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As Of Filer Filing For·On·As Docs:Size Issuer Agent 10/23/08 Confederate Motors, Inc. PRE 14C 10/23/08 1:366K Edgar Agents LLC/FA |
Document/Exhibit Description Pages Size 1: PRE 14C Preliminary Proxy Information Statement HTML 293K
(3)
Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
calculated and state how it was
determined):
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o Check box if
any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its
filing.
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o
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to
increase the number of authorized shares of common stock we may issue from
100,000,000 to 200,000,000 (the "Share
Increase");
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o
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to
authorize Twenty Five Million (25,000,000) shares of blank check preferred
stock, par value of $.0001 per share, the voting powers, designations,
preferences and other special rights, and qualifications, limitations and
restrictions of which may be established from time to time by the Board of
Directors of the Company without approval of the stockholders and which
may be issued in one or more series ("Blank Check Preferred Stock");
and
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·
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Item 2: The adoption of
our 2008 Equity Incentive Plan (the "Plan") pursuant to which up to an
aggregate of 1,105,000 shares of our common stock shall be reserved for
issuance to employees and non-employee directors of and consultants to the
Company in connection with their retention and/or continued employment by
the Company.
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Common Stock Beneficially
Owned
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Named
executive officers and directors: (1)
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Number
of
Shares
beneficially
owned (2)
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Percentage of
class beneficially
owned (3)
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Ruth
Shepley
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12,000,000
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77.41%
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All
directors and executive officers as a group (one person)
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12,000,000
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77.41%
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5%
Shareholders: (1)
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Ruth
Shepley
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12,000,000
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77.41%
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(1)
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(2)(3)
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Under
Rule 13d-3, a beneficial owner of a security includes any person who,
directly or indirectly, through any contract, arrangement, understanding,
relationship, or otherwise has or shares: (i) voting power, which includes
the power to vote, or to direct the voting of shares; and (ii) investment
power, which includes the power to dispose or direct the disposition of
shares. Certain shares may be deemed to be beneficially owned by more than
one person (if, for example, persons share the power to vote or the power
to dispose of the shares). In addition, shares are deemed to be
beneficially owned by a person if the person has the right to acquire the
shares (for example, upon exercise of an option) within 60 days of the
date as of which the information is provided. In computing the percentage
ownership of any person, the amount of shares outstanding is deemed to
include the amount of shares beneficially owned by such person (and only
such person) by reason of these acquisition rights. As a result, the
percentage of outstanding shares of any person as shown in this table does
not necessarily reflect the person's actual ownership or voting power with
respect to the number of shares of common stock actually outstanding on
October 22, 2008. As of October 22, 2008, there were 15,500,000 common
shares issued and outstanding.
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The
purpose of the Confederate Motors, Inc. 2008 Incentive Plan is to attract,
retain and motivate employees, officers, directors, consultants, agents,
advisors and independent contractors of the Company and its Related
Companies by providing them the opportunity to acquire a proprietary
interest in the Company and to align their interests and efforts to the
long-term interests of the Company’s
stockholders.
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Certain
capitalized terms used in the Plan have the meanings set forth in
Appendix A.
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The
Plan shall be administered by the Board or the Compensation
Committee. The Compensation Committee shall be composed
of two or more directors, each of whom is a “non-employee director” within
the meaning of Rule 16b-3(b)(3) promulgated under the Exchange Act, or any
successor definition adopted by the Securities and Exchange
Commission. As used in this Plan, the term “Compensation
Committee” shall be construed as if followed by the words “(if any)”; and
nothing in this Plan requires the Board to have a Compensation
Committee.
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Notwithstanding
the foregoing, the Board may delegate responsibility for administering the
Plan with respect to designated classes of Eligible Persons to different
committees consisting of one or more members of the Board, subject to such
limitations as the Board deems appropriate, except with respect to Awards
to any Participants who are then subject to Section 16 of the
Exchange Act. Members of any committee shall serve for such
term as the Board may determine, subject to removal by the Board at any
time. To the extent consistent with applicable law, the Board
or the Compensation Committee may authorize one or more officers of the
Company to grant Awards to designated classes of Eligible Persons, within
limits specifically prescribed by the Board or the Compensation Committee;
provided, however, that no such officer shall have or obtain authority to
grant Awards to himself or herself or to any person then subject to
Section 16 of the Exchange Act. All references in the Plan to
the “Committee” shall be, as applicable, to the Board, the Compensation
Committee or any other committee or any officer to whom the Board or the
Compensation Committee has delegated authority to administer the
Plan.
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(a) Except
for the terms and conditions explicitly set forth in the Plan and to the
extent permitted by applicable law, the Committee shall have full power
and exclusive authority, subject to such orders or resolutions not
inconsistent with the provisions of the Plan as may from time to time be
adopted by the Board or a Committee composed of members of the Board, to
(i) select the Eligible Persons to whom Awards may from time to time
be granted under the Plan; (ii) determine the type or types of Award
to be granted to each Participant under the Plan; (iii) determine the
number of shares of Common Stock to be covered by each Award granted under
the Plan; (iv) determine the terms and conditions of any Award
granted under the Plan; (v) approve the forms of notice or agreement
for use under the Plan; (vi) determine whether, to what extent and
under what circumstances Awards may be settled in cash, shares of Common
Stock or other property or canceled or suspended; (vii) determine
whether, to what extent and under what circumstances cash, shares of
Common Stock, other property and other amounts payable with respect to an
Award shall be deferred either automatically or at the election of the
Participant; (viii) interpret and administer the Plan and any
instrument evidencing an Award, notice or agreement executed or entered
into under the Plan; (ix) establish such rules and regulations as it
shall deem appropriate for the proper administration of the Plan;
(x) delegate ministerial duties to such of the Company’s employees as
it so determines; and (xi) make any other determination and take any
other action that the Committee deems necessary or desirable for
administration of the Plan.
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(b) The Committee
shall have the right, without stockholder approval, to cancel or amend
outstanding Options or SARs for the purpose of repricing, replacing or
regranting such Options or SARs with Options or SARs that have a purchase
or grant price that is less than the purchase or grant price for the
original Options or SARs except in connection with adjustments provided in
Section 15.
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(c) The
effect on the vesting of an Award of a Company-approved leave of absence
or a Participant’s working less than full-time shall be determined by the
Company’s chief human resources officer or other person performing that
function or, with respect to directors or executive officers, by the
Committee, whose determination shall be final.
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(d) Decisions
of the Committee shall be final, conclusive and binding on all persons,
including the Company, any Participant, any stockholder and any Eligible
Person. A majority of the members of the Committee may
determine its actions.
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Subject
to adjustment from time to time as provided in Section 15.1, a
maximum of One Million One Hundred and Five Thousand (1,105,000) shares of
Common Stock shall be available for issuance under the
Plan. Shares issued under the Plan shall be drawn from
authorized and unissued shares or shares now held or subsequently acquired
by the Company as treasury shares.
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(a) Shares
of Common Stock covered by an Award shall not be counted as used unless
and until they are actually issued and delivered to a
Participant. If any Award lapses, expires, terminates or is
canceled prior to the issuance of shares thereunder or if shares of Common
Stock are issued under the Plan to a Participant and thereafter are
forfeited to or otherwise reacquired by the Company, the shares subject to
such Awards and the forfeited or reacquired shares shall again be
available for issuance under the Plan. Any shares of Common
Stock (i) tendered by a Participant or retained by the Company as
full or partial payment to the Company for the purchase price of an Award
or to satisfy tax withholding obligations in connection with an Award, or
(ii) covered by an Award that is settled in cash, or in a manner such
that some or all of the shares of Common Stock covered by the Award are
not issued, shall be available for Awards under the Plan. The
number of shares of Common Stock available for issuance under the Plan
shall not be reduced to reflect any dividends or dividend equivalents that
are reinvested into additional shares of Common Stock or credited as
additional shares of Common Stock subject or paid with respect to an
Award.
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(b) The
Committee shall also, without limitation, have the authority to grant
Awards as an alternative to or as the form of payment for grants or rights
earned or due under other compensation plans or arrangements of the
Company.
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(c) Notwithstanding
anything in the Plan to the contrary, the Committee may grant Substitute
Awards under the Plan. Substitute Awards shall not reduce the
number of shares authorized for issuance under the Plan. In the
event that an Acquired Entity has shares available for awards or grants
under one or more preexisting plans not adopted in contemplation of such
acquisition or combination, then, to the extent determined by the
Committee, the shares available for grant pursuant to the terms of such
preexisting plan (as adjusted, to the extent appropriate, using the
exchange ratio or other adjustment or valuation ratio or formula used in
such acquisition or combination to determine the consideration payable to
holders of common stock of the entities that are parties to such
acquisition or combination) may be used for Awards under the Plan and
shall not reduce the number of shares of Common Stock authorized for
issuance under the Plan; provided, however, that Awards using such
available shares shall not be made after the date awards or grants could
have been made under the terms of such preexisting plans, absent the
acquisition or combination, and shall only be made to individuals who were
not employees or directors of the Company or a Related Company prior to
such acquisition or combination. In the event that a written
agreement between the Company and an Acquired Entity pursuant to which a
merger or consolidation is completed is
approved by the Board and that agreement sets forth the terms and
conditions of the substitution for or assumption of outstanding awards of
the Acquired Entity, those terms and conditions shall be deemed to be the
action of the Committee without any further action by the Committee,
except as may be required for compliance with Rule 16b-3 under the
Exchange Act, and the persons holding such awards shall be deemed to be
Participants.
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(d) Notwithstanding
the other provisions in this Section 4.2, the maximum
number of shares that may be issued upon the exercise of Incentive Stock
Options shall equal the aggregate share number stated in Section 4.1,
subject to adjustment as provided in
Section 15.1.
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An
Award may be granted to any employee, officer or director of the Company
or a Related Company whom the Committee from time to time
selects. An Award may also be granted to any consultant, agent,
advisor or independent contractor for bona fide services rendered to the
Company or any Related Company that (a) are not in connection with
the offer and sale of the Company’s securities in a capital-raising
transaction and (b) do not directly or indirectly promote or maintain
a market for the Company’s
securities.
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The
Committee shall have the authority, in its sole discretion, to determine
the type or types of Awards to be granted under the Plan. Such
Awards may be granted either alone or in addition to or in tandem with any
other type of Award. Any Award settlement may be subject to
such conditions, restrictions and contingencies as the Committee shall
determine.
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Awards
granted under the Plan shall be evidenced by a written, including an
electronic, notice or agreement that shall contain such terms, conditions,
limitations and restrictions as the Committee shall deem advisable and
that are not inconsistent with the
Plan.
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The
Committee may permit or require a Participant to defer receipt of the
payment of any Award if and to the extent set forth in the instrument
evidencing the Award at the time of grant. If any such deferral
election is permitted or required, the Committee, in its sole discretion,
shall establish rules and procedures for such payment deferrals, which may
include the grant of additional Awards or provisions for the payment or
crediting of interest or dividend equivalents, including converting such
credits to deferred stock unit equivalents; provided, however, that the
terms of any deferrals under this Section 6.3 shall comply with all
applicable law, rules and regulations, including, without limitation,
Section 409A of the Code.
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Participants
may, if and to the extent the Committee so determines and sets forth in
the instrument evidencing the Award at the time of grant, be credited with
dividends paid with respect to shares of Common Stock underlying an Award
in a manner determined by the Committee in its sole
discretion. The Committee may apply any restrictions to the
dividends or dividend equivalents that the Committee deems
appropriate. The Committee, in its sole discretion, may
determine the form of payment of dividends or dividend equivalents,
including cash, shares of Common Stock, Restricted Stock or Stock
Units.
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The
Committee may grant Options designated as Incentive Stock Options or
Nonqualified Stock Options.
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The
exercise price for shares purchased under an Option shall be at least 100%
of the Fair Market Value on the Grant Date (and shall not be less than the
minimum exercise price required by Section 422 of the Code with respect to
Incentive Stock Options), except in the case of Substitute
Awards.
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Subject
to earlier termination in accordance with the terms of the Plan and the
instrument evidencing the Option, the maximum term of a Nonqualified Stock
Option shall be ten years from the Grant
Date.
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The
Committee shall establish and set forth in each instrument that evidences
an Option the time at which, or the installments in which, the Option
shall vest and become exercisable, any of which provisions may be waived
or modified by the Committee at any time.
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To
the extent an Option has vested and become exercisable, the Option may be
exercised in whole or from time to time in part by delivery to or as
directed or approved by the Company of a properly executed stock option
exercise agreement or notice, in a form and in accordance with procedures
established by the Committee, setting forth the number of shares with
respect to which the Option is being exercised, the restrictions imposed
on the shares purchased under such exercise agreement, if any, and such
representations and agreements as may be required by the Committee,
accompanied by payment in full as described in Sections 7.5 and
13. An Option may be exercised only for whole shares and may
not be exercised for less than a reasonable number of shares at any one
time, as determined by the
Committee.
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The
exercise price for shares purchased under an Option shall be paid in full
to the Company by delivery of consideration equal to the product of the
Option exercise price and the number of shares purchased. Such
consideration must be paid before the Company will issue the shares being
purchased and must be in a form or a combination of forms acceptable to
the Committee for that purchase, which forms may
include:
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(a) cash;
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(b) check
or wire transfer;
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(c) having
the Company withhold shares of Common Stock that would otherwise be issued
on exercise of the Option that have an aggregate Fair Market Value equal
to the aggregate exercise price of the shares being purchased under the
Option;
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(d) tendering
(either actually or, so long as the Common Stock is registered under
Section 12(b) or 12(g) of the Exchange Act, by attestation) shares of
Common Stock owned by the Participant that have an aggregate Fair Market
Value equal to the aggregate exercise price of the shares being purchased
under the Option;
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(e) so
long as the Common Stock is registered under Section 12(b) or 12(g)
of the Exchange Act, and to the extent permitted by law, delivery of a
properly executed exercise notice, together with irrevocable instructions
to a brokerage firm designated or approved by the Company to deliver
promptly to the Company the aggregate amount of proceeds to pay
the Option exercise price and any withholding tax obligations that may
arise in connection with the exercise, all in accordance with the
regulations of the Federal Reserve Board; or
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(f) such
other consideration as the Committee may
permit.
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The
Committee shall establish and set forth in each instrument that evidences
an Option whether the Option shall continue to be exercisable, and the
terms and conditions of such exercise, after a Termination of Service, any
of which provisions may be waived or modified by the Committee at any
time. If not so established in the instrument evidencing the
Option, the Option shall be exercisable according to the following terms
and conditions, which may be waived or modified by the Committee at any
time:
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(a) Any
portion of an Option that is not vested and exercisable on the date of a
Participant’s Termination of Service shall expire on such
date.
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(b) Any
portion of an Option that is vested and exercisable on the date of a
Participant’s Termination of Service shall expire on the earliest to occur
of:
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(i) if
the Participant’s Termination of Service occurs for reasons other than
Cause, Retirement, Disability or death, the date that is three months
after such Termination of Service;
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(ii) if
the Participant’s Termination of Service occurs by reason of Retirement,
Disability or death, the one-year anniversary of such Termination of
Service; and
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(iii) the
Option Expiration Date.
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Notwithstanding
the foregoing, if a Participant dies after his or her Termination of
Service but while an Option is otherwise exercisable, the portion of the
Option that is vested and exercisable on the date of such Termination of
Service shall expire upon the earlier to occur of (y) the Option
Expiration Date and (z) the one-year anniversary of the date of
death, unless the Committee determines
otherwise.
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Also
notwithstanding the foregoing, in case a Participant’s Termination of
Service occurs for Cause, all Options granted to the Participant shall
automatically expire upon first notification to the Participant of such
termination, unless the Committee determines otherwise. If a
Participant’s employment or service relationship with the Company is
suspended pending an investigation of whether the Participant shall be
terminated for Cause, all the Participant’s rights under any Option shall
likewise be suspended during the period of investigation. If
any facts that would constitute termination for Cause are discovered after
a Participant’s Termination of Service, any Option then held by the
Participant may be immediately terminated by the Committee, in its sole
discretion.
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(c) If
the exercise of the Option following a Participant’s Termination of
Service, but while the Option is otherwise exercisable, would be
prohibited solely because the issuance of Common Stock would violate
either the registration requirements under the Securities Act or the
Company’s insider trading policy, then the Option shall remain exercisable
until the earlier of (i) the Option
Expiration Date and (ii) the expiration of
a period of three months (or such longer period of time as determined by
the Committee in its sole discretion) after the Participant’s Termination
of Service during which the exercise of the Option would not be in
violation of such Securities Act or insider trading policy
requirements.
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Notwithstanding
any other provisions of the Plan, the terms and conditions of any
Incentive Stock Options shall in addition comply in all respects with
Section 422 of the Code, or any successor provision, and any
applicable regulations thereunder, including, to the extent required
thereunder, the following:
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To
the extent the aggregate Fair Market Value (determined as of the Grant
Date) of Common Stock with respect to which a Participant’s Incentive
Stock Options become exercisable for the first time during any calendar
year (under the Plan and all other stock option plans of the Company and
its parent and subsidiary corporations) exceeds $100,000, such portion in
excess of $100,000 shall be treated as a Nonqualified Stock
Option. In the event the Participant holds two or more such
Options that become exercisable for the first time in the same calendar
year, such limitation shall be applied on the basis of the order in which
such Options are granted.
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Individuals
who are not employees of the Company or one of its parent or subsidiary
corporations may not be granted Incentive Stock
Options.
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The
exercise price of an Incentive Stock Option shall be at least 100% of the
Fair Market Value of the Common Stock on the Grant Date, and in the case
of an Incentive Stock Option granted to a Participant who owns more than
10% of the total combined voting power of all classes of the stock of the
Company or of its parent or subsidiary corporations (a “Ten Percent
Stockholder”), shall not be less than 110% of the Fair Market Value
of the Common Stock on the Grant Date. The determination of
more than 10% ownership shall be made in accordance with Section 422
of the Code.
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Subject
to earlier termination in accordance with the terms of the Plan and the
instrument evidencing the Option, the maximum term of an Incentive Stock
Option shall not exceed ten years, and in the case of an Incentive Stock
Option granted to a Ten Percent Stockholder, shall not exceed five
years.
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An
Option designated as an Incentive Stock Option shall cease to qualify for
favorable tax treatment as an Incentive Stock Option to the extent it is
exercised (if permitted by the terms of the Option) (a) more than
three months after the date of a Participant’s Termination of Service if
termination was for reasons other than death or disability, (b) more
than one year after the date of a Participant’s Termination of Service if
termination was by reason of disability, or (c) after the Participant
has been on leave of absence for more than 90 days, unless the
Participant’s reemployment rights are guaranteed by statute or
contract.
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In
order to obtain certain tax benefits afforded to Incentive Stock Options
under Section 422 of the Code, the Participant must hold the shares
acquired upon the exercise of an Incentive Stock Option for two years
after the Grant Date and one year after the date of
exercise.
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A
Participant may be subject to the alternative minimum tax at the time of
exercise of an Incentive Stock Option. The Participant shall
give the Company prompt notice of any disposition of shares acquired on
the exercise of an Incentive Stock Option prior to the expiration of such
holding periods.
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For
the purposes of this Section 8 “disability,” “parent corporation” and
“subsidiary corporation” shall have the meanings attributed to those terms
for purposes of Section 422 of the
Code.
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The
Committee may grant Stock Appreciation Rights to Participants at any time
on such terms and conditions as the Committee shall determine in its sole
discretion. An SAR may be granted in tandem with an Option or
alone (“freestanding”). The grant price of a tandem SAR shall
be equal to the exercise price of the related Option. The grant
price of a freestanding SAR shall be established in accordance with
procedures for Options set forth in Section 7.2. An SAR
may be exercised upon such terms and conditions and for the term as the
Committee determines in its sole discretion; provided, however, that,
subject to earlier termination in accordance with the terms of the Plan
and the instrument evidencing the SAR, the maximum term of a freestanding
SAR shall be ten years, and in the case of a tandem SAR, (a) the term
shall not exceed the term of the related Option and (b) the tandem SAR may
be exercised for all or part of the shares subject to the related Option
upon the surrender of the right to exercise the equivalent portion of the
related Option, except that the tandem SAR may be exercised only with
respect to the shares for which its related Option is then
exercisable.
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Upon
the exercise of an SAR, a Participant shall be entitled to receive payment
in an amount determined by multiplying: (a) the difference
between the Fair Market Value of the Common Stock on the date of exercise
over the grant price of the SAR by (b) the number of shares with respect
to which the SAR is exercised. At the discretion of the
Committee as set forth in the instrument evidencing the Award, the payment
upon exercise of an SAR may be in cash, in shares, in some combination
thereof or in any other manner approved by the Committee in its sole
discretion.
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Subject
to Section 18.5, the Committee, in its sole discretion, may waive any
other terms, conditions or restrictions on any SAR under such
circumstances and subject to such terms and conditions as the Committee
shall deem appropriate.
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The
Committee may grant Stock Awards, Restricted Stock and Stock Units on such
terms and conditions and subject to such repurchase or forfeiture
restrictions, if any, which may be based on continuous service with the
Company or a Related Company or the achievement of any performance goals,
as the Committee shall determine in its sole discretion, which terms,
conditions and restrictions shall be set forth in the instrument
evidencing the Award.
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Upon
the satisfaction of any terms, conditions and restrictions prescribed with
respect to Restricted Stock or Stock Units, or upon a Participant’s
release from any terms, conditions and restrictions of Restricted Stock or
Stock Units, as determined by the Committee, and subject to the provisions
of Section 13, (a) the shares of Restricted Stock covered by each Award of
Restricted Stock shall become freely transferable by the Participant, and
(b) Stock Units shall be paid in shares of Common Stock or, if set forth
in the instrument evidencing the Awards, in cash or a combination of cash
and shares of Common Stock. Any fractional shares subject to
such Awards shall be paid to the Participant in
cash.
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Subject
to Section 18.5, the Committee, in its sole discretion, may waive the
repurchase or forfeiture period and any other terms, conditions or
restrictions on any Restricted Stock or Stock Unit under such
circumstances and subject to such terms and conditions as the Committee
shall deem appropriate.
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The
Committee may grant Awards of Performance Shares, designate the
Participants to whom Performance Shares are to be awarded and determine
the number of Performance Shares and the terms and conditions of each such
Award. Performance Shares shall consist of a unit valued by
reference to a designated number of shares of Common Stock, the value of
which may be paid to the Participant by delivery of shares of Common Stock
or, if set forth in the instrument evidencing the Award, of such property
as the Committee shall determine, including, without limitation, cash,
shares of Common Stock, other property, or any combination thereof, upon
the attainment of performance goals, as established by the Committee, and
other terms and conditions specified by the Committee. Subject
to Section 18.5, the amount to be paid under an Award of Performance
Shares may be adjusted on the basis of such further consideration as the
Committee shall determine in its sole
discretion.
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The
Committee may grant Awards of Performance Units, designate the
Participants to whom Performance Units are to be awarded and determine the
number of Performance Units and the terms and conditions of each such
Award. Performance Units shall consist of a unit valued by
reference to a designated amount of property other than shares of Common
Stock, which value may be paid to the Participant by delivery of such
property as the Committee shall determine, including, without limitation,
cash, shares of Common Stock, other property, or any combination thereof,
upon the attainment of performance goals, as established by the Committee,
and other terms and conditions specified by the
Committee. Subject to Section 18.5, the amount to be paid under
an Award of Performance Units may be adjusted on the basis of such further
consideration as the Committee shall determine in its sole
discretion.
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Subject
to the terms of the Plan and such other terms and conditions as the
Committee deems appropriate, the Committee may grant other incentives
payable in cash or in shares of Common Stock under the
Plan.
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The
Company may require the Participant to pay to the Company the amount of
(a) any taxes that the Company is required by applicable federal, state,
local or foreign law to withhold with respect to the grant, vesting or
exercise of an Award (“tax withholding obligations”) and (b) any amounts
due from the Participant to the Company or to any Related Company (“other
obligations”). The Company shall not be required to issue any
shares of Common Stock or otherwise settle an Award under the Plan until
such tax withholding obligations and other obligations are
satisfied.
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The
Committee may permit or require a Participant to satisfy all or part of
the Participant’s tax withholding obligations and other obligations by
(a) paying cash to the Company, (b) having the Company withhold
an amount from any cash amounts otherwise due or to become due from the
Company to the Participant, (c) having the Company withhold a number
of shares of Common Stock that would otherwise be issued to the
Participant (or become vested, in the case of Restricted Stock) having a
Fair Market Value equal to the tax withholding obligations and other
obligations, or (d) surrendering a number of shares of Common Stock
the Participant already owns having a value equal to the tax withholding
obligations and other obligations. The value of the shares so
withheld or tendered may not exceed the employer’s minimum required tax
withholding rate.
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No
Award or interest in an Award may be sold, assigned, pledged (as
collateral for a loan or as security for the performance of an obligation
or for any other purpose) or transferred by a Participant or made subject
to attachment or similar proceedings otherwise than by will or by the
applicable laws of descent and distribution, except to the extent the
Participant designates one or more beneficiaries on a Company-approved
form who may exercise the Award or receive payment under the Award after
the Participant’s death. During a Participant’s lifetime, an
Award may be exercised only by the Participant. Notwithstanding
the foregoing and to the extent permitted by Section 422 of the Code,
the Committee, in its sole discretion, may permit a Participant to assign
or transfer an Award subject to such terms and conditions as the Committee
shall specify.
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In
the event, at any time or from time to time, a stock dividend, stock
split, spin-off, combination or exchange of shares, recapitalization,
merger, consolidation, distribution to stockholders other than a normal
cash dividend, or other change in the Company’s corporate or capital
structure results in (a) the outstanding shares of Common Stock, or
any securities exchanged therefor or received in their place, being
exchanged for a different number or kind of securities of the Company or
(b) new, different or additional securities of the Company or any
other company being received by the holders of shares of Common Stock,
then the Committee shall make proportional adjustments in (i) the
maximum number and kind of securities available for issuance under the
Plan; (ii) the maximum number and kind of securities issuable as
Incentive Stock Options as set forth in Section 4.2; and
(iii) the number and kind of securities that are subject to any
outstanding Award and the per share price of such securities, without any
change in the aggregate price to be paid therefor. The
determination by the Committee, as to the terms of any of the foregoing
adjustments shall be conclusive and binding.
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Notwithstanding
the foregoing, the issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, for
cash or property, or for labor or services rendered, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into
such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, outstanding
Awards. Also notwithstanding the foregoing, a dissolution or
liquidation of the Company or a Company Transaction shall not be governed
by this Section 15.1 but shall be governed by Sections 15.2 and
15.3, respectively.
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To
the extent not previously exercised or settled, and unless otherwise
determined by the Committee in its sole discretion, Awards shall terminate
immediately prior to the dissolution or liquidation of the
Company. To the extent a vesting condition, forfeiture
provision or repurchase right applicable to an Award has not been waived
by the Committee, the Award shall be forfeited immediately prior to the
consummation of the dissolution or
liquidation.
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Notwithstanding
any other provision of the Plan to the contrary, unless the Committee
shall determine otherwise in the instrument evidencing the Award or in a
written employment, services or other agreement between the Participant
and the Company or a Related Company, in the event of a Change in
Control:
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(a) All
outstanding Awards, other than Performance Shares and Performance Units,
shall become fully and immediately exercisable, and all applicable
deferral and restriction limitations or forfeiture provisions shall lapse,
immediately prior to the Change in Control and shall terminate at the
effective time of the Change in Control; provided, however, that with
respect to a Change in Control that is a Company Transaction, such Awards
shall become fully and immediately exercisable, and all applicable
deferral and restriction limitations or forfeiture provisions shall lapse,
only if and to the extent such Awards are not converted, assumed or
replaced by the Successor Company.
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For
the purposes of this Section 15.3(a), an Award shall be considered
converted, assumed or replaced by the Successor Company if following the
Company Transaction the option or right confers the right to purchase or
receive, for each share of Common Stock subject to the Award immediately
prior to the Company Transaction, the consideration (whether stock, cash
or other securities or property) received in the Company Transaction by
holders of Common Stock for each share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the
outstanding shares); provided, however, that if such consideration
received in the Company Transaction is not solely common stock of the
Successor Company, the Committee may, with the consent of the Successor
Company, provide for the consideration to be received upon the exercise of
the Option, for each share of Common Stock subject thereto, to be solely
common stock of the Successor Company substantially equal in fair market
value to the per share consideration received by holders of Common Stock
in the Company Transaction. The determination of such
substantial equality of value of consideration shall be made by the
Committee, and its determination shall be conclusive and
binding.
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(b) All
Performance Shares or Performance Units earned and outstanding as of the
date the Change in Control is determined to have occurred shall be payable
in full at the target level in accordance with the payout schedule
pursuant to the instrument evidencing the Award. Any remaining
Performance Shares or Performance Units (including any applicable
performance period) for which the payout level has not been determined
shall be prorated at the target payout level up to and including the date
of such Change in Control and shall be payable in full at the target level
in accordance with the payout schedule pursuant to the instrument
evidencing the Award. Any existing deferrals or other
restrictions not waived by the Committee in its sole discretion shall
remain in effect.
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(c) Notwithstanding
Sections 15.3(a) and 15.3(b), the Committee, in its sole discretion, may
(unless otherwise provided in the instrument evidencing the Award or in a
written employment, services or other agreement between the Participant
and the Company or a Related Company) instead provide in the event of a
Change in Control that is a Company Transaction (i) for adjustments to the
Plan and outstanding Awards as contemplated by Section 15.1 or (ii) that a
Participant’s outstanding Awards shall terminate upon or immediately prior
to such Company Transaction and that such Participant shall receive, in
exchange therefor, a cash payment equal to the amount (if any) by which
(x) the value of the per share consideration received by holders of
Common Stock in the Company Transaction, or, if the Company Transaction is
a sale of assets or otherwise does not result in direct receipt of
consideration by holders of Common Stock, the value of the deemed per
share consideration received, in each case as determined by the Committee
in its sole discretion, multiplied by the number of shares of Common Stock
subject to such outstanding Awards (to the extent then vested and
exercisable or whether or not then vested and exercisable, as determined
by the Committee in its sole discretion) exceeds (y) if
applicable, the respective aggregate exercise price or grant price
for such Awards.
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Subject
to Sections 15.2 and 15.3, the Committee shall have the discretion,
exercisable at any time before a sale, merger, consolidation,
reorganization, liquidation, dissolution or change in control of the
Company, as defined by the Committee, to take such further action as it
determines to be necessary or advisable with respect to
Awards. Such authorized action may include (but shall not be
limited to) establishing, amending or waiving the type, terms, conditions
or duration of, or restrictions on, Awards so as to provide for earlier,
later, extended or additional time for exercise, lifting restrictions and
other modifications, and the Committee may take such actions with respect
to all Participants, to certain categories of Participants or only to
individual Participants. The Committee may take such action
before or after granting Awards to which the action relates and before or
after any public announcement with respect to such sale, merger,
consolidation, reorganization, liquidation, dissolution or change in
control that is the reason for such
action.
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The
grant of Awards shall in no way affect the Company’s right to adjust,
reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or
assets.
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In
the event of any adjustment in the number of shares covered by any Award,
each such Award shall cover only the number of full shares resulting from
such adjustment.
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Notwithstanding
anything in this Plan to the contrary, (a) any adjustments made pursuant
to this Section 15 or any other amendments to Awards that are
considered “deferred compensation” within the meaning of Section 409A
of the Code shall be made in compliance with the requirements of
Section 409A of the Code and (b) any adjustments made pursuant to
this Section 15 or any other amendments to Awards that are not
considered “deferred compensation” subject to Section 409A of the
Code shall be made in such a manner as to ensure that after such
adjustment or amendment the Awards either (i) continue not to be subject
to Section 409A of the Code or (ii) comply with the requirements of
Section 409A of the Code.
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In
the event of an underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed under the
Securities Act (including any registration statement that registers for
resale any shares issued in the Company’s Alternative Public Offering), no
person may sell, make any short sale of, loan, hypothecate, pledge, grant
any option for the purchase of, or otherwise dispose of or transfer for
value or otherwise agree to engage in any of the foregoing transactions
with respect to any shares issued pursuant to an Award granted under the
Plan without the prior written consent of the Company or its
underwriters. Such limitations shall be in effect for such
period of time as may be requested by the Company or such underwriters;
provided, however, that in no event shall such period exceed (a)
180 days after the effective date of the registration statement for
such public offering or (b) such longer period requested by the
underwriter as is necessary to comply with regulatory restrictions on the
publication of research reports (including, but not limited to, NYSE Rule
472 or NASD Conduct Rule 2711). The limitations of this
Section 16 shall in all events terminate two years after the
effective date of the Company’s Alternative Public
Offering.
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In
the event of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
Company’s outstanding Common Stock effected as a class without the
Company’s receipt of consideration, any new, substituted or additional
securities distributed with respect to any shares issued as or pursuant to
an Award under the Plan shall be immediately subject to the provisions of
this Section 16, to the same extent such shares are at such time
covered by such provisions.
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In
order to enforce the limitations of this Section 16, the Company may
impose stop-transfer instructions with respect to the purchased shares
until the end of the applicable standoff
period.
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The
Board or the Compensation Committee may amend, suspend or terminate the
Plan or any portion of the Plan at any time and in such respects as it
shall deem advisable; provided, however, that, to the extent required by
applicable law, regulation or stock exchange rule, stockholder approval
shall be required for any amendment to the Plan; and provided, further,
that any amendment that requires stockholder approval may be made only by
the Board and not by the Compensation Committee. Subject to
Section 17.3, the Committee may amend the terms of any outstanding
Award, prospectively or
retroactively.
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Unless
sooner terminated as provided herein, the Plan shall terminate ten years
from the Effective Date. After the Plan is terminated, no
future Awards may be granted, but Awards previously granted shall remain
outstanding in accordance with their applicable terms and conditions and
the Plan’s terms and conditions. Notwithstanding the foregoing,
no Incentive Stock Options may be granted more than ten years after the
later of: (a) the
adoption of the Plan by the Board and (b) the adoption by the Board
of any amendment to the Plan that constitutes the adoption of a new plan
for purposes of Section 422 of the
Code.
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The
amendment, suspension or termination of the Plan or a portion thereof or
the amendment of an outstanding Award shall not, without the Participant’s
consent, materially adversely affect any rights under any Award
theretofore granted to the Participant under the Plan. Any
change or adjustment to an outstanding Incentive Stock Option shall not,
without the consent of the Participant, be made in a manner so as to
constitute a “modification” that would cause such Incentive Stock Option
to fail to continue to qualify as an Incentive Stock
Option. Notwithstanding the foregoing, any adjustments made
pursuant to Section 15 shall not be subject to these
restrictions.
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No
individual or Participant shall have any claim to be granted any Award
under the Plan, and the Company has no obligation for uniformity of
treatment of Participants under the Plan.
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Furthermore,
nothing in the Plan or any Award granted under the Plan shall be deemed to
constitute an employment contract or confer or be deemed to confer on any
Participant any right to continue in the employ of, or to continue any
other relationship with, the Company or any Related Company or limit in
any way the right of the Company or any Related Company to terminate a
Participant’s employment or other relationship at any time, with or
without cause.
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Notwithstanding
any other provision of the Plan, the Company shall have no obligation to
issue or deliver any shares of Common Stock under the Plan or make any
other distribution of benefits under the Plan unless, in the opinion of
the Company’s counsel, such issuance, delivery or distribution would
comply with all applicable laws (including, without limitation, the
requirements of the Securities Act or the laws of any state or foreign
jurisdiction) and the applicable requirements of any securities exchange
or similar entity.
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The
Company shall be under no obligation to any Participant to register for
offering or resale or to qualify for exemption under the Securities Act,
or to register or qualify under the laws of any state or foreign
jurisdiction, any shares of Common Stock, security or interest in a
security paid or issued under, or created by, the Plan, or to continue in
effect any such registrations or qualifications if
made.
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As
a condition to the exercise of an Option or any other receipt of Common
Stock pursuant to an Award under the Plan, the Company may require
(a) the Participant to represent and warrant at the time of any such
exercise or receipt that such shares are being purchased or received only
for the Participant’s own account and without any present intention to
sell or distribute such shares and (b) such other action or agreement
by the Participant as may from time to time be necessary to comply with
the federal, state and foreign securities laws. At the option
of the Company, a stop-transfer order against any such shares may be
placed on the official stock books and records of the Company, and a
legend indicating that such shares may not be pledged, sold or otherwise
transferred, unless an opinion of counsel (satisfactory to the Company, in
its sole discretion) is provided stating that such transfer is not in
violation of any applicable law or regulation, may be stamped on stock
certificates to ensure exemption from registration. The
Committee may also require the Participant to execute and deliver to the
Company a purchase agreement or such other agreement as may be in use by
the Company at such time that describes certain terms and conditions
applicable to the shares.
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To
the extent the Plan or any instrument evidencing an Award provides for
issuance of stock certificates to reflect the issuance of shares of Common
Stock, the issuance may be effected on a noncertificated basis, to the
extent not prohibited by applicable law or the applicable rules of any
stock exchange.
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Each
person who is or shall have been a member of the Board, or a committee
appointed by the Board, or an officer of the Company to whom authority was
delegated in accordance with Section 3, shall be indemnified and held
harmless by the Company against and from any loss, cost, liability or
expense that may be imposed upon or reasonably incurred by such person in
connection with or resulting from any claim, action, suit or proceeding to
which such person may be a party or in which such person may be involved
by reason of any action taken or failure to act under the Plan and against
and from any and all amounts paid by such person in settlement thereof,
with the Company’s approval, or paid by such person in satisfaction of any
judgment in any such claim, action, suit or proceeding against such
person; provided, however, that such person shall give the Company an
opportunity, at its own expense, to handle and defend the same before such
person undertakes to handle and defend it on such person’s own
behalf. This duty to indemnify shall not apply to the extent
that (i) such loss, cost, liability or expense is a result of such
person’s own willful misconduct or (ii) such indemnification is expressly
prohibited by statute.
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The
foregoing right of indemnification shall not be exclusive of any other
rights of indemnification to which such person may be entitled under the
Company’s certificate of incorporation or bylaws, as a matter of law, or
otherwise, or of any power that the Company may have to indemnify or hold
harmless.
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Unless
otherwise provided by the Committee or in the instrument evidencing the
Award or in a written employment, services or other agreement, no Award,
other than a Stock Award, shall entitle the Participant to any cash
dividend, voting or other right of a stockholder unless and until the date
of issuance under the Plan of the shares that are the subject of such
Award.
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In
interpreting and applying the provisions of the Plan, any Option granted
as an Incentive Stock Option pursuant to the Plan shall, to the extent
permitted by law, be construed as an “incentive stock option” within the
meaning of Section 422 of the Code.
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Any
Award granted pursuant to the Plan is intended to comply with the
requirements of Section 409A of the Code, including any applicable
regulations and guidance issued thereunder, and including transition
guidance, to the extent Section 409A of the Code is applicable thereto,
and the terms of the Plan and any Award granted under the Plan shall be
interpreted, operated and administered in a manner consistent with this
intention to the extent the Committee deems necessary or advisable to
comply with Section 409A of the Code and any official guidance issued
thereunder. Any payment or distribution that is to be made
under the Plan (or pursuant to an Award under the Plan) to a Participant
who is a “specified employee” of the Company within the meaning of that
term under Section 409A of the Code and as determined by the Committee, on
account of a “separation from service” within the meaning of
that term under Section 409A of the Code, may not be made before the date
which is six months after the date of such “separation from service,”
unless the payment or distribution is exempt from the application of
Section 409A of the Code by reason of the short-term deferral exemption or
otherwise. Notwithstanding any other provision in the Plan, the
Committee, to the extent it deems necessary or advisable in its sole
discretion, reserves the right, but shall not be required, to unilaterally
amend or modify the Plan and any Award granted under the Plan so that the
Award qualifies for exemption from or complies with Section 409A of the
Code; provided, however, that the Committee makes no representations that
Awards granted under the Plan shall be exempt from or comply with Section
409A of the Code and makes no undertaking to preclude Section
409A of the Code from applying to Awards granted under the
Plan.
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Without
amending the Plan, the Committee may grant Awards to Eligible Persons who
are foreign nationals on such terms and conditions different from those
specified in the Plan as may, in the judgment of the Committee, be
necessary or desirable to foster and promote achievement of the purposes
of the Plan and shall have the authority to adopt such modifications,
procedures, subplans and the like as may be necessary or desirable to
comply with provisions of the laws or regulations of other countries or
jurisdictions in which the Company or any Related Company may operate or
have employees to ensure the viability of the benefits from Awards granted
to Participants employed in such countries or jurisdictions, meet the
requirements that permit the Plan to operate in a qualified or
tax-efficient manner, comply with applicable foreign laws or regulations
and meet the objectives of the
Plan.
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The
Plan is intended to constitute an “unfunded” plan. Nothing
contained herein shall require the Company to segregate any monies or
other property, or shares of Common Stock, or to create any trusts, or to
make any special deposits for any immediate or deferred amounts payable to
any Participant, and no Participant shall have any rights that are greater
than those of a general unsecured creditor of the
Company.
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All
obligations of the Company under the Plan with respect to Awards shall be
binding on any successor to the Company, whether the existence of such
successor is the result of a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all the business
and/or assets of the Company.
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If
any provision of the Plan or any Award is determined to be invalid,
illegal or unenforceable in any jurisdiction, or as to any person, or
would disqualify the Plan or any Award under any law deemed applicable by
the Committee, such provision shall be construed or deemed amended to
conform to applicable laws, or, if it cannot be so construed or deemed
amended without, in the Committee’s determination, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to
such jurisdiction, person or Award, and the remainder of the Plan and any
such Award shall remain in full force and
effect.
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The
Plan, all Awards granted thereunder and all determinations made and
actions taken pursuant hereto, to the extent not otherwise governed by the
laws of the United States, shall be governed by the laws of the State of
Illinois without giving effect to principles of conflicts of
law. Participants irrevocably consent to the nonexclusive
jurisdiction and venue of the state and federal courts located in the
State of Illinois.
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The
granting of Awards and the issuance of shares of Common Stock under the
Plan are subject to all applicable laws, rules and regulations and to such
approvals by any governmental agencies or national securities exchanges as
may be required.
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The
effective date (the “Effective Date”) is the
date on which the Plan is adopted by the Board. If the
stockholders of the Company do not approve the Plan within 12 months
after the Board’s adoption of the Plan, any Incentive Stock Options
granted under the Plan will be treated as Nonqualified Stock
Options.
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APPENDIX A
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DEFINITIONS
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As
used in the Plan,
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“Acquired Entity” means
any entity acquired by the Company or a Related Company or with which the
Company or a Related Company merges or combines.
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“Alternative Public
Offering” means the series of related transactions in which (i)
Confederate Acquisition Corp. merges into Confederate Motor Company, Inc.
with Confederate Motor Company, Inc. as the surviving corporation, (ii)
Confederate Motor Company, Inc. becomes a wholly-owned subsidiary of the
Company, (iii) stockholders of Confederate Motor Company, Inc. receive
shares of common stock of the Company in exchange for their shares of
capital stock of Confederate Motor Company, Inc., and (iv) the Company
issues shares of Common Stock in a private placement of
securities.
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“Award” means any
Option, Stock Appreciation Right, Stock Award, Restricted Stock, Stock
Unit, Performance Share, Performance Unit, cash-based award or other
incentive payable in cash or in shares of Common Stock as may be
designated by the Committee from time to time.
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“Board” means the Board
of Directors of the Company.
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“Cause,” unless otherwise
defined in the instrument evidencing an Award or in a written employment,
services or other agreement between the Participant and the Company or a
Related Company, means dishonesty, fraud, serious or willful misconduct,
unauthorized use or disclosure of confidential information or trade
secrets, or conduct prohibited by law (except minor violations), in each
case as determined by the Company’s chief human resources officer or other
person performing that function or, in the case of directors and executive
officers, the Committee, whose determination shall be conclusive and
binding.
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“Change in Control,”
unless the Committee determines otherwise with respect to an Award
at the time the Award is granted or unless otherwise defined for purposes
of an Award in a written employment, services or other agreement between
the Participant and the Company or a Related Company, means the occurrence
of any of the following events:
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(i)An
acquisition by any individual, entity or group, within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act, (a “Person”) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of more than fifty percent (50%) of either (1) the then outstanding
shares of Common Stock of the Company (the “Outstanding Common
Stock”) or (2) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Voting
Securities”); excluding, however, the following: (1) any
acquisition directly from the Company, other than an acquisition by virtue
of the exercise, exchange or conversion of any Convertible Securities
unless such securities were themselves acquired directly from the Company,
(2) any acquisition by the Company; (3) any acquisition by H. Matthew
Chambers or any Entity that he controls, or (4) any acquisition by any
Person pursuant to a transaction which complies with clauses (1), (2) and
(3) of subsection (iii) of the definition of “Company Transaction”;
or
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(ii)Within
any period of 24 consecutive months, a change in the composition of the
Board such that the individuals who, immediately prior to such period,
constituted the Board (such Board shall be hereinafter referred to as the
“Incumbent Board”) cease for any reason to constitute at least a majority
of the Board; provided, however, for purposes hereof, that any individual
who becomes a member of the Board during such period, whose election, or
nomination for election by the Company’s stockholders, was approved by a
vote of at least a majority of those individuals who are members of the
Board and who were also members of the Incumbent Board (or deemed to be
such pursuant to this proviso) shall be considered as though such
individual were a member of the Incumbent Board; but, provided further,
that any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board shall not be so considered
as a member of the Incumbent Board; or
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(iii)A
Company Transaction; or
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(iv) The
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company, other than to an entity pursuant to a
transaction which would comply with clauses (1), (2) and (3) of the
definition of “Company Transaction”, assuming for this purpose that such
transaction were a Company
Transaction.
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For
purposes of the definition of “Change of Control” and “Company
Transaction”, a series of transactions undertaken with a common purpose
shall be treated as a single transaction that begins at the consummation
of the first transaction in the series and ends at the consummation of the
last transaction in the series.
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“Company
Transaction” means the
consummation of (i) a reorganization, merger or consolidation of the
Company or (ii) the sale or other disposition of all or substantially all
of the assets of the Company and its direct and indirect subsidiaries
taken as a whole, except in each case a transaction pursuant to
which (1) all or substantially all of the individuals and entities who are
the beneficial owners, respectively, of the Outstanding Common Stock and
Outstanding Voting Securities immediately prior to such transaction will
beneficially own, directly or indirectly, more than sixty percent (60%)
of, respectively, the outstanding shares of common stock, and the combined
voting power of the outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the entity
resulting from such transaction (including, without limitation, an entity
which as a result of such transaction owns the Company or all or
substantially all of the Company’s assets, either directly or through one
or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such transaction, of the Outstanding
Common Stock and Outstanding Voting Securities, as the case may be, (2) no
Person (other than the Company) will beneficially own, directly or
indirectly, more than
twenty-five percent (25%) of, respectively, the outstanding shares of
common stock of the Company resulting from such transaction or the
combined voting power of the outstanding voting securities of such Company
entitled to vote generally in the election of directors, except to the
extent that such ownership existed with respect to the Company prior to
the transaction, and (3) individuals who were members of the Board
immediately prior to the approval by the stockholders of the Company of
such transaction will constitute at least a majority of the members of the
board of directors of the Company resulting from such transaction.
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“Convertible Security”
means any security convertible into or exchangeable for shares of
Common Stock of the Company, or any option, warrant or other right to
acquire shares of Common Stock of the Company.
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“Code” means the
Internal Revenue Code of 1986, as amended from time to
time.
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“Committee” has the
meaning set forth in Section 3.2.
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“Common Stock” means the
common stock of the Company.
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“Company” means
Confederate Motors, Inc., a Delaware corporation.
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“Compensation Committee”
means the Compensation Committee (if any) of the Board.
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“Disability,” unless otherwise
defined by the Committee for purposes of the Plan or in the instrument
evidencing an Award or in a written employment, services or other
agreement between the Participant and the Company or a Related Company,
means a mental or physical impairment of the Participant that is expected
to result in death or that has lasted or is expected to last for a
continuous period of 12 months or more and that causes the
Participant to be unable to perform his or her material duties for the
Company or a Related Company and to be engaged in any substantial gainful
activity, in each case as determined by the Company’s chief human
resources officer or other person performing that function or, in the case
of directors and executive officers, the Committee, whose determination
shall be conclusive and binding.
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“Effective Date” has the
meaning set forth in Section 19.
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“Eligible Person” means
any person eligible to receive an Award as set forth in
Section 5.
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“Entity” means any
individual, entity or group (within the meaning of Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act).
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“Exchange Act” means the
Securities Exchange Act of 1934, as amended from time to
time.
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“Fair Market Value”
means the closing price for the Common
Stock on any given date during regular trading, or if not trading on that
date, such price on the last preceding date on which the Common Stock was
traded, unless determined otherwise by the Committee using such methods or
procedures as it may establish.
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“Grant Date” means the
later of (a) the date on which the Committee completes the corporate
action authorizing the grant of an Award or such later date specified by
the Committee and (b) the date on which all conditions precedent to
an Award have been satisfied, provided that conditions to the
exercisability or vesting of Awards shall not defer the Grant
Date.
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“Incentive Stock Option”
means an Option granted with the intention that it qualify as an
“incentive stock option” as that term is defined for purposes of Section
422 of the Code or any successor
provision.
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“including”, “include”,
“includes” and words of similar import shall be construed broadly
as if followed by the phrase “without limitation”.
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“Nonqualified Stock Option”
means an Option other than an Incentive Stock
Option.
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“Option” means a right
to purchase Common Stock granted under Section 7.
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“Option Expiration Date”
means the last day of the maximum term of an
Option.
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“Outstanding Company Common
Stock” has the meaning set forth in the definition of “Change in
Control.”
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“Outstanding Company Voting
Securities” has the meaning set forth in the definition of “Change
in Control.”
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“Parent Company” means a
company or other entity which as a result of a Company Transaction owns
the Company or all or substantially all of the Company’s assets either
directly or through one or more subsidiaries.
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“Participant” means any
Eligible Person to whom an Award is granted.
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“Performance Award”
means an Award of Performance Shares or Performance Units granted
under Section 11.
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“Performance Share”
means an Award of units denominated in shares of Common Stock granted
under Section 11.1.
|
“Performance Unit” means
an Award of units denominated in cash or property other than shares of
Common Stock granted under Section 11.2.
|
“Plan” means the
Confederate Motors, Inc. 2008 Incentive Plan.
|
‘‘Related Company” means
any entity that is directly or indirectly controlled by, in control of or
under common control with the Company.
|
“Restricted Stock” means
an Award of shares of Common Stock granted under Section 10, the
rights of ownership of which are subject to restrictions prescribed by the
Committee.
|
“Retirement,” unless otherwise
defined in the instrument evidencing the Award or in a written employment,
services or other agreement between the Participant and the Company or a
Related Company, means “Retirement” as defined for purposes of the Plan by
the Committee or the Company’s chief human resources officer or other
person performing that function or, if not so defined, means Termination
of Service on or after the date the Participant reaches “normal retirement
age,” as that term is defined in Section 411(a)(8) of the
Code.
|
“Securities Act” means
the Securities Act of 1933, as amended from time to
time.
|
“Stock Appreciation
Right” or “SAR” means a right
granted under Section 9.1 to receive the excess of the Fair Market
Value of a specified number of shares of Common Stock over the grant
price.
|
“Stock Award” means an
Award of shares of Common Stock granted under Section 10, the rights
of ownership of which are not subject to restrictions prescribed by the
Committee.
|
“Stock Unit” means an
Award denominated in units of Common Stock granted under Section
10.
|
“Substitute Awards”
means Awards granted or shares of Common Stock issued by the Company in
substitution or exchange for awards previously granted by an Acquired
Entity.
|
“Successor Company”
means the surviving company, the successor company or Parent
Company, as applicable, in connection with a Company
Transaction.
|
“Termination of Service”
means a termination of employment or service relationship with the Company
or a Related Company for any reason, whether voluntary or involuntary,
including by reason of death, Disability or Retirement. Any
question as to whether and when there has been a Termination of Service
for the purposes of an Award and the cause of such Termination of Service
shall be determined by the Company’s chief human resources officer or
other person performing that function or, with respect to directors and
executive officers, by the Committee, whose determination shall be
conclusive and binding. Transfer of a Participant’s employment
or service relationship between the Company and any Related Company shall
not be considered a Termination of Service for purposes of an
Award. Unless the Committee determines otherwise, a Termination
of Service shall be deemed to occur if the Participant’s employment or
service relationship is with an entity that has ceased to be a Related
Company. A Participant’s change in status from an employee of
the Company or a Related Company to a consultant, advisor or independent
contractor of the Company or a Related Company or a change in status from
a consultant, advisor or independent contractor of the Company or a
Related Company to an employee of the Company or a Related Company, shall
not be considered a Termination of Service.
|
“Vesting Commencement
Date” means the Grant Date or such other date selected by the
Committee as the date from which an Award begins to
vest.
|
PLAN
ADOPTION AND AMENDMENTS/ADJUSTMENTS
|
SUMMARY
PAGE
|
Date of
Board
Action
|
Action |
Section/Effect
of Amendment
|
Date of
Stockholder
Approval
|
, 2008 | Initial Plan Adoption | , 2008 |
This ‘PRE 14C’ Filing | Date | Other Filings | ||
---|---|---|---|---|
11/24/08 | ||||
11/4/08 | DEF 14C | |||
11/3/08 | DEF 14C | |||
Filed on / For Period End: | 10/23/08 | |||
10/22/08 | ||||
10/1/08 | ||||
8/31/08 | 10-Q | |||
5/31/08 | 10-Q | |||
2/28/08 | ||||
11/30/07 | 10KSB | |||
5/5/05 | ||||
List all Filings |