Exhibit 99.1
IRVINE SENSORS CORPORATION
AMENDED AND RESTATED
2006 OMNIBUS INCENTIVE PLAN
(AMENDED AND RESTATED AS OF MARCH 31, 2009)
Table of Contents
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Purpose
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A-1
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Definitions
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A-1
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Administration
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A-3
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Power and Authority of the
Committee
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A-3
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Power and Authority of the
Board
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A-4
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Shares Available for
Awards
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A-4
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Shares Available
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A-4
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Accounting for Awards
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A-4
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Adjustments
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A-4
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Section 162(m) Award
Limitations Under the Plan
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A-4
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Eligibility
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A-5
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Awards
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A-5
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Options
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A-5
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Stock Appreciation Rights
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A-6
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Restricted Stock and Restricted
Stock Units
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A-6
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Performance Awards
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A-7
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Dividend Equivalents
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A-7
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Other Stock Grants
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A-7
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Other Stock-Based Awards
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A-7
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General
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A-7
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Amendment and Termination;
Adjustments
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A-9
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Amendments to the Plan
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A-9
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Amendments to Awards
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A-9
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Correction of Defects, Omissions and
Inconsistencies
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A-9
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Income Tax
Withholding
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A-9
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General Provisions
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A-10
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No
Rights to Awards
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A-10
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Award Agreements
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A-10
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Plan Provisions Control
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A-10
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No
Rights of Stockholders
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A-10
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No
Limit on Other Compensation Arrangements
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A-10
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No
Right to Employment
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A-10
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Governing Law
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A-10
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Severability
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A-11
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No
Trust or Fund Created
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A-11
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Other Benefits
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A-11
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No
Fractional Shares
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A-11
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Headings
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A-11
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Section 16 Compliance;
Section 162(m) Administration
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A-11
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Conditions Precedent to Issuance of
Shares
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A-11
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Effective Date of the
Plan
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A-11
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Term of the Plan
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A-11
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i
IRVINE SENSORS CORPORATION
AMENDED AND RESTATED
2006 OMNIBUS INCENTIVE PLAN
(AMENDED AND RESTATED AS OF MARCH 31, 2009)
Section
1.
Purpose
The purpose of the Plan
is to promote the interests of the Company and its stockholders by
aiding the Company in attracting and retaining employees, officers,
consultants, advisors and directors capable of assuring the future
success of the Company, to offer such persons incentives to
continue in the Company’s employ or service and to afford
such persons an opportunity to acquire a proprietary interest, or
otherwise increase their proprietary interest, in the
Company.
Section
2.
Definitions
As used in the Plan, the
following terms shall have the meanings set forth below:
(a)
“Affiliate” shall mean (i) any entity that,
directly or indirectly through one or more intermediaries, is
controlled by the Company and (ii) any entity in which the
Company has a significant equity interest, in each case as
determined by the Committee.
(b)
“Award” shall mean any Option, Stock
Appreciation Right, Restricted Stock, Restricted Stock Unit,
Performance Award, Dividend Equivalent, Other Stock Grant or Other
Stock-Based Award granted under the Plan.
(c)
“Award Agreement” shall mean any written
agreement, contract or other instrument or document evidencing an
Award granted under the Plan. Each Award Agreement shall be subject
to the applicable terms and conditions of the Plan and any other
terms and conditions (not inconsistent with the Plan) determined by
the Committee.
(d)
“Board” shall mean the Board of Directors of the
Company.
(e)
“Code” shall mean the Internal Revenue Code of
1986, as amended from time to time, and any regulations promulgated
thereunder.
(f)
“Committee” shall mean one or more committees of
Directors designated by the Board to administer the Plan, of which
the Company’s compensation committee shall initially be the
primary committee. The primary Committee shall be comprised of at
least two Directors but not less than such number of Directors as
shall be required to permit Awards granted under the Plan to
qualify under Rule 16b-3 and Section 162(m) of the Code,
and each member of the primary Committee shall be a
“Non-Employee Director” and an “Outside
Director .” Any secondary Committee shall be comprised of
at least two Directors.
(g)
“Company” shall mean Irvine Sensors Corporation,
a Delaware corporation, and any successor corporation.
(h)
“Director” shall mean a member of the Board,
including any Non-Employee Director.
(i)
“Dividend Equivalent” shall mean any right
granted under Section 6(e) of the Plan.
(j)
“Eligible Person” shall mean any employee,
officer, consultant, advisor or director providing services to the
Company or any Affiliate who the Committee determines to be an
Eligible Person. An Eligible Person must be a natural
person.
(k)
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended.
(l) “Fair
Market Value” shall mean, with respect to any property
(including, without limitation, any Shares or other securities),
the fair market value of such property determined by such methods
or procedures as shall be established from time to time by the
Committee. Notwithstanding the foregoing, and unless otherwise
determined by the Committee, the Fair Market Value of a Share as of
a given date shall be, if the Shares are then listed on the Nasdaq
Capital Market, the last closing sales price of one Share as
reported on the Nasdaq Capital
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Market on such date or, if the
Nasdaq Capital Market is not open for trading on such date, on the
most recent preceding date when it is open for trading.
(m)
“Incentive Stock Option” shall mean an option
granted under Section 6(a) of the Plan that is intended to
qualify as an “incentive stock option” in accordance
with the terms of Section 422 of the Code or any successor
provision.
(n)
“Misconduct” shall mean (i) the commission
of any act of fraud, embezzlement or dishonesty by Participant,
(ii) any unauthorized use or disclosure by such person of
confidential information or trade secrets of the Company (or of any
Affiliate), or (iii) any other intentional misconduct by such
person adversely affecting the business or affairs of the Company
(or any Affiliate) in a material manner. However, if the term or
concept has been defined in an employment agreement between the
Company and Participant, then Misconduct shall have the definition
set forth in such employment agreement. The foregoing definition
shall not in any way preclude or restrict the right of the Company
(or any Affiliate) to discharge or dismiss any Participant or other
person in the Service of the Company (or any Affiliate) for any
other acts or omissions but such other acts or omissions shall not
be deemed, for purposes of the Plan, to constitute grounds for
termination for Misconduct.
(o)
“Non-Employee Director” shall mean any Director
who is not also an employee of the Company or an Affiliate within
the meaning of Rule 16b-3 (which term “Non-Employee
Director” is defined in this paragraph for purposes of the
definition of “Committee” only and is not intended to
define such term as used elsewhere in the Plan).
(p)
“Non-Qualified Stock Option” shall mean an
option granted under Section 6(a) of the Plan that is not an
Incentive Stock Option.
(q)
“Option” shall mean an Incentive Stock Option or
a Non-Qualified Stock Option.
(r)
“Other Stock Grant” shall mean any right granted
under Section 6(f) of the Plan.
(s)
“Other Stock-Based Award” shall mean any right
granted under Section 6(g) of the Plan.
(t)
“Outside Director” shall mean any Director who
is an “outside director” within the meaning of
Section 162(m) of the Code.
(u)
“Participant” shall mean an Eligible Person
designated to be granted an Award under the Plan.
(v)
“Performance Award” shall mean any right granted
under Section 6(d) of the Plan.
(w)
“Performance Goal” shall mean one or more of the
following performance goals, either individually, alternatively or
in any combination, applied on a corporate, subsidiary or business
unit basis: revenue, cash flow, gross profit, earnings before
interest and taxes, earnings before interest, taxes, depreciation
and amortization and net earnings, earnings per share, margins
(including one or more of gross, operating and net income margins),
returns (including one or more of return on assets, equity,
investment, capital and revenue and total stockholder return),
stock price, economic value added, working capital, market share,
cost reductions, workforce satisfaction and diversity goals,
employee retention, customer satisfaction, completion of key
projects and strategic plan development and implementation. Such
goals may reflect absolute entity or business unit performance or a
relative comparison to the performance of a peer group of entities
or other external measure of the selected performance criteria.
Pursuant to rules and conditions adopted by the Committee on or
before the 90th day of the applicable performance period for
which Performance Goals are established, the Committee may
appropriately adjust any evaluation of performance under such goals
to exclude the effect of certain events, including any of the
following events: asset write-downs; litigation or claim judgments
or settlements; changes in tax law, accounting principles or other
such laws or provisions affecting reported results; severance,
contract termination and other costs related to exiting certain
business activities; and gains or losses from the disposition of
businesses or assets or from the early extinguishment of
debt.
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(x)
“Permanent Disability” shall mean the inability
of Participant to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or has lasted or can be
expected to last for a continuous period of twelve months or
more.
(y)
“Person” shall mean any individual or entity,
including a corporation, partnership, limited liability company,
association, joint venture or trust.
(z)
“Plan” shall mean the Irvine Sensors Corporation
2006 Omnibus Incentive Plan, as amended from time to time, the
provisions of which are set forth herein.
(aa)
“Qualified Performance Based Award” shall have
the meaning set forth in Section 6(d) of the Plan.
(bb)
“Restricted Stock” shall mean any Share granted
under Section 6(c) of the Plan.
(cc)
“Restricted Stock Unit” shall mean any unit
granted under Section 6(c) of the Plan evidencing the right to
receive a Share (or evidencing the right to receive a cash payment
equal to the Fair Market Value of a Share if explicitly so provided
in the Award Agreement) at some future date.
(dd)
“Rule 16b-3” shall mean Rule 16b-3
promulgated by the Securities and Exchange Commission under the
Exchange Act, or any successor rule or regulation.
(ee)
“Section 162(m)” shall mean
Section 162(m) of the Code and the applicable Treasury
Regulations promulgated thereunder.
(ff)
“Securities Act” shall mean the Securities Act
of 1933, as amended.
(gg)
“Service” shall mean the performance of services
for the Company (or any Affiliate) by a person in the capacity of
an employee, a member of the board of directors or a consultant,
except to the extent otherwise specifically provided in the Award
Agreement.
(hh)
“Share” or “Shares” shall
mean a share or shares of common stock, $0.01 par value per
share, of the Company or such other securities or property as may
become subject to Awards pursuant to an adjustment made under
Section 4(c) of the Plan.
(ii)
“Stock Appreciation Right” shall mean any right
granted under Section 6(b) of the Plan.
Section
3.
Administration
(a) Power
and Authority of the Committee . The Plan shall
be administered by the Board and the primary Committee. The Board
may designate a secondary Committee to have concurrent authority to
administer the Plan, provided that the secondary Committee shall
not have any authority (i) with regard to grants of Options to
be made to officers or directors of the Company or any Affiliate
who are subject to Section 16 of the Exchange Act,
(ii) in such a manner as would cause the Plan not to comply
with the requirements of Section 162(m) of the Code or
(iii) in such a manner as would contravene Section 157 of
the Delaware General Corporation Law. Any Awards made to members of
the Committee, however, should be authorized by a disinterested
majority of the Board. Subject to the express provisions of the
Plan and to applicable law, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine
the type or types of Awards to be granted to each Participant under
the Plan; (iii) determine the number of Shares to be covered
by (or the method by which payments or other rights are to be
determined in connection with) each Award; (iv) determine the
terms and conditions of any Award or Award Agreement;
(v) amend the terms and conditions of any Award or Award
Agreement and accelerate the exercisability of any Option or waive
any restrictions relating to any Award; (vi) determine
whether, to what extent and under what circumstances Awards may be
exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited or suspended; (vii) interpret
and administer the Plan and any instrument or agreement, including
an Award Agreement, relating to the Plan; (viii) establish,
amend, suspend or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration
of the Plan; and (ix) make any other determination and take
any other action that the Committee deems necessary or desirable
for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the
Plan or any Award or Award Agreement shall be within the sole
discretion of
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the Committee, may be made at any
time and shall be final, conclusive and binding upon any Eligible
Person and any holder or beneficiary of any Award.
(b) Power
and Authority of the Board . Notwithstanding
anything to the contrary contained herein, the Board may, at any
time and from time to time, without any further action of the
Committee, exercise the powers and duties of the Committee under
the Plan.
Section
4. Shares
Available for Awards
(a) Shares
Available . Subject to adjustment as provided
in Section 4(c) of the Plan, the aggregate number of Shares
that may be issued under the Plan shall be 990,000, plus an
automatic annual increase on the first day of each of the
Company’s fiscal years beginning on September 28, 2009
equal to the lesser of (i) 1,250,000 Shares or
(ii) a number of Shares equal to five percent (5%) of the
number of Shares outstanding on the last day of the preceding
fiscal year. Shares to be issued under the Plan may be either
authorized but unissued Shares or Shares re-acquired and held in
treasury. Any Shares that are used by a Participant as full or
partial payment to the Company of the purchase price relating to an
Award, or in connection with the satisfaction of tax obligations
relating to an Award, shall again be available for granting Awards
(other than Incentive Stock Options) under the Plan. In addition,
if any Shares covered by an Award or to which an Award relates are
not purchased or are forfeited, or if an Award otherwise terminates
without delivery of any Shares, then the number of Shares counted
against the aggregate number of Shares available under the Plan
with respect to such Award, to the extent of any such forfeiture or
termination, shall again be available for granting Awards under the
Plan. Notwithstanding the foregoing, (i) the number of Shares
available for granting Incentive Stock Options under the Plan shall
not exceed 990,000, plus the automatic annual increase described
above, subject to adjustment as provided in Section 4(c) of
the Plan and subject to the provisions of Section 422 or 424
of the Code or any successor provision and (ii) the number of
Shares available for granting Restricted Stock and Restricted Stock
Units shall not exceed 990,000, plus the automatic annual increase
described above, subject to adjustment as provided in
Section 4(c) of the Plan.
(b)
Accounting for Awards . For purposes of
this Section 4, if an Award entitles the holder thereof to
receive or purchase Shares, the number of Shares covered by such
Award or to which such Award relates shall be counted on the date
of grant of such Award against the aggregate number of Shares
available for granting Awards under the Plan. Any Shares that are
used by a Participant as full or partial payment to the Company of
the purchase price relating to an Award or in connection with the
satisfaction of tax obligations relating to an Award, shall again
be available for granting Awards under the Plan. In addition, if
any Shares covered by an Award or to which an Award relates are not
purchased or are forfeited, or if an Award otherwise terminates
without delivery of any Shares, then the number of Shares counted
against the aggregate number of Shares available under the Plan
with respect to such Award, to the extent of any such forfeiture or
termination, shall again be available for granting Awards under the
Plan.
(c)
Adjustments . In the event that the
Committee shall determine that any dividend or other distribution
(whether in the form of cash, Shares, other securities or other
property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase
Shares or other securities of the Company or other similar
corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan,
then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and type of Shares (or
other securities or other property) that thereafter may be made the
subject of Awards, (ii) the number and type of Shares (or
other securities or other property) subject to outstanding Awards,
(iii) the purchase price or exercise price with respect to any
Award and (iv) the limitations contained in Section 4(d)
of the Plan; provided, however , that the number of Shares
covered by any Award or to which such Award relates shall always be
a whole number.
(d)
Section 162(m) Award Limitations Under the Plan
.
Notwithstanding any
other provision of the Plan other than Section 4(c), if the
Committee provides that this Section 4(d) is applicable to a
particular Award, no Participant receiving such an Award shall be
granted: (i) Options or SARs with respect to more than
500,000 Shares in the aggregate within any fiscal year of the
Company; or
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(ii) Qualified Performance
Based Awards which could result in such Participant receiving more
than $1,500,000 in cash or the equivalent Fair Market Value of
Shares determined at the date of grant for each full or partial
fiscal year of the Company contained in the performance period of a
particular Qualified Performance Based Award, provided, however,
that, if any other Qualified Performance Based Awards are
outstanding for such Participant for a given fiscal year, such
dollar limitation shall be reduced for each such given fiscal year
by the amount that could be received by the Participant under all
such Qualified Performance Based Awards, divided, for each such
Qualified Performance Based Award, by the number of full or partial
fiscal years of the Company contained in the performance period of
each such outstanding Qualified Performance Based Award; provided,
however, that the limitations set forth in this Section 4(d)
shall be subject to adjustment under Section 4(c) of the Plan
only to the extent that such adjustment does not affect the status
of any Award intended under Section 6(d) to qualify as
“performance based compensation” under
Section 162(m) of the Code.
Section 5.
Eligibility
Any Eligible Person
shall be eligible to be designated a Participant. In determining
which Eligible Persons shall receive an Award and the terms of any
Award, the Committee may take into account the nature of the
services rendered by the respective Eligible Persons, their present
and potential contributions to the success of the Company or such
other factors as the Committee, in its discretion, shall deem
relevant. Notwithstanding the foregoing, an Incentive Stock Option
may only be granted to full-time or part-time employees (which term
as used herein includes, without limitation, officers and directors
who are also employees), and an Incentive Stock Option shall not be
granted to an employee of an Affiliate unless such Affiliate is
also a “subsidiary corporati
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