Exhibit 10.1
WORLD SERIES OF GOLF, INC.
AMENDED AND RESTATED 2009 STOCK INCENTIVE
PLAN
ARTICLE I
GENERAL
1.1
Purpose
World Series of Golf, Inc. 2009
Stock Incentive Plan (the “Plan”) is designed to
provide certain key persons, on whose initiative and efforts the
successful conduct of the business of World Series of Golf, Inc.
(the “Company”) depends, and who are responsible for
the management, growth and protection of the business of the
Company, with incentives to: (a) enter into and remain in the
service of the Company, a Company subsidiary or a Company joint
venture, (b) acquire a proprietary interest in the success of the
Company, (c) maximize their performance and (d) enhance the
long-term performance of the Company (whether directly or
indirectly through enhancing the long-term performance of a Company
subsidiary or a Company joint venture). The Plan is also designed
to provide certain “performance-based” compensation to
these key persons.
1.2
Administration
(a) Administration by Committee; Constitution of Committee.
The Plan shall be administered by the Compensation Committee of the
board of directors of the Company (the “Board”) or such
other committee or subcommittee as the Board may designate or as
shall be formed by the abstention or recusal of a non-Qualified
Member (as defined below) of such committee (the
“Committee”). The members of the Committee shall be
appointed by, and serve at the pleasure of, the Board. While it is
intended that at all times that the Committee acts in connection
with the Plan, the Committee shall consist solely of at least two
Qualified Members, the fact that the Committee is not so comprised
will not invalidate any grant hereunder that otherwise satisfies
the terms of the Plan. A “Qualified Member” is both a
“non-employee director” within the meaning of Rule
16b-3 (“Rule 16b-3”) promulgated under the Securities
Exchange Act of 1934 (the “1934 Act”) and an
“outside director” within the meaning of section 162(m)
of the Internal Revenue Code of 1986, as amended (the
“Code”). If the Committee does not exist, or for any
other reason determined by the Board, the Board may take any action
under the Plan that would otherwise be the responsibility of the
Committee and, in such a case, all references herein to the
Committee shall refer to the Board.
(b) Committee’s Authority. The Committee shall have
the authority (i) to exercise all of the powers granted to it under
the Plan, (ii) to construe, interpret and implement the Plan and
any Grant Certificates executed pursuant to Section 2.1, (iii) to
prescribe, amend and rescind rules and regulations relating to the
Plan, including rules governing its own operations, (iv) to make
all determinations necessary or advisable in administering the
Plan, (v) to correct any defect, supply any omission and reconcile
any inconsistency in the Plan, and (vi) to amend the Plan to
reflect changes in applicable law.
(c) Committee Action; Delegation. Actions of the Committee
shall be taken by the vote of a majority of its members. Any action
may be taken by a written instrument signed by a majority of the
Committee members, and action so taken shall be fully as effective
as if it had been taken by a vote at a meeting. Notwithstanding the
foregoing or any other provision of the Plan, to the fullest extent
permitted by §78.200 of the Nevada Revised Statutes (or any
successor provision thereto) the Committee may delegate to one or
more officers of the Company the authority to designate the
individuals (other than such officer(s)), among those eligible to
receive awards pursuant to the terms of the Plan, who will receive
awards under the Plan and the size of each such award, provided
that the Committee shall itself grant awards to those individuals
who could reasonably be considered to be subject to the insider
trading provisions of section 16 of the 1934 Act or whose awards
could reasonably be expected to be subject to the deduction
limitations of section 162(m) of the Code.
(d) Determinations Final. The determination of the Committee
on all matters relating to the Plan or any
Grant Certificate shall be final,
binding and conclusive.
(e) Limit on Committee Members’ Liability. No member
of the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any award
thereunder.
1.3
Persons Eligible for
Awards
The persons eligible to receive awards under the Plan are those
officers, directors (whether or not they are employed by the
Company), consultants, and executive, managerial, professional or
administrative employees of the Company, its parent, subsidiaries
and its joint ventures (collectively, “key persons”) as
the Committee in its sole discretion shall select, provided,
however, that incentive stock options only may be granted to
persons who are employees of the Company on the date of
grant.
1.4
Types of Awards Under
Plan
Awards may be made under the Plan in the form of incentive stock
options and non-qualified stock options, as more fully set forth in
Article II. The term “award” means any of the
foregoing.
1.5
Shares Available for
Awards
(a) Aggregate Number Available; Certificate Legends. The
total number of shares of common stock of the Company
(“Common Stock”) with respect to which awards may be
granted pursuant to the Plan shall not exceed 4,000,000 shares.
Shares issued pursuant to the Plan may be authorized but unissued
Common Stock, authorized and issued Common Stock held in the
Company’s treasury or Common Stock acquired by the Company
for the purposes of the Plan. The Committee may direct that any
stock certificate evidencing shares issued pursuant to the Plan
shall bear a legend setting forth such restrictions on
transferability as may apply to such shares.
(b) Adjustment Upon Changes in Common Stock. Upon certain
changes in Common Stock, the number of shares of Common Stock
available for issuance with respect to awards that may be granted
under the Plan pursuant to Section 1.5(a), shall be adjusted
pursuant to Section 3.7(a) .
(c) Certain Shares to Become Available Again. The following
shares of Common Stock shall again become available for awards
under the Plan: any shares that are subject to an award under the
Plan and that remain unissued, whether due to the cancellation or
termination of such award for any reason whatsoever, the settlement
of such award for cash, or otherwise.
(d) Individual Limit. Except for the limits set forth in
this Section 1.5(d) and in Section 2.2(d) (relating to incentive
stock options), no provision of this Plan shall be deemed to limit
the number or value of shares with respect to which the Committee
may make awards to any eligible person. Subject to adjustment as
provided in Section 3.7(a), the total number of shares of Common
Stock with respect to which awards may be granted to any one
employee of the Company, its parent, or a subsidiary during any one
calendar year shall not exceed 300,000 shares. 1 Stock
options granted and subsequently canceled or deemed to be canceled
in a calendar year count against this limit even after their
cancellation.
1.6
Definitions of Certain
Terms
(a) The “Fair Market Value” of a share of Common Stock
on any day shall be the closing price on the NASDAQ Global Market,
the Over-The-Counter Bulletin Board, or such other national
securities exchange on which the Common Stock is traded, as
reported for such day in The Wall Street Journal or, if no
such price is reported for such day, the average of the high bid
and low asked price of Common Stock as reported for such day. If no
quotation is made for the applicable day, the Fair Market Value of
a share of Common Stock on such day shall be determined in the
manner set forth in the preceding sentence using quotations for the
next preceding day for which there were quotations, provided that
such quotations shall have been made within the ten (10) business
days preceding the applicable day. Notwithstanding the foregoing,
if deemed necessary or appropriate by the Committee, the Fair
Market Value of a share of Common Stock on any day shall be
determined by the Committee. In no event
1 10% of the total number of shares under the
Plan.
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shall the Fair Market Value of
any share of Common Stock be less than its par value.
(b) The term “incentive stock option” means an option
that is intended to qualify for special federal income tax
treatment pursuant to sections 421 and 422 of the Code as now
constituted or subsequently amended, or pursuant to a successor
provision of the Code, and which is so designated in the applicable
Grant Certificate. Any option that is not specifically designated
as an incentive stock option shall under no circumstances be
considered an incentive stock option. Any option that is not an
incentive stock option is referred to herein as a
“non-qualified stock option.”
(c) A grantee shall be deemed to have a “termination of
employment” upon (i) the date after which, based on all the
facts and circumstances, the Company, the Company parent, any
Company subsidiary or Company joint venture, or any corporation (or
any of its subsidiaries) which assumes the grantee’s award in
a transaction to which section 424(a) of the Code applies, and the
grantee reasonably anticipate that the grantee will perform no
further service for such Company, or that the grantee will perform
services of a level that would permanently decrease to no more than
20% of the average level of services performed over the immediately
preceding 36 months (or the entire period of employment, if the
grantee has worked for such Company for less than 36 months) or
(ii) the date the grantee ceases to be a Board member, provided,
however, that in the case of a grantee (x) who is at the time of
reference both an employee or consultant and a Board member or (y)
who ceases to be engaged as an employee, consultant or Board member
and immediately is engaged in another of such relationships with
the Company, the Company parent, any Company subsidiary or Company
joint venture, the grantee shall be deemed to have a termination of
employment upon the later of the dates determined pursuant to
subparagraphs (i) and (ii) above. For purposes of clause (i) above,
a grantee who continues his or her employment or consulting
relationship with: (A) a Company subsidiary subsequent to its sale
by the Company, or (B) a Company joint venture subsequent to the
Company’s sale of its interests in such joint venture, shall
have a termination of employment upon the date of such sale. A
grantee is considered not to have experienced a termination of
employment while on a bona fide leave of absence, provide that this
leave of absence does not exceed 6 months. If the leave of absence
exceeds 6 months, the grantee will be deemed to have a termination
of employment on the first day of the 7 th month unless
the grantee retains the right to reemployment under an applicable
statute or contract.
(d) The terms “parent corporation” and
“subsidiary corporation” shall have the meanings given
them in sections 424(e) and (f) of the Code,
respectively.
(e) The term “employment” shall be deemed to mean an
employee’s employment with the Company, the Company parent,
any Company subsidiary or any Company joint venture and each Board
member’s service as a Board member.
(f) The term “cause” in connection with a termination
of employment by reason of a dismissal for cause shall
mean:
(i) to the extent that there is an employment, severance or other
agreement governing the relationship between the grantee and the
Company, the Company parent, a Company subsidiary or a Company
joint venture, which agreement contains a definition of
“cause,” cause shall consist of those acts or omissions
that would constitute “cause” under such agreement; and
otherwise,
(ii) the grantee’s termination of employment by the Company,
the Company parent, or an affiliate or subsidiary on account of any
one or more of the following:
(A) any failure by the grantee substantially to perform the
grantee’s employment duties;
(B) any excessive unauthorized absenteeism by the
grantee;
(C) any refusal by the grantee to obey the lawful orders of the
Board or any other person or committee to whom the grantee
reports;
(D) any act or omission by the grantee that is or may be injurious
to the Company, monetarily or otherwise;
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(E) any act by the grantee that is inconsistent with the best
interests of the Company;
(F) The grantee’s material violation of any of the
Company’s policies, including, without limitation, those
policies relating to discrimination or sexual
harassment;
(G) the grantee’s unauthorized (a) removal from the premises
of the Company or an affiliate of any document (in any medium or
form) relating to the Company or an affiliate or the customers or
client of the Company or an affiliate or (b) disclosure to any
person or entity of any of the Company’s, the Company’s
parent or its affiliates’, confidential or proprietary
information;
(H) the grantee’s commission of any felony or any other crime
involving moral turpitude; or
(I) the grantee’s commission of any act involving dishonesty
or fraud.
Notwithstanding the foregoing, in determining whether a termination
of employment by reason of a dismissal for cause has occurred
pursuant to this Section 1.6(f)(ii) for the purposes of Section
3.8(b)(iii) (relating to a termination of employment following a
Change in Control), reference shall be made solely to subsections
(B), (C), (F), (G), (H), and (I) of Section 1.6(f)(ii) .
Any rights the Company may have hereunder in respect of the events
giving rise to cause shall be in addition to the rights the Company
may have under any other agreement with a grantee or at law or in
equity. Any determination of whether a grantee’s employment
is (or is deemed to have been) terminated for cause for purposes of
the Plan or any award hereunder shall be made by the Committee in
its discretion. If, subsequent to a grantee’s voluntary
termination of employment or involuntary termination of employment
without cause, it is discovered that the grantee’s employment
could have been terminated for cause, the Committee may deem such
grantee’s employment to have been terminated for cause. A
grantee’s termination of employment for cause shall be
effective as of the date of the occurrence of the event giving rise
to cause, regardless of when the determination of cause is
made.
(g) The term
“consultant” shall mean any consultant or advisor if
the consultant or advisor renders bona fide services to the
Company, its parent, subsidiaries or its joint ventures.
ARTICLE II
AWARDS UNDER THE PLAN
2.1
Certificates Evidencing
Awards
Each award granted under the Plan shall be evidenced by a written
certificate (“Grant Certificate”) which shall contain
such provisions as the Committee may in its sole discretion deem
necessary or desirable. By accepting an award pursuant to the Plan,
a grantee thereby agrees that the award shall be subject to all of
the terms and provisions of the Plan and the applicable Grant
Certificate.
2.2
Grant of Stock
Options
a) Stock Option Grants. The Committee may grant incentive
stock options and non-qualified stock options (collectively,
“options”) to purchase shares of Common Stock from the
Company, to such key persons, and in such amounts and subject to
such vesting and forfeiture provisions and other terms and
conditions, as the Committee shall determine in its sole
discretion, subject to the provisions of the Plan.
(b) Option Exercise Price. Each Grant Certificate with
respect to an option shall set forth the amount (the “option
exercise price”) payable by the grantee to the Company upon
exercise of the option evidenced thereby. The option exercise price
per share shall be determined by the Committee in its sole
discretion; provided, however, that the option exercise price of a
stock option shall be at least 100% of the Fair Market Value of a
share of Common Stock on the date the option is granted, and
provided further that in no event shall the option exercise price
be less
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than the par value of a share of
Common Stock.
(c) Exercise Period. Each Grant Certificate with respect to
an option shall set forth the periods during which the award
evidenced thereby shall be exercisable, whether in whole or in
part. Such periods shall be determined by the Committee in its sole
discretion, subject to Section 2.3 hereof.
(d) Incentive Stock Option Limitation: $100,000 Limitation.
To the extent that the aggregate Fair Market Value (determined as
of the time the option is granted) of the stock with respect to
which incentive stock options are first exercisable by any employee
during any calendar year shall exceed $100,000, or such higher
amount as may be permitted from time to time under section 422 of
the Code, such options shall be treated as non-qualified stock
options.
(e) Incentive Stock Option Limitation: 10% Owners.
Notwithstanding the provisions of this Section 2.2, an incentive
stock option may not be granted under the Plan to an individual
who, at the time the option is granted, owns stock possessing more
than 10% of the total combined voting power of all classes of stock
of his or her employer corporation or of its parent or subsidiary
corporations (as such ownership may be determined for purposes of
section 422(b)(6) of the Code) unless (i) at the time such
incentive stock option is granted the option exercise price is at
least 110% of the Fair Market Value of the shares subject thereto
and (ii) the incentive stock option by its terms is not exercisable
after the expiration of 5 years from the date it is
granted.
2.3
Exercise of
Options
Subject to the other provisions of this Article II, each option
granted under the Plan shall be exercisable as follows:
(a) Time and Method of Exercise.
(i) Beginning of Exercise Period for Employees. Unless the
applicable Grant Certificate otherwise provides, an option for
employees or consultants shall become exercisable in three
substantially equal installments on each of the first three
anniversaries of the date of grant.
(ii) Beginning of Exercise Period for Non-Employee
Directors. Unless the applicable Grant Certificate otherwise
provides, an option for non-employee directors shall become fully
exercisable on the first anniversary of the date of grant, except
that a grant made in conjunction with an annual stockholders
meeting shall become fully exercisable on the earlier of the first
anniversary of the date of grant and the next annual stockholders
meeting.
(iii) End of Exercise Period. Unless the applicable Grant
Certificate otherwise provides, once an installment becomes
exercisable, it shall remain exercisable until the earlier of (i)
the tenth anniversary of the date of grant of the award or (ii) the
expiration, cancellation or termination of the award; provided,
however, that no stock option shall be exercisable more than 10
years after the date of grant.
(iv) Timing and Extent of Exercise. Unless the applicable
Grant Certificate otherwise provides, an option may be exercised
from time to time as to all or part of the shares as to which such
award is then exercisable.
(v) Notice of Exercise. An option shall be exercised by the
filing of a written notice with the Company or the Company’s
designated exchange agent (the “exchange agent”), on
such form and in such manner as the Committee shall in its sole
discretion prescribe.
(b) Payment of Exercise Price. Any written notice of
exercise of an option shall be accompanied by payment for the
shares being purchased. Such payment shall be made: (i) by
certified or official bank check (or the equivalent thereof
acceptable to the Company or its exchange agent) for the full
option exercise price; or (ii) with the prior approval of the
Company’s compliance officer, which officer shall have sole
discretion whether or not to give, by delivery of shares of Common
Stock owned by the grantee having a Fair Market Value (determined
as of the exercise date) equal to all or part of the option
exercise price and a certified or official bank check (or the
equivalent thereof acceptable to the Company or its exchange agent)
for any remaining portion of the full option exercise price; or
(iii) at the discretion of the Committee and to the extent
permitted by law, by such other provision,
5
consistent with the terms of the
Plan, as the Committee may from time to time prescribe (whether
directly or indirectly through the exchange agent). Shares of
Common Stock delivered in payment of the exercise price pursuant to
item (ii) herein above may be previously owned shares or, with the
prior approval of the Company’s compliance officer, which
officer shall have sole discretion whether or not to give, the
shares that are being acquired upon exercise of the stock option;
provided, however, that any person who is a reporting person for
purposes of Section 16 of the 1934 Act may only deliver shares that
are being acquired upon exercise of the stock option in this manner
if at least six months has elapsed from the date on which the
option was granted to such person.
(c) Delivery of Certificates Upon Exercise. Promptly after
receiving payment of the full option exercise price, the Company or
its exchange agent shall, subject to the provisions of Section 3.2,
deliver to the grantee or to such other person as may then have the
right to exercise the award, a certificate or certificates for the
shares of Common Stock for which the award has been exercised. If
the method of payment employed upon option exercise so requires,
and if applicable law permits, a grantee may direct the Company or
its exchange agent, as the case may be, to deliver the stock
certificate(s) to the grantee’s stockbroker.
(d) No Stockholder Rights
