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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Searchlight Minerals Corp (PK) | USOTC:SRCH | OTCMarkets | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 0.00582 | 0.0043 | 0.0081 | 0.00 | 13:00:44 |
þ
|
Preliminary
Proxy Statement
|
¨
|
Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
¨
|
Definitive
Proxy Statement
|
¨
|
Definitive
Additional Materials
|
¨
|
Soliciting
Material Pursuant to § 240.14a-11(c) or §
240.14a-12
|
SEARCHLIGHT MINERALS
CORP.
|
(Name
of Registrant as Specified in Its Charter)
|
(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
|
þ
|
No
fee required
|
¨
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(4) 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 by written preliminary
materials.
|
|
1)
|
Amount
Previously Paid:
|
|
2)
|
Form
Schedule or Registration Statement No.:
|
|
3)
|
Filing
Party:
|
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4)
|
Date
Filed:
|
Very
truly yours,
|
|
/s/ Ian R. McNeil
|
|
Ian
R. McNeil
|
|
President
and Chief Executive Officer
|
|
1.
|
The
election of two directors assigned to Class III of the Board of Directors
of Searchlight for three year terms expiring at the 2011 Annual Meeting of
Stockholders, or until their successors are duly elected and
qualified.
|
|
2.
|
The
election of two directors assigned to Class II of the Board of Directors
of Searchlight for three year terms expiring at the 2012 Annual Meeting of
Stockholders, or until their successors are duly elected and
qualified.
|
|
3.
|
To
consider and vote upon an amended and restated Articles of Incorporation
to authorize a class of up to 40,000,000 shares of preferred
stock.
|
|
4.
|
To
consider and vote upon an amended and restated Articles of Incorporation
to
limit
liability
of directors
and officers
and
permit
indemnification of directors, officers and certain other
persons.
|
|
5.
|
To
adopt our 2009 Stock Incentive Award Plan (the “2009 Incentive Plan”) and
to reserve up to 3,250,000 shares of common stock for issuance under the
2009 Incentive Plan.
|
|
6.
|
To
adopt our 2009 Equity Incentive Plan for Directors (the “2009 Directors
Plan”) and to reserve up to 750,000 shares of common stock for issuance
under the 2009 Directors Plan.
|
|
7.
|
To
ratify the appointment of Brown Armstrong Paulden McCown Starbuck
Thornburgh & Keeter Accountancy Corporation as our independent
registered public accounting firm for the year ending December 31,
2009.
|
|
8.
|
To
transact such other business that may properly come before the Annual
Meeting or any adjournment or postponement
thereof.
|
By
Order of the Board of Directors
|
||
/s/ Ian R. McNeil
|
||
Ian
R. McNeil
|
||
President
and Chief Executive Officer
|
Page
|
|||
ABOUT THE ANNUAL MEETING
|
1
|
||
PROPOSAL
NO. 1 ELECTION OF CLASS III DIRECTORS
|
6
|
||
PROPOSAL
NO. 2 ELECTION OF CLASS II DIRECTORS
|
6
|
||
PROPOSAL
NO. 3 RESTATED ARTICLES OF INCORPORATION TO AUTHORIZE CLASS OF PREFERRED
STOCK
|
9
|
||
PROPOSAL
NO. 4 RESTATED ARTICLES OF INCORPORATION TO LIMIT LIABILITY OF DIRECTORS
AND OFFICERS AND PERMIT INDEMNIFICATION OF DIRECTORS, OFFICERS AND CERTAIN
OTHER PERSONS
|
11
|
||
PROPOSAL
NO. 5 APPROVAL OF 2009 STOCK INCENTIVE AWARD PLAN
|
14
|
||
PROPOSAL
NO. 6 APPROVAL OF 2009 EQUITY INCENTIVE PLAN FOR
DIRECTORS
|
19
|
||
PROPOSAL
NO. 7 RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
|
22 | ||
CORPORATE
GOVERNANCE
|
23
|
||
REPORT
OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS
|
29
|
||
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
|
30
|
||
EXECUTIVE
COMPENSATION
|
32
|
||
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
|
41
|
||
SECTION
16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
|
50
|
||
PRINCIPAL
AUDITOR FEES AND SERVICES
|
50
|
||
OTHER
MATTERS
|
51
|
||
STOCKHOLDER
PROPOSALS FOR THE NEXT ANNUAL MEETING OF STOCKHOLDERS
|
52
|
||
NO INCORPORATION BY REFERENCE OF CERTAIN PORTIONS OF THIS
PROXY STATEMENT
|
53
|
||
APPROVAL
OF THE BOARD OF DIRECTORS
|
53
|
Q:
|
Who
is soliciting my vote?
|
A:
|
Our
Board of Directors is soliciting your vote at the Annual Meeting of
Stockholders.
|
Q:
|
What
is the purpose of the Annual
Meeting?
|
A:
|
You
will be voting on
seven
proposals:
|
|
·
|
To
elect two directors assigned to Class III of the Board of Directors of
Searchlight for three year terms expiring at the 2011 Annual Meeting of
Stockholders, or until their successors are duly elected and
qualified.
|
|
·
|
To
elect two directors assigned to Class II of the Board of Directors of
Searchlight for three year terms expiring at the 2012 Annual Meeting of
Stockholders, or until their successors are duly elected and
qualified.
|
|
·
|
To
vote upon an amendment and restatement of our Articles of Incorporation to
authorize a class of up to 40,000,000 shares of preferred
stock.
|
|
·
|
To
vote upon an amendment and restatement of our Articles of Incorporation to
limit liability of directors
and officers
and permit indemnification of directors, officers and certain other
persons.
|
|
·
|
To
approve the 2009 Incentive Plan and to reserve up to 3,250,000 shares of
common stock for issuance under the 2009 Incentive
Plan.
|
|
·
|
To
approve the 2009 Directors Plan and to reserve up to 750,000 shares of
common stock for issuance under the 2009 Directors
Plan.
|
|
·
|
To
ratify the appointment of Brown Armstrong Paulden McCown Starbuck
Thornburgh & Keeter Accountancy Corporation as our independent
registered public accounting firm for the year ending December 31,
2009.
|
Q:
|
What
is the Board of Directors’
recommendations?
|
A:
|
The
Board of Directors recommends a
vote:
|
|
·
|
FOR
the election of
the two nominees for director assigned to Class III of the Board of
Directors.
|
|
·
|
FOR
the election of
the two nominees for director assigned to Class II of the Board of
Directors.
|
|
·
|
FOR
the amendment and
restatement of our Articles of Incorporation to authorize a class of up to
40,000,000 shares of preferred
stock.
|
|
·
|
FOR
the amendment and
restatement of our Articles of Incorporation to limit liability of
directors
and
officers
and permit indemnification of our directors, officers and
certain other persons.
|
|
·
|
FOR
the
approval
of the 2009 Incentive Plan and to reserve up to 3,250,000 shares of common
stock for issuance under the 2009 Incentive
Plan.
|
|
·
|
FOR
the
approval
of the 2009 Directors Plan and to reserve up to 750,000 shares of common
stock for issuance under the 2009 Directors
Plan.
|
|
·
|
FOR
the
approval
of the ratification of the appointment of Brown Armstrong Paulden McCown
Starbuck Thornburgh & Keeter Accountancy Corporation as our
independent registered public accounting firm for the year ending December
31, 2009.
|
Q:
|
Who
is entitled to vote at the Annual
Meeting?
|
A:
|
The
Board of Directors set ______________, 2009 as the record date for the
Annual Meeting (the “record date”). All stockholders who owned
Searchlight common stock at the close of business on _______________, 2009
may attend and vote at the Annual
Meeting.
|
Q:
|
How
many votes do I have?
|
A:
|
You
will have one vote for each share of common stock you owned at the close
of business on the record date, provided those shares are either held
directly in your name as the stockholder of record or were held for you as
the beneficial owner through a broker, bank or other
nominee.
|
Q:
|
Is
cumulative voting permitted for the election of
directors?
|
A:
|
No. You
may not cumulate your votes for the election of
directors.
|
Q:
|
What
is the difference between holding shares as a stockholder of record and
beneficial owner?
|
A:
|
Many
stockholders of Searchlight hold their shares through a broker, bank or
other nominee rather than directly in their own name. As
summarized below, there are some distinctions between shares held of
record and those owned
beneficially.
|
Q.
|
How
do I vote?
|
A.
|
Your
vote is important. You may vote by mail or by attending the
Annual Meeting and voting by ballot. If you choose to vote by
mail, simply mark your proxy, date and sign it, and return it to our
transfer agent, Empire Stock Transfer, Inc., 1859 Whitney Mesa Drive,
Henderson, Nevada 89014, in the postage-paid envelope
provided.
|
Q.
|
How
many votes can be cast by all
stockholders?
|
A.
|
Each
share of our common stock is entitled to one
vote. There is no cumulative voting. We had
_________ shares of common stock outstanding and entitled to vote on the
record date.
|
Q:
|
How
many votes must be present to hold the Annual
Meeting?
|
A:
|
A
majority of the outstanding shares of common stock as of the record date
must be present at the Annual Meeting in order to hold the Annual Meeting
and conduct business. This is called a
“quorum.” Shares are counted as present at the Annual Meeting
if you are present and vote in person at the Annual Meeting or a proxy
card has been properly submitted by you or on your behalf. Both
abstentions and broker non-votes are counted as present for the purpose of
determining the presence of a
quorum.
|
Q:
|
What
are the voting requirements with respect to each of the
proposals?
|
A:
|
Proposal 1 – Election of Class
III Directors
. Directors are elected by a
plurality
of the votes
cast. This means that the individuals nominated as Class III
nominees for election to the Board of Directors who receive the most “FOR”
votes (among votes properly cast in person or by proxy) will be
elected. Nominees do not need to receive a majority to be
elected. If you withhold authority to vote with respect to the
election of some or all of the nominees, your shares will not be voted
with respect to those nominees indicated. Your shares will be
counted for purposes of determining whether there is a quorum, but it will
have no effect on the election of those
nominees.
|
Q:
|
What
if I do not vote for the items listed on my proxy
card?
|
A:
|
If
you hold shares in your name and you return your signed proxy card in the
enclosed envelope but do not mark selections, it will be voted in
accordance with the recommendations of the Board of
Directors. If you indicate a choice with respect to any matter
to be acted upon on your proxy card, the shares will be voted in
accordance with your instructions. With respect to any other
matter that properly comes before the Annual Meeting, the proxyholders
will vote as recommended by our Board of Directors, or if no
recommendation is given, in their own
discretion.
|
|
·
|
Your
broker will have the authority to exercise discretion to vote your shares
with respect to Proposals 1 and 2 (election of Class III and Class II
directors)
and
Proposal 7 (ratification of auditors) because they involve matters that
are considered routine.
|
|
·
|
Your
broker will not have the authority to exercise discretion to vote your
shares with respect to Proposals 3 and 4 (proposals to amend and restate
the Articles of Incorporation), Proposal 5 (approval of the 2009 Stock
Incentive Award Plan) and Proposal 6 (approval of the 2009 Equity
Incentive Plan for Directors), because they involve matters that are
considered non-routine.
|
Q:
|
Can
I change or revoke my vote after I return my proxy
card?
|
A:
|
Yes. Even
if you sign the proxy card in the form accompanying this proxy statement,
you retain the power to revoke your proxy. You can revoke your
proxy at any time before it is exercised by giving written notice to the
Corporate Secretary of Searchlight specifying such
revocation.
|
Q:
|
What
does it mean if I receive more than one
proxy?
|
A:
|
It
generally means your shares are registered differently or are in more than
one account. Please provide voting instructions for all proxy
cards you receive.
|
Q:
|
Who
can attend the Annual Meeting?
|
A:
|
All
stockholders as of the record date, or their duly appointed proxies, may
attend.
|
Q:
|
What
do I need to bring to the Annual Meeting and when should I
arrive?
|
A:
|
In
order to be admitted to the Annual Meeting, a stockholder must present
proof of ownership of our common stock on the record date. If
your shares are held in the name of a bank, broker or other holder of
record, a brokerage statement or letter from a bank or broker is an
example of proof of ownership. Any holder of a proxy from a
stockholder must present the proxy card, properly executed, to be
admitted. Stockholders and proxyholders must also present a
form of photo identification such as a driver’s
license.
|
Q:
|
Who
pays for the proxy solicitation and how will our Board of Directors
solicit votes?
|
A:
|
We
will bear the expense of printing and mailing proxy
materials. In addition to this solicitation of proxies by mail,
our directors, officers and other employees may solicit proxies by
personal interview, telephone, facsimile or email. They will
not be paid any additional compensation for such
solicitation. We will request brokers and nominees who hold
shares of our common stock in their names to furnish proxy material to
beneficial owners of the shares. We may reimburse such brokers
and nominees for their reasonable expenses incurred in forwarding
solicitation materials to such beneficial
owners.
|
Q:
|
How
can I obtain a copy of our 2008 Annual Report on Form
10-K?
|
A:
|
A
copy of our 2008 Annual Report on Form 10-K is being mailed with this
proxy statement to each stockholder of record. Stockholders not
receiving a copy of the Annual Report may obtain one without
charge. Requests and inquiries should be addressed to:
Searchlight Minerals Corp., Suite 120 - 2441 West Horizon Ridge Pkwy.,
Henderson, Nevada, 89052, Attn: Corporate Secretary.
The
Annual Report on Form 10-K is also available at our Internet address at
www.searchlightminerals.com
.
|
Q:
|
How
do I find out the voting results?
|
A:
|
Preliminary
voting results will be announced at the Annual Meeting, and the final
voting results will be published in our Annual Report on Form 10-K for the
year ending December 31, 2009, which we will file with the Securities and
Exchange Commission (“SEC”).
|
Name
|
Age
|
Position Held
|
||
Robert
D. McDougal
|
77
|
Director
(Class III)
|
||
Martin
B. Oring
|
63
|
Director
(Class III)
|
||
Harry
B. Crockett
|
67
|
Director
(Class II)
|
||
Carl
S. Ager
|
35
|
Director
(Class II)
|
Name
|
Age
|
Position Held
|
||
Ian
R. McNeil
|
36
|
Director
(Class I), Chief Executive Officer and President
|
||
Melvin
L. Williams
|
|
49
|
|
Chief
Financial Officer
|
|
·
|
no
director or officer will be individually liable to us or our stockholders
or creditors for any damages as a result of any act or failure to act in
his capacity as a director or officer, provided, that the foregoing clause
will not apply to any liability of a director or officer for any act or
failure to act for which Nevada law proscribes this limitation and then
only to the extent that this limitation is specifically
proscribed,
|
|
·
|
any
repeal or modification of the foregoing provision will not adversely
affect any right or protection of a director existing at the time of such
repeal or modification,
|
|
·
|
we
will be permitted to indemnify our directors, officers and such other
persons to the fullest extent permitted under Nevada law,
and
|
|
·
|
with
respect to the limitation of liability of our directors and officers or
indemnification of our directors, officers and such other persons, neither
any amendment or repeal of these provisions nor the adoption of any
inconsistent provision of our Articles of Incorporation, will eliminate or
reduce the effect of these provisions, in respect of any matter occurring,
or any action, suit or proceeding accruing or arising or that, but for
these provisions, would accrue or arise, prior to such amendment, repeal
or adoption of an inconsistent
provision.
|
|
·
|
his
act or failure to act constituted a breach of his fiduciary duties as a
director or officer, and
|
|
·
|
his
breach of those duties involved intentional misconduct, fraud or a knowing
violation of law.
|
|
·
|
is
not liable pursuant to Nevada Revised Statues 78.138,
or
|
|
·
|
acted
in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
|
|
·
|
is
not liable pursuant to Nevada Revised Statutes 78.138,
or
|
|
·
|
acted
in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the
corporation.
|
|
·
|
by
the stockholders,
|
|
·
|
by
the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or
proceeding,
|
|
·
|
if
a majority vote of a quorum consisting of directors who were not parties
to the action, suit or proceeding so orders, by independent legal counsel
in a written opinion, or
|
|
·
|
if
a quorum consisting of directors who were not parties to the action, suit
or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
|
|
·
|
does
not exclude any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his office, except
that indemnification, unless ordered by a court pursuant to Nevada Revised
Statues 78.7502 or for the advancement of expenses made pursuant to
subsection 2, may not be made to or on behalf of any director or officer
if a final adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was
material to the cause of action,
and
|
|
·
|
continues
for a person who has ceased to be a director, officer, employee or agent
and inures to the benefit of the heirs, executors and administrators of
such a person.
|
|
·
|
materially
increase the benefits accruing to the participants of the 2009 Incentive
Plan,
|
|
·
|
increase
the number of shares of stock as to which Awards may be granted under the
2009 Incentive Plan,
|
|
·
|
extend
the term of the 2009 Incentive
Plan,
|
|
·
|
materially
modify the requirements as to eligibility for participation in the 2009
Incentive Plan,
|
|
·
|
expand
the types of Awards provided under the 2009 Incentive Plan,
or
|
|
·
|
be
otherwise required by applicable laws, regulations or
rules.
|
|
·
|
materially
increase the benefits accruing to the participants of the 2009 Directors
Plan,
|
|
·
|
increase
the number of shares of stock as to which Awards may be granted under the
2009 Directors Plan,
|
|
·
|
extend
the term of the 2009 Directors
Plan,
|
|
·
|
materially
modify the requirements as to eligibility for participation in the 2009
Directors Plan,
|
|
·
|
expand
the types of Awards provided under the 2009 Directors Plan,
or
|
|
·
|
be
otherwise required by applicable laws, regulations or
rules.
|
|
·
|
competing
for the time and attention of
management,
|
|
·
|
potential
interests of management in competing investment ventures,
and
|
|
·
|
the
lack of independent representation of the interests of the other
stockholders in connection with potential disputes or negotiations over
ongoing business relationships.
|
|
·
|
selecting,
hiring and terminating our independent
auditors,
|
|
·
|
evaluating
the qualifications, independence and performance of our independent
auditors,
|
|
·
|
approving
the audit and non-audit services to be performed by our independent
auditors,
|
|
·
|
reviewing
the design, implementation, adequacy and effectiveness of our internal
controls and critical accounting
policies,
|
|
·
|
overseeing
and monitoring the integrity of our financial statements and our
compliance with legal and regulatory requirements as they relate to
financial statements or accounting
matters,
|
|
·
|
establishing
procedures for the confidential, anonymous submission by
our employees of concerns regarding accounting and auditing
matters,
|
|
·
|
reviewing
with management and our independent auditors, any earnings announcements
and other public announcements regarding our results of
operations,
|
|
·
|
preparing
the audit committee report that the SEC requires in our annual proxy
statement,
|
|
·
|
engaging
outside advisors, and
|
|
·
|
authorizing
funding for the outside auditor and any outside advisors engaged by the
audit committee.
|
|
·
|
approving
the compensation and benefits of our executive
officers,
|
|
·
|
reviewing
the performance objectives and actual performance of our officers,
and
|
|
·
|
administering
our stock option and other equity compensation
plans.
|
|
·
|
a
director (which term when used therein includes any director
nominee),
|
|
·
|
an
executive officer,
|
|
·
|
a
person known by us to be the beneficial owner of more than 5% of our
common stock (a “5% stockholder”),
|
|
·
|
an
entity which is owned or controlled by a person listed above, or an entity
in which a person listed above has a substantial ownership interest or
control of such entity, or
|
|
·
|
a
person who is an immediate family member of any of the
foregoing.
|
|
·
|
whether
the terms of the related party transaction are fair to us and on the same
basis as would apply if the transaction did not involve a related
party,
|
|
·
|
whether
there are business reasons for us to enter into the related party
transaction,
|
|
·
|
whether
the related party transaction would impair the independence of an outside
director,
|
|
·
|
whether
the related party transaction would present an improper conflict of
interests for any of our directors or executive officers, taking into
account the size of the transaction, the overall financial position of the
director, executive officer or related party, the direct or indirect
nature of the director’s, executive officer’s or related party’s interest
in the transaction and the ongoing nature of any proposed relationship,
and
|
|
·
|
any
other factors the Audit Committee deems
relevant.
|
|
·
|
the
Audit Committee shall approve or ratify such transaction in accordance
with the guidelines set forth in the policy and if the transaction is on
terms comparable to those that could be obtained in arm’s length dealings
with an unrelated third party,
|
|
·
|
the
transaction is approved by the disinterested members of the board of
directors, or
|
|
·
|
if
the transaction involves compensation, that such transaction is approved
of by our Compensation Committee.
|
|
·
|
honest
and ethical conduct, including the ethical handling of actual or apparent
conflicts of interest between personal and professional
relationships,
|
|
·
|
full,
fair, accurate, timely and understandable disclosure in reports and
documents that are filed with, or submitted to, the SEC and in other
public communications made by an
issuer,
|
|
·
|
compliance
with applicable governmental laws, rules and
regulations,
|
|
·
|
the
prompt internal reporting of violations of the code to an appropriate
person or persons identified in the code,
and
|
|
·
|
accountability
for adherence to the code.
|
|
·
|
a
representation that the stockholder is a holder of record of our capital
stock,
|
|
·
|
the
name and address, as they appear on our books, of the stockholder sending
such communication, and
|
|
·
|
the
class and number of shares of our capital stock that are beneficially
owned by such stockholder.
|
Name And Address
|
Amount And Nature Of
|
Percentage Of
|
|||||||
Of Beneficial Owner
|
Beneficial Ownership
|
Common Stock
(1)
|
|||||||
DIRECTORS
AND OFFICERS
|
|||||||||
Ian
R. McNeil
|
17,242,394 | (2)(8) | 16.05 | % | |||||
Carl
S. Ager
|
17,242,394 | (3)(8) | 16.05 | % | |||||
Melvin
L. Williams
|
174,600 | (4) | * | ||||||
Robert
D. McDougal
|
813,214 | (5) | * | ||||||
Harry
B. Crockett
|
7,642,982 | (6) | 7.17 | % | |||||
Martin
B. Oring
|
853,683 | (7) | * | ||||||
All
officers and directors as a group (6 persons)
|
27,969,267 | 25.61 | % | ||||||
HOLDERS
OF MORE THAN 5% OF OUR COMMON STOCK
|
|||||||||
Nanominerals
Corp.
|
16,000,000 | (8) | 15.01 | % | |||||
3500
Lakeside Court, Suite 206
|
|||||||||
Reno,
Nevada 89509
|
|||||||||
K.
Ian Matheson
|
10,932,004 | (9) | 9.54 | % | |||||
2215
Lucerne Circle
|
|||||||||
Henderson,
Nevada 89014
|
|||||||||
Dr.
Charles A. Ager
|
17,045,190 | (8)(10) | 15.99 | % | |||||
17146
– 20
th
Avenue
|
|||||||||
Surrey,
British Columbia, Canada V3S
9N4
|
*
|
Less
than 1%.
|
(1)
|
Beneficial
ownership is determined in accordance with the rules of the
SEC. Shares of common stock subject to options or warrants
currently exercisable or exercisable within 60 days of the date of this
proxy statement, are deemed outstanding for computing the percentage
ownership of the stockholder holding the options or warrants, but are not
deemed outstanding for computing the percentage ownership of any other
stockholder. Unless otherwise indicated in the footnotes to
this table, we believe stockholders named in the table have sole voting
and sole investment power with respect to the shares set forth opposite
such stockholder's name. Percentage of ownership is based on
106,578,527 shares of common stock outstanding as of October 22,
2009.
|
(2)
|
Consists
of 407,594 shares and options to acquire an additional 834,800 shares of
our common stock held directly by Ian R. McNeil, our Chief Executive
Officer and a member of our board of directors. In addition,
Mr. McNeil is a 17.5% stockholder of Nanominerals, a company that owns
16,000,000 of our outstanding shares of common stock. However,
Mr. McNeil does not have any voting or investment powers over the
16,000,000 shares owned by Nanominerals. For purposes of Rule
13d-3 of the Exchange Act, Mr. McNeil may be deemed to be a beneficial
owner of the 16,000,000 shares owned by Nanominerals by virtue of his
ownership interest in Nanominerals. However, for purposes of
Section 13(d) of the Exchange Act, Mr. McNeil disclaims beneficial
ownership of all but a number of shares not in excess of 2,800,000 of the
16,000,000 shares owned by Nanominerals, which reflects his 17.5%
ownership interest in Nanominerals. See footnote (8)
below.
|
(3)
|
Consists
of 407,594 shares and options to acquire an additional 834,800 shares of
our common stock held directly by Carl S. Ager, our Vice President,
Secretary and Treasurer and a member of our board of
directors. In addition, Mr. Ager is a 17.5% stockholder of
Nanominerals, a company that owns 16,000,000 of our outstanding shares of
common stock. However, Mr. Ager does not have any voting or
investment powers over the 16,000,000 shares owned by
Nanominerals. For purposes of Rule 13d-3 of the Exchange Act,
Mr. Ager may be deemed to be a beneficial owner of the 16,000,000 shares
owned by Nanominerals by virtue of his ownership interest in
Nanominerals. However, for purposes of Section 13(d) of the
Exchange Act, Mr. Ager disclaims beneficial ownership of all but a number
of shares not in excess of 2,800,000 of the 16,000,000 shares owned by
Nanominerals, which reflects his 17.5% ownership interest in
Nanominerals. See footnote (8)
below.
|
(4)
|
Consists
of 56,000 shares held directly by Melvin L. Williams and options to
acquire an additional 118,600 shares of our common
stock.
|
(5)
|
Consists
of 238,155 shares held directly by Robert D. McDougal, 25,059 shares held
by Robert D. McDougal as Trustee of the Robert D. McDougal and Edna D.
McDougal Family Trust Dated December 13, 2007 and options to acquire an
additional 550,000 shares of our common
stock.
|
(6)
|
Consists
of 7,608,882 shares held by Harry B. Crockett, as Trustee of the Marcia
and Harry Crockett 2004 Family Trust UA dated April 24, 2004 and 34,100
shares held directly by Mr.
Crockett.
|
(7)
|
Consists
of 455,000 shares held directly by Martin B. Oring, 105,000 shares held by
Martin Oring Financial Trust dated December 20, 2006, a family trust of
which Mr. Oring’s wife serves as a trustee, and options and warrants to
acquire an additional 293,683 shares of common stock held by Mr. Oring and
his affiliated entities. The shares underlying 62,500 warrants
are being registered in this Proxy
statement.
|
(8)
|
Pursuant
to a Schedule 13D filed by Dr. Charles A. Ager, Nanominerals is a
privately held Nevada corporation which owns 16,000,000 shares of our
common stock. Ian R. McNeil and Carl S. Ager, who are our
officers and directors, each own 17.5% of the issued and outstanding
shares of Nanominerals. Dr. Charles A. Ager, the sole director
and officer of Nanominerals, and his wife, Carol Ager, collectively own
35% of the issued and outstanding shares of
Nanominerals. Further, Messrs. Ager and McNeil have given an
irrevocable proxy to Dr. Ager to vote their respective shares of
Nanominerals during the time that Mr. Ager or Mr. McNeil, as the case may
be, serves as one of our directors or executive officers. Dr.
Ager has sole voting and investment powers over the 16,000,000 shares
owned by Nanominerals. A group of additional shareholders of
Nanominerals, none of who is an officer or director of Searchlight or
Nanominerals, collectively own 30% of the outstanding shares of
Nanominerals.
|
(9)
|
Mr.
Matheson beneficially owns 10,932,004 shares of common
stock. These shares include 1,637,002 shares held directly by
K. Ian Matheson, 1,295,002 shares held by Mr. Matheson’s wife and related
companies, warrants to purchase an additional 8,000,000 shares held
directly by Mr. Matheson.
|
(10)
|
These
shares include the 16,000,000 shares owned by
Nanominerals. Pursuant to a Schedule 13D filed by Dr. Ager, Dr.
Ager and his wife, Carol Ager, collectively own 35% of the outstanding
shares of Nanominerals. Dr. Ager is the sole director and
officer of Nanominerals. Further, Messrs. Ager and McNeil have
given an irrevocable proxy to Dr. Ager to vote their respective shares of
Nanominerals during the time that Mr. Ager or Mr. McNeil, as the case may
be, serves as one of our directors or executive officers. Dr.
Ager has sole voting and investment powers over the 16,000,000 shares
owned by Nanominerals. See footnote (8) above. In
addition, Dr. Ager’s affiliate, Geotech Mining Inc., owns 140,000 shares
of common stock. Further Mrs. Ager owns 765,190 shares in her
own name, and her affiliate, Geosearch Inc., owns an additional 140,000
shares.
|
|
·
|
base
salary,
|
|
·
|
bonus,
and
|
|
·
|
equity-based
incentive compensation.
|
Name
|
Principal Position
|
2006
Salary
|
2007
Salary
|
Base Salary
% Change
|
||||||||||
Ian
R.
McNeil
|
President,
Chief Executive Officer and Chairman of the Board
|
$ | 108,000 | $ | 190,000 | 76 | % | |||||||
Melvin
L.
Williams
|
Chief
Financial Officer
|
$ | 60,000 | $ | 130,000 | 117 | % | |||||||
Carl
S.
Ager
|
Vice
President, Treasurer, and Director
|
$ | 80,000 | $ | 160,000 | 100 | % |
Name
|
Principal Position
|
2007
Salary
|
2008
Salary
|
Base Salary
% Change
|
||||||||||
Ian
R.
McNeil
|
President,
Chief Executive Officer and Chairman of the Board
|
$ | 190,000 | $ | 190,000 | 0 | % | |||||||
Melvin
L.
Williams
|
Chief
Financial Officer
|
$ | 130,000 | $ | 1 30,000 | 0 | % | |||||||
Carl
S.
Ager
|
Vice
President, Treasurer, and Director
|
$ | 160,000 | $ | 160,000 | 0 | % |
|
|
|
|
|
Non-Equity
|
Non-
qualified
|
|
|
||||||||||||||||||||||||||
Name and
|
Incentive
|
Deferred
|
All Other
|
|||||||||||||||||||||||||||||||
Principal
|
Salary
|
Bonus
|
Stock
|
Option
|
Plan
|
Compensation
|
Compensation
|
Total
|
||||||||||||||||||||||||||
Position
|
Year
|
($)
|
($)
|
Awards
|
Awards (1)
|
Compensation
|
Earnings
|
($)
|
($)
|
|||||||||||||||||||||||||
Ian
R. McNeil,
|
2008
|
190,000 | - | - | - | - | - | - | 190,000 | |||||||||||||||||||||||||
Director,
|
2007
|
179,750 | - | - | 40,643 | - | - | - | 220,393 | |||||||||||||||||||||||||
President
and
|
2006
|
108,000 | - | - | 71,642 | - | - | - | 179,642 | |||||||||||||||||||||||||
CEO
(2)
|
||||||||||||||||||||||||||||||||||
Carl
S. Ager,
|
2008
|
160,000 | - | - | - | - | - | - | 160,000 | |||||||||||||||||||||||||
Director,
Vice
|
2007
|
150,000 | - | - | 40,643 | - | - | - | 190,643 | |||||||||||||||||||||||||
President
|
2006
|
80,000 | - | - | 71,642 | - | - | - | 151,642 | |||||||||||||||||||||||||
and
|
||||||||||||||||||||||||||||||||||
Secretary
(3)
|
||||||||||||||||||||||||||||||||||
Melvin
L. Williams,
|
2008
|
130,000 | - | - | - | - | - | 22,468 | 152,468 | |||||||||||||||||||||||||
Chief
Financial
|
2007
|
121,250 | - | - | 40,958 | - | - | 11,260 | 173,468 | |||||||||||||||||||||||||
Officer
(4)
|
2006
|
32,500 | - | 103,000 | 9,163 | - | - | - | 144,663 |
(1)
|
The
dollar value of stock awards and option awards are calculated in
accordance with Statement of Financial Account Standard (“SFAS”)
123R,
Share Based
Payments
.
|
(2)
|
Mr.
McNeil was appointed as our President and Chief Executive Officer on
October 7, 2005. Mr. McNeil entered into an employment
agreement on January 1, 2006 for an annual salary of
$108,000. On February 16, 2007, we increased the salary of Mr.
McNeil under this agreement to
$190,000.
|
(3)
|
Mr.
Ager was appointed as our Secretary, Treasurer and Chief Financial Officer
on October 7, 2005. Mr. Ager entered into an employment agreement on
January 1, 2006 pursuant to which he receives an annual salary of $80,000.
On June 14, 2006, Mr. Ager resigned as Chief Financial Officer. On
February 16, 2007, we increased the salary of Mr. Ager under this
agreement to $160,000.
|
(4)
|
Mr.
Williams was appointed as our Chief Financial Officer on June 14,
2006. Mr. Williams entered into an employment agreement on June
14, 2006 pursuant to which he is paid an annual salary of $60,000. On
February 16, 2007, we increased the salary of Mr. Williams to
$130,000. Other compensation includes direct benefit to Mr.
Williams of $11,260 and $22,468 from fees incurred in 2007 and 2008,
respectively, with Cupit, Milligan, Ogden & Williams, an affiliate of
Mr. Williams, to provide accounting support services. These
amounts were based on the profit percentage derived by Mr. Williams from
the revenue earned by Cupit Milligan in the applicable period, as applied
to the fees for services provided to
us.
|
Option Awards
|
Stock
Awards
|
||||||||||||||||||||
Name and Position
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
Equity
Incentive
Plan Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options
|
Option
Exercise
Price
|
Option
Expiration
Date
|
Number of
Shares or
Units
of Stock that
Have Not
Vested (#)
|
|||||||||||||||
Ian
R. McNeil
|
500,000
|
-
|
-
|
$
|
0.44
|
11/11/10
|
-
|
||||||||||||||
Director,
President
|
60,000
|
-
|
-
|
$
|
1.70
|
4/7/11
|
-
|
||||||||||||||
and
CEO
|
250,000
|
-
|
-
|
$
|
2.40
|
6/6/11
|
-
|
||||||||||||||
24,800
|
-
|
-
|
$
|
4.04
|
2/16/12
|
-
|
|||||||||||||||
Carl
S. Ager
|
500,000
|
-
|
-
|
$
|
0.44
|
11/11/10
|
-
|
||||||||||||||
Director,
Vice
|
60,000
|
-
|
-
|
$
|
1.70
|
4/7/11
|
-
|
||||||||||||||
President,
|
250,000
|
-
|
-
|
$
|
2.40
|
6/6/11
|
-
|
||||||||||||||
Treasurer
and
|
24,800
|
-
|
-
|
$
|
4.04
|
2/16/12
|
-
|
||||||||||||||
Secretary
|
|||||||||||||||||||||
Melvin
L. Williams
|
100,000
|
-
|
-
|
$
|
2.06
|
6/14/11
|
-
|
||||||||||||||
Chief
Financial
|
18,600
|
-
|
-
|
$
|
4.04
|
2/16/12
|
-
|
||||||||||||||
Officer
|
Name
|
Fees
Earned
or
Paid
in
Cash
($)
|
Stock
Awards
($)
(1)
|
Option
Awards
($)
(1)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
All
Other
Compensation
($)
|
Total
($)
|
||||||||||||||||||
Martin
B. Oring
(2)
|
9,000 | - | 27,026 | - | - | 36,026 | ||||||||||||||||||
Robert
D. McDougal
(3)
|
36,000 | 36,000 | - | - | - | 72,000 | ||||||||||||||||||
Harry
B. Crockett
(4)
|
36,000 | 36,000 | - | - | - | 72,000 |
(1)
|
The
dollar value of stock awards and options awards are calculated in
accordance with Statement of Financial Accounts (“SFAS”) 123R,
Share Based
Payments
.
|
(2)
|
Mr.
Oring joined our board of directors on October 10, 2008. Mr.
Oring held 207,347 stock options and no unvested shares as stock awards,
of December 31, 2008. We granted 207,347 stock options (which
included 200,000 unvested stock options at December 31, 2008) and no stock
awards to Mr. Oring in 2008. The grant date fair value of the
stock option awards computed in accordance with SFAS 123(R) was
$165,180.
|
(3)
|
Mr.
McDougal held 550,000 stock options and no unvested shares as stock
awards, of December 31, 2008. We granted no stock options and
15,811 shares as stock awards to Mr. McDougal in 2008. In
addition, 3,214 shares were issued to Mr. McDougal in 2008 which are noted
in our Consolidated Statement of Stockholders' Equity included in the
financial statements filed herewith as subscribed for on December 31, 2007
and issued in 2008. The grant date fair value of the stock
awards computed in accordance with SFAS 123(R) was
$36,000.
|
(4)
|
Mr.
Crockett held no stock options and no unvested shares as stock awards, of
December 31, 2008. We granted no stock options and 15,811
shares as stock awards to Mr. Crockett in 2008. In addition,
3,214 shares were issued to Mr. Crockett l in 2008 which are noted in our
Consolidated Statement of Stockholders' Equity included in the financial
statements filed herewith as subscribed for on December 31, 2007 and
issued in 2008. The grant date fair value of the stock awards
computed in accordance with SFAS 123(R) was
$36,000.
|
|
·
|
no
director or officer will be individually liable to us or our stockholders
or creditors for any damages as a result of any act or failure to act in
his capacity as a director or officer, provided, that the foregoing clause
will not apply to any liability of a director or officer for any act or
failure to act for which Nevada law proscribes this limitation and then
only to the extent that this limitation is specifically
proscribed,
|
|
·
|
any
repeal or modification of the foregoing provision will not adversely
affect any right or protection of a director existing at the time of such
repeal or modification,
|
|
·
|
we
will be permitted to indemnify our directors, officers and such other
persons to the fullest extent permitted under Nevada law. Our
current Bylaws include provisions for the indemnification of our
directors, officers and certain other persons, to the fullest extent
permitted by applicable Nevada law,
and
|
|
·
|
with
respect to the limitation of liability of our directors and officers or
indemnification of our directors, officers and such other persons, neither
any amendment or repeal of these provisions nor the adoption of any
inconsistent provision of our Articles of Incorporation, will eliminate or
reduce the effect of these provisions, in respect of any matter occurring,
or any action, suit or proceeding accruing or arising or that, but for
these provisions, would accrue or arise, prior to such amendment, repeal
or adoption of an inconsistent
provision.
|
|
·
|
competing
for the time and attention of
management,
|
|
·
|
potential
interests of management in competing investment ventures,
and
|
|
·
|
the
lack of independent representation of the interests of the other
stockholders in connection with potential disputes or negotiations over
ongoing business relationships.
|
|
·
|
drilling
and ore reserve studies (Phase 1),
|
|
·
|
a
report of the commercial, technical and environmental feasibility of the
processing and smelting of metals and other mineral materials from a
deposit that is prepared in such depth and detail as would be acceptable
to lending institutions in the United States, or a “bankable feasibility
study” (Phase 2),
|
|
·
|
the
construction of a commercial production facility to process slag
materials, as recommended by the bankable feasibility study (Phase 3),
and
|
|
·
|
the
expansion of additional commercial production capacity to process slag
materials (Phase 4).
|
|
·
|
We
acquired the assets consisting of the 50% financial interest in the Joint
Venture Agreement with respect to the Clarkdale Slag Project from
Nanominerals.
|
|
·
|
We
applied EITF 98-03 with regard to the acquisition of the joint venture
interest in the Clarkdale Slag Project from Nanominerals. We
determined that the acquisition of the joint venture interest in the
Clarkdale Slag Project did not constitute an acquisition of a business, as
that term is defined in EITF 98-03, and we recorded the acquisition as a
purchase of assets.
|
|
·
|
The
Assignment Agreement and each of the August 31, 2005 and October 24, 2005
amendments, including the determination of the amount at which we acquired
such assets, were negotiated on our behalf by K. Ian Matheson, who served
as an executive officer and director at the time of the execution of the
Assignment Agreement and the August 31, 2005 amendment and as a director
at the time of the execution of the October 24, 2005
amendment.
|
|
·
|
The
$690,000 which we paid to Nanominerals in respect of the acquisition of
the Clarkdale Slag Project represents the cost to Nanominerals of the
assets consisting of the rights in the Joint Venture Agreement assigned by
Nanominerals in connection with the Assignment
Agreement.
|
|
·
|
SEM/EDS
Studies
: Nanominerals uses SEM/EDS to identify the
minerals (gold, silver, copper and zinc) in the slag material and
understand the physical make-up of the slag. This information
has provided us with an understanding how to potentially liberate the
minerals from the slag material by mechanical methods
(grinding). This type of work is highly specialized and very
unique to the mineral exploration
industry.
|
|
·
|
Grinding
Studies
: Looking at the ground material again using
SEM/EDS, Nanominerals has assisted us in testing a number of different
grinders and variables (size of material fed to grinder, grinding time,
etc.) to find the best way to mechanically liberate and expose the
minerals within the slag material. Without mechanical
liberation, the chemicals used in the extraction process (leaching) cannot
perform. Therefore, grinding is a crucial step in the overall
processing of the slag material. The unique nature of the
slag material (i.e. it is very hard and abrasive and the minerals are
entombed within the slag) makes the proper grinding of the slag material
very difficult. Grinding and crushing are commonly used in the
mining industry.
|
|
·
|
Analytical and
Extraction Studies
: Nanominerals has provided us the use of its
laboratory, instrumentation, milling equipment and research facilities and
has performed (and continues to perform) analytical and extraction studies
for the presence of gold, silver, copper and zinc in the slag
material. Nanominerals has tested different variables
(chemicals, pH, ORP, machines, instruments, etc.) to attempt to determine
the most effective methods to analyze and extract the desired
metals.
|
|
·
|
Flow-Sheet
De
velopment
: Nanominerals,
in conjunction with Dr. Hewlett, has developed a flow sheet for the
Clarkdale Project to attempt to determine methods to process the slag
material on a large scale. The flow-sheet for the first
production module has been designed with the intention to allow for the
most effective and economic extraction of metals from the slag material
with the least environmental impact. Nanominerals assisted us
in: (i) building the pilot plant, where the grinding, leaching, filtering
and extraction of the metals was performed, (ii) gathering information
from the pilot plant, and (iii) making changes to the design, equipment
and chemicals used in the process of extracting metals from the slag
material. Nanominerals continues to assist us in determining
the most effective methods used in the process of extracting metals from
the slag material.
|
|
·
|
Financings
: Nanominerals
has introduced us to investors and potential investors which have led to
participation in our previous financings. Nanominerals has also
provided assistance to us when potential financiers performed technical
due diligence on our projects, including making technical presentations to
potential investors. We have not provided special fees to
Nanominerals in connection with such
financings.
|
|
·
|
the
technical services provided by Nanominerals were highly specialized and
required scientists with significant experience in mining, metallurgy and
chemistry.
|
|
·
|
we
required a significant amount of time to be devoted to our projects (most
importantly at Clarkdale). Nanominerals was available to us
nearly every day (at least 100 hours per
month).
|
|
·
|
Nanominerals
had available resources, such as outside scientific contacts whom the
consultant could use to perform specific work (i.e. SEM specialists,
metallurgists in certain specialized fields,
etc.).
|
|
·
|
Nanominerals
had instrumentation and laboratory facilities at its disposal, either to
be able to prepare or provide technical presentations and coordinate
technical due-diligence presentations to prospective
investors.
|
|
·
|
Nanominerals
was willing to provide the services to us on a month-to-month with the
ability to terminate at any time.
|
|
·
|
we
agreed to continue to pay VRIC $30,000 per month (which amount we had
previously paid to VRIC under the Joint Venture Agreement since June 2005)
until the earlier of: (i) the date that is 90 days after we receive a
bankable feasibility study, or (ii) the tenth anniversary of the date of
the execution of the letter
agreement,
|
|
·
|
we
have agreed to pay VRIC $6,400,000 within 90 days after we receive a
bankable feasibility study,
|
|
·
|
we
have agreed to pay VRIC a minimum annual royalty of $500,000, commencing
90 days after we receive a bankable feasibility study, and an additional
royalty consisting of 2.5% of the “net smelter returns” on any and all
proceeds of production from the Clarkdale Slag Project. The
minimum royalty remains payable until the first to occur of: (1) the end
of the first calendar year in which the percentage royalty equals or
exceeds $500,000, or (2) February 15, 2017. In any calendar
year in which the minimum royalty remains payable, the combined minimum
royalty and percentage royalty will not exceed $500,000,
and
|
|
·
|
we
have agreed to pay VRIC an additional amount of $3,500,000 from the net
cash flow of the Clarkdale Slag Project after such time that we have
constructed and are operating a processing plant or plants that are
capable of processing approximately 2,000 tons of slag material per day at
the Clarkdale Slag Project. The acquisition agreement does not
include a specific provision with respect to the periods at the end of
which “net cash flow” is measured, once the production threshold has been
reached. Therefore, the timing and measurement of specific
payments may be subject to dispute. The parties intend to
negotiate a clarification of this provision in good faith before the
production threshold has been
reached.
|
Total Payments
|
Amount
Applied to Interest
|
Amount Applied
to Principal
|
Balance
|
|||||||||||||
2/15/07
Discounted Acquisition Liability
|
$ | 2,501,187 | ||||||||||||||
Quarter
Ended 3/31/07
|
$ | 60,000 | $ | 17,942 | $ | 42,058 | 2,459,129 | |||||||||
Quarter
Ended 6/30/07
|
90,000 | 48,910 | 41,090 | 2,418,039 | ||||||||||||
Quarter
Ended 9/30/07
|
90,000 | 48,082 | 41,918 | 2,376,121 | ||||||||||||
Quarter
Ended 12/31/07
|
90,000 | 47,239 | 42,761 | 2,333,360 | ||||||||||||
2007
Totals
|
330,000 | 162,173 | 167,827 | 2,333,360 | ||||||||||||
Quarter
Ended 3/31/08
|
90,000 | 46,378 | 43,622 | 2,289,738 | ||||||||||||
Quarter
Ended 6/30/08
|
90,000 | 45,499 | 44,501 | 2,245,237 | ||||||||||||
Quarter
Ended 9/30/08
|
90,000 | 44,603 | 45,397 | 2,199,840 | ||||||||||||
Quarter
Ended 12/31/08
|
90,000 | 43,690 | 46,310 | 2,153,530 | ||||||||||||
2008
Totals
|
270,000 | 136,480 | 133,520 | 2,153,530 | ||||||||||||
Quarter
Ended 3/31/09
|
90,000 | 42,757 | 47,243 | 2,106,287 | ||||||||||||
Quarter
Ended 6/30/09
|
90,000 | 41,806 | 48,194 | 2,058,093 | ||||||||||||
2009
Totals
|
$ | 180,000 | $ | 84,563 | $ | 95,437 | $ | 2,058,093 |
|
·
|
Nanominerals,
one of our principal stockholders and an affiliate of Ian R. McNeil and
Carl S. Ager, who are our executive officers and members of our board of
directors, was delinquent in: (a) the filing of a Form 3 (Initial
Statement of Beneficial Ownership of Securities) relating to an event
occurring prior to 2008 and which was reported on a delinquent basis on a
report filed in 2008 and thereafter amended in 2009, and (b) the reporting
of three transactions on Form 4 (Statement of Changes in Beneficial
Ownership of Securities) relating to transactions occurring prior to 2008
and which were reported on a delinquent basis on two
reports,
|
|
·
|
Harry
B. Crockett, one of our directors, was delinquent in the reporting of four
transactions in 2008 on Form 4 which were reported on a delinquent basis
on two reports,
|
|
·
|
Martin
B. Oring, one of our directors, was delinquent in the reporting of two
transactions in 2008 on Form 4 which were reported on a delinquent basis
on two reports,
|
|
·
|
Robert
D. McDougal, one of our directors, was delinquent in the reporting of four
transactions in 2008 on Form 4 which were reported on a delinquent basis
on two reports, and
|
2008
|
2007
|
|||||||
Audit
Fees
|
$ | 80,436 | $ | 66,000 | ||||
Audit-Related
Fees
|
- | 29,917 | ||||||
Tax
Fees
|
- | - | ||||||
All
Other Fees
|
34,643 | - | ||||||
Total
|
$ | 115,079 | $ | 95,917 |
2008
|
2007
|
|||||||
Audit
Fees
|
$ | - | - | |||||
Audit-Related
Fees
|
- | - | ||||||
Tax
Fees
|
- | - | ||||||
All
Other Fees
|
3,900 | - | ||||||
Total
|
$ | 3,900 | $ | - |
|
·
|
a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual
meeting,
|
|
·
|
the
name and address, as they appear on the Corporation’s books, of the
stockholder proposing such
business,
|
|
·
|
the
class and number of shares of the Corporation which are beneficially owned
by the stockholder,
|
|
·
|
any
material interest of the stockholder in such business,
and
|
|
·
|
any
other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Exchange Act, in his capacity as a
proponent to a stockholder
proposal.
|
|
(i)
|
as
to each person, if any, whom the stockholder proposes to nominate for
election or re-election as a
director:
|
|
·
|
the
name, age, business address and residence address of such
person,
|
|
·
|
the
principal occupation or employment of such
person,
|
|
·
|
the
class and number of shares of the Corporation which are beneficially owned
by such person,
|
|
·
|
a
description of all arrangements or understandings between the stockholder
and each nominee and any other person or persons (naming such person or
persons) pursuant to which the nominations are to be made by the
stockholder, and
|
|
·
|
any
other information relating to such person that is required to be disclosed
in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the 1934 Act
(including without limitation such person’s written consent to being named
in the proxy statement, if any, as a nominee and to serving as a director
if elected), and
|
(ii)
|
as
to such stockholder giving notice,
|
|
·
|
the
name and address, as they appear on our books, of the stockholder
proposing such business,
|
|
·
|
the
class and number of shares which are beneficially owned by the
stockholder, and
|
|
·
|
any
other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Exchange Act, in his capacity as a
proponent to a stockholder
proposal.
|
By
Order of the Board of Directors
|
||
/s/
Ian R. McNeil
|
||
Ian
R. McNeil
|
||
President
and Chief Executive
Officer
|
|
||
Ian
R. McNeil, President
|
Section
1.
|
Purpose.
|
|
(a)
|
The
purpose of this 2009 Stock Incentive Award Plan (the “
Plan
”)
is to enable Searchlight Minerals Corp. (the “
Company
”)
and its Subsidiaries to attract, retain, motivate, and reward employees,
and other service providers of the Company and its Subsidiaries, to
provide for equitable and competitive compensation opportunities, to
recognize individual contributions and reward achievement of Company
goals, and to promote the creation of long-term value for stockholders by
strengthening the mutuality of interests between those employees and other
service providers and the Company’s
stockholders.
|
(b)
|
The
Plan authorizes stock-based and cash-based incentives for
Participants. Awards may be made in the form of (i) Incentive
Stock Options; (ii) Nonstatutory Stock Options; (iii) Restricted Stock;
(iv) Stock Appreciation Rights; (v) Stock Units; and (vi) any combination
of the foregoing.
|
|
(a)
|
“Award
” means any
Option, SAR, Restricted Stock, Stock Unit, or Stock granted as a bonus or
in lieu of another award, Dividend Equivalent, or Other Stock-Based Award,
together with any related right or interest, granted to a Participant
under the Plan.
|
(b)
|
“Award Agreement”
means
any Option Agreement, SAR Agreement, Restricted Stock Agreement, Stock
Unit Agreement, or any other agreement under which the Company (or a
Subsidiary) grants an Eligible Person an
Award.
|
|
(c)
|
“Beneficiary”
means the
person(s) or trust(s) designated as being entitled to receive the benefits
under a Participant’s Award upon and following a Participant’s death.
Unless otherwise determined by the Committee, a Participant may designate
one or more persons or one or more trusts as his or her
Beneficiary.
|
(d)
|
“Board”
means the
Company’s Board of Directors.
|
|
(e)
|
“Cause”
means, unless
otherwise provided by the Committee, (i) “Cause” as defined in any
Individual Agreement to which the Participant is a party, or (ii) if there
is no such Individual Agreement or if it does not define Cause: (A)
conviction of the Participant for committing a felony under federal law or
in the law of the state in which such action occurred, (B) dishonesty in
the course of fulfilling the Participant’s employment or service duties,
(C) willful and deliberate failure on the part of the Participant to
perform the Participant’s employment or service duties in any material
respect, or (D) prior to a Corporate Transaction, such other events as
shall be determined by the Committee. The Committee shall,
unless otherwise provided in an Individual Agreement with the Participant,
have the sole discretion to determine whether “Cause” exists, and its
determination shall be final.
|
|
(f)
|
“Code”
means the
Internal Revenue Code of 1986, as amended from time to time, any successor
thereto, and including any regulations promulgated
thereunder.
|
(g)
|
“Committee”
means the
committee created and appointed by the Board to administer the Plan, or if
no committee is created or appointed, the
Board.
|
(h)
|
“Corporate Transaction”
means the occurrence, in a single transaction or in a series of
related transactions, of any of the following: (i) any person or
group of persons (as defined in Sections 13(d) and 14(d) of the
Exchange Act) together with his/her/their affiliates, excluding employee
benefit plans of the Company, is or becomes, directly or indirectly, the
“beneficial owner” (as defined in Rule 13d-3 of the Exchange Act) of
securities of the Company representing 50% or more of the combined voting
power of the Company’s then outstanding securities; or (ii) a merger
or consolidation of the Company with any other corporation or entity is
consummated regardless of which entity is the survivor, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or being converted into voting securities
of the surviving entity or its parent) at least 50% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or
(iii) the Company is completely liquidated or all or substantially
all of the Company’s assets are
sold.
|
|
(i)
|
“Covered Employee”
means an Eligible Person who is an employee of the Company, or a
Subsidiary.
|
|
(j)
|
“Covered Service Provider”
means an Eligible Person who is an independent contractor providing
services to the Company.
|
(k)
|
“Date of Grant
”
means the date on which the Committee has completed all
corporate action necessary to give the Participant a legally binding right
to the Award, including the setting of the number of shares of Stock
subject to the Award and the exercise
price.
|
|
(l)
|
“Disability”
means a
permanent and total disability resulting from a physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, as determined by
the Committee based on medical evaluation
.
|
(m)
|
“Dividend Equivalent
”
means a right, granted under this Plan, to receive cash, Stock, other
Awards or other property equal in value to all or a portion of the
dividends paid with respect to a specified number of shares of
Stock.
|
(n)
|
“Effective Date
” means
the effective date of this Plan document, which is the date of the annual
meeting of stockholders of the Company held in 2009, provided this Plan is
approved by the Company’s Stockholders at such
meeting.
|
(o)
|
“Eligible Persons”
means those persons who are designated by the Committee under
Section 5(a) of this Plan to receive
Awards.
|
(p)
|
“Exchange Act
” means
the Securities Exchange Act of 1934, as amended, and shall include any
successor thereto.
|
(q)
|
“Fair Market Value” or
“FMV
”
means, as of any
date, the fair market value of a share of the Company’s Stock, as
determined in good faith and under procedures established by the Committee
as follows:
|
|
(r)
|
“Incentive Stock Option” or
“ISO
” means any Option intended to be, designated as, and that
otherwise qualifies as an “Incentive Stock Option” within the meaning of
Code Section 422.
|
|
(s)
|
“Individual Agreement
”
means an employment or similar agreement between a Participant and the
Company or one of its Subsidiaries.
|
|
(t)
|
“
Non-Employee
Director
”
has the meaning set forth under Section 16 of the Exchange
Act.
|
(u)
|
“Nonstatutory Stock Option”
means any Option that is not an Incentive Stock Option
.
|
(v)
|
“Option”
means a right
to purchase Stock granted under Section 6(b) of the Plan
.
|
(w)
|
“
Outside Director
”
has the meaning set
forth in Code Section 162(m).
|
(x)
|
“Other Stock-Based
Awards
” means Awards granted to a Participant that are valued, in
whole or in part, by reference to, or otherwise based on, shares of
Stock.
|
(y)
|
“Participant”
means a
person who has been granted an Award under the Plan that remains
outstanding, including a person who is no longer an Eligible
Person.
|
|
(z)
|
“Plan”
means the
Searchlight Minerals Corp. 2008 Stock Incentive Award Plan
.
|
(aa)
|
“Restricted Stock”
means Stock granted under this Plan, which is subject to certain
restrictions and to a risk of
forfeiture.
|
(bb)
|
“Section 16
Participant
” means a Participant under the Plan who is subject to
Section 16 of the Exchange Act.
|
(cc)
|
“
Stock
” means shares of
the Company’s stock which is common stock for purposes for purposes of
Section 305 of the Code and the implementing regulations, with $0.001 par
value per share, and any other equity securities of the Company that may
be substituted or resubstituted for such Stock. In all cases
under this plan, Stock shall constitute “service recipient stock” within
the meaning of Treasury Regulation Section
1.409A-1(b)(5)(iii).
|
(dd)
|
“Stock Appreciation Rights”
or
“SARs”
means a right granted to a Participant under Section 6(c) of the
Plan.
|
(ee)
|
“Stock Units
” means a
right granted under this Plan to receive Stock or other Awards or a
combination thereof at the end of a specified period. Stock
Units subject to a risk of forfeiture may be designated as “Restricted
Stock Units.”
|
(ff)
|
“Subsidiary”
means any
corporation in an unbroken chain of corporations beginning with the
Company, if each of the corporations (other than the last corporation in
the unbroken chain) owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in that chain.
|
(gg)
|
“Ten Percent or More
Stockholder”
means an Eligible Person who owns or is
deemed to own (by reason of the attribution rules of Code Section 424(d))
more than 10% of the combined voting power of all classes of Stock of the
Company or any parent or subsidiary
corporation.
|
Section
3.
|
Administration
.
|
|
(a)
|
Authority
of the Committee
.
The Plan
shall be administered by the Committee. Any interpretation or
administration of the Plan by the Committee, and all actions and
determinations of the Committee, shall be final, binding and conclusive on
the Company, its stockholders, Subsidiaries, all Participants in the Plan,
their respective legal representatives, successors and assigns, and all
persons claiming under or through any of them. The Committee shall
consider such factors as it deems relevant to making such decisions,
determinations, and interpretations. A Participant or other holder of an
Award may contest a decision or action of the Committee with respect to
such person or Award only on the grounds that such decision or action is
arbitrary or capricious or was
unlawful.
|
(b)
|
Composition
of the Committee
.
The
Committee shall consist of not less than three directors, all of whom
shall be Outside Directors and Non-Employee Directors. Those
Directors shall be appointed by the Board and shall serve as the Committee
at the pleasure of the Board. The function of the Committee
specified in the Plan shall be exercised by the entire Board if, and to
the extent that, no Committee exists that has the authority to so
administer the Plan.
|
|
(c)
|
Manner of
Exercise of Committee Authority.
The Committee
shall have the full power and authority to interpret and administer the
Plan in its sole discretion, including exercising all the powers and
authorities either specifically granted to it under the Plan or necessary
or advisable in the administration of the Plan. The Committee’s
powers and authorities include, without limitation, the following: (i) the
sole ability to determine: eligibility criteria for Awards; (ii) to select
the Eligible Persons to whom Awards may from time to time be granted;
(iii) to determine the time or times at which Awards shall be granted;
(iv) to determine the number of shares of Stock to be covered
by each Award; (v) to determine and modify from time to time
the specific terms and conditions , including restrictions, not
inconsistent with the terms of the Plan, of any Award, which terms and
conditions may differ among individual Awards and grantees,
and to approve the form of written instruments evidencing the
Awards; (vi) to determine the vesting and exercisability of any Award and
to accelerate at any time the vesting or exercisability of all or any
portion of any
Award; (vii) subject to the provisions of this Plan, to extend at any time
the period in which Stock Options may be exercised; (viii) to determine
the exercise or purchase price of such shares of Stock; (ix) to determine
if and when Awards are forfeited or expire under their terms; (x) to
interpret and construe the Plan provisions; any amendments, and any rules
and regulations relating to the Plan; (xi) to make exceptions to any Plan
provisions in good faith and for the benefit of the Company; and (xii) to
make all other determinations deemed necessary or advisable for the
administration of the Plan.
|
(d)
|
Delegation
of Authority.
The Committee may
delegate to one or more of its members or to one or more agents such
administrative duties as it may deem advisable, and the Committee or any
person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the Committee
or such person may have under the Plan; provided, that such delegation may
not include the selection or grant of Awards to Participants or Eligible
Persons who are executive officers of the Company or any Subsidiary,
affiliate or Section 16
Participants.
|
|
(e)
|
Committee
Vacancies.
The Board shall
fill all vacancies in the Committee. The Board may from time to
time appoint additional members to the Committee and may at any time
remove one or more Committee members and substitute others. One
member of the Committee shall be selected by the Board as
chairman. The Committee shall hold its meetings at such times
and places as it shall deem advisable. All determinations of
the Committee shall be made by not less than a majority of its members
either present in-person or participating by a telephone conference at a
meeting or by written consent. The Committee shall keep minutes
of its meetings. The Committee may appoint a secretary to keep
such minutes and may make such rules and regulations for the conduct of
its business as it shall deem advisable, but in accordance with the
written charter prepared by the Board and which may be amended from time
to time by the Board. The secretary shall not need to be a
member of the Committee or a member of the
Board.
|
|
(f)
|
Limitation
of Liability
. The Committee and each member thereof, and
any person acting pursuant to authority delegated by the Committee, shall
be entitled, in good faith, to rely or act upon any report or other
information furnished by any executive officer, other officer or employee
of the Company or a Subsidiary, the Company’s independent auditors,
consultants or any other agents assisting in the administration of the
Plan. Members of the Committee, any person acting pursuant to
authority delegated by the Committee, and any officer or employee of the
Company or a Subsidiary acting at the direction or on behalf of the
Committee or a delegee shall not be personally liable for any action or
determination taken or made in good faith with respect to the Plan, and
shall, to the extent permitted by law, be fully indemnified and protected
by the Company with respect to any such action or
determination.
|
Section
4.
|
Stock Subject to
Plan
.
|
|
(a)
|
Overall
Number of Shares Available
.
Subject to
adjustment as provided under Section 10(c), the total number of shares of
Stock reserved and available for delivery in connection with Awards under
the Plan shall be 3,250,000 shares. Any shares of Stock issued
under the Plan may consist, in whole or in part, of authorized and
unissued shares or treasury shares
.
The
authorized number of reserved and available shares may be increased from
time to time by approval of the Board and, if such approval is required,
by the stockholders of the Company.
|
(b)
|
Accounting
Procedures.
The Committee may
adopt reasonable accounting procedures to ensure an appropriate accounting
of Stock subject to the Plan, avoid double counting (as, for example, in
the case of tandem or substitute Awards) and make adjustments in
accordance with this Section 4(b). Shares shall be counted
against those reserved to the extent such shares have been delivered and
are no longer subject to a risk of forfeiture. Accordingly, (i)
to the extent that an Award under the
Plan is canceled,
expired, forfeited, settled in cash, settled by delivery of fewer shares
than the number underlying the Award, or otherwise terminated without
delivery of Stock to the Participant, the Stock retained by or returned to
the Company will not be deemed to have been delivered under the Plan; and
(ii) Stock that is withheld from such Award or separately surrendered by
the Participant in payment of the exercise price or taxes relating to such
Award shall be deemed to constitute Stock not delivered and will be
available under the Plan. The Committee may determine that
Awards may be outstanding that relate to more Stock than the aggregate
shares of Stock remaining available under the Plan so long as Awards will
not in fact result in delivery and vesting of shares of Stock in excess of
the number then available under the Plan. In addition, in the
case of any Award granted in assumption of or in substitution for an award
of a company or business acquired by the Company or a Subsidiary or
affiliate or with which the Company or a Subsidiary or affiliate combines,
shares delivered or deliverable in connection with such assumed or
substitute Award shall not be counted against the number of shares of
Stock reserved under the Plan. The authorized number of reserved and
available shares may be increased from time to time by approval of the
Board and, if such approval is required, by the stockholders of the
Company.
|
|
(c)
|
Individual
Annual Award Limits.
No Participant
may be granted Options or other Awards under the Plan with respect to an
aggregate of more than 500,000 shares of Stock (subject to adjustment as
otherwise may be provided for throughout this Plan) during any calendar
year
.
|
Section
5.
|
Eligibility
.
|
|
(a)
|
Eligibility.
Grants of Awards
may be made from time to time to those officers, employees and Service
Providers of the Company or any Subsidiary who are designated by the
Committee in its sole and exclusive discretion as eligible to receive such
Awards (“
Eligible
Persons
”). However, Options intended to qualify as ISOs
shall be granted only to Eligible Persons while actually employed by the
Company or a Subsidiary. The Committee may grant more than one
Award to the same Eligible Person.
Awards may be
made to members of the Committee and must be approved and granted by a
majority of the disinterested members of the
Board.
|
(b)
|
Substitutions/Acquisitions.
Holders of awards
granted by a company or business acquired by the Company or a Subsidiary,
or with which the Company or a Subsidiary combines, may be eligible for
substitute Awards under this Plan that will be granted in assumption of or
in substitution for such outstanding awards in connection with such
acquisition or combination transaction; provided that such awards satisfy
the requirements of Treasury Regulations Section
1.409A-1(b)(5)(v)(D). In such cases, holders of the assumed or
substituted awards will become Participants in the Plan; provided,
however, that such assumption or substitution in no way causes an Award
under this Plan to become subject to the terms and conditions of Code
Section 409A.
|
|
(c)
|
Participation
.
An
Eligible Person shall become a Participant in the Plan and shall perfect
his or her Award only after he or she has completed the applicable Award
Agreement in a manner that is satisfactory to the Committee and has
delivered said Award Agreement to the Committee. A Participant
shall continue his or her participation in the Plan, even if no longer an
Eligible Person, until any and all of his or her interests that are held
under the Plan expire or are paid. Participants who are on
military leaves of absence, sick leaves, and any other
bona
fide
leaves of
absence are not considered to be separated from service and shall be
deemed employed so long as the leave does not extend beyond three (3)
months or, if longer, the individual retains reemployment rights under an
applicable statute or by contract.
|
Section
6.
|
Specific Terms of Awards
Granted Under the Plan
.
|
|
(a)
|
General
Terms of All Awards
.
All Awards
granted under the Plan, including Awards of any Stock Units shall be
evidenced by an Award Agreement.. Award Agreements may provide
for grants of Awards on the specific terms and conditions set forth in
this Section 6. Alternatively, the Committee may impose on any
individual Award, as specified in the individual Award Agreement, such
additional terms and conditions, not inconsistent with the provisions of
the Plan, or applicable law, as the Committee shall determine, including
terms relating to the forfeiture of Awards in the event of termination of
employment or service by the Participant and terms permitting a
Participant to make elections relating to his or her Award. The
Committee shall retain full power and discretion with respect to any term
or condition of an Award that is not mandatory under the Plan and the
terms of the Award Agreement; provided that the exercise of such
discretion shall in no event cause an Award to become subject to the terms
and conditions of Code Section 409A, unless otherwise agreed upon between
the Company (or Subsidiary) and the Eligible Person. The
Committee shall require the payment of lawful consideration for an Award
to the extent necessary to satisfy the requirements of the Nevada Revised
Statutes, and may otherwise require payment of consideration for an Award
except as limited by the Plan and as otherwise required by applicable
law.
|
|
In
the event the Committee determines after the Date of Grant that any Award
granted hereunder may be subject to Code Section 409A, the Committee may
adopt such amendments to the Plan and/or applicable Award
Agreement or adopt other policies and procedures (including those with
retroactive effect) or take any other actions that the
Committee determines are necessary and appropriate to (i)
exempt the Award from Code Section 409A and/or preserve the intended tax
treatment of the benefits provided with respect to the Award, or (ii)
comply with the requirements of Code Section
409A.
|
(b)
|
Option
Awards.
Options granted
under the Plan shall be evidenced by an agreement (“Option
Agreement”). Options that are awarded may be of one of two
types which shall be indicated on the face of the Option Agreement: (i)
ISOs or (ii) Nonstatutory Stock Options. The Committee is
authorized to grant Options to Participants on the following terms and
conditions
:
|
|
(i)
|
Option Term; Time and
Method of Exercise
. The Committee shall determine the
term of each Option; provided that in no event shall the term of any
Option exceed a period of 10 years from the Date of Grant (or with respect
to an ISO, 5 years from the Date of Grant in the case of a Participant who
at the Date of Grant is a Ten Percent or More Stockholder). The
Committee shall determine the time or times at which or the circumstances
under which an Option may be exercised in whole or in part (including
based on achievement of performance goals and/or future service
requirements), the methods by which such exercise price may be paid or
deemed to be paid and the form of such payment, including, without
limitation, cash, Stock (including by withholding Stock deliverable upon
exercise), other Awards or awards granted under other plans of the Company
or any Subsidiary, or other property, and the methods by or forms in which
Stock will be delivered or deemed to be delivered in satisfaction of
Options to Participants. The Committee shall have the right, at any time
after the Date of Grant, to reduce or eliminate any restrictions on the
Participant’s right to exercise all or part of the Stock Option, except
that no Stock Option shall first become exercisable within one year from
the Date of Grant.
|
|
(ii)
|
Exercise
Price
. The option price per share of Stock purchasable
under a Nonstatutory Stock Option or an Incentive Stock Option shall be
determined by the Committee at or immediately prior to the Date of Grant,
shall be set forth on the applicable Option Agreement, and shall be not
less than 100% of the Fair Market Value of the Stock at the Date of Grant
(or, with respect to an Incentive Stock Option, and a Participant who at
the Date of Grant is a Ten Percent or More Stockholder, 110% of the Fair
Market Value of the Stock at the Date of Grant). Prior to the
Date of Grant, the Committee shall specify the method by and date on which
the Fair Market Value of the Option will be determined; said date shall be
specified on the Option Agreement.
|
|
(iii)
|
Non-Transferability of
Options
. No Option shall be transferable by any
Participant other than by will or by the laws of descent and distribution,
except that, if so provided in the Option Agreement, the Participant may
transfer the Option, other than an ISO, (i) pursuant to a qualified
domestic relations order (as defined in the Code or the Employment
Retirement Income Security Act of 1974, as amended); or (ii) during the
Participant’s lifetime to one or more members of the Participant’s family,
to one or more trusts for the benefit of one or more of the Participant’s
family, or to a partnership or partnerships of members of the
Participant’s family, or to a charitable organization as defined in Code
Section 501(c)(3), provided that the transfer would not result in the loss
of any exemption under Rule 16b-3 of the Exchange Act with respect to any
Option. The transferee of an Option will be subject to all
restrictions, terms and conditions applicable to the Option prior to its
transfer, except that the Option will not be further transferable by the
transferee other than by will or by the laws of descent and
distribution.
|
|
(iv)
|
Disposition
upon Termination of Employment.
|
|
(A)
|
Termination by
Death
. Subject to Sections 6(b)(i) and 6(b)(v), if any
Participant’s employment (or service) with the Company or any Subsidiary
terminates by reason of death, any Option held by that Participant shall
become immediately and automatically vested and exercisable. If
termination of a Participant’s employment (or service) is due to death,
then any Option held by that Participant may thereafter be exercised for a
period of two years (or with respect to an ISO, for a period of 18 months
or such other lesser period as the Committee may specify at or after
grant) from the date of death. Notwithstanding the foregoing,
in no event will any Option be exercisable after the expiration of the
option period of such Option. The balance of the Option shall
be forfeited if not exercised within two years (or 18 months with respect
to ISOs or such lesser period as the Committee may
specify).
|
|
(B)
|
Termination by Reason
of Disability
.
Subject to
Sections 6(b)(i) and 6(b)(v), if a Participant’s employment (or service)
with the Company or any Subsidiary terminates by reason of Disability, any
Option held by that Participant shall become immediately and automatically
vested and exercisable. If termination of a Participant’s
employment (or service) is due to Disability, then any Option held by that
Participant may thereafter be exercised by the Participant or by the
Participant’s duly authorized legal representative if the Participant is
unable to exercise the Option as a result of the Participant’s Disability,
for a period of two years (or with respect to an ISO, for a period of one
year or such other lesser period as the Committee may specify at or after
grant) from the date of such termination of employment. If the Participant
dies within that two-year period (or with respect to an ISO, for a period
of one year or such other lesser period as the Committee may specify at or
after grant), any unexercised Option held by that Participant shall
thereafter be exercisable by the estate of the Participant (acting through
its fiduciary) for the duration of the two-year period ( or the one year
period in the case of an ISO or such lesser period as the Committee may
specify) from the date of termination of
employment. Notwithstanding the foregoing, in no event will any
Option be exercisable after the expiration of the option period of such
Option. The balance of the Option shall be forfeited if not
exercised within two years (or one year with respect to ISOs or such
lesser period as the Committee may
specify).
|
|
(C)
|
Termination for
Cause.
Unless otherwise determined by the Committee at
or after the time of granting any Option, if a Participant’s employment
(or service) with the Company or any Subsidiary terminates for Cause, any
unvested Options will be forfeited and terminated immediately upon
termination and any vested Options held by that Participant shall
terminate 30 days after the date employment (or service)
terminates. Notwithstanding the foregoing, in no event will any
Option be exercisable after the expiration of the option period of such
Option. The balance of the Option shall be
forfeited.
|
|
(D)
|
Other
Termination/Retirement.
Unless otherwise determined by
the Committee at or after the time of granting any Option, if a
Participant retires from employment with the Company (or a Subsidiary) or
a Participant’s employment (or service) with the Company (or a Subsidiary)
terminates for any reason other than death, Disability, or for Cause, all
vested ISOs held by that Participant shall terminate three months after
the date employment (or service) terminates, and all vested Nonstatutory
Stock Options held by that Participant shall terminate one year after the
date employment (or service) terminates. Notwithstanding the
foregoing, in no event will any Option be exercisable after the expiration
of the option period (which shall be established in the Option Agreement)
of such Option. The balance of the Option shall be
forfeited.
|
|
(E)
|
Leave of
Absence.
In the event a Participant is granted a
military leave of absence, a sick leave, or any other bona fide leave of
absence by the Company or any Subsidiary, the Participant’s employment
with the Company or such Subsidiary will not be considered terminated, and
the Participant shall be deemed an employee of the Company or such
Subsidiary during such leave of absence or any extension thereof granted
by the Company or such Subsidiary. Notwithstanding the
foregoing, in the case of an ISO, a leave of absence of more than three
months will be viewed as a termination of employment unless continued
employment is guaranteed by contract or statute. If the period of such
leave exceeds three months and the Participant’s right to reemployment is
not provided either by statute or by contract, the employment relationship
is deemed to terminate on the first day immediately following such
three-month period.
|
|
(v)
|
Incentive Stock
Options.
Notwithstanding Sections 6(b)(iii) and
6(b)(iv), an ISO shall be exercisable by (A) a Participant’s authorized
legal representative (if the Participant is unable to exercise the ISO as
a result of the Participant’s Disability) only if, and to the extent,
permitted by Section 422 of the Code and (B) by the Participant’s estate,
in the case of death, or authorized legal representative, in the case of
Disability, no later than ten years from the date the ISO was granted (in
addition to any other restrictions or limitations that may
apply). Notwithstanding anything to the contrary herein, to the
extent required for ISO treatment under Code Section 422, the aggregate
Fair Market Value as of the Date of Grant under this Plan and any other
plan of the Company (or its parent or subsidiary corporations) for the
first time by an Eligible Person during any calendar year shall
not exceed $ 100,000. If and to the extent that any Stocks are
issued under a portion of the Stock Option that exceeds the $100,000
limitation under Code Section 422, such Stocks shall not be treated as
issued under an ISO notwithstanding any designation otherwise. If an Award
Agreement specifies that that a Stock Option is intended to be treated as
an ISO, the Stock Option shall to the greatest extent possible comply with
the requirements of Code Section 422 and shall be so construed; provided,
however, that any such designation shall not be interpreted as a
representation, guarantee or other undertaking on the part of the Company
that the Stock Option is or will be determined to qualify as an
ISO. Certain decisions, amendments, interpretations by the
Committee may cause a Stock Option to cease to qualify as an ISO and, to
the extent known beforehand and possible, the Committee shall seek the
consent of the affected
Participant.
|
|
(c)
|
Stock
Appreciation Rights
.
SARs
granted under the Plan shall be evidenced by an agreement (“
SAR
Agreement
”). The Committee is authorized to grant SARs
to Participants on the following terms and
conditions:
|
|
(i)
|
Right to
Payment.
A SAR shall confer on the Participant to whom
it is granted a right to receive, upon exercise thereof, the excess of (A)
the Fair Market Value of one share of Stock on the date of exercise over
(B) the grant price of the SAR as determined by the
Committee. The grant price of each SAR shall be not less than
the Fair Market Value of a share of Stock on the Date of Grant of such
SAR.
|
|
(ii)
|
Other
Terms.
The Committee shall determine the term of each
SAR, provided that in no event shall the term of an SAR exceed a period of
ten years from the Date of Grant. The Committee shall determine
at the Date of Grant or thereafter, the time or times at which and the
circumstances under which an SAR may be exercised in whole or in part
(including based on achievement of performance goals and/or future service
requirements), the method of exercise, method of settlement, form of
consideration payable in settlement, method by or forms in which Stock
will be delivered or deemed to be delivered to Participants, whether or
not an SAR shall be free-standing or in tandem or combination with any
other Award. The Committee may require that an outstanding
Option be exchanged for an SAR exercisable for Stock having vesting,
expiration, and other terms substantially the same as the Option, so long
as such exchange will not result in additional accounting expense to the
Company.
|
(d)
|
Restricted
Stock.
Restricted Stock
granted under the Plan shall be evidenced by an agreement (“
Restricted
Stock Agreement
”). The Committee is authorized to grant
Restricted Stock to Participants on the following terms and
conditions:
|
|
(i)
|
Grant and
Restrictions.
Restricted Stock shall be subject to such
restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions may
lapse separately or in combination at such times, under such circumstances
(including based on achievement of performance goals and/or future service
requirements), in such installments or otherwise and under such other
circumstances as the Committee may determine at the Date of Grant, and
which shall be set forth in the applicable Restricted Stock Agreement, or
thereafter. Except to the extent restricted under the terms of
the Plan and any Restricted Stock Agreement, a Participant granted
Restricted Stock shall have all of the rights of a stockholder, including
the right to vote the Restricted Stock and the right to receive dividends
thereon; provided, however, that the Committee may require mandatory
reinvestment of dividends in additional Restricted Stock, may provide that
no dividends will be paid on Restricted Stock or retained by the
Participant, or may impose other restrictions on the rights attached to
Restricted Stock.
|
|
(ii)
|
Forfeiture.
Except
as otherwise determined by the Committee, upon termination of employment
or service during the applicable restriction period, Restricted Stock that
is at that time subject to restrictions shall be forfeited and reacquired
by the Company; provided that the Committee may provide, by rule or
regulation or in any Restricted Stock Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions relating to
Restricted Stock will lapse in whole or in part, including in the event of
terminations resulting from specified
causes.
|
|
(iii)
|
Certificates for
Stock.
Restricted Stock granted under the Plan shall be
evidenced in such manner as the Committee shall
determine. Certificates representing Restricted Stock shall be
registered in the name of the Participant and shall bear an appropriate
legend referring to the terms, conditions and restrictions applicable to
the Award of such Restricted Stock. The Company shall retain
physical possession of the stock certificates until the time that the
restrictions thereon have lapsed, and the Participant shall have delivered
a stock power to the Company, endorsed in blank, relating to the Stock
covered by such Restricted Stock. The distribution of Stock upon the lapse
of restrictions shall be made to the Participant on or before the period
ending on the later of: (i) the 15
th
day of the third month following the end of the Participant’s first
taxable year in which the right to payment is no longer subject to
restrictions; or (ii) the 15
th
day of the third month following the end of the Company’s first taxable
year in which the right to payment is no longer subject to
restrictions.
|
|
(iv)
|
Dividends and
Splits.
As a condition to the grant of an Award of
Restricted Stock, the Committee may require that any dividends paid on a
share of Restricted Stock shall be either (A) paid with respect to such
Restricted Stock at the dividend payment date in cash, in kind, or in a
number of shares of unrestricted Stock having a Fair Market Value equal to
the amount of such dividends, or (B) automatically reinvested in
additional Restricted Stock or held in kind, which shall be subject to the
same terms as applied to the original Restricted Stock to which it
relates. Unless otherwise determined by the Committee, Stock distributed
in connection with a Stock split or Stock dividend, and other property
distributed as a dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock with respect to
which such Stock or other property has been
distributed.
|
|
(e)
|
Stock
Units
.
Stock
Units granted under the Plan, whether or not subject to restrictions,
shall be evidenced by an agreement (“Stock Unit
Agreement”). The Committee is authorized to grant Stock Units
to Participants, subject to the following terms and
conditions:
|
|
(i)
|
Award and
Restrictions.
Issuance of Stock will occur upon
expiration of the holding period, if any, specified for the Stock Units by
the Committee. In addition, Stock Units shall be subject to
such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions may
lapse at the expiration of the holding period or at earlier specified
times (including based on achievement of performance goals and/or future
service requirements), separately or in combination, in installments or
otherwise, and under such other circumstances as the Committee may
determine at the Date of Grant or thereafter. Stock Units may
be settled by delivery of Stock, other Awards, or a combination thereof,
as determined by the Committee at the Date of Grant or
thereafter.
|
|
(ii)
|
Forfeiture.
Except
as otherwise determined by the Committee, upon termination of employment
or service during the applicable deferral period or portion thereof to
which forfeiture conditions apply (as provided in the Award document
evidencing the Stock Units), all Stock Units that are at that time subject
to such forfeiture conditions shall be forfeited; provided that the
Committee may provide, by rule or regulation or in any Award document, or
may determine in any individual case, that restrictions or forfeiture
conditions relating to Stock Units will lapse in whole or in part,
including in the event of terminations resulting from specified causes.
Stock Units subject to a risk of forfeiture shall be designated as
“Restricted Stock Units” unless otherwise determined by the
Committee.
|
|
(iii)
|
Dividend
Equivalents.
Unless otherwise determined by the
Committee, Dividend Equivalents on the specified number of shares of Stock
underlying Stock Units shall be either (A) paid with respect to such Stock
Units at the dividend payment date in cash or in shares of unrestricted
Stock having a Fair Market Value equal to the amount of such dividends, or
(B) automatically reinvested in additional Stock Units, other Awards or
other investment vehicles having a Fair Market Value equal to the amount
of such dividends, as the Committee shall determine; provided, however,
that the Committee may provide that no Dividend Equivalents will be paid
on a given Award of Stock Units.
|
|
(f)
|
Bonus Stock
and Awards in Lieu of Obligations.
The Committee is
authorized to grant to Participants Stock as a bonus, or to grant Stock or
other Awards in lieu of obligations of the Company or a Subsidiary or
affiliate to pay cash or deliver other property under the Plan or under
other plans or compensatory arrangements, subject to such terms as shall
be determined by the Committee; provided, that such grants shall not be in
lieu of prior promises to pay deferrals of compensation so that any Award
under this Plan that would not otherwise be subject to Code Section 409A
does not become subject to Code Section 409A due to a grant in lieu of
other obligation of the Company or a Subsidiary; provided further, that
any distributions of such Stock as a bonus shall be made to the
Participant on or before the later of: (i) the 15
th
day of the third month following the end of the Participant’s first
taxable year in which the Participant earned the Bonus; or (ii) the
15
th
day of the third month following the end of the Company’s first taxable
year in which the Participant earned the
bonus.
|
(g)
|
Other
Stock-Based Awards.
The Committee is
authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that may be denominated or payable in,
valued in whole or in part by reference to, or otherwise based on, or
related to, Stock or factors that may influence the value of Stock,
including, without limitation, convertible or exchangeable debt
securities, other rights convertible or exchangeable into Stock, purchase
rights for Stock, Awards with value and payment contingent upon
performance of the Company or business units thereof or any other factors
designated by the Committee, and Awards valued by reference to the book
value of Stock or the value of securities of or the performance of
specified subsidiaries or affiliates or other business
units. The Committee shall determine the terms and conditions
of such Awards. Stock delivered pursuant to an Award in the nature of a
purchase right granted under this Section shall be purchased for such
consideration, paid for at such times, by such methods, and in such forms,
including, without limitation, cash, Stock, other Awards, or other
property, as the Committee shall determine. Cash awards, as an element of
or supplement to any other Award under the Plan, may also be granted
pursuant to this Section.
|
|
(a)
|
Stand-Alone,
Additional, Tandem, and Substitute Awards
. Awards
granted under the Plan may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in substitution or
exchange for, any other Award or any award granted under another plan of
the Company, any Subsidiary or affiliate, or any business entity to be
acquired by the Company or a Subsidiary or affiliate, or any other right
of a Participant to receive payment from the Company or any Subsidiary or
affiliate. Awards granted in addition to or in tandem with
other Awards may be granted either as of the same time as or a different
time from the grant of such other Awards. Subject to the Plan’s
terms, the Committee may determine that, in granting a new Award, the
in-the-money value or fair value of any surrendered Award or award or the
value of any other right to payment surrendered by the Participant may be
applied to the purchase of any other Award; provided, that such surrender
does not result in a “modification,” “extension,” “substitution” or
“assumption” of a Stock right, as determined under Treasury Regulation
Section 1.409A-1(b)(5)(v) that would cause such Stock rights to be
considered the grant of a new Stock right which is subject to the terms
and conditions of Code Section 409A. Any transaction otherwise
authorized under this Section 7(a) remains subject to all applicable
restrictions under the Plan and may not result in an Award that is subject
to the terms and conditions of Code Section 409A by virtue of such
transaction; in such event, any transaction that would otherwise be
permissible under this Section 7(a) shall be prohibited unless the
Participant and the Company mutually agree in writing to cause an Award to
become subject to the terms and conditions of Code Section 409A under this
Section 7(a).
|
(b)
|
Form and
Timing of Payment Under Awards; Deferrals.
Subject to the
terms of the Plan and any applicable Award Agreement, payments to be made
by the Company or a Subsidiary or affiliate upon the exercise of an Option
or other Award or settlement of an Award may be made in such forms as the
Committee shall determine, including, without limitation, cash, Stock,
other Awards or other property, and may be made in a single payment or
transfer, or in installments.
|
|
(c)
|
Certain
Limitations on Awards to Ensure Compliance with Code Section
409A
. Other provisions of the Plan notwithstanding, the
Award Agreement evidencing any “409A Award” (which for this purpose means
only such an Award held by a Participant which is subject to the terms and
conditions of Code Section 409A) shall incorporate the terms and
conditions necessary to avoid the consequences specified in Code Section
409A(a)(1). Any terms or conditions inconsistent with the requirements of
Code Section 409A and its implementing regulations shall be automatically
modified and limited (even retroactively) to the extent necessary to
conform said Award with Code Section
409A. Notwithstanding anything to the contrary herein,
the Company shall not be liable for any unintended adverse tax
consequences which may be imposed on the Participant due to receipt,
exercise or settlement of any Stock Option or other Award granted
hereunder, including the taxes and penalties of Code Section
409A.
|
|
(a)
|
Corporate
Transaction in which Awards are not Assumed. Upon the occurrence of a
Corporate Transaction in which outstanding Options, Share Appreciation
Rights, Restricted Stock Awards, Stock Units, and Other Stock-Based Awards
are not being assumed or continued:
|
|
(i)
|
All
outstanding shares of Restricted Stock shall be deemed to have vested, and
all Stock Units shall be deemed to have vested and the shares of Stock
subject thereto shall be delivered, immediately prior to the occurrence of
such Corporate Transaction, and
|
|
(ii)
|
Either
of the following two actions shall be
taken:
|
|
(A)
|
fifteen
days prior to the scheduled consummation of a Corporate Transaction, all
Options and Share Appreciation Rights outstanding hereunder shall become
immediately exercisable and shall remain exercisable for a period of
fifteen days, or
|
|
(B)
|
the
Committee may elect, in its sole discretion, to cancel any outstanding
Awards of Options, Restricted Stock, Stock Units, and/or Share
Appreciation Rights and pay or deliver, or cause to be paid or delivered,
to the holder thereof an amount in cash or securities having a value (as
determined by the Committee acting in good faith), in the case of
Restricted Stock or Stock Units, equal to the formula or fixed price per
share paid to holders of shares of Stock and, in the case of Options or
Share Appreciation Rights, equal to the product of the number of shares of
Stock subject to the Option or Share Appreciation Right (the “Award
Shares”) multiplied by the amount, if any, by which (I) the formula
or fixed price per share paid to holders of shares of Stock pursuant to
such transaction exceeds (II) the Option Price or Share Appreciation Right
Exercise Price applicable to such Award
Shares.
|
|
(iii)
|
With
respect to the Company’s establishment of an exercise window, (i) any
exercise of an Option or Share Appreciation Right during such fifteen-day
period shall be conditioned upon the consummation of the event and shall
be effective only immediately before the consummation of the event, and
(ii) upon consummation of any Corporate Transaction, the Plan and all
outstanding but unexercised Options and Share Appreciation Rights shall
terminate. The Committee shall send notice of an event that will result in
such a termination to all individuals who hold Options and Share
Appreciation Rights not later than the time at which the Company gives
notice thereof to its stockholders.
|
(b)
|
Corporate
Transaction in which Awards are Assumed. The Plan, Options, Share
Appreciation Rights, Restricted Stock Awards, Stock Units, and Other
Stock-Based Awards theretofore granted shall continue in the manner and
under the terms so provided in the event of any Corporate Transaction to
the extent that provision is made in writing in connection with such
Corporate Transaction for the assumption or continuation of the Options,
Share Appreciation Rights, Restricted Stock Awards, Stock Units, and Other
Stock-Based Awards theretofore granted, or for the substitution for such
Options, Share Appreciation Rights, Restricted Stock Awards, Stock Units,
and Other Stock-Based Awards for new common stock options and stock
appreciation rights and new common stock units and restricted stock
relating to the stock of a successor entity, or a parent or subsidiary
thereof, with appropriate adjustments as to the number of shares
(disregarding any consideration that is not common stock) and option and
stock appreciation right exercise prices in accordance with the provisions
of Sections 5(b) and 10(c) and Treasury Regulation
Section.1.409A-1(b)(5)(v)(D).
|
|
(a)
|
Compliance
with Legal and Other Requirements
.
|
|
(i)
|
The
Company may, to the extent deemed necessary or advisable by the Committee,
postpone the issuance or delivery of Stock or payment of other benefits
under any Award until completion of such registration or qualification of
such Stock or other required action under any federal or state law, rule
or regulation, listing or other required action with respect to any stock
exchange or automated quotation system upon which the Stock or other
securities of the Company are listed or quoted, or compliance with any
other obligation of the Company, as the Committee may consider
appropriate, and may require any Participant to make such representations,
furnish such information and comply with or be subject to such other
conditions as it may consider appropriate in connection with the issuance
or delivery of Stock or payment of other benefits in compliance with
applicable laws, rules, and regulations, listing requirements, or other
obligations. The foregoing notwithstanding, in connection with
the occurrence of a Corporate Transaction, the Company shall take or cause
to be taken no action, and shall undertake or permit to arise no legal or
contractual obligation, that results or would result in any postponement
of the issuance or delivery of Stock or payment of benefits under any
Award or the imposition of any other conditions on such issuance, delivery
or payment, to the extent that such postponement or other condition would
represent a greater burden on a Participant than existed on the 90th day
preceding the Corporate
Transaction.
|
|
(ii)
|
If
the Participant is subject to the reporting requirements of Section 16(a)
of the Securities Exchange Act of 1934, as amended, the grant of this
Option shall not be effective until such person complies with the
reporting requirement of Section
16(a).
|
(b)
|
Limits on
Transferability;
Beneficiaries.
|
|
(i)
|
Awards
granted under the Plan shall not be transferable other than by will or by
the laws of descent, and Options may be exercised as provided for under
Section 6(b). A Beneficiary, transferee, or other person
claiming any rights under the Plan from or through any Participant (except
in the case of an Option which is governed by Section 6(b)) shall be
subject to all terms and conditions of the Plan and any Award Agreement
applicable to such Participant, except as otherwise determined by the
Committee, and to any additional terms and conditions deemed necessary or
appropriate by the Committee. Any attempted sale, pledge,
assignment, hypothecation or other transfer of an Award contrary to the
provisions hereof and the levy of any execution, attachment or similar
process upon an Award shall be null and void and without force or effect
and shall result in automatic termination of the
Award.
|
|
(ii)
|
(A)
As a condition to the transfer of any shares of Stock issued upon exercise
of an Award granted under this Plan, the Company may require an opinion of
counsel, satisfactory to the Company, to the effect that such transfer
will not be in violation of the Securities Act of 1933 or any other
applicable securities laws or that such transfer has been registered under
federal and all applicable state securities laws; (B) further, the Company
shall be authorized to refrain from delivering or transferring shares of
Stock issued under this Plan until the Board determines that such delivery
or transfer will not violate applicable securities laws and the
Participant has tendered to the Company any federal, state or local tax
owed by the Participant as a result of exercising the Award, or disposing
of any Stock, when the Company has a legal liability to satisfy such tax;
(C) the Company shall not be liable for damages due to delay in the
delivery or issuance of any stock certificate for any reason whatsoever,
including, but not limited to, a delay caused by listing requirements of
any securities exchange or any registration requirements under the
Securities Act of 1933, the Securities Exchange Act of 1934, or under any
other state or federal law, rule or regulations; (D) the Company is under
no obligation to take any action or incur any expense in order to register
or qualify the delivery or transfer of shares of Stock under applicable
securities laws or to perfect any exemption from such registration or
qualification; and (E) furthermore, the Company will have no liability to
any Participant for refusing to deliver or transfer shares of Stock if
such refusal is based upon the foregoing provisions of this
Section.
|
|
(c)
|
Effect of
Certain Changes
.
In the
event of any merger, reorganization, consolidation, recapitalization,
share dividend, share split, combination of shares or other change in
corporate structure of the Company affecting the Stock, the Committee
shall make appropriate or proportionate substitution or adjustment in: (i)
the aggregate number of Stock reserved for issuance under the Plan, (ii)
the number and kind of shares of Stock or other securities subject to any
then outstanding Awards issued under the Plan; (iii) the price of the
shares of Stock subject to outstanding Stock Options granted under the
Plan, without changing the aggregate exercise price (i.e., the exercise
price multiplied by the number of Stock Options) as to which such Stock
Options remain exercisable; and (iv) the repurchase price per share
subject to each outstanding Restricted Stock Award and any other
outstanding Awards granted under the Plan. Notwithstanding the foregoing,
any substitution or adjustment by the Committee shall comply with Treasury
Regulations Sections 1.409A-1(b)(5)(v)(D) and 1.424-1(a) (except
1.424-1(a)(2)) which will be deemed to be satisfied if the ratio of the
exercise price to the Fair Market Value of the shares subject to the
Awards immediately after the substitution or adjustment is not greater
than the ratio of the exercise price to the Fair Market Value
of the shares subject to the Stock right immediately before the
substitution or adjustment. The Committee’s substitution or adjustment
shall be final, binding and conclusive. No fractional shares of Stock
shall be issued under the Plan as a result of any such substitution or
adjustment; but the Committee may, in its sole discretion, authorize a
cash payment to be made to the Participant in lieu of fractional
shares.
|
(d)
|
Tax
Provisions.
|
|
(i)
|
Withholding.
The
Committee shall so require, as a condition of exercise, each Participant
to agree that: (A) no later than the date of exercise of any
Option granted hereunder, the optionee will pay to the Company or make
arrangements satisfactory to the Committee regarding payment of any
federal, state or local taxes of any kind required by law to be withheld
upon the exercise of such Option; and (B) the Company shall, to the extent
permitted or required by law, have the right to deduct federal, state and
local taxes of any kind required by law to be withheld upon the exercise
of such Option from any payment of any kind otherwise due to the
Participant. For withholding tax purposes, the shares of Stock
shall be valued on the date the withholding obligations are
incurred. The Company shall not be obligated to advise any
optionee of the existence of any such tax or the amount that the Company
will be so required to withhold.
|
|
(ii)
|
Required Consent to
and Notification of Code Section 83(b) Election.
No
election under Code Section 83(b) or under a similar provision of the laws
of a jurisdiction outside the United States may be made unless expressly
permitted by the terms of the Award Agreement or by action of the
Committee in writing prior to the making of such election. In
any case in which a Participant is permitted to make such an election in
connection with an Award, the Participant shall notify the Company of such
election within ten days of filing notice of the election with the
Internal Revenue Service or other governmental authority, in addition to
any filing and notification required pursuant to regulations issued under
Code Section 83(b) or other applicable
provision.
|
|
(iii)
|
Requirement of
Notification upon Disqualifying Disposition under Code Section
421(b).
If any Participant shall make any disposition of shares of
Stock delivered pursuant to the exercise of an ISO under the circumstances
described in Code Section 421(b) (i.e., a disqualifying disposition), such
Participant shall notify the Company of such disposition within ten days
thereof.
|
|
(iv)
|
Contest of Tax
Rulings.
The Company shall have the right, but not the
obligation, to contest, at its expense, any tax ruling or decision,
administrative or judicial, on any issue which is related to the Plan and
which the Board believes to be important to holders of Options issued
under the Plan and to conduct any such contest or any litigation arising
therefrom to a final decision.
|
|
(e)
|
Changes to
the Plan
.
The Board
at any time and from time to time may suspend, terminate, modify or amend
the Plan; provided, however, that the Company shall submit for the
approval of a majority of the stockholders of the Company presented or
represented and entitled to vote at a duly constituted and held meeting of
the stockholders, any amendment that would: (i) materially
increase the benefits accruing to Participants under the Plan, (ii)
increase the number of shares of Stock as to which Awards may be granted
under the Plan, (iii) extend the term of the Plan, (iv)
materially modify the requirements as to eligibility for participation in
the Plan, (v) expand the types of Awards provided under the Plan, or (vi)
be otherwise required by applicable laws, regulations or rules. Any such
increase or modification that may result from adjustments authorized by
Section 10(c) hereof shall not require such approval. In
addition, no such amendment or alteration shall be made which would impair
the rights of any Participant, without such Participant’s written consent,
under any Award theretofore granted, provided that no such consent shall
be required with respect to any amendment or alteration either (i) is
required or advisable in order for the Company, the Plan or the Award to
satisfy or conform to any law or regulation or to meet the requirements of
any accounting standard, or (ii) is not reasonably likely to significantly
diminish the benefits provided under such Award, or that any such
diminishment is adequately
compensated.
|
|
(f)
|
Unfunded
Status of Awards, Creation of Rabbi Trusts.
The Plan is
intended to constitute an “unfunded” plan for equity incentive
compensation. With respect to any payments not yet made to a Participant
or obligations to deliver Stock pursuant to an Award, nothing contained in
the Plan or any Award shall give any such Participant any rights that are
greater than those of a general creditor of the Company; provided that the
Committee may authorize the creation of rabbi trusts and deposit therein
cash, Stock, other Awards or other property, or make other arrangements to
meet the Company’s obligations under the Plan. Such trusts or other
arrangements shall be consistent with the “unfunded” status of the Plan
unless the Committee otherwise
determines.
|
(g)
|
Nonexclusivity
of the Plan.
Neither the
adoption of the Plan by the Board nor its submission to the stockholders
of the Company for approval shall be construed as creating any limitations
on the power of the Board or a committee thereof to adopt such other
incentive or compensation arrangements, apart from the Plan, as it may
deem desirable, including incentive or compensation arrangements and
awards that do not qualify under Code Section 162(m) or to which Code
Section 409A does apply, and such other arrangements may be either
applicable generally or only in specific
cases.
|
(h)
|
Payments in
the Event of Forfeitures
;
Fractional
Shares. Unless otherwise determined by the Committee, in the
event of a forfeiture of an Award with respect to which a Participant paid
cash consideration, the Participant shall be repaid the amount of such
cash consideration. No fractional shares of Stock shall be
issued or delivered pursuant to the Plan or any Award. The
Committee shall determine whether cash, other Awards or other property
shall be issued or paid in lieu of such fractional shares or whether such
fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
|
|
(i)
|
Governing
Law
.
The
validity, construction, and effect of the Plan, any rules and regulations
relating to the Plan and any Award Agreement shall be determined in
accordance with the laws of the State of Nevada, without giving effect to
principles of conflicts of laws, and applicable provisions of federal
law.
|
|
(j)
|
Limitation
on Rights Conferred Under The Plan
. Neither the Plan nor
any action taken hereunder shall be construed as (i) giving any Eligible
Person or Participant the right to continue as an Eligible Person or
Participant or in the employ or service of the Company or a Subsidiary or
affiliate, (ii) interfering in any way with the right of the Company or a
Subsidiary or affiliate to terminate any Eligible Person’s or
Participant’s employment or service at any time (subject to the terms and
provisions of any separate written agreements), (iii) giving an Eligible
Person or Participant any claim to be granted any Award under the Plan or
to be treated uniformly with other Participants and employees, or (iv)
conferring on a Participant any of the rights of a stockholder of the
Company unless and until the Participant is duly issued or transferred
shares of Stock in accordance with the terms of an Award. Any
Award shall not be deemed compensation for purposes of computing benefits
under any retirement plan of the Company or any Subsidiary or affiliate
and shall not affect any benefits under any other benefit plan under which
the
availability
or amount of benefits is related to the level of compensation
(unless required by any such other plan or arrangement with specific
reference to Awards under this
Plan).
|
(k)
|
Termination
of Right of Action
.
Every
right of action arising out of or in connection with the Plan by or on
behalf of the Company or of any Subsidiary, or by any stockholder of the
Company or of any Subsidiary against any past, present or future member of
the Board, or against any employer, or by an employee (past, present or
future) against the Company or any Subsidiary will, irrespective of the
place where an action may be brought and irrespective of the place of
residence of any such stockholder, director or employee, cease and be
barred as of the expiration of three years from the date of the act or
omission in respect of which such right of action is alleged to have
risen.
|
|
(l)
|
Assumption
.
The terms
and conditions of any outstanding Awards granted pursuant to this Plan
shall be assumed by, be binding upon and inure to the benefit of any
successor company to the Company and shall continue to be governed by, to
the extent applicable, the terms and conditions of this
Plan. Such successor Company shall not be otherwise obligated
to assume this Plan.
|
(m)
|
Severability
;
Entire
Agreement.
If any of the
provisions of this Plan or any Award Agreement is finally held to be
invalid, illegal or unenforceable (whether in whole or in part), such
provision shall be deemed modified to the extent, but only to the extent,
of such invalidity, illegality or unenforceability, and the remaining
provisions shall not be affected thereby; provided, that, if any of such
provisions is finally held to be invalid, illegal, or unenforceable
because it exceeds the maximum scope determined to be acceptable to permit
such provision to be enforceable, such provision shall be deemed to be
modified to the minimum extent necessary to modify such scope in order to
make such provision enforceable hereunder. The Plan and any
Award Agreements contain the entire agreement of the parties with respect
to the subject matter thereof and supersede all prior agreements,
promises, covenants, arrangements, communications, representations and
warranties between them, whether written or oral with respect to the
subject matter thereof. No rule of strict construction shall be
applied against the Company, the Committee, or any other person in the
interpretation of any terms of the Plan, Award, or agreement or other
document relating thereto.
|
(n)
|
Plan
Effective Date
.
The Plan
will become effective if, and at such time as, the stockholders of the
Company have approved it by the affirmative votes of the holders of a
majority of the voting securities of the Company present, or represented,
and entitled to vote on the subject matter at a duly held meeting of
stockholders, provided that the total vote cast on the proposal represents
over fifty percent (50%) in interest of all securities entitled to vote on
the proposal. The date of such stockholder approval will be the
Effective Date. Unless earlier terminated by action of the
Board, the authority of the Committee to make grants under the Plan will
terminate on the date that is ten years after the latest date upon which
stockholders of the Company have approved the Plan and the Plan will
remain in effect until such time as the Company has no further rights or
obligations with respect to outstanding Awards or otherwise under the
Plan.
|
(o)
|
Adoption.
|
SEARCHLIGHT
MINERALS CORP.
|
||
By:
|
Section 1.
|
Purpose.
|
(a)
|
The
purpose of this Searchlight Minerals Corp. 2009 Equity Incentive Plan for
Directors (the “
Plan
”)
is to assist Searchlight Minerals Corp. (the “
Company
”)
in attracting and retaining qualified individuals to its Board of
Directors. The Plan provides for equity ownership opportunities
to Directors in order to encourage and enable them to participate in the
Company’s future prosperity and growth and to better match the interests
of such Directors and the Company’s
stockholders.
|
(b)
|
The
Plan authorizes stock-based and cash-based incentives for
Participants. Awards may be made in the form of (i)
Nonqualified Stock Options; (ii) Restricted Stock; (iii) Stock Units; and
(iv) any combination of the
foregoing.
|
(a)
|
“
Award
” means any
Option, Restricted Stock, Stock Unit, or Stock granted in lieu of another
award or Other Stock-Based Award, together with any related right or
interest, granted to a Participant under the
Plan.
|
(b)
|
“Award Agreement”
means
any Option Agreement, Restricted Stock Agreement, Stock Unit Agreement, or
any other agreement under which the Company grants an Eligible Person an
Award.
|
(c)
|
“
Beneficiary
” means the
person(s) or trust(s) designated as being entitled to receive the benefits
under a Participant’s Award upon and following a Participant’s
death. Unless otherwise determined by the Committee, a
Participant may designate one or more persons or one or more trusts as his
or her Beneficiary.
|
(d)
|
“
Board
” means the
Company’s Board of Directors.
|
(e)
|
“
Code
” means the
Internal Revenue Code of 1986, as amended from time to time, any successor
thereto, and including any regulations promulgated
thereunder.
|
(f)
|
“
Committee
” means the
committee created and appointed by the Board to administer the
Plan, or if no committee is created or appointed, the
Board.
|
(g)
|
“
Corporate Transaction
”
means the occurrence, in a single transaction or in a series of related
transactions, of any of the following: (i) any person or group
of persons (as defined in Sections 13(d) and 14(d) of the Exchange Act)
together with his/her/their
affiliates,
excluding employee benefit plans of the Company, is or becomes, directly
or indirectly, the “beneficial owner” (as defined in Rule 13d-3 of the
Exchange Act) of securities of the Company representing 50% or more of the
combined voting power of the Company’s then outstanding securities; or
(ii) a merger or consolidation of the Company with any other corporation
or entity is consummated regardless of which entity is the survivor, other
than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or being converted into voting
securities of the surviving entity or its parent) at least 50% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or (iii) the Company is completely liquidated or all or
substantially all of the Company’s assets are
sold.
|
(h)
|
“
Date of Grant
” means
the date on which the Committee has completed all corporate action
necessary to give the Participant a legally binding right to the Award,
including the setting of the number of shares of Stock subject to the
Award and the exercise price.
|
(i)
|
“Director”
means an
individual who provides services to the Company as a member of its Board
of Directors whether or not as an
employee.
|
(j)
|
“
Dividend Equivalent
”
means a right, granted under this Plan, to receive cash, Stock, other
Awards or other property equal in value to all or a portion of the
dividends paid with respect to a specified number of shares of
Stock.
|
(k)
|
“Eligible Persons”
means those persons who are designated by the Committee under Section 5(a)
of this Plan to receive Awards.
|
(l)
|
“
Exchange Act
” means the
Securities Exchange Act of 1934, as amended, and shall include any
successor thereto.
|
(m)
|
“
Fair Market Value
” or
“
FMV
” means, as
of any date, the fair market value of a share of the Company’s Stock as
determined in good faith and under procedures established by the Committee
as follows:
|
(n)
|
“
Incentive Stock Option
”
or “
ISO
” means
any Option intended to be, designated as, and that otherwise qualifies as
an “Incentive Stock Option” within the meaning of Code Section
422. Incentive Stock Options are not granted under this
Plan.
|
(o)
|
“
Nonqualified Stock
Option
” means any Option that is not an Incentive Stock
Option.
|
(p)
|
“
Option
” means a right
to purchase Stock granted under Section 6(b) of the Plan. All
Options shall be Nonqualified Stock
Options.
|
(q)
|
“
Other Stock-Based
Awards
” means Awards granted to a Participant that are valued, in
whole or in part, by reference to, or otherwise based on, shares of
Stock.
|
(r)
|
“
Participant
” means a
person who has been granted an Award under the Plan that remains
outstanding, including a person who is no longer an Eligible
Person.
|
(s)
|
“
Restricted Stock
” means
Stock granted under this Plan, which is subject to certain restrictions
and to a risk of forfeiture.
|
(t)
|
“
Section 16 Participant
”
means a Participant under the Plan who is subject to Section 16 of the
Exchange Act.
|
(u)
|
“
Stock
” means shares of
the Company’s stock which is common stock for purposes for purposes of
Section 305 of the Code and the implementing regulations, with $0.001 par
value per share, and any other equity securities of the Company that may
be substituted or resubstituted for such Stock. In all cases
under this plan, Stock shall constitute “service recipient stock” within
the meaning of Treasury Regulation Section
1.409A-1(b)(5)(iii).
|
(v)
|
“
Stock Units
” means a
right granted under this Plan to receive Stock or other Awards or a
combination thereof at the end of a specified period. Stock
Units subject to a risk of forfeiture may be designated as “
Restricted Stock
Units
.”
|
Section
3.
|
Administration
.
|
(a)
|
Authority
of the Committee.
The Plan shall be administered by the
Committee. Any interpretation or administration of the Plan by
the Committee, and all actions and determinations of the Committee, shall
be final, binding and conclusive on the Company, its stockholders, all
Participants in the Plan, their respective legal representatives,
successors and assigns, and all persons claiming under or through any of
them. The Committee shall consider such factors as it deems relevant to
making such decisions, determinations, and interpretations. A Participant
or other holder of an Award may contest a decision or action of the
Committee with respect to such person or Award only on the grounds that
such decision or action is arbitrary or capricious or was
unlawful.
|
(b)
|
Composition
of the Committee.
The Committee shall consist of not
less than three directors. Those Directors shall be appointed
by the Board and shall serve as the Committee at the pleasure of the
Board. The function of the Committee specified in the Plan
shall be exercised by the entire Board if, and to the extent, that no
Committee exists that has the authority to so administer the
Plan.
|
(c)
|
Manner of
Exercise of Committee Authority.
The Committee shall
have the full power and authority to interpret and administer the Plan in
its sole discretion, including exercising all the powers and authorities
either specifically granted to it under the Plan or necessary or advisable
in the administration of the Plan. The Committee’s powers and authorities
include, without limitation, the following: (i) the sole ability to
determine eligibility criteria for Awards; (ii) to select the Eligible
Persons to whom Awards may from time to time be granted; (iii) to
determine the time or times at which Awards shall be granted; (iv) to
determine the number of shares of Stock to be covered by each Award; (v)
to determine and modify from time to time the specific terms and
conditions, including restrictions not inconsistent with the terms of the
Plan, of any Award, which terms and conditions may differ among individual
Awards and grantees, and to approve the form of written instruments
evidencing the Awards; (vi) to determine the vesting and exercisability of
any Award and to accelerate at any time the vesting or exercisability of
all or any portion of any Award; (vii) subject to the provisions of this
Plan, to extend at any time the period in which Stock Options may be
exercised; (viii) to determine the exercise or purchase price of such
shares of Stock; (ix) to determine if and when Awards are forfeited or
expire under their terms; (x) to interpret and construe the Plan
provisions; any amendments, and any rules and regulations relating to the
Plan; (xi) to make exceptions to any Plan provisions in good faith and for
the benefit of the Company; and (xii) to make all other determinations
deemed necessary or advisable for the administration of the
Plan.
|
(d)
|
Delegation
of Authority.
The Committee may delegate to one or more
of its members or to one or more agents such administrative duties as it
may deem advisable, and the Committee or any person to whom it has
delegated duties as aforesaid may employ one or more persons to render
advice with respect to any responsibility the Committee or such person may
have under the Plan; provided, that such delegation may not include the
selection or grant of Awards to Participants or Eligible Persons who are
executive officers of the Company or Section 16
Participants.
|
(e)
|
Committee
Vacancies
.
The Board
shall fill all vacancies in the Committee. The Board may from
time to time appoint additional members to the Committee and may at any
time remove one or more Committee members and substitute
others. One member of the Committee shall be selected by the
Board as chairman. The Committee shall hold its meetings at
such times and places as it shall deem advisable. All
determinations of the Committee shall be made by not less than a majority
of its members either present in-person or participating by a telephone
conference at a meeting or by written consent. The Committee
shall keep minutes of its meetings. The Committee may appoint a
secretary to keep such minutes and may make such rules and regulations for
the conduct of its business as it shall deem advisable, but in accordance
with the written charter prepared by the Board and which may be amended
from time to time by the Board. The secretary shall not need to
be a member of the Committee or a member of the
Board.
|
(f)
|
Limitation
of Liability.
The Committee and each member thereof, and
any person acting pursuant to authority delegated by the Committee, shall
be entitled, in good faith, to rely or act upon any report or other
information furnished by any executive officer, other officer or employee
of the Company, the Company’s independent auditors, consultants or any
other agents assisting in the administration of the
Plan. Members of the Committee, any person acting pursuant to
authority delegated by the Committee, and any officer or employee of the
Company acting at the direction or on behalf of the Committee or a delegee
shall not be personally liable for any action or determination taken or
made in good faith with respect to the Plan, and shall, to the extent
permitted by law, be fully indemnified and protected by the Company with
respect to any such action or
determination.
|
Section
4.
|
Stock Subject To
Plan
.
|
(a)
|
Overall
Number of Shares Available.
Subject to adjustment as
provided under Section 10(c), the total number of shares of Stock reserved
and available for delivery in connection with Awards under the Plan shall
be
750,000
shares. Any
shares of Stock issued under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares. The
authorized number of reserved and available shares may be increased from
time to time by approval of the Board and, if such approval is required,
by the stockholders of the Company.
|
(b)
|
Accounting
Procedures.
The Committee may adopt reasonable
accounting procedures to ensure an appropriate accounting of Stock subject
to the Plan, avoid double counting (as, for example, in the case of tandem
or substitute Awards) and make adjustments in accordance with this Section
4(b). Shares shall be counted against those reserved to the
extent such shares have been delivered and are no longer subject to a risk
of forfeiture. Accordingly, (i) to the extent that an Award
under the Plan is canceled, expired, forfeited, settled in cash, settled
by delivery of fewer shares than the number underlying the Award, or
otherwise terminated without delivery of Stock to the Participant, the
Stock retained by or returned to the Company will not be deemed to have
been delivered under the Plan; and (ii) Stock that is withheld from such
Award or separately surrendered by the Participant in payment of the
exercise price or taxes relating to such Award shall be deemed to
constitute Stock not delivered and will be available under the
Plan. The Committee may determine that Awards may be
outstanding that relate to more Stock than the aggregate shares of Stock
remaining available under the Plan so long as Awards will not in fact
result in delivery and vesting of shares of Stock in excess of the number
then available under the Plan. In addition, in the case of any
Award granted in assumption of or in substitution for an award of a
company or business acquired by the Company or with which the Company
combines, shares delivered or deliverable in connection with such assumed
or substitute Award shall not be counted against the number of shares of
Stock reserved under the Plan. The authorized number of reserved and
available shares may be increased from time to time by approval of the
Board and, if such approval is required, by the stockholders of the
Company.
|
(c)
|
Individual
Annual Award Limits.
No Participant may be granted
Options or other Awards under the Plan with respect to an aggregate of
more than 200,000 shares of Stock (subject to adjustment as otherwise may
be provided for throughout this Plan) during any calendar
year.
|
Section
5.
|
Eligibility
.
|
(a)
|
Eligibility.
Grants
of Awards may be made from time to time only to those Directors
designated by the Committee in its sole and exclusive discretion as
eligible to receive such Awards (“
Eligible
Persons
”). The Committee may grant more than one Award
to the same Eligible Person. Awards may be made to members of
the Committee and must be approved and granted by a majority of the
disinterested members of the Board.
|
(b)
|
Participation
. An
Eligible Person shall become a Participant in the Plan and shall perfect
his or her Award only after he or she has completed the applicable Award
Agreement in a manner that is satisfactory to the Committee and has
delivered said Award Agreement to the Committee. A Participant
shall continue his or her participation in the Plan, even if no longer an
Eligible Person, until any and all of his or her interests that are held
under the Plan expire or are paid.
|
Section
6.
|
Specific Terms of Awards
Granted Under the
Plan
.
|
(a)
|
General
Terms of All Awards.
All Awards granted under the Plan,
including Awards of any Stock Units, shall be evidenced by an Award
Agreement. Award Agreements may provide for grants of Awards on
the specific terms and conditions set forth in this Section
6. Alternatively, the Committee may impose on any individual
Award, as specified in the individual Award Agreement, such additional
terms and conditions, not inconsistent with the provisions of the Plan, or
applicable law, as the Committee shall determine, including terms
requiring forfeiture of Awards and terms permitting a Participant to make
elections relating to his or her Award. The Committee shall
retain full power and discretion with respect to any term or condition of
an Award that is not mandatory under the Plan and the terms of the Award
Agreement; provided, that the exercise of such discretion shall in no
event cause an Award to become subject to the terms and conditions of Code
Section 409A, unless otherwise agreed upon between the Company and the
Eligible Person. The Committee shall require the payment of
lawful consideration for an Award to the extent necessary to satisfy the
requirements of the Nevada Revised Statutes, and may otherwise require
payment of consideration for an Award except as limited by the Plan and as
otherwise required by applicable
law.
|
(b)
|
Option
Awards.
Options granted under the Plan shall be
evidenced by an agreement (“
Option
Agreement
”). Only Nonqualified Stock Options may be
awarded to Participants, which may be granted on the following terms and
conditions:
|
|
(i)
|
Time and Method of
Exercise
. The Committee shall determine the time or
times at which or the circumstances under which an Option may be exercised
in whole or in part, the methods by which such exercise price may be paid
or deemed to be paid and the form of such payment, including, without
limitation, cash, Stock (including by withholding Stock deliverable upon
exercise), other Awards, and the methods by or forms in which Stock will
be delivered or deemed to be delivered in satisfaction of
Options.
|
|
(ii)
|
Option
Term
. Each Option shall be exercisable for ten years
from the Date of Grant or such lesser period, as specified in the Option
Agreement.
|
|
(iii)
|
Exercise
Price
. The option price per share of Stock purchasable
under an Option shall be determined by the Committee, shall be set forth
on the applicable Option Agreement, and shall be not less than 100% of the
Fair Market Value of the Stock at the Date of Grant. Prior to
the Date of Grant, the Committee shall specify the method by and date on
which the Fair Market Value of the Option will be
determined.
|
|
(iv)
|
Non-Transferability of
Options
. No Option shall be transferable by any
Participant other than with prior approval by the
Committee. Any attempted transfer without Committee approval
shall be null and void. Unless Committee approval of the
transfer shall have been obtained, all Options shall be exercisable during
the Participant’s lifetime only by the Participant or the Participant’s
legal representative. Without limiting the generality of the
foregoing, the Committee may, in the manner established by the Committee,
provide for the irrevocable transfer, without payment of consideration, of
any Option by a Participant to a member of the Participant’s family or to
a family entity. In such case, the Option shall be exercisable
only by such transferee. For purposes of this
provision: (a) a Participant’s “family” shall include the
Participant’s child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including through adoptive relationships, and any person
sharing the Participant’s household (other than a tenant or employee); and
(b) a “family entity” shall include a trust in which the foregoing
persons have more than fifty percent of the beneficial interest, a
foundation in which the foregoing persons (or the Participant) control the
management of assets, and any other entity in which the foregoing persons
(or the Participant) own more than fifty percent of the voting
interests. Neither a transfer under a domestic relations order in
settlement of marital property rights nor a transfer to an entity in which
more than fifty percent of the voting interests are owned by family
members (or the Participant) in exchange for an interest in that entity
shall be considered to be a transfer for
consideration.
|
|
(v)
|
Forfeiture Of Unvested
Options Upon Termination of Service on the Board.
Except
as otherwise provided in Section 6(b)(vi), if a Participant ceases to be a
member of the Company’s Board of Directors for any reason other than
death, then all unvested Options shall be forfeited on the date
the Participant ceases to be a member of the Board. All vested Options may
thereafter be exercised by any transferee of the Participant, if
applicable, or by the legal representative of the estate or by the legatee
of the Participant under the will of the Participant for a period of one
year following the Participant’s
death.
|
|
(vi)
|
Termination of Service
by Reason of Death
. If the Participant ceases to be a
member of the Company’s Board of Directors by reason of death, any
unvested portion of the Option shall vest, and all Options shall become
exercisable in full from and after such death. All Options may
thereafter be exercised by any transferee of the Participant, if
applicable, or by the legal representative of the estate or by the legatee
of Participant under the will of the Participant for a period of one year
following the Participant’s death.
|
(c)
|
Restricted
Stock.
Restricted Stock granted under the Plan shall be
evidenced by an agreement (“
Restricted
Stock Agreement
”). The Committee is authorized to grant
Restricted Stock to Participants on the following terms and
conditions:
|
|
(i)
|
Grant and
Restrictions
. Restricted Stock shall be subject to such
restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions may
lapse separately or in combination at such times, under such
circumstances, in such installments or otherwise and under such other
circumstances as the Committee may determine at the Date of Grant, and
which shall be set forth in the applicable Restricted Stock Agreement, or
thereafter. Except to the extent restricted under the terms of
the Plan and any Restricted Stock Agreement, a Participant granted
Restricted Stock shall have all of the rights of a stockholder, including
the right to vote the Restricted Stock and the right to receive dividends
thereon; provided, however, that the Committee may require mandatory
reinvestment of dividends in additional Restricted Stock, may provide that
no dividends will be paid on Restricted Stock or retained by the
Participant, or may impose other restrictions on the rights attached to
Restricted Stock.
|
|
(ii)
|
Forfeiture
. Except
as otherwise determined by the Committee, upon termination of
directorship during the applicable restriction period,
Restricted Stock that is at that time subject to restrictions shall be
forfeited and reacquired by the Company; provided that the Committee may
provide, by rule or regulation or in any Restricted Stock Agreement, or
may determine in any individual case, that restrictions or forfeiture
conditions relating to Restricted Stock will lapse in whole or in part,
including in the event of a termination of directorship resulting from
specified causes.
|
|
(iii)
|
Certificates for
Stock
. Restricted Stock granted under the Plan shall be
evidenced in such manner as the Committee shall
determine. Certificates representing Restricted Stock shall be
registered in the name of the Participant and shall bear an appropriate
legend referring to the terms, conditions and restrictions applicable to
the Award of such Restricted Stock. The Company shall retain
physical possession of the stock certificates until the time that the
restrictions thereon have lapsed, and the Participant shall have delivered
a stock power to the Company, endorsed in blank, relating to the Stock
covered by such Restricted Stock. The distribution of Stock upon the lapse
of restrictions shall be made to the Participant on
or before the period ending on the later of : (i) the 15
th
day of the third month following the end of the Participant’s first
taxable year in which the right to payment is no longer subject to
restrictions; or (ii) the 15
th
day of the third month following the end of the Company’s first taxable
year in which the right to payment is no longer subject to
restrictions.
|
|
(iv)
|
Dividends and
Splits
. As a condition to the grant of an Award of
Restricted Stock, the Committee may require that any dividends paid on a
share of Restricted Stock shall be either (A) paid with respect to such
Restricted Stock at the dividend payment date in cash, in kind, or in a
number of shares of unrestricted Stock having a Fair Market Value equal to
the amount of such dividends, or (B) automatically reinvested in
additional Restricted Stock or held in kind, which shall be subject to the
same terms as applied to the original Restricted Stock to which it
relates. Unless otherwise determined by the Committee, Stock distributed
in connection with a Stock split or Stock dividend, and other property
distributed as a dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock with respect to
which such Stock or other property has been
distributed.
|
(d)
|
Stock
Units.
Stock Units granted under the Plan, whether or
not subject to restrictions, shall be evidenced by an agreement (“
Stock Unit
Agreement
”). The Committee is authorized to grant Stock
Units to Participants, subject to the following terms and
conditions:
|
|
(i)
|
Award and
Restrictions
. Issuance of Stock will occur upon
expiration of the holding period, if any, specified for the Stock Units by
the Committee. In addition, Stock Units shall be subject to
such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions may
lapse at the expiration of the holding period or at earlier specified
times, separately or in combination, in installments or otherwise, and
under such other circumstances as the Committee may determine at the Date
of Grant or thereafter. Stock Units may be settled by delivery
of Stock, other Awards, or a combination thereof, as determined by the
Committee at the Date of Grant or
thereafter.
|
|
(ii)
|
Forfeiture
. Except
as otherwise determined by the Committee, upon a Participant’s termination
of directorship during the applicable deferral period or portion thereof
to which forfeiture conditions apply (as provided in the Award document
evidencing the Stock Units), all Stock Units that are at that time subject
to such forfeiture conditions shall be forfeited; provided that the
Committee may provide, by rule or regulation or in any Award document, or
may determine in any individual case, that restrictions or forfeiture
conditions relating to Stock Units will lapse in whole or in part,
including in the event of a termination of directorship resulting from
specified causes. Stock Units subject to a risk of forfeiture shall be
designated as “Restricted Stock Units” unless otherwise determined by the
Committee.
|
|
(iii)
|
Dividend
Equivalents
. Unless otherwise determined by the
Committee, Dividend Equivalents on the specified number of shares of Stock
underlying Stock Units shall be either (A) paid with respect to such Stock
Units at the dividend payment date in cash or in shares of unrestricted
Stock having a Fair Market Value equal to the amount of such dividends, or
(B) automatically reinvested in additional Stock Units, other Awards or
other investment vehicles having a Fair Market Value equal to the amount
of such dividends, as the Committee shall determine; provided, however,
that the Committee may provide that no Dividend Equivalents will be paid
on a given Award of Stock Units.
|
(e)
|
Other
Stock-Based Awards.
The Committee is authorized, subject
to limitations under applicable law, to grant to Participants such other
Awards that may be denominated or payable in, valued in whole or in part
by reference to, or otherwise based on, or related to, Stock or factors
that may influence the value of Stock, including, without limitation,
convertible or exchangeable debt securities, other rights convertible or
exchangeable into Stock, purchase rights for Stock, Awards with value and
payment contingent upon performance of the Company or business units
thereof or any other factors designated by the Committee, and Awards
valued by reference to the book value of Stock or the value of securities
of or the performance of specified subsidiaries or affiliates or other
business units. The Committee shall determine the terms and
conditions of such Awards. Stock delivered pursuant to an Award in the
nature of a purchase right granted under this Section shall be purchased
for such consideration, paid for at such times, by such methods, and in
such forms, including, without limitation, cash, Stock, other Awards, or
other property, as the Committee shall determine. Cash awards, as an
element of or supplement to any other Award under the Plan, may also be
granted pursuant to this Section.
|
Section
7.
|
Additional Provisions
Applicable to Awards
.
|
(a)
|
Stand-Alone,
Additional, Tandem, and Substitute Awards.
Awards
granted under the Plan may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in substitution or
exchange for, any other Award or any award granted under another plan of
the Company or any other right of a Participant to receive payment from
the Company. Awards granted in addition to or in tandem with
other Awards may be granted either as of the same time as or a different
time from the grant of such other Awards. Subject to the Plan’s terms, the
Committee may determine that, in granting a new Award, the in-the-money
value or fair value of any surrendered Award or award or the value of any
other right to payment surrendered by the Participant may be applied to
the purchase of any other Award; provided, that such surrender does not
result in a “modification,” “extension,” “substitution” or “assumption” of
a Stock right, as determined under Treasury Regulation Section
1.409A-1(b)(5)(v) that would cause such Stock rights to be considered the
grant of a new Stock right which is subject to the terms and conditions of
Code Section 409A. Any transaction otherwise authorized under
this Section 7(a) remains subject to all applicable restrictions under the
Plan and may not result in an Award that is subject to the terms and
conditions of Code Section 409A by virtue of such transaction; in such
event, any transaction that would otherwise be permissible under this
Section 7(a) shall be prohibited unless the Participant and the Company
mutually agree in writing to cause an Award to become subject to the terms
and conditions of Code Section 409A under this Section
7(a).
|
(b)
|
Form and
Timing of Payment Under Awards; Deferrals.
Subject to
the terms of the Plan and any applicable Award Agreement, payments to be
made by the Company upon the exercise of an Option or other Award or
settlement of an Award may be made in such forms as the Committee shall
determine, including, without limitation, cash, Stock, other Awards or
other property, and may be made in a single payment or transfer, or in
installments.
|
(c)
|
Certain
Limitations on Awards to Ensure Compliance with Code Section
409A
. Other provisions of the Plan notwithstanding, the
Award Agreement evidencing any “
409A
Award
” (which for this purpose means only such an Award held by a
Participant which is subject to the terms and conditions of Code Section
409A), shall incorporate the terms and conditions necessary to avoid the
consequences specified in Code Section 409A(a)(1). Any terms or conditions
inconsistent with the requirements of Code Section 409A and its
implementing regulations shall be automatically modified and limited (even
retroactively) to the extent necessary to conform said Award with Code
Section 409A. Notwithstanding anything to the contrary herein,
the Company shall not be liable for any unintended adverse tax
consequences which may be imposed on the Participant due to receipt,
exercise or settlement of any Stock Option or other Award granted
hereunder, including the taxes and penalties of Code Section
409A.
|
Section
8.
|
Corporate
Transactions
.
|
(a)
|
Corporate
Transaction in which Awards are not Assumed.
Upon the
occurrence of a Corporate Transaction in which outstanding Options,
Restricted Stock Awards, Stock Units, and Other Stock-Based Awards are not
being assumed or continued:
|
|
(i)
|
All
outstanding shares of Restricted Stock shall be deemed to have vested, and
all Stock Units shall be deemed to have vested and the shares of Stock
subject thereto shall be delivered, immediately prior to the occurrence of
such Corporate Transaction, and
|
(ii)
|
Either
of the following two actions shall be
taken:
|
|
(A)
|
fifteen
days prior to the scheduled consummation of a Corporate Transaction, all
Options outstanding hereunder shall become immediately exercisable and
shall remain exercisable for a period of fifteen days,
or
|
|
(B)
|
the
Committee may elect, in its sole discretion, to cancel any outstanding
Awards of Options, Restricted Stock, and/or Stock Units and pay or
deliver, or cause to be paid or delivered, to the holder thereof an amount
in cash or securities having a value (as determined by the Committee
acting in good faith), in the case of Restricted Stock or Stock Units,
equal to the formula or fixed price per share paid to holders of shares of
Stock and, in the case of Options, equal to the product of the number of
shares of Stock subject to the Option (the “Award Shares”) multiplied by
the amount, if any, by which (I) the formula or fixed price per share
paid to holders of shares of Stock pursuant to such transaction exceeds
(II) the Option Price Exercise Price applicable to such Award
Shares.
|
(iii)
|
With
respect to the Company’s establishment of an exercise window, (i) any
exercise of an Option during such fifteen-day period shall be conditioned
upon the consummation of the event and shall be effective only immediately
before the consummation of the event, and (ii) upon consummation of
any Corporate Transaction, the Plan and all outstanding but unexercised
Options shall terminate. The Committee shall send notice of an event that
will result in such a termination to all individuals who hold Options not
later than the time at which the Company gives notice thereof to its
stockholders.
|
(b)
|
Corporate
Transaction in which Awards are Assumed.
The Plan,
Options, Restricted Stock Awards, Stock Units, and Other Stock-Based
Awards theretofore granted shall continue in the manner and under the
terms so provided in the event of any Corporate Transaction to the extent
that provision is made in writing in connection with such Corporate
Transaction for the assumption or continuation of the Options, Restricted
Stock Awards, Stock Units, and Other Stock-Based Awards theretofore
granted, or for the substitution for such Options, Restricted Stock
Awards, Stock Units, and Other Stock-Based Awards for new common stock
options and new common stock units and restricted stock relating to the
stock of a successor entity, or a parent or subsidiary thereof, with
appropriate adjustments as to the number of shares (disregarding any
consideration that is not common stock) and option exercise prices in
accordance with the provisions of Sections 5(b) and
10(c).
|
Section
9.
|
Additional
Award Forfeiture Provisions.
|
Section
10.
|
General
Provisions
.
|
(a)
|
Compliance
with Legal and Other
Requirements
.
|
(i)
|
The
Company may, to the extent deemed necessary or advisable by the Committee,
postpone the issuance or delivery of Stock or payment of other benefits
under any Award until completion of such registration or qualification of
such Stock or other required action under any federal or state law, rule
or regulation, listing or other required action with respect to any stock
exchange or automated quotation system upon which the Stock or other
securities of the Company are listed or quoted, or compliance with any
other obligation of the Company, as the Committee may consider
appropriate, and may require any Participant to make such representations,
furnish such information and comply with or be subject to such other
conditions as it may consider appropriate in connection with the issuance
or delivery of Stock or payment of other benefits in compliance with
applicable laws, rules, and regulations, listing requirements, or other
obligations. The foregoing notwithstanding, in connection with
the occurrence of a Corporate Transaction, the Company shall take or cause
to be taken no action, and shall undertake or permit to arise no legal or
contractual obligation, that results or would result in any postponement
of the issuance or delivery of Stock or payment of benefits under any
Award or the imposition of any other conditions on such issuance, delivery
or payment, to the extent that such postponement or other condition would
represent a greater burden on a Participant than existed on the 90th day
preceding the Corporate
Transaction.
|
(ii)
|
If
the Participant is subject to the reporting requirements of Section 16(a)
of the Securities Exchange Act of 1934, as amended, the grant of this
Option shall not be effective until such person complies with the
reporting requirement of Section
16(a).
|
(b)
|
Limits on
Transferability;
Beneficiaries
.
|
(i)
|
Awards
granted under the Plan shall not be transferable except as permitted by
the Company. Options may be exercised as provided for under
Section 6(b). All other Awards may be transferable by will and
the laws of descent and distribution, but only if specifically provided
for in the Award Agreement. Any attempted sale, pledge,
assignment, hypothecation or other transfer of an Award contrary to the
provisions hereof and, the levy of any execution, attachment or similar
process upon an Award shall be null and void and without force or effect
and shall result in automatic termination of the
Award.
|
(ii)
|
(A)
As a condition to the transfer of any shares of Stock issued upon exercise
of an Award granted under this Plan, the Company may require an opinion of
counsel, satisfactory to the Company, to the effect that such transfer
will not be in violation of the Securities Act of 1933 or any other
applicable securities laws or that such transfer has been registered under
federal and all applicable state securities laws; (B) further, the Company
shall be authorized to refrain from delivering or transferring shares of
Stock issued under this Plan until the Board determines that such delivery
or transfer will not violate applicable securities laws and the
Participant has tendered to the Company any federal, state or local tax
owed by the Participant as a result of exercising the Award, or disposing
of any Stock, when the Company has a legal liability to satisfy such tax;
(C) the Company shall not be liable for damages due to delay in the
delivery or issuance of any stock certificate for any reason whatsoever,
including, but not limited to, a delay caused by listing requirements of
any securities exchange or any registration requirements under the
Securities Act of 1933, the Securities Exchange Act of 1934, or under any
other state or federal law, rule or regulations; (D) the Company is under
no obligation to take any action or incur any expense in order to register
or qualify the delivery or transfer of shares of Stock under applicable
securities laws or to perfect any exemption from such registration or
qualification; and (E) furthermore, the Company will have no liability to
any Participant for refusing to deliver or transfer shares of Stock if
such refusal is based upon the foregoing provisions of this
Section.
|
(c)
|
Effect of
Certain Changes.
In the event of any merger,
reorganization, consolidation, recapitalization, share dividend, share
split, combination of shares or other change in corporate structure of the
Company affecting the Stock, the Committee shall make appropriate or
proportionate substitution or adjustment in: (i) the aggregate number of
Stock reserved for issuance under the Plan, (ii) the number and kind of
shares of Stock or other securities subject to any then outstanding Awards
issued under the Plan; (iii) the price of the shares of Stock
subject to outstanding Stock Options granted under the Plan, without
changing the aggregate exercise price (i.e., the exercise price multiplied
by the number of Stock Options) as to which such Stock Options remain
exercisable; and (iv) the repurchase price per share subject to each
outstanding Restricted Stock Award and any other outstanding
Awards granted under the Plan. Notwithstanding the foregoing,
any substitution or adjustment by the Committee shall comply with Treasury
Regulations Section 1.409A-1(b)(5)(v)(D) which will be deemed to be
satisfied if the ratio of the exercise price to the Fair Market Value of
the shares subject to the Awards immediately after the substitution or
adjustment is not greater than the ratio of the exercise price to the Fair
Market Value of the shares subject to the Stock right immediately before
the substitution or adjustment. The Committee’s substitution or adjustment
shall be final, binding and conclusive. No fractional shares of Stock
shall be issued under the Plan as a result of any such substitution or
adjustment; but the Committee may, in its sole discretion, authorize a
cash payment to be made to the Participant in lieu of fractional
shares.
|
(d)
|
Tax
Provisions
.
|
(i)
|
Withholding
. The
Committee shall so require, as a condition of exercise, each Participant
to agree that: (A) no later than the date of exercise of any
Option granted hereunder, the optionee will pay to the Company or make
arrangements satisfactory to the Committee regarding payment of any
federal, state or local taxes of any kind required by law to be withheld
upon the exercise of such Option; and (B) the Company shall, to the extent
permitted or required by law, have the right to deduct federal, state and
local taxes of any kind required by law to be withheld upon the exercise
of such Option from any payment of any kind otherwise due to the
Participant. For withholding tax purposes, the shares of Stock
shall be valued on the date the withholding obligations are
incurred. The Company shall not be obligated to advise any
optionee of the existence of any such tax or the amount that the Company
will be so required to
withhold.
|
(ii)
|
Required Consent to
and Notification of Code Section 83(b) Election
. No
election under Code Section 83(b) or under a similar provision of the laws
of a jurisdiction outside the United States may be made unless expressly
permitted by the terms of the Award Agreement or by action of the
Committee in writing prior to the making of such election. In
any case in which a Participant is permitted to make such an election in
connection with an Award, the Participant shall notify the Company of such
election within ten days of filing notice of the election with the
Internal Revenue Service or other governmental authority, in addition to
any filing and notification required pursuant to regulations issued under
Code Section 83(b) or other applicable
provision.
|
(e)
|
Changes to
the Plan.
The Board at any time and from time to time
may suspend, terminate, modify or amend the Plan; provided, however, that
the Company shall submit for the approval of a majority of the
stockholders of the Company presented or represented and entitled to vote
at a duly constituted and held meeting of the stockholders, any amendment
that would: (i) materially increase the benefits accruing to
Participants under the Plan, (ii) increase the number of shares of Stock
as to which Awards may be granted under the Plan, (iii) extend the term of
the Plan, (iv) materially modify the requirements as to
eligibility for participation in the Plan, (v) expand the types of Awards
provided under the Plan, or (vi) be otherwise required by applicable laws,
regulations or rules. Any such increase or modification that may result
from adjustments authorized by Section 10(c) hereof shall not require such
approval. In addition, no such amendment or alteration shall be
made which would impair the rights of any Participant, without such
Participant’s written consent, under any Award theretofore granted,
provided that no such consent shall be required with respect to any
amendment or alteration either (i) is required or advisable in order for
the Company, the Plan or the Award to satisfy or conform to any law or
regulation or to meet the requirements of any accounting standard, or (ii)
is not reasonably likely to significantly diminish the benefits provided
under such Award, or that any such diminishment is adequately
compensated.
|
(f)
|
Unfunded
Status of Awards, Creation of Rabbi Trusts.
The Plan is
intended to constitute an “unfunded” plan for equity incentive
compensation. With respect to any payments not yet made to a Participant
or obligations to deliver Stock pursuant to an Award, nothing contained in
the Plan or any Award shall give any such Participant any rights that are
greater than those of a general creditor of the Company; provided that the
Committee may authorize the creation of rabbi trusts and deposit therein
cash, Stock, other Awards or other property, or make other arrangements to
meet the Company’s obligations under the Plan. Such trusts or other
arrangements shall be consistent with the “unfunded” status of the Plan
unless the Committee otherwise
determines.
|
(g)
|
Nonexclusivity
of the
Plan.
Neither
the adoption of the Plan by the Board nor its submission to the
stockholders of the Company for approval shall be construed as creating
any limitations on the power of the Board or a committee thereof to adopt
such other incentive or compensation arrangements, apart from the Plan, as
it may deem desirable, including incentive or compensation arrangements
and awards to which Code Section 409A does apply, and such other
arrangements may be either applicable generally or only in specific
cases.
|
(h)
|
Payments in
the Event of Forfeitures; Fractional Shares.
Unless
otherwise determined by the Committee, in the event of a forfeiture of an
Award with respect to which a Participant paid cash consideration, the
Participant shall be repaid the amount of such cash consideration. No
fractional shares of Stock shall be issued or delivered pursuant to the
Plan or any Award. The Committee shall determine whether cash,
other Awards or other property shall be issued or paid in lieu of such
fractional shares or whether such fractional shares or any rights thereto
shall be forfeited or otherwise
eliminated.
|
(i)
|
Governing
Law.
The validity, construction, and effect of the Plan,
any rules and regulations relating to the Plan and any Award Agreement
shall be determined in accordance with the laws of the State
of Nevada, without giving effect to principles of conflicts of
laws, and applicable provisions of federal
law.
|
(j)
|
Limitation
on Rights Conferred Under
The
Plan.
Neither the Plan nor any action taken hereunder
shall be construed as (i) giving any Director or Participant
the right to continue as a Director or Participant or in
service of the Company as a member of the Board, (ii) interfering in any
way with the right of the Company to terminate any Director’s
or Participant’s service on the Company’s Board at any time (subject to
the terms and provisions of any separate written agreements), (iii) giving
a Director or Participant any claim to be granted any Award under the Plan
or to be treated uniformly with other Participants and Directors, or (iv)
conferring on a Participant any of the rights of a stockholder of the
Company unless and until the Participant is duly issued or transferred
shares of Stock in accordance with the terms of an
Award.
|
(k)
|
Termination
of Right of Action.
Every right of action arising out of
or in connection with the Plan by or on behalf of the Company or by any
stockholder of the Company against any past, present or future member of
the Board, or against any employer, or by an employee (past, present or
future) against the Company will, irrespective of the place where an
action may be brought and irrespective of the place of residence of any
such stockholder, director or employee, cease and be barred as of the
expiration of three years from the date of the act or omission in respect
of which such right of action is alleged to have
risen.
|
(l)
|
Assumption
.
The terms
and conditions of any outstanding Awards granted pursuant to this Plan
shall be assumed by, be binding upon and inure to the benefit of any
successor company to the Company and shall continue to be governed by, to
the extent applicable, the terms and conditions of this
Plan. Such successor Company shall not be otherwise obligated
to assume this Plan.
|
(m)
|
Severability;
Entire Agreement.
If any of the provisions of this Plan
or any Award Agreement is finally held to be invalid, illegal or
unenforceable (whether in whole or in part), such provision shall be
deemed modified to the extent, but only to the extent, of such invalidity,
illegality or unenforceability, and the remaining provisions shall not be
affected thereby; provided, that, if any of such provisions is finally
held to be invalid, illegal, or unenforceable because it exceeds the
maximum scope determined to be acceptable to permit such provision to be
enforceable, such provision shall be deemed to be modified to the minimum
extent necessary to modify such scope in order to make such provision
enforceable hereunder. The Plan and any Award Agreements
contain the entire agreement of the parties with respect to the subject
matter thereof and supersede all prior agreements, promises, covenants,
arrangements, communications, representations and warranties between them,
whether written or oral with respect to the subject matter
thereof. No rule of strict construction shall be applied
against the Company, the Committee, or any other person in the
interpretation of any terms of the Plan, Award, or Award Agreement or
other document relating thereto.
|
(n)
|
Plan
Effective Date.
The Plan shall be effective
______________, ___, 2009 (the “Effective Date”), subject to its approval
by the stockholders of the Company by the affirmative votes of the holders
of a majority of the voting securities of the Company present, or
represented, and entitled to vote on the subject matter at a duly held
meeting of stockholders; provided, that the total vote cast on the
proposal represents over fifty percent (50%) in interest of all securities
entitled to vote on the proposal.
|
(o)
|
Adoption.
|
SEARCHLIGHT
MINERALS CORP.
|
|||
By
|
|
(1)
|
(INSTRUCTIONS:
To withhold authority to vote for any individual nominee, strike a line
through the nominee's name listed below)
|
o
FOR
all Class III Director nominees listed herein (except as marked
up to the contrary below).
|
o
WITHHOLD AUTHORITY
to vote for all nominees listed
below.
|
||||||
01
- Robert D. McDougal
|
02
- Martin B. Oring
|
||||||||
(2)
|
(INSTRUCTIONS:
To withhold authority to vote for any individual nominee, strike a line
through the nominee's name listed below)
|
o
FOR
all Class II Director nominees listed herein (except as marked
up to the contrary below).
|
o
WITHHOLD AUTHORITY
to vote for all nominees listed
below.
|
||||||
03
- Harry B. Crockett
|
04
- Carl S. Ager
|
||||||||
(3)
|
To
consider and vote upon an amendment and restatement of our articles of
incorporation to authorize a class of up to 40,000,000 shares of preferred
stock.
|
||||||||
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
|||||||
(4)
|
To
consider and vote upon an amendment and restatement of our articles of
incorporation to limit liability of directors and officers and permit
indemnification of directors, officers and certain other
persons.
|
||||||||
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
|||||||
(5)
|
To
adopt our 2009 Stock Incentive Award Plan and to reserve up to 3,250,000
shares of common stock for issuance under the 2009 Stock Incentive Award
Plan.
|
||||||||
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
|||||||
(6)
|
To
adopt our 2009 Equity Incentive Plan for Directors and to reserve up to
750,000 shares of common stock for issuance under the 2009 Equity
Incentive Plan for Directors.
|
||||||||
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
|||||||
(7)
|
To
ratify the appointment of Brown Armstrong Paulden McCown Starbuck
Thornburgh & Keeter Accountancy
Corporation
as our
independent
registered public accounting firm for the year ending December 31,
2009.
|
||||||||
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
|
PLEASE
MARK, SIGN, DATE AND RETURN THIS PROXY PROMPTLY USING THE ENCLOSED,
PRE-PAID ENVELOPE.
|
|
Please
date and execute this Proxy exactly as your name appears
hereon. When shares are held by joint tenants, both should
sign. When signing as attorney, executor, administrator,
trustee or guardian, please give full title as such. If a
corporation, please sign in full corporate name by the president or other
authorized officer. If a partnership, please sign in
partnership name by authorized person.
|
||
Dated:
|
,
2009
|
|
Signature
|
|
Signature,
if held jointly
|
1 Year Searchlight Minerals (PK) Chart |
1 Month Searchlight Minerals (PK) Chart |
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