STEEL VAULT CORPORATION
2009 STOCK INCENTIVE PLAN
1. Purposes of the Plan.
The purposes of this Stock Incentive
Plan are to attract and retain the best available personnel for
positions of substantial responsibility, to provide additional
incentive to Employees and Consultants, and to promote the
long-term success of the Company’s business and to link
participants’ directly to stockholder interests through
increased stock ownership. Awards granted under the Plan may be
Incentive Stock Options, Nonqualified Stock Options, Stock
Appreciation Rights, Restricted Stock Awards, Performance Units,
Performance Shares, Cash Awards and Other Stock Based
Awards.
2. Definitions. As used herein, the following definitions shall
apply:
(a) “ Administrator ” means the
Board or any Committee or Officer as shall be administering the
Plan, in accordance with Section 4 of the Plan.
(b) “ Affiliate ” means a Parent,
a Subsidiary, an entity that is not a Parent or Subsidiary but
which has a direct or indirect ownership interest in the Company or
in which the Company has a direct or indirect ownership interest,
an entity that is a customer or supplier of the Company, an entity
that renders services to the Company, or an entity that has an
ownership or business affiliation with any entity previously
described in this Section 2(b).
(c) “ Applicable Law ” means the
legal requirements relating to the administration of the Plan under
applicable federal, state, local and foreign corporate, tax and
securities laws, and the rules and requirements of any stock
exchange or quotation system on which the Common Stock is listed or
quoted.
(d) “ Award ” means an Option,
Stock Appreciation Right, Restricted Stock Award, Performance Unit
or Performance Share, Cash Award or Other Stock Based Award granted
under the Plan.
(e) “ Award Agreement ” means the
agreement, notice and/or terms or conditions by which an Award is
evidenced, documented in such form (including by electronic
communication) as may be approved by the Administrator.
(f) “ Board ” means the Board of
Directors of the Company.
(g) “ Cash Award ” means an award
payable in the form of cash.
(h) “ Change in Control ” means
the happening of any of the following:
(i) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of
which is that any “person” as such term is used in
Section 13(d) and 14(d) of the Exchange Act (other than any trustee
or other fiduciary holding securities under any employee benefit
plan of the Company, or any company owned, directly or indirectly,
by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company), is or
becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the
combined voting power of the Company’s then outstanding
securities entitled generally to vote in the election of the Board
(other than the occurrence of any contingency);
(ii) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation or
entity, which is consummated, 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 by being converted into voting
securities of the surviving entity) more than 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 effective date of a complete liquidation of
the Company or the consummation of an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets, which in both cases are approved by the
stockholders of the Company as may be required by law.
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(i) “ Code ” means the Internal
Revenue Code of 1986, as amended.
(j) “ Committee ” means a
committee appointed by the Board in accordance with Section 4
of the Plan.
(k) “ Compensation Committee ”
means the Compensation Committee of the Board.
(l) “ Common Stock ” means the
common stock, $.01 par value, of the Company.
(m) “ Company ” means Steel Vault
Corporation.
(n) “ Consultant ” means any
person, including an advisor, engaged by the Company or an
Affiliate and who is compensated for such services, including
without limitation non-Employee Directors. In addition, as used
herein, “consulting relationship” shall be deemed to
include service by a non-Employee Director as such.
(o) “ Continuous Status as an Employee or
Consultant ” means that the employment or consulting
relationship is not interrupted or terminated by the Company or
Affiliate, as applicable. Continuous Status as an Employee or
Consultant shall not be considered interrupted in the case of
(i) any leave of absence approved in writing by the Board, an
Officer, or a person designated in writing by the Board or an
Officer as authorized to approve a leave of absence, including sick
leave, military leave, or any other personal leave; provided,
however, that for purposes of Incentive Stock Options, any such
leave may not exceed 90 days, unless reemployment upon the
expiration of such leave is guaranteed by contract (including
certain Company policies) or statute, or (ii) transfers
between locations of the Company or between the Company, a Parent,
a Subsidiary or successor of the Company; or (iii) a change in
the status of the Grantee from Employee to Consultant or from
Consultant to Employee.
(p) “ Covered Stock ” means the
Common Stock subject to an Award.
(q) “ Date of Grant ” means the
date on which the Administrator makes the determination granting
the Award, or such other later date as is determined by the
Administrator. Notice of the determination shall be provided to
each Grantee within a reasonable time after the Date of
Grant.
(r) “ Date of Termination ” means
the date on which a Grantee’s Continuous Status as an
Employee or Consultant terminates.
(s) “ Director ” means a member
of the Board or a member of the Board of Directors of a Parent or
Subsidiary.
(t) “ Disability ” means total
and permanent disability as defined in Section 22(e)(3) of the
Code.
(u) “ Employee ” means any
person, including Officers and Directors, employed by the Company
or any Affiliate. Neither service as a Director nor payment of a
director’s fee by the Company shall be sufficient to
constitute “employment” by the Company.
(v) “ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
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(w) “ Fair Market Value ” means
the value of a share of Common Stock. If the Common Stock is
actively traded on any national securities exchange, including, but
not limited to, the NASDAQ Stock Market or the New York Stock
Exchange, Fair Market Value shall mean the closing price at which
sales of Common Stock shall have been sold on the date of
determination, as reported by any such exchange selected by the
Administrator on which the shares of Common Stock are then traded.
If the shares of Common Stock are not actively traded on any such
exchange, Fair Market Value shall mean the arithmetic mean of the
bid and asked prices for the shares of Common Stock on the most
recent trading date within a reasonable period prior to the
determination date as reported by such exchange. If there are no
bid and asked prices within a reasonable period or if the shares of
Common Stock are not traded on any exchange as of the determination
date, Fair Market Value shall mean the fair market value of a share
of Common Stock as determined by the Administrator taking into
account such facts and circumstances deemed to be material by the
Administrator to the value of the Common Stock in the hands of the
Grantee; provided that, for purposes of granting awards other than
Incentive Stock Options, Fair Market Value of a share of Common
Stock may be determined by the Administrator by reference to the
average market value determined over a period certain or as of
specified dates, to a tender offer price for the shares of Common
Stock (if settlement of an award is triggered by such an event) or
to any other reasonable measure of fair market value and provided
further that, for purposes of granting Incentive Stock Options,
Fair Market Value of a share of Common Stock shall be determined in
accordance with the valuation principles described in the
regulations promulgated under Code Section 422.
(x) “ Grantee ” means an
individual who has been granted an Award.
(y) “ Incentive Stock Option ”
means an Option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(z) “ Nonqualified Stock Option ”
means an Option not intended to qualify as an Incentive Stock
Option.
(aa) “ Officer ” means a person
who is an officer of the Company within the meaning of
Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(bb) “ Option ” means a stock
option granted under the Plan.
(cc) “ Other Stock Based Award ”
means an award that is valued in whole or in part by reference to,
or is otherwise based on, Common Stock.
(dd) “ Parent ” means a
corporation, whether now or hereafter existing, in an unbroken
chain of corporations ending with the Company if each of the
corporations other than the Company holds at least 50 percent
of the voting shares of one of the other corporations in such
chain.
(ee) “ Performance Based Compensation
” means compensation which meets the requirements of
Section 162(m)(4)(C) of the Code.
(ff) “ Performance Based Restricted
Stock ” means an Award of Restricted Stock which meets
the requirements of Section 162(m)(4)(C) of the Code, as
described in Section 8(b) of the Plan.
(gg) “ Performance Period ” means
the time period during which the performance goals established by
the Administrator with respect to a Performance Unit or Performance
Share, pursuant to Section 9 of the Plan, must be
met.
(hh) “ Performance Share ” has the
meaning set forth in Section 9 of the Plan.
(ii) “ Performance Unit ” has the
meaning set forth in Section 9 of the Plan.
(jj) “ Plan ” means this Steel
Vault Corporation 2009 Stock Incentive Plan, as amended and
restated.
(kk) “ Restricted Stock Award ”
means Shares that are awarded to a Grantee pursuant to
Section 8 of the Plan.
(ll) “ Rule 16b-3 ” means
Rule 16b-3 promulgated under the Exchange Act or any successor
to Rule 16b-3, as in effect when discretion is being exercised
with respect to the Plan.
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(mm) “ Share ” means a share of
the Common Stock, as adjusted in accordance with Section 13 of
the Plan.
(nn) “ Stock Appreciation Right ”
or “ SAR ” means the right to receive an amount
equal to the appreciation, if any, in the Fair Market Value of a
Share from the date of the grant of the right to the date of its
payment, as set forth in Section 7 of the Plan.
(oo) “ Subsidiary ” means a
corporation, domestic or foreign, of which not less than
50 percent of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a
Subsidiary.
3. Stock Subject to the Plan.
Subject to the provisions of
Section 13 of the Plan and except as otherwise provided in
this Section 3, the maximum aggregate number of Shares that
may be subject to Awards under the Plan since the Plan became
effective is 2,000,000 Shares, of which 2,000,000 can be issued as
Incentive Stock Options. The Shares may be authorized, but
unissued, or reacquired Common Stock. If an Award expires or
becomes unexercisable without having been exercised in full the
remaining Shares that were subject to the Award shall become
available for future Awards under the Plan (unless the Plan has
terminated). With respect to Options and Stock Appreciation Rights,
if the payment upon exercise of an Option or SAR is in the form of
Shares, the Shares subject to the Option or SAR shall be counted
against the available Shares as one Share for every Share subject
to the Option or SAR, regardless of the number of Shares used to
settle the SAR upon exercise.
4. Administration of the
Plan.
(i) Multiple Administrative Bodies
. The Plan may be administered by
different bodies with respect to different groups of Employees and
Consultants, provided however, that the administrative authority
set forth in items (vii), (viii), (ix), (xii), (xiii), (xiv), (xv),
and (xvi) of Section 4(b) below shall be exercised only by the
Compensation Committee. Except as provided below, the Plan shall be
administered by (A) the Board or (B) a committee
designated by the Board and constituted to satisfy Applicable
Law.
(ii) Rule 16b-3 . To the extent the Board or the Compensation
Committee considers it desirable for transactions relating to
Awards to be eligible to qualify for an exemption under
Rule 16b-3, the transactions contemplated under the Plan shall
be structured to satisfy the requirements for exemption under
Rule 16b-3.
(iii) Section 162(m) of the Code
. To the extent the Board or the
Compensation Committee considers it desirable for compensation
delivered pursuant to Awards to be eligible to qualify for an
exemption from the limit on tax deductibility of compensation under
Section 162(m) of the Code, the transactions contemplated under the
Plan shall be structured to satisfy the requirements for exemption
under Section 162(m) of the Code.
(iv) Authorization of Officers to Grant
Options . In accordance
with Applicable Law, the Board may, by a resolution adopted by the
Board, authorize one or more Officers to designate Officers and
Employees (excluding the Officer so authorized) to be Grantees of
Options and determine the number of Options to be granted to such
Officers and Employees; provided, however, that the resolution
adopted by the Board so authorizing such Officer or Officers shall
specify the total number and the terms (including the exercise
price, which may include a formula by which such price may be
determined) of Options such Officer or Officers may so
grant.
(b) Powers of the Administrator
. Subject to the provisions of the
Plan, and in the case of a Committee or an Officer, subject to the
specific duties delegated by the Board to such Committee or
Officer, the Administrator shall have the authority, in its sole
and absolute discretion:
(i) to determine the Fair Market Value of the Common
Stock, in accordance with Section 2(w) of the Plan;
(ii) to select the Grantees to whom Awards will be
granted under the Plan;
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(iii) to determine whether, when, to what extent and
in what types and amounts Awards are granted under the
Plan;
(iv) to determine the number of shares of Common
Stock to be covered by each Award granted under the
Plan;
(v) to determine the forms of Award Agreements,
which need not be the same for each grant or for each Grantee, and
which may be delivered electronically, for use under the
Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Award granted under
the Plan. Such terms and conditions, which need not be the same for
each grant or for each Grantee, include, but are not limited to,
the exercise price, the time or times when Options and SARs may be
exercised (which may be based on performance criteria), the extent
to which vesting is suspended during a leave of absence, any
vesting acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Award or the shares of
Common Stock relating thereto, based in each case on such factors
as the Administrator shall determine;
(vii) to construe and interpret the terms of the Plan
and Awards;
(viii) to prescribe, amend and rescind rules and
regulations relating to the Plan, including, without limiting the
generality of the foregoing, rules and regulations relating to the
operation and administration of the Plan to accommodate the
specific requirements of local and foreign laws and
procedures;
(ix) to modify or amend each Award (subject to
Section 15 of the Plan). However, the Administrator may not
modify or amend any outstanding Option or SAR to reduce the
exercise price of such Option or SAR, as applicable, below the
exercise price as of the Date of Grant of such Option or SAR. In
addition, no Option or SAR may be granted in exchange for, or in
connection with, the cancellation or surrender of an Option or SAR
or other Award having a lower exercise price;
(x) to authorize any person to execute on behalf of
the Company any instrument required to effect the grant of an Award
previously granted by the Administrator;
(xi) to determine the terms and restrictions
applicable to Awards;
(xii) to make such adjustments or modifications to
Awards granted to Grantees who are Employees of foreign
Subsidiaries as are advisable to fulfill the purposes of the Plan
or to comply with Applicable Law;
(xiii) to delegate its duties and responsibilities
under the Plan with respect to sub-plans applicable to foreign
Subsidiaries, except its duties and responsibilities with respect
to Employees who are also Officers or Directors subject to Section
16(b) of the Exchange Act;
(xiv) to provide any notice or other communication
required or permitted by the Plan in either written or electronic
form;
(xv) to correct any defect or supply any omission, or
reconcile any inconsistency in the Plan, or in any Award Agreement,
in the manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective; and
(xvi) to make all other determinations deemed
necessary or advisable for administering the Plan.
(c) Effect of Administrator’s
Decision . The
Administrator’s decisions, determinations and interpretations
shall be final and binding on all Grantees and any other holders of
Awards.
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5. Eligibility and General Conditions of
Awards.
(a) Eligibility . Awards other than Incentive Stock Options may
be granted to Employees and Consultants. Incentive Stock Options
may be granted only to Employees. If otherwise eligible, an
Employee or Consultant who has been granted an Award may be granted
additional Awards.
(b) Maximum Term . Subject to the following provision, the term
during which an Award may be outstanding shall not extend more than
ten years after the Date of Grant, and shall be subject to earlier
termination as specified elsewhere in the Plan or Award
Agreement.
(c) Award Agreement . To the extent not set forth in the Plan, the
terms and conditions of each Award, which need not be the same for
each grant or for each Grantee, shall be set forth in an Award
Agreement. The Administrator, in its sole and absolute discretion,
may require as a condition to any Award Agreement’s
effectiveness that the Award Agreement be executed by the Grantee,
including by electronic signature or other electronic indication of
acceptance, and that the Grantee agree to such further terms and
conditions as specified in the Award Agreement. Except as otherwise
provided in an Agreement, all capitalized terms used in the
Agreement shall have the same meaning as in the Plan, and the
Agreement shall be subject to all of the terms of the
Plan.
(d) Termination of Employment or Consulting
Relationship . In the
event that a Grantee’s Continuous Status as an Employee or
Consultant terminates (other than upon the Grantee’s
Retirement (defined below), death, Disability, or Termination by
Employer Not for Cause (defined below)), then, unless otherwise
provided by the Award Agreement, and subject to Section 13 of
the Plan:
(i) the Grantee may exercise his or her unexercised
Option or SAR, but only within such period of time as is determined
by the Administrator, and only to the extent that the Grantee was
entitled to exercise it at the Date of Termination (but in no event
later than the expiration of the term of such Option or SAR as set
forth in the Award Agreement). In the case of an Incentive Stock
Option, the Administrator shall determine such period of time (in
no event to exceed three months from the Date of Termination) when
the Option is granted. If, at the Date of Termination, the Grantee
is not entitled to exercise his or her entire Option or SAR, the
Shares covered by the unexercisable portion of the Option or SAR
shall revert to the Plan. If, after the Date of Termination, the
Grantee does not exercise his or her Option or SAR within the time
specified by the Administrator, the Option or SAR shall terminate,
and the Shares covered by such Option or SAR shall revert to the
Plan;
(ii) the Grantee’s Restricted Stock Awards, to
the extent forfeitable immediately before the Date of Termination,
shall thereupon automatically be forfeited;
(iii) the Grantee’s Restricted Stock Awards that
were not forfeitable immediately before the Date of Termination
shall promptly be settled by delivery to the Grantee of a number of
unrestricted Shares equal to the aggregate number of the
Grantee’s vested Restricted Stock Awards; and
(iv) any Performance Shares or Performance Units with
respect to which the Performance Period has not ended as of the
Date of Termination shall terminate immediately upon the Date of
Termination.
(e) Disability of Grantee . In the event that a Grantee’s Continuous
Status as an Employee or Consultant terminates as a result of the
Grantee’s Disability, then, unless otherwise provided by the
Award Agreement, such termination shall have no effect on the
Grantee’s outstanding Awards. The Grantee’s Awards
shall continue to vest and remain outstanding and exercisable until
they expire by their terms. In the case of an Incentive Stock
Option, any option not exercised within 12 months of the date
of termination of the Grantee’s Continuous Status as an
Employee or Consultant due to Disability will be treated as a
Nonqualified Stock Option.
(f) Death of Grantee . In the event of the death of a Grantee, then,
unless otherwise provided by the Award Agreement, such termination
shall have no effect on Grantee’s outstanding Awards. The
Grantee’s Awards shall continue to vest and remain
outstanding and exercisable until they expire by their terms. In
the case of an Incentive Stock Option, any option not exercised
within 12 months of the date of termination of Grantee’s
Continuous Status as an Employee or Consultant due to death will be
treated as a Nonqualified Stock Option.
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(g) Retirement of Grantee . Except as otherwise provided in
Section 5(g)(i) below, in the event that a Grantee’s
Continuous Status as an Employee or Consultant terminates after the
Grantee’s attainment of age 65 (hereinafter,
“Retirement”), then, unless otherwise provided by the
Award Agreement, such termination shall have no effect on
Grantee’s outstanding Awards. The Grantee’s Awards
shall continue to vest and remain outstanding and exercisable until
they expire by their terms. In the case of an Incentive Stock
Option, any option not exercised within 3 months of the
termination of Grantee’s Continuous Status as an Employee or
Consultant due to Retirement will be treated as a Nonqualified
Stock Option.
(h) Termination by Employer Not for Cause
. In the event that a
Grantee’s Continuous Status as an Employee or Consultant is
terminated by the Employer without Cause (hereinafter,
“Termination by Employer Not for Cause”), then, unless
otherwise provided by the Award Agreement, such termination shall
have no effect on Grantee’s outstanding Awards.
Grantee’s Awards shall continue to vest and remain
outstanding and exercisable until they expire by their terms. In
the case of an Incentive Stock Option, any option not exercised
within 3 months of the date of will be treated as a
Nonqualified Stock Option. In the case of a Grantee who is a
Director, the Grantee’s service as a Director shall be deemed
to have been terminated without Cause if the Participant ceases to
serve in such a position solely due to the failure to be reelected
or reappointed, as the case may be, and such failure is not a
result of an act or omission which would constitute
Cause.
(i) Termination for Cause . Notwithstanding anything herein to the
contrary, if a Grantee is an Employee of the Company and is
“Terminated for Cause”, as defined herein below, or
violates any of the terms of their employment after they have
become vested in any of their rights herein, the Grantee’s
full interest in such rights shall terminate on the date of such
termination of employment and all rights thereunder shall cease.
Whether a Participant’s employment is Terminated for Cause
shall be determined by the Board. Cause shall mean gross
negl
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