TRIPBORN, INC. 2016 STOCK INCENTIVE PLAN SECTION1 PURPOSES

Exhibit 10.7

 

 

The TripBorn, Inc. 2016 Stock Incentive Plan (the “Plan”) is established to (a) promote the long-term interests of TripBorn, Inc., a Delaware corporation (the “Company”) and its stockholders by strengthening the ability of the Company and its subsidiaries to attract, motivate and retain employees, officers, and other persons who provide valuable services to the Company and its subsidiaries, (b) encourage such persons to hold an equity interest in the Company, and (c) enhance the mutuality of interest between such persons and stockholders in improving the value of the Company’s common stock.

 

 

As used in the Plan, the following terms will have the respective meanings set forth below, and other capitalized terms used in the Plan will have the respective meanings given such capitalized terms in the Plan.

 

“Award” means any Option, Restricted Stock, Restricted Stock Unit, dividend equivalent or other award granted under the Plan.

 

“Award Agreement” means the written or electronic agreement setting forth the terms and provisions applicable to an Award granted under the Plan.

 

“Board” means the Board of Directors of the Company.

 

“Code” means the Internal Revenue Code of 1986, as amended, and any reference in the Plan to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, regulations or guidance.

 

“Common Stock” means the Company’s common stock, par value $0.0001 per share, or any other security into which the common stock shall be changed pursuant to the adjustment provisions of Section 13.

 

“Director” means a member of the Board who is not an Employee.

 

“Employee” means an officer or other employee of the Company or a Subsidiary, including a member of the Board who is an employee of the Company or a Subsidiary.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any reference in the Plan to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations or guidance.

 

 

“Fair Market Value” of Common Stock as of any date means, (a) if shares of Common Stock are listed or admitted to trading on the New York Stock Exchange, NASDAQ Stock Market or other principal national securities exchange, the per share closing price of the Common Stock as reported on the New York Stock Exchange, NASDAQ Stock Market or other principal national securities exchange, as applicable, on that date, or if there were no reported prices on such date, on the last preceding date on which the prices were reported, or (b) if the shares of Common Stock are not quoted on the New York Stock Exchange, NASDAQ Stock Market or other principal national securities exchange, but the shares of Common Stock are reported on the over-the-counter market, the arithmetic mean of the high and low prices as reported in the over-the-counter market on that date, or if there were no reported prices on such date, on the last preceding date on which the prices were reported, and (c) if the shares of Common Stock are not quoted on the New York Stock Exchange, NASDAQ Stock Market or other principal national securities exchange,  and are not reported on the over-the-counter market on that date, the Fair Market Value of the shares of Common Stock as determined by the Committee in its good faith judgment, and in compliance with the requirements of Section 422 of the Code for Incentive Stock Options and Section 409A of the Code for Nonqualified Stock Options.  The Fair Market Value of any property other than Common Stock shall be the market value of such property as determined by the Committee using such methods or procedures as it shall establish from time to time.

 

“Grant Date” means the date on which the granting of an Award is authorized by the Committee, or such other date as may be specified in such authorization.

 

“Option” means an option to purchase Common Stock granted under Section 7, and includes both Incentive Stock Options and Nonqualified Stock Options.

 

“Participant” means any Eligible Person to whom an Award is granted.

 

“Restricted Stock” means an Award of shares of Common Stock granted under Section 8, the rights of ownership of which may be subject to restrictions prescribed by the Committee.

 

“Restricted Stock Unit” means an Award measured by shares of Common Stock that is granted under Section 8, the terms of which are subject to restrictions prescribed by the Committee.

 

“Subsidiary” means any corporation, limited liability company, partnership, joint venture or similar entity in which the Company owns, directly or indirectly, an equity interest possessing more than 50% of the combined voting power of the total outstanding equity interests of such entity.

 

“Substitute Awards” shall mean Awards granted under the Plan in assumption of, or in substitution or exchange for, outstanding awards previously granted by a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines.

 

 

3.1           Administration of the Plan.

 

(a)           The Plan shall be administered by the Board or, if so directed by the Board, by a committee of the Board selected by the Board (collectively, the “Committee”).  At any time that any class of equity security of the Company is registered under Section 12 of the Exchange Act or any similar state, local, or foreign law, the Plan will be administered by a committee appointed by the Board consisting of two or more members of the Board, each of whom is a “Non-Employee Director” within the meaning of Rule 16b-3 under the Exchange Act.

 

 

(b)           Subject to applicable law, the Committee may delegate some or all of its power and authority hereunder to the Board or to the Chief Executive Officer or other executive officer of the Company as the Committee deems appropriate; provided, however, that the Committee may not delegate its power and authority with regard to the selection for participation in the Plan of an officer, Director or other person subject to Section 16 of the Exchange Act or decisions concerning the timing, pricing or amount of an Award to such an officer, Director or other person.  All references in the Plan to the “Committee” shall be, as applicable, to the Committee or any other committee or individual to whom the Board or the Committee has delegated authority to administer the Plan.

 

3.2           Administration and Interpretation by the Committee.

 

(a)           Except for the terms and conditions explicitly set forth in the Plan, the Committee shall have full power and exclusive authority and discretion, subject to such orders or resolutions not inconsistent with the provisions of the Plan as may from time to time be adopted by the Board or the Committee, to:  (i) select the Eligible Persons to whom Awards may from time to time be granted under the Plan; (ii) determine the type or types of Award to be granted to each Eligible Person under the Plan; (iii) determine the number of shares of Common Stock to be covered by each Award granted under the Plan; (iv) determine the terms and conditions of any Award granted under the Plan; (v) approve the forms of Award Agreements for use under the Plan; (vi) determine whether, to what extent and under what circumstances Awards may be settled in cash, shares of Common Stock or other property or canceled or suspended; (vii) determine whether, to what extent and under what circumstances cash, shares of Common Stock, other property and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the Participant; (viii) interpret and administer the Plan, any Award Agreements and any other instrument or agreement entered into under the Plan; (ix) establish such rules and regulations and appoint such agents as it shall deem appropriate in its sole discretion for the proper administration of the Plan; (x) reconcile any inconsistency, correct any defect, and supply any omission in the Plan, or any Award or Award Agreement; (xi) make all factual and legal determinations under the Plan, Awards, and Award Agreements; (xii) add provisions to an Award or Award Agreement, or vary the provisions of an Award, to accommodate the laws of applicable foreign jurisdictions and provide Participants with favorable treatment under these laws; and (xiii) make any other determination and take any other action that the Committee deems necessary or desirable in its sole discretion for administration of the Plan.  Decisions of the Committee shall be final, conclusive and binding on all persons, including the Company, any Participant, any stockholder and any person eligible to receive an Award hereunder.

 

 

(b)           The Committee in its exclusive discretion may make non-uniform and selective determinations among individuals who are eligible to receive Awards, or who have received Awards, regardless of whether they are similarly situated.  In furtherance of this Section 3.2(b) and not in limitation thereof, the Committee in its exclusive discretion may enter into non-uniform and selective Award Agreements.  At any time after the shares of Common Stock or other security of the Company are listed on a national securities exchange, then other than pursuant to Section 13, the Committee shall not without the approval of the Company’s stockholders (i) lower the option price per share of Common Stock of an Option after it is granted, (ii) cancel an Option in exchange for cash or another Award (other than in connection with  Substitute Awards), and (iii) take any other action with respect to an Option that would be treated as a repricing under U.S. generally applicable accounting standards.

 

3.3           Limitation of Liability.  No member of the Board or Committee, and no Director, officer or employee acting on behalf of the Board or Committee, will be personally liable for any act or omission in the Plan’s administration, other than an act or omission due to that person’s gross negligence or intentional misconduct.  No member of the Board or Committee will be personally liable for any act or omission of any other member of the Board or Committee.  Each member of the Board or Committee, and each Director, officer and employee acting on behalf of the Board or Committee, may rely upon information or advice provided by the Company’s officers, accountants, actuaries, compensation consultants, and counsel.  No member of the Board or a Committee, and no Director, officer or employee acting on behalf of the Board or a Committee, will be personally liable for any act or omission taken in good faith reliance on the information or advice.

 

 

4.1           Available Shares.  Subject to adjustment from time to time as provided in Section 13, the maximum aggregate number of shares of Common Stock available for issuance under the Plan shall be 7,680,000 shares.  If an Award entitles the holder thereof to receive or purchase shares of Common Stock, the number of shares covered by such Award or to which such Award relates shall be counted against the maximum aggregate number of shares of Common Stock available for issuance under the Plan on the Grant Date of such Award.  If any shares of Common Stock subject to an Award are forfeited, expire or otherwise terminate without issuance of such shares, or any Award is settled for cash or otherwise does not result in the issuance of all or a portion of the shares of Common Stock subject to such Award, such shares of Common Stock shall, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available for issuance under the Plan.

 

4.2           Incentive Stock Options Shares.  Subject to adjustment from time to time as provided in Section 13, the maximum aggregate number of shares of Common Stock available for issuance through Incentive Stock Options shall be 7,680,000 shares.

 

4.3           Substitute Awards.  The number of shares of Common Stock covered by a Substitute Award or to which a Substitute Award relates shall not be counted against the maximum aggregate number of shares of Common Stock available for issuance under the Plan.

 

4.4           Source of Shares.  Shares of Common Stock delivered by the Company or a Subsidiary, as applicable, in settlement of Awards (including Substitute Awards) may be authorized and unissued shares of Common Stock, shares of Common Stock held in the treasury of the Company, or a combination of the foregoing.

 

 

 

An Award may be granted to any Employee or Director whom the Committee from time to time selects, including prospective Employees conditioned on their becoming Employees (each, an “Eligible Person”).  Notwithstanding the foregoing, an Award of Incentive Stock Options may only be granted to an Employee of the Company, or of a Subsidiary that is also a “subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code.

 

 

6.1           Grant of Awards.  The Committee may from time to time grant Awards of Options, Restricted Stock, Restricted Stock Units or other Awards under the Plan to one or more Eligible Persons.  The Committee shall have the authority, in its discretion, to determine the Eligible Persons to receive one or more Awards, the type or types of Awards to be granted under the Plan, and the terms of any Awards granted, consistent with the terms of the Plan.  Such Awards may be granted either alone or in addition to any other type of Award.  The provisions governing Awards need not be the same with respect to each Participant.

 

6.2           Award Agreement.  Awards granted under the Plan shall be evidenced by a written Award Agreement that shall contain such terms, conditions, limitations and restrictions as the Committee shall deem advisable and are not inconsistent with the Plan or applicable law.

 

6.3           Director Award and Fee Limits.  The aggregate grant date fair value of Awards to a Director in any calendar year shall not exceed $500,000, and the total fees paid to Directors in cash for services in any calendar year shall not exceed $500,000.

 

 

7.1           Grant of Options.  The Committee may grant Options.  Subject to the provisions of the Plan, an Option shall vest and be fully exercisable as may be determined by the Committee in its discretion and provided in an applicable Award Agreement.

 

7.2           Option Type.  An Option granted may be either of a type that complies with the requirements for “incentive stock options” in Section 422 of the Code (“Incentive Stock Option”) or of a type that does not comply with such requirements (“Nonqualified Stock Option”).  The aggregate Fair Market Value (determined at the time that the Incentive Stock Option is granted) of the shares of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year under the Plan and under any other option plan of the Company or a Subsidiary shall not exceed $100,000, and any Option granted in excess of this limitation shall be treated as a Nonqualified Stock Option.

 

 

7.3           Option Exercise Price.  Except as otherwise permissible under this Section 7.3, the exercise price (“Exercise Price”) per share of Common Stock for each Option granted under the Plan shall not be less than 100% of the Fair Market Value of such share of Common Stock, determined as of the Grant Date.  In the case of an individual who on the Grant Date owns (or is deemed to own pursuant to Section 424(d) of the Code) more than 10% of the voting power of all classes of stock of the Company or any Subsidiary (a “Ten Percent Stockholder”), the Exercise Price per share of Common Stock for an Incentive Stock Option shall not be less than 110% of the Fair Market Value of such share of Common Stock on the Gant Date.  An Option that is a Substitute Award may be granted with an Exercise Price lower than the Fair Market Value of a share of Common Stock on the Grant Date if such Option is granted in a manner satisfying the provisions of Section 422 of the Code in the case of a Substitute Award for an Option that is an Incentive Stock Option, or the provisions of Section 409A of the Code in the case of a Substitute Award for an Option that is a Nonqualified Stock Option.

 

7.4           Option Term. Options granted under the Plan shall vest and become exercisable in such manner and on such date or dates, and shall expire after such period, not to exceed 10 years, each as determined by the Committee and set forth in the applicable Award Agreement; provided, however, the term of an Incentive Stock Option may not exceed 10 years, and the term of an Incentive Stock Option granted to a Ten Percent Stockholder may not exceed five years.

 

7.5           Exercise of Option.  To the extent an Option has vested and become exercisable, the Option may be exercised by the Participant in whole or in part from time to time by delivery to the Company or its designee of a written or electronic notice of exercise, in accordance with the terms of the applicable Award Agreement and any procedures established by the Committee for such exercise, accompanied by payment of the Exercise Price as described in Section 7.6, and payment of any taxes required to be withheld as described in Section 11.  An Option may be exercised only for whole shares.  The Committee may exclude one or more methods for exercising an Option in countries outside the United States.

 

7.6           Payment of Exercise Price.  The aggregate Exercise Price payable upon the exercise of an Option shall be payable:  (a) in cash, check or wire transfer; (b) to the extent permitted by the Committee, by tendering (either actually or by attestation) shares of Common Stock already owned by the Participant; (c) by delivery of a properly executed exercise notice directing the Company to withhold shares of Common Stock issuable pursuant to exercise of the Option with a fair market value sufficient to pay the Exercise Price; (d) if the Common Stock is publicly traded on an established securities exchange or trading system, then the Exercise Price may be paid, at the discretion of the Committee, by authorizing a third party to sell, on behalf of the Participant, the appropriate number of shares of Common Stock otherwise issuable to the Participant upon the exercise of the Option and to remit to the Company a sufficient portion of the sale proceeds to pay the Exercise Price for the shares of Common Stock being acquired; or (e) by such other consideration as the Committee may permit in its sole discretion.  The Committee may exclude one or more methods for paying the Exercise Price of an Option in countries outside the United States.

 

7.7           Post-Termination Exercises.  The Committee shall establish and set forth in each Award Agreement that evidences an Option whether the Option shall continue to be exercisable, and the terms and conditions of such exercise, after a termination of service, any of which provisions may be waived or modified by the Committee at any time.

 

 

 

8.1           Grant of Restricted Stock and Restricted Stock Units.  The Committee may grant Restricted Stock and Restricted Stock Units on such terms and conditions and subject to such repurchase or forfeiture restrictions, if any (which may be based on continuous service with the Company or a Subsidiary or the achievement of any performance criteria), as the Committee shall determine in its sole discretion, which terms, conditions and restrictions shall be set forth in the applicable Award Agreement.

 

8.2           Issuance of Shares.  Subject to applicable laws, upon the satisfaction of any terms, conditions and restrictions prescribed with respect to Restricted Stock or Restricted Stock Units, or upon a Participant’s release from any terms, conditions and restrictions of Restricted Stock or Restricted Stock Units, as determined by the Committee in its sole discretion, and subject to the provisions of Section 11, (a) the shares of Common Stock covered by an Award of Restricted Stock shall become freely transferable by the Participant, and (b) the Restricted Stock Units shall be paid in cash, shares of Common Stock or a combination thereof, as the Committee shall determine in its sole discretion.  Any fractional shares subject to such Awards shall be paid to the Participant in cash.

 

8.3           Dividends and Dividend Equivalents.  Participants holding shares of Restricted Stock or Restricted Stock Units may, if the Committee so determines, be credited with dividends paid with respect to the shares of Restricted Stock, or dividend equivalents with respect to Restricted Stock Units, while they are so held in a manner determined by the Committee in its sole discretion.  The Committee may apply any restrictions to the dividends or dividend equivalents that the Committee deems appropriate in its sole discretion.  The Committee, in its sole discretion, may determine the form of payment of dividends or dividend equivalents, including cash, shares of Common Stock, Restricted Stock or Restricted Stock Units.

 

8.4           Waiver of Restrictions.  Notwithstanding any other provisions of the Plan, the Committee, in its sole discretion, may waive the repurchase or forfeiture period and any other terms, conditions or restrictions on any Restricted Stock or Restricted Stock Unit under such circumstances and subject to such terms and conditions as the Committee shall deem appropriate in its sole discretion, including upon the occurrence of a Participant’s death, disability or retirement, or upon a change in control.

 

 

In addition to the Awards described in Section 7 and Section 8, and subject to the terms of the Plan, the Committee may grant other incentives payable in cash or in shares of Common Stock under the Plan as it determines to be in the best interests of the Company and subject to such other terms and conditions as it deems appropriate in its sole discretion.  The Committee may exclude the use of one or more other Awards in countries outside the United States.

 

 

 

To the extent required by applicable federal, state, local or foreign law, a Participant (or authorized transferee) shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise by reason of the grant, vesting or exercise of an Award.  The Company shall not be required to issue shares or to recognize the disposition of such shares until such obligations are satisfied.  Subject to applicable law, the Company may:  (a) deduct from any cash payment made to a Participant under the Plan an amount that satisfies all or any portion of any withholding tax obligations; (b) require the Participant through payroll withholding, cash payment, or otherwise to satisfy all or any portion of the withholding tax obligations; (c) withhold a portion of the shares of Common Stock that otherwise would be issued to the Participant upon grant, vesting or exercise of the Award by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates; (d) to the extent permitted by the Committee in its sole discretion, allow the Participant to tender shares previously acquired; (e) if the Common Stock is publicly traded on an established securities exchange or trading system, at the discretion of the Committee, allow the Participant to authorize a third party to sell, on behalf of the Participant, the appropriate number of shares otherwise issuable to the Participant upon the exercise of an Option and to remit to the Company a sufficient portion of the sale proceeds to satisfy the withholding tax obligations, considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates; or (f) provide for the satisfaction of any withholding tax obligation through any combination of the foregoing methods.  The Committee may exclude one or more methods for satisfying any tax withholding associated with the exercise of an Option in countries outside the United States.

 

 

Unless provided otherwise by the Committee, no Award or interest in an Award may be sold, assigned, pledged (as collateral for a loan or as security for the performance of an obligation or for any other purpose) or transferred by the Participant or made subject to attachment or similar proceedings otherwise than by will or by the applicable laws of descent and distribution, except to the extent a Participant designates one or more beneficiaries on a Company-approved form who may exercise the Award or receive payment under the Award after the Participant’s death.  During a Participant’s lifetime, an Award may be exercised only by the Participant.

 

 

12.1        Adjustment of Shares.

 

(a)           In the event that the number of shares of Common Stock shall be increased or decreased through reorganization, reclassification, recapitalization, combination of shares, stock splits, reverse stock splits, spin-offs, the payment of a stock dividend or extraordinary cash dividend, or other distribution of the Common Stock for which no consideration is received by the Company or otherwise, then each share of Common Stock which has been authorized for issuance under the Plan, whether such share is then currently subject to or may become subject to an Award under the Plan, shall be adjusted as determined by the Committee in its exclusive discretion to reflect such increase or decrease, unless the terms of the transaction provide otherwise.  Outstanding Awards shall also be adjusted as to price and other terms as determined by the Committee in its exclusive discretion to reflect the foregoing events.

 

 

(b)           In the event there shall be any other change in the number or kind of the outstanding shares of Common Stock, or any stock or other securities into which such Common Stock shall have been changed, or for which it shall have been exchanged, whether by reason of merger, consolidation or otherwise, then the Committee shall, in its sole discretion, determine the appropriate adjustment, if any, to be effected.  Notwithstanding anything to the contrary herein, any adjustment to Awards granted pursuant to the Plan shall comply with the applicable requirements, provisions and restrictions of the Code and applicable law.

 

(c)           No right to purchase fractional shares shall result from any adjustment in Awards pursuant to Section 13.1(a) or (b).  In case of any such adjustment, the shares subject to the Award shall be rounded down to the nearest whole share.  Notice of any adjustment shall be given by the Company to each Participant which shall have been so adjusted and such adjustment (whether or not notice is given) shall be effective and binding for all purposes of the Plan.

 

12.2         Limitations.  The grant of Awards shall in no way affect the Company’s right to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.

 

 

13.1        Amendment, Suspension or Termination of Plan.  Subject to applicable law, the Board may amend, suspend or terminate the Plan or any portion of the Plan at any time and in such respects as it shall deem advisable; provided, however, that, to the extent required by applicable law, stockholder approval shall be required for any amendment to the Plan.  No amendment may be effective, without the approval of the stockholders of the Company, if approval of such amendment is required in order that transactions in Company securities under the Plan be exempt from the operation of Section 16 of the Exchange Act or if such amendment, with respect to the issuance of Incentive Stock Options, either: (a) materially increases the number of shares of Common Stock which may be issued under the Plan, except as provided for in Section 13; or (b) materially modifies the requirements as to eligibility for participation in the Plan (unless designed to comport with applicable law).  The amendment, suspension or termination of the Plan or a portion thereof or the amendment of an outstanding Award shall not, without the Participant’s consent, materially adversely affect any rights under any Award theretofore granted to the Participant under the Plan.

 

13.2        Amendment of Awards.  Subject to applicable law and the Plan, the Committee will have the exclusive authority and discretion to amend any Award or Award Agreement.  If the amendment will have a material adverse effect on a Participant’s rights, or result in a material increase in the Participant’s obligations, the Committee must obtain the Participant’s written consent to the amendment.

 

 

13.3        Term of the Plan.  Unless sooner terminated as provided herein, the Plan shall terminate 10 years from the Effective Date.  After the Plan is terminated, no future Awards may be granted, but Awards previously granted shall remain outstanding in accordance with their applicable terms and conditions and the Plan’s terms and conditions.

 

 

14.1        No Individual Rights.  No individual or Participant shall have any claim to be granted any Award under the Plan, and the Company has no obligation for uniformity of treatment of Participants under the Plan.  Furthermore, nothing in the Plan or any Award granted under the Plan shall be deemed to constitute an employment contract or confer or be deemed to confer on any Participant any right to continue in the employ of, or to continue any other relationship with, the Company or any Subsidiary, or limit in any way the right of the Company or any Subsidiary to terminate a Participant’s employment or other relationship at any time, with or without cause.

 

14.2        Issuance of Shares.  In the event that the Board or the Committee determines in its sole discretion that the listing, qualification or registration of the shares issued under the Plan on any securities exchange or quotation or trading system or under any applicable law (including state securities laws) or governmental regulation is necessary as a condition to the issuance of such shares under the Award, the Award may not be exercised in whole or in part unless such listing, qualification, consent or approval has been unconditionally obtained.

 

14.3        No Rights as Stockholder.  Unless otherwise determined by the Committee in its discretion, a participant to whom an Award of Restricted Stock has been made shall have ownership of such Common Stock, including the right to vote the same and to receive dividends or other distributions made or paid with respect to such Common Stock.  Unless otherwise determined by the Committee in its discretion, a participant to whom an Award of Options, Restricted Stock Units or any other Award (other than an Award of Restricted Stock) is made shall have no rights as a stockholder with respect to any Common Stock or as a holder with respect to other securities, if any, issuable pursuant to any such Award until the date of the issuance of a stock certificate to the Participant or the entry on the Participant’s behalf of an uncertificated book position on the records of the Company’s transfer agent and registrar for such Common Stock or other instrument of ownership, if any.  Except as provided in Section 13, no adjustment shall be made for dividends, distributions or other rights (whether ordinary or extraordinary, and whether in cash, securities, other property or other forms of consideration, or any combination thereof) for which the record date is prior to the date such book entry is made or a stock certificate or other instrument of ownership, if any, is issued.

 

14.4        No Trust or Fund.  The Plan is intended to constitute an “unfunded” plan.  Nothing contained herein shall require the Company to segregate any monies or other property, or shares of Common Stock, or to create any trusts, or to make any special deposits for any immediate or deferred amounts payable to any Participant, and no Participant shall have any rights that are greater than those of a general unsecured creditor of the Company.

 

 

14.5        Successors.  All obligations of the Company under the Plan with respect to Awards shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all the business and/or assets of the Company.

 

14.6        Substitute Awards.  Notwithstanding any other provision of the Plan, the terms of Substitute Awards may vary from the terms set forth in the Plan to the extent the Committee deems appropriate to conform, in whole or in part, to the provisions of the awards in substitution for which they are granted.

 

14.7        Severability.  If any provision of the Plan or any Award is determined to be invalid, illegal or unenforceable in any jurisdiction, or as to any person, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or, if it cannot be so construed or deemed amended without, in the Committee’s determination, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, person or Award, and the remainder of the Plan and any such Award shall remain in full force and effect.

 

14.8        Choice of Law.  The Plan, all Awards granted thereunder and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by the laws of the United States, shall be governed by the laws of the State of Delaware, without giving effect to principles of conflicts of law.

 

14.9        Electronic Delivery and Signatures.  Any reference in the Plan, an Award or an Award Agreement to a written document includes without limitation any document delivered electronically or posted on the Company’s or a Subsidiary’s intranet or other shared electronic medium controlled by the Company or Subsidiary.  The Committee and any Participant may use facsimile and PDF signatures in signing any Award or Award Agreement, in exercising any Option, or in any other written document in the Plan’s administration.  The Committee and each Participant are bound by facsimile and PDF signatures, and acknowledge that the other party relies on facsimile and PDF signatures.

 

14.10     Headings and Captions.  The headings and captions in the Plan are used only for convenience, and do not construe, define, expand, interpret, or limit any provision of the Plan.

 

14.11     Gender and Number.  Whenever the context may require, any pronoun includes the corresponding masculine, feminine, or neuter form, and the singular includes the plural and vice versa.

 

14.12     Construction.  The terms “includes,” “including,” “includes without limitation,” and “including without limitation” are not to be construed to limit any provision or item that precedes or follows these terms (whether in the same section or another section) to the specific or similar provisions or items that follow these terms.

 

 

 

The Plan shall be effective as of the earlier of the date that the Plan is adopted by the Board or the date that it is approved by the stockholders of the Company (the “Effective Date”). The expiration date of the Plan, on and after which date no Awards may be granted hereunder, shall be the 10th anniversary of the Effective Date; provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards; and provided further, that no Option shall be exercised, no Restricted Stock granted, and no Restricted Stock Units or other Awards shall be paid out unless and until the Plan has been approved by the stockholders of the Company, which approval shall be within 12 months before or after the date the Plan is adopted by the Board.  If the Company does not obtain stockholder approval within 12 months before or after the date the Plan is adopted by the Board, the Plan and any Award made thereunder will terminate ab initio.

 

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