General Description of the 2008 Plan
The following summary describes the material features of the 2008 Plan. The summary does not purport to be complete and is qualified in its entirety by reference to the complete text of the 2008 Plan, which is annexed as Exhibit A to this Information Statement.
Purpose
The 2008 Plan is intended to enhance the Company¡¯s and its Affiliates¡¯ (as defined) ability to attract and retain highly qualified officers, directors, key employees and other persons, and to motivate such officers, directors, key employees and other persons to serve the Company and its Affiliates and to expend maximum effort to improve the business results and earnings of the Company, by providing to such persons an opportunity to acquire or increase a direct proprietary interest in the operations and future success of the Company.
Administration
The 2008 Plan is administered by one or more officers or directors of the Company who are authorized by the Board to administer the Plan before the Committee is formed ( the ¡° Designee¡±) or a committee appointed by our board of directors (the ¡°Committee¡±). The Committee may delegate their responsibilities to others, including our board of directors, under such conditions and limitations as it may determine provided that the Committee, in its discretion, designate a subcommittee of its members to serve as the Committee (to the extent the Board has not designated another person, committee or entity as the Committee) or to cause the Committee to (i) consist solely of persons who are ¡°Nonemployee Directors¡± as defined in Rule 16b-3 issued under the Exchange Act, (ii) consist solely of persons who are Outside Directors, or (iii) satisfy the applicable requirements of any stock exchange on which the Common Stock may then be listed. Subject to the express provisions of the 2008 Plan and to applicable law, the Designees or Committee shall have full power and authority to grant awards to the Service Providers (as defined) prescribed under the 2008 Plan. Unless otherwise expressly provided in the 2008 Plan, all designations, determinations, interpretations and other decisions under or with respect to the 2008 Plan or any award or award agreement shall be within the sole discretion of the Designees or Committee, as may be made at any time and shall be final, conclusive and binding upon any eligible person and any holder or beneficiary of any award.
Notwithstanding the foregoing, no amendment or modification may be made to an outstanding Option or SAR that (i) causes the Option or SAR to become subject to Section 409A, (ii) reduces the Option Price or SAR Exercise Price, either by lowering the Option Price or SAR Exercise Price or by canceling the outstanding Option or SAR and granting a replacement Option or SAR with a lower Option Price or SAR Exercise Price or (iii) would be treated as a repricing under the rules of the exchange upon which the Company¡¯s Stock trades, without, with respect to item (i), the Grantee¡¯s written prior approval, and with respect to items (ii) and (iii), without the approval of the stockholders of the Company, provided, that, appropriate adjustments may be made to outstanding Options and SARs pursuant to the appropriate provisions in the 2008 Plan.
Deferral Arrangement.
The Designees or Committee may permit or require the deferral of any Award payment into a deferred compensation arrangement, subject to such rules and procedures as it may establish and in accordance with Section 409A, which may include provisions for the payment or crediting of interest or dividend equivalents, including converting such credits into deferred Stock units.
Stock Subject to the Plan
Stock Available. The shares of Stock issuable under the 2008 Plan are available either from authorized but unissued shares or from shares reacquired by us on the open market. Subject to the adjustment provision mentioned below, the maximum number of shares of Stock available for issuance under the 2008 Plan shall be 2,000,000, and The maximum number of Common Stock that will be awarded to any one Grantee (as defined) during any calendar year shall not exceed 300,000.
Adjustments. In the event of any corporate event (including, but not limited to, a change in the shares of the Company or the capitalization of the Company), or transaction, as described in the 2008 Plan, in order to prevent dilution or enlargement of participants¡¯ rights under the 2008 Plan, the Designees or Committee shall substitute or adjust, as applicable, the number and kind of shares that may be issued under the 2008 Plan or under particular forms of awards, the number and kind of shares subject to outstanding awards, the option price or grant price applicable to outstanding awards, the annual award limits, and other value determinations applicable to outstanding awards.
Effect of Change of Control
The Designees or Committee shall determine the effect of a Change in Control upon Awards, and such effect may be set forth in the appropriate award agreement. Unless an Award Agreement (as defined) explicitly provides otherwise, if the Company is to be consolidated with or acquired by another entity in a merger, sale of all or substantially all of the Company¡¯s assets other than a transaction to merely change the state of incorporation (a ¡°Corporate Transaction¡±), the Designees or Committee or the board of directors of any entity assuming the obligations of the Company hereunder, shall, as to the awards such as outstanding Options, SARs, grants of Restricted Stock, Restricted Stock Units and/or Unrestricted Stock either (i) make appropriate provisions for the continuation of such awards by substitution; or (ii) provide that all such awards must be exercised; or (iii) terminate all Options and/or SARs in exchange for an equivalent cash payment.
Eligibility
Under the 2008 Plan, Awards may be made to any Service Provider, including any Service Provider (as defined) who is an officer or director of the Company or of any Affiliate, as the Designees or Committee shall determine and designate from time to time in its discretion.
Award Agreement
Each Award shall be evidenced by an Award Agreement, determined by the Designees or Committee. Award Agreements granted from time to time or at the same time need not contain similar provisions but shall be consistent with the terms of the 2008 Plan. Each Award Agreement evidencing an Award of Options shall specify whether such Options are intended to be Non-Qualified Stock Options or Incentive Stock Options, and in the absence of such specification such options shall be deemed Non-Qualified Stock Option.
In an Award Agreement, the Company may retain the right to cause a forfeiture of the gain realized by a Grantee (as defined) on account of actions taken by the Grantee in violation or breach of or in conflict with any employment agreement, non-competition agreement, any agreement prohibiting solicitation of employees or clients of the Company or any Affiliate thereof or any confidentiality obligation with respect to the Company or any Affiliate or otherwise in competition with the Company or any Affiliate.
In an Award Agreement, the Company may retain the right to cause a forfeiture of the gain realized by a Grantee, if the Grantee voluntarily terminates his employment with the Company. Furthermore, the Company may annul an Award if the Grantee is terminated for Cause as defined in the applicable Award Agreement or the Plan, as applicable. The grant of any Award may be contingent upon the Grantee executing the appropriate Award Agreement. |
