NOTICE REGARDING PROPOSAL 5 - Approval
of the Sixth Amended and Restated 2008 Equity Incentive Plan
Proposal 5 in the Proxy Statement for the
Annual Meeting seeks shareholder approval of the Plan Amendment.
This May Supplement regarding Proposal
5 is being made to our shareholders solely for the purpose amending Proposal 5 such that (i) the proposed increase of additional
shares of common stock available to the 2008 Equity Incentive Plan is reduced from 1,100,000 shares to 1,000,000 shares; and (ii)
Section 8.3 of the Plan Amendment is revised to make clear that the Plan Amendment would prohibit the payment of dividends or dividend
equivalents for unvested incentive awards.
The full text of the Plan Amendment, as
revised, is attached hereto as Appendix A.
No changes are otherwise made to the Plan
Amendment, and no changes are otherwise being made to Proposal 5 or any other proposals in the Proxy Statement for the Annual Meeting,
as filed with the Securities and Exchange Commission and previously delivered or otherwise made available to our shareholders of
record as of April 13, 2020.
The Plan Amendment, as updated, will be
presented for shareholder approval at the Annual Meeting, and its effectiveness remains conditioned on the receipt of such approval.
If a shareholder returns his or her proxy card or votes via the Internet or by telephone at any time (either prior to or after
the date of this May Supplement) indicating in favor of Proposal 5, such vote will constitute a vote in favor of such Proposal,
as updated by this May Supplement. If any shareholder has already returned his or her properly executed proxy card or voted via
the Internet or by telephone and would like to change his or her vote on any matter, such shareholder may revoke his or her proxy
and change his or her vote prior to the applicable cutoff time. A shareholder may change his or her vote using the Internet or
telephone methods described in the Proxy Statement, in which case only his or her latest Internet or telephone proxy submitted
prior to the Annual Meeting will be counted.
APPENDIX A
ANI PHARMACEUTICALS, INC. SIXTH AMENDED AND RESTATED 2008 INCENTIVE PLAN
(Amended on [________], 2020)
The purpose of the ANI Pharmaceuticals, Inc. Sixth
Amended and Restated 2008 Stock Incentive Plan (this “Plan”) is to advance the interests of ANI Pharmaceuticals, Inc.
(the “Company”) and its stockholders by enabling the Company and its Subsidiaries to attract and retain qualified persons
to perform services for the Company and its Subsidiaries by providing an incentive to such individuals through opportunities for
equity participation in the Company, and by rewarding such individuals who contribute to the achievement of the Company’s
economic objectives.
The following terms will have
the meanings set forth below, unless the context clearly otherwise requires:
|
2.1
|
“Board” means the Board of Directors
of the Company.
|
|
2.2
|
“Broker Exercise Notice” means a written
notice pursuant to which a Participant, upon exercise of an Option, irrevocably instructs a broker or dealer to sell a sufficient
number of shares or loan a sufficient amount of money to pay all or a portion of the exercise price of the Option and/or any related
withholding tax obligations and remit such sums to the Company and directs the Company to deliver stock certificates to be issued
upon such exercise directly to such broker or dealer or their nominee.
|
|
2.3
|
“Cause” means “cause”
as defined in any employment or other agreement or policy applicable to the Participant, or if no such agreement or policy exists,
will mean (i) dishonesty, fraud, misrepresentation, embezzlement or deliberate injury or attempted injury, in each case related
to the Company or any Subsidiary, (ii) any unlawful or criminal activity of a serious nature, (iii) any intentional and deliberate
breach of a duty or duties that, individually or in the aggregate, are material in relation to the Participant’s overall
duties, or (iv) any material breach of any employment, service, confidentiality, non-compete or non-solicitation agreement entered
into with the Company or any Subsidiary.
|
|
2.4
|
“Change in Control” means an event
described in Section 14.1 of the Plan; provided, however, if under an Incentive Award that is subject to Section 409A of the Code,
payment or settlement is triggered by a Change in Control, such that such payment or settlement would subject the Incentive Award
to taxation under Section 409A of the Code, the term Change in Control will mean a change in the ownership or effective control
of the Company, or in the ownership of a substantial portion of the assets of the Company, as such term is defined in Section
409A of the Code.
|
|
2.5
|
“Code” means the Internal Revenue
Code of 1986, as amended (including, when the context requires, all regulations, interpretations and rulings issued thereunder).
|
|
2.6
|
“Committee” means the group of individuals
administering the Plan, as provided in Section 3 of the Plan.
|
|
2.7
|
“Common Stock” means the common stock
of the Company, par value $0.0001 per share, or the number and kind of shares of stock or other securities into which such Common
Stock may be changed in accordance with Section 4.3 of the Plan.
|
|
2.8
|
“Disability” means the disability
of the Participant such as would entitle the Participant to receive disability income benefits pursuant to the long-term disability
plan of the Company or Subsidiary then covering the Participant or, if no such plan exists or is applicable to the Participant,
the permanent and total disability of the Participant within the meaning of Section 22(e)(3) of the Code; provided, however, if
distribution of an Incentive Award subject to Section 409A of the Code is triggered by an Eligible Recipient’s Disability,
such term will mean that the Eligible Recipient is disabled as defined by Section 409A of the Code and the regulations and rulings
issued thereunder.
|
|
2.9
|
“Effective Date” means June 5, 2020
or such later date as this Plan is approved by the Company’s stockholders.
|
|
2.10
|
“Eligible Recipients” means (a) for
the purposes of granting Incentive Stock Options, all employees (including, without limitation, officers and directors who are
also employees) of the Company or any Subsidiary and (b) for the purposes of granting Non-Statutory Stock Options and other Incentive
Awards, all employees (including, without limitation, officers and directors who are also employees) of the Company or any Subsidiary
and any non-employee directors, consultants, advisors and independent contractors of the Company or any Subsidiary. Notwithstanding
the foregoing, an Eligible Person shall also include any individual who is expected to become an employee of the Company or any
Subsidiary or a non-employee director, consultant, advisor or independent contractor of the Company or any Subsidiary within a
reasonable period of time after the grant of an Incentive Award (other than an Incentive Stock Option); provided that any Award
granted to any such individual shall be automatically terminated and cancelled without consideration if the individual does not
begin performing services for the Company or any Subsidiary within twelve (12) months after the date such Incentive Award is granted.
|
|
2.11
|
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
|
|
2.12
|
“Fair Market Value” means, with respect
to the Common Stock, as of any date: (i) the closing sale price of the Common Stock at the end of the regular trading session,
as reported by The NASDAQ Stock Market, The New York Stock Exchange, The American Stock Exchange or any national exchange on which
the Common Stock is then listed or quoted (or, if no shares were traded on such date, as of the next preceding date on which there
was such a trade); or (ii) if the Common Stock is not so listed, admitted to unlisted trading privileges, or reported on any national
exchange or, the closing sale price as of such date at the end of the regular trading session, as reported by OTC Bulletin Board
or the Pink Sheets LLC, or other comparable service (or, if no shares were traded or quoted on such date, as of the next preceding
date on which there was such a trade or quote); or (iii) if the Common Stock is not so listed or reported, such price as the Committee
determines in good faith, and consistent with the definition of “fair market value” under Section 409A of the Code.
|
|
2.13
|
“Incentive Award” means an Option,
Stock Appreciation Right, Restricted Stock Award, Stock Unit Award, Performance Award or Stock Bonus granted to an Eligible Recipient
pursuant to the Plan.
|
|
2.14
|
“Incentive Stock Option” means a right
to purchase shares of Common Stock granted to an Eligible Recipient pursuant to Section 6 of the Plan that qualifies as an “incentive
stock option” within the meaning of Section 422 of the Code.
|
|
2.15
|
“Non-Statutory Stock Option” means
a right to purchase shares of Common Stock granted to an Eligible Recipient pursuant to Section 6 of the Plan that does not qualify
as an Incentive Stock Option.
|
|
2.16
|
“Option” means an Incentive Stock
Option or a Non-Statutory Stock Option.
|
|
2.17
|
“Participant” means an Eligible Recipient
who receives one or more Incentive Awards under the Plan.
|
|
2.18
|
“Performance Award” means a right
granted to an Eligible Recipient pursuant to Section 10 of the Plan to receive an amount of cash, a number of shares of Common
Stock, or a combination of both, contingent upon achievement of specified performance objectives during a specified period. A
Performance Award is also commonly referred to as a “performance unit.”
|
|
2.19
|
“Previously Acquired Shares” means
shares of Common Stock that are already owned by the Participant or, with respect to any Incentive Award, that are to be issued
to the Participant upon the grant, exercise or vesting of such Incentive Award.
|
|
2.20
|
"Prior Plan Restatement" means any prior
amendment and restatement of ANI Pharmaceuticals, Inc. 2008 Stock Plan.
|
|
2.21
|
“Restricted Stock Award” means an
award of shares of Common Stock granted to an Eligible Recipient pursuant to Section 8 of the Plan that are subject to restrictions
on transferability and/or a risk of forfeiture.
|
|
2.22
|
“Retirement” means termination of
employment or service at age 55 or older and completion of at least ten years of continuous service.
|
|
2.23
|
“Securities Act” means the Securities
Act of 1933, as amended.
|
|
2.24
|
“Stock Appreciation Right” means a
right granted to an Eligible Recipient pursuant to Section 7 of the Plan to receive a payment from the Company, in the form of
shares of Common Stock, cash or a combination of both, equal to the difference between the Fair Market Value of one or more shares
of Common Stock and a specified exercise price of such shares.
|
|
2.25
|
“Stock Bonus” means an award of shares
of Common Stock granted to an Eligible Recipient pursuant to Section 11 of the Plan.
|
|
2.26
|
“Stock Unit Award” means a right granted
to an Eligible Recipient pursuant to Section 9 of the Plan to receive the Fair Market Value of one or more shares of Common Stock,
payable in cash, shares of Common Stock, or a combination of both, the payment, issuance, retention and/or vesting of which is
subject to the satisfaction of specified conditions, which may include achievement of specified performance objectives. A Stock
Unit Award when payable in shares of Common Stock is also commonly referred to as a “restricted stock unit.”
|
|
2.27
|
“Subsidiary” means any entity that
is directly or indirectly controlled by the Company or any entity in which the Company has a significant equity interest, as determined
by the Committee, provided the Company has a “controlling interest” in the Subsidiary as defined in Treas. Reg. Sec.
1.409A-1(b)(5)(iii)(E)(1).
|
|
2.28
|
“Tax Date” means the date any withholding
tax obligation arises under the Code for a Participant with respect to an Incentive Award.
|
|
3.1
|
The Committee. The Plan will be administered by
the Board or by a committee of the Board. So long as the Company has a class of its equity securities registered under Section
12 of the Exchange Act, any committee administering the Plan will consist solely of two or more members of the Board who are “non-employee
directors” within the meaning of Rule 16b-3 under the Exchange Act and who are “independent” as required by
the listing standards of The NASDAQ Stock Market (or other applicable exchange or market on which the Company’s Common Stock
may be traded or quoted). Such a committee, if established, will act by majority approval of the members (but may also take action
by the written consent of all of the members of such committee), and a majority of the members of such a committee will constitute
a quorum. As used in the Plan, “Committee” will refer to the Board or to such a committee, if established. To the
extent consistent with applicable corporate law of the Company’s jurisdiction of incorporation, the Committee may delegate
to any officers of the Company the duties, power and authority of the Committee under the Plan pursuant to such conditions or
limitations as the Committee may establish; provided, however, that only the Committee may exercise such duties, power and authority
with respect to Eligible Recipients who are subject to Section 16 of the Exchange Act. The Committee may exercise its duties,
power and authority under the Plan in its sole and absolute discretion without the consent of any Participant or other party,
unless the Plan specifically provides otherwise. Each determination, interpretation or other action made or taken by the Committee
pursuant to the provisions of the Plan will be final, conclusive and binding for all purposes and on all persons, and no member
of the Committee will be liable for any action or determination made in good faith with respect to the Plan or any Incentive Award
granted under the Plan.
|
|
3.2
|
Authority of the Committee.
|
|
(a)
|
In accordance with and subject to the provisions of the
Plan, the Committee will have the authority to determine all provisions of Incentive Awards as the Committee may deem necessary
or desirable and as consistent with the terms of the Plan, including, without limitation, the following: (i) the Eligible Recipients
to be selected as Participants; (ii) the nature and extent of the Incentive Awards to be made to each Participant (including the
number of shares of Common Stock to be subject to each Incentive Award, any exercise price, the manner in which Incentive Awards
will vest or become exercisable and whether Incentive Awards will be granted in tandem with other Incentive Awards) and the form
of written agreement, if any, evidencing such Incentive Award; (iii) the time or times when Incentive Awards will be granted;
(iv) the duration of each Incentive Award; and (v) the restrictions and other conditions to which the payment or vesting of Incentive
Awards may be subject. In addition, the Committee will have the authority under the Plan in its sole discretion to pay the economic
value of any Incentive Award in the form of cash, Common Stock or any combination of both.
|
|
(b)
|
Subject to Section 3.2(d) of the Plan, the Committee
will have the authority under the Plan to amend or modify the terms of any outstanding Incentive Award in any manner, including,
without limitation, the authority to modify the number of shares or other terms and conditions of an Incentive Award, extend the
term of an Incentive Award, accelerate the exercisability or vesting or otherwise terminate any restrictions relating to an Incentive
Award, accept the surrender of any outstanding Incentive Award or, to the extent not previously exercised or vested, authorize
the grant of new Incentive Awards in substitution for surrendered Incentive Awards; provided, however that (i) the amended or
modified terms must otherwise be permitted by the Plan as then in effect, and may not subject any Participant to taxation under
Section 409A of the Code and (ii) any Participant adversely affected by such amended or modified terms must have consented to
such amendment or modification.
|
|
(c)
|
In the event of (i) any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split, combination of shares, rights offering, extraordinary
dividend or divestiture (including a spin-off) or any other similar change in corporate structure or shares; (ii) any purchase,
acquisition, sale, disposition or write-down of a significant amount of assets or a significant business; (iii) any change in
accounting principles or practices, tax laws or other such laws or provisions affecting reported results; (iv) any uninsured catastrophic
losses or extraordinary non-recurring items as described in Financial Accounting Standards Board Accounting Standards Codification
225, Income Statement or in management’s discussion and analysis of financial performance appearing in the Company’s
annual report to stockholders for the applicable year; or (v) any other similar change, in each case with respect to the Company
or any other entity whose performance is relevant to the grant or vesting of an Incentive Award, the Committee (or, if the Company
is not the surviving corporation in any such transaction, the board of directors of the surviving corporation) may, without the
consent of any affected Participant, amend or modify the vesting criteria (including any performance objectives) of any outstanding
Incentive Award that is based in whole or in part on the financial performance of the Company (or any Subsidiary or division or
other subunit thereof) or such other entity so as equitably to reflect such event, with the desired result that the criteria for
evaluating such financial performance of the Company or such other entity will be substantially the same (in the sole discretion
of the Committee or the board of directors of the surviving corporation) following such event as prior to such event; provided,
however, that the amended or modified terms are permitted by the Plan as then in effect, including the limitations in Section
3.2(a) and 3.2(b).
|
|
(d)
|
Notwithstanding any other provision of this Plan other
than Section 4.3, the Committee may not, without prior approval of the Company’s stockholders, seek to effect any re-pricing
of any previously granted, “underwater” Option or Stock Appreciation Right by: (i) amending or modifying the terms
of the Option or Stock Appreciation Right to lower the exercise price; (ii) canceling the underwater Option or Stock Appreciation
Right in exchange for (A) cash; (B) replacement Options or Stock Appreciation Rights having a lower exercise price; or (C) other
Incentive Awards; or (iii) repurchasing the underwater Options or Stock Appreciation Rights and granting new Incentive Awards
under this Plan. For purposes of this Section 3.2(d), Options and Stock Appreciation Rights will be deemed to be “underwater”
at any time when the Fair Market Value of the Common Stock is less than the exercise price of the Option or Stock Appreciation
Right.
|
|
(e)
|
In addition to the authority of the Committee under Section
3.2(b) of the Plan and notwithstanding any other provision of the Plan, the Committee may, in its sole discretion, amend the terms
of the Plan or Incentive Awards with respect to Participants resident outside of the United States or employed by a non-U.S. Subsidiary
in order to comply with local legal requirements, to otherwise protect the Company’s or Subsidiary’s interests, or
to meet objectives of the Plan, and may, where appropriate, establish one or more sub-plans (including the adoption of any required
rules and regulations) for the purposes of qualifying for preferred tax treatment under foreign tax laws. The Committee shall
have no authority, however, to take action pursuant to this Section 3.2(e) of the Plan: (i) to reserve shares or grant Incentive
Awards in excess of the limitations provided in Section 4.1 of the Plan; (ii) to effect any re-pricing in violation of Section
3.2(d) of the Plan; (iii) to grant Options or Stock Appreciation Rights having an exercise price in violation of Section 6.2 or
7.2 of the Plan, as the case may be; or (iv) for which stockholder approval would then be required pursuant to Section 422 of
the Code or the rules of The NASDAQ Stock Market (or other applicable exchange or market on which the Company’s Common Stock
may be traded or quoted). In addition, the Committee shall have no authority to grant any Incentive Award on or after April 10,
2020 that vests or becomes exercisable earlier than twelve months after such Incentive Award was granted; provided, however, that
this minimum vesting condition shall not apply to (x) any Incentive Award that is outstanding on April 9, 2020, or (y) Incentive
Awards granted on or after April 10, 2020 with respect to which the aggregate number of shares issuable pursuant to such Incentive
Awards do not exceed 5% of the aggregate number of shares of Common Stock reserved for issuance under the Plan as of April 10,
2020 less the sum of the number of shares of Common Stock issued under the Plan prior to April 10, 2020 and the number of shares
of Common Stock underlying Incentive Awards that were outstanding as of April 10, 2020 (collectively, “Exempted Awards”).
|
|
4.
|
Shares Available for Issuance.
|
|
4.1
|
Maximum Number of Shares Available; Certain Restrictions
on Awards. Subject to adjustment as provided in Section 4.3 of the Plan, the maximum number of shares of Common Stock that
will be available for issuance under the Plan will be the sum of:
|
(a) 3,000,000;
(b) the number of shares of Common Stock subject to
Incentive Awards granted under any Prior Plan Restatement that remain outstanding as of the Effective Date but only to the extent
that such outstanding Incentive Awards are forfeited, expire or otherwise terminate without the issuance of such shares of Common
Stock; and
(c) the number of shares issued or Incentive Awards
granted under the Plan in connection with the settlement, assumption or substitution of outstanding awards as a condition of the
Company and/or any Subsidiary(ies) acquiring, merging or consolidating with another entity.
The shares available for issuance under the Plan may,
at the election of the Committee, be either treasury shares or shares authorized but unissued, and, if treasury shares are used,
all references in the Plan to the issuance of shares will, for corporate law purposes, be deemed to mean the transfer of shares
from treasury.
|
4.2
|
Accounting for Incentive Awards. Shares of Common
Stock that are issued under the Plan or that are potentially issuable pursuant to outstanding Incentive Awards will be applied
to reduce the maximum number of shares of Common Stock remaining available for issuance under the Plan. All shares so subtracted
from the amount available under the Plan with respect to an Incentive Award (other than Incentive Awards granted pursuant to Section
4.1(c)) that lapses, expires, is forfeited (including issued shares forfeited under a Restricted Stock Award) or for any reason
is terminated unexercised or unvested or is settled or paid in cash or any form other than shares of Common Stock will automatically
again become available for issuance under the Plan; provided, however, that (i) any shares which would have been issued upon any
exercise of an Option but for the fact that the exercise price was paid by a “net exercise” pursuant to Section 6.4(b)
of the Plan or the tender or attestation as to ownership of Previously Acquired Shares pursuant to Section 6.4(a) of the
Plan will not again become available for issuance under the Plan; (ii) the full number of shares of Common Stock subject to a
Stock Appreciation Right granted that are settled by the issuance of shares of Common Stock will be counted against the shares
authorized for issuance under this Plan, regardless of the number of shares actually issued upon settlement of such Stock Appreciation
Right, and will not again become available for issuance under the Plan; and (iii) shares withheld by the Company to pay the exercise
price of any Incentive Award or satisfy any tax withholding obligation will not again become available for issuance under the
Plan. Any shares of Common Stock repurchased by the Company on the open market using the proceeds from the exercise of an Incentive
Award will not increase the number of shares available for future grant of Incentive Awards. Subject to the foregoing, any shares
of Common Stock related to Incentive Awards under this Plan or under any Prior Plan Restatement that terminate by expiration,
forfeiture, cancellation or otherwise without the issuance of shares of Common Stock, or are settled in cash in lieu of shares,
or are exchanged with the Committee’s permission, prior to the issuance of shares, for Incentive Awards not involving shares,
will be available again for grant under this Plan.
|
|
4.3
|
Adjustments to Shares and Incentive Awards. In
the event that the Committee determines that any reorganization, merger, consolidation, recapitalization, liquidation, reclassification,
stock dividend, stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including a spin-off)
or any other similar corporate transaction or change in the corporate structure or shares of the Company affects the Common Stock,
such that an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended
to be provided or made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any
or all of (a) the number and kind of securities or other property with respect to which Incentive Awards may be granted, (b) the
number and kind of securities or property subject to outstanding Incentive Awards, and (c) the exercise price of outstanding Options
and Stock Appreciation Rights or, if it deems it appropriate, the Committee may make provision for a cash payment to the holders
of outstanding Incentive Awards. Notwithstanding the foregoing, no such adjustment shall be authorized with respect to any Options
or Stock Appreciation Rights to the extent that such adjustment would cause the Option or Stock Appreciation Rights (determined
as if such Option or Stock Appreciation Right was an Incentive Stock Option) to violate Section 424(a) of the Code or otherwise
subject any Participant to taxation under Section 409A of the Code; and provided further that the number of Shares subject to
any Award denominated in Shares shall always be a whole number.
|
Participants in the Plan will be those Eligible Recipients
who, in the judgment of the Committee, have contributed, are contributing or are expected to contribute to the achievement of economic
objectives of the Company or its Subsidiaries. Eligible Recipients may be granted from time to time one or more Incentive Awards,
singly or in combination or in tandem with other Incentive Awards, as may be determined by the Committee in its sole discretion.
Incentive Awards will be deemed to be granted as of the date specified in the grant resolution of the Committee, which date will
be the date of any related agreement with the Participant.
|
6.1
|
Grant. An Eligible Recipient may be granted one
or more Options under the Plan, and such Options will be subject to such terms and conditions, consistent with the other provisions
of the Plan, as may be determined by the Committee in its sole discretion. The Committee may designate whether an Option is to
be considered an Incentive Stock Option or a Non-Statutory Stock Option. To the extent that any Incentive Stock Option (or portion
thereof) granted under the Plan ceases for any reason to qualify as an “incentive stock option” for purposes of Section
422 of the Code, such Incentive Stock Option (or portion thereof) will continue to be outstanding for purposes of the Plan but
will thereafter be deemed to be a Non-Statutory Stock Option. Options may be granted to an Eligible Recipient for services provided
to a Subsidiary only if, with respect to such Eligible Recipient, the underlying shares of Common Stock constitute “service
recipient stock” within the meaning of Treas. Reg. Section 1.409A-1(b)(5)(iii).
|
|
6.2
|
Exercise Price. The per share price to be paid
by a Participant upon exercise of an Option will be determined by the Committee in its discretion at the time of the Option grant,
provided that such price will not be less than 100% of the Fair Market Value of one share of Common Stock on the date of grant
(or 110% of the Fair Market Value of one share of Common Stock on the date of grant of an Incentive Stock Option if, at the time
the Incentive Stock Option is granted, the Participant owns, directly or indirectly, more than 10% of the total combined voting
power of all classes of stock of the Company or any parent or subsidiary corporation of the Company). Notwithstanding the foregoing,
to the extent that Options are granted under the Plan as a result of the Company’s assumption or substitution of options
issued by any acquired, merged or consolidated entity, the exercise price for such Options shall be the price determined by the
Committee pursuant to the conversion terms applicable to the transaction.
|
|
6.3
|
Exercisability and Duration. An Option will become
exercisable at such times and in such installments and upon such terms and conditions as may be determined by the Committee in
its sole discretion at the time of grant (including without limitation (i) the achievement of one or more specified performance
objectives; and/or that (ii) the Participant remain in the continuous employ or service of the Company or a Subsidiary for a certain
period); provided, however, that no Option may be exercisable after ten (10) years from its date of grant (five years from its
date of grant in the case of an Incentive Stock Option if, at the time the Incentive Stock Option is granted, the Participant
owns, directly or indirectly, more than 10% of the total combined voting power of all classes of stock of the Company or any parent
or subsidiary corporation of the Company).
|
|
6.4
|
Payment of Exercise Price.
|
(a)
The total purchase price of the shares to be purchased upon exercise of an Option will be paid entirely in cash (including check,
bank draft or money order); provided, however, that the Committee, in its sole discretion and upon terms and conditions established
by the Committee, may allow such payments to be made, in whole or in part, by (i) tender of a Broker Exercise Notice; (ii) by
tender, or attestation as to ownership, of Previously Acquired Shares that are acceptable to the Committee; (iii) by a “net
exercise” of the Option (as further described in paragraph (b), below); or (iv) by a combination of such methods.
(b)
In the case of a “net exercise” of an Option, the Company will not require a payment of the exercise price of the
Option from the Participant but will reduce the number of shares of Common Stock issued upon the exercise by the largest number
of whole shares that has a Fair Market Value on the exercise date that does not exceed the aggregate exercise price for the shares
exercised under this method. Shares of Common Stock will no longer be outstanding under an Option (and will therefore not thereafter
be exercisable) following the exercise of such Option to the extent of (i) shares used to pay the exercise price of an Option
under the “net exercise,” (ii) shares actually delivered to the Participant as a result of such exercise and (iii)
any shares withheld for purposes of tax withholding pursuant to Section 13.1 of the Plan.
(c)
Previously Acquired Shares tendered or covered by an attestation as payment of an Option exercise price will be valued at their
Fair Market Value on the exercise date.
|
6.5
|
Manner of Exercise. An Option may be exercised
by a Participant in whole or in part from time to time, subject to the conditions contained in the Plan and in the agreement evidencing
such Option, by delivery in person, by facsimile or electronic transmission or through the mail of written notice of exercise
to the Company at its principal executive office in Baudette, Minnesota and by paying in full the total exercise price for the
shares of Common Stock to be purchased in accordance with Section 6.4 of the Plan.
|
|
7.
|
Stock Appreciation Rights.
|
|
7.1
|
Grant. An Eligible Recipient may be granted one
or more Stock Appreciation Rights under the Plan, and such Stock Appreciation Rights will be subject to such terms and conditions,
consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee
will have the sole discretion to determine the form in which payment of the economic value of Stock Appreciation Rights will be
made to a Participant (i.e., cash, shares of Common Stock or any combination thereof) or to consent to or disapprove the election
by a Participant of the form of such payment. Stock Appreciation Rights may be granted to an Eligible Recipient for services provided
to a Subsidiary only if, with respect to such Eligible Recipient, the underlying shares of Common Stock constitute “service
recipient stock” within the meaning of Treas. Reg. Section 1.409A-1(b)(5)(iii).
|
|
7.2
|
Exercise Price. The exercise price of a Stock
Appreciation Right will be determined by the Committee, in its discretion, at the date of grant but may not be less than 100%
of the Fair Market Value of one share of Common Stock on the date of grant. Notwithstanding the foregoing, to the extent that
Stock Appreciation Rights are granted under the Plan as a result of the Company’s assumption or substitution of stock appreciation
rights issued by any acquired, merged or consolidated entity, the exercise price for such Stock Appreciation Rights shall be the
price determined by the Committee pursuant to the conversion terms applicable to the transaction.
|
|
7.3
|
Exercisability and Duration. A Stock Appreciation
Right will become exercisable at such time and in such installments as may be determined by the Committee in its sole discretion
at the time of grant; provided, however, that no Stock Appreciation Right may be exercisable after ten (10) years from its date
of grant. A Stock Appreciation Right will be exercised by giving notice in the same manner as for Options, as set forth in Section
6.5 of the Plan.
|
|
7.4
|
Grants in Tandem with Options. Stock Appreciation
Rights may be granted alone or in addition to other Incentive Awards, or in tandem with an Option, at the time of grant of the
Option. A Stock Appreciation Right granted in tandem with an Option shall cover the same number of shares of Common Stock as covered
by the Option (or such lesser number as the Committee may determine), shall be exercisable at such time or times and only to the
extent that the related Option is exercisable, have the same term as the Option and shall have an exercise price equal to the
exercise price for the Option. Upon the exercise of a Stock Appreciation Right granted in tandem with an Option, the Option shall
be canceled automatically to the extent of the number of shares covered by such exercise; conversely, upon exercise of an Option
having a related Stock Appreciation Right, the Stock Appreciation Right shall be canceled automatically to the extent of the number
of shares covered by the Option exercise.
|
|
8.
|
Restricted Stock Awards.
|
|
8.1
|
Grant. An Eligible Recipient may be granted one
or more Restricted Stock Awards under the Plan, and such Restricted Stock Awards will be subject to such terms and conditions,
consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee
may impose such restrictions or conditions, not inconsistent with the provisions of the Plan, to the vesting of such Restricted
Stock Awards as it deems appropriate, including, without limitation, (i) the achievement of one or more specified performance
objectives; and/or that (ii) the Participant remain in the continuous employ or service of the Company or a Subsidiary for a certain
period.
|
|
8.2
|
Rights as a Stockholder; Transferability. Except
as provided in Sections 8.1, 8.3, 8.4 and 15.3 of the Plan, a Participant will have all voting, dividend,
liquidation and other rights with respect to shares of Common Stock issued to the Participant as a Restricted Stock Award under
this Section 8 upon the Participant becoming the holder of record of such shares as if such Participant were a holder of
record of shares of unrestricted Common Stock.
|
|
8.3
|
Dividends and Distributions. Unless the Committee
determines otherwise in its sole discretion (either in the agreement evidencing the Restricted Stock Award at the time of grant
or at any time after the grant of the Restricted Stock Award), any dividends or distributions paid with respect to shares of Common
Stock subject to the unvested portion of a Restricted Stock Award will be subject to the same restrictions as the shares to which
such dividends or distributions relate. The Committee will determine in its sole discretion whether any interest will be paid
on such dividends or distributions.
|
|
8.4
|
Enforcement of Restrictions. To enforce the restrictions
referred to in this Section 8, the Committee may place a legend on the stock certificates referring to such restrictions
and may require the Participant, until the restrictions have lapsed, to keep the stock certificates, together with duly endorsed
stock powers, in the custody of the Company or its transfer agent, or to maintain evidence of stock ownership, together with duly
endorsed stock powers, in a certificate less book-entry stock account with the Company’s transfer agent.
|
An Eligible Recipient may be granted one or more Stock
Unit Awards under the Plan, and such Stock Unit Awards will be subject to such terms and conditions, consistent with the other
provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee may impose such restrictions
or conditions, not inconsistent with the provisions of the Plan, to the payment, issuance, retention and/or vesting of such Stock
Unit Awards as it deems appropriate, including, without limitation, (i) the achievement of one or more specified performance objectives;
and/or that (ii) the Participant remain in the continuous employ or service of the Company or a Subsidiary for a certain period.
An Eligible Recipient may be granted one or more Performance
Awards under the Plan, and such Performance Awards will be subject to such terms and conditions, if any, consistent with the other
provisions of the Plan, as may be determined by the Committee in its sole discretion, including, but not limited to, the achievement
of one or more specified performance objectives.
An Eligible Recipient may be granted one or more Stock
Bonuses under the Plan, and such Stock Bonuses will be subject to such terms and conditions, if any, consistent with the other
provisions of the Plan, as may be determined by the Committee in its sole discretion, including, but not limited to, the achievement
of one or more specified performance objectives.
|
12.
|
Effect of Termination of Employment or Other Service.
The following provisions shall apply upon termination of a Participant’s employment or other service with the Company and
all Subsidiaries, except to the extent that the Committee provides otherwise in an agreement evidencing an Incentive Award at
the time of grant or determines pursuant to Section 12.3 of the Plan.
|
|
12.1
|
Termination Due to Death, Disability or Retirement.
In the event a Participant’s employment or other service with the Company and all Subsidiaries is terminated by reason of
death, Disability or Retirement:
|
(a)
All outstanding Options and Stock Appreciation Rights then held by the Participant will, to the extent exercisable as of such
termination, remain exercisable in full for a period of one year after such termination (but in no event after the expiration
date of any such Option or Stock Appreciation Right). Options and Stock Appreciation Rights not exercisable as of such termination
will be forfeited and terminate.
(b)
All Restricted Stock Awards then held by the Participant that have not vested as of such termination will be terminated and forfeited;
and
(c)
All outstanding but unpaid Stock Unit Awards, Performance Awards and Stock Bonuses then held by the Participant will be terminated
and forfeited.
|
12.2
|
Termination for Reasons Other than Death, Disability
or Retirement. Subject to Section 12.4 of the Plan, in the event a Participant’s employment or other service is
terminated with the Company and all Subsidiaries for any reason other than death, Disability or Retirement, or a Participant is
in the employ or service of a Subsidiary and the Subsidiary ceases to be a Subsidiary of the Company (unless the Participant continues
in the employ or service of the Company or another Subsidiary):
|
(a) All outstanding Options
and Stock Appreciation Rights then held by the Participant will, to the extent exercisable as of such termination, remain exercisable
in full for a period of three months after such termination (but in no event after the expiration date of any such Option or Stock
Appreciation Right). Options and Stock Appreciation Rights not exercisable as of such termination will be forfeited and terminate;
(b) All Restricted Stock Awards
then held by the Participant that have not vested as of such termination will be terminated and forfeited; and
(c) All outstanding but unpaid
Stock Unit Awards, Performance Awards and Stock Bonuses then held by the Participant will be terminated and forfeited.
|
12.3
|
Modification of Rights Upon Termination. Notwithstanding
the other provisions of this Section 12, upon a Participant’s termination of employment or other service with the Company
and all Subsidiaries, the Committee may, in its sole discretion (which may be exercised at any time on or after the date of grant,
including following such termination), except as provided in clause (ii), below, cause Options or Stock Appreciation Rights (or
any part thereof) then held by such Participant to terminate, become or continue to become exercisable and/or remain exercisable
following such termination of employment or service, and Restricted Stock Awards, Stock Unit Awards, Performance Awards or Stock
Bonuses then held by such Participant to terminate, vest or become free of restrictions and conditions to payment, as the case
may be, following such termination of employment or service, in each case in the manner determined by the Committee; provided,
however, that any such action adversely affecting any outstanding Incentive Award will not be effective without the consent of
the affected Participant (subject to the right of the Committee to take whatever action it deems appropriate under Sections 3.2(c),
4.3 and 14 of the Plan).
|
|
12.4
|
Effects of Actions Constituting Cause. Notwithstanding
anything in the Plan to the contrary, in the event that a Participant is determined by the Committee, acting in its sole discretion,
to have committed any action which would constitute Cause as defined in Section 2.3 of the Plan, irrespective of whether
such action or the Committee’s determination occurs before or after termination of such Participant’s employment with
the Company or any Subsidiary, all rights of the Participant under the Plan and any agreements evidencing an Incentive Award then
held by the Participant shall terminate and be forfeited without notice of any kind. The Company may defer the exercise of any
Option, the vesting of any Restricted Stock Award or the payment of any Stock Unit Award, Performance Award or Stock Bonus for
a period of up to forty-five (45) days in order for the Committee to make any determination as to the existence of Cause.
|
|
12.5
|
Determination of Termination of Employment or Other
Service.
|
(a) The change in a Participant’s
status from that of an employee of the Company or any Subsidiary to that of a non-employee consultant, director or advisor of the
Company or any Subsidiary will, for purposes of the Plan, be deemed to result in a termination of such Participant’s employment
with the Company and its Subsidiaries, unless the Committee otherwise determines in its sole discretion.
(b) The change in a Participant’s
status from that of a non-employee consultant, director or advisor of the Company or any Subsidiary to that of an employee of the
Company or any Subsidiary will not, for purposes of the Plan, be deemed to result in a termination of such Participant’s
service as a non-employee consultant, director or advisor with the Company and its Subsidiaries, and such Participant will thereafter
be deemed to be an employee of the Company or its Subsidiaries until such Participant’s employment is terminated, in which
event such Participant will be governed by the provisions of this Plan relating to termination of employment or service (subject
to paragraph (a), above).
(c) Unless the Committee otherwise
determines in its sole discretion, a Participant’s employment or other service will, for purposes of the Plan, be deemed
to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary for which the Participant
provides employment or other service, as determined by the Committee in its sole discretion based upon such records.
(d) Notwithstanding the foregoing,
if payment of an Incentive Award that is subject to Section 409A of the Code is triggered by a termination of a Participant’s
employment or other service, such termination must also constitute a “separation from service” within the meaning of
Section 409A of the Code, and any change in employment status that constitutes a “separation from service” under Section
409A of the Code shall be treated as a termination of employment or service, as the case may be.
|
12.6
|
Breach of Employment, Consulting, Confidentiality
or Non-Compete Agreements. Notwithstanding anything in the Plan to the contrary and in addition to the rights of the Committee
under Section 12.4 of the Plan, in the event that a Participant materially breaches the terms of any employment, consulting,
confidentiality or non-compete agreement entered into with the Company or any Subsidiary (including an employment, consulting,
confidentiality or non-compete agreement made in connection with the grant of an Incentive Award), whether such breach occurs
before or after termination of such Participant’s employment or other service with the Company or any Subsidiary, the Committee
in its sole discretion may require the Participant to surrender shares of Common Stock received, and to disgorge any profits (however
defined by the Committee), made or realized by the Participant in connection with any Incentive Awards or any shares issued upon
the exercise or vesting of any Incentive Awards.
|
|
13
|
Payment of Withholding Taxes.
|
|
13.1
|
General Rules. The Company is entitled to (a)
withhold and deduct from future wages of the Participant (or from other amounts that may be due and owing to the Participant from
the Company or a Subsidiary), or make other arrangements for the collection of, all legally required amounts necessary to satisfy
any and all federal, foreign, state and local withholding and employment-related tax requirements attributable to an Incentive
Award, including, without limitation, the grant, exercise, vesting or settlement of, or payment of dividends with respect to,
an Incentive Award or a disqualifying disposition of stock received upon exercise of an Incentive Stock Option; (b) withhold cash
paid or payable or shares of Common Stock from the shares issued or otherwise issuable to the Participant in connection with an
Incentive Award; or (c) require the Participant promptly to remit the amount of such withholding to the Company before taking
any action, including issuing any shares of Common Stock, with respect to an Incentive Award. Shares of Common Stock issued or
otherwise issuable to the Participant in connection with an Incentive Award that gives rise to the tax withholding obligation
that are withheld for purposes of satisfying the Participant’s withholding or employment-related tax obligation, will be
valued at their Fair Market Value on the Tax Date. No withholding will be effected under this Plan which exceeds the minimum statutory
withholding requirements.
|
|
13.2
|
Special Rules. The Committee may, in its sole
discretion and upon terms and conditions established by the Committee, permit or require a Participant to satisfy, in whole or
in part, any withholding or employment-related tax obligation described in Section 13.1 of the Plan by withholding shares
of Common Stock underlying an Incentive Award, by electing to tender, or by attestation as to ownership of, Previously Acquired
Shares, by delivery of a Broker Exercise Notice or a combination of such methods. For purposes of satisfying a Participant’s
withholding or employment-related tax obligation, shares of Common Stock withheld by the Company or Previously Acquired Shares
tendered or covered by an attestation will be valued at their Fair Market Value on the Tax Date.
|
14.1 A
|
“Change in Control” shall be deemed to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
|
(a) the sale, lease, exchange
or other transfer, directly or indirectly, of substantially all of the assets of the Company (in one transaction or in a series
of related transactions) to a person or entity that is not controlled by the Company;
(b) the approval by the stockholders
of the Company of any plan or proposal for the liquidation or dissolution of the Company;
(c) any person becomes after
the effective date of the Plan the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of (A) 20% or more, but not 50% or more, of the combined voting power of the Company’s outstanding securities
ordinarily having the right to vote at elections of directors, unless the transaction resulting in such ownership has been approved
in advance by the Continuity Directors, or (B) 50% or more of the combined voting power of the Company’s outstanding securities
ordinarily having the right to vote at elections of directors (regardless of any approval by the Continuity Directors);
(d) a merger or consolidation
to which the Company is a party if the stockholders of the Company immediately prior to effective date of such merger or consolidation
have “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), immediately following the effective
date of such merger or consolidation, of securities of the surviving corporation representing (A) more than 50%, but less than
80%, of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right
to vote at elections of directors, unless such merger or consolidation has been approved in advance by the Continuity Directors
(as defined below), or (B) 50% or less of the combined voting power of the surviving corporation’s then outstanding securities
ordinarily having the right to vote at elections of directors (regardless of any approval by the Continuity Directors);
(e) the Continuity Directors
cease for any reason to constitute at least a majority of the Board; or
(f) any other change in control
of the Company of a nature that would be required to be reported pursuant to Section 13 or 15(d) of the Exchange Act, whether or
not the Company is then subject to such reporting requirements.
For purposes of this Section
14, “Continuity Directors” of the Company will mean any individuals who are members of the Board on the
Effective Date and any individual who subsequently becomes a member of the Board whose election, or nomination for election by
the Company’s stockholders, was approved by a vote of at least a majority of the Continuity Directors (either by specific
vote or by approval of the Company’s proxy statement in which such individual is named as a nominee for director without
objection to such nomination).
|
14.2
|
Acceleration of Vesting. Without limiting the
authority of the Committee under Sections 3.2 and 4.3 of the Plan, if a Change in Control of the Company is to occur,
then immediately prior to the occurrence of such Change in Control, unless otherwise provided by the Committee in its sole discretion
either in the agreement evidencing an Incentive Award at the time of grant or at any time after the grant of an Incentive Award:
(a) all Options and Stock Appreciation Rights will become immediately exercisable in full and will remain exercisable in accordance
with their terms; (b) all Restricted Stock Awards will become immediately fully vested and non-forfeitable; and (c) any conditions
to the payment of Stock Unit Awards, Performance Awards and Stock Bonuses will lapse.
|
(a) In the event of a merger
or consolidation of the Company with or into another corporation or a sale of substantially all of the stock of the Company (a
“Corporate Transaction”), each outstanding Incentive Award (including the portion of the award that is not otherwise
exercisable or non-forfeitable) shall automatically lapse without the consent of any Participant, unless pursuant to the terms
of such Corporate Transaction the outstanding Incentive Award is required or permitted to remain outstanding or is assumed by the
surviving company (or its parent company) or replaced with an equivalent Incentive Award granted by the surviving company (or its
parent company) in substitution for such outstanding Incentive Award. If an Incentive Award lapses pursuant to the preceding sentence,
the Committee shall not exercise its authority under Section 14.2 to prevent the vesting of, or lapse of conditions to exercise
or payment in respect of, any outstanding Incentive Award and shall either (i) allow all Participants to exercise such Options
and Stock Appreciation Rights to the extent vested and exercisable as of the consummation of such Corporate Transaction (including
any Incentive Award that vests immediately prior to or upon consummation of such Corporate Transaction pursuant to Section 14.2
or the terms of the agreement evidencing such Incentive Award) within a reasonable period prior to the consummation of the Corporate
Transaction and cancel any outstanding Incentive Awards that remain unexercised or which are not otherwise vested upon consummation
of the Corporate Transaction, or (ii) cancel any or all outstanding Incentive Awards in exchange for a payment (in cash, or in
securities or other property) in an amount equal to the amount that the Participant would have received (net of the exercise price)
with respect to such vested Incentive Awards had such Options and Stock Appreciation Rights been exercised and such other vested
Incentive Awards settled immediately prior to the consummation of the Corporate Transaction. Notwithstanding the foregoing, if
an Incentive Award lapses upon consummation of a Corporate Transaction and such award is not vested and non-forfeitable or the
exercise price with respect to any outstanding Option or Stock Appreciation Right exceeds the Fair Market Value of the Common Stock
immediately prior to the consummation of the Corporation Transaction, such Incentive Awards shall be cancelled without any payment
to the Participant.
(b) Liquidation or Dissolution
of the Company. In the event of the proposed dissolution or liquidation of the Company, each Incentive Award will terminate immediately
upon consummation of such proposed action, unless otherwise provided by the Committee. Any Incentive Awards that is not vested
and non-forfeitable as of the consummation of such proposed action and any Options or Stock Appreciation Rights that remain unexercised
upon consummation of such proposed action shall be cancelled without any payment to the Participant.
(c) Special Provisions for Incentive
Awards Subject to Section 409A of the Code. Notwithstanding the foregoing provisions of this Section 14.3, if an Incentive
Award is subject to Section 409A of the Code, no payment of cash or other property shall be made with respect to such Incentive
Award until the earlier of a Change in Control within the meaning of Section 409A of the Code or such time as such Incentive Award
would have otherwise settled in the absence of a Corporate Transaction.
|
15.
|
Rights of Eligible Recipients and Participants; Transferability.
|
|
15.1
|
Employment or Service. Nothing in the Plan will
interfere with or limit in any way the right of the Company or any Subsidiary to terminate the employment or service of any Eligible
Recipient or Participant at any time, nor confer upon any Eligible Recipient or Participant any right to continue in the employ
or service of the Company or any Subsidiary.
|
|
15.2
|
Rights as a Stockholder; Dividends. As a holder
of Incentive Awards (other than Restricted Stock Awards), a Participant will have no rights as a stockholder unless and until
such Incentive Awards are exercised for, or paid in the form of, shares of Common Stock and the Participant becomes the holder
of record of such shares. Except as otherwise provided in the Plan or otherwise provided by the Committee, no adjustment will
be made in the amount of cash payable or in the number of shares of Common Stock issuable under Incentive Awards denominated in
or based on the value of shares of Common Stock as a result of cash dividends or distributions paid to holders of Common Stock
prior to the payment of, or issuance of shares of Common Stock under, such Incentive Awards.
|
|
15.3
|
Restrictions on Transfer.
|
(a) Except pursuant to testamentary
will or the laws of descent and distribution or as otherwise expressly permitted by subsections (b) and (c) below, no right or
interest of any Participant in an Incentive Award prior to the exercise (in the case of Options) or vesting or issuance (in the
case of Restricted Stock Awards and Performance Awards) of such Incentive Award will be assignable or transferable, or subjected
to any lien, during the lifetime of the Participant, either voluntarily or involuntarily, directly or indirectly, by operation
of law or otherwise.
(b) A Participant will be entitled
to designate a beneficiary to receive an Incentive Award upon such Participant’s death, and in the event of such Participant’s
death, payment of any amounts due under the Plan will be made to, and exercise of any Options or Stock Appreciation Rights (to
the extent permitted pursuant to Section 12 of the Plan) may be made by, such beneficiary. If a deceased Participant has failed
to designate a beneficiary, or if a beneficiary designated by the Participant fails to survive the Participant, payment of any
amounts due under the Plan will be made to, and exercise of any Options or Stock Appreciation Rights (to the extent permitted pursuant
to Section 12 of the Plan) may be made by, the Participant’s legal representatives, heirs and legatees. If a deceased Participant
has designated a beneficiary and such beneficiary survives the Participant but dies before complete payment of all amounts due
under the Plan or exercise of all exercisable Options or Stock Appreciation Rights, then such payments will be made to, and the
exercise of such Options or Stock Appreciation Rights may be made by, the legal representatives, heirs and legatees of the beneficiary.
(c) Upon a Participant’s
request, the Committee may, in its sole discretion, permit a transfer of all or a portion of a Non-Statutory Stock Option, other
than for value, to such Participant’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, any person
sharing such Participant’s household (other than a tenant or employee), a trust in which any of the foregoing have more than
fifty percent of the beneficial interests, a foundation in which any of the foregoing (or the Participant) control the management
of assets, and any other entity in which these persons (or the Participant) own more than fifty percent of the voting interests.
Any permitted transferee will remain subject to all the terms and conditions applicable to the Participant prior to the transfer.
A permitted transfer may be conditioned upon such requirements as the Committee may, in its sole discretion, determine, including,
but not limited to execution and/or delivery of appropriate acknowledgements, opinion of counsel, or other documents by the transferee.
|
15.4
|
Non-Exclusivity of the Plan. Nothing contained
in the Plan is intended to modify or rescind any previously approved compensation plans or programs of the Company or create any
limitations on the power or authority of the Board to adopt such additional or other compensation arrangements as the Board may
deem necessary or desirable.
|
|
16.
|
Securities Law and Other Restrictions.
|
Notwithstanding any other provision of the Plan or
any agreements entered into pursuant to the Plan, the Company will not be required to issue any shares of Common Stock under this
Plan, and a Participant may not sell, assign, transfer or otherwise dispose of shares of Common Stock issued pursuant to Incentive
Awards granted under the Plan, unless (a) there is in effect with respect to such shares a registration statement under the Securities
Act and any applicable securities laws of a state or foreign jurisdiction or an exemption from such registration under the Securities
Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from
any other U.S. or foreign regulatory body which the Committee, in its sole discretion, deems necessary or advisable. The Company
may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved,
and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by
the Company in order to comply with such securities law or other restrictions.
|
17.
|
Compliance with Section 409A.
|
It is intended that the Plan and all Incentive Awards
hereunder be administered in a manner that will comply with the requirements of Section 409A of the Code, or the requirements of
an exception to Section 409A of the Code. The Committee is authorized to adopt rules or regulations deemed necessary or appropriate
to qualify for an exception from or to comply with the requirements of Section 409A of the Code (including any transition or grandfather
rules relating thereto). Notwithstanding anything in this Section 17 to the contrary, with respect to any Incentive Award
subject to Section 409A of the Code, no amendment to or payment under such Incentive Award will be made unless and only to the
extent permitted under Section 409A of the Code.
|
18.
|
Plan Amendment, Modification and Termination.
|
The Board may suspend or terminate the Plan or any
portion thereof at any time. In addition to the authority of the Committee to amend the Plan under Section 3.2(e) of the Plan,
the Board may amend the Plan from time to time in such respects as the Board may deem advisable in order that Incentive Awards
under the Plan will conform to any change in applicable laws or regulations or in any other respect the Board may deem to be in
the best interests of the Company; provided, however, that no such amendments to the Plan will be effective without approval of
the Company’s stockholders if: (i) stockholder approval of the amendment is then required pursuant to Section 422 of the
Code or the rules of The NASDAQ Stock Market (or other applicable exchange or market on which the Company’s Common Stock
may be traded or quoted); or (ii) such amendment seeks to increase the number of shares authorized for issuance hereunder (other
than by virtue of an adjustment under Section 4.3 of the Plan) or to modify Section 3.2(d) of the Plan. No termination,
suspension or amendment of the Plan may adversely affect any outstanding Incentive Award without the consent of the affected Participant;
provided, however, that this sentence will not impair the right of the Committee to take whatever action it deems appropriate under
Sections 3.2(c), 4.3 and 14 of the Plan.
|
19.
|
Effective Date and Duration of the Plan.
|
The Plan will be effective as of the Effective Date
and will terminate one day prior to the tenth (10th) anniversary of the Effective Date, if not terminated prior to such time by
Board action. No Incentive Award will be granted after termination of the Plan. Incentive Awards outstanding upon termination of
the Plan may continue to be exercised, earned or become free of restrictions, according to their terms.
|
20.1
|
Dividend Equivalents. Any Participant selected
by the Committee may be granted dividend equivalents based on the dividends declared on shares of Common Stock that are subject
to any Incentive Award, to be credited as of dividend payment dates, during the period between the date the Incentive Award is
granted and the date the Incentive Award is exercised, vests or expires, as determined by the Committee. Such dividend equivalents
will be converted to cash or additional shares of Common Stock by such formula and at such time and subject to such limitations
as may be determined by the Committee. Notwithstanding the foregoing, the Committee may not grant dividend equivalents based on
the dividends declared on shares of Common Stock that are subject to an Option or Stock Appreciation Right and further, no dividend
or dividend equivalents will be paid out with respect to any unvested Incentive Awards.
|
|
20.2
|
Fractional Shares. No fractional shares of Common
Stock will be issued or delivered under the Plan or any Award. The Committee will determine whether cash, other Awards or other
property will be issued or paid.
|
|
20.3
|
Governing Law. Except to the extent expressly
provided herein or in connection with other matters of corporate governance and authority (all of which shall be governed by the
laws of the Company’s jurisdiction of incorporation), the validity, construction, interpretation, administration and effect
of the Plan and any rules, regulations and actions relating to the Plan will be governed by and construed exclusively in accordance
with the laws of the State of Delaware, notwithstanding the conflicts of laws principles of any jurisdictions.
|
|
20.4
|
Successors and Assigns. The Plan will be binding
upon and inure to the benefit of the successors and permitted assigns of the Company and the Participants.
|
|
20.5
|
Construction. Wherever possible, each provision
of the Plan and any agreement evidencing an Incentive Award granted under the Plan will be interpreted so that it is valid under
the applicable law. If any provision of the Plan or any agreement evidencing an Incentive Award granted under the Plan is to any
extent invalid under the applicable law, that provision will still be effective to the extent it remains valid. The remainder
of the Plan and the Incentive Award agreement also will continue to be valid, and the entire Plan and Incentive Award agreement
will continue to be valid in other jurisdiction.
|