SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934, as amended
Check the appropriate box:
[X] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)
(2))
[ ] Definitive Information Statement
ASSURE DATA, INC.
(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction applies:
(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.):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] 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.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
ASSURE DATA, INC.
6680 Yosemite
Dallas, Texas 75214
To the Stockholders of Assure Data, Inc.:
On May 22, 2008, our Board of Directors adopted a resolution to amend
and restate our Articles of Incorporation to increase the aggregate number of
shares that we will have the authority to issue from 100,000,000 to 200,000,000
shares, of which 100,000,000 shares will be shares of common stock, and
100,000,000 shares will be shares of preferred stock. In addition, the Board of
Directors approved the Company's 2008 Equity Incentive Plan (the "Plan") and
commended it to the stockholders for approval.
All of the foregoing matters are described in more detail in the
attached Information Statement, and all capitalized terms are defined therein as
well.
On May 22, 2008, the holders of approximately 57.9% of our common stock
approved the amendment and restatement of our Articles of Incorporation and the
Plan by written consent to be effective twenty (20) days from the date of the
mailing of this Information Statement.
This Information Statement is being sent to you for informational
purposes only. We are not asking for a proxy or vote on any of the matters
described therein. However, we encourage you to read the Information Statement
carefully.
Sincerely,
Robert Lisle, President
Dallas, Texas
______________, 2008
ASSURE DATA, INC.
6680 Yosemite
Dallas, Texas 75214
INFORMATION STATEMENT
AND
NOTICE OF ACTION TAKEN WITHOUT A MEETING
This Information Statement and Notice of Action Taken Without a Meeting
is being furnished by the Board of Directors (the "Board") of Assure Data, Inc.
(the "Company," "we", "our" or "us") to the holders of our common stock, $0.001
par value per share (the "common stock") at May 28, 2008 (the "Record Date") in
connection with the following matters:
o The filing of the Amended and Restated Articles of Incorporation, in
the form attached hereto as Annex A, which will increase the aggregate
number of shares which we will have the authority to issue from
100,000,000 to 200,000,000 shares, of which 100,000,000 shares will be
shares of common stock, and 100,000,000 shares will be shares of
preferred stock (the "Amendment").
o The adoption of the Company's 2008 Equity Incentive Plan, in the form
attached hereto as Annex B (the "Plan").
Pursuant to Section 78.320 of the Nevada Revised Statutes (the "NRS"),
any action that may be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. Under federal
law these proposals may not be effected until at least twenty (20) days after
this Information Statement has first been sent to our stockholders, at which
time, we intend to file the Amendment with the Nevada Secretary of State.
Our Board obtained the required approval for the Amendment and the Plan
by means of a written consent of stockholders, dated May 22, 2008. A meeting to
approve the Amendment and the Plan is therefore unnecessary, and our Board
decided to forego the expense of having one.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
This Information Statement is first being mailed on or about
________________, 2008, to the holders of our outstanding Common Stock as of the
Record Date.
ABOUT THE INFORMATION STATEMENT
GENERAL
The Company will pay all costs associated with the distribution of this
Information Statement, including the costs of printing and mailing. The Company
will reimburse brokerage firms and other custodians, nominees and fiduciaries
for reasonable expenses incurred by them in sending this Information Statement
to the beneficial owners of the Company's common stock.
The Company will only deliver one Information Statement to multiple
security holders sharing an address unless the Company has received contrary
instructions from one or more of the security holders. Upon written or oral
request, the Company will promptly deliver a separate copy of this Information
Statement and any future annual reports and information statements to any
security holder at a shared address to which a single copy of this Information
Statement was delivered, or deliver a single copy of this Information Statement
and any future annual reports and information statements to any security holder
or holders sharing an address to which multiple copies are now delivered. You
should direct any such requests to the following address:
Assure Data, Inc.
c/o Robert Lisle
6680 Yosemite
Dallas, Texas 75214
Fax #: (214) 824-1030
WHAT IS THE PURPOSE OF THE INFORMATION STATEMENT?
This information statement is being furnished to you pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to notify the Company's stockholders as of the close of business on the
Record Date of the approval of the Amendment and the Plan. Three stockholders
holding 57.9% of the Company's outstanding common stock consented to the
Amendment and the Plan pursuant to a written consent dated as of May 22, 2008.
WHO IS ENTITLED TO NOTICE?
Each outstanding share of common stock as of record on the close of
business on the Record Date, which is May 28, 2008, will be entitled to notice
of the approval of the Amendment and the Plan. Under the NRS, all the activities
requiring stockholders approval may be taken by obtaining the written consent
and approval of more than 50% of the holders of voting stock in lieu of a
meeting of the stockholders. No action by the minority stockholders in
connection with the Amendment and the Plan is required.
WHAT CONSTITUTES THE VOTING SHARES OF THE COMPANY?
The voting power entitled to vote on the proposals consists of the vote
of the holders of a majority of the voting power of the common stock, each of
whom is entitled to one vote per share. As of the record date, 1,640,000 shares
of common stock were issued and outstanding.
WHAT VOTE IS REQUIRED TO APPROVE THE PROPOSALS?
The affirmative vote of a majority of the shares of our common stock
outstanding on the Record Date is required for approval of the Amendment and the
Plan. The approval of such majority was obtained pursuant to a written consent
dated as of May 22, 2008.
OUTSTANDING SHARES AND VOTING RIGHTS
As of the Record Date, the Company's authorized capitalization
consisted of 100,000,000 shares of common stock, of which 1,640,000 shares were
issued and outstanding. Holders of common stock of the Company have no
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preemptive rights to acquire or subscribe to any of the additional shares of
common stock. The following shareholders (holding the indicated number of
shares) voted in favor of the proposals:
Holder Number of Shares Percentage
- ------ ---------------- ----------
Robert Lisle 266,667 16.26%
Max Kipness 266,667 16.26%
Patricia Gunter 416,666 25.4%
Pursuant to Rule 14c-2 under the Exchange Act, the Amendment and the
Plan will not be effected until a date at least twenty (20) days after the date
on which this Information Statement has been mailed to the stockholders. The
Company anticipates that the Amendment will be filed on or about the close of
business on _______________, 2008. The Company has asked brokers and other
custodians, nominees and fiduciaries to forward this Information Statement to
the beneficial owners of the common stock held of record by such persons and
will reimburse such persons for out-of-pocket expenses incurred in forwarding
such material. This Information Statement will serve as written notice to
stockholders pursuant to the NRS.
SECURITY OWNERSHIP OF DIRECTORS, MANAGEMENT AND PRINCIPAL STOCKHOLDERS
The following table sets forth information with respect to the
beneficial ownership of the Company's common stock as of May 22, 2008 by: (1)
each person who is a beneficial owner of more than 5% of the Company's common
stock, (2) each of the Company's directors, (3) each of the Company's named
executive officers, and (4) all of the Company's executive officers and
directors as a group. Unless otherwise indicated, the address of each listed
person is in care of us at 6680 Yosemite, Dallas, Texas 75214.
Name Shares of Common Stock
Number of Shares Owned % Total
Number of Shares Outstanding Shares
Robert Lisle 266,667 16.26
6680 Yosemite
Dallas, Texas 75214
Max Kipness 266,667 16.26
549 Valley View Drive
Lewisville, Texas 75067
Patricia Gunter 416,666 25.40
174 FM 1830
Argyle, Texas 76226
All officers and directors
as a group (2 persons) 533,334 32.52
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act, requires the Company's directors,
executive officers, and individuals who own more than 10% of a registered class
of the Company's equity securities to file initial reports of ownership and
changes in ownership of common stock with the Commission. Such persons are
required by applicable regulations to furnish us with copies of all Section
16(a) reports that they file.
To the Company's knowledge, based solely on the review of the copies of
such reports furnished to the Company, all of the Company's directors, officers
and 10% stockholders have complied with the applicable Section 16(a) reporting
requirements for the fiscal year ended December 31, 2007.
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INCREASE THE AGGREGATE NUMBER OF SHARES THAT WE WILL HAVE THE AUTHORITY TO ISSUE
FROM 100,000,000 TO 200,000,000 SHARES, OF WHICH, 100,000,000 SHARES WILL BE
SHARES OF COMMON STOCK, AND 100,000,000 SHARES WILL BE SHARES OF PREFERRED STOCK
The Amendment does not make any change in the number of authorized
shares of common stock, and there will continue to be 1,640,000 shares of common
stock issued and outstanding after the Amendment is filed.
The effect of the Amendment is to create a new class of preferred stock
that may be issued from time to time upon authorization by the Board of
Directors of one or more series of preferred shares having the rights and
preference determined by the Board of Directors.
The Board of Directors of the Company will have the authority to divide
the authorized preferred stock into series, the shares of each series to have
such relative rights and preferences as shall be fixed and determined by the
Board of Directors. The provisions of a particular series of authorized
preferred stock, as designated by the Board of Directors, may include
restrictions on the payment of dividends on common stock. Such provisions may
also include restriction son the ability of the Company to purchase shares of
common stock or to purchase or redeem shares of a particular series of
authorized preferred stock. Depending upon the voting rights granted to any
series of authorized preferred stock, issuance thereof could result in a
reduction in the voting power of the holders of common stock. In the event of
any dissolution, liquidation or winding up of the Company, whether voluntary or
involuntary, the holders of the preferred stock will receive, in priority over
the holders of common stock, a liquidation preference established by the Board
of Directors, together with accumulated and unpaid dividends. Depending upon the
consideration paid for authorized preferred stock, the liquidation preference of
authorized preferred stock and other matters, the issuance of authorized
preferred stock could result in a reduction in the assets available for
distribution to the holders of common stock in the event of the liquidation of
the Company.
There are no plans or obligations to issue any shares of preferred
stock. The purpose of the Amendment is to provide the Company with a more
flexible capital structure that may facilitate additional investment in the
Company.
The proposed increase in the authorized number of shares of preferred
stock could have a number of effects on the Company's stockholders depending
upon the exact nature and circumstances of any actual issuances of authorized
but unissued shares. The increase could have an anti-takeover effect, in that
additional shares could be issued (within the limits imposed by applicable law)
in one or more transactions that could make a change in control or takeover of
the Company more difficult. For example, additional shares could be issued by
the Company so as to dilute the stock ownership or voting rights of persons
seeking to obtain control of the Company, even if the persons seeking to obtain
control of the Company offer an above-market premium that is favored by a
majority of the independent shareholders. Similarly, the issuance of additional
shares to certain persons allied with the Company's management could have the
effect of making it more difficult to remove the Company's current management by
diluting the stock ownership or voting rights of persons seeking to cause such
removal. The Company does not have any other provisions in its articles or
incorporation, bylaws, employment agreements, credit agreements or any other
documents that have material anti-takeover consequences. Additionally, the
Company has no plans or proposals to adopt other provisions or enter into other
arrangements, except as disclosed below, that may have material anti-takeover
consequences. The Board is not aware of any attempt, or contemplated attempt, to
acquire control of the Company, and this proposal is not being presented with
the intent that it be utilized as a type of anti- takeover device.
APPROVAL OF THE COMPANY'S 2008 EQUITY INCENTIVE PLAN
General
On May 22, 2008, the Board of Directors approved, subject to
stockholder approval, the Company's 2008 Equity Incentive Plan (the "Plan"). The
Plan provides that key employees, consultants and non-employee directors of the
Company or an affiliate ("eligible participants") may be granted: (1) options to
acquire shares of the Company's common stock, (2) shares of restricted common
stock (3) stock appreciation rights, (4) performance-based awards, (4) "Dividend
Equivalents," and (5) other stock-based awards (collectively, "Awards"). The
Plan will permit eligible participants to acquire a proprietary interest in the
growth and performance of the Company. The purposes of the Plan are to (1)
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increase the incentive of its participants to contribute to the Company's
success and prosperity, thus enhancing stockholder value, and (2) to provide the
Company with a proven means to attract and retain exceptionally qualified
individuals upon whom, in large measure, the sustained progress, growth and
profitability of the Company depend.
The Company is seeking stockholder approval for the future issuance of
options under the Plan to allow its participants to acquire up to 5,000,000
shares of the Company's common stock.
The Plan is included in this Proxy Statement as Annex B, and reference
is made to Annex B for a full description of the terms of the Plan.
Board Recommendation
The Board of Directors recommended that the majority stockholders vote
to approve the Plan, and such approval was obtained on May 22, 2008 to become
effective 20 days after the mailing of this Information Statement.
Description of the Plan
The following summary describes the principal provisions of the Plan.
The summary does not purport to be complete and is qualified in its entirety by
the full text of the Plan attached as Annex B to this proxy statement.
The total number of shares of common stock that may be subject to
Awards under the Plan will not exceed five million shares (subject to customary
adjustments as provided in the Plan). Such number of shares is subject to
adjustment by the committee established to administer the Plan or by the Board
of Directors if there are no independent directors (the "Committee"), in the
event of a recapitalization, stock split, stock dividend or similar corporate
transaction. Such shares may be either authorized or unissued shares or shares
held in treasury.
The Plan is generally designed to meet the requirements of Section
162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), in order
to preserve the Company's ability to take compensation expense deductions in
connection with the exercise of options granted and the vesting of
performance-based restricted stock under the Plan in certain circumstances.
Under Code Section 162(m), a publicly held corporation is not permitted to take
a federal income tax deduction for compensation recognized by certain executive
officers in any year in excess of $1,000,000, unless such compensation meets the
stockholder approval and other requirements of Code Section 162(m).
The Plan is administered by the Committee, which must be comprised of
not less than two individuals appointed by the Board of Directors, each of whom
is (1) to the extent required by Rule 16b-3 and the Exchange Act, a
"non-employee director," and (2) to the extent required by Code Section 162(m),
an "outside director". Until the Company has independent directors, the whole
Board of Directors will make such rules and regulations and establish such
procedures for the administration of the Plan as it deems advisable.
The Committee may grant Awards under the Plan to eligible participants.
The Committee has the discretion, in accordance with the provisions of the Plan,
to determine the terms of the Award, to whom an Award is granted and the number
of shares of stock subject to the Award.
Stock Options
An option granted under the Plan may be an incentive stock option (an
"ISO") or may be a non-qualified stock option (a "Non-ISO"), as determined at
the time of grant. In certain circumstances, the grant of Non-ISOs, as opposed
to ISOs, can result in federal income tax advantages to the Company.
The exercise price for options may not be less than the fair market
value of the stock on the date of the grant of the options. The Plan provides
that optionees may pay the exercise price: (1) in cash, (2) by delivery to the
Company of shares of the Company's common stock owned by the participant, (3)
with other securities, (4) with other Awards, (5) with other property, or (6) in
any combination of the above, in each case on such other terms and conditions as
may be acceptable to the Committee (which may include payment in installments or
on a deferred basis).
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An option granted under the Plan may not be exercised later than the
date specified by the Committee, which will be a maximum of 10 years from the
date of the grant.
Restricted Stock
The Committee may award "restricted" shares of the Company's common
stock and restricted stock units, which are grants of common stock or Awards
designated in shares of restricted stock that are subject to risk of forfeiture
or other restrictions. Shares of restricted stock and restricted stock units
will be subject to such restrictions as the Committee may impose (including,
without limitation, any limitation on the right to receive any dividend or other
right or property), which restrictions may lapse separately or in combination at
such time or times, in such installments or otherwise, as the Committee may deem
appropriate.
Except as otherwise determined by the Committee, upon termination of
employment (as determined under criteria established by the Committee) for any
reason during the applicable restriction period, all shares of restricted stock
and all restricted stock units still, in either case, subject to restriction,
shall be forfeited and reacquired by the Company; provided, however, that the
Committee may, when it finds that a waiver would be in the best interests of the
Company, waive in whole or in part any or all remaining restrictions with
respect to shares of restricted stock or restricted stock units.
Stock Appreciation Rights
The Committee is authorized to grant eligible participants stock
appreciation rights. A stock appreciation right gives the recipient a right to
receive, upon exercise of the stock appreciation right, the excess of (1) the
fair market value (as determined by the Committee) of one share of common stock
on the date of exercise or, if the Committee determines in the case of any such
right other than one related to any ISO, at any time during a specified period
before or after the date of exercise over (2) the grant price of the right, as
specified by the Committee. The grant price, term, methods of exercise, methods
of settlement, and any other terms and conditions of any stock appreciation
right are determined by the Committee. The Committee may impose such conditions
or restrictions on the exercise of any stock appreciation right as it may deem
appropriate.
Performance Awards
The Committee is authorized to grant eligible participants performance
awards. A performance award granted under the Plan (1) may be denominated or
payable in cash, shares of common stock (including, without limitation,
restricted stock), other securities, other Awards, or other property and (2)
confer on the recipient rights valued as determined by the Committee and payable
to, or exercisable by, the recipient, in whole or in part, upon the achievement
of such performance goals during such performance periods as the Committee shall
establish. The performance goals to be achieved during any performance period,
the length of any performance period, the amount of any performance award
granted, and the amount of any payment or transfer to be made pursuant to any
performance award shall be determined by the Committee. The goals established by
the Committee will be based on any one, or combination of, earnings per share,
return on equity, return on assets, total stockholder return, net operating
income, cash flow, revenue, economic value added, increase in the price of the
Company's common stock, cash flow return on investment, or any other measure the
Committee deems appropriate. Partial achievement of the goal(s) may result in a
payment or vesting corresponding to the degree of achievement.
Dividend Equivalents
The Committee is authorized to grant Awards under which the recipients
are entitled to receive payments equivalent to dividends or interest with
respect to a number of shares of common stock determined by the Committee, and
the Committee may provide that such amounts (if any) shall be deemed to have
been reinvested in additional shares of common stock or otherwise reinvested.
Such Awards may have such terms and conditions as the Committee determines.
Other Stock-Based Awards
The Committee is also authorized to grant other Awards that are
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on or related to, shares of common stock (including, without
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limitation, securities convertible into shares of common stock), as are deemed
by the Committee to be consistent with the purposes of the Plan. The Committee
determines the terms and conditions of such Awards.
Miscellaneous
Awards granted under the Plan generally are not transferable, except
that the Committee may, in its sole discretion and subject to certain
limitations, permit the transfer of Non-ISOs at the time of grant or thereafter
for estate planning purposes. No Awards may be granted under the Plan after May
31, 2018.
The number of Awards that may be granted under the Plan to executive
officers is not determinable at this time.
COMMON STOCK AND DIVIDEND POLICY
Market Information
Our common stock is traded in the over-the-counter market on the NASDAQ
OTC Bulletin Board under the symbol ASDI. To our knowledge, here are no active
market makers in our stock. The 2-week high was $1.30 and 52-week low was $1.00.
Holders
As of May 22, 2008, 1,640,000 common shares of the Company's common
stock are held by thirteen holders of records.
Dividends
We have never paid any dividends, and we do not anticipate any stock or
cash dividends, and we do not anticipate any sock or cash dividends on our
common stock foreseeable future.
DISSENTERS' RIGHTS OF APPRAISAL
Pursuant to the NRS, no stockholder that objects to the Amendment or
the Plan will have any right to receive from us the fair value of his, her or
its shares. The NRS provides that any provision of our Amended and Restated
Articles of Incorporation may be amended by approval of the Board and the
affirmative written consent of the holders of a majority of the voting power of
the outstanding shares entitled to vote thereon; provided that, any amendment
that would adversely affect the rights of the holders of any class or series of
capital stock must be approved by the holders of a majority of the shares of
such class or series. The Amendment and the Plan were adopted by the holders of
a majority of the shares entitled to vote thereon.
ADDITIONAL INFORMATION
PLEASE READ THIS ENTIRE DOCUMENT. Further information is available by
request or can be accessed on the Internet. We are subject to the informational
requirements of the Exchange Act, and in accordance therewith, file annual and
quarterly reports, proxy and information statements and other disclaimers with
the SEC. These documents and other information can be accessed electronically by
means of the SEC's home page on the Internet at http://www.sec.gov or at other
Internet sites such as http://www.freeedgar.com.
By Order of the Board of Directors,
Robert Lisle,
President
Dallas, Texas
_______________, 2008
Annex A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ASSURE DATA, INC.
The undersigned President of Assure Data, Inc., a Nevada corporation,
has hereby executed these Restated Articles of Incorporation of the Company,
pursuant to the requirements of NRS 78.403. These Restated Articles of
Incorporation were approved by the Board of Directors and by a written consent
of the holders of 57.9% of the outstanding shares of common stock.
ARTICLE ONE
The name of the Corporation is Assure Data, Inc.
ARTICLE TWO
The address of the Corporation's principal office in the State of
Nevada is 6100 Neil Road, Suite 500, Reno Nevada 89511, and the name of its
registered agent at such address is The Corporation Trust Company of Nevada.
ARTICLE THREE
The duration of the Corporation shall be perpetual.
ARTICLE FOUR
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 Nevada corporation laws (Chapter 78 of the Nevada Revised Statutes
(the "NRS").
ARTICLE FIVE
The Corporation shall have authority to issue two classes of stock, and
the total number authorized shall be one hundred million (100,000,000) shares of
Common Stock of the par value of ($.001) each, and one hundred million
(100,000,000) shares of Preferred Stock of the par value of ($.001) each. A
description of the different classes of stock of the Corporation and a statement
of the designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, in respect of each class of
such stock are as follows:
Issuance in Class or Series. The Preferred Stock may be issued from
time to time in one or more series, or divided into additional classes and such
classes into one or more series. The terms of a class or series, including all
rights and preferences, shall be as specified in the resolution or resolutions
adopted by the Board of Directors designating such class or series, which
resolution or resolutions the Board of Directors is hereby expressly authorized
to adopt. Such resolution or resolutions with respect to a class or series shall
specify all or such of the rights or preferences of such class or series as the
Board of Directors shall determine, including the following, if applicable: (a)
the number of shares to constitute such class or series and the distinctive
designation thereof; (b) the dividend or manner for determining the dividend
payable with respect to the shares of such class or series and the date or dates
from which dividends shall accrue, whether such dividends shall be cumulative,
and, if cumulative, the date or dates from which dividends shall accumulate and
whether the shares in such class or series shall be entitled to preference or
priority over any other class or series of stock of the Corporation with respect
to payment of dividends; (c) the terms and conditions, including price or a
manner for determining the price, of redemption, if any, of the shares of such
class or series; (d) the terms and conditions of a retirement or sinking fund,
if any, for the purchase or redemption of the shares of such class or series;
(e) the amount which the shares of such class or series shall be entitled to
receive, if any, in the event of any liquidation, dissolution or winding up of
the Corporation and whether such shares shall be entitled to a preference or
priority over shares of another class or series with respect to amounts received
in connection with any liquidation, dissolution or winding up of the
Corporation; (f) whether the shares of such class or series shall be convertible
into, or exchangeable for, shares of stock of any other class or classes, or any
other series of the same or any other class or classes of stock, of the
Corporation and the terms and conditions of any such conversion or exchange; (g)
the voting rights, if any, of shares of stock of such class or series in
addition to those granted herein; (h) the status as to reissuance or sale of
shares of such class or series redeemed, purchased or otherwise reacquired, or
surrendered to the Corporation upon conversion; (i) the conditions and
restrictions, if any, on the payment of dividends or on the making of other
distributions on, or the purchase, redemption or other acquisition by the
Corporation or any subsidiary, of any other class or series of stock of the
Corporation ranking junior to such shares as to dividends or upon liquidation;
(j) the conditions, if any, on the creation of indebtedness of the Corporation,
or any subsidiary; and (k) such other preferences, rights, restrictions and
qualifications as the Board of Directors may determine.
All shares of the Common stock shall be of the same class and shall
have equal dividend or distribution, liquidation and other rights.
All shares of the Common Stock shall rank equally, and all shares of
the Preferred Stock shall rank equally, and be identical within their classes in
all respects regardless of series, except as to terms which may be specified by
the Board of Directors pursuant to the above provisions. All shares of any one
series of a class of Preferred Stock shall be of equal rank and identical in all
respects, except that shares of any one series issued at different times may
differ as to the dates on which dividends thereon shall accrue and be
cumulative.
Other Provisions. Shares of Common Stock or Preferred Stock of any
class or series may be issued with such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative participating,
option or special rights, and qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
providing for the issuance of such stock adopted by the Board of Directors. Any
of the voting powers, designations, preferences, rights and qualifications,
limitations or restrictions of any such class or series of stock may be made
dependent upon facts ascertainable outside the resolution or resolutions of the
Board of Directors providing for the issue of such stock by the Board of
Directors, provided the manner in which such facts shall operate upon the voting
powers, designations, preferences, rights and qualifications, limitations or
restrictions or such class or series is clearly set forth in the resolution or
resolutions providing for the issue of such stock adopted by the Board of
Directors. Shares of Common or Preferred Stock reacquired by the Corporation
shall no longer be deemed outstanding and shall have no voting or other rights
unless and until reissued. Shares reacquired by the Corporation may be canceled
and restored to the status of authorized and unissued stock by action of the
Board of Directors.
Common Stock. Except as otherwise provided in any resolution or
resolutions adopted by the Board of Directors, the Common Stock shall (a) have
the exclusive voting power of the corporation; (b) entitle the holders thereof
to one vote per share at all meetings of the stockholders of the Corporation;
(c) entitle the holders to share ratably, without preference over any other
shares of the Corporation, in all assets of the Corporation In the event of any
dissolution, liquidation or winding up of the Corporation; and (d) entitle the
record holder thereof on such record dates as are determined, from time to time,
by the Board of Directors to receive such dividends, if any, if, as and when
declared by the Board of Directors.
ARTICLE SIX
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, which initially shall consist of
one director. The number of directors comprising the Board of Directors shall be
fixed upon resolution of the Board of Directors and may be increased or
decreased from time to time in the manner provided in the bylaws of the
Corporation; except that , at no time shall there be less than one (1) director.
The name, address and category of the initial member of the Board of Directors
is Robert Lisle, 2591 Dallas Parkway, Suite 102, Frisco, Texas 75034.
ARTICLE SEVEN
The name and mailing address of the incorporator of the Corporation is
Maria Ozaeta, c/o CT Corporation System, 350 N. St. Paul Street, Suite 2900,
Dallas, Texas 75201.
ARTICLE EIGHT
Shares of the Corporation shall not be subject to assessment for
payment of the debts of the Corporation.
ARTICLE NINE
The Board of Directors shall have the power to make, adopt, amend, or
repeal the Bylaws of the Corporation.
ARTICLE TEN
In the event that the Board of Directors of the Corporation determines
that it is in the Corporation's best interest to amend these Articles of
Incorporation, the Board of Directors shall adopt a resolution setting forth the
proposed amendment and declaring its advisability and submit the mater to the
stockholders entitled to vote thereon for the consideration thereof in
accordance with the provision of the NRS and these Articles of Incorporation. In
the resolution setting forth the proposed amendment, the Board of Directors may
insert a provision allowing the Board of Directors to later abandon the
amendment, without concurrence by the stockholders, after the amendment has
received stockholder approval but before the amendment is filed with the Nevada
Secretary of State.
ARTICLE ELEVEN
A director or officer of the Corporation shall not be personally liable
to the Corporation or its stockholders for damages for breach of fiduciary duty
as a director or officer, except for: (1) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law; or (2) the payment
of dividends in violation of NRS 78.300. Any repeal or modification of the
provisions of this Article Eleven by the stockholders of the Corporation shall
be prospective only, and shall not adversely affect any limitation on the
personal liability of a director or officer of the Corporation with respect to
any act or omission occurring prior to the effective date of such repeal or
modification. If the Nevada Corporation Law hereafter is amended to authorize
the further elimination or limitation of the liability of directors or officers,
then the liability of a director or officer of the Corporation, in addition to
the limitation on personal liability provided here, shall be limited to the
fullest extent permitted by the amended Nevada Corporation Law.
In the event that any of the provisions of this Article Eleven
(including any provision within a single sentence) is held by a court of
competent jurisdiction to be valid, void or otherwise unenforceable, the
remaining provisions are severable and shall remain enforceable to the fullest
extent permitted by law.
ARTICLE TWELVE
The Corporation shall, to the fullest extent permitted by the
provisions of 78.7502 of the Nevada Revised Statutes, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under the Bylaws, agreement,
vote of stockholders, or disinterested directors, or otherwise, both as to
action his official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Dated: ______________, 2008
ASSURE DATA, INC.
By: /s/ Robert Lisle
------------------------
Robert Lisle, President
Annex B
Assure Data, Inc. 2008 Equity Incentive Plan
1. PURPOSE
The purposes of this Assure Data, Inc. 2008 Equity Incentive Plan (the
"Plan") are to encourage selected employees, outside directors and consultants
of Assure Data, Inc. (together with any successor thereto, the "Company") and
its Affiliates (as defined below) to acquire a proprietary interest in the
growth and performance of the Company, to generate an increased incentive to
contribute to the Company's future success and prosperity, thus enhancing the
value of the Company for the benefit of its stockholders, and to enhance the
ability of the Company and its Affiliates to attract and retain exceptionally
qualified individuals upon whom, in large measure, the sustained progress,
growth and profitability of the Company depend.
2. DEFINITIONS
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Affiliate" shall mean (i) any entity that, directly or
through one or more intermediaries, is controlled by the
Company and (ii) any entity in which the Company has a
significant equity interest, as determined by the Committee.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock, Restricted Stock Unit, Performance Award,
Dividend Equivalent, or Other Stock-Based Award granted under
the Plan.
(c) "Award Agreement" shall mean any written agreement, contract,
or other instrument or document evidencing any Award granted
under the Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(e) "Consultant" shall mean a consultant or adviser who provides
bona fide services to the Company or an Affiliate as an
independent contractor. Service as a consultant shall be
considered employment for all purposes of the Plan, except for
purposes of satisfying the requirements of Incentive Stock
Options.
(f) "Committee" shall mean a committee of the Board of Directors
of the Company, acting in accordance with the provisions of
Section 3, designated by the Board to administer the Plan and
composed of not less than two directors, each of whom is not
an employee of the Company or an Affiliate and meets the
"Non-Employee Director" eligibility requirements imposed by
Rule 16b-3 (or its successor) under the Securities Exchange
Act of 1934, as amended, and each of whom is an outside
director for purposes of Section 162(m) of the Code. In the
absence of directors who are so qualified, the whole Board of
Directors shall act as the Committee.
(g) "Dividend Equivalent" shall mean any right granted under
Section 6(e) of the Plan.
(h) "Employee" shall mean any employee of the Company or of any
Affiliate.
(i) "Fair Market Value" shall mean, with respect to any property
(including, without limitation, any Shares or other
Securities), the fair market value of such property determined
by such methods or procedures as shall be established from
time to time by the Committee.
(j) "Incentive Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is intended to meet the
requirements of Section 422 of the Code, or any successor
provision thereto.
(k) "Non-Qualified Stock Option" shall mean an option granted
under Section 6(a) of the Plan that is not intended to be an
Incentive Stock Option.
(l) "Option" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option.
(m) "Other Stock-Based Award" shall mean any right granted under
Section 6(f) of the Plan.
(n) "Outside Director" shall mean a member of the Board of
Directors of the Company or any Affiliate who is not an
Employee. Service as an Outside Director shall be considered
employment for all purposes of the Plan, except for purposes
of satisfying the requirements of Incentive Stock Options.
(o) "Participant" shall mean an Employee, Outside Director or
Consultant who receives an Award under the Plan.
(p) "Performance Award" shall mean any right granted under Section
6(d) of the Plan.
(q) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated
organization, or government or political subdivision thereof.
(r) "Released Securities" shall mean shares of Restricted Stock as
to which all restrictions imposed by the committee have
expired, lapsed, or been waived.
(s) "Restricted Stock" shall mean any Share granted under Section
6(c) of the Plan.
(t) "Restricted Stock Unit" shall mean any right granted under
Section 6(c) of the Plan that is denominated in Shares.
(u) "Shares" shall mean the shares of common stock of the Company,
$.001 par value, and such other securities or property as may
become the subject of Awards, or become subject to Awards,
pursuant to an adjustment made under Section 4(b) of the Plan.
(v) "Stock Appreciation Right" shall mean any right granted under
Section 6(b) of the Plan.
3. ADMINISTRATION
Except as otherwise provided herein, the Plan shall be administered by
the Committee. Subject to the terms of the Plan and applicable law, the
Committee shall have full power and authority to: (i) designate participants;
(ii) determine the type or types of Awards to be granted to each Participant
under the Plan; (iii) determine the number of Shares to be covered by (or with
respect to which payments, rights, or other matters are to be calculated in
connection with) Awards; (iv) determine the terms and conditions of any award;
(v) determine the time or times when each Award shall become exercisable and the
duration of the exercise period; (vi) determine whether, to what extent, and
under what circumstances Awards may be settled in or exercised for cash, Shares,
other securities, other Awards, or other property, or canceled, forfeited, or
suspended, and the method or methods by which Awards may be settled, exercised,
canceled, forfeited, or suspended; (vii) determine whether, to what extent, and
under what circumstances cash, shares, other securities, other Awards, other
property, and other amounts payable with respect to an Award under the Plan
shall be deferred either automatically or at the election of the holder thereof
or of the Committee; (viii) interpret and administer the Plan and any instrument
or agreement relating to, or Award made under, the Plan; (ix) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; and (x) make any
other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award shall be within
the sole discretion of the Committee, may be made at any time, and shall be
final, conclusive, and binding upon all Persons, including the Company, any
Affiliate, any Participant, any holder or beneficiary of any Award, any
stockholder, and any employee, director or consultant of the Company or of any
Affiliate. In the case of any Award that is intended to qualify as
performance-based compensation for purposes of Section 162(m) of the Code, once
the Award is made, the Committee shall not have discretion to increase the
amount of compensation payable under the Award that would otherwise be due upon
attainment of the performance goal. Actions of the Committee may be taken either
(i) by a subcommittee, designated by the Committee, composed of two or more
members, or (ii) by the Committee but with one or more members abstaining or
recusing himself or herself from acting on the matter, so long as two or more
members remain to act on the matter. Such action, authorized by such a
subcommittee or by the Committee upon the abstention or recusal of such members,
shall be the action of the Committee for purposes of the Plan.
4. SHARES AVAILABLE FOR AWARDS
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section 4(b):
(i) CALCULATION OF NUMBER OF SHARES AVAILABLE. The number of
Shares available for granting Awards under the Plan shall be
5,000,000. Further, if, after the effective date of the Plan,
any Shares covered by an Award granted under the Plan or by an
award granted under a Predecessor Plan, or to which such an
Award or award relates, are forfeited, or if an Award or award
otherwise terminates without the delivery of Shares or of
other consideration, then the Shares covered by such Award or
award, or to which such Award or award relates, or the number
of Shares otherwise counted against the aggregate number of
Shares available under the Plan with respect to such Award or
award, to the extent of any such forfeiture or termination,
shall again be, or shall become, available for granting Awards
under the Plan.
(ii) ACCOUNTING FOR AWARDS. For purposes of this Section 4,
(A) if an Award (other than a Dividend Equivalent) is
denominated in Shares, the number of Shares covered
by such Award, or to which such Award relates, shall
be counted on the date of grant of such Award against
the aggregate number of Shares available for granting
Awards under the Plan; and
(B) Dividend Equivalents and Awards not denominated in
Shares shall not be counted against the aggregate
number of Shares available for granting Awards under
the Plan.
(iii) SOURCES OF SHARES DELIVERABLE UNDER AWARDS. Any shares
delivered pursuant to an Award may consist, in whole or in
part, of authorized and unissued Shares or of Treasury Shares.
(b) ADJUSTMENTS. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares,
other securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up,
spin-off, combination, purchase, or exchange of Shares or other
securities of the Company, issuance of warrants or other rights to
purchase Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall,
in such manner as it may deem equitable, adjust any or all of (i) the
number and type of Shares (or other securities or property) which
thereafter may be made the subject of Awards, (ii) the number and type
of Shares (or other securities or property) subject to outstanding
Awards, (iii) the number and type of Shares (or other securities or
property) specified as the annual per-participant limitation under
Section 6(g)(vi), and (iv) the grant, purchase, or exercise price with
respect to any Award, or, if deemed appropriate, make provision for a
cash payment to the holder of an outstanding Award; provided, however,
in each case, that with respect to Awards of Incentive Stock Options no
such adjustment shall be authorized to the extent that such authority
would cause the Plan to violate Section 422(b)(1) of the Code or any
successor provision thereto; and provided, further, however, that the
number of Shares subject to any award denominated in Shares shall
always be a whole number.
5. ELIGIBILITY
Any Employee, Outside Director or Consultant shall be eligible to
receive Awards under the Plan. Any Awards granted to members of the Committee
shall be approved by the Board of Directors of the Company.
6. AWARDS
(a) OPTIONS. The Committee is hereby authorized to grant Options with the
following terms and conditions and with such additional terms and
conditions, in either case not inconsistent with the provisions of the
Plan, as the Committee shall determine:
(i) EXERCISE PRICE. The exercise price per Share of each Option
shall be determined by the committee; provided, however, that
such exercise price per Share under any Incentive Stock Option
shall not be less than 100% (110% in the case of a "10-percent
stockholder as such term is used in Section 422(c)(5) of the
Code") of the Fair Market Value of a Share on the date of
grant of such Incentive Stock Option.
(ii) OPTION TERM. The term of each Option shall be fixed by the
Committee, provided that no Incentive Stock Option shall have
a term greater than 10 years (5 years in the case of a
"10-percent stockholder") as such term is used in Section
422(c)(5) of the Code).
(iii) TIME AND METHOD OF EXERCISE. The Committee shall determine the
time or times at which an Option may be exercised in whole or
in part, and the method or methods by which, property, or any
combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price, in which,
payment of the exercise price with respect thereto may be made
or deemed to have been made.
(iv) INCENTIVE STOCK OPTIONS. The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects
with the provisions of Section 422 of the Code, or any
successor provision thereto, and any regulations promulgated
thereunder.
(b) STOCK APPRECIATION RIGHTS. The Committee is hereby authorized to grant
Stock Appreciation Rights. A Stock Appreciation Right granted under the
Plan shall confer on the holder thereof a right to receive, upon
exercise thereof, the excess of (i). the Fair Market Value of one Share
on the date of exercise or, if the Committee shall so determine in the
case of any such right other than one related to any Incentive Stock
Option, at any time during a specified period before or after the date
of exercise over (ii). the grant price of the right as specified by the
Committee. Subject to the terms of the Plan, the grant price, term,
methods of exercise, methods of settlement, and any other terms and
conditions of any Stock Appreciation Right shall be as determined by
the Committee. The Committee may impose such conditions or restrictions
on the exercise of any Stock Appreciation Right as it may deem
appropriate.
(c) RESTRICTED STOCK AND RESTRICTED STOCK UNITS.
(i) ISSUANCE. The Committee is hereby authorized to grant Awards
of Restricted Stock and Restricted Stock Units.
(ii) RESTRICTIONS. Shares of Restricted Stock and Restricted Stock
Units shall be subject to such restrictions as the Committee
may impose (including, without limitation, any limitation on
the right to receive any dividend or other right or property),
which restrictions may lapse separately or in combination at
such time or times, in such installments or otherwise, as the
Committee may deem appropriate.
(iii) REGISTRATION. Any Restricted Stock granted under the Plan may
be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry
registration or issuance of a stock certificate or
certificates. In the event any stock certificate is issued in
respect of Shares of restricted Stock granted under the Plan,
such certificate shall be registered in the name of the
Participant and shall bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such
Restricted Stock.
(iv) FORFEITURE. Except as otherwise determined by the Committee,
upon termination of employment (as determined under criteria
established by the Committee) for any reason during the
applicable restriction period, all Shares of Restricted Stock
and all Restricted Stock Units still, in either case, subject
to restriction shall be forfeited and reacquired by the
Company; provided, however, that the Committee may, when it
finds that a waiver would be in the best interests of the
Company, waive in whole or in part any or all remaining
restrictions with respect to Shares of Restricted Stock or
Restricted Stock Units. Unrestricted Shares, evidenced in such
manner as the Committee shall deem appropriate, shall be
delivered to the Participant promptly after such Restricted
Stock shall become Released Securities.
(d) PERFORMANCE AWARDS. The Committee is hereby authorized to grant
Performance Awards. Subject to the terms of the Plan, a Performance
Award granted under the Plan (i) may be denominated or payable in cash,
Shares (including, without limitation, Restricted Stock), other
securities, other Awards, or other property and (ii) shall confer on
the holder thereof rights valued as determined by the Committee and
payable to, or exercisable by, the holder of the Performance Award, in
whole or in part, upon the achievement of such performance goals during
such performance periods as the Committee shall establish. Subject to
the terms of the Plan and any applicable Award Agreement, the
performance goals to be achieved during any performance period, the
length of any performance period, the amount of any Performance Award
granted, and the amount of any payment or transfer to be made pursuant
to any Performance Award shall be determined by the Committee. The
goals established by the Committee shall be based on any one, or
combination of, earnings per share, return on equity, return on assets,
total stockholder return, net operating income, cash flow, revenue,
economic value added, increase in Share price or cash flow return on
investment, or any other measure the Committee deems appropriate.
Partial achievement of the goal(s) may result in a payment or vesting
corresponding to the degree of achievement.
(e) DIVIDEND EQUIVALENTS. The Committee is hereby authorized to grant
Awards under which the holders thereof shall be entitled to receive
payments equivalent to dividends or interest with respect to a number
of Shares determined by the Committee, and the Committee may provide
that such amounts (if any) shall be deemed to have been reinvested in
additional Shares or otherwise reinvested. Subject to the terms of the
Plan, such Awards may have such terms and conditions as the Committee
shall determine.
(f) OTHER STOCK-BASED AWARDS. The Committee is hereby authorized to grant
such other Awards that are denominated or payable in, valued in whole
or in part by reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible into Shares), as
are deemed by the Committee to be consistent with the purposes of the
Plan, provided, however, that such grants must comply with applicable
law. Subject to the terms of the Plan, the Committee shall determine
the terms and conditions of such Awards.
(g) GENERAL.
(i) NO CASH CONSIDERATION FOR AWARDS. Awards shall be granted for
no cash consideration or for such minimal cash consideration
as may be required by applicable law.
(ii) AWARDS MAY BE GRANTED SEPARATELY OR TOGETHER. Awards may, in
the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for any other
Award or any award granted under any other plan of the Company
or any Affiliate. Awards granted in addition to or in tandem
with other Awards, or in addition to or in tandem with awards
granted under any other plan of the Company or any Affiliate,
may be granted either at the same time or at a different time
from the grant of such other Awards or awards.
(iii) FORMS OF PAYMENT UNDER AWARDS. Subject to the terms of the
Plan and of any applicable Award Agreement, payments or
transfers to be made by the Company or an Affiliate upon the
grant, exercise, or payment of an Award may be made in such
form or forms as the Committee shall determine, including,
without limitation, cash, Shares, other securities other
Awards, or other property, or any combination thereof, and may
be made in a single payment or transfer, in installments, or
on a deferred basis, in each case in accordance with rules and
procedures established by the Committee. Such rules and
procedures may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or
deferred payments or the grant or crediting of Dividend
Equivalents in respect of installment or deferred payments.
(iv) LIMITS ON TRANSFER OF AWARDS. No Award (other than Released
Securities), and no right under any such Award, shall be
assignable, alienable, saleable, or transferable by a
Participant otherwise than by will or by the laws of descent
and distribution; provided, however, that, if so determined by
the Committee, a Participant may, in the manner established by
the Committee, a) designate a beneficiary or beneficiaries to
exercise the rights of the Participant, and to receive any
property distributable, with respect to any Award upon the
death of the Participant or b) transfer any Award other than
an Incentive Stock Option for bona fide estate planning
purposes. Each Award, and each right under any Award, shall be
exercisable, during the Participant's lifetime, only by the
Participant, a permitted transferee or, if permissible under
applicable law, by the Participant's guardian or legal
representative. No Award (other than Released Securities), and
no right under any such Award, may be pledged, alienated,
attached, or otherwise encumbered, and any purported pledge,
alienation, attachment, or encumbrance thereof shall be void
and unenforceable against the Company or any Affiliate.
(v) TERM OF AWARDS. The term of each Award shall be for such
period as may be determined by the Committee; provided,
however, that in no event shall the term of any Incentive
Stock Option exceed a period of ten years from the date of its
grant.
(vi) SHARE CERTIFICATES. All certificates for Shares or other
securities delivered under the Plan pursuant to any Award or
the exercise thereof shall be subject to such stop transfer
orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the Securities and Exchange Commission, any
stock exchange upon which such Shares or other securities are
then listed, and any applicable federal or state securities
laws, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to
such restrictions.
7. AMENDMENT AND TERMINATION
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(a) AMENDMENTS TO THE PLAN. The Board of Directors of the Company may
amend, alter, suspend, discontinue, or terminate the Plan, including,
without limitation, any amendment, alteration, suspension,
discontinuation, or termination that would impair the rights of any
Participant, or any other holder or beneficiary of any Award
theretofore granted, without the consent of any share owner,
Participant, other holder or beneficiary of an Award, or other Person.
(b) AMENDMENTS TO AWARDS. The Committee may waive any conditions or rights
under, amend any terms of, or amend, alter, suspend, discontinue, or
terminate, any Awards theretofore granted, prospectively or
retroactively, without the consent of any Participant, other holder or
beneficiary of an Award.
(c) ADJUSTMENTS OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. Except as provided in the following sentence, the
Committee shall be authorized to make adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of
unusual or nonrecurring events (including, without limitation, the
events described in Section 4(b) hereof) affecting the Company, any
Affiliate, or the financial statements of the Company or any Affiliate,
or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits
or potential benefits to be made available under the Plan. In the case
of any Award that is intended to qualify as performance-based
compensation for purposes of Section 162(m) of the Code, the Committee
shall not have authority to adjust the Award in any manner that would
cause the Award to fail to meet the requirements of Section 162(m).
(d) CORRECTION OF DEFECTS, OMISSIONS, AND INCONSISTENCIES. The Committee
may correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent
it shall deem desirable to carry the Plan into effect.
8. GENERAL PROVISIONS
(a) NO RIGHTS TO AWARDS. No Employee, Participant or other Person shall
have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Employees, Outside Director,
Consultants, other holders or beneficiaries of Awards under the Plan.
The terms and conditions of Awards need not be the same with respect to
each recipient.
(b) DELEGATION. The Committee may delegate to one or more officers or
managers of the Company or any Affiliate, or a committee of such
officers or managers, the authority, subject to such terms and
limitations as the Committee shall determine, to grant Awards to, or to
cancel, modify, waive rights with respect to, alter, discontinue,
suspend, or terminate Awards held by, Employees, Consultants, or other
holders or beneficiaries of Awards under the Plan who are not officers
or directors of the Company for purposes of Section 16 of the
Securities Exchange Act of 1934, as amended, and who also are not
"covered employees" for purposes of Section 162(m) of the Code.
(c) WITHHOLDING. The Company or any Affiliate shall be authorized to
withhold from any Award granted or any payment due or transfer made
under any Award or under the Plan the amount (in cash, Shares, other
securities, other Awards, or other property) of withholding taxes due
in respect of an Award, its exercise, or any payment or transfer under
such Award or under the Plan and to take such other action as may be
necessary in the opinion of the Company or Affiliate to satisfy all
obligations for the payment of such taxes.
(d) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or
continuing in effect other or additional compensation arrangements, and
such arrangements may be either generally applicable or applicable only
in specific cases.
(e) NO RIGHT TO EMPLOYMENT. The grant of an Award shall not be construed as
giving a Participant the right to remain an employee, director or
consultant of the Company or any Affiliate. Further, the Company or an
Affiliate may at any time terminate the service of any employee,
director or consultant, free from any liability, or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Award
Agreement.
(f) GOVERNING LAW. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Nevada and applicable federal
law.
(g) SEVERABILITY. If any provision of the Plan or any Award is or becomes
or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction, or as to any Person or Award, 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 determination of the Committee, 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.
(h) NO TRUST OR FUND CREATED. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a
Participant or any other Person. To the extent that any Person acquires
a right to receive payments from the Company or any Affiliate pursuant
to an Award, such right shall be no greater than the right of any
unsecured general creditor of the Company or any Affiliate.
(i) NO FRACTIONAL SHARES. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or
transferred in lieu of any fractional Share, or whether such fractional
Shares of any rights thereto shall be canceled, terminated, or
otherwise eliminated.
(j) HEADINGS. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings
shall not be deemed in any way material or relevant to the construction
or interpretation of the Plan or any provision thereof.
9. EFFECTIVE DATE OF THE PLAN
Subject to the approval of the stockholders of the Company, the Plan
shall be effective May 31, 2008 (the "Effective Date"); provided, however, that
to the extent that Awards are granted under the Plan before its approval by
stockholders, the Awards will be contingent on approval of the Plan by the
stockholders of the Company at an annual meeting, special meeting, or by written
consent, which meeting shall be held within one year of the Effective Date.
10. TERM OF THE PLAN
No Award shall be granted under the Plan more than 10 years after the
Effective Date. However, unless otherwise expressly provided in an applicable
Award Agreement, any Award theretofore granted may extend beyond such date, and
the authority of the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award, or to waive any conditions or rights under any such
Award, and the authority of the Board of Directors of the Company to amend the
Plan, shall extend beyond such date.