Control.
Notwithstanding any provision of the Plan to the contrary and unless otherwise
provided in the applicable Award agreement, in the event of any Change of
Control:
(1) Any
Option carrying a right to exercise that was not previously exercisable and
vested shall become fully exercisable and vested as of the time of the Change of
Control and shall remain exercisable and vested for the balance of the stated
term of such Option without regard to any Termination of Employment, subject
only to (A) applicable restrictions set forth in Section 13(b) and (c)
hereof and (B) the Board’s right to cancel all Options and, if an Option in the
Board’s judgment has value based on its exercise price, provide for a payment of
the aggregate spread in the cancelled Options. In addition, a Participant who is
an Executive Officer of the Company and whose employment is involuntarily
terminated by the Company within 60 days after a Change of Control will be
permitted to surrender for cancellation within 60 days after the Change of
Control any Option or portion of an Option to the extent not exercised and to
receive a payment of shares of Stock having an aggregate Fair Market Value on
the date the Participant surrenders the Option equal to the excess, if any, of
(A) the Change of Control Price, over (B) the exercise price of the Option. The
provisions of this Section 13(a)(1) will not be applicable to any Options
granted to a Participant if the Change of Control results from the Participant’s
beneficial ownership (within the meaning of Rule 13d(3) under the Exchange Act)
of Stock or Voting Securities;
(2) Any
SARs outstanding as of the date the Change of Control occurs will become fully
vested and will be exercisable in accordance with procedures established by the
Committee. The provisions of this Section 13(a)(2) will not be applicable
to any SARs granted to a Participant if the Change of Control results from the
Participant’s beneficial ownership (within the meaning of Rule 13d(3) under the
Exchange Act) of Stock or Voting Securities;
(3) Any
restrictions and other conditions applicable to any Restricted Stock or
Restricted Stock Units held by the Participant will lapse and such Restricted
Stock or Restricted Stock Units will become fully vested as of the date of the
Change of Control;
(4) Any
Performance Shares or Performance Units held by the Participant relating to
Performance Periods before the Performance Period in which the Change of Control
occurs that have been earned but not paid will become immediately payable in
cash. In addition, any Performance Shares or Performance Units awarded to a
Participant for a Performance Period that has not been completed at the time of
the Change of Control will be deemed satisfied at the target level for the
Performance Period, and payment with respect to the Performance Shares or Performance Units will be made in cash upon the
Change of Control. Notwithstanding the foregoing, if the Committee in its sole
discretion determines that any Performance Shares or Performance Units awarded
would be considered nonqualified deferred compensation within the meaning of
Section 409A of the Code, and if the Change of Control would not be considered a
“change in control” for purposes of Section 409A of the Code, then a
Participant’s entitlement to payment with respect to the Performance Shares or
Performance Units will be determined as described above in Section
13(a)(4), but payment with respect to such Performance Shares or Performance
Units will be made on the date originally scheduled for payment or, if earlier,
upon the Participant’s Termination of Employment; and
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(5) Any
Other Stock-Based Awards that vest solely on the basis of the passage of time
will be treated in connection with a Change of Control in the same manner as are
Awards of Restricted Shares and RSUs, as described in Section 13(a)(3)
above. Other Stock-Based Awards that vest on the basis of satisfaction of
performance criteria will be treated in connection with a Change of Control in
the same manner as are Performance Shares and Performance Units, as described in
Section 13(a)(4) above, except that payment will be made only in shares
of Stock. Notwithstanding the foregoing, if the committee in its sole discretion
determines that any Other Stock-Based Award would be considered nonqualified
deferred compensation within the meaning of Section 409A of the Code, and if the
Change of Control would not be considered a “change in control” for purposes of
Section 409A of the Code, then a Participant’s entitlement to payment with
respect to the Other Stock-Based Award will be determined as described above in
this Section 13(a)(5), but payment with respect to such Other Stock-Based
Award will be made on the date originally scheduled for payment, or, if earlier,
upon the Participant’s Termination of Employment.
(b) Compliance with Legal and Other Requirements. The Company may, to the
extent deemed necessary or advisable by the Committee, postpone the issuance or
delivery of Common Stock or payment of other benefits under any Award until
completion of such registration or qualification of such Common Stock or other
required action under any federal or state law, rule or regulation, listing or
other required action with respect to any stock exchange or automated quotation
system upon which the Common Stock or other securities of the Company may in the
future be listed or quoted, or compliance with any other obligation of the
Company, as the Committee may consider appropriate, and may require any
Participant to make such representations, furnish such information and comply
with or be subject to such other conditions as it may consider appropriate in
connection with the issuance or delivery of Common Stock or payment of other
benefits in compliance with applicable laws, rules, and regulations, listing
requirements, or other obligations.
(c) Limits on Transferability; Beneficiaries. No Award or other right or
interest of a Participant under the Plan shall be pledged, hypothecated or
otherwise encumbered or subject to any lien, obligation or liability of such
Participant to any party (other than the Company or a subsidiary), or assigned
or transferred by such Participant otherwise than by will or the laws of descent
and distribution or to a Beneficiary upon the death of a Participant, and
Options, SARs or Other Stock-Based Awards that may be exercisable shall be
exercised during the lifetime of the Participant only by the Participant or his
or her guardian or legal representative, except that Options (other than ISOs),
SARs and Other Stock-Based Awards may be transferred to one or more
Beneficiaries or other transferees during the lifetime of the Participant, and
may be exercised by such transferees in accordance with the terms of such
Option, SAR, or Other Stock Based Award but only if and to the extent such
transfers are permitted by the Committee pursuant to the express terms of an
Option, SAR or Other Stock-Based Award agreement (subject to any terms and conditions which the Committee may impose thereon). A
Beneficiary, transferee, or other person claiming any rights under the Plan from
or through any Participant shall be subject to all terms and conditions of the
Plan and any Award agreement applicable to such Participant, except as otherwise
determined by the Committee, and to any additional terms and conditions deemed
necessary or appropriate by the Committee.
- 15
(d) Adjustments. In the event that any dividend or other distribution
(whether in the form of cash, Common Stock, or other property), capital
contribution, recapitalization, forward or reverse split, reorganization,
merger, acquisition, consolidation, spin-off, combination, repurchase, share
exchange, liquidation, dissolution or other corporate transaction or event
affects the Common Stock such that an adjustment is determined by the Committee
to be appropriate under the Plan, then the Committee shall, in such manner as it
may deem equitable, adjust any or all of (1) the number and kind of shares of
Common Stock which may be delivered in connection with Awards granted
thereafter, (2) the number and kind of shares of Common Stock subject to or
deliverable in respect of Awards and (3) the exercise price, grant price or
purchase price relating to any Award and/or make provision for payment of cash
or other property in respect of any outstanding Award. In addition, the
Committee is authorized to make such adjustments in the terms and conditions of,
and the criteria included in, Awards as the Committee deems equitable in
recognition of unusual or nonrecurring events (including, without limitation,
events described in the preceding sentence, as well as acquisitions and
dispositions of businesses and assets) affecting the Company, Subsidiary or any
business unit, or the financial statements of the Company or Subsidiary, or in
response to changes in applicable laws, regulations, accounting principles, tax
rates and regulations or business conditions or in view of the Committee’s
assessment of the business strategy of the Company, Subsidiary or business unit
thereof, performance of comparable organizations, economic and business
conditions, personal performance of a Participant, and any other circumstances
deemed relevant.
(e) Payments and Payment Deferrals. Payment of Awards may be in the form of
cash, Stock, other Awards or combinations thereof as the Committee may
determine, and with such restrictions as it may impose. The Committee, either at
the time of grant or by subsequent amendment, may require or permit deferral of
the payment of Awards under such rules and procedures as it may establish. It
also may provide that deferred settlements include the payment or crediting of
interest or other earnings on the deferred amounts, or the payment or crediting
of dividend equivalents where the deferred amounts are denominated in Stock
equivalents. Notwithstanding the foregoing, no action will be taken or
authorized pursuant to this Section 13(e) to the extent that it would
violate the requirements of Section 409A of the Code or cause any Award of
Options or SARs to be considered to provide for the deferral of compensation
within the meaning of Section 409A of the Code.
The Committee may require that each
person acquiring shares of Stock pursuant to an Award to represent to and agree
with the Company in writing that such person is acquiring the shares without a
view to the distribution thereof. The certificates for such shares may include
any legend that the committee deems appropriate to reflect any restrictions on
transfer. All certificates for shares of Stock or other securities delivered
under the Plan will be subject to such stock transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations
and other requirements of the Commission, any stock exchange upon which the
Stock is then listed and any applicable Federal, state or foreign securities
law, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(f) Award Agreements. Each Award under the Plan will be evidenced by a
written agreement (which need not be signed by the recipient unless otherwise
specified by the Committee or otherwise provided under the Plan) that sets forth the
terms, conditions and limitations for each Award. Such terms may include, but
are not limited to, the term of the Award, vesting and forfeiture provisions,
and the provisions applicable in the event of the recipient’s Termination of
Employment. The Committee may amend an Award agreement, provided that no such
amendment may materially and adversely affect an outstanding Award without the
Award recipient’s consent.
- 16
(g) Foreign Employees. In order to facilitate the making of any grant or
combination of grants under this Plan, the Board may provide for such special
terms for Awards to Participants who are foreign nationals or who are employed
by the Company or any Subsidiary outside of the United States of America as the
Board may consider necessary or appropriate to accommodate differences in local
law, tax policy or custom. Moreover, the Board may approve such supplements to
or amendments, restatements or alternative versions of this Plan as it may
consider necessary or appropriate for such purposes, without thereby affecting
the terms of this Plan as in effect for any other purpose, and the secretary or
other appropriate officer of the Company may certify any such document as having
been approved and adopted in the same manner as this Plan. No such special
terms, supplements, amendments or restatements, however, shall include any
provisions that are inconsistent with the terms of this Plan as then in effect
unless this Plan could have been amended to eliminate such inconsistency without
further approval by the stockholders of the Company.
(h) Taxes. The Company and any Affiliate or Subsidiary is authorized to
withhold from any payment to a Participant amounts of withholding and other
taxes due or potentially payable in connection with any transaction involving an
Award, and to take such other action as the Committee may deem advisable to
enable the Company and Participants to satisfy obligations for the payment of
withholding taxes and other tax obligations relating to any Award. This
authority shall include authority to withhold or receive Common Stock or other
property and to make cash payments in respect thereof in satisfaction of a
Participant’s tax obligations (not to exceed the minimum statutorily required
tax withholding), either on a mandatory or elective basis in the discretion of
the Committee.
(i) Changes to the Plan and Awards. The Board, or the Committee acting
pursuant to such authority as may be delegated to it by the Board, may amend,
alter, suspend, discontinue or terminate the Plan or the Committee’s authority
to grant Awards under the Plan, provided that, without the consent of an
affected Participant, except as otherwise contemplated by the Plan or the terms
of an Award agreement, no such Board action may materially and adversely affect
the rights of a Participant under any previously granted and outstanding Award.
Except as otherwise provided in the Plan, the Committee may waive any conditions
or rights under, or amend, alter, suspend, discontinue or terminate any Award
theretofore granted and any Award agreement relating thereto, provided that,
without the consent of an affected Participant, except as otherwise contemplated
by the Plan or the terms of an Award agreement, no Committee action may
materially and adversely affect the rights of such Participant under such
Award.
(j) Limitation on Rights Conferred under Plan. Neither the Plan nor any
action taken hereunder shall be construed as (i) giving any Eligible Employee or
Participant the right to continue as an Eligible Employee or Participant or in
the employ or service of the Company or a subsidiary, (ii) interfering in any
way with the right of the Company or a Subsidiary to terminate any Eligible
Employee’s or Participant’s employment or service at any time, (iii) giving an
Eligible Employee or Participant any claim to be granted any Award under the
Plan or to be treated uniformly with other Participants and employees, or (iv)
conferring on a Participant any of the rights of a shareholder of the Company
unless and until the Participant is duly issued or transferred shares of Common
Stock in accordance with the terms of an Option or an Award of Restricted Stock.
To the extent that an employee of a Subsidiary or Affiliate receives an Award
under the Plan, that Award can in no event be understood or interpreted to mean that the Company is the
employee’s employer or that the employee has an employment relationship with the
Company.
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(k) Provisions Held Invalid or Unenforceable. If any provision of the Plan is
held invalid or unenforceable, the invalidity or unenforceability will not
affect the remaining parts of the Plan, and the Plan will be enforced and
construed as if such provision had not been included.
(l) Nonexclusivity of the Plan. The adoption of the Plan by the Board shall
not be construed as creating any limitations on the power of the Board or a
committee thereof to adopt such other compensation and incentive arrangements
for employees, agents and brokers of the Company and its subsidiaries as it may
deem desirable.
(m) Payments in the Event of Forfeitures; Fractional Shares. Unless otherwise
determined by the Committee, in the event of a forfeiture of a share of Common
Stock, Option or SAR with respect to which a Participant paid cash or other
consideration, the Participant shall be repaid the amount of such cash or other
consideration.
(n) Governing Law. The validity, construction and effect of the Plan, any
rules and regulations under the Plan, and any Award agreement shall be
determined in accordance with Delaware law, without giving effect to principles
of conflicts of laws, and applicable federal law.
(o) Plan Effective Date. The Plan has been adopted by the Board and the
shareholders of the Company as of the Effective Date.
(p) Last Grant Date. No Award
may be granted under the Plan after October 1, 2018.
(q) Unfunded Status of Plan. It
is presently intended that the Plan 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; however, unless the Committee otherwise determines, the
structure of such trusts or other arrangements must be consistent with the
“unfunded” status of the Plan.
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XcelMobility (CE) (USOTC:XCLL)
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