|
|
Please
mark
votes
as in
this
example
|
WHETHER
OR NOT YOU PLAN TO ATTEND THE MEETING IN PERSON, YOU ARE URGED TO SIGN
AND
PROMPTLY MAIL THIS PROXY IN THE RETURN ENVELOPE SO THAT YOUR STOCK MAY
BE
REPRESENTED AT THE MEETING.
A
vote
FOR
the
following proposals is recommended by the Board of Directors:
1.
To
elect
the following five (5) directors to hold office until their respective
successors are elected and qualified:
|
|
o
|
FOR
all nominees
listed
below (except
as
marked to the
contrary
below.)
|
o
|
WITHHOLD
AUTHORITY
to
vote for all
nominees
listed
below.
|
(INSTRUCTION:
To withhold authority to vote for any individual nominee, strike a line
through
that nominee’s name in the list below.)
Leo
Shi
Young
Shi
Jian
Yin
Kevin
Koy
Robert
Coackley
Donald
Morgan
2.
To
ratify
the appointment of Ernst & Young Hua Ming as our independent auditors for
the fiscal year ending September 30, 2008
|
|
o
|
FOR
|
o
|
AGAINST
|
o
|
ABSTAIN
|
3.
To
approve the amendment and restatement of our 2007
Equity
Incentive Plan.
|
|
o
|
FOR
|
o
|
AGAINST
|
o
|
ABSTAIN
|
4.
To
approve an Agreement and Plan of Merger pursuant to which Solar Enertech
will
reincorporate from the State of Nevada to the State of Delaware.
|
|
o
|
FOR
|
o
|
AGAINST
|
o
|
ABSTAIN
|
5.
To
approve an increase in the amount of the Company’s authorized shares of common
stock from two hundred million (200,000,000) to four hundred million
(400,000,000).
|
|
o
|
FOR
|
o
|
AGAINST
|
o
|
ABSTAIN
|
6.
To
approve any adjournments of the meeting to another time or place, if
necessary
in the judgment of the proxy holders, for the purpose of soliciting additional
proxies in favor of any of the foregoing proposals.
|
|
o
|
FOR
|
o
|
AGAINST
|
o
|
ABSTAIN
|
|
|
MARK
HERE FOR ADDRESS CHANGE AND NOTE AT LEFT
|
|
MARK
HERE IF YOU PLAN TO ATTEND THE MEETING
|
|
|
Please
sign here.
If
shares of stock are held jointly, both or all of such persons
should sign.
Corporate or partnership proxies should be signed in full corporate
or
partnership name by an authorized person. Persons signing in
a fiduciary
capacity should indicate their full titles in such
capacity.
|
|
Signature:
__________________________ Date: ____________
Signature:
__________________________ Date:
____________
|
ANNEX
A
AMENDED
AND RESTATED 2007 PLAN
SOLAR
ENERTECH CORP.
AMENDED
AND RESTATED
2007
EQUITY INCENTIVE PLAN
1.
ESTABLISHMENT,
PURPOSE AND TERM OF PLAN
.
1.1
Establishment.
The
Solar
Enertech Corp. 2007 Equity Incentive Plan (the “
Plan
”)
was originally established effective as of September 24, 2007 (the
“
Effective Date
”). Effective as of the Plan’s approval
by the stockholders of the Company, the Plan is amended and restated as
set
forth below.
1.2
Purpose
.
The
purpose of the Plan is to advance the interests of the Participating Company
Group and its stockholders by providing an incentive to attract, retain
and
reward persons performing services for the Participating Company Group
and by
motivating such persons to contribute to the growth and profitability of
the
Participating Company Group. The Company intends that Awards granted pursuant
to
the Plan be exempt from or comply with Section 409A of the Code (including
any amendments or replacements of such section), and the Plan shall be
so
construed.
1.3
Term
of Plan
.
The
Plan shall continue in effect until its termination by the Committee; provided,
however, that, to the extent required by applicable law, all Awards shall
be
granted, if at all, within ten (10) years from the Plan’s Effective
Date.
2.
DEFINITIONS
AND CONSTRUCTION
.
2.1
Definitions
.
Whenever used herein, the following terms shall have their respective meanings
set forth below:
(a)
“
Affiliate
”
means
(i) an entity, other than a Parent Corporation, that directly, or
indirectly through one or more intermediary entities, controls the Company
or
(ii) an entity, other than a Subsidiary Corporation, that is controlled by
the Company directly or indirectly through one or more intermediary entities.
For this purpose, the term “control” (including the term “controlled by”) means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of the relevant entity, whether
through
the ownership of voting securities, by contract or otherwise; or shall
have such
other meaning assigned such term for the purposes of registration on
Form S-8 under the Securities Act.
(b)
“
Award
”
means
any Option, Restricted Stock Purchase Right, Restricted Stock Bonus or
Restricted Stock Unit Award granted under the Plan.
(c)
“
Award
Agreement
”
means
a
written or electronic agreement between the Company and a Participant setting
forth the terms, conditions and restrictions of the Award granted to the
Participant.
(d)
“
Board
”
means
the Board of Directors of the Company.
(e)
“
Cause
”
means,
unless such term or an equivalent term is otherwise defined with respect
to an
Award by the Participant’s Award Agreement or by a written contract of
employment or service, any of the following: (i) the Participant’s theft,
dishonesty, willful misconduct, breach of fiduciary duty for personal profit,
or
falsification of any Participating Company documents or records; (ii) the
Participant’s material failure to abide by a Participating Company’s code of
conduct or other policies (including, without limitation, policies relating
to
confidentiality and reasonable workplace conduct); (iii) the Participant’s
unauthorized use, misappropriation, destruction or diversion of any tangible
or
intangible asset or corporate opportunity of a Participating Company (including,
without limitation, the Participant’s improper use or disclosure of a
Participating Company’s confidential or proprietary information); (iv) any
intentional act by the Participant which has a material detrimental effect
on a
Participating Company’s reputation or business; (v) the Participant’s
repeated failure or inability to perform any reasonable assigned duties
after
written notice from a Participating Company of, and a reasonable opportunity
to
cure, such failure or inability; (vi) any material breach by the
Participant of any employment, service, non-disclosure, non-competition,
non-solicitation or other similar agreement between the Participant and
a
Participating Company, which breach is not cured pursuant to the terms
of such
agreement; or (vii) the Participant’s conviction (including any plea of
guilty or
nolo
contendere
)
of any
criminal act involving fraud, dishonesty, misappropriation or moral turpitude,
or which impairs the Participant’s ability to perform his or her duties with a
Participating Company.
(f)
“
Change
in Control
”
means,
unless such term or an equivalent term is otherwise defined with respect
to an
Award by the Participant’s Award Agreement or written contract of employment or
service, the occurrence of any of the following:
(i)
any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities of the Company
representing more than fifty percent (50%) of the total combined voting
power of
the Company’s then-outstanding securities entitled to vote generally in the
election of Directors; provided, however, that the following acquisitions
shall
not constitute a Change in Control: (1) an acquisition by any such person
who on the Effective Date is the beneficial owner of more than fifty percent
(50%) of such voting power, (2) any acquisition directly from the Company,
including, without limitation, a public offering of securities, (3) any
acquisition by the Company, (4) any acquisition by a trustee or other
fiduciary under an employee benefit plan of a Participating Company or
(5) any acquisition by an entity owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of the voting securities of the Company; or
(ii)
an
Ownership Change Event or series of related Ownership Change Events
(collectively, a
“
Transaction
”
)
in
which the stockholders of the Company immediately before the Transaction
do not
retain immediately after the Transaction direct or indirect beneficial
ownership
of more than fifty percent (50%) of the total combined voting power of
the
outstanding securities entitled to vote generally in the election of Directors
or, in the case of an Ownership Change Event described in
Section 2.1(z)(iii), the entity to which the assets of the Company were
transferred (the
“
Transferee
”
),
as the
case may be; or
(iii)
the
liquidation or dissolution of the Company.
provided,
however, that a Change in Control shall be deemed not to include a transaction
described in subsections (i) or (ii) of this Section 2.1(f) in which a
majority of the members of the board of directors of the continuing, surviving
or successor entity, or parent thereof, immediately after such transaction
is
comprised of Incumbent Directors. Notwithstanding the foregoing, to the
extent
that any amount constituting Section 409A Deferred Compensation would become
payable under this Plan by reason of a Change in Control, such amount shall
become payable only if the event constituting a Change in Control would
also
constitute a change in ownership or effective control of the Company or
a change
in the ownership of a substantial portion of the assets of the Company
within
the meaning of Section 409A.
For
purposes of the preceding sentence, indirect beneficial ownership shall
include,
without limitation, an interest resulting from ownership of the voting
securities of one or more corporations or other business entities which
own the
Company or the Transferee, as the case may be, either directly or through
one or
more subsidiary corporations or other business entities. The Committee
shall
have the right to determine whether multiple sales or exchanges of the
voting
securities of the Company or multiple Ownership Change Events are related,
and
its determination shall be final, binding and conclusive.
(g)
“
Code
”
means
the Internal Revenue Code of 1986, as amended, and any applicable regulations
promulgated thereunder.
(h)
“
Committee
”
means
the Compensation Committee and such other committee or subcommittee of
the
Board, if any, duly appointed to administer the Plan and having such powers
in
each instance as shall be specified by the Board. If, at any time, there
is no
committee of the Board then authorized or properly constituted to administer
the
Plan, the Board shall exercise all of the powers of the Committee granted
herein, and, in any event, the Board may in its discretion exercise any
or all
of such powers. Notwithstanding the foregoing, if the Company is a “publicly
held corporation” within the meaning of Section 162(m), with respect to the
grant of Options to a Covered Employee, the Committee shall consist solely
of
“outside directors” as required pursuant to Section 162(m).
(i)
“
Company
”
means
Solar Enertech Corp., a Nevada corporation, or any successor corporation
thereto.
(j)
“
Consultant
”
means
a
person engaged to provide consulting or advisory services (other than as
an
Employee or a Director) to a Participating Company.
(k)
“
Covered
Employee
”
means,
at any time the Plan is subject to Section 162(m), any Employee who is,
or may
become, a “covered employee” as defined in Section 162(m).
(l)
“
Director
”
means
a
member of the Board.
(m)
“
Disability
”
means
the inability of the Participant, in the opinion of a qualified physician
acceptable to the Company, to perform the major duties of the Participant’s
position with the Participating Company Group because of the sickness or
injury
of the Participant.
(n)
“
Dividend
Equivalent Right
”
means
the right of a Participant, granted at the discretion of the Committee
or as
otherwise provided by the Plan, to receive a credit for the account of
such
Participant in an amount equal to the cash dividends paid on one share
of Stock
for each share of Stock represented by an Award held by such
Participant.
(o)
“
Employee
”
means
any person treated as an employee (including an Officer or a Director who
is
also treated as an employee) in the records of a Participating Company,
and,
with respect to any Incentive Stock Option granted to such person, who
is an
employee for purposes of Section 422 of the Code; provided, however, that
neither service as a member of the Board nor payment of a director’s fee shall
be sufficient to constitute employment for purposes of the Plan. The Company
shall determine in good faith and in the exercise of its discretion whether
an
individual has become or has ceased to be an Employee and the effective
date of
such individual’s employment or termination of employment, as the case may be.
For purposes of an individual’s rights, if any, under the terms of the Plan as
of the time of the Company’s determination of whether or not the individual is
an Employee, all such determinations by the Company shall be final, binding
and
conclusive as to such rights, if any, notwithstanding that the Company
or any
court of law or governmental agency subsequently makes a contrary determination
as to such individual’s status as an Employee.
(p)
“
Exchange
Act
”
means
the Securities Exchange Act of 1934, as amended.
(q)
“
Fair
Market
Value
”
means,
as of any date, the value of a share of Stock or other property as determined
by
the Committee, in its discretion, or by the Company, in its discretion,
if such
determination is expressly allocated to the Company herein, subject to
the
following:
(i)
If,
on
such date, the Stock is listed on a national or regional securities exchange
or
market system, or is quoted on the Over the Counter Bulletin Board (OTCBB),
the
Fair Market Value of a share of Stock shall be the closing price of a share
of
Stock (or the mean of the closing bid and asked prices of a share of Stock
if
the Stock is so quoted instead) as quoted on such national, regional securities
exchange, market system or OTCBB constituting the primary market for the
Stock,
as reported in
The
Wall Street Journal,
the
OTCBB or such other source as the Company deems reliable. If the relevant
date
does not fall on a day on which the Stock has traded over the counter or
on such
securities exchange or market system, the date on which the Fair Market
Value
shall be established shall be the last day on which the Stock was so traded
prior to the relevant date, or such other appropriate day as shall be determined
by the Committee, in its discretion.
(ii)
If,
on
such date, the Stock is not listed on a national or regional securities
exchange, market system or OTCBB, the Fair Market Value of a share of Stock
shall be as determined by the Committee in good faith without regard to
any
restriction other than a restriction which, by its terms, will never lapse,
and
subject to the applicable requirements, if any, of Section 409A of the
Code.
(r)
“
Incentive
Stock Option”
means
an
Option intended to be (as set forth in the Award Agreement) and which qualifies
as an incentive stock option within the meaning of Section 422(b) of the
Code.
(s)
“
Incumbent
Director
”
means a
director who either (i) is a member of the Board as of the Effective Date
or (ii) is elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the Incumbent Directors at
the time
of such election or nomination, but who was not elected or nominated in
connection with an actual or threatened proxy contest relating to the election
of directors of the Company.
(t)
“
Insider
”
means
an Officer, a Director of the Company or other person whose transactions
in
Stock are subject to Section 16 of the Exchange Act.
(u)
“
Insider
Trading Policy
”
means
the written policy of the Company pertaining to the purchase, sale, transfer
or
other disposition of the Company’s equity securities by Directors, Officers,
Employees or other service providers who may possess material, nonpublic
information regarding the Company or its securities.
(v)
“Net-Exercise”
means a
procedure by which the Participant will be issued a number of whole shares
of
Stock upon the exercise of an Option determined in accordance with the
following
formula:
N
=
X(A-B)/A, where
“N”
=
the
number of shares of Stock to be issued to the Participant upon exercise
of the
Option;
“X”
=
the
total number of shares with respect to which the Participant has elected
to
exercise the Option;
“A”
=
the
Fair Market Value of one (1) share of Stock determined on the exercise
date;
and
“B”
=
the
exercise price per share (as defined in the Participant’s Award
Agreement)
(w)
“
Nonstatutory
Stock
Option
”
means an
Option not intended to be (as set forth in the Award Agreement) or which
does
not qualify as an incentive stock option within the meaning of
Section 422(b) of the Code.
(x)
“
Officer
”
means
any person designated by the Board as an officer of the Company.
(y)
“
Option
”
means
a
right granted under Section 6 to purchase Stock pursuant to the terms and
conditions of the Plan. All Options shall be Nonstatutory Stock
Options.
(z)
“
Ownership
Change Event
”
means
the occurrence of any of the following with respect to the Company: (i) the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than fifty percent
(50%)
of the voting stock of the Company; (ii) a merger or consolidation in which
the Company is a party; or (iii) the sale, exchange, or transfer of all or
substantially all of the assets of the Company (other than a sale, exchange
or
transfer to one or more subsidiaries of the Company).
(aa)
“
Parent
Corporation
”
means
any present or future “parent corporation” of the Company, as defined in
Section 424(e) of the Code.
(bb)
“
Participant
”
means
any eligible person who has been granted one or more Awards.
(cc)
“
Participating
Company
”
means
the Company or any Parent Corporation, Subsidiary Corporation or
Affiliate.
(dd)
“
Participating
Company
Group
”<
/fo
nt>
means,
at any point in time, all entities collectively which are then Participating
Companies.
(ee)
“
Restricted
Stock Award
”
means an
Award of a Restricted Stock Bonus or a Restricted Stock Purchase
Right.
(ff)
“
Restricted
Stock Bonus
”
means
Stock granted to a Participant pursuant to Section 7.
(gg)
“
Restricted
Stock Purchase Right
”
means a
right to purchase Stock granted to a Participant pursuant to
Section 7.
(hh)
“
Restricted
Stock
Unit
”
means
a
right granted to a Participant pursuant to Section 8 to receive a share of
Stock on a date determined in accordance with the provisions of such Section
and
the Participant’s Award Agreement.
(ii)
“
Rule
16b-3
”
means
Rule 16b-3 under the Exchange Act, as amended from time to time, or any
successor rule or regulation.
(jj)
“
Section
162(m)”
means
Section 162(m) of the Code.
(kk)
“
Section 409A
”
means
Section 409A of the Code.
(ll)
“
Section
409A Deferred Compensation
”
means
compensation provided pursuant to the Plan that constitutes deferred
compensation subject to and not exempted from the requirements of Section
409A.
(mm)
“
Securities
Act
”
means
the Securities Act of 1933, as amended.
(nn)
“
Service
”
means
a
Participant’s employment or service with the Participating Company Group,
whether in the capacity of an Employee, a Director or a Consultant. A
Participant’s Service shall not be deemed to have terminated merely because of a
change in the capacity in which the Participant renders Service to the
Participating Company Group or a change in the Participating Company for
which
the Participant renders such Service, provided that there is no interruption
or
termination of the Participant’s Service. Furthermore, a Participant’s Service
shall not be deemed to have terminated if the Participant takes any military
leave, sick leave, or other bona fide leave of absence approved by the
Company.
However, if any such leave taken by a Participant exceeds ninety (90) days,
then
on the ninety-first (91st) day following the commencement of such leave
the
Participant’s Service shall be deemed to have terminated, unless the
Participant’s right to return to Service is guaranteed by statute or contract.
Notwithstanding the foregoing, unless otherwise designated by the Company
or
required by law, a leave of absence shall not be treated as Service for
purposes
of determining vesting under the Participant’s Award Agreement. A Participant’s
Service shall be deemed to have terminated either upon an actual termination
of
Service or upon the corporation for which the Participant performs Service
ceasing to be a Participating Company. Subject to the foregoing, the Company,
in
its discretion, shall determine whether the Participant’s Service has terminated
and the effective date of and reason for such termination.
(oo)
“
Stock
”
means
the common stock of the Company, as adjusted from time to time in accordance
with Section 4.3.
(pp)
“
Subsidiary
Corporation
”
means
any present or future “subsidiary corporation” of the Company, as defined in
Section 424(f) of the Code.
(qq)
“
Ten
Percent Owner
”
means
a
Participant who, at the time an Option is granted to the Participant, owns
stock
possessing more than ten percent (10%) of the total combined voting power
of all
classes of stock of a Participating Company (other than an Affiliate) within
the
meaning of Section 422(b)(6) of the Code.
(rr)
“
Vesting
Conditions
”
mean
those conditions established in accordance with the Plan prior to the
satisfaction of which shares subject to an Award remain subject to forfeiture
or
a repurchase option in favor of the Company exercisable for the Participant’s
monetary purchase price, if any, for such shares upon the Participant’s
termination of Service.
2.2
Construction
.
Captions and titles contained herein are for convenience only and shall
not
affect the meaning or interpretation of any provision of the Plan. Except
when
otherwise indicated by the context, the singular shall include the plural
and
the plural shall include the singular. Use of the term “or” is not intended to
be exclusive, unless the context clearly requires otherwise.
3.
ADMINISTRATION
.
3.1
Administration
by the Committee.
The Plan
shall be administered by the Committee. All questions of interpretation
of the
Plan, of any Award Agreement or of any other form of agreement or other
document
employed by the Company in the administration of the Plan or of any Award
shall
be determined by the Committee, and such determinations shall be final,
binding
and conclusive upon all persons having an interest in the Plan or such
Award,
unless fraudulent or made in bad faith. Any and all actions, decisions
and
determinations taken or made by the Committee in the exercise of its discretion
pursuant to the Plan or Award Agreement or other agreement thereunder (other
than determining questions of interpretation pursuant to the preceding
sentence)
shall be final, binding and conclusive upon all persons having an interest
therein.
3.2
Authority
of Officers
.
Any
Officer shall have the authority to act on behalf of the Company with respect
to
any matter, right, obligation, determination or election which is the
responsibility of or which is allocated to the Company herein, provided
the
Officer has apparent authority with respect to such matter, right, obligation,
determination or election.
3.3
Administration
with Respect to Insiders.
With
respect to participation by Insiders in the Plan, at any time that any
class of
equity security of the Company is registered pursuant to Section 12 of the
Exchange Act, the Plan shall be administered in compliance with the
requirements, if any, of Rule 16b-3.
3.4
Powers
of the Committee
.
In
addition to any other powers set forth in the Plan and subject to the provisions
of the Plan, the Committee shall have the full and final power and authority,
in
its discretion:
(a)
to
determine the persons to whom, and the time or times at which, Awards shall
be
granted and the number of shares of Stock to be subject to each
Award;
(b)
to
determine the type of Award granted;
(c)
to
determine the Fair Market Value of shares of Stock or other
property;
(d)
to
determine the terms, conditions and restrictions applicable to each Award
(which
need not be identical) and any shares acquired pursuant thereto, including,
without limitation, (i) the exercise or purchase price of shares pursuant
to any Award, (ii) the method of payment for shares purchased pursuant to
any Award, (iii) the method for satisfaction of any tax withholding
obligation arising in connection with Award, including by the withholding
or
delivery of shares of Stock, (iv) the timing, terms and conditions of the
exercisability or vesting of any Award or any shares acquired pursuant
thereto,
(v) the time of the expiration of any Award, (vi) the effect of the
Participant’s termination of Service on any of the foregoing, and (vii) all
other terms, conditions and restrictions applicable to any Award or shares
acquired pursuant thereto not inconsistent with the terms of the
Plan;
(e)
to
determine whether an Award will be settled in shares of Stock, cash, or
in any
combination thereof;
(f)
to
approve one or more forms of Award Agreement;
(g)
to
amend,
modify, extend, cancel or renew any Award or to waive any restrictions
or
conditions applicable to any Award or any shares acquired upon the exercise
thereof;
(h)
to
accelerate, continue, extend or defer the exercisability of any Award or
the
vesting of any shares acquired upon the exercise thereof, including with
respect
to the period following a Participant’s termination of Service;
(i)
to
prescribe, amend or rescind rules, guidelines and policies relating to
the Plan,
or to adopt sub-plans or supplements to, or alternative versions of, the
Plan,
including, without limitation, as the Committee deems necessary or desirable
to
comply with the laws or regulations of or to accommodate the tax policy,
accounting principles or custom of, foreign jurisdictions whose citizens
may be
granted Awards; and
(j)
to
correct any defect, supply any omission or reconcile any inconsistency
in the
Plan or any Award Agreement and to make all other determinations and take
such
other actions with respect to the Plan or any Award as the Committee may
deem
advisable to the extent not inconsistent with the provisions of the Plan
or
applicable law.
3.5
Indemnification.
In
addition to such other rights of indemnification as they may have as members
of
the Board or the Committee or as officers or employees of the Participating
Company Group, members of the Board or the Committee and any officers or
employees of the Participating Company Group to whom authority to act for
the
Board, the Committee or the Company is delegated shall be indemnified by
the
Company against all reasonable expenses, including attorneys’ fees, actually and
necessarily incurred in connection with the defense of any action, suit
or
proceeding, or in connection with any appeal therein, to which they or
any of
them may be a party by reason of any action taken or failure to act under
or in
connection with the Plan, or any right granted hereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is
approved
by independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except
in
relation to matters as to which it shall be adjudged in such action, suit
or
proceeding that such person is liable for gross negligence, bad faith or
intentional misconduct in duties; provided, however, that within sixty
(60) days
after the institution of such action, suit or proceeding, such person shall
offer to the Company, in writing, the opportunity at its own expense to
handle
and defend the same.
4.
SHARES
SUBJECT TO PLAN
.
4.1
Maximum
Number of Shares Issuable
.
Subject
to adjustment as provided in Sections 4.2 and 4.3, the maximum aggregate
number of shares of Stock that may be issued under the Plan shall be 15,000,000
which shall consist of authorized but unissued or reacquired shares of
Stock or
any combination thereof.
4.2
Share
Counting.
If an
outstanding Award for any reason expires or is terminated or canceled without
having been exercised or settled in full, or if shares of Stock acquired
pursuant to an Award subject to forfeiture or repurchase are forfeited
or
repurchased by the Company for an amount not greater than the Participant’s
purchase price, the shares of Stock allocable to the terminated portion
of such
Award or such forfeited or repurchased shares of Stock shall again be available
for issuance under the Plan. Shares of Stock shall not be deemed to have
been
issued pursuant to the Plan with respect to any portion of an Award that
is
settled in cash. If the exercise price of an Option is paid by tender to
the
Company, or attestation to the ownership, of shares of Stock owned by the
Participant, or by means of a Net-Exercise, the number of shares available
for
issuance under the Plan shall be reduced by the gross number of shares
for which
the Option is exercised. Shares withheld or reacquired by the Company in
satisfaction of tax withholding obligations pursuant to Section 11.2 shall
not again be available for issuance under the Plan.
4.3
Adjustments
for Changes in Capital Structure
.
Subject
to any required action by the stockholders of the Company, in the event
of any
change in the Stock effected without receipt of consideration by the Company,
whether through merger, consolidation, reorganization, reincorporation,
recapitalization, reclassification, stock dividend, stock split, reverse
stock
split, split-up, split-off, spin-off, combination of shares, exchange of
shares,
or similar change in the capital structure of the Company, or in the event
of
payment of a dividend or distribution to the stockholders of the Company
in a
form other than Stock (excepting normal cash dividends) that has a material
effect on the Fair Market Value of shares of Stock, appropriate and
proportionate adjustments shall be made in the number and class of shares
subject to the Plan and to any outstanding Awards, and in the exercise
or
purchase price per share of any outstanding Awards in order to prevent
dilution
or enlargement of Participants’ rights under the Plan. For purposes of the
foregoing, conversion of any convertible securities of the Company shall
not be
treated as “effected without receipt of consideration by the Company.” If a
majority of the shares which are of the same class as the shares that are
subject to outstanding Awards are exchanged for, converted into, or otherwise
become (whether or not pursuant to an Ownership Change Event) shares of
another
corporation (the “
New
Shares
”),
the
Committee may unilaterally amend the outstanding Awards to provide that
such
Awards are for New Shares. In the event of any such amendment, the number
of
shares subject to, and the exercise or purchase price per share of, the
outstanding Awards shall be adjusted in a fair and equitable manner as
determined by the Committee, in its discretion. Any fractional share resulting
from an adjustment pursuant to this Section shall be rounded down to the
nearest
whole number, and the exercise price per share shall be rounded up to the
nearest whole cent. In no event may the exercise price of any Award be
decreased
to an amount less than the par value, if any, of the stock subject to the
Award.
The Committee in its sole discretion, may also make such adjustments in
the
terms of any Award to reflect, or related to, such changes in the capital
structure of the Company or distributions as it deems appropriate. The
adjustments determined by the Committee pursuant to this Section shall
be final,
binding and conclusive.
5.
ELIGIBILITY
AND OPTION LIMITATIONS
.
5.1
Persons
Eligible for Awards
.
Awards
may be granted only to Employees, Consultants and Directors.
5.2
Participation
in Plan
.
Awards
are granted solely at the discretion of the Committee. Eligible persons
may be
granted more than one Award. However, eligibility in accordance with this
Section shall not entitle any person to be granted an Award, or, having
been
granted an Award, to be granted an additional Award.
5.3
Incentive
Stock Option Limitations
.
(a)
Maximum
Number of Shares Issuable Pursuant to Incentive Stock
Options
.
Subject
to adjustment as provided in Section 4.3, the maximum aggregate number of
shares of Stock that may be issued under the Plan pursuant to the exercise
of
Incentive Stock Options shall not exceed fifteen million (15,000,000) shares.
The maximum aggregate number of shares of Stock that may be issued under
the
Plan pursuant to all Awards other than Incentive Stock Options shall be
the
number of shares determined in accordance with Section 4.1, subject to
adjustment as provided in Sections 4.2, and 4.3.
(b)
Persons
Eligible
.
An
Incentive Stock Option may be granted only to a person who, on the effective
date of grant, is an Employee. Any person who is not an Employee on the
effective date of the grant of an Option to such person may be granted
only a
Nonstatutory Stock Option. An Incentive Stock Option granted to a prospective
Employee upon the condition that such person become an Employee shall be
deemed
granted effective on the date such person commences Service as an Employee,
with
an exercise price determined as of such date in accordance with
Section 6.1.
(c)
Fair
Market Value Limitation
.
To the
extent that options designated as Incentive Stock Options (granted under
all
stock option plans of the Participating Company Group, including the Plan)
become exercisable by a Participant for the first time during any calendar
year
for stock having a Fair Market Value greater than One Hundred Thousand
Dollars
($100,000), the portion of such options which exceeds such amount shall
be
treated as Nonstatutory Stock Options. For purposes of this Section, options
designated as Incentive Stock Options shall be taken into account in the
order
in which they were granted, and the Fair Market Value of stock shall be
determined as of the time the option with respect to such stock is granted.
If
the Code is amended to provide for a limitation different from that set
forth in
this Section, such different limitation shall be deemed incorporated herein
effective as of the date and with respect to such Options as required or
permitted by such amendment to the Code. If an Option is treated as an
Incentive
Stock Option in part and as a Nonstatutory Stock Option in part by reason
of the
limitation set forth in this Section, the Participant may designate which
portion of such Option the Participant is exercising. In the absence of
such
designation, the Participant shall be deemed to have exercised the Incentive
Stock Option portion of the Option first. Upon exercise, shares issued
pursuant
to each such portion shall be separately identified.
5.4
Section 162(m)
Option Limitation
.
Subject
to adjustment as provided in Section 4.3, no Employee shall be granted
within any fiscal year of the Company one or more Options which in the
aggregate
are for more than five million (5,000,000) shares.
6.
STOCK
OPTIONS
.
Options
shall be evidenced by Award Agreements specifying the number of shares
of Stock
covered thereby, in such form as the Committee shall from time to time
establish. Award Agreements evidencing Options may incorporate all or any
of the
terms of the Plan by reference and shall comply with and be subject to
the
following terms and conditions:
6.1
Exercise
Price
.
The
exercise price for each Option shall be established in the discretion of
the
Committee; provided, however, that (a) the exercise price per share for
an
Option shall be not less than one hundred percent (100%) of the Fair Market
Value of a share of Stock on the effective date of grant of the Option,
and (b)
no Incentive Stock Option granted to a Ten Percent Owner shall have an
exercise
price per share less than one hundred ten percent (110%) of the Fair Market
Value of a share of Stock on the date of grant of the Option. Notwithstanding
the foregoing, an Option may be granted with an exercise price lower than
the
minimum exercise price set forth above if such Option is granted pursuant
to an
assumption or substitution for another option in a manner that would qualify
under the applicable provisions of Sections 424(a) and 409A of the
Code.
6.2
Exercisability
and Term of Options
.
Options
shall be exercisable at such time or times, or upon such event or events,
and
subject to such terms, conditions, performance criteria and restrictions
as
shall be determined by the Committee and set forth in the Award Agreement
evidencing such Option; provided, however, that (a) no Option shall be
exercisable after the expiration of ten (10) years after the effective
date of
grant of such Option, and (b) no Incentive Stock Option granted to a Ten
Percent
Shareholder shall be exercisable after the expiration of five (5) years
after
the effective date of grant of such Option. Subject to the foregoing, unless
otherwise specified by the Committee in the grant of an Option, any Option
granted hereunder shall terminate ten (10) years after the effective date
of
grant of the Option, unless earlier terminated in accordance with its
provisions.
6.3
Payment
of Exercise Price
.
(a)
Forms
of Consideration Authorized.
Except
as otherwise provided below, payment of the exercise price for the number
of
shares of Stock being purchased pursuant to any Option shall be made (i) in
cash or by check or cash equivalent, (ii) subject to
Section 6.3(b)(i), by tender to the Company, or attestation to the
ownership, of shares of Stock owned by the Participant having a Fair Market
Value not less than the exercise price, (iii) subject to
Section 6.3(b)(ii), by delivery of a properly executed notice of exercise
together with irrevocable instructions to a broker providing for the assignment
to the Company of the proceeds of a sale or loan with respect to some or
all of
the shares being acquired upon the exercise of the Option (including, without
limitation, through an exercise complying with the provisions of Regulation
T as
promulgated from time to time by the Board of Governors of the Federal
Reserve
System) (a
“
Cashless
Exercise
”
),
(iv) by delivery of a properly executed notice electing a Net-Exercise,
(v) by such other consideration as may be approved by the Committee from
time to time to the extent permitted by applicable law, or (vi) by any
combination thereof. The Committee may at any time or from time to time
grant
Options which do not permit all of the foregoing forms of consideration
to be
used in payment of the exercise price or which otherwise restrict one or
more
forms of consideration.
(b)
Limitations
on Forms of Consideration
.
(i)
Tender
of Stock.
Notwithstanding the foregoing, an Option may not be exercised by tender
to the
Company, or attestation to the ownership, of shares of Stock to the extent
such
tender or attestation would constitute a violation of the provisions of
any law,
regulation or agreement restricting the redemption of the Company’s stock.
Unless otherwise provided by the Committee, an Option may not be exercised
by
tender to the Company, or attestation to the ownership, of shares of Stock
unless such shares either have been owned by the Participant for more than
six
(6) months (or such other period, if any, as the Committee may permit)
and not
used for another Option exercise by attestation during such period, or
were not
acquired, directly or indirectly, from the Company.
(ii)
Cashless
Exercise.
The
Cashless Exercise program is available only if, at the time of exercise,
the
offer and sale of shares of Stock pursuant to the Plan is registered on
a then
effective registration statement on Form S-8 under the Securities Act.
The
Company reserves, at any and all times, the right, in the Company’s sole and
absolute discretion, to establish, decline to approve or terminate any
program
or procedures for the exercise of Options by means of a Cashless Exercise,
including with respect to one or more Participants specified by the Company
notwithstanding that such program or procedures may be available to other
Participants.
6.4
Effect
of Termination of Service
.
(a)
Option
Exercisability
.
Subject
to earlier termination of the Option as otherwise provided herein and unless
otherwise provided by the Committee, an Option shall terminate immediately
upon
the Participant’s termination of Service to the extent that it is then unvested
and shall be exercisable after the Participant’s termination of Service to the
extent it is then vested only during the applicable time period determined
in
accordance with this Section and thereafter shall terminate:
(i)
Disability.
If the
Participant’s Service terminates because of the Disability of the Participant,
the Option, to the extent unexercised and exercisable for vested shares
on the
date on which the Participant’s Service terminated, may be exercised by the
Participant (or the Participant’s guardian or legal representative) at any time
prior to the expiration of twelve (12) months after the date on which the
Participant’s Service terminated, but in any event no later than the date of
expiration of the Option’s term as set forth in the Award Agreement evidencing
such Option (the
“
Option
Expiration Date
”
).
(ii)
Death.
If the
Participant’s Service terminates because of the death of the Participant, then
the Option, to the extent unexercised and exercisable for vested shares
on the
date on which the Participant’s Service terminated, may be exercised by the
Participant’s legal representative or other person who acquired the right to
exercise the Option by reason of the Participant’s death at any time prior to
the expiration of twelve (12) months after the date on which the Participant’s
Service terminated, but in any event no later than the Option Expiration
Date.
The Participant’s Service shall be deemed to have terminated on account of death
if the Participant dies within three (3) months after the Participant’s
termination of Service.
(iii)
Termination
for Cause.
Notwithstanding any other provision of the Plan to the contrary, if the
Participant’s Service is terminated for Cause or if, following the Participant’s
termination of Service and during any period in which the Option otherwise
would
remain exercisable, the Participant engages in any act that would constitute
Cause, the Option shall terminate in its entirety and cease to be exercisable
immediately upon such termination of Service or act.
(iv)
Other
Termination of Service.
If the
Participant’s Service terminates for any reason, except Disability, death or
Cause, the Option, to the extent unexercised and exercisable for vested
shares
on the date on which the Participant’s Service terminated, may be exercised by
the Participant at any time prior to the expiration of three (3) months
after
the date on which the Participant’s Service terminated, but in any event no
later than the Option Expiration Date.
(b)
Extension
if Exercise Prevented by
Law
.
Notwithstanding the foregoing, if the exercise of an Option within the
applicable time periods set forth in Section 6.4(a) is prevented by the
provisions of Section 12 below, the Option shall remain exercisable until
thirty (30) days after the date such exercise first would no longer be
prevented
by such provisions, but in any event no later than the Option Expiration
Date.
6.5
Transferability
of Options.
During
the lifetime of the Participant, an Option shall be exercisable only by
the
Participant or the Participant’s guardian or legal representative. An Option
shall not be subject in any manner to anticipation, alienation, sale, exchange,
transfer, assignment, pledge, encumbrance, or garnishment by creditors
of the
Participant or the Participant’s beneficiary, except transfer by will or by the
laws of descent and distribution. Notwithstanding the foregoing, to the
extent
permitted by the Committee, in its discretion, and set forth in the Award
Agreement evidencing such Option, a Nonstatutory Stock Option may be assignable
or transferable subject to the applicable limitations, if any, described
in the
General Instructions to Form S-8 under the Securities Act.
7.
RESTRICTED
STOCK AWARDS
.
Restricted
Stock Awards shall be evidenced by Award Agreements specifying whether
the Award
is a Restricted Stock Bonus or a Restricted Stock Purchase Right and the
number
of shares of Stock subject to the Award, in such form as the Committee
shall
from time to time establish. Award Agreements evidencing Restricted Stock
Awards
may incorporate all or any of the terms of the Plan by reference and shall
comply with and be subject to the following terms and conditions:
7.1
Types
of Restricted Stock Awards Authorized.
Restricted Stock Awards may be granted in the form of either a Restricted
Stock
Bonus or a Restricted Stock Purchase Right. Restricted Stock Awards may
be
granted upon such conditions as the Committee shall determine, including,
without limitation, upon the attainment of one or more performance
goals.
7.2
Purchase
Price.
The
purchase price for shares of Stock issuable under each Restricted Stock
Purchase
Right shall be established by the Committee in its discretion. No monetary
payment (other than applicable tax withholding) shall be required as a
condition
of receiving shares of Stock pursuant to a Restricted Stock Bonus, the
consideration for which shall be services actually rendered to a Participating
Company or for its benefit. Notwithstanding the foregoing, if required
by
applicable state corporate law, the Participant shall furnish consideration
in
the form of cash or past services rendered to a Participating Company or
for its
benefit having a value not less than the par value of the shares of Stock
subject to a Restricted Stock Award.
7.3
Purchase
Period.
A
Restricted Stock Purchase Right shall be exercisable within a period established
by the Committee, which shall in no event exceed thirty (30) days from
the
effective date of the grant of the Restricted Stock Purchase Right.
7.4
Payment
of Purchase Price.
Except
as
otherwise provided below, payment of the purchase price for the number
of shares
of Stock being purchased pursuant to any Restricted Stock Purchase Right
shall
be made (a) in cash or by check or cash equivalent, (b) by such other
consideration as may be approved by the Committee from time to time to
the
extent permitted by applicable law, or (c) by any combination
thereof.
7.5
Vesting
and Restrictions on Transfer.
Shares
issued pursuant to any Restricted Stock Award may (but need not) be made
subject
to Vesting Conditions based upon the satisfaction of such Service requirements,
conditions, restrictions or performance criteria as shall be established
by the
Committee and set forth in the Award Agreement evidencing such Award. During
any
period in which shares acquired pursuant to a Restricted Stock Award remain
subject to Vesting Conditions, such shares may not be sold, exchanged,
transferred, pledged, assigned or otherwise disposed of other than pursuant
to
an Ownership Change Event or as provided in Section 7.8. The Committee, in
its discretion, may provide in any Award Agreement evidencing a Restricted
Stock
Award that, if the satisfaction of Vesting Conditions with respect to any
shares
subject to such Restricted Stock Award would otherwise occur on a day on
which
the sale of such shares would violate the provisions of the Insider Trading
Policy, then satisfaction of the Vesting Conditions automatically shall
be
determined on the next trading day on which the sale of such shares would
not
violate the Insider Trading Policy. Upon request by the Company, each
Participant shall execute any agreement evidencing such transfer restrictions
prior to the receipt of shares of Stock hereunder and shall promptly present
to
the Company any and all certificates representing shares of Stock acquired
hereunder for the placement on such certificates of appropriate legends
evidencing any such transfer restrictions.
7.6
Voting
Rights; Dividends and Distributions.
Except
as provided in this Section, Section 7.5 and any Award Agreement, during
any period in which shares acquired pursuant to a Restricted Stock Award
remain
subject to Vesting Conditions, the Participant shall have all of the rights
of a
stockholder of the Company holding shares of Stock, including the right
to vote
such shares and to receive all dividends and other distributions paid with
respect to such shares. However, in the event of a dividend or distribution
paid
in shares of Stock or other property or any other adjustment made upon
a change
in the capital structure of the Company as described in Section 4.3, any
and all new, substituted or additional securities or other property (other
than
normal cash dividends) to which the Participant is entitled by reason of
the
Participant’s Restricted Stock Award shall be immediately subject to the same
Vesting Conditions as the shares subject to the Restricted Stock Award
with
respect to which such dividends or distributions were paid or adjustments
were
made.
7.7
Effect
of Termination of Service.
Unless
otherwise provided by the Committee in the Award Agreement evidencing a
Restricted Stock Award, if a Participant’s Service terminates for any reason,
whether voluntary or involuntary (including the Participant’s death or
disability), then (a) the Company shall have the option to repurchase for
the purchase price paid by the Participant any shares acquired by the
Participant pursuant to a Restricted Stock Purchase Right which remain
subject
to Vesting Conditions as of the date of the Participant’s termination of Service
and (b) the Participant shall forfeit to the Company any shares acquired by
the Participant pursuant to a Restricted Stock Bonus which remain subject
to
Vesting Conditions as of the date of the Participant’s termination of Service.
The Company shall have the right to assign at any time any repurchase right
it
may have, whether or not such right is then exercisable, to one or more
persons
as may be selected by the Company.
7.8
Nontransferability
of Restricted Stock Award Rights.
Rights
to acquire shares of Stock pursuant to a Restricted Stock Award shall not
be
subject in any manner to anticipation, alienation, sale, exchange, transfer,
assignment, pledge, encumbrance or garnishment by creditors of the Participant
or the Participant’s beneficiary, except transfer by will or the laws of descent
and distribution. All rights with respect to a Restricted Stock Award granted
to
a Participant hereunder shall be exercisable during his or her lifetime
only by
such Participant or the Participant’s guardian or legal
representative.
8.
RESTRICTED
STOCK UNIT AWARDS
.
Restricted
Stock Unit Awards shall be evidenced by Award Agreements specifying the
number
of Restricted Stock Units subject to the Award, in such form as the Committee
shall from time to time establish. Award Agreements evidencing Restricted
Stock
Units may incorporate all or any of the terms of the Plan by reference
and shall
comply with and be subject to the following terms and conditions:
8.1
Grant
of Restricted Stock Unit Awards.
Restricted Stock Unit Awards may be granted upon such conditions as the
Committee shall determine, including, without limitation, upon the attainment
of
one or more performance goals.
8.2
Purchase
Price.
No
monetary payment (other than applicable tax withholding, if any) shall
be
required as a condition of receiving a Restricted Stock Unit Award, the
consideration for which shall be services actually rendered to a Participating
Company or for its benefit. Notwithstanding the foregoing, if required
by
applicable state corporate law, the Participant shall furnish consideration
in
the form of cash or past services rendered to a Participating Company or
for its
benefit having a value not less than the par value of the shares of Stock
issued
upon settlement of the Restricted Stock Unit Award.
8.3
Vesting.
Restricted Stock Unit Awards may (but need not) be made subject to Vesting
Conditions based upon the satisfaction of such Service requirements, conditions,
restrictions or performance criteria as shall be established by the Committee
and set forth in the Award Agreement evidencing such Award. The Committee,
in
its discretion, may provide in any Award Agreement evidencing a Restricted
Stock
Unit Award that, if the satisfaction of Vesting Conditions with respect
to any
shares subject to the Award would otherwise occur on a day on which the
sale of
such shares would violate the provisions of the Insider Trading Policy,
then
satisfaction of the Vesting Conditions automatically shall be determined
on the
first to occur of (a) the next trading day on which the sale of such shares
would not violate the Insider Trading Policy or (b) the later of
(i) the last day of the calendar year in which the original vesting date
occurred or (ii) the last day of the Company’s taxable year in which the
original vesting date occurred.
8.4
Voting
Rights, Dividend Equivalent Rights and Distributions.
Participants shall have no voting rights with respect to shares of Stock
represented by Restricted Stock Units until the date of the issuance of
such
shares (as evidenced by the appropriate entry on the books of the Company
or of
a duly authorized transfer agent of the Company). However, the Committee,
in its
discretion, may provide in the Award Agreement evidencing any Restricted
Stock
Unit Award that the Participant shall be entitled to Dividend Equivalent
Rights
with respect to the payment of cash dividends on Stock during the period
beginning on the date such Award is granted and ending, with respect to
each
share subject to the Award, on the earlier of the date the Award is settled
or
the date on which it is terminated. Such Dividend Equivalent Rights, if
any,
shall be paid by crediting the Participant with additional whole Restricted
Stock Units as of the date of payment of such cash dividends on Stock.
The
number of additional Restricted Stock Units (rounded to the nearest whole
number) to be so credited shall be determined by dividing (a) the amount of
cash dividends paid on such date with respect to the number of shares of
Stock
represented by the Restricted Stock Units previously credited to the Participant
by (b) the Fair Market Value per share of Stock on such date. Such
additional Restricted Stock Units shall be subject to the same terms and
conditions and shall be settled in the same manner and at the same time
as the
Restricted Stock Units originally subject to the Restricted Stock Unit
Award. In
the event of a dividend or distribution paid in shares of Stock or other
property or any other adjustment made upon a change in the capital structure
of
the Company as described in Section 4.3, appropriate adjustments shall be
made in the Participant’s Restricted Stock Unit Award so that it represents the
right to receive upon settlement any and all new, substituted or additional
securities or other property (other than normal cash dividends) to which
the
Participant would be entitled by reason of the shares of Stock issuable
upon
settlement of the Award, and all such new, substituted or additional securities
or other property shall be immediately subject to the same Vesting Conditions
as
are applicable to the Award.
8.5
Effect
of Termination of Service.
Unless
otherwise provided by the Committee and set forth in the Award Agreement
evidencing a Restricted Stock Unit Award, if a Participant’s Service terminates
for any reason, whether voluntary or involuntary (including the Participant’s
death or disability), then the Participant shall forfeit to the Company
any
Restricted Stock Units pursuant to the Award which remain subject to Vesting
Conditions as of the date of the Participant’s termination of
Service.
8.6
Settlement
of Restricted Stock Unit Awards.
The
Company shall issue to a Participant on the date on which Restricted Stock
Units
subject to the Participant’s Restricted Stock Unit Award vest or on such other
date determined by the Committee, in its discretion, and set forth in the
Award
Agreement one (1) share of Stock (and/or any other new, substituted or
additional securities or other property pursuant to an adjustment described
in
Section 8.4) for each Restricted Stock Unit then becoming vested or
otherwise to be settled on such date, subject to the withholding of applicable
taxes, if any. If permitted by the Committee, the Participant may elect,
consistent with the requirements of Section 409A, to defer receipt of all
or any portion of the shares of Stock or other property otherwise issuable
to
the Participant pursuant to this Section, and such deferred issuance date(s)
and
amount(s) elected by the Participant shall be set forth in the Award Agreement.
Notwithstanding the foregoing, the Committee, in its discretion, may provide
in
any Award Agreement for settlement of any Restricted Stock Unit Award by
payment
to the Participant in cash of an amount equal to the Fair Market Value
on the
payment date of the shares of Stock or other property otherwise issuable
to the
Participant pursuant to this Section.
8.7
Nontransferability
of Restricted Stock Unit Awards.
The
right to receive shares pursuant to a Restricted Stock Unit Award shall
not be
subject in any manner to anticipation, alienation, sale, exchange, transfer,
assignment, pledge, encumbrance, or garnishment by creditors of the Participant
or the Participant’s beneficiary, except transfer by will or by the laws of
descent and distribution. All rights with respect to a Restricted Stock
Unit
Award granted to a Participant hereunder shall be exercisable during his
or her
lifetime only by such Participant or the Participant’s guardian or legal
representative.
9.
STANDARD
FORMS OF AWARD AGREEMENTS
.
9.1
Award
Agreements
.
Each
Award shall comply with and be subject to the terms and conditions set
forth in
the appropriate form of Award Agreement approved by the Committee and as
amended
from time to time. No Award or purported Award shall be a valid and binding
obligation of the Company unless evidenced by a fully executed Award Agreement.
Any Award Agreement may consist of an appropriate form of Notice of Grant
and a
form of Agreement incorporated therein by reference, or such other form
or
forms, including electronic media, as the Committee may approve from time
to
time.
9.2
Authority
to Vary Terms
.
The
Committee shall have the authority from time to time to vary the terms
of any
standard form of Award Agreement either in connection with the grant or
amendment of an individual Award or in connection with the authorization
of a
new standard form or forms; provided, however, that the terms and conditions
of
any such new, revised or amended standard form or forms of Award Agreement
are
not inconsistent with the terms of the Plan.
10.
CHANGE
IN CONTROL
.
10.1
Effect
of Change in Control on Awards
.
Subject
to the requirements and limitations of Section 409A if applicable, the
Committee
may provide for any one or more of the following:
(a)
Accelerated
Vesting
.
The
Committee may, in its discretion, provide in any Award Agreement or, in
the
event of a Change in Control, may take such actions as it deems appropriate
to
provide for the acceleration of the exercisability, vesting and/or settlement
in
connection with such Change in Control of each or any outstanding Award
or
portion thereof and shares acquired pursuant thereto upon such conditions,
including termination of the Participant’s Service prior to, upon, or following
such Change in Control, to such extent as the Committee shall
determine.
(b)
Assumption,
Continuation or Substitution.
In the
event of a Change in Control, the surviving, continuing, successor, or
purchasing corporation or other business entity or parent thereof, as the
case
may be (the
“
Acquiror
”
),
may,
without the consent of any Participant, either assume or continue the Company’s
rights and obligations under each or any Award or portion thereof outstanding
immediately prior to the Change in Control or substitute for each or any
such
outstanding Award or portion thereof a substantially equivalent award with
respect to the Acquiror’s stock, as applicable. For purposes of this Section, if
so determined by the Committee, in its discretion, an Award denominated
in
shares of Stock shall be deemed assumed if, following the Change in Control,
the
Award confers the right to receive, subject to the terms and conditions
of the
Plan and the applicable Award Agreement, for each share of Stock subject
to the
Award immediately prior to the Change in Control, the consideration (whether
stock, cash, other securities or property or a combination thereof) to
which a
holder of a share of Stock on the effective date of the Change in Control
was
entitled; provided, however, that if such consideration is not solely common
stock of the Acquiror, the Committee may, with the consent of the Acquiror,
provide for the consideration to be received upon the exercise or settlement
of
the Award, for each share of Stock subject to the Award, to consist solely
of
common stock of the Acquiror equal in Fair Market Value to the per share
consideration received by holders of Stock pursuant to the Change in Control.
If
any portion of such consideration may be received by holders of Stock pursuant
to the Change in Control on a contingent or delayed basis, the Committee
may, in
its sole discretion, determine such Fair Market Value per share as of the
time
of the Change in Control on the basis of the Committee’s good faith estimate of
the present value of the probable future payment of such consideration.
Any
Award or portion thereof which is neither assumed or continued by the Acquiror
in connection with the Change in Control nor exercised or settled as of
the time
of consummation of the Change in Control shall terminate and cease to be
outstanding effective as of the time of consummation of the Change in
Control.
(c)
Cash-Out
of Awards
.
The
Committee may, in its discretion and without the consent of any Participant,
determine that, upon the occurrence of a Change in Control, each or any
Award or
a portion thereof outstanding immediately prior to the Change in Control
and not
previously exercised or settled shall be canceled in exchange for a payment
with
respect to each vested share (and each unvested share, if so determined
by the
Committee) of Stock subject to such canceled Award in (i) cash,
(ii) stock of the Company or of a corporation or other business entity a
party to the Change in Control, or (iii) other property which, in any such
case, shall be in an amount having a Fair Market Value equal to the Fair
Market
Value of the consideration to be paid per share of Stock in the Change
in
Control, reduced by the exercise or purchase price per share, if any, under
such
Award. If any portion of such consideration may be received by holders
of Stock
pursuant to the Change in Control on a contingent or delayed basis, the
Committee may, in its sole discretion, determine such Fair Market Value
per
share as of the time of the Change in Control on the basis of the Committee’s
good faith estimate of the present value of the probable future payment
of such
consideration. In the event such determination is made by the Committee,
the
amount of such payment (reduced by applicable withholding taxes, if any)
shall
be paid to Participants in respect of the vested portions of their canceled
Awards as soon as practicable following the date of the Change in Control
and in
respect of the unvested portions of their canceled Awards in accordance
with the
vesting schedules applicable to such Awards.
10.2
Federal
Excise Tax Under Section 4999 of the Code
.
(a)
Excess
Parachute Payment
.
In the
event that any acceleration of vesting pursuant to an Award and any other
payment or benefit received or to be received by a Participant would subject
the
Participant to any excise tax pursuant to Section 4999 of the Code due
to the
characterization of such acceleration of vesting, payment or benefit as
an
“excess parachute payment” under Section 280G of the Code, the Participant may
elect, in his or her sole discretion, to reduce the amount of any acceleration
of vesting called for under the Award in order to avoid such
characterization.
(b)
Determination
by Independent Accountants
.
To aid
the Participant in making any election called for under Section 10.2(a), no
later than the date of the occurrence of any event that might reasonably
be
anticipated to result in an “excess parachute payment” to the Participant as
described in Section 10.2(a), the Company shall request a determination in
writing by independent public accountants selected by the Company (the
“
Accountants
”).
As
soon as practicable thereafter, the Accountants shall determine and report
to
the Company and the Participant the amount of such acceleration of vesting,
payments and benefits which would produce the greatest after-tax benefit
to the
Participant. For the purposes of such determination, the Accountants may
rely on
reasonable, good faith interpretations concerning the application of Sections
280G and 4999 of the Code. The Company and the Participant shall furnish
to the
Accountants such information and documents as the Accountants may reasonably
request in order to make their required determination. The Company shall
bear
all fees and expenses the Accountants may reasonably charge in connection
with
their services contemplated by this Section 10.2(b).
11.
TAX
WITHHOLDING
.
11.1
Tax
Withholding in General
.
The
Company shall have the right to deduct from any and all payments made under
the
Plan, or to require the Participant, through payroll withholding, cash
payment
or otherwise, to make adequate provision for, the federal, state, local
and
foreign taxes, if any, required by law to be withheld by the Participating
Company Group with respect to an Award or the shares acquired pursuant
thereto.
The Company shall have no obligation to deliver shares of Stock, to release
shares of Stock from an escrow established pursuant to an Award Agreement,
or to
make any payment in cash under the Plan until the Participating Company
Group’s
tax withholding obligations have been satisfied by the Participant.
11.2
Withholding
in Shares
.
The
Company shall have the right, but not the obligation, to deduct from the
shares
of Stock issuable to a Participant upon the exercise or settlement of an
Award,
or to accept from the Participant the tender of, a number of whole shares
of
Stock having a Fair Market Value, as determined by the Company, equal to
all or
any part of the tax withholding obligations of the Participating Company
Group.
The Fair Market Value of any shares of Stock withheld or tendered to satisfy
any
such tax withholding obligations shall not exceed the amount determined
by the
applicable minimum statutory withholding rates.
12.
COMPLIANCE
WITH SECURITIES LAW
.
The
grant
of Awards and the issuance of shares of Stock pursuant to any Award shall
be
subject to compliance with all applicable requirements of federal, state
and
foreign law with respect to such securities and the requirements of any
stock
exchange or market system upon which the Stock may then be listed. In addition,
no Award may be exercised or shares issued pursuant to an Award unless
(a) a registration statement under the Securities Act shall at the time of
such exercise or issuance be in effect with respect to the shares issuable
pursuant to the Award or (b) in the opinion of legal counsel to the
Company, the shares issuable pursuant to the Award may be issued in accordance
with the terms of an applicable exemption from the registration requirements
of
the Securities Act. The inability of the Company to obtain from any regulatory
body having jurisdiction the authority, if any, deemed by the Company’s legal
counsel to be necessary to the lawful issuance and sale of any shares hereunder
shall relieve the Company of any liability in respect of the failure to
issue or
sell such shares as to which such requisite authority shall not have been
obtained. As a condition to issuance of any Stock, the Company may require
the
Participant to satisfy any qualifications that may be necessary or appropriate,
to evidence compliance with any applicable law or regulation and to make
any
representation or warranty with respect thereto as may be requested by
the
Company.
13.
COMPLIANCE
WITH SECTION 409A
.
13.1
Awards
Subject to Section 409A
.
The
provisions of this Section 13 shall apply to any Award or portion thereof
that is or becomes subject to Section 409A, notwithstanding any provision
to the
contrary contained in the Plan or the Award Agreement applicable to such
Award.
Awards subject to Section 409A include, without limitation:
(a)
Any
Nonstatutory Stock Option having an exercise price per share less than
the Fair
Market Value determined as of the date of grant of such Option or that
permits
the deferral of compensation other than the deferral of recognition of
income
until the exercise or transfer of the Option or the time the shares acquired
pursuant to the exercise of the option first become substantially
vested.
(b)
Any
Restricted Stock Award that either provides by its terms, or under which
the
Participant makes an election, for settlement of all or any portion of
the Award
either (i) on one or more dates following the end of the Short-Term Deferral
Period (as defined below) or (ii) upon or after the occurrence of any event
that will or may occur later than the end of the Short-Term Deferral
Period.
Subject
to U.S. Treasury Regulations promulgated pursuant to Section 409A (“
Section
409A Regulations
”)
or
other applicable guidance, the term “
Short-Term
Deferral Period
”
means
the period ending on the later of (i) the 15th day of the third month
following the end of the Company’s fiscal year in which the applicable portion
of the Award is no longer subject to a substantial risk of forfeiture or
(ii) the 15th day of the third month following the end of the Participant’s
taxable year in which the applicable portion of the Award is no longer
subject
to a substantial risk of forfeiture. For this purpose, the term “
substantial
risk of forfeiture
”
shall
have the meaning set forth in Section 409A Regulations or other applicable
guidance.
13.2
Deferral
and/or Distribution Elections
.
Except
as otherwise permitted or required by Section 409A or Section 409A Regulations
or other applicable guidance, the following rules shall apply to any deferral
and/or distribution elections (each, an “
Election
”)
that
may be permitted or required by the Committee pursuant to an Award subject
to
Section 409A:
(a)
All
Elections must be in writing and specify the amount (or an objective,
nondiscretionary formula determining the amount) of the distribution in
settlement of an Award being deferred, as well as the time and form of
distribution as permitted by this Plan.
(b)
All
Elections shall be made by the end of the Participant’s taxable year prior to
the year in which services commence for which an Award may be granted to
such
Participant; provided, however, that if the Award qualifies as
“performance-based compensation” for purposes of Section 409A (and is based on a
performance period of at least 12 consecutive months), then the Election
may be
made no later than six (6) months prior to the end of the performance period,
provided that the Participant’s service is continuous from the later of the
beginning of the performance period or the date on which the performance
goals
are established through the date such election is made and provided further
that
no election may be made after the compensation has become readily ascertainable
(as provided by Section 409A Regulations).
(c)
Elections
shall continue in effect until a written election to revoke or change such
Election is received by the Company, except that a written election to
revoke or
change such Election must be made prior to the last day for making an Election
determined in accordance with paragraph (b) above or as permitted by
Section 13.3.
13.3
Subsequent
Elections
.
Except
as otherwise permitted or required by Section 409A Regulations or other
applicable guidance, any Award subject to Section 409A which permits a
subsequent Election to delay the distribution or change the form of distribution
in settlement of such Award shall comply with the following
requirements:
(a)
No
subsequent Election may take effect until at least twelve (12) months after
the
date on which the subsequent Election is made;
(b)
Each
subsequent Election related to a distribution in settlement of an Award
not
described in Section 13.4(b), 13.4(c) or 13.4(f) must result in a delay of
the distribution for a period of not less than five (5) years from the
date such
distribution would otherwise have been made; and
(c)
No
subsequent Election related to a distribution pursuant to Section 13.4(d)
shall be made less than twelve (12) months prior to the date of the first
scheduled payment under such distribution.
13.4
Distributions
Pursuant to Deferral Elections
.
Except
as otherwise permitted or required by Section 409A Regulations or other
applicable guidance, no distribution in settlement of an Award subject
to
Section 409A may commence earlier than:
(a)
The
Participant’s separation from service (as defined by Section 409A
Regulations);
(b)
The
date
the Participant becomes Disabled (as defined below);
(c)
The
Participant’s death;
(d)
A
specified time (or pursuant to a fixed schedule) that is either
(i) specified by the Committee upon the grant of an Award and set forth in
the Award Agreement evidencing such Award or (ii) specified by the
Participant in an Election complying with the requirements of Section 13.2
and/or 13.3, as applicable;
(e)
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 defined by Section
409A
Regulations); or
(f)
The
occurrence of an Unforeseeable Emergency (as defined by Section 409A
Regulations).
Notwithstanding
anything else herein to the contrary, to the extent that a Participant
is a
“Specified Employee” (as defined by Section 409A Regulations) of the Company, no
distribution pursuant to Section 13.4(a) in settlement of an Award subject
to
Section 409A may be made before the date (the “
Delayed
Payment Date
”)
which
is six (6) months after such Participant’s date of separation from service, or,
if earlier, the date of the Participant’s death. All such amounts that would,
but for this paragraph, become payable prior to the Delayed Payment Date
shall
be accumulated and paid on the Delayed Payment Date.
13.5
Unforeseeable
Emergency
.
The
Committee shall have the authority to provide in any Award subject to Section
409A for distribution in settlement of all or a portion of such Award in
the
event that a Participant establishes, to the satisfaction of the Committee,
the
occurrence of an Unforeseeable Emergency. In such event, the amount(s)
distributed with respect to such Unforeseeable Emergency cannot exceed
the
amounts reasonably necessary to satisfy such Unforeseeable Emergency plus
amounts necessary to pay taxes or penalties reasonably anticipated as a
result
of such distribution(s), after taking into account the extent to which
such
hardship is or may be relieved through reimbursement or compensation by
insurance or otherwise, by liquidation of the Participant’s assets (to the
extent the liquidation of such assets would not itself cause severe financial
hardship), or by cessation of deferrals under the Plan. All distributions
with
respect to an Unforeseeable Emergency shall be made in a lump sum within
90 days
of the occurrence of Unforeseeable Emergency and following the Committee’s
determination that an Unforeseeable Emergency has occurred.
The
occurrence of an Unforeseeable Emergency shall be judged and determined
by the
Committee. The Committee’s decision with respect to whether an Unforeseeable
Emergency has occurred and the manner in which, if at all, the distribution
in
settlement of an Award shall be altered or modified, shall be final, conclusive,
and not subject to approval or appeal.
13.6
Disabled
.
The
Committee shall have the authority to provide in any Award subject to Section
409A for distribution in settlement of such Award in the event that the
Participant becomes Disabled. A Participant shall be considered “
Disabled
”
if
either:
(a)
the
Participant is unable to engage in any substantial gainful activity by
reason of
any medically determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous period of
not
less than twelve (12) months, or
(b)
the
Participant is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected
to last
for a continuous period of not less than twelve (12) months, receiving
income
replacement benefits for a period of not less than three (3) months under
an
accident and health plan covering employees of the Participant’s
employer.
All
distributions payable by reason of a Participant becoming Disabled shall
be paid
in a lump sum or in periodic installments as established by the Participant’s
Election, commencing within 90 days following the date the Participant
becomes
Disabled. If the Participant has made no Election with respect to distributions
upon becoming Disabled, all such distributions shall be paid in a lump
sum
within 90 days following the date the Participant becomes Disabled.
13.7
Death
.
If a
Participant dies before complete distribution of amounts payable upon settlement
of an Award subject to Section 409A, such undistributed amounts shall be
distributed to his or her beneficiary under the distribution method for
death
established by the Participant’s Election, or, if the Participant has made no
Election with respect to distributions upon death, in a lump sum, within
90 days
following the Participant’s death and following receipt by the Committee of
satisfactory notice and confirmation of the Participant’s death.
13.8
No
Acceleration of Distributions
.
Notwithstanding anything to the contrary herein, this Plan does not permit
the
acceleration of the time or schedule of any distribution under this Plan
pursuant to any Award subject to Section 409A, except as provided by Section
409A and Section 409A Regulations.
14.
AMENDMENT
OR TERMINATION OF PLAN
.
The
Committee may amend, suspend or terminate the Plan at any time. However,
without
the approval of the Company’s stockholders, there shall be no amendment of the
Plan (including, but not limited to, an increase in the share limitations
imposed by Sections 4.1, 5.3 and 5.4 (other than adjustments made to such
Sections pursuant to Sections 4.2 and 4.3)) that would require approval
of the
Company’s stockholders under any applicable law, regulation or rule, including
the rules of any stock exchange or market system upon which the Stock may
then
be listed. No amendment, suspension or termination of the Plan shall affect
any
then outstanding Award unless expressly provided by the Committee. Except
as
provided by the next sentence, no amendment, suspension or termination
of the
Plan may adversely affect any then outstanding Award without the consent
of the
Participant. Notwithstanding any other provision of the Plan or any Award
Agreement to the contrary, the Committee may, in its sole and absolute
discretion and without the consent of any Participant, amend the Plan or
any
Award Agreement, to take effect retroactively or otherwise, as it deems
necessary or advisable for the purpose of conforming the Plan or such Award
Agreement to any present or future law, regulation or rule applicable to
the
Plan, including, but not limited to, Section 409A of the Code and all applicable
guidance promulgated thereunder.
15.
MISCELLANEOUS
PROVISIONS
.
15.1
Repurchase
Rights
.
Shares
issued under the Plan may be subject to one or more repurchase options,
or other
conditions and restrictions as determined by the Committee in its discretion
at
the time the Award is granted. The Company shall have the right to assign
at any
time any repurchase right it may have, whether or not such right is then
exercisable, to one or more persons as may be selected by the Company.
Upon
request by the Company, each Participant shall execute any agreement evidencing
such transfer restrictions prior to the receipt of shares of Stock hereunder
and
shall promptly present to the Company any and all certificates representing
shares of Stock acquired hereunder for the placement on such certificates
of
appropriate legends evidencing any such transfer restrictions.
15.2
Forfeiture
Events.
(a)
The
Committee may specify in an Award Agreement that the Participant’s rights,
payments, and benefits with respect to an Award shall be subject to reduction,
cancellation, forfeiture, or recoupment upon the occurrence of specified
events,
in addition to any otherwise applicable vesting or performance conditions
of an
Award. Such events may include, but shall not be limited to, termination
of
Service for Cause or any act by a Participant, whether before or after
termination of Service, that would constitute Cause for termination of
Service.
(b)
If
the
Company is required to prepare an accounting restatement due to the material
noncompliance of the Company, as a result of misconduct, with any financial
reporting requirement under the securities laws, any Participant who knowingly
or through gross negligence engaged in the misconduct, or who knowingly
or
through gross negligence failed to prevent the misconduct, and any Participant
who is one of the individuals subject to automatic forfeiture under Section
304
of the Sarbanes-Oxley Act of 2002, shall reimburse the Company the amount
of any
payment in settlement of an Award earned or accrued during the twelve-
(12-)
month period following the first public issuance or filing with the United
States Securities and Exchange Commission (whichever first occurred) of
the
financial document embodying such financial reporting requirement.
15.3
Provision
of Information.
Each
Participant shall be given access to information concerning the Company
equivalent to that information generally made available to the Company’s common
stockholders. In addition, the Company shall deliver such other disclosures
to
Participants as may be required pursuant to applicable law.
15.4
Rights
as Employee, Consultant or Director
.
No
person, even though eligible pursuant to Section 5, shall have a right to
be selected as a Participant, or, having been so selected, to be selected
again
as a Participant. Nothing in the Plan or any Award granted under the Plan
shall
confer on any Participant a right to remain an Employee, Consultant or
Director
or interfere with or limit in any way any right of a Participating Company
to
terminate the Participant’s Service at any time. To the extent that an Employee
of a Participating Company other than the Company receives an Award under
the
Plan, that Award shall in no event be understood or interpreted to mean
that the
Company is the Employee’s employer or that the Employee has an employment
relationship with the Company.
15.5
Rights
as a Stockholder
.
A
Participant shall have no rights as a stockholder with respect to any shares
covered by an Award until the date of the issuance of such shares (as evidenced
by the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company). No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the
date
such shares are issued, except as provided in Section 4.3 or another
provision of the Plan.
15.6
Delivery
of Title to Shares.
Subject
to any governing rules or regulations, the Company shall issue or cause
to be
issued the shares of Stock acquired pursuant to an Award and shall deliver
such
shares to or for the benefit of the Participant by means of one or more
of the
following: (a) by delivering to the Participant evidence of book entry
shares of Stock credited to the account of the Participant, (b) by
depositing such shares of Stock for the benefit of the Participant with
any
broker with which the Participant has an account relationship, or (c) by
delivering such shares of Stock to the Participant in certificate
form.
15.7
Fractional
Shares
.
The
Company shall not be required to issue fractional shares upon the exercise
or
settlement of any Award.
15.8
Retirement
and Welfare Plans
.
Neither
Awards made under this Plan nor shares of Stock or cash paid pursuant to
such
Awards shall be included as “compensation” for purposes of computing the
benefits payable to any Participant under any Participating Company’s retirement
plans (both qualified and non-qualified) or welfare benefit plans unless
such
other plan expressly provides that such compensation shall be taken into
account
in computing such benefits.
15.9
Severability
.
If any
one or more of the provisions (or any part thereof) of this Plan shall
be held
invalid, illegal or unenforceable in any respect, such provision shall
be
modified so as to make it valid, legal and enforceable, and the validity,
legality and enforceability of the remaining provisions (or any part thereof)
of
the Plan shall not in any way be affected or impaired thereby.
15.10
No
Constraint on Corporate Action
.
Nothing
in this Plan shall be construed to: (a) limit, impair, or otherwise affect
the Company’s or another Participating Company’s right or power to make
adjustments, reclassifications, reorganizations, or changes of its capital
or
business structure, or to merge or consolidate, or dissolve, liquidate,
sell, or
transfer all or any part of its business or assets; or (b) limit the right
or power of the Company or another Participating Company to take any action
which such entity deems to be necessary or appropriate.
15.11
Unfunded
Obligation.
Participants shall have the status of general unsecured creditors of the
Company. Any amounts payable to Participants pursuant to the Plan shall
be
unfunded and unsecured obligations for all purposes, including, without
limitation, Title I of the Employee Retirement Income Security Act of 1974.
No Participating Company shall be required to segregate any monies from
its
general funds, or to create any trusts, or establish any special accounts
with
respect to such obligations. The Company shall retain at all times beneficial
ownership of any investments, including trust investments, which the Company
may
make to fulfill its payment obligations hereunder. Any investments or the
creation or maintenance of any trust or any Participant account shall not
create
or constitute a trust or fiduciary relationship between the Committee or
any
Participating Company and a Participant, or otherwise create any vested
or
beneficial interest in any Participant or the Participant’s creditors in any
assets of any Participating Company. The Participants shall have no claim
against any Participating Company for any changes in the value of any assets
which may be invested or reinvested by the Company with respect to the
Plan.
15.12
Choice
of Law
.
Except
to the extent governed by applicable federal law, the validity, interpretation,
construction and performance of the Plan and each Award Agreement shall
be
governed by the laws of the State of California, without regard to its
conflict
of law rules.
15.13
Stockholder
Approval.
The
Plan, as amended and restated, shall become effective upon its approval
by the
stockholders of the Company. Such approval shall be obtained within twelve
(12)
months of the date this Plan is amended and restated by the
Committee.
ANNEX
B
AGREEMENT
AND PLAN OF MERGER FOR REINCORPORATION
AGREEMENT
AND PLAN OF MERGER
OF
SOLAR
ENERTECH CORP.
(A
NEVADA CORPORATION)
WITH
AND
INTO
SOLAR
ENERTECH CORP.
(A
DELAWARE CORPORATION)
This
AGREEMENT AND PLAN OF MERGER (this “
Agreement
”)
dated
as of _______ __, 2008 by and between Solar Enertech Corp., a Nevada corporation
(“
Solar
Enertech
Nevada
”),
and
Solar Enertech Corp., a Delaware corporation and wholly-owned subsidiary
of
Solar Enertech Nevada (“
Solar
Enertech
Nevada
”),
is
made with respect to the following facts.
RECITALS
WHEREAS,
Solar Enertech Nevada is a corporation duly organized and existing under
the
laws of the State of Nevada;
WHEREAS,
Solar Enertech Delaware is a corporation duly organized and existing under
the
laws of the State of Delaware;
WHEREAS,
the respective Boards of Directors for Solar Enertech Nevada and Solar
Enertech
Delaware have determined that, for purposes of effecting the reincorporation
of
Solar Enertech Nevada in the State of Delaware, it is advisable and to
the
advantage of said two corporations and their stockholders that Solar Enertech
Nevada merge with and into Solar Enertech Delaware so that Solar Enertech
Delaware is the surviving corporation on the terms provided herein (the
“
Merger
”);
and
WHEREAS,
the respective Board of Directors Solar Enertech Nevada and Solar Enertech
Delaware, the stockholders of Solar Enertech Nevada, and the sole stockholder
of
Solar Enertech Delaware have adopted and approved this Agreement.
NOW
THEREFORE, based upon the foregoing, and in consideration of the mutual
promises
and covenants contained herein and other good and valuable consideration,
the
receipt of which is hereby acknowledged, the parties to this Agreement
agree as
follows.
ARTICLE
I
THE
MERGER
1.1
The
Merger; Surviving Corporation
.
Subject
to the terms and conditions set forth in this Agreement, at the Effective
Time
(as defined in Section 1.5 below), Solar Enertech Nevada shall be merged
with
and into Solar Enertech Delaware, subject to and upon the terms and conditions
provided in this Agreement and the applicable provisions of the General
Corporation Law of the State of Delaware (the “
DGCL
”)
and
the applicable provisions of the Nevada Revised Statutes (the “
NRS
”),
and
the separate existence of Solar Enertech Nevada shall cease. Solar Enertech
Delaware shall be the surviving entity (the “
Surviving
Corporation
”)
and
shall continue to be governed by the DGCL.
1.2
Constituent
Corporations
.
The
name, address, jurisdiction of organization and governing law of each of
the
constituent corporations is as follows:
(a)
Solar
Enertech Nevada: Solar Enertech Corp., a corporation organized under and
governed by the laws of the State of Nevada with an address of 1600 Adams
Drive,
Menlo Park, CA 94025; and
(b)
Solar
Enertech Delaware: Solar Enertech Corp., a corporation organized under
and
governed by the laws of the State of Delaware with an address of 1600 Adams
Drive, Menlo Park, CA 94025.
1.3
Surviving
Corporation
.
Solar
Enertech Corp., a corporation organized under the laws of the State of
Delaware,
shall be the surviving corporation.
1.4
Address
of Principal Office of the Surviving Corporation
.
The
address of Solar Enertech Delaware, as the Surviving Corporation, shall
be 1600
Adams Drive, Menlo Park, CA 94025.
1.5
Effective
Time
.
The
Merger shall become effective (the “
Effective
Time
”),
on
the date upon which the last to occur of the following shall have been
completed:
(a)
This
Agreement and the Merger shall have been adopted and recommended to the
stockholders of Solar Enertech Nevada by the Board of Directors of Solar
Enertech Nevada and approved by a majority of the voting power of the
outstanding stock of Solar Enertech Nevada entitled to vote thereon, in
accordance with the requirements of the NRS;
(b)
This
Agreement and the Merger shall have been adopted by the Board of Directors
of
Solar Enertech Delaware and approved by a majority of the outstanding stock
of
Solar Enertech Delaware in accordance with the requirements of the
DGCL;
(c)
The
effective date of the Merger as stated in the executed Articles of Merger
(the
“
Articles
of Merger
”)
filed
with the Secretary of State for the State of Nevada; and
(d)
An
executed Certificate of Merger (the “
Certificate
of Merger
”)
or an
executed counterpart to this Agreement meeting the requirements of the
DGCL
shall have been filed with the Secretary of State of the State of
Delaware.
1.6
Effect
of the Merger
.
The
effect of the Merger shall be as provided in this Agreement, the Articles
of
Merger, the Certificate of Merger and the applicable provisions of the
DGCL and
the NRS. Without limiting the foregoing, from and after the Effective Time,
all
the property, rights, privileges, powers and franchises of Solar Enertech
Nevada
shall vest in Solar Enertech Delaware, as the Surviving Corporation, and
all
debts, liabilities and duties of Solar Enertech Nevada shall become the
debts,
liabilities and duties of Solar Enertech Delaware, as the Surviving
Corporation.
1.7
Certificate
of Incorporation; Bylaws
.
(a)
From
and
after the Effective Time, the Certificate of Incorporation of Solar Enertech
Delaware shall be the Certificate of Incorporation of the Surviving Corporation;
and
(b)
From
and
after the Effective Time, the Bylaws of Solar Enertech Delaware as in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Corporation.
1.8
Officers
and Directors
.
The
officers of Solar Enertech Nevada immediately prior to the Effective Time
shall
continue as officers of the Surviving Corporation and remain officers until
their successors are duly appointed or their prior resignation, removal
or
death. The directors of Solar Enertech Nevada immediately prior to the
Effective
Time shall continue as directors of the Surviving Corporation and shall
remain
as directors for the term until their successors are duly elected and qualified
or their prior resignation, removal or death.
ARTICLE
II
CONVERSION
OF SHARES
2.1
Conversion
of Common Stock of Solar Enertech
Nevada
.
At the
Effective Time by virtue of the Merger, and without any action on part
of the
holders of any outstanding shares of Solar Enertech Nevada:
(a)
each
share of common stock of Solar Enertech Nevada, par value of $0.001 per
share,
issued and outstanding immediately prior to the Effective Time shall be
converted (without the surrender of stock certificates or any other action)
into
one (1) fully paid and non-assessable share of common stock, par value
$0.001,
of Solar Enertech Delaware’s common stock, $0.001 par value per share (the
“
Common
Stock
”);
and
(b)
the
one
thousand shares of Solar Enertech Delaware common stock owned by Solar
Enertech
Nevada shall be canceled at the Effective Time.
2.2
Solar
Enertech Nevada Options, Stock Purchase Rights, Convertible
Securities
.
(a)
From
and
after the Effective Time, the Surviving Corporation shall assume the obligations
of Solar Enertech Nevada under, and continue, the option plans and all
other
employee benefit plans of Solar Enertech Nevada. Each outstanding and
unexercised option, other right to purchase, or security convertible into
or
exercisable for Solar Enertech Nevada common stock (a “
Right
”)
shall
become, an option, right to purchase or a security convertible into the
Surviving Corporation’s Common Stock, on the basis of one share of the Surviving
Corporation’s Common Stock for each one share of Solar Enertech Nevada common
stock issuable pursuant to any such Right, on the same terms and conditions
and
at an exercise price equal to the exercise price applicable to any such
Solar
Enertech Nevada Right from and after the Effective Time. This paragraph
2.2(a)
shall not apply to currently issued and outstanding Solar Enertech Nevada
common
stock. Such common stock is subject to paragraph 2.1 hereof.
(b)
A
number
of shares of the Surviving Corporation’s Common Stock shall be reserved for
issuance upon the exercise of options and convertible securities equal
to the
number of shares of Solar Enertech Nevada common stock so reserved immediately
prior to the Effective Time.
2.3
Certificates
.
At and
after the Effective Time, all of the outstanding certificates that immediately
prior thereto represented shares of common stock, options, warrants or
other
securities of Solar Enertech Nevada shall be deemed for all purposes to
evidence
ownership of and to represent the shares of the respective common stock,
options, warrants or other securities of Solar Enertech Delaware, as the
case
may be, into which the shares of common stock, options, warrants or other
securities of Solar Enertech Nevada represented by such certificates have
been
converted as herein provided and shall be so registered on the books and
records
of the Surviving Corporation or its transfer agent. The registered owner
of any
such outstanding certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to the Surviving Corporation
or its transfer agent, have and be entitled to exercise any voting and
other
rights with respect to, and to receive any dividends and other distributions
upon, the shares of common stock, options, warrants or other securities
of Solar
Enertech Delaware, as the case may be, evidenced by such outstanding
certificate, as above provided.
ARTICLE
III
TRANSFER
AND CONVEYANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
3.1
Transfer,
Conveyance and Assumption
.
At the
Effective Time, Solar Enertech Delaware shall continue in existence as
the
Surviving Corporation, and without further action on the part of Solar
Enertech
Nevada or Solar Enertech Delaware, succeed to and possess all the rights,
privileges and powers of Solar Enertech Nevada, and all the assets and
property
of whatever kind and character of Solar Enertech Nevada shall vest in Solar
Enertech Delaware without further act or deed. Thereafter, Solar Enertech
Delaware, as the Surviving Corporation, shall be liable for all of the
liabilities and obligations of Solar Enertech Nevada, and any claim or
judgment
against Solar Enertech Nevada may be enforced against Solar Enertech Delaware
as
the Surviving Corporation, in accordance with Section 259 of the
DGCL.
3.2
Further
Assurances
.
If at
any time Solar Enertech Delaware shall consider or be advised that any
further
assignment, conveyance or assurance is necessary or advisable to vest,
perfect
or confirm of record in it the title to any property or right of Solar
Enertech
Nevada, or otherwise to carry out the provisions hereof, officers of Solar
Enertech Nevada as of the Effective Time shall execute and deliver any
and all
proper deeds, assignments and assurances, and do all things necessary and
proper
to vest, perfect or convey title to such property or right in Solar Enertech
Delaware and otherwise to carry out the provisions hereof.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF SOLAR ENERTECH NEVADA
Solar
Enertech Nevada represents and warrants to Solar Enertech Delaware as
follows:
4.1
Validity
of Actions
.
Solar
Enertech Nevada (a) is a corporation duly formed, validly existing and
in good
standing under the laws of the State of Nevada, and (b) has full power
and
authority to enter into this Agreement and to carry out all acts contemplated
by
it. This Agreement has been duly executed and delivered on behalf of Solar
Enertech Nevada. Solar Enertech Nevada has received all necessary authorization
to enter into this Agreement, and this Agreement is a legal, valid and
binding
obligation of Solar Enertech Nevada, enforceable against Solar Enertech
Nevada
in accordance with its terms. The execution and delivery of this Agreement
and
consummation of the transactions contemplated by it will not violate any
provision of Solar Enertech Nevada’s Articles of Incorporation or Bylaws, nor
violate, conflict with or result in any breach of any of the terms, provisions
or conditions of, or constitute a default or cause acceleration of, any
indebtedness under any agreement or instrument to which Solar Enertech
Nevada is
a party or by which it or its assets may be bound, or cause a breach of
any
applicable Federal or state law or governmental regulation, or any applicable
order, judgment, writ, award, injunction or decree of any court or governmental
instrumentality.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF SOLAR ENERTECH DELAWARE
Solar
Enertech Delaware represents and warrants to Solar Enertech Nevada as
follows:
5.1
Validity
of Actions
.
Solar
Enertech Delaware (a) is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and (b) has full power and authority
to
enter into this Agreement and to carry out all acts contemplated by it.
This
Agreement has been duly executed and delivered on behalf of Solar Enertech
Delaware. Solar Enertech Delaware has received all necessary authorization
to
enter into this Agreement, and this Agreement is a legal, valid and binding
obligation of Solar Enertech Delaware, enforceable against Solar Enertech
Delaware in accordance with its terms. The execution and delivery of this
Agreement and consummation of the transactions contemplated by it will
not
violate any provision of the Certificate of Incorporation or Bylaws of
Solar
Enertech Delaware nor violate, conflict with or result in any breach of
any of
the terms, provisions or conditions of, or constitute a default or cause
acceleration of, any indebtedness under any agreement or instrument to
which
Solar Enertech Delaware is a party or by which it or its assets may be
bound, or
cause a breach of any applicable federal or state law or regulation, or
any
applicable order, judgment, writ, award, injunction or decree of any court
or
governmental instrumentality.
ARTICLE
VI
FURTHER
ACTIONS
6.1
Additional
Documents
.
At the
request of any party, each party will execute and deliver any additional
documents and perform in good faith such acts as reasonably may be required
in
order to consummate the transactions contemplated by this
Agreement.
ARTICLE
VII
CONDITIONS
TO THE MERGER
The
obligation of Solar Enertech Delaware and of Solar Enertech Nevada to consummate
the Merger shall be subject to the satisfaction or waiver of the following
conditions:
7.1
Bring
Down
.
The
representations and warranties set forth in this Agreement shall be true
and
correct in all material respects at, and as of, the Effective Time as if
then
made as of the Effective Time.
7.2
No
Statute, Rule or Regulation Affecting
.
At the
Effective Time, there shall be no statute, or regulation enacted or issued
by
the United States or any State, or by a court, which prohibits or challenges
the
consummation of the Merger.
7.3
Satisfaction
of Conditions
.
All
other conditions to the Merger set forth herein shall have been
satisfied.
ARTICLE
VIII
TERMINATION;
AMENDMENT; WAIVER
8.1
Termination
.
This
Agreement and the transactions contemplated hereby may be terminated at
any time
prior to the filing of the Certificate of Merger with the Secretary of
State of
the State of Delaware, by mutual consent of the Board of Directors of Solar
Enertech Delaware and the Board of Directors of Solar Enertech
Nevada.
8.2
Amendment
.
The
parties hereto may, by written agreement, amend this Agreement at any time
prior
to the filing of the Certificate of Merger with the Secretary of State
of the
State of Delaware, provided that any such amendment must first be approved
by
the Board of Directors of Solar Enertech Nevada.
8.3
Waiver
.
At any
time prior to the Effective Time, any party to this Agreement may extend
the
time for the performance of any of the obligations or other acts of any
other
party hereto, or waive compliance with any of the agreements of any other
party
or with any condition to the obligations hereunder, in each case only to
the
extent that such obligations, agreements and conditions are intended for
its
benefit.
ARTICLE
IX
MISCELLANEOUS
9.1
Expenses
.
If the
Merger becomes effective, all of the expenses incurred in connection with
the
Merger shall be paid by Solar Enertech Delaware.
9.2
Notice
.
Except
as otherwise specifically provided, any notices to be given hereunder shall
be
in writing and shall be deemed given upon personal delivery or upon mailing
thereof, if mailed by certified mail, return receipt requested, to the
following
addresses (or to such other address or addresses shall be specified in
any
notice given):
In
the
case of Solar Enertech Delaware:
SOLAR
ENERTECH CORP.
1600
Adams Drive
Menlo
Park, CA 94025
In
the
case of Solar Enertech Nevada:
SOLAR
ENERTECH CORP.
1600
Adams Drive
Menlo
Park, CA 94025
9.3
Non-Assignability
.
This
Agreement shall not be assignable by any of the parties hereto.
9.4
Entire
Agreement
.
This
Agreement contains the parties’ entire understanding and agreement with respect
to its subject matter, and any and all conflicting or inconsistent discussions,
agreements, promises, representations and statements, if any, between the
parties or their representatives that are not incorporated in this Agreement
shall be null and void and are merged into this Agreement.
9.5
Governing
Law
.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Delaware, without giving effect to conflicts of law
principles.
9.6
Headings
.
The
various section headings are inserted for purposes of reference only and
shall
not affect the meaning or interpretation of this Agreement or any provision
hereof.
9.7
Gender;
Number
.
All
references to gender or number in this Agreement shall be deemed interchangeably
to have a masculine, feminine, neuter, singular or plural meaning, as the
sense
of the context requires.
9.8
Severability
.
The
provisions of this Agreement shall be severable, and any invalidity,
unenforceability or illegality of any provision or provisions of this Agreement
shall not affect any other provision or provisions of this Agreement, and
each
term and provision of this Agreement shall be construed to be valid and
enforceable to the full extent permitted by law.
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
by an
officer duly authorized to do so, all as of the day and year first above
written.
|
SOLAR
ENERTECH CORP.,
a
Delaware Corporation
|
|
|
SOLAR
ENERTECH CORP.,
a
Nevada Corporation
|
|
By:
/s/
|
|
|
By:
/s/
|
|
Anthea
Chung
|
|
|
Leo
Shi Young
|
|
President
|
|
|
President
and Chief Executive Officer
|
ANNEX
C
SOLAR
ENERTECH CORP. (DELAWARE)
CERTIFICATE
OF INCORPORATION
CERTIFICATE
OF INCORPORATION
OF
SOLAR
ENERTECH CORP.
FIRST
:
The
name of the corporation is:
Solar
Enertech Corp.
SECOND
:
The
address of its registered office in the State of Delaware is 3500 South
DuPont
Highway in the City of Dover, County of Kent. The name of its registered
agent
at such address is Incorporating Services, Ltd.
THIRD
:
The
nature of the business or purposes to be conducted or promoted is to engage
in
any lawful act or activity for which corporations may be organized under
the
General Corporation Law of Delaware.
FOURTH
:
The
corporation is authorized to issue one class of stock, to be designated
“Common
Stock,” with a par value of $0.001 per share. The total number of shares of
Common Stock that the corporation shall have authority to issue is
400,000,000.
FIFTH
:
The
business and affairs of the corporation shall be managed by or under the
direction of the Board of Directors. In addition to the powers and authority
expressly conferred upon them by statute or by this Certificate of Incorporation
or the Bylaws of the corporation, the directors are hereby empowered to
exercise
all such powers and do all such acts and things as may be exercised or
done by
the corporation. Election of directors need not be by written ballot, unless
the
Bylaws so provide.
SIXTH
:
The
Board of Directors is authorized to make, adopt, amend, alter or repeal
the
Bylaws of the corporation. The stockholders shall also have power to make,
adopt, amend, alter or repeal the Bylaws of the corporation.
SEVENTH
:
The
name and mailing address of the incorporator is:
Yem
Mai
DLA
Piper
US LLP
2000
University Avenue
East
Palo
Alto, CA 94303
EIGHTH
:
A
director of the Corporation shall not be personally liable to the Corporation
or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not
in good faith or which involved intentional misconduct or a knowing violation
of
law, (iii) under Section 174 of the Delaware General Corporation Law, or
(iv)
for any transaction from which the director derived an improper personal
benefit.
If
the
Delaware General Corporation Law is hereafter amended to authorize the
further
elimination or limitation of the liability of a director, then the liability
of
a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so
amended.
Any
repeal or modification of the foregoing provisions of this Article EIGHTH
by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal
or modification.
NINTH
:
The
Corporation reserves the right to amend or repeal any provision contained
in
this Certificate of Incorporation in the manner prescribed by the laws
of the
State of Delaware and all rights conferred upon stockholders are granted
subject
to this reservation.
*
* * *
*
ANNEX
D
SOLAR
ENERTECH CORP. (DELAWARE)
BYLAWS
BYLAWS
OF
SOLAR
ENERTECH CORP.
ARTICLE
I
STOCKHOLDERS
1.1
Place
of Meetings
.
All
meetings of stockholders shall be held at such place (if any) within or
without
the State of Delaware as may be designated from time to time by the Board
of
Directors (the “Board”).
1.2
Annual
Meeting
.
The
annual meeting of stockholders for the election of directors and for the
transaction of such other business as may properly be brought before the
meeting
shall be held on a date to be fixed by the Board of Directors at the time
and
place to be fixed by the Board of Directors and stated in the notice of
the
meeting. In lieu of holding an annual meeting of stockholders at a designated
place, the Board of Directors may, in its sole discretion, determine that
any
annual meeting of stockholders may be held solely by means of remote
communication.
1.3
Special
Meetings
.
Special
meetings of stockholders may be called at any time by the Board of Directors
or
the Chairman of the Board, for any purpose or purposes prescribed in the
notice
of the meeting and shall be held at such place (if any), on such date and
at
such time as the Board may fix. In lieu of holding a special meeting of
stockholders at a designated place, the Board of Directors may, in its
sole
discretion, determine that any special meeting of stockholders may be held
solely by means of remote communication. Business transacted at any special
meeting of stockholders shall be confined to the purpose or purposes stated
in
the notice of meeting.
1.4
Notice
of Meetings
.
(a)
Written
notice of each meeting of stockholders, whether annual or special, shall
be
given not less than 10 nor more than 60 calendar days before the date on
which
the meeting is to be held, to each stockholder entitled to vote at such
meeting,
except as otherwise provided herein or as required by law (meaning here
and
hereafter, as required from time to time by the Delaware General Corporation
Law
or the Certificate of Incorporation). The notice of any meeting shall state
the
place, if any, date and hour of the meeting, and the means of remote
communication, if any, by which stockholders and proxy holders may be deemed
to
be present in person and vote at such meeting. The notice of a special
meeting
shall state, in addition, the purpose or purposes for which the meeting
is
called. If mailed, notice is given when deposited in the United States
mail,
postage prepaid, directed to the stockholder at his or her address as it
appears
on the records of the corporation.
(b)
Notice
to
stockholders may be given by personal delivery, mail, or, with the consent
of
the stockholder entitled to receive notice, by facsimile or other means
of
electronic transmission. If mailed, such notice shall be delivered by postage
prepaid envelope directed to each stockholder at such stockholder’s address as
it appears in the records of the corporation and shall be deemed given
when
deposited in the United States mail. Notice given by electronic transmission
pursuant to this subsection shall be deemed given: (1) if by facsimile
telecommunication, when directed to a facsimile telecommunication number
at
which the stockholder has consented to receive notice; (2) if by electronic
mail, when directed to an electronic mail address at which the stockholder
has
consented to receive notice; (3) if by posting on an electronic network
together
with separate notice to the stockholder of such specific posting, upon
the later
of (A) such posting and (B) the giving of such separate notice; and (4)
if by
any other form of electronic transmission, when directed to the stockholder.
An
affidavit of the secretary or an assistant secretary or of the transfer
agent or
other agent of the corporation that the notice has been given by personal
delivery, by mail, or by a form of electronic transmission shall, in the
absence
of fraud, be prima facie evidence of the facts stated therein.
(c)
Notice
of
any meeting of stockholders need not be given to any stockholder if waived
by
such stockholder either in a writing signed by such stockholder or by electronic
transmission, whether such waiver is given before or after such meeting
is held.
If such a waiver is given by electronic transmission, the electronic
transmission must either set forth or be submitted with information from
which
it can be determined that the electronic transmission was authorized by
the
stockholder.
1.5
Voting
List
.
The
officer who has charge of the stock ledger of the corporation shall prepare,
at
least 10 calendar days before each meeting of stockholders, a complete
list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order
for each class of stock and showing the address of each stockholder and
the
number of shares registered in the name of each stockholder. Such list
shall be
open to the examination of any such stockholder, for any purpose germane
to the
meeting, during ordinary business hours, for a period of at least 10 calendar
days prior to the meeting, in the manner provided by law. The list shall
also be
produced and kept at the time and place of the meeting during the whole
time of
the meeting, and may be inspected by any stockholder who is present. This
list
shall determine the identity of the stockholders entitled to vote at the
meeting
and the number of shares held by each of them.
1.6
Quorum
.
Except
as otherwise provided by law or these Bylaws, the holders of a majority
of the
shares of the capital stock of the corporation entitled to vote at the meeting,
present in person or represented by proxy, shall constitute a quorum for
the
transaction of business. Where a separate class vote by a class or classes
or
series is required, a majority of the shares of such class or classes or
series
present in person or represented by proxy shall constitute a quorum entitled
to
take action with respect to that vote on that matter. If a quorum shall
fail to
attend any meeting, any meeting of stockholders may be adjourned to any
other
time and to any other place at which a meeting of stockholders may be held
under
these Bylaws by the chairman of the meeting or, in the absence of such
person,
by any officer entitled to preside at or to act as secretary of such meeting,
or
by the holders of a majority of the shares of stock present or represented
at
the meeting and entitled to vote, although less than a quorum.
1.7
Adjournments
.
Any
meeting of stockholders may be adjourned to any other time and to any other
place at which a meeting of stockholders may be held under these Bylaws
by the
chairman of the meeting or, in the absence of such person, by any officer
entitled to preside at or to act as secretary of such meeting, or by the
holders
of a majority of the shares of stock present or represented at the meeting
and
entitled to vote, although less than a quorum. When a meeting is adjourned
to
another place, date or time, written notice need not be given of the adjourned
meeting if the date, time, and place, if any, thereof, and the means of
remote
communication, if any, by which stockholders and proxy holders may be deemed
to
be present in person and vote at such adjourned meeting, are announced
at the
meeting at which the adjournment is taken; provided, however, that if the
date
of any adjourned meeting is more than 30 calendar days after the date for
which
the meeting was originally noticed, or if a new record date is fixed for
the
adjourned meeting, written notice of the place, if any, date, and time
of the
adjourned meeting and the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and
vote at
such adjourned meeting, shall be given in conformity herewith. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting. If a notice of any adjourned special
meeting
of stockholders is sent to all stockholders entitled to vote thereat, stating
that it will be held with those present constituting a quorum, then except
as
otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matters shall be determined by a majority
of the
votes cast at such meeting.
1.8
Voting
and Proxies
.
Each
stockholder shall have one vote for each share of stock entitled to vote
held of
record by such stockholder and a proportionate vote for each fractional
share so
held, unless otherwise provided by law or in the Certificate of Incorporation.
Each stockholder of record entitled to vote at a meeting of stockholders
may
vote in person or may authorize any other person or persons to vote or
act for
him or her by written proxy executed by the stockholder or his or her authorized
agent or by a transmission permitted by law and delivered to the Secretary
of
the corporation. Any copy, facsimile transmission or other reliable reproduction
of the writing or transmission created pursuant to this Section may be
substituted or used in lieu of the original writing or transmission for
any and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile transmission or other reproduction shall
be a
complete reproduction of the entire original writing or
transmission.
1.9
Action
at Meeting
.
When a
quorum is present at any meeting, any election of directors shall be determined
by a plurality of the votes cast by the stockholders entitled to vote at
the
election, and any other matter shall be determined by a majority in voting
power
of the shares present in person or represented by proxy and entitled to
vote on
the matter (or if there are two or more classes of stock entitled to vote
as
separate classes, then in the case of each such class, a majority of the
shares
of each such class present in person or represented by proxy and entitled
to
vote on the matter) shall decide such matter, except when a different vote
is
required by express provision of law, the Certificate of Incorporation
or these
Bylaws.
All
voting, including on the election of directors, but excepting where otherwise
required by law, may be by a voice vote provided, however, that upon demand
therefor by a stockholder entitled to vote or his or her proxy, a vote
by ballot
shall be taken. Each ballot shall state the name of the stockholder or
proxy
voting and such other information as may be required under the procedure
established for the meeting. The corporation may, and to the extent required
by
law, shall, in advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting and make a written report thereof. The
corporation may designate one or more persons as an alternate inspector
to
replace any inspector who fails to act. If no inspector or alternate is
able to
act at a meeting of stockholders, the person presiding at the meeting may,
and
to the extent required by law, shall, appoint one or more inspectors to
act at
the meeting. Each inspector, before entering upon the discharge of his
or her
duties, shall take and sign an oath to faithfully execute the duties of
inspector with strict impartiality and according to the best of his or
her
ability.
1.10
Notice
of Stockholder Business
.
(a)
At
an
annual or special meeting of the stockholders, only such business shall
be
conducted as shall have been properly brought before the meeting. To be
properly
brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction
of
the Board of Directors, (ii) properly brought before the meeting by or at
the direction of the Board of Directors, or (iii) properly brought before
the meeting by a stockholder of record. For business to be properly brought
before an annual meeting by a stockholder, it must be a proper matter for
stockholder action under the Delaware General Corporation Law and the
stockholder must have given timely notice thereof in writing to the Secretary
of
the corporation. To be timely, a stockholder proposal to be presented at
an
annual meeting shall be received at the corporation’s principal executive
offices not less than 120 calendar days prior to the first anniversary
of the
date that the corporation’s (or its predecessor’s) proxy statement was released
to stockholders in connection with the previous year’s annual meeting of
stockholders, except that if no annual meeting was held in the previous
year or
the date of the annual meeting is more than 30 calendar days earlier than
the
date contemplated at the time of the previous year’s proxy statement, notice by
the stockholders to be timely must be received not later than the close
of
business on the 10th day following the day on which the date of the annual
meeting is publicly announced. “Public announcement” for purposes hereof shall
have the meaning set forth in Article II, Section 2.15(c) of these
Bylaws. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend
any time
period) for the giving of a stockholder’s notice as described above. To be
properly brought before a special meeting, business must be brought before
the
meeting by or at the direction of the Board of Directors.
(b)
A
stockholder’s notice to the Secretary of the corporation shall set forth as to
each matter the stockholder proposes to bring before the annual meeting
(i) a brief description of the business desired to be brought before the
meeting, (ii) the name and address, as they appear on the Company’s books,
of the stockholder proposing such business and the name and address of
the
beneficial owner, if any, on whose behalf the business is being brought,
(iii) the class and number of shares of the corporation which are owned
beneficially and of record by the stockholder and such other beneficial
owner
,
(iv) any material interest of the stockholder and such other beneficial
owner in such business and (v) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and form of proxy to holders
of at
least the percentage of the corporation's voting shares required under
applicable law to carry the proposal.
(c)
Notwithstanding
the foregoing provisions of this Bylaw, a stockholder shall also comply
with all
applicable requirements of the Securities Exchange Act of 1934 (the “Exchange
Act”) and the rules and regulations thereunder with respect to the matters
set
forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any
rights
of stockholders to request inclusion of proposals in the corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
1.11
Conduct
of Business
.
At
every meeting of the stockholders, the Chairman of the Board, or, in his
or her
absence, the President, or, in his or her absence, such other person as
may be
appointed by the Board of Directors, shall act as chairman. The Secretary
of the
corporation or a person designated by the chairman of the meeting shall
act as
secretary of the meeting. Unless otherwise approved by the chairman of
the
meeting, attendance at the stockholders’ meeting is restricted to stockholders
of record, persons authorized in accordance with Section 1.8 of these
Bylaws to act by proxy, and officers of the corporation.
The
chairman of the meeting shall call the meeting to order, establish the
agenda,
and conduct the business of the meeting in accordance therewith or, at
the
chairman’s discretion, it may be conducted otherwise in accordance with the
wishes of the stockholders in attendance. The date and time of the opening
and
closing of the polls for each matter upon which the stockholders will vote
at
the meeting shall be announced at the meeting.
The
chairman shall also conduct the meeting in an orderly manner, rule on the
precedence of, and procedure on, motions and other procedural matters,
and
exercise discretion with respect to such procedural matters with fairness
and
good faith toward all those entitled to take part. Without limiting the
foregoing, the chairman may (a) restrict attendance at any time to bona
fide
stockholders of record and their proxies and other persons in attendance
at the
invitation of the presiding officer or Board of Directors, (b) restrict
use of
audio or video recording devices at the meeting, and (c) impose reasonable
limits on the amount of time taken up at the meeting on discussion in general
or
on remarks by any one stockholder. Should any person in attendance become
unruly
or obstruct the meeting proceedings, the chairman shall have the power
to have
such person removed from the meeting. Notwithstanding anything in the Bylaws
to
the contrary, no business shall be conducted at a meeting except in accordance
with the procedures set forth in this Section 1.11 and Section 1.10
above. The chairman of a meeting may determine and declare to the meeting
that
any proposed item of business was not brought before the meeting in accordance
with the provisions of this Section 1.11 and Section 1.10, and if he
or she should so determine, he or she shall so declare to the meeting and
any
such business not properly brought before the meeting shall not be
transacted.
1.12
Stockholder
Action Without Meeting
.
The
stockholders may take any action without a meeting that they could properly
take
at a meeting, if one or more written consents setting forth the action
so taken
are signed by all of the stockholders entitled to vote with respect to
the
subject matter and are delivered to the Corporation for inclusion in the
minutes
or filing with the corporate records. Actions taken under this section
are
effective when all consents are in the possession of the Corporation, unless
otherwise specified in the consent. A stockholder may withdraw consent
only be
delivering a written notice of withdrawal to the Corporation prior to the
time
that all consents are in the possession of the Corporation.
1.13
Meetings
by Remote Communication
.
If
authorized by the Board of Directors, and subject to such guidelines and
procedures as the Board may adopt, stockholders and proxy holders not physically
present at a meeting of stockholders may, by means of remote communication,
participate in the meeting and be deemed present in person and vote at
the
meeting, whether such meeting is to be held at a designated place or solely
by
means of remote communication, provided that (i) the corporation shall
implement
reasonable measures to verify that each person deemed present and permitted
to
vote at the meeting by means of remote communication is a stockholder or
proxy
holder, (ii) the corporation shall implement reasonable measures to provide
such
stockholders and proxy holders a reasonable opportunity to participate
in the
meeting and to vote on matters submitted to the stockholders, including
an
opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (iii) if any stockholder or proxy
holder
votes or takes other action at the meeting by means of remote communication,
a
record of such vote or other action shall be maintained by the
corporation.
ARTICLE
II
BOARD
OF DIRECTORS
2.1
General
Powers
.
The
business and affairs of the corporation shall be managed by or under the
direction of a Board of Directors, who may exercise all of the powers of
the
corporation except as otherwise provided by law or the Certificate of
Incorporation. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may exercise
the
powers of the full Board until the vacancy is filled.
2.2
Number
and Term of Office
.
The
number of directors shall initially be one (1) and, thereafter, shall be
fixed
from time to time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether
or
not there exist any vacancies in previously authorized directorships at
the time
any such resolution is presented to the Board for adoption). Directors
shall be
elected at each annual meeting of the stockholders to hold office until
the
expiration of their respective term, but if any such annual meeting is
not held
or the directors are not elected at any annual meeting, the directors may
be
elected at any special meeting of stockholders held for that purpose, or
at the
next annual meeting of stockholders held thereafter. Each director, including
a
director elected to fill a vacancy, shall hold office until the expiration
of
the term for which elected and until a successor has been elected and qualified
or until his or her earlier resignation or removal or his or her office
has been
declared vacant in the manner provided in these bylaws. Directors need
not be
stockholders.
2.3
Vacancies
and Newly Created Directorships
.
Newly
created directorships resulting from any increase in the authorized number
of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification or other cause (including
removal
from office by a vote of the stockholders) may be filled only by a majority
vote
of the directors then in office, though less than a quorum (and not by
stockholders), or by the sole remaining director and directors so chosen
shall
hold office until the expiration of the applicable term for that particular
director seat or until such director’s successor shall have been duly elected
and qualified. No decrease in the number of authorized directors shall
shorten
the term of any incumbent director.
2.4
Resignation
.
Any
director may resign by delivering notice in writing or by electronic
transmission to the President, Chairman of the Board or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other
event.
2.5
Removal
.
Subject
to the rights of the holders of any series of Preferred Stock then outstanding,
any directors, or the entire Board of Directors, may be removed from office
at
any time, with or without cause, by the affirmative vote of the holders
of a
majority of the voting power of all of the outstanding shares of capital
stock
entitled to vote generally in the election of directors, voting together
as a
single class. Vacancies in the Board of Directors resulting from such removal
may be filled by a majority of the directors then in office, though less
than a
quorum, or by the sole remaining director. Directors so chosen shall hold
office
until the term of office of the class to which they have been elected
expires.
2.6
Regular
Meetings
.
Regular
meetings of the Board of Directors may be held without notice at such time
and
place, either within or without the State of Delaware, as shall be determined
from time to time by the Board of Directors; provided that any director
who is
absent when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may be held
without
notice immediately after and at the same place as the annual meeting of
stockholders.
2.7
Special
Meetings
.
Special
meetings of the Board of Directors may be called by the Chairman of the
Board,
the President or two or more directors and may be held at any time and
place,
within or without the State of Delaware.
2.8
Notice
of Special Meetings
.
Notice
of any special meeting of directors shall be given to each director by
whom it
is not waived by the Secretary or by the officer or one of the directors
calling
the meeting. Notice shall be duly given to each director by (i) giving
notice to such director in person or by telephone, electronic transmission
or
voice message system at least 24 hours in advance of the meeting,
(ii) sending a facsimile to his or her last known facsimile number, or
delivering written notice by hand to his or her last known business or
home
address, at least 24 hours in advance of the meeting, or (iii) mailing
written notice to his or her last known business or home address at least
three
calendar days in advance of the meeting. A notice or waiver of notice of
a
meeting of the Board of Directors need not specify the purposes of the
meeting.
Unless otherwise indicated in the notice thereof, any and all business
may be
transacted at a special meeting.
2.9
Participation
in Meetings by Telephone Conference Calls or Other Methods of
Communication
.
Directors or any members of any committee designated by the directors may
participate in a meeting of the Board of Directors or such committee by
means of
conference telephone or other communications equipment by means of which
all
persons participating in the meeting can hear each other, and participation
by
such means shall constitute presence in person at such meeting.
2.10
Quorum
.
A
majority of the total number of authorized directors shall constitute a
quorum
at any meeting of the Board of Directors. In the absence of a quorum at
any such
meeting, a majority of the directors present may adjourn the meeting from
time
to time without further notice other than announcement at the meeting,
until a
quorum shall be present. Interested directors may be counted in determining
the
presence of a quorum at a meeting of the Board of Directors or at a meeting
of a
committee which authorizes a particular contract or transaction.
2.11
Action
at Meeting
.
At any
meeting of the Board of Directors at which a quorum is present, the vote
of a
majority of those present shall be sufficient to take any action, unless
a
different vote is specified by law, the Certificate of Incorporation or
these
Bylaws.
2.12
Action
by Written Consent
.
Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee of the Board of Directors may be taken without
a
meeting if all members of the Board or committee, as the case may be, consent
to
the action in writing or by electronic transmission, and the writings or
electronic transmissions are filed with the minutes of proceedings of the
Board
or committee. Such filing shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are maintained
in
electronic form.
2.13
Committees
.
The
Board of Directors may designate one or more committees, each committee
to
consist of one or more of the directors of the corporation, with such lawfully
delegated powers and duties as it therefor confers, to serve at the pleasure
of
the Board. The Board may designate one or more directors as alternate members
of
any committee, who may replace any absent or disqualified member at any
meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or she or they constitute a
quorum,
may unanimously appoint another member of the Board of Directors to act
at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the Delaware General Corporation Law,
shall
have and may exercise all the powers and authority of the Board of Directors
in
the management of the business and affairs of the corporation and may authorize
the seal of the corporation to be affixed to all papers which may require
it.
Each such committee shall keep minutes and make such reports as the Board
of
Directors may from time to time request. Except as the Board of Directors
may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by such rules, its business shall
be
conducted as nearly as possible in the same manner as is provided in these
Bylaws for the Board of Directors.
2.14
Compensation
of Directors
.
Directors may be paid such compensation for their services and such
reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director
from serving the corporation or any of its parent or subsidiary corporations
in
any other capacity and receiving compensation for such service.
2.15
Nomination
of Director Candidates
.
(a)
Subject
to the rights of holders of any class or series of Preferred Stock then
outstanding, nominations for the election of Directors at an annual meeting
may
be made by (i) the Board of Directors or a duly authorized committee thereof
or
(ii) any stockholder entitled to vote in the election of Directors generally
who
complies with the procedures set forth in this Bylaw and who is a stockholder
of
record at the time notice is delivered to the Secretary of the corporation.
Any
stockholder entitled to vote in the election of Directors generally may
nominate
one or more persons for election as Directors at an annual meeting only
if
timely notice of such stockholder’s intent to make such nomination or
nominations has been given in writing to the Secretary of the corporation.
To be
timely, a stockholder nomination for a director to be elected at an annual
meeting shall be received at the corporation’s principal executive offices not
less than 120 calendar days in advance of the first anniversary of the
date that
the corporation’s (or the corporation’s predecessor’s) proxy statement was
released to stockholders in connection with the previous year’s annual meeting
of stockholders, except that if no annual meeting was held in the previous
year
or the date of the annual meeting has been advanced by more than 30 calendar
days from the date contemplated at the time of the previous year’s proxy
statement, notice by the stockholders to be timely must be received not
later
than the close of business on the tenth day following the day on which
public
announcement of the date of such meeting is first made. Each such notice
shall
set forth: (i) the name and address of the stockholder who intends to make
the nomination, of the beneficial owner, if any, on whose behalf the nomination
is being made and of the person or persons to be nominated; (ii) a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote for the election of Directors on the date
of such
notice and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (iii) a description of all
arrangements or understandings between the stockholder or such beneficial
owner
and each nominee and any other person or persons (naming such person or
persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (iv) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement
filed
pursuant to the proxy rules of the Securities and Exchange Commission,
had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
(v) the consent of each nominee to serve as a director of the corporation
if so elected; (vi) the class and number of shares of the corporation that
are
owned beneficially and of record by such stockholder and such beneficial
owner;
and (vii) whether either such stockholder or beneficial owner intends to
deliver
a proxy statement and form of proxy to holders of at least the percentage
of the
corporation's voting shares required under applicable law to carry the
proposal.
In no event shall the public announcement of an adjournment or postponement
of
an annual meeting commence a new time period (or extend any time period)
for the
giving of a stockholder’s notice as described above. Notwithstanding the third
sentence of this Section 2.15(a), in the event that the number of Directors
to be elected at an annual meeting is increased and there is no public
announcement by the corporation naming the nominees for the additional
directorships at least 130 calendar days prior to the first anniversary
of the
date that the corporation’s (or its predecessor’s) proxy statement was released
to stockholders in connection with the previous year’s annual meeting, a
stockholder’s notice required by this Section 2.15(a) shall also be considered
timely, but only with respect to nominees for the additional directorships,
if
it shall be delivered to the Secretary at the principal executive offices
of the
corporation not later than the close of business on the 10th day following
the
day on which such public announcement is first made by the
corporation.
(b)
Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to
the
corporation’s notice of meeting by (i) or at the direction of the Board of
Directors or a committee thereof or (ii) any stockholder of the corporation
who
is entitled to vote at the meeting, who complies with the notice procedures
set
forth in this Bylaw and who is a stockholder of record at the time such
notice
is delivered to the Secretary of the corporation. In the event the corporation
calls a special meeting of stockholders for the purpose of electing one
or more
directors to the Board of Directors, any such stockholder may nominate
a person
or persons (as the case may be), for election to such position(s) as are
specified in the corporation’s notice of meeting, if the stockholder’s notice as
required by paragraph (a) of this Bylaw shall be delivered to the Secretary
at the principal executive offices of the corporation not earlier than
the 90th
day prior to such special meeting and not later than the close of business
on
the later of the 70th day prior to such special meeting or the 10th day
following the day on which public announcement is first made of the date
of the
special meeting and of the nominees proposed by the Board of Directors
to be
elected at such meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period
(or
extend any time period) for the giving of a stockholder’s notice as described
above.
(c)
For
purposes of these Bylaws, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the corporation
with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act.
(d)
Notwithstanding
the foregoing provisions of this Bylaw, a stockholder shall also comply
with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw. Nothing
in this
Bylaw shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
(e)
Only
persons nominated in accordance with the procedures set forth in this Section
2.15 shall be eligible to serve as directors. Except as otherwise provided
by
law, the chairman of the meeting shall have the power and duty (a) to determine
whether a nomination was made in accordance with the procedures set forth
in
this Section 2.15 and (b) if any proposed nomination was not made in compliance
with this Section 2.15, to declare that such nomination shall be
disregarded.
(f)
If
the
chairman of the meeting for the election of Directors determines that a
nomination of any candidate for election as a Director at such meeting
was not
made in accordance with the applicable provisions of this Section 2.15,
such nomination shall be void; provided, however, that nothing in this
Section 2.15 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages provided to holders of Preferred Stock pursuant
to the
Preferred Stock designation for any series of Preferred Stock.
ARTICLE
III
OFFICERS
3.1
Enumeration
.
The
officers of the corporation shall consist of a Chief Executive Officer,
a
President, a Secretary, a Treasurer, a Chief Financial Officer and such
other
officers with such other titles as the Board of Directors shall determine,
including, at the discretion of the Board of Directors, a Chairman of the
Board
of Directors and one or more Vice Presidents and Assistant Secretaries.
The
Board of Directors may appoint such other officers as it may deem
appropriate.
3.2
Election/Appointment
.
Officers shall be elected annually by the Board of Directors at its first
meeting following the annual meeting of stockholders. Officers may be appointed
by the Board of Directors at any other meeting. The Board of Directors
may
appoint, or empower the president to appoint, such other officers and agents
as
the business of the corporation may require, each of whom shall hold office
for
such period, have such authority, and perform such duties as are provided
in
these Bylaws or as the Board of Directors may from time to time
determine.
3.3
Qualification
.
No
officer need be a stockholder. Any two or more offices may be held by the
same
person.
3.4
Tenure
.
Except
as otherwise provided by law, by the Certificate of Incorporation or by
these
Bylaws, each officer shall hold office until his or her successor is elected
and
qualified, unless a different term is specified in the vote appointing
him or
her, or until his or her earlier death, resignation or removal.
3.5
Resignation
and Removal
.
Any
officer may resign by delivering his or her written resignation to the
corporation at its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
Any
officer elected by the Board of Directors may be removed at any time, with
or
without cause, by the Board of Directors or, except in the case of an officer
chosen by the Board of Directors, by any officer upon whom such power of
removal
may be conferred by the Board of Directors.
3.6
Chairman
of the Board
.
The
Board of Directors may appoint a Chairman of the Board. If the Board of
Directors appoints a Chairman of the Board, he or she shall perform such
duties
and possess such powers as are assigned to him or her by the Board of Directors.
Unless otherwise provided by the Board of Directors, he or she shall preside
at
all meetings of the Board of Directors.
3.7
Chief
Executive Officer
.
The
Chief Executive Officer of the corporation shall, subject to the direction
of
the Board of Directors, have general supervision, direction and control
of the
business and the officers of the corporation. He or she shall preside at
all
meetings of the stockholders and, in the absence or nonexistence of a Chairman
of the Board, at all meetings of the Board of Directors. He or she shall
have
the general powers and duties of management usually vested in the chief
executive officer of a corporation, including general supervision, direction
and
control of the business and supervision of other officers of the corporation,
and shall have such other powers and duties as may be prescribed by the
Board of
Directors or these Bylaws.
3.8
President
.
Subject
to the direction of the Board of Directors and such supervisory powers
as may be
given by these Bylaws or the Board of Directors to the Chairman of the
Board or
the Chief Executive Officer, if such titles be held by other officers,
the
President shall have general supervision, direction and control of the business
and supervision of other officers of the corporation. Unless otherwise
designated by the Board of Directors, the President shall be the Chief
Executive
Officer of the corporation. The President shall have such other powers
and
duties as may be prescribed by the Board of Directors or these Bylaws.
He or she
shall have power to sign stock certificates, contracts and other instruments
of
the corporation which are authorized and shall have general supervision
and
direction of all of the other officers, employees and agents of the corporation,
other than the Chairman of the Board and the Chief Executive
Officer.
3.9
Vice
Presidents
.
Any
Vice President shall perform such duties and possess such powers as the
Board of
Directors or the President may from time to time prescribe. In the event
of the
absence, inability or refusal to act of the President, the Vice President
(or if
there shall be more than one, the Vice Presidents in the order determined
by the
Board of Directors) shall perform the duties of the President and when
so
performing shall have at the powers of and be subject to all the restrictions
upon the President. The Board of Directors may assign to any Vice President
the
title of Executive Vice President, Senior Vice President or any other title
selected by the Board of Directors.
3.10
Secretary
and Assistant Secretaries
.
The
Secretary shall perform such duties and shall have such powers as the Board
of
Directors or the President may from time to time prescribe. In addition,
the
Secretary shall perform such duties and have such powers as are incident
to the
office of the Secretary, including, without limitation, the duty and power
to
give notices of all meetings of stockholders and special meetings of the
Board
of Directors, to keep a record of the proceedings of all meetings of
stockholders and the Board of Directors, to maintain a stock ledger and
prepare
lists of stockholders and their addresses as required, to be custodian
of
corporate records and the corporate seal and to affix and attest to the
same on
documents.
Any
Assistant Secretary shall perform such duties and possess such powers as
the
Board of Directors, the Chief Executive Officer, the President or the Secretary
may from time to time prescribe. In the event of the absence, inability
or
refusal to act of the Secretary, the Assistant Secretary (or if there shall
be
more than one, the Assistant Secretaries in the order determined by the
Board of
Directors) shall perform the duties and exercise the powers of the
Secretary.
In
the
absence of the Secretary or any Assistant Secretary at any meeting of
stockholders or directors, the person presiding at the meeting shall designate
a
temporary secretary to keep a record of the meeting.
3.11
Treasurer
.
The
Treasurer shall perform such duties and have such powers as are incident
to the
office of treasurer, including without limitation, the duty and power to
keep
and be responsible for all funds and securities of the corporation, to
maintain
the financial records of the corporation, to deposit funds of the corporation
in
depositories as authorized, to disburse such funds as authorized, to make
proper
accounts of such funds, and to render as required by the Board of Directors
accounts of all such transactions and of the financial condition of the
corporation.
3.12
Chief
Financial Officer
.
The
Chief Financial Officer shall perform such duties and shall have such powers
as
may from time to time be assigned to him or her by the Board of Directors,
the
Chief Executive Officer or the President. Unless otherwise designated by
the
Board of Directors, the Chief Financial Officer shall be the Treasurer
of the
corporation.
3.13
Salaries
.
Officers of the corporation shall be entitled to such salaries, compensation
or
reimbursement as shall be fixed or allowed from time to time by the Board
of
Directors.
3.14
Delegation
of Authority
.
The
Board of Directors may from time to time delegate the powers or duties
of any
officer to any other officers or agents, notwithstanding any provision
hereof.
ARTICLE
IV
CAPITAL
STOCK
4.1
Issuance
of Stock
.
Subject
to the provisions of the Certificate of Incorporation, the whole or any
part of
any unissued balance of the authorized capital stock of the corporation
or the
whole or any part of any unissued balance of the authorized capital stock
of the
corporation held in its treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2
Certificates
of Stock
.
The
shares of the corporation shall be represented by certificates, provided
that
the Board of Directors may provide by resolution or resolutions that some
or all
of any class or series of its stock shall be uncertificated shares; provided,
however, that no such resolution shall apply to shares represented by a
certificate until such certificate is surrendered to the corporation. Every
holder of stock of the corporation represented by certificates, and, upon
written request to the corporation’s transfer agent or registrar, any holder of
uncertificated shares, shall be entitled to have a certificate, in such
form as
may be prescribed by law and by the Board of Directors, certifying the
number
and class of shares owned by him or her in the corporation. Each such
certificate shall be signed by, or in the name of the corporation by, the
Chairman or Vice Chairman, if any, of the Board of Directors, or the President
or a Vice President, and the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the corporation. Any or all of the
signatures on the certificate may be a facsimile.
Each
certificate for shares of stock which are subject to any restriction on
transfer
pursuant to the Certificate of Incorporation, the Bylaws, applicable securities
laws or any agreement among any number of stockholders or among such holders
and
the corporation shall have conspicuously noted on the face or back of the
certificate either the full text of the restriction or a statement of the
existence of such restriction.
4.3
Transfers
.
Except
as otherwise established by rules and regulations adopted by the Board
of
Directors, and subject to applicable law, shares of stock may be transferred
on
the books of the corporation: (i) in the case of shares represented by
a
certificate, by the surrender to the corporation or its transfer agent
of the
certificate representing such shares properly endorsed or accompanied by
a
written assignment or power of attorney properly executed, and with such
proof
of authority or authenticity of signature as the corporation or its transfer
agent may reasonably require; and (ii) in the case of uncertificated shares,
upon the receipt of proper transfer instructions from the registered owner
thereof. Except as may be otherwise required by law, the Certificate of
Incorporation or the Bylaws, the corporation shall be entitled to treat
the
record holder of stock as shown on its books as the owner of such stock
for all
purposes, including the payment of dividends and the right to vote with
respect
to such stock, regardless of any transfer, pledge or other disposition
of such
stock until the shares have been transferred on the books of the corporation
in
accordance with the requirements of these Bylaws.
4.4
Lost,
Stolen or Destroyed Certificates
.
The
corporation may issue a new certificate of stock in place of any previously
issued certificate alleged to have been lost, stolen, or destroyed, or
it may
issue uncertificated shares if the shares represented by such certificate
have
been designated as uncertificated shares in accordance with Section 4.2,
upon
such terms and conditions as the Board of Directors may prescribe, including
the
presentation of reasonable evidence of such loss, theft or destruction
and the
giving of such indemnity as the Board of Directors may require for the
protection of the corporation or any transfer agent or registrar (including
the
delivery of a bond in an amount determined by the corporation).
4.5
Record
Date
.
The
Board of Directors may fix in advance a record date for the determination
of the
stockholders entitled to notice of or to vote at any meeting of stockholders,
or
entitled to receive payment of any dividend or other distribution or allotment
of any rights in respect of any change, concession or exchange of stock,
or for
the purpose of any other lawful action. Such record date shall not precede
the
date on which the resolution fixing the record date is adopted and shall
not be
more than 60 nor less than 10 calendar days before the date of such meeting,
nor
more than 60 calendar days prior to any other action to which such record
date
relates.
If
no
record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall
be at the close of business on the day before the day on which notice is
given,
or, if notice is waived, at the close of business on the day before the
day on
which the meeting is held. If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to express consent
to
corporate action in writing without a meeting when no prior action by the
Board
of Directors is necessary shall be the day on which the first written consent
is
expressed. The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating to such purpose.
A
determination of stockholders of record entitled to notice of or to vote
at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided,
however, that the Board of Directors may fix a new record date for the
adjourned
meeting.
ARTICLE
V
GENERAL
PROVISIONS
5.1
Fiscal
Year
.
The
fiscal year of the corporation shall be as fixed by the Board of
Directors.
5.2
Corporate
Seal
.
The
corporate seal shall be in such form as shall be approved by the Board
of
Directors.
5.3
Waiver
of Notice
.
Whenever any notice whatsoever is required to be given by law, by the
Certificate of Incorporation or by these Bylaws, a waiver of such notice
either
in writing signed by the person entitled to such notice or such person’s duly
authorized attorney, or by electronic transmission or any other method
permitted
under the Delaware General Corporation Law, whether before, at or after
the time
stated in such waiver, or the appearance of such person or persons at such
meeting in person or by proxy, shall be deemed equivalent to such notice.
Neither the business nor the purpose of any meeting need be specified in
such a
waiver. Attendance at any meeting shall constitute waiver of notice except
attendance for the sole purpose of objecting to the timeliness of
notice.
5.4
Actions
with Respect to Securities of Other Corporations
.
Except
as the Board of Directors may otherwise designate, the Chief Executive
Officer
or President or any officer of the corporation authorized by the Chief
Executive
Officer or President shall have the power to vote and otherwise act on
behalf of
the corporation, in person or proxy, and may waive notice of, and act as,
or
appoint any person or persons to act as, proxy or attorney-in-fact to this
corporation (with or without power of substitution) at any meeting of
stockholders or stockholders (or with respect to any action of stockholders)
of
any other corporation or organization, the securities of which may be held
by
this corporation and otherwise to exercise any and all rights and powers
which
this corporation may possess by reason of this corporation’s ownership of
securities in such other corporation or other organization.
5.5
Evidence
of Authority
.
A
certificate by the Secretary, or an Assistant Secretary, or a temporary
Secretary, as to any action taken by the stockholders, directors, a committee
or
any officer or representative of the corporation shall as to all persons
who
rely on the certificate in good faith be conclusive evidence of such
action.
5.6
Certificate
of Incorporation
.
All
references in these Bylaws to the Certificate of Incorporation shall be
deemed
to refer to the Certificate of Incorporation of the corporation, as amended
and
in effect from time to time.
5.7
Severability
.
Any
determination that any provision of these Bylaws is for any reason inapplicable,
illegal or ineffective shall not affect or invalidate any other provision
of
these Bylaws.
5.8
Pronouns
.
All
pronouns used in these Bylaws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person or
persons
may require.
5.9
Notices
.
Except
as otherwise specifically provided herein or required by law, all notices
required to be given to any stockholder, director, officer, employee or
agent
shall be in writing and may in every instance be effectively given by hand
delivery to the recipient thereof, by depositing such notice in the mails,
postage paid, or by sending such notice by commercial courier service,
or by
facsimile or other electronic transmission, provided that notice to stockholders
by electronic transmission shall be given in the manner provided in
Section 232 of the Delaware General Corporation Law. Any such notice shall
be addressed to such stockholder, director, officer, employee or agent
at his or
her last known address as the same appears on the books of the corporation.
The
time when such notice shall be deemed to be given shall be the time such
notice
is received by such stockholder, director, officer, employee or agent,
or by any
person accepting such notice on behalf of such person, if delivered by
hand,
facsimile, other electronic transmission or commercial courier service,
or the
time such notice is dispatched, if delivered through the mails. Without
limiting
the manner by which notice otherwise may be given effectively, notice to
any
stockholder shall be deemed given: (1) if by facsimile, when directed to
a
number at which the stockholder has consented to receive notice; (2) if
by
electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (3) if by a posting on an
electronic network together with separate notice to the stockholder of
such
specific posting, upon the later of (A) such posting and (B) the giving
of such
separate notice; (4) if by any other form of electronic transmission, when
directed to the stockholder; and (5) if by mail, when deposited in the
mail,
postage prepaid, directed to the stockholder at such stockholder’s address as it
appears on the records of the corporation.
5.10
Reliance
Upon Books, Reports and Records
.
Each
director, each member of any committee designated by the Board of Directors,
and
each officer of the corporation shall, in the performance of his or her
duties,
be fully protected in relying in good faith upon the books of account or
other
records of the corporation as provided by law, including reports made to
the
corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable care.
5.11
Time
Periods
.
In
applying any provision of these Bylaws which require that an act be done
or not
done a specified number of calendar days prior to an event or that an act
be
done during a period of a specified number of calendar days prior to an
event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
5.12
Facsimile
Signatures
.
In
addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer
or
officers of the corporation may be used whenever and as authorized by the
Board
of Directors or a committee thereof.
ARTICLE
VI
AMENDMENTS
6.1
By
the
Board of Directors
.
Except
as otherwise set forth in these Bylaws, these Bylaws may be altered, amended
or
repealed or new Bylaws may be adopted by the affirmative vote of a majority
of
the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2
By
the
Stockholders
.
Except
as otherwise set forth in these Bylaws, these Bylaws may be altered, amended
or
repealed or new Bylaws may be adopted by the affirmative vote of the holders
of
at least a majority of the voting power of all of the shares of capital
stock of
the corporation issued and outstanding and entitled to vote generally in
any
election of directors, voting together as a single class. Such vote may
be held
at any annual meeting of stockholders, or at any special meeting of stockholders
provided that notice of such alteration, amendment, repeal or adoption
of new
Bylaws shall have been stated in the notice of such special
meeting.
ARTICLE
VII
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
7.1
Right
to Indemnification
.
Each
person who was or is made a party or is threatened to be made a party to
or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (“proceeding”), by reason of the fact that he or
she or a person of whom he or she is the legal representative, is or was
a
director or officer of the corporation or is or was serving at the request
of
the corporation as a director or officer of another corporation, or as
a
controlling person of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis
of
such proceeding is alleged action in an official capacity as a director
or
officer, or in any other capacity while serving as a director or officer,
shall
be indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists
or may
hereafter be amended (but, in the case of any such amendment, only to the
extent
that such amendment permits the corporation to provide broader indemnification
rights than said Law permitted the corporation to provide prior to such
amendment) against all expenses, liability and loss reasonably incurred
or
suffered by such person in connection therewith and such indemnification
shall
continue as to a person who has ceased to be a director or officer and
shall
inure to the benefit of his or her heirs, executors and administrators;
provided
,
however
,
that
except as provided in Section 7.2 of this Article VII, the corporation
shall indemnify any such person seeking indemnity in connection with a
proceeding (or part thereof) initiated by such person only if (a) such
indemnification is expressly required to be made by law, (b) the proceeding
(or part thereof) was authorized by the Board of Directors of the corporation,
(c) such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation under the
Delaware
General Corporation Law, or (d) the proceeding (or part thereof) is brought
to establish or enforce a right to indemnification or advancement under
an
indemnity agreement or any other statute or law or otherwise as required
under
Section 145 of the Delaware General Corporation Law. The rights hereunder
shall be contract rights and shall include the right to be paid expenses
incurred in defending any such proceeding in advance of its final disposition;
provided
,
however
,
that
the payment of such expenses incurred by a director or officer of the
corporation in his or her capacity as a director or officer (and not in
any
other capacity in which service was or is tendered by such person while
a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of such proceeding, shall
be
made only upon delivery to the corporation of an undertaking, by or on
behalf of
such director or officer, to repay all amounts so advanced if it should
be
determined ultimately by final judicial decision from which there is no
further
right to appeal that such director or officer is not entitled to be indemnified
under this Section or otherwise.
7.2
Right
of Claimant to Bring Suit
.
If a
claim under Section 7.1 is not paid in full by the corporation within 60
calendar days after a written claim has been received by the corporation,
or 20
calendar days in the case of a claim for advancement of expenses, the claimant
may at any time thereafter bring suit against the corporation to recover
the
unpaid amount of the claim and, if such suit is not frivolous or brought
in bad
faith, the claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding
in
advance of its final disposition where the required undertaking, if any,
has
been tendered to this corporation) that the claimant has not met the standards
of conduct which make it permissible under the Delaware General Corporation
Law
for the corporation to indemnify the claimant for the amount claimed. Neither
the failure of the corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior
to the
commencement of such action that indemnification of the claimant is proper
in
the circumstances because he or she has met the applicable standard of
conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the corporation (including its Board of Directors, independent legal
counsel
or its stockholders) that the claimant has not met such applicable standard
of
conduct, shall be a defense to the action or create a presumption that
claimant
has not met the applicable standard of conduct. In any suit brought by
the
corporation to recover an advancement of expenses pursuant to the terms
of an
undertaking, the corporation shall be entitled to recover such expenses
upon a
final judicial decision from which there is no further right to appeal
that the
indemnitee has not met any applicable standard for indemnification set
forth in
the Delaware General Corporation Law. In any suit brought by the indemnitee
to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the corporation to recover an advancement of expenses pursuant
to
the terms of an undertaking, the burden of proving that the indemnitee
is not
entitled to be indemnified, or to such advancement of expenses, shall be
on the
corporation.
7.3
Indemnification
of Employees and Agents
.
The
corporation may, to the extent authorized from time to time by the Board
of
Directors, grant rights to indemnification, and to the advancement of related
expenses, to any employee or agent of the corporation to the fullest extent
of
the provisions of this Article with respect to the indemnification of and
advancement of expenses to directors and officers of the
corporation.
7.4
Non-Exclusivity
of Rights
.
The
rights conferred on any person in this Article VII shall not be exclusive
of any
other right which such persons may have or hereafter acquire under any
statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
7.5
Indemnification
Contracts
.
The
Board of Directors is authorized to enter into a contract with any director,
officer, employee or agent of the corporation, or any person serving at
the
request of the corporation as a director, officer, employee or agent of
another
corporation, partnership, joint venture, trust or other enterprise, including
employee benefit plans, providing for indemnification rights equivalent
to or,
if the Board of Directors so determines, greater than, those provided for
in
this Article VII.
7.6
Insurance
.
The
corporation shall maintain insurance to the extent reasonably available,
at its
expense, to protect itself and any such director, officer, employee or
agent of
the corporation or another corporation, partnership, joint venture, trust
or
other enterprise against any such expense, liability or loss, whether or
not the
corporation would have the power to indemnify such person against such
expense,
liability or loss under the Delaware General Corporation Law.
7.7
Effect
of Amendment
.
Any
amendment, repeal or modification of any provision of this Article VII
shall not adversely affect any right or protection of an indemnitee or
his or
her successor existing at the time of such amendment, repeal or
modification.
ANNEX
E
NEVADA
REVISED STATUTES SECTIONS 92A.300 TO 92A.500
RIGHTS
OF DISSENTING OWNERS
NEVADA
REVISED STATUTES SECTIONS 92A.300 TO 92A.500
RIGHTS
OF DISSENTING OWNERS
NRS
92A.300 Definitions.
As
used
in
NRS
92A.300
to
92A.500
,
inclusive, unless the context otherwise requires, the words and terms defined
in
NRS
92A.305
to
92A.335
,
inclusive, have the meanings ascribed to them in those
sections.
(Added to NRS by 1995, 2086)
NRS
92A.305 “Beneficial stockholder” defined.
“Beneficial
stockholder” means a person who is a beneficial owner of shares held in a voting
trust or by a nominee as the stockholder of record.
(Added to NRS by 1995, 2087)
NRS
92A.310 “Corporate action” defined.
“Corporate
action” means the action of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS
92A.315 “Dissenter” defined.
“Dissenter”
means a stockholder who is entitled to dissent from a domestic corporation’s
action under
NRS
92A.380
and who
exercises that right when and in the manner required by
NRS
92A.400
to
92A.480
,
inclusive.
(Added to NRS by 1995, 2087; A
1999,
1631
)
NRS
92A.320 “Fair value” defined.
“Fair
value,” with respect to a dissenter’s shares, means the value of the shares
immediately before the effectuation of the corporate action to which he
objects,
excluding any appreciation or depreciation in anticipation of the corporate
action unless exclusion would be inequitable.
(Added to NRS by 1995, 2087)
NRS
92A.325 “Stockholder” defined.
“Stockholder”
means a stockholder of record or a beneficial stockholder of a domestic
corporation.
(Added to NRS by 1995, 2087)
NRS
92A.330 “Stockholder of record” defined.
“Stockholder
of record” means the person in whose name shares are registered in the records
of a domestic corporation or the beneficial owner of shares to the extent
of the
rights granted by a nominee’s certificate on file with the domestic
corporation.
(Added to NRS by 1995, 2087)
NRS
92A.335 “Subject corporation” defined.
“Subject
corporation” means the domestic corporation which is the issuer of the shares
held by a dissenter before the corporate action creating the dissenter’s rights
becomes effective or the surviving or acquiring entity of that issuer after
the
corporate action becomes effective.
(Added to NRS by 1995, 2087)
NRS
92A.340 Computation of interest.
Interest
payable pursuant to
NRS
92A.300
to
92A.500
,
inclusive, must be computed from the effective date of the action until
the date
of payment, at the average rate currently paid by the entity on its principal
bank loans or, if it has no bank loans, at a rate that is fair and equitable
under all of the circumstances.
(Added to NRS by 1995, 2087)
NRS
92A.350 Rights of dissenting partner of domestic limited
partnership.
A
partnership agreement of a domestic limited partnership or, unless otherwise
provided in the partnership agreement, an agreement of merger or exchange,
may
provide that contractual rights with respect to the partnership interest
of a
dissenting general or limited partner of a domestic limited partnership
are
available for any class or group of partnership interests in connection
with any
merger or exchange in which the domestic limited partnership is a constituent
entity.
(Added to NRS by 1995, 2088)
NRS
92A.360 Rights of dissenting member of domestic limited-liability
company.
The
articles of organization or operating agreement of a domestic limited-liability
company or, unless otherwise provided in the articles of organization or
operating agreement, an agreement of merger or exchange, may provide that
contractual rights with respect to the interest of a dissenting member
are
available in connection with any merger or exchange in which the domestic
limited-liability company is a constituent entity.
(Added to NRS by 1995, 2088)
NRS
92A.370 Rights of dissenting member of domestic nonprofit
corporation.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed
if
there had been no merger and the membership had been terminated or the
member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws,
no member of a domestic nonprofit corporation, including, but not limited
to, a
cooperative corporation, which supplies services described in
chapter
704
of NRS
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest
in
real property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995, 2088)
NRS
92A.380 Right of stockholder to dissent from certain corporate actions and
to obtain payment for shares.
1. Except as otherwise provided in
NRS
92A.370
and
92A.390
,
any
stockholder is entitled to dissent from, and obtain payment of the fair
value of
his shares in the event of any of the following corporate actions:
(a) Consummation of a conversion or plan of merger to which the domestic
corporation is a constituent entity:
(1) If approval by the stockholders is required for the conversion or merger
by
NRS
92A.120
to
92A.160
,
inclusive, or the articles of incorporation, regardless of whether the
stockholder is entitled to vote on the conversion or plan of merger;
or
(2) If the domestic corporation is a subsidiary and is merged with its
parent
pursuant to
NRS
92A.180
.
(b) Consummation of a plan of exchange to which the domestic corporation
is a
constituent entity as the corporation whose subject owner’s interests will be
acquired, if his shares are to be acquired in the plan of exchange.
(c) Any corporate action taken pursuant to a vote of the stockholders to
the
extent that the articles of incorporation, bylaws or a resolution of the
board
of directors provides that voting or nonvoting stockholders are entitled
to
dissent and obtain payment for their shares.
(d) Any corporate action not described in paragraph (a), (b) or (c) that
will
result in the stockholder receiving money or scrip instead of fractional
shares
except where the stockholder would not be entitled to receive such payment
pursuant to
NRS
78.205
,
78.2055
or
78.207
.
2. A stockholder who is entitled to dissent and obtain payment pursuant to
NRS
92A.300
to
92A.500
,
inclusive, may not challenge the corporate action creating his entitlement
unless the action is unlawful or fraudulent with respect to him or the
domestic
corporation.
3. From and after the effective date of any corporate action described in
subsection 1, no stockholder who has exercised his right to dissent pursuant
to
NRS
92A.300
to
92A.500
,
inclusive, is entitled to vote his shares for any purpose or to receive
payment
of dividends or any other distributions on shares. This subsection does
not
apply to dividends or other distributions payable to stockholders on a
date
before the effective date of any corporate action from which the stockholder
has
dissented.
(Added to NRS by 1995, 2087; A
2001,
1414
,
3199
;
2003,
3189
;
2005,
2204
;
2007,
2438
)
NRS
92A.390 Limitations on right of dissent: Stockholders of certain classes or
series; action of stockholders not required for plan of
merger.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the
record
date fixed to determine the stockholders entitled to receive notice of
and to
vote at the meeting at which the plan of merger or exchange is to be acted
on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc.,
or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares
provide
otherwise; or
(b) The holders of the class or series are required under the plan of merger
or
exchange to accept for the shares anything except:
(1) Cash, owner’s interests or owner’s interests and cash in lieu of fractional
owner’s interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the plan of merger
or
exchange, were either listed on a national securities exchange, included
in the
national market system by the National Association of Securities Dealers,
Inc.,
or held of record by a least 2,000 holders of owner’s interests of record;
or
(2) A combination of cash and owner’s interests of the kind described in
sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph
(b).
2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under
NRS
92A.130
.
(Added to NRS by 1995, 2088)
NRS
92A.400 Limitations on right of dissent: Assertion as to portions only to
shares registered to stockholder; assertion by beneficial
stockholder.
1. A stockholder of record may assert dissenter’s rights as to fewer than
all of the shares registered in his name only if he dissents with respect
to all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter’s rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares
were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter’s rights as to shares
held on his behalf only if:
(a) He submits to the subject corporation the written consent of the stockholder
of record to the dissent not later than the time the beneficial stockholder
asserts dissenter’s rights; and
(b) He does so with respect to all shares of which he is the beneficial
stockholder or over which he has power to direct the vote.
(Added to NRS by 1995, 2089)
NRS
92A.410 Notification of stockholders regarding right of
dissent.
1. If a proposed corporate action creating dissenters’ rights is submitted
to a vote at a stockholders’ meeting, the notice of the meeting must state that
stockholders are or may be entitled to assert dissenters’ rights under
NRS
92A.300
to
92A.500
,
inclusive, and be accompanied by a copy of those sections.
2. If the corporate action creating dissenters’ rights is taken by written
consent of the stockholders or without a vote of the stockholders, the
domestic
corporation shall notify in writing all stockholders entitled to assert
dissenters’ rights that the action was taken and send them the dissenter’s
notice described in
NRS
92A.430
.
(Added to NRS by 1995, 2089; A 1997, 730)
NRS
92A.420 Prerequisites to demand for payment for
shares.
1. If a proposed corporate action creating dissenters’ rights is submitted
to a vote at a stockholders’ meeting, a stockholder who wishes to assert
dissenter’s rights:
(a) Must deliver to the subject corporation, before the vote is taken,
written
notice of his intent to demand payment for his shares if the proposed action
is
effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. If a proposed corporate action creating dissenters’ rights is taken by
written consent of the stockholders, a stockholder who wishes to assert
dissenters’ rights must not consent to or approve the proposed corporate
action.
3. A stockholder who does not satisfy the requirements of subsection 1 or
2 and
NRS
92A.400
is not
entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2089; A
1999,
1631
;
2005,
2204
)
NRS
92A.430 Dissenter’s notice: Delivery to stockholders entitled to assert
rights; contents.
1. The subject corporation shall deliver a written dissenter’s notice to
all stockholders entitled to assert dissenters’ rights.
2. The dissenter’s notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what
extent
the transfer of the shares will be restricted after the demand for payment
is
received;
(c) Supply a form for demanding payment that includes the date of the first
announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter’s rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand
for
payment, which may not be less than 30 nor more than 60 days after the
date the
notice is delivered; and
(e) Be accompanied by a copy of
NRS
92A.300
to
92A.500
,
inclusive.
(Added to NRS by 1995, 2089; A
2005,
2205
)
NRS
92A.440 Demand for payment and deposit of certificates; retention of rights
of stockholder.
1. A stockholder to whom a dissenter’s notice is sent must:
(a) Demand payment;
(b) Certify whether he or the beneficial owner on whose behalf he is dissenting,
as the case may be, acquired beneficial ownership of the shares before
the date
required to be set forth in the dissenter’s notice for this certification;
and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, before the proposed corporate action is taken retains all other rights
of a
stockholder until those rights are cancelled or modified by the taking
of the
proposed corporate action.
3. The stockholder who does not demand payment or deposit his certificates
where required, each by the date set forth in the dissenter’s notice, is not
entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2090; A 1997, 730;
2003,
3189
)
NRS
92A.450 Uncertificated shares: Authority to restrict transfer after demand
for payment; retention of rights of stockholder.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment
is
received.
2. The person for whom dissenter’s rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder
until
those rights are cancelled or modified by the taking of the proposed corporate
action.
(Added to NRS by 1995, 2090)
NRS
92A.460 Payment for shares: General requirements. [Effective through June
30, 2008.]
1. Except as otherwise provided in
NRS
92A.470
,
within
30 days after receipt of a demand for payment, the subject corporation
shall pay
each dissenter who complied with
NRS
92A.440
the
amount the subject corporation estimates to be the fair value of his shares,
plus accrued interest. The obligation of the subject corporation under
this
subsection may be enforced by the district court:
(a) Of the county where the corporation’s registered office is located;
or
(b) At the election of any dissenter residing or having its registered
office in
this State, of the county where the dissenter resides or has its registered
office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation’s balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement
of income
for that year, a statement of changes in the stockholders’ equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation’s estimate of the fair value of the
shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter’s rights to demand payment under
NRS
92A.480
;
and
(e) A copy of
NRS
92A.300
to
92A.500
,
inclusive.
(Added to NRS by 1995, 2090)
NRS 92A.460 Payment for shares: General requirements. [Effective July 1,
2008.]
1. Except as otherwise provided in
NRS
92A.470
,
within
30 days after receipt of a demand for payment, the subject corporation
shall pay
each dissenter who complied with
NRS
92A.440
the
amount the subject corporation estimates to be the fair value of his shares,
plus accrued interest. The obligation of the subject corporation under
this
subsection may be enforced by the district court:
(a) Of the county where the corporation’s principal office is
located;
(b) If the corporation’s principal office is not located in this State, in
Carson City; or
(c) At the election of any dissenter residing or having its principal office
in
this State, of the county where the dissenter resides or has its principal
office.
Ê
The
court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation’s balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement
of income
for that year, a statement of changes in the stockholders’ equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation’s estimate of the fair value of the
shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter’s rights to demand payment under
NRS
92A.480
;
and
(e) A copy of
NRS
92A.300
to
92A.500
,
inclusive.
(Added to NRS by 1995, 2090; A
2007,
2704
,
effective July 1, 2008)
NRS
92A.470 Payment for shares: Shares acquired on or after date of dissenter’s
notice.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth
in
the dissenter’s notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, after
taking the proposed action, it shall estimate the fair value of the shares,
plus
accrued interest, and shall offer to pay this amount to each dissenter
who
agrees to accept it in full satisfaction of his demand. The subject corporation
shall send with its offer a statement of its estimate of the fair value
of the
shares, an explanation of how the interest was calculated, and a statement
of
the dissenters’ right to demand payment pursuant to
NRS
92A.480
.
(Added to NRS by 1995, 2091)
NRS
92A.480 Dissenter’s estimate of fair value: Notification of subject
corporation; demand for payment of estimate.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due,
and
demand payment of his estimate, less any payment pursuant to
NRS
92A.460
,
or
reject the offer pursuant to
NRS
92A.470
and
demand payment of the fair value of his shares and interest due, if he
believes
that the amount paid pursuant to
NRS
92A.460
or
offered pursuant to
NRS
92A.470
is less
than the fair value of his shares or that the interest due is incorrectly
calculated.
2. A dissenter waives his right to demand payment pursuant to this section
unless he notifies the subject corporation of his demand in writing within
30
days after the subject corporation made or offered payment for his
shares.
(Added to NRS by 1995, 2091)
NRS
92A.490 Legal proceeding to determine fair value: Duties of subject
corporation; powers of court; rights of dissenter. [Effective through June
30,
2008.]
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within
the
60-day period, it shall pay each dissenter whose demand remains unsettled
the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the State,
it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a
copy of
the petition. Nonresidents may be served by registered or certified mail
or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one
or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the
order
appointing them, or any amendment thereto. The dissenters are entitled
to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of
his
shares, plus interest, exceeds the amount paid by the subject corporation;
or
(b) For the fair value, plus accrued interest, of his after-acquired shares
for
which the subject corporation elected to withhold payment pursuant to
NRS
92A.470
.
(Added to NRS by 1995, 2091)
NRS 92A.490 Legal proceeding to determine fair value: Duties of subject
corporation; powers of court; rights of dissenter. [Effective July 1,
2008.]
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within
the
60-day period, it shall pay each dissenter whose demand remains unsettled
the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its principal office is located. If the principal
office of the subject corporation is not located in the State, it shall
commence
the proceeding in the county where the principal office of the domestic
corporation merged with or whose shares were acquired by the foreign entity
was
located. If the principal office of the subject corporation and the domestic
corporation merged with or whose shares were acquired is not located in
this
State, the subject corporation shall commence the proceeding in the district
court in Carson City.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a
copy of
the petition. Nonresidents may be served by registered or certified mail
or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one
or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the
order
appointing them, or any amendment thereto. The dissenters are entitled
to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of
his
shares, plus interest, exceeds the amount paid by the subject corporation;
or
(b) For the fair value, plus accrued interest, of his after-acquired shares
for
which the subject corporation elected to withhold payment pursuant to
NRS
92A.470
.
(Added to NRS by 1995, 2091; A
2007,
2705
,
effective July 1, 2008)
NRS
92A.500 Legal proceeding to determine fair value: Assessment of costs and
fees.
1. The court in a proceeding to determine fair value shall determine all
of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess
the
costs against the subject corporation, except that the court may assess
costs
against all or some of the dissenters, in amounts the court finds equitable,
to
the extent the court finds the dissenters acted arbitrarily, vexatiously
or not
in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds
equitable:
(a) Against the subject corporation and in favor of all dissenters if the
court
finds the subject corporation did not substantially comply with the requirements
of
NRS
92A.300
to
92A.500
,
inclusive; or
(b) Against either the subject corporation or a dissenter in favor of any
other
party, if the court finds that the party against whom the fees and expenses
are
assessed acted arbitrarily, vexatiously or not in good faith with respect
to the
rights provided by
NRS
92A.300
to
92A.500
,
inclusive.
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that
the fees
for those services should not be assessed against the subject corporation,
the
court may award to those counsel reasonable fees to be paid out of the
amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to
NRS
92A.460
,
the
court may assess the costs against the subject corporation, except that
the
court may assess costs against all or some of the dissenters who are parties
to
the proceeding, in amounts the court finds equitable, to the extent the
court
finds that such parties did not act in good faith in instituting the
proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to
NRS
92A.460
or
92A.490
from
applying the provisions of
N.R.C.P.
68
or
NRS
17.115
.
(Added to NRS by 1995, 2092)