Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
14C INFORMATION
Information
Statement Pursuant to Section 14(c)
of
the Securities Exchange Act of 1934, as amended
Check
the appropriate box:
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x |
Preliminary
Information Statement
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Confidential,
for use of the Commission only
(as
permitted by Rule 14c-5(d)(2))
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Definitive
Information Statement
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GWIN,
INC.
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(Name
of Registrant as Specified in Its Charter)
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Payment
of Filing Fee (Check the appropriate box):
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No
fee required.
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Fee
computed on table below per Exchange Act Rules 14c-5(g) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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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):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid:
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o |
Fee
paid previously with preliminary materials.
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule
0-11(a)(2) and identify the filing for which the offsetting fee was
paid
previously. Identify the previous filing by registration statement
number,
or the Form or Schedule and the date of its filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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(3)
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Filing
Party:
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(4)
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Date
Filed:
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WE
ARE NOT ASKING YOU FOR A PROXY
AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
GWIN,
INC.
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
INFORMATION
STATEMENT
This
Information Statement (this “Information
Statement”)
is
being furnished to all holders of shares of common stock, par value $0.001
per
share and Series A Convertible Preferred Stock, par value $0.01 per share,
of record at the close of business on
August 10, 2006 (collectively, the “Shareholders”)
of
GWIN, Inc., a Delaware corporation (the “Company”),
with
respect to certain corporate actions of the Company. This Information Statement
is first being provided to the Shareholders on or about
August 22, 2006.
The
corporate actions involve three (3) proposals (collectively, the
“Proposals”)
providing for the following:
1. To
approve the adoption of the GWIN, Inc. 2006 Stock Incentive Plan;
2. To
approve an amendment to the Company’s Certificate of Incorporation (as amended)
to increase the authorized shares of the Company’s common stock from One Hundred
Fifty Million (150,000,000) to Seven Hundred Fifty Million (750,000,000) shares;
and
3. To
approve an amendment to the Company’s Certificate of Incorporation (as amended)
to change the name of the Company from GWIN, Inc. to Winning Edge International,
Inc.
ONLY
THE
SHAREHOLDERS OF RECORD AT THE CLOSE OF BUSINESS ON AUGUST 10, 2006
(THE “RECORD
DATE”)
ARE
ENTITLED TO NOTICE OF AND TO VOTE ON THE PROPOSALS. A PRINCIPAL SHAREHOLDER
WHO
COLLECTIVELY HOLDS IN EXCESS OF FIFTY PERCENT (50%) OF THE COMPANY’S SHARES
OF VOTING CAPITAL STOCK ENTITLED TO VOTE ON THE PROPOSALS HAS INDICATED HIS
INTENTION TO VOTE IN FAVOR OF THE PROPOSALS. AS A RESULT, THE PROPOSALS SHOULD
BE APPROVED WITHOUT THE AFFIRMATIVE VOTE OF ANY OTHER SHAREHOLDERS OF THE
COMPANY. THIS ACTION IS EXPECTED TO BE TAKEN NOT LESS THAN TWENTY (20) DAYS
FROM THE MAILING OF THIS INFORMATION STATEMENT, BUT AS SOON THEREAFTER AS
PRACTICABLE.
BY
ORDER OF THE BOARD OF DIRECTORS
/s/Wayne
Allyn Root
Wayne
Allyn Root, Chief Executive Officer
Las
Vegas, Nevada
August 11,
2006
TABLE
OF CONTENTS
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PAGE
NO.
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ABOUT
THE INFORMATION STATEMENT
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1
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What
Is The Purpose Of The Information Statement?
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1
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Who
Is Entitled To Notice?
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1
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What
Corporate Matters Will The Principal Shareholder Vote For And How
Will He
Vote?
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1
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What
Are The Recommendations Of The Board Of Directors?
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2
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What
Vote Is Required To Approve Each Proposal?
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2
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INFORMATION
ON THE CONSENTING SHAREHOLDER
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3
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PRINCIPAL
SHAREHOLDERS
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4
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SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
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4
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PROPOSALS
BY SECURITY HOLDERS
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5
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DIRECTORS
AND EXECUTIVE OFFICERS
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6
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Director
Compensation
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7
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Committees
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7
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Audit
Committee
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7
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Compensation
Committee
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7
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Section
16(A) Beneficial Ownership Reporting Compliance
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7
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Code
Of Ethics
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8
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EXECUTIVE
COMPENSATION
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8
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DESCRIPTION
OF CAPITAL STOCK
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9
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General
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9
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Common
Stock
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9
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Preferred
Stock
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9
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Options
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10
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Warrants
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10
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Securities
Issued To Laurus Master Fund, Ltd.
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10
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Dividends
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10
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Anti-Takeover
Effects Of Provisions Of The Certificate Of Incorporation, By-laws
And
Delaware Law
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10
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Transfer
Agent And Registrar
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11
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INTEREST
OF CERTAIN PERSONS IN OR OPPOSITION TO MATTERS TO BE ACTED
UPON
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11
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PROPOSAL
1 - ADOPTION OF THE GWIN, INC. 2006 STOCK INCENTIVE PLAN
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12
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Purpose
Of Adopting The GWIN, Inc. 2006 Stock Incentive Plan
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12
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Description
Of The GWIN, Inc. 2006 Stock Incentive Plan
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12
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Recommendation
Of The Board of Directors
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16
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No
Voting Of Shareholders Required
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16
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PROPOSAL
2 - AMENDMENT TO THE CERTIFICATE OF INCORPORATION TO INCREASE AUTHORIZED
COMMON STOCK
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17
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Purpose
Of Increasing Number Of Authorized Shares Of Common Stock
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17
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Advantages
And Disadvantages Of Increasing Authorized Shares
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18
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Recommendation
Of The Board Of Directors
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18
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No
Voting Of Shareholders Required
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18
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PROPOSAL
3 - AMENDMENT TO CERTIFICATE OF INCORPORATION TO CHANGE NAME OF THE
COMPANY
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19
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Purpose
Of Changing The Name Of The Company
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19
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Amendment
To Certificate Of Incorporation
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19
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Recommendation
Of The Board Of Directors
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19
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No
Voting Of Shareholders Required
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19
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ADDITIONAL
INFORMATION
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20
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DELIVERY
OF DOCUMENTS TO SECURITY HOLDERS SHARING AN ADDRESS
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20
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APPENDIX
A
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1
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GWIN,
INC.
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
_________________________
INFORMATION
STATEMENT
_________________________
This
Information Statement (this “Information
Statement”)
contains information related to certain corporate actions of GWIN, Inc., a
Delaware corporation (the “Company”),
and
is expected to be mailed on or about August 22, 2006 to all holders of
the voting capital stock of the Company, which includes all holders of common
stock, par value $0.0001 per share (“Common
Stock”)
and
all holders of Series A Convertible Preferred Stock, par value $0.0001 per
share (“Series A
Preferred”)
of
record at the close of business on August 10, 2006 (collectively, the
“Shareholders”).
ABOUT
THE INFORMATION STATEMENT
What
Is The Purpose Of The Information Statement?
This
Information Statement is being provided pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended, to notify the Shareholders, as of the close
of
business on August 10, 2006 (the “Record
Date”),
of
the corporate actions expected to be taken pursuant to the written consent
of a
principal shareholder. Specifically, a holder of our Series A Preferred is
expected to act upon certain corporate matters outlined in this Information
Statement, which action is expected to take place on August 11, 2006,
consisting of: (i) the adoption of the GWIN, Inc. 2006 Stock Incentive Plan,
(ii) an amendment to the Company’s Certificate of Incorporation (as amended) to
increase the authorized shares of the Company’s common stock from One Hundred
Fifty Million (150,000,000) to Seven Hundred Fifty Million (750,000,000) shares
and (iii) an amendment to the Company’s Certificate of Incorporation (as
amended) to change the name of the Company from GWIN, Inc. to Winning Edge
International, Inc. (collectively, the “Proposals”
and,
each, a “Proposal”).
A
shareholder who holds shares of Common Stock and shares of Series A Preferred
is
entitled to cast a number of votes equal to 56.51% of the total voting capital
stock on all matters submitted to the Shareholders for approval, including
the
Proposals set forth herein.
Who
Is Entitled To Notice?
All
holders of shares of Common Stock and Series A Preferred of record on the
close of business on the Record Date will be entitled to notice of each matter
to be voted upon pursuant to the written consent of a certain principal
shareholder. Specifically, a shareholder has indicated he will vote in favor
of
the Proposals on August 11, 2006. Under Delaware corporate law, all
the activities requiring shareholder approval may be taken by obtaining the
written consent and approval of more than fifty percent (50%) of the
holders of voting stock in lieu of a meeting of the shareholders. Because the
shareholder is entitled to cast a number of shares equal to 56.51% of the total
voting stock of the Company, no action by the minority shareholders in
connection with the Proposals set forth herein is required.
What
Corporate Matters Will The Principal Shareholder Vote For And How Will He
Vote?
The
shareholder who holds 56.51% of the total voting capital stock of the Company
holds a majority of the total voting capital stock required to vote on each
matter. Such principal shareholder has indicated that he will vote for the
following matters:
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·
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For
the
approval of the adoption of the GWIN, Inc. 2006 Stock Incentive
Plan (see page 12 herein);
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·
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For
the approval to amend the Certificate of Incorporation (as amended)
of the
Company to increase the authorized shares of the Company’s common stock
from One Hundred Fifty Million (150,000,000) to Seven Hundred Fifty
Million (750,000,000). (see page 17 herein);
and
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·
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For
the approval to amend the Certificate of Incorporation (as amended)
of the
Company to change the name of the Company from GWIN, Inc. to Winning
Edge
International, Inc. (see page 19
herein).
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What
Are The Recommendations Of The Board Of Directors?
The
recommendations of the Board of Directors are set forth below together with
the
description of each item in this Information Statement. In summary, the Board
recommends a vote:
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·
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For
the
approval of the adoption of the GWIN, Inc 2006 Stock Incentive Plan
(see
page 12 herein);
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·
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For
the approval to amend to the Company’s Certificate of Incorporation (as
amended) to increase the authorized shares of the Company’s common stock
from One Hundred Fifty Million (150,000,000) to Seven Hundred Fifty
Million (750,000,000) shares (see page 17 herein);
and
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·
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For
the approval to amend the Certificate of Incorporation (as amended)
of the
Company to change the name of the Company from GWIN, Inc. to Winning
Edge
International, Inc. (see page 19 herein).
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What
Vote Is Required To Approve Each Proposal?
GWIN,
Inc. 2006 Stock Incentive Plan.
For the
Proposal to adopt the GWIN, Inc. 2006 Stock Incentive Plan, a vote of a majority
of the voting capital stock is required for approval of the Proposal. As a
result, a vote to approve this Proposal by a certain principal shareholder
(which vote is equal to 56.51% of the total voting capital stock of the
Company), is required to approve the Proposal.
Increase
in Authorized Shares of Common Stock.
For the
approval to amend the Company’s Certificate of Incorporation (as amended) to
increase the authorized shares of the Company’s Common Stock from One Hundred
Fifty Million (150,000,000) to Seven Hundred Fifty Million (750,000,000) shares,
the affirmative vote of a majority of the shares of outstanding voting stock
on
the Record Date, will be required for approval. As a result, a vote to approve
this proposal by a certain principal shareholder (which vote is equal to 56.51%
of the total voting capital stock of the Company), is required to approve the
Proposal.
Corporate
Name Change.
For the
approval to amend the Company’s Certificate of Incorporation (as amended) to
change the name of the Company from GWIN, Inc. to Winning Edge International,
Inc., a vote of a majority of the voting capital stock is required for approval
of the Proposal. As a result, a vote to approve this Proposal by a certain
principal shareholder (which vote is equal to 56.51% of the total voting capital
stock of the Company), is required to approve the Proposal.
INFORMATION
ON THE CONSENTING SHAREHOLDER
A
vote by
the holders of at least a majority of our total voting capital stock is required
to effect each of the actions described in this Information Statement. Each
share of Common Stock is entitled to one (1) vote, and each Series A
Preferred share is entitled to that number of votes equal to two hundred fifty
(250) shares of Common Stock for voting purposes.
As
of the
Record Date, we had 107,183,180 shares of Common Stock and 462,222 shares of
Series A Preferred issued and outstanding. Therefore, a majority of the
222,738,680 total
voting shares of capital stock of the Company (which such figure includes
107,183,180 shares of Common Stock outstanding as of the Record Date plus
115,555,500 shares
which are entitled to be voted in connection with the ownership of Series A
Preferred shares) in favor of the action is required to pass the shareholder
resolution for this action.
A
shareholder who holds shares of Common Stock and shares of Series A Preferred
has indicated his intention to vote in favor of the Proposals, and the number
of
shares of Common Stock and Series A Preferred within his voting control as
of the Record Date is listed below. The following principal shareholder holds
56.51% of the shares of voting capital stock and accordingly, has sufficient
shares to approve the Proposal:
NAME
AND ADDRESS
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NUMBER
OF COMMON SHARES
ENTITLED
TO VOTE
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NUMBER
OF SERIES A PREFERRED SHARES
HELD
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NUMBER
OF SERIES A PREFERRED SHARES ENTITLED TO VOTE
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TOTAL
NUMBER OF SHARES OF CAPITAL STOCK ENTITLED TO
VOTE
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PERCENTAGE
OF TOTAL VOTING CAPITAL STOCK(1)
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Wayne
Allyn Root
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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10,313,928(2)
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462,222(3)
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115,555,500(3)
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125,869,428
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56.51%
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(1)
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Applicable
percentage of total voting stock is based on 107,183,180 shares of
Common
Stock issued and outstanding on August 10, 2006, of which 10,313,928
shares are directly held by Mr. Root, plus 115,555,500 shares Mr.
Root is
entitled to vote in connection with his ownership of 462,222 shares
of
Series A Preferred in accordance with the terms of that certain
Certificate of Designation as filed with the Secretary of State of
the
State of Delaware on August 3,
2006.
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(2)
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Does
not include 666,667 shares issuable to Mr. Root which have vested
on July
31, 2006 and 666,667 shares which will vest on July 31,
2007.
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(3)
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Holders
of Series A Preferred shall vote together with holders of common
stock and
not as a separate class, and each share of Series A Preferred shall
be
entitled to cast a number of votes equal to two hundred fifty (250)
shares
of common stock for voting
purposes.
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PRINCIPAL
SHAREHOLDERS
The
table
below sets forth information with respect to the beneficial ownership of our
Common Stock and Series A Preferred as of August 10, 2006
for (a) any person who we know is the beneficial owner of more than five
percent (5%) of our outstanding Common Stock and Series A
Preferred, (b) each of our Directors and executive officers and (c)
all of our Directors and officers as a group. Other than the persons identified
below, no person beneficially owned more than five percent (5%) of each of
the Company’s Common Stock and Series A Preferred. There are no other
classes or series of capital stock outstanding. As of the date of this
Information Statement, the Company had 107,183,180 shares of Common Stock and
462,222 shares of Series A Preferred issued and outstanding.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
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NAME
AND ADDRESS
OF
BENEFICIAL OWNER
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AMOUNT
OF DIRECT OWNERSHIP
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AMOUNT
OF
BENEFICIAL
OWNERSHIP
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PERCENTAGE
OF
CLASS (1)
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Common
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Wayne
Allyn Root
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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10,313,928
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14,936,148(2)
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13.94%
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Common
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Douglas
R. Miller
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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1,536,568
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4,692,370(3)
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4.38%
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Common
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Jeff
Johnson
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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--
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--
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0%
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Common
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Robert
L. Seale
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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20,000
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20,000
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*
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Common
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Roger
Aspey-Kent
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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345,000(4)
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703,000(4)
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*
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Common
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Roger
L. Harrison
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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20,000
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20,000
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*
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Common
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All
Officers And Directors As A Group (Six
Persons)
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12,235,496
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20,371,518(5)
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19.01%
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Series
A Preferred
|
Wayne
Allyn Root
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
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462,222
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462,222
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100%
|
Series
A Preferred
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Douglas
R. Miller
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
|
--
|
--
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0%
|
Series
A Preferred
|
Jeff
Johnson
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
|
--
|
--
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0%
|
Series
A Preferred
|
Robert
L. Seale
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
|
--
|
--
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0%
|
Series
A Preferred
|
Roger
Aspey-Kent
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
|
--
|
--
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0%
|
Series
A Preferred
|
Roger
L. Harrison
5052
South Jones Boulevard
Las
Vegas, Nevada 89118
|
--
|
--
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0%
|
Series
A Preferred
|
All
Officers And Directors As A Group (Six Persons)
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462,222
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462,222
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100%
|
_________________________
*
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Less
than one percent (1%).
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(1)
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Applicable
percentages of beneficial ownership are based on 107,183,180 shares
of
Common Stock and 462,222 shares of Series A Preferred outstanding
on
August 10, 2006 for each shareholder. Each Series A Preferred share
shall be convertible into ten (10) shares of Common Stock in accordance
with that certain Certificate of Designation of Series A Preferred
Stock as filed with the Secretary of the State of the State of Delaware
on
August 3, 2006. Beneficial ownership is determined in accordance
within the rules of the SEC and generally includes voting of investment
power with respect to the securities. Shares subject to securities
exercisable or convertible into shares of Common Stock that are currently
exercisable or exercisable within sixty (60) days of August 10, 2006
are deemed to be beneficially owned by the person holding such options
for
the purpose of computing the percentage of ownership of such persons,
but
are not treated as outstanding for the purpose of computing the percentage
ownership of any other person.
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(2)
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Includes
10,313,928 shares of common stock directly held by Mr. Root and 462,222
shares of Series A Preferred which are convertible into 4,622,220
shares
of common stock in accordance with that Certain Certificate of Designation
as filed with the SEC on August 3, 2006. Does not include 666,667
shares
issuable to Mr. Root which have vested as of July 31, 2006 and 666,667
shares which will vest on July 31,
2007.
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(3)
|
Includes
1,536,568 shares held directly by Mr. Miller; and 3,155,802 shares
held in
the name of the Kerlee Intervivos Trust of which Mr. Miller is a
beneficiary. Does not include 500,000 shares which have vested as
a
restricted stock grant on July 31, 2006 and which shares have not
been
issued to date.
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(4)
|
Includes
345,000 shares held directly by Roger Aspey-Kent and 358,000 shares
underlying currently exercisable
warrants.
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(5)
|
Includes
15,749,298 shares of Common Stock and 462,222 shares of Series A
Preferred
which are convertible into 4,622,220 shares of common stock in accordance
with that Certain Certificate of Designation as filed with the SEC
on
August 3, 2006. Does not include 666,667 shares issuable to Mr. Root
which
have vested as of July 31, 2006 and 666,667 shares which will vest
on July
31, 2007. Does not include 500,000 shares issuable to Mr. Miller
which
have vested as a restricted stock grant on July 31,
2006.
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PROPOSALS
BY SECURITY HOLDERS
No
security holder has requested the Company to include any additional proposals
in
this Information Statement.
DIRECTORS
AND EXECUTIVE OFFICERS
Set
forth
below is certain information concerning our executive officers and directors,
including their age as of August 10, 2006. Our directors serve for a term
of two (2) years or until their successors are elected and qualified. Our
officers serve at the discretion of our Board of Directors. There are no family
relationships among our directors and officers.
Name
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Age
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Title
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Wayne
Allyn Root
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45
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Chairman
of the Board and Chief Executive Officer
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Douglas
R. Miller
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60
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President,
Chief Operating Officer, Secretary and Director
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Jeff
Johnson
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48
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Chief
Financial Officer
|
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Robert
L. Seale
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65
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Director,
Audit Committee (Chair) and Compensation Committee
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Roger
Aspey-Kent
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63
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Director,
Audit Committee
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|
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|
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Roger
L. Harrison
|
|
63
|
|
Director,
Compensation Committee
|
|
|
|
|
|
Wayne
Allyn Root
has
served as our Chief Executive Officer and Chairman of our Board of Directors
since our reorganization in July 2001. From 1999 to 2001, Mr. Root
served as Chairman and Chief Executive Officer of our subsidiary, Global Sports
Edge, Inc. From 1990 to 1999, Mr. Root served as a sports handicapper for
National Sports Service. Mr. Root earned his B.A. from Columbia University.
Mr. Root does not hold a directorship in any other public
company.
Douglas
R. Miller
has
served as our President, Chief Operating Officer, Secretary and a 1) director
since our reorganization in July 2001. Mr. Miller has also served as
our Chief Financial Officer from November 2001 to April 2003. From
1999 to 2001, Mr. Miller served as President of our subsidiary, Global
Sports Edge, Inc. From 1998 to 1999, Mr. Miller was the Chief Financial
Officer of Body Code International, an apparel manufacturer. Mr. Miller
holds a B.A. degree in economics from the University of Nebraska and an MBA
degree from Stanford University. Mr. Miller is a director of Players
Network (OTCBB: PNTV).
Jeff
Johnson
has
served as Chief Financial Officer of the Company since May 2003. From 1995
to 2002 Mr. Johnson was the Chief Financial Officer for KNPR Radio.
Mr. Johnson was the Chief Financial Officer for Display Ad for three (3)
years and prior to that Mr. Johnson was with the national public accounting
firms of Laventhal & Horwath and Coopers and Lybrand. Mr. Johnson does
not hold a directorship in any public company.
Roger
Aspey-Kent
has been
a member of the Board of Directors since January 1, 2004. He is currently
an executive director of a property development company based in Cyprus and
also
a non-executive director of a technology systems company based in London. He
is
an executive partner of Falcon Capital which is in the venture capital business
operating in various locations throughout Europe. From 1985 until 1990 he worked
in general management of Credit Commercial de France, in London. From 1980
until
1985 he worked as a senior associate director of Societe Generale, Merchant
Banking. While at Societe Generale he served as senior corporate finance advisor
for equity strategy and he was responsible for corporate syndications in London
and Southeast Asia and for aerospace business development in Asia. From 1963
until 1967 he worked as a corporate finance executive at Lazard Brothers &
Co. Ltd in London where he was responsible for corporate finance activity in
developing markets. Mr. Aspey-Kent currently serves as a director of EIG
Technology Ltd and Marrakesh Properties Ltd.
Robert
L. Seale
has been
a member of the Board of Directors since January 1, 2004. Currently,
Mr. Seale is a principal with GIF Services, Inc., a Manager of Managers
program managing the portfolios of state and local governments. From
January 1999 until December 2002, Mr. Seale served as Managing
Director of Gabelli Fixed Income, LLC where he was responsible for managing
the
$2 billion portfolio under management as a senior executive. From 1991 until
1999, he served as the Nevada State Treasurer where he was responsible for
investing the State’s $2.1 billion portfolio, managing the $28 billion cash
flow, and debt issuance. From 1981 until 1990, he was the Managing Partner
for
Pangborn & Co. CPA’s in Reno, Nevada. He graduated with a B.S. in
Accountancy from California State Polytechnic University in 1964.
Roger
L. Harrison
has been
a member of the Board of Directors since January 15, 2004. Since the early
1980’s Mr. Harrison has been involved in creating, producing and directing
films. Since 1999 he has been working on twenty-three (23) projects, three
(3)
of which are currently considered “hot”: Cousins (Jerry Lee Lewis, Mickey
Gilley, Jimmy Swaggart biopic); The Las Vegas Showgirls Meet the Furry Hamsters
from Hell (a Mel Brooks-type spoof); and a documentary on capitalism and the
republic form of democracy called “The Perfect Incubator”. Prior to his
involvement with films, Mr. Harrison worked for approximately fourteen (14)
years in the securities industry as an account executive with seven (7) years
at
Merrill Lynch, three (3) years as Regional Manager with E.F. Hutton & Co.,
and four (4) years with A.G. Edwards. His first film project was The Chosen
which he produced during 1981-1983. The Chosen was the winner of the Christopher
Award; best film and best actor (Rod Steiger) at the Montreal Film Festival;
and
the New York Film Critics, best screenplay and best director
awards.
Our
Board
of Directors held three (3) meetings during the fiscal year ended July 31,
2005. Each Director attended at least seventy-five percent (75%) of the
aggregate number of meetings held by the Board of Directors during the time
each
such Director was a member of the Board.
Director
Compensation
Commencing
in February 2004, our non-employee Directors receive $1,000 for each
meeting of our Board of Directors they attend in person. These fees may be
paid
in cash or with restricted shares of common stock at the discretion of the
Company. We also reimburse our directors for out-of-pocket expenses incurred
to
attend meetings of the board.
Our
executive officers hold office until the next annual meeting of Directors.
There
are no known arrangements or understandings between any director or executive
officer and any other person pursuant to which any of the above-named executive
officers or Directors was selected as an officer or Director.
Committees
We
have
two (2) standing committees: the Audit Committee and the Compensation
Committee.
Audit
Committee
Our
current Audit Committee was formed during February 2004. It attends and
reports to our Board of Directors with respect to matters regarding our
independent registered public accounting firm, including, without limitation:
annual review of their charter; approving the firm to be engaged as our
independent registered public accounting form for the next fiscal year;
reviewing with our independent registered public accounting firm the scope
and
results of their audit and any related management letter; consulting with our
independent registered public accounting firm and our management with regard
to
our accounting methods and adequacy of our internal accounting controls;
approving the professional services rendered by our independent registered
public accounting firm; reviewing the independence, management consulting
services and fees of our independent registered public accounting firm;
inquiring about significant risks or exposures and methods to minimize such
risk; ensuring effective use of audit resources; and preparing and supervising
the U.S. Securities and Exchange Commission reporting requirements. Our
Audit Committee currently consists of Robert L. Seale (Chair) and Roger
Aspey-Kent.
Compensation
Committee
Our
Compensation Committee was formed during February 2004 to attend to and
report to our Board of Directors with respect to the appropriate compensation
of
our directors and executive officers and is responsible for administering all
of
our employee benefit plans. The Compensation Committee currently consists of
Roger L. Harrison (Chair) and Robert L. Seale.
Section
16(A) Beneficial Ownership Reporting Compliance
Based
solely on a review of Forms 3 and 4 and amendments thereto furnished to us
during our most recent fiscal year, and Forms 5 and amendments thereto furnished
to us with respect to our most recent fiscal year and certain representations,
no persons who were either a director, officer, or beneficial owner of more
than
ten percent (10%) of our common stock, failed to file on a timely basis reports
required by Section 16(a) of the Exchange Act during the most recent fiscal
year, except that Wayne Allyn Root and Douglas R. Miller filed Form 4’s two
(2) months late reporting the vesting of restricted shares on July 31, 2005
which had previously been issued in accordance with their respective employment
agreements.
Code
Of Ethics
The
Board
of Directors adopted a Code of Ethics in October 2004, which applies to all
of the Company’s Executive Officers, Directors and employees. A copy of the Code
of Ethics is attached to our Annual Report on Form 10-KSB for the year ended
July 31, 2004.
EXECUTIVE
COMPENSATION
The
following table sets forth information regarding the executive compensation
for
the Company’s Chief Executive Officer and President during the fiscal years
ended July 31, 2005 and July 31, 2004 and each other officer(s) who
had total annual salary and bonus in excess of $100,000 during such
years.
SUMMARY
COMPENSATION TABLE
|
|
|
|
Annual
Compensation
|
|
Long
Term Compensation Awards
|
|
Name
and Principal Position
|
|
Year
|
|
Salary
|
|
Bonus
|
|
Other
Amount Compensation(1)
|
|
Securities
Underlying Options (Number of Shares)
|
|
All
Other Compensation
|
|
Wayne
Allyn Root; Chairman &
|
|
|
2005
|
|
$
|
175,000
|
|
|
-
|
|
$
|
388,271(2
|
)
|
|
-
|
|
|
-
|
|
Chief
Executive Officer
|
|
|
2004
|
|
$
|
175,000
|
|
|
-
|
|
$
|
334,994(2
|
)
|
|
4,000,000
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Douglas
R. Miller; President
|
|
|
2005
|
|
$
|
195,000
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
2004
|
|
$
|
175,000
|
|
|
-
|
|
|
-
|
|
|
1,500,000
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hollis
Barnhart; Vice
|
|
|
2005
|
|
$
|
150,000
|
|
|
-
|
|
$
|
43,677
|
|
|
-
|
|
|
-
|
|
President
- Sales
|
|
|
2004
|
|
$
|
150,000
|
|
|
-
|
|
$
|
58,395
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeff
Johnson; Chief Financial Officer
|
|
|
2005
|
|
$
|
108,000
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
____________________
(1)
|
These
payments are commissions paid on handicapping
selections.
|
(2)
|
Payments
to Mr. Root in 2005 includes $54,311 earned but not paid from
handicapping fees.
|
The
following table sets forth information concerning option exercises and option
holdings for the year ended July 31, 2005 with respect to our Chief
Executive Officer and each of our other executive officers:
AGGREGATE
OPTION EXERCISES IN FISCAL YEAR ENDED
JULY
31, 2005 AND OPTION VALUES AS OF JULY 31, 2005
|
|
|
|
|
|
Number
of Underlying Options
|
|
Securities
Unexercised
at
July 31, 2005
|
|
Value
of Unexercised
In-The-Money
Options
at
July 31, 2005
|
|
Name
|
|
Exercise
Price
|
|
Expiration
Date
|
|
Exercisable
|
|
Unexercisable
|
|
Exercisable
|
|
Unexercisable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
None.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DESCRIPTION
OF CAPITAL STOCK
General
The
current authorized capital stock of our Company consists of One Hundred Fifty
Million (150,000,000) shares of common stock, par value $0.0001 per share and
Five Million (5,000,000) shares of preferred stock, par value $0.0001 per share.
The following description is a summary of the capital stock of our Company
and
contains the material terms of our capital stock. Additional information can
be
found in our Certificate of Incorporation (as amended) and our
By-laws.
Common
Stock
The
Company is authorized to issue One Hundred Fifty Million (150,000,000) shares
of
Common Stock, par value $0.0001 per share.
All
shares have equal voting rights and are not assessable. Voting rights are not
cumulative, and, therefore, the holders of more than fifty percent (50%) of
our
Common Stock could, if they chose to do so, elect all the
Directors.
Upon
liquidation, dissolution or winding up of the Company, our assets, after the
payment of liabilities and any liquidation preferences on outstanding preferred
stock, will be distributed pro rata to the holders of the Common Stock. The
holders of the Common Stock do not have preemptive rights to subscribe for
any
of our securities and have no right to require us to redeem or purchase their
shares. The shares of Common Stock presently outstanding are, and the shares
of
Common Stock to be issued pursuant to this offering will be, upon issuance,
fully paid and nonassessable.
Holders
of common stock are entitled to share equally in dividends when, as and if
declared by the Board of Directors of the Company, out of funds legally
available therefor. We have not paid any cash dividends on our common stock,
and
it is unlikely that any such dividends will be declared in the foreseeable
future.
As
of
August 10, 2006, there are 107,183,180 shares of Common Stock issued and
outstanding and 41,616,820 shares reserved for future issuance pursuant to
our
anticipated financing with Cornell Capital Partners, LP.
Preferred
Stock
The
Company is authorized to issue Five Million (5,000,000) shares of preferred
stock, par value $0.0001 per share.
On
August
3, 2006, the Company filed a Certificate of Designation of Series A
Preferred stock (the “Designation”)
with
the Secretary of the State of the State of Delaware pursuant to which the
Company designated 462,222 shares of Convertible Series A Preferred for purposes
of issuing such 462,222 shares to our Chief Executive Officer, Mr. Wayne
Allyn Root, as partial consideration for the forgiveness of certain indebtedness
the Company owes to Mr. Root. The holders of Series A Preferred stock shall
have full voting rights and powers, and they shall be entitled to vote on all
matters as to which holders of Common Stock shall be entitled to vote, voting
together with the holders of Common Stock as one (1) class; and holders of
shares of Series A Preferred stock shall be entitled to cast, for each share
of
Series A Preferred stock, a number of votes equal to two hundred fifty (250)
shares of Common Stock. Furthermore, all shares of Series A Preferred stock
then
outstanding shall automatically convert without any further action of the
holders thereof into shares of Common Stock at the Conversion Rate (as defined
below) immediately upon the earlier of (i) thirty-six (36) months after the
Original Issue Date (as such term is defined in the Designation) (ii) at the
option of the holders thereof or (iii) upon the Sale (as such term is defined
in
the Designation) of the Corporation. The number of shares of Common Stock to
be
issued upon conversion of shares of any Series A Preferred Stock shall be issued
at the rate of ten (10) shares of Common Stock for every one (1) share of
Series A Preferred Stock (the “Conversion
Rate”).
The
Series A Preferred stock shall, with respect to rights on liquidation,
dissolution or winding up, rank (a) on a parity with the Common Stock (as if
the
Series A Preferred stock had been converted into Common Stock), and (b) junior
to any other class of preferred stock established after the Original Issue
Date
(as defined in the Certificate of Designation) by the Board of Directors, the
terms of which expressly provide that such class will rank senior, as to
liquidation rights or otherwise, to the Series A Preferred stock.
Shares
of
our preferred stock may be issued in series from time to time with such
designations rights, preferences and limitations as our Board of Directors
may
determine by resolution. The rights, preferences and limitations of separate
series of preferred stock may differ with respect to such matters as may be
determined by the Board of Directors, including, without limitation, the rate
of
dividends, method and nature of payment of dividends, terms of redemption,
amounts payable on liquidation, sinking fund provisions (if any), conversion
rights (if any), and voting rights. The potential exists, therefore, that
preferred stock might be issued which would grant dividend preferences and
liquidation preferences to preferred stockholders over common stockholders.
Unless the nature of a particular transaction and applicable statutes require
such approval, the Board of Directors has the authority to issue these shares
without stockholder approval. The issuance of preferred stock may have the
affect of delaying or preventing a change in control of GWIN, Inc. without
any
further action by stockholders.
Options
The
Company had no options outstanding as of August 10, 2006.
Warrants
The
Company issued no warrants during the fiscal year ended July 31,
2006.
Securities
Issued To Laurus Master Fund, Ltd.
On
December 1, 2004, the Company closed on a transaction with Laurus Master
Fund Ltd. (“Laurus”)
in
which the Company borrowed $600,000 from Laurus pursuant to a $600,000
Convertible Term Note (the “Note”)
as a
provision of the Note the Company registered 9,969,900 shares of Common Stock
and the accompanying warrants for potential conversion and the Company issued
a
seven (7) year warrant to purchase 2,666,667 shares of the Company's common
stock at an exercise price of $0.09 per share. The Note is due in three (3)
years, bears interest at thirteen percent (13%), with the interest being payable
monthly; and principal payments are amortized over the term of the loan with
the
first payment due February 1, 2005; and the payments of principal and
interest may be paid using shares of the Company's Common Stock at a price
of
$0.073, subject to adjustment, if certain conditions are met.
The
Note
is secured by (a) a personal guaranty of Mr. Wayne Allyn Root, the Company’s
Chief Executive Officer; (b) a pledge by Mr. Root of shares of the Company;
(c)
an assignment of all of the funds which are released from certain credit card
security accounts; and (d) a master security agreement covering all of the
assets of the Company.
The
loan
and sale of the warrant were made pursuant to a Securities Purchase Agreement
with Laurus. Laurus has no relationship with the Company or any of its
affiliates other than the fact that Laurus entered into a similar transaction
with the Company in 2002, and the Company still owed to Laurus approximately
$350,000 as of July 31, 2006 on the original loan transaction. The Company
paid to Laurus Capital Management, LLC, the Manager of Laurus, a fee of $21,000
plus $10,000 for its expenses.
Dividends
The
Company has not declared or paid cash dividends on its Common Stock since its
inception and does not anticipate paying such dividends in the foreseeable
future. The payment of dividends may be made at the discretion of the Board
of
Directors at that time and will depend upon, among other factors, on the
Company’s operations.
Anti-Takeover
Effects Of Provisions Of The Certificate Of Incorporation, By-laws And Delaware
Law
Authorized
but Unissued Stock.
Authorized but unissued shares of Common Stock and preferred stock would be
available for future issuance without our stockholders’ approval. These
additional shares may be utilized for a variety of corporate purposes including,
but not limited to, future public or direct offerings to raise additional
capital, corporate acquisitions and employee incentive plans. The issuance
of
such shares may also be used to deter a potential takeover of the Company that
may otherwise be beneficial to stockholders by diluting the shares held by
a
potential suitor or issuing shares to a stockholder that will vote in accordance
with the desire of the Board of Directors. A takeover may be beneficial to
stockholders because, among other reasons, a potential suitor may offer
stockholders a premium for their shares of stock compared to the then-existing
market price.
The
existence of authorized but unissued and unreserved shares of preferred stock
may enable the Board of Directors to issue shares to persons friendly to current
management, which would render more difficult or discourage an attempt to obtain
control of the Company by means of a proxy contest, tender offer, merger or
otherwise, and thereby protect the continuity of the Company’s
management.
Transfer
Agent And Registrar
Colonial
Stock Transfer, Inc. is the transfer agent and registrar of our common stock.
Its address is 66 Exchange Place, Salt Lake City, Utah 84111, and its telephone
number is (801) 355-5740.
INTEREST
OF CERTAIN PERSONS IN OR OPPOSITION TO MATTERS TO BE ACTED
UPON
(a) No
officer or Director of the Company has any substantial interest in the matters
to be acted upon, other than his role as an officer or Director of the Company.
(b) No
Director of the Company has informed the Company that he intends to oppose
the
proposed actions to be taken by the Company as set forth in this Information
Statement.
PROPOSAL
1 - ADOPTION OF THE GWIN, INC. 2006 STOCK INCENTIVE PLAN
Our
Company’s Board of Directors proposes the adoption of the GWIN, Inc. 2006 Stock
Incentive Plan (the “Plan”).
Purpose
Of Adopting The GWIN, Inc. 2006 Stock Incentive Plan
The
purpose of the adoption of the Plan is to promote the long-term growth and
profitability of the Company by (a) providing key people with incentives to
improve shareholder value and to contribute to the growth and financial success
of the Company, and (b) enabling the Company to attract, retain and reward
the
best-available persons. The Plan permits the granting of stock options
(including incentive stock options qualifying under Code Section 422 and
nonqualified stock options), stock appreciation rights, restricted or
unrestricted share awards, phantom stock, deferred share units, performance
awards, other stock-based awards, or any combination of the foregoing. Equity
incentives have been a significant component of compensation for directors,
officers, consultants and employees. We believe that this practice will enable
the Company to attract and retain highly qualified and experienced individuals.
By linking directors, officers, consultants and employees’ compensation to
corporate performance, their reward is related directly to the Company’s
success. We believe the use of equity incentives increases motivation to improve
shareholder value.
Description
Of The GWIN, Inc. 2006 Stock Incentive Plan
Directors,
officers, consultants and employees of the Company and its Affiliates, as well
as advisors, sales representatives, other individuals performing bona fide
services to or for the Company and its Affiliates, and other individuals in
connection with their hiring, retention, or otherwise may be granted common
stock options to purchase shares of Common Stock (both incentive stock
options, or “ISOs”,
and
non-ISOs, though only employees may receive ISOs), stock appreciation
rights (“SARs”),
restricted shares or units, unrestricted shares, deferred share units,
performance units, phantom stock and other stock-based awards under the Plan.
In
the discussion below, the term “Awards”
refers
to all forms of award that the Plan authorizes. Upon the effectiveness of the
Plan, the Company will have three (3) non-employee Directors, two (2)
employee Directors, and approximately forty (40) additional employees, and
no
other individuals expected to be eligible to receive Awards under the Plan.
The
following table sets forth the benefits and/or amounts that will be received
by
or allocated to each eligible participant under the Plan:
NEW
PLAN BENEFITS
|
|
GWIN,
Inc. 2006 Stock Incentive Plan
|
|
Name
and Position
|
|
Dollar
Value ($)
|
|
Number
of Units
|
|
Wayne
Allyn Root, CEO and Chairman of the Board
|
|
|
|
|
|
None
To Date
|
|
Douglas
R. Miller, President, Chief Operating Officer and Director
|
|
|
-
|
|
|
None
To Date
|
|
Jeff
Johnson, Chief Financial Officer
|
|
|
-
|
|
|
None
To Date
|
|
Robert
L. Seale, Director
|
|
|
|
|
|
None
To Date
|
|
Roger
Aspey-Kent, Director
|
|
|
-
|
|
|
None
To Date
|
|
Roger
L. Harrison, Director
|
|
|
-
|
|
|
None
To Date
|
|
Executive
Group
|
|
|
-
|
|
|
None
To Date
|
|
Non-Executive
Director Group
|
|
|
-
|
|
|
None
To Date
|
|
Non-Executive
Officer Employee Group
|
|
|
-
|
|
|
None
To Date
|
|
|
|
|
|
|
|
|
|
On
a
calendar year basis, an amount of shares of Common Stock equivalent to fifteen
percent (15%) of the fully diluted shares outstanding on January 2 of any
such calendar year (without taking into account outstanding Awards at the end
of
the prior calendar year) may be allocated, at the discretion of the
Administrator, to be granted as Awards under the Plan, less Awards outstanding
at the end of the prior calendar year. In no event shall the number of shares
which may be allocated as Awards under the Plan be less than Twenty-Five Million
(25,000,000) shares of Common Stock for a given calendar year.
Notwithstanding
this limit, not more than an aggregate of ten percent (10%) of the total shares
within the plan may be subject to ISO Awards during the term of the Plan, and
not more than an aggregate of ten percent (10%) of the total shares within
the
plan may be subject to Awards in a form other than options and SARs. Any
limitations on the maximum number of options granted to any director, officer,
or employee under the plan shall be determined from time to time at the sole
discretion of the Administrator, including any such maximum number with respect
to any individual during the first fiscal year that the individual is employed
with the Company or an Affiliate. The number of shares subject to any such
limits may be adjusted in the event of certain changes in the capitalization
of
the Company.
The
Board
will administer the Plan or a committee appointed by the Board (referred to
as the “Administrator”).
The
Administrator will have authority, subject to the terms of the Plan, to
determine when and to whom to make grants under the plan, the type of Award
and
the number of shares to be covered by the grants, the fair market value of
shares, the terms of the grants, which includes the exercise price of the shares
of Common Stock covered by options, any applicable vesting provisions, and
conditions under which Awards may be terminated, expired, cancelled, renewed
or
replaced, and to construe and interpret the terms of the Plan and
Awards.
Options.
Options
granted under the Plan provide participants with the right to purchase shares
at
a predetermined exercise price. The Administrator may grant ISOs and non-ISOs;
provided that ISO treatment is not be available for options that become first
exercisable in any calendar year for shares that have a value exceeding
$100,000 (based upon the fair market value of the shares on the option
grant date).
SARs.
A share
appreciation right generally permits a participant who receives it to receive,
upon exercise, cash and/or shares equal in value to the excess of (a) the
fair market value, on the date of exercise, of the shares with respect to which
the SAR is being exercised, over (b) the exercise price of the SAR for such
shares. The Administrator may grant SARs in tandem with options, or
independently of them. SARs that are independent of options may limit the value
payable on its exercise to a percentage, not exceeding one hundred percent
(100%), of the excess value.
Exercise
Price for Options and SARs.
The per
share purchase price under each option or SAR granted shall be established
by
the Administrator at the time the option is granted. However, the per share
purchase price for non-ISOs shall not be less than one hundred percent (100%)
of
the fair market value of a share of Common Stock on the date the option is
granted. The exercise price of ISOs may not be less than one hundred percent
(100%) of the fair market value on the grant date of the underlying shares
subject to the Award for participants who own more than ten percent (10%) of
our
shares on the grant date.
Exercise
of Options and SARs.
Each
option granted pursuant to the Plan shall be for such term as determined by
the
Administrator; provided, however, that no option shall be exercisable sooner
than one (1) year nor more than ten (10) years from the date it was
granted (five (5) years in the case of ISOs granted to employees who, at
the time of grant, own more than ten percent (10%) of the Company’s outstanding
shares). To the extent exercisable in accordance with the agreement granting
them, an option or SAR may be exercised in whole or in part, and from time
to
time during its term; subject to earlier termination relating to a holder’s
termination of employment or service. With respect to options, the Administrator
has the discretion to accept payment of the exercise price in any of the
following forms (or combination of them): cash or check in U.S. dollars,
certain shares, and cashless exercise under a program the Administrator
approves.
Restricted
Shares, Restricted Share Units, Unrestricted Shares, Phantom Stock, Deferred
Share Units, and Other Stock-Based Awards.
Under
the Plan, the Administrator may grant restricted shares and restricted share
units that are forfeitable until certain vesting requirements are met, and
may
grant unrestricted shares as to which the participant’s interest is immediately
vested. For restricted Awards, the Plan provides the Administrator with
discretion to determine the terms and conditions under which a participant’s
interests in such Awards becomes vested. In addition, the Administrator may
grant phantom stock (Awards denominated n stock-equivalent units), deferred
share units, and other stock-based Awards. Deferred share units may only be
awarded to certain directors, consultants, or select members of management
to
defer their receipt of compensation payable in cash or shares (including
shares that would otherwise be issued upon the vesting of restricted shares
and
restricted share units). Deferred share units represent a future right to
receive shares.
Whenever
shares are released pursuant to these Awards, the participant will be entitled
to receive additional shares that reflect any stock dividends that the Company’s
shareholders received between the date of the Award and issuance or release
of
the shares. Likewise, a participant will be entitled to receive a cash payment
reflecting cash dividends paid to the Company’s shareholders during the same
period. Such cash dividends will accrue simple interest from their payment
date
to the Company’s shareholders until paid in cash when the shares to which they
relate are either released from restrictions in the case of restricted shares
or
issued in the case of restricted share units.
Performance
Awards.
The
Plan authorizes the Administrator to grant performance-based Awards in the
form
of performance units that the Administrator may, or may not, designate as
“Performance
Compensation Awards”
that
are intended to be exempt from Code section 162(m) limitations. In either case,
performance-based Awards vest and become payable based upon the achievement,
within the specified period of time, of performance objectives applicable to
the
individual, the Company, or any affiliate. Performance-based Awards are payable
in shares, cash, or some combination of the two; the individual participant
limit of shares granted per performance period shall be subject to the sole
determination of the Administrator. The Administrator decides the length of
performance periods, but the periods may not be less than one (1) fiscal year
of
the Company.
With
respect to Performance Compensation Awards, the Plan requires that the
Administrator specify in writing the performance period to which the Award
relates, and an objective formula by which to measure whether and the extent
to
which the Award is earned on the basis of the level of performance achieved
with
respect to one or more performance measures. Once established for a performance
period, the performance measures and performance formula applicable to the
Award
may not be amended or modified in a manner that would cause the compensation
payable under the Award to fail to constitute performance-based compensation
under Code section 162(m).
Under
the
Plan, the possible performance measures for Performance Compensation Awards
include basic, diluted or adjusted earnings per share; sales or revenue;
earnings before interest, taxes and other adjustments (in total or on a per
share basis); basic or adjusted net income; returns on equity, assets, capital,
revenue or similar measure; economic value added; working capital; total
shareholder return; and product development, product market share, research,
licensing, litigation, human resources, information services, mergers,
acquisitions, and sales of assets of affiliates or business units. Each measure
will be, to the extent applicable, determined in accordance with generally
accepted accounting principles as consistently applied by the Company (or
such other standard applied by the Administrator) and, if so determined by
the
Administrator, and in the case of a Performance Compensation Award, to the
extent permitted under Code section 162(m), adjusted to omit the effects of
extraordinary items, gain or loss on the disposal of a business segment, unusual
or infrequently occurring events and transactions and cumulative effects of
changes in accounting principles. Performance measures may vary from performance
period to performance period, and from participant to participant, and may
be
established on a stand-alone basis, in tandem or in the
alternative.
Income
Tax Withholding.
As a
condition for the issuance of shares pursuant to Awards, the Plan requires
satisfaction of any applicable federal, state, local, or foreign withholding
tax
obligations that may arise in connection with the Award or the issuance of
shares.
Transferability.
Awards
may not be sold, pledged, assigned, hypothecated, transferred, or disposed
of
other than by will or the laws of descent and distribution.
Certain
Corporate Transactions.
The
Administrator shall equitably adjust the number of shares covered by each
outstanding Award, and the number of shares that have been authorized for
issuance under the Plan but as to which no Awards have yet been granted or
that
have been returned to the Plan upon cancellation, forfeiture, or expiration
of
an Award, as well as the price per share covered by each such outstanding Award,
to reflect any increase or decrease in the number of issued shares resulting
from a stock split, reverse stock split, stock dividend, combination,
recapitalization or reclassification of the shares, or any other increase or
decrease in the number of issued shares effected without receipt of
consideration by the Company. In the event of any such transaction or event,
the
Administrator may provide in substitution for any or all outstanding Awards
under the Plan such alternative consideration (including securities of any
surviving entity) as it may in good faith determine to be equitable under the
circumstances and may require in connection therewith the surrender of all
Awards so replaced. In any case, such substitution of securities will not
require the consent of any person who is granted Awards pursuant to the
Plan.
In
addition, in the event or in anticipation of a Change in Control (as
defined in the Plan), outstanding options and SARs will terminate upon the
effective time of the Change in Control, unless provision is made in connection
with the transaction for the continuation or assumption of such Awards by,
or
for the substitution and the equivalent Awards of, the surviving or successor
entity or a parent thereof. In the event of such termination, the holders of
options and SARs under the
Plan
will
be permitted, for a period of at least twenty days prior to the effective time
of the Change in Control, to exercise all portions of such Awards that are
then
exercisable or which become exercisable upon or prior to the effective time
of
the Change in Control; provided, that any such exercise of any portion of such
an Award which becomes exercisable as a result of such Change in Control shall
be deemed to occur immediately prior to the effective time of such Change in
Control.
Term
of the Plan; Amendments or Termination.
The
Board has the power to terminate, amend or modify the Plan at any time. If
the
Board does not take action to earlier terminate the Plan, it will terminate
on
December 13, 2015. Certain amendments may require the approval of the
Company’s shareholders. No amendment, suspension, or termination of the Plan
shall materially and adversely affect Awards that previously had been granted
without the written consent of the holders of those options unless it relates
to
an adjustment pursuant to certain transactions that change the Company’s
capitalization or it is otherwise mutually agreed between the participant and
the Administrator. Notwithstanding the foregoing, the Administrator may amend
the Plan to eliminate provisions which are no longer necessary as a result
of
changes in tax or securities laws or regulations, or in the interpretation
thereof.
Expected
Federal Income Tax Consequences.
The
following is a general discussion of certain U.S. federal income tax
consequences relating to Awards granted under the Plan. This discussion does
not
address all aspects of U.S. federal income taxation, does not discuss state,
local and foreign tax issues and does not discuss considerations applicable
to a
holder who is, with respect to the United States, a non-resident alien
individual. This summary of federal income tax consequences does not purport
to
be complete and is based upon interpretations of the existing laws, regulations
and rulings which could be altered materially with enactment of any new tax
legislation.
Under
the
United States Internal Revenue Code, the Company will generally be entitled
to a
deduction for federal income tax purposes at the same time and in the same
amount as the ordinary income that participants recognize pursuant to
Awards (subject to the participant’s overall compensation being reasonable,
and to the discussion below with respect to Code section 162(m)). For
participants, the expected U.S. tax consequences of Awards are as
follows:
Non-ISOs.
A
participant will not recognize income at the time a non-ISO is granted. At
the
time a non-ISO is exercised, the participant will recognize ordinary income
in
an amount equal to the excess of (i) the fair market value of the shares
issued to the participant on the exercise date over (ii) the exercise price
paid for the shares. At the time of sale of shares acquired pursuant to the
exercise of a non-ISO, the appreciation (or depreciation) in value of the
shares after the date of exercise will be treated either as short-term or
long-term capital gain (or loss) depending on how long the shares have been
held.
ISOs.
A
participant will not recognize income upon the grant of an ISO. There are
generally no tax consequences to the participant upon exercise of an
ISO (except the amount by which the fair market value of the shares at the
time of exercise exceeds the option exercise price is a tax preference item
possibly giving rise to an alternative minimum tax). If the shares are not
disposed of within two years from the date the ISO was granted or within one
year after the ISO was exercised, any gain realized upon the subsequent
disposition of the shares will be characterized as long-term capital gain and
any loss will be characterized as long-term capital loss. If both of these
holding period requirements are not met, then a “disqualifying disposition”
occurs and (i) the participant recognizes gain in the amount by which the
fair market value of the shares at the time of exercise exceeded the exercise
price for the ISO and (ii) any remaining amount realized on
disposition (except for certain “wash” sales, gifts or sales to related
persons) will be characterized as capital gain or loss.
Share
Appreciation Rights.
A
participant to whom a SAR is granted will not recognize income at the time
of
grant of the SAR. Upon exercise of a SAR, the participant must recognize taxable
compensation income in an amount equal to the value of any cash or shares that
the participant receives.
Restricted
Shares, Restricted Share Units, Deferred Share Units, Performance Awards, and
Unrestricted Shares.
In
general, a participant will not recognize income at the time of grant of
restricted shares, restricted share units, deferred share units or performance
Awards, unless the participant elects with respect to restricted shares or
restricted share units to accelerate income taxation to the date of the Award.
In this event, a participant would recognize ordinary income equal to the excess
of the market value of the restricted shares over any amount the participant
pays for them (in which case subsequent gain or loss would be capital in
nature). In the absence of an election to accelerate income taxation to the
date
of an Award, a participant must recognize taxable compensation income equal
to
the value of any cash or unrestricted shares that the participant receives.
The
same tax consequences apply to performance Awards and Awards of unrestricted
shares.
Special
Tax Provisions.
Under
certain circumstances, the accelerated vesting, cash-out or accelerated lapse
of
restrictions on Awards in connection with a change in control of the Company
might be deemed an “excess parachute payment” for purposes of the golden
parachute tax provisions of Code section 280G, and the participant may be
subject to a twenty percent (20%) excise tax and the Company may be denied
a tax
deduction. Furthermore, the Company may not be able to deduct the aggregate
compensation in excess of $1,000,000 attributable to Awards that are not
“performance-based” within the meaning of Code section 162(m) in certain
circumstances. The Plan is designed to permit Awards that qualify as
performance-based compensation for this purpose.
Compliance
with Section 409A of The Code.
The
Company intends that all Options granted under the Plan not be considered to
provide for the deferral of compensation under Section 409A of the Code and
that
any other Award that does provide for such deferral of compensation shall comply
with the requirements of Section 409A of the Code and, accordingly, this Plan
shall be so administered and construed. Further, the Company may modify
the Plan and any Award to the extent necessary to fulfill this
intent.
Recommendation
Of The Board of Directors
Our
Board
unanimously recommended a vote “FOR”
the
approval of the adoption of the GWIN, Inc. 2006 Stock Incentive
Plan.
No
Voting Of Shareholders Required
We
are
not soliciting any votes with regard to this Proposal to adopt the GWIN, Inc.
2006 Stock Incentive Plan. The Series A Preferred shareholder who has indicated
an intention to vote in favor of this Proposal holds 56.51% of the total issued
and outstanding shares of voting capital stock and accordingly, this principal
shareholder as sufficient shares to approve the Proposal.
PROPOSAL
2 - AMENDMENT TO CERTIFICATE OF INCORPORATION
TO INCREASE AUTHORIZED COMMON STOCK
The
Company’s Board of Directors proposes an amendment to the Company’s Certificate
of Incorporation (as amended) to increase the number of authorized shares of
Common Stock, par value $0.001 per share, from 150,000,000 to 750,000,000
shares.
Purpose
Of Increasing Number Of Authorized Shares Of Common Stock
The
Securities Purchase Agreement. Some
of
the additional authorized shares may be used in connection with our anticipated
financing under a Securities Purchase Agreement (the “SPA”),
by
and between the Company and Cornell Capital Partners, LP (“Cornell
Capital”).
Pursuant to the SPA, the Company will sell to Cornell Capital, and Cornell
Capital shall purchase from the Company, convertible debentures (collectively,
the “Debentures”)
in the
aggregate principal amount of approximately One Million Five Hundred Thousand
Dollars ($1,500,000), plus accrued interest, which are convertible into shares
of the Company’s Common Stock at Cornell Capital’s discretion. The Company will
also issue to Cornell Capital warrants (the “Warrants”)
to
purchase up to 23,000,000 shares of Common Stock at Cornell Capital’s discretion
(the Debentures and the Warrants are collectively referred to herein as the
“Financing”).
In
connection with the Financing, the Company has agreed to transfer up to
183,333,333 shares of Common Stock that will be delivered to an escrow agent
and
irrevocably pledged pursuant to a Pledge and Escrow Agreement, which such Pledge
and Escrow Agreement will be executed contemporaneously with the
SPA.
General
Corporate Purposes. In
addition to the reasons set forth above, the Company’s Board of Directors
believes that it is desirable to have additional authorized shares of Common
Stock available for other possible future financings, possible future
acquisition transactions and other general corporate purposes. The Company’s
Board of Directors believes that having such additional authorized shares of
Common Stock available for issuance in the future should give the Company
greater flexibility and may allow such shares to be issued without the expense
and delay of a special shareholders’ meeting. Although such issuance of
additional shares with respect to future financings and acquisitions would
dilute existing shareholders, management believes that such transactions would
increase the value of the Company to its shareholders.
Amendment
of Certificate of Incorporation. The
amendment to the Company’s Certificate of Incorporation (as amended) provides
for the authorization of Six Hundred Million (600,000,000) additional shares
of
the Company’s Common Stock. As of August 10, 2006, 107,183,180 shares of
the Company’s Common Stock were issued and outstanding.
The
amendment to the Company’s Certificate of Incorporation (as amended) shall be
filed with the Delaware Secretary of State so that Article 4 of the
Certificate of Incorporation (as amended) shall read as follows:
“FOURTH:
This Corporation is authorized to issue two (2) classes of shares designated
respectively “Common Stock” and “Preferred Stock” and referred to herein as
Common Stock or Common Shares and Preferred Stock or Preferred Shares,
respectively. The total number of shares of Common Stock this Corporation is
authorized to issue is 750,000,000 and each such share shall have a par value
of
$0.0001, and the total number of shares of Preferred Stock this Corporation
is
authorized to issue is 5,000,000 and each such share shall have a par value
of
$0.0001. The Preferred Shares may be issued from time to time in one or more
series. The board of directors is authorized to fix the number of shares of
any
series of Preferred Shares and to determine the designation of any such series.
The board of directors is also authorized to determine or alter the rights,
preferences, privileges and restrictions granted to or imposed upon any wholly
unissued series of Preferred Shares and, within the limits and restrictions
stated in any resolution or resolutions of the board of directors originally
fixing the number of shares constituting any series, to increase or decrease
(but not below the number of shares of any such series then outstanding) the
number of shares of any series subsequent to the issue of shares of that
series.”
Advantages
And Disadvantages Of Increasing Authorized Shares
There
are
certain advantages and disadvantages of voting for an increase in the Company’s
authorized Common Stock. The advantages include:
|
·
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Complying
with the terms of the Agreement with Cornell
Capital.
|
|
·
|
The
ability to raise capital by issuing capital stock under the transaction
described above, or other financing
transactions.
|
|
·
|
To
have shares of Common Stock available to pursue business expansion
opportunities, if any.
|
The
disadvantages include:
|
·
|
Dilution
to the existing shareholders, including a decrease in our net income
per
share in future periods. This could cause the market price of our
stock to
decline.
|
|
·
|
The
issuance of authorized but un-issued stock could be used to deter
a
potential takeover of the Company that may otherwise be beneficial
to
shareholders by diluting the shares held by a potential suitor or
issuing
shares to a shareholder that will vote in accordance with the desires
of
the Company’s Board of Directors, at that
time.
|
Recommendation
Of The Board Of Directors
Our
Board
unanimously recommended
the
approval of an amendment to our Company’s Certificate of Incorporation (as
amended) to increase the number of authorized shares of Common Stock, par value
$0.001 per share, from One Hundred Fifty Million (150,000,000) to Seven
Hundred Fifty Million (750,000,000) shares.
No
Voting Of Shareholders Required
We
are
not soliciting any votes with regard
to the
proposal to amend the Company’s Certificate of Incorporation (as amended) to
increase the number of authorized shares of common stock, par value $0.001
per
share, from One Hundred Fifty Million (150,000,000) to Seven Hundred Fifty
Million (750,000,000) shares. The principal shareholder that has indicated
an intention to vote in favor of this Proposal holds 56.51%
of the
total issued and outstanding shares of voting stock and accordingly, this
principal shareholder has sufficient shares to approve the
Proposal.
PROPOSAL
3 - AMENDMENT TO CERTIFICATE OF INCORPORATION TO CHANGE NAME OF
COMPANY
Our
Company’s Board of Directors proposes to change our Company’s name from GWIN,
Inc. to Winning Edge International, Inc.
Purpose
Of Changing The Name Of The Company
The
Board
believes that it is in the Company’s best interest to have the Company change
its name because the Company plans on marketing its current services in areas
outside the United States and the name “Winning Edge International, Inc.” better
represents the global appeal of our services.
Amendment
To Certificate Of Incorporation
The
Company shall file with the Secretary of State of the State of Delaware a
Certificate of Amendment to the Certificate of Incorporation (as amended) of
the
Company which shall indicate the new name of the Company to be Winning Edge
International, Inc. The amendment to the Company’s Certificate of Incorporation
(as amended) shall be filed with the Delaware Secretary of State so that
Article 1 of the Certificate of Incorporation (as amended) shall read as
follows:
“FIRST:
The name of the Corporation (hereinafter called the “Corporation”) is Winning
Edge International, Inc.”
Recommendation
Of The Board Of Directors
Our
Board
unanimously recommended a vote “FOR” the approval to change the company name
from GWIN, Inc. to Winning Edge International, Inc. upon filing a Certificate
of
Amendment to the Certificate of Incorporation (as amended) with the Secretary
of
State of the State of Delaware with the new name Winning Edge International,
Inc.
No
Voting Of Shareholders Required
We
are
not soliciting any votes with regard to the proposal to change the name of
the
Company from GWIN, Inc. to Winning Edge International, Inc. upon filing a
Certificate of Amendment to the Certificate of Incorporation (as amended) with
the Secretary of State of the State of Delaware with the new name Winning Edge
International, Inc. The Series A Preferred shareholder who has indicated an
intention to vote in favor of this Proposal holds 56.51% of the total issued
and
outstanding shares of voting capital stock and accordingly, this principal
shareholder has sufficient shares to approve the Proposal.
ADDITIONAL
INFORMATION
Additional
information concerning GWIN, Inc., including its annual and quarterly reports
filed with the SEC, may be accessed through the SEC’s EDGAR archives at
www.sec.gov.
DELIVERY
OF DOCUMENTS TO SECURITY HOLDERS SHARING AN ADDRESS
Only
one (1) Information Statement is being delivered to multiple security
holders sharing an address unless the Company has received contrary instructions
from one or more of the security holders. The Company shall deliver promptly
upon written or oral request a separate copy of the Information Statement to
a
security holder at a shared address to which a single copy of the documents
was
delivered. A security holder can notify the Company that the security holder
wishes to receive a separate copy of the Information Statement by sending a
written request to the Company at 5052 South Jones Boulevard, Las Vegas, Nevada
89118; or by calling the Company at (702) 967-6000 and requesting a copy of
the Information Statement. A security holder may utilize the same address and
telephone number to request either separate copies or a single copy for a single
address for all future Information Statements and annual reports.
|
By
Order of the Board of Directors
|
|
|
|
/s/
Wayne Allyn Root
|
|
Name: Wayne
Allyn Root
|
|
Title: Chief
Executive Officer
|
|
|
Las
Vegas, Nevada
August 11,
2006
APPENDIX
A
GWIN,
INC.
2006
STOCK INCENTIVE PLAN
1. Establishment,
Purpose and Types of Awards
GWIN,
Inc., a Delaware corporation (the “Company”),
hereby establishes the
GWIN, INC. 2006 STOCK INCENTIVE PLAN (the
“Plan”).
The
purpose of the Plan is to promote the long-term growth and profitability of
the
Company by (a) providing key people with incentives to improve shareholder
value and to contribute to the growth and financial success of the Company
and (b) enabling the Company to attract, retain and reward the
best-available persons. The Plan permits the granting of stock
options (including incentive stock options qualifying under Code
Section 422 and nonqualified stock options), stock appreciation rights,
restricted or unrestricted share awards, phantom stock, deferred share units,
performance awards, other stock-based awards, or any combination of the
foregoing.
2. Definitions
Under
this Plan, except where the context otherwise indicates, the following
definitions apply:
(a) “Affiliate”
means
any entity, whether now or hereafter existing, which controls, is controlled
by,
or is under common control with, the Company (including, but not limited
to, joint ventures, limited liability companies, and partnerships). For this
purpose, “control” shall mean ownership of fifty percent (50%) or more of
the total combined voting power or value of all classes of stock or interests
of
the entity.
(b) “Applicable
Law”
means
the legal requirements relating to the administration of options and share-based
plans under applicable U.S. federal and state laws, the Code, any applicable
stock exchange or automated quotation system rules or regulations, and the
applicable laws of any other country or jurisdiction where Awards are granted,
as such laws, rules, regulations and requirements shall be in place from time
to
time.
(c) “Award”
means
any stock option, stock appreciation right, stock award, phantom stock award,
performance award or other stock-based award.
(d) “Board”
means
the Board of Directors of the Company.
(e) “Cause”
for
termination of a Participant’s Continuous Service either has the meaning set
forth in any employment-related written agreement between the Participant and
the Company, or means that the Participant is terminated from employment or
other service with the Company or an Affiliate for any of the following reasons
after receiving both a specific written notice of the conduct that the Board
considers “Cause” and a reasonable opportunity to cure such conduct (if it
is reasonably capable of being cured): (i) the Participant’s willful
failure to substantially perform his or her duties and responsibilities to
the
Company or deliberate violation of a material Company policy; (ii) the
Participant’s commission of any material act or acts of fraud, embezzlement,
dishonesty or other willful misconduct; (iii) the Participant’s material
unauthorized use or disclosure of any proprietary information or trade secrets
of the Company or any other party to whom the Participant owes an obligation
of
nondisclosure as a result of his or her relationship with the Company;
or (iv) Participant’s willful and material breach of any of his or her
obligations under any written agreement or covenant with the Company. The Board
shall in its discretion determine whether or not a Participant is being
terminated for Cause. The foregoing definition does not in any way limit the
Company’s ability to terminate a Participant’s employment or consulting
relationship at any time, and the term “Company” will be interpreted herein to
include any Affiliate or successor thereto, if appropriate.
(f) “Change
in Control”
means: (i) the acquisition (other than from the Company) by any
Person, as defined in this Section 2(f), of the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act of fifty percent (50%) or more of (A) the then outstanding shares
of the securities of the Company; or (B) the combined voting power of the
then outstanding securities of the Company entitled to vote generally in the
election of Directors (the “Company
Voting Stock”); (ii)
the closing of a sale or other conveyance of all or substantially all of the
assets of the Company; or (iii) the effective time of any merger, share
exchange, consolidation, or other business combination of the Company if
immediately after such transaction persons who hold a majority of the
outstanding voting securities entitled to vote generally in the election of
directors of the surviving entity (or the entity owning one hundred
percent (100%) of such surviving entity) are not persons who, immediately
prior to such transaction, held the Company Voting Stock. For purposes of this
Section 2(f), a “Person”
means
any individual, entity or group within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act other than: employee benefit plans sponsored or
maintained by the Company and corporations controlled by the
Company.
(g) “Code”
means
the Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder.
(h) “Common
Stock”
means
shares of common stock of the Company, par value $0.01 per Share.
(i) “Consultant”
means
any person, including an advisor, who is engaged by the Company or any Affiliate
to render services and is compensated for such services.
(j) “Continuous
Service”
means
the absence of any interruption or termination of a Participant’s service as an
Employee, Director or Consultant. Continuous Service shall not be considered
interrupted in the case of: (i) sick leave; (ii) military
leave; (iii) any other leave of absence approved by the Committee, provided
that such leave is for a period of not more than ninety (90) days, unless
reemployment upon the expiration of such leave is guaranteed by contract or
statute, or unless provided otherwise pursuant to Company policy adopted from
time to time; (iv) changes in status from Director to advisory director or
emeritus status; or (iv) in the case of transfers between locations of the
Company or between the Company, its Affiliates or their respective successors.
Changes in status between a Participant’s service as an Employee, Director and a
Consultant will not constitute an interruption of Continuous
Service.
(k) “Deferred
Share Units”
means
Awards pursuant to Section 10 of the Plan.
(l) “Director”
means a
member of the Board, or a member of the board of directors of an
Affiliate.
(m) “Disabled”
means a
condition under which a Participant:
(i) is
unable
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 can be expected to last for a continuous period of not less than
twelve (12) months, or
(ii) is,
by
reason of any medically determinable 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 twelve (12) months, received income replacement benefits
for a period of not less than three (3) months under an accident or health
plan covering Employees of the Company.
(n) “Eligible
Person”
means
any Consultant, Director or Employee.
(o) “Employee”
means
any person whom the Company or any Affiliate classifies as an
employee (including an officer) for employment tax purposes. The payment by
the Company of a director’s fee to a Director shall not be sufficient to
constitute “employment” of such Director by the Company.
(p) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
(q) “Fair
Market Value”
means,
with respect to a share of the Common Stock for any purpose on a particular
date, the value determined by the Administrator in good faith. However, if
the
Common Stock is registered under Section 12(b) or 12(g) of the Exchange
Act, and listed for trading on a national exchange or market, “Fair Market
Value” means, as applicable, (i) either the closing price or the average of
the high and low sale price on the relevant date, as determined in the
Administrator’s discretion, quoted on the American Stock Exchange; (ii) the
last sale price on the relevant date quoted on the Nasdaq SmallCap
Market; (iii) the closing high bid on the relevant date quoted on the
Nasdaq OTC Bulletin Board Service or by the National Quotation Bureau, Inc.
or a
comparable service as determined in the Administrator’s discretion; or (iv)
if the Common Stock is not quoted by any of the above, the average of the
closing bid and asked prices on the relevant date furnished by a professional
market maker for the Common Stock, or by such other source, selected by the
Administrator. If no public trading of the Common Stock occurs on the relevant
date, then Fair Market Value shall be determined as of the next preceding date
on which trading of the Common Stock does occur. For all purposes under this
Plan, the term “relevant date” as used in this Section 2(q) shall mean
either the date as of which Fair Market Value is to be determined or the next
preceding date on which public trading of the Common Stock occurs, as determined
in the Administrator’s discretion.
(r) “Grant
Agreement”
means a
written document memorializing the terms and conditions of an Award granted
pursuant to the Plan and shall incorporate the terms of the Plan. The Committee
shall determine the form or forms of documents to be used, and may change them
from time to time for any reason.
(s) “Grant
Date”
has the
meaning set forth in Section 16 of the Plan.
(t) “ISO”
means an
Option intended to qualify as an incentive stock option within the meaning
of
Section 422 of the Code, as designated in the applicable Award
Agreement.
(u) “Involuntary
Termination”
means
termination of a Participant’s Continuous Service under the following
circumstances occurring on or after a Change in Control: (i) termination
without Cause by the Company or an Affiliate or successor thereto, as
appropriate; or (ii) voluntary termination by the Participant within
sixty (60) days following (A) a material reduction in the
Participant’s job responsibilities, provided that neither a mere change in title
alone nor reassignment to a substantially similar position shall constitute
a
material reduction in job responsibilities; (B) an involuntary relocation
of the Participant’s work site to a facility or location more than
fifty (50) miles from the Participant’s principal work site at the time of
the Change in Control; or (C) a material reduction in Participant’s total
compensation other than as part of an reduction by the same percentage amount
in
the compensation of all other similarly-situated Employees, Directors or
Consultants.
(v) “Nonqualified
Option”
means an
Option not intended to qualify as an ISO, as designated in the applicable Award
Agreement.
(w) “Option”
means
any stock option granted pursuant to Section 7 of the Plan.
(x) “Participant”
means
any holder of one or more Awards, or the Shares issuable or issued upon exercise
of such Awards, under the Plan.
(y) “Performance
Awards”
means
Performance Units and Performance Compensation Awards granted pursuant to
Section 13 of the Plan.
(z) “Performance
Compensation Awards”
means
Awards granted pursuant to Section 13(b) of the Plan.
(aa) “Performance
Unit”
means
Awards granted pursuant to Section 13(a) of the Plan which may be paid in
cash, in Shares, or such combination of cash and Shares as the Committee in
its
sole discretion shall determine.
(bb) “Person”
means
any natural person, association, trust, business trust, cooperative,
corporation, general partnership, joint venture, joint-stock company, limited
partnership, limited liability company, real estate investment trust, regulatory
body, governmental agency or instrumentality, unincorporated organization or
organizational entity.
(cc) “Phantom
Stock”
means
Awards pursuant to Section 11 of the Plan.
(dd) “Reporting
Person”
means an
officer, Director, or greater than ten percent (10%) shareholder of the
Company within the meaning of Rule 16a-2 under the Exchange Act, who is required
to file reports pursuant to Rule 16a-3 under the Exchange Act.
(ee) “Restricted
Shares”
means
Shares subject to restrictions imposed pursuant to Section 9 of the
Plan.
(ff) “Restricted
Share Units”
means
Awards pursuant to Section 9 of the Plan.
(gg) “Rule
16b-3”
means
Rule 16b-3 promulgated under the Exchange Act, as amended from time to time,
or
any successor provision.
(hh) “SAR”
or
“Share
Appreciation Right”
means
Awards granted pursuant to Section 8 of the Plan.
(ii) “Securities
Act”
means
the Securities Act of 1933, as amended.
(jj) “Share”
means a
share of Common Stock, as adjusted in accordance with Section 15 of the
Plan.
(kk) “Ten
Percent Holder”
means a
person who owns stock representing more than ten percent (10%) of the
combined voting power of all classes of stock of the Company or any
Affiliate.
(ll) “Unrestricted
Shares”
means
Shares awarded pursuant to Section 9 of the Plan.
3. Administration
(a) Administration
of the Plan.
The
Plan shall be administered by the Board or by such committee or committees
as
may be appointed by the Board from time to time (the Board, committee or
committees hereinafter referred to as the “Administrator”).
(b) Powers
of the Administrator.
The
Administrator shall have all the powers vested in it by the terms of the Plan,
such powers to include authority, in its sole and absolute discretion, to grant
Awards under the Plan, prescribe Grant Agreements evidencing such Awards and
establish programs for granting Awards.
The
Administrator shall have full power and authority to take all other actions
necessary to carry out the purpose and intent of the Plan, including, but not
limited to, the authority to: (i) determine the eligible persons to whom,
and the time or times at which Awards shall be granted; (ii) determine the
types of Awards to be granted; (iii) determine the number of shares to be
covered by or used for reference purposes for each Award; (iv) impose such
terms, limitations, restrictions and conditions upon any such Award as the
Administrator shall deem appropriate; (v) modify, amend, extend or renew
outstanding Awards, or accept the surrender of outstanding Awards and substitute
new Awards (provided however, that, except as provided in Section 7(d)
of the Plan, any modification that would materially adversely affect any
outstanding Award shall not be made without the consent of the
holder); (vi) accelerate or otherwise change the time in which an Award may
be exercised or becomes payable and to waive or accelerate the lapse, in whole
or in part, of any restriction or condition with respect to such Award,
including, but not limited to, any restriction or condition with respect to
the
vesting or exercisability of an Award following termination of any grantee’s
employment or other relationship with the Company; and (vii) establish
objectives and conditions, if any, for earning Awards and determining whether
Awards will be paid after the end of a performance period.
The
Administrator shall have full power and authority, in its sole and absolute
discretion, to administer and interpret the Plan and to adopt and interpret
such
rules, regulations, agreements, guidelines and instruments for the
administration of the Plan and for the conduct of its business as the
Administrator deems necessary or advisable.
(c) Non-Uniform
Determinations.
The
Administrator’s determinations under the Plan (including without
limitation, determinations of the persons to receive Awards, the form, amount
and timing of such Awards, the terms and provisions of such Awards and the
Grant
Agreements evidencing such Awards) need not be uniform and may be made by the
Administrator selectively among persons who receive, or are eligible to receive,
Awards under the Plan, whether or not such persons are similarly situated.
The
Administrator’s prior exercise of its discretionary authority shall not obligate
it to exercise its authority in a like fashion thereafter.
(d) Limited
Liability.
To the
maximum extent permitted by law, no member of the Administrator shall be liable
for any action taken or decision made in good faith relating to the Plan or
any
Award thereunder.
(e) Indemnification.
To the
maximum extent permitted by law and by the Company’s charter and by-laws, the
members of the Administrator shall be indemnified by the Company in respect
of
all their activities under the Plan.
(f) Effect
of Administrator’s Decision.
The
Administrator shall have the discretion to interpret or construe ambiguous,
unclear, or implied (but omitted) terms in any fashion it deems to be
appropriate in its sole discretion, and to make any findings of fact needed
in
the administration of the Plan or Grant Agreements. All actions taken and
decisions and determinations made by the Administrator on all matters relating
to the Plan pursuant to the powers vested in it hereunder shall be in the
Administrator’s sole and absolute discretion and shall be conclusive and binding
on all parties concerned, including the Company, its stockholders, any
participants in the Plan and any other Employee, Consultant, or Director of
the
Company, and their respective successors in interest. The validity of any such
interpretation, construction, decision or finding of fact shall not be given
de
novo review if challenged in court, by arbitration, or in any other forum,
and
shall be upheld unless clearly made in bad faith or materially affected by
fraud.
4. Shares
Available for the Plan; Maximum Awards
(a) General.
Subject
to adjustments as provided in Section 15(b) of the Plan and subject to the
discretion of the Administrator, the number of Awards that may be granted under
the Plan in each calendar year during any part of which the Plan is in effect
shall be such number of shares equivalent to fifteen percent (15%) of the
fully diluted shares of Common Stock outstanding on January 2 of a given
calendar year, without taking into account Awards outstanding under the Plan
that are exercisable for or convertible into Common Stock or that are unvested
stock Awards (“Outstanding
Awards”),
less
the number of shares subject to Outstanding Awards at the close of business
on
that date. In no event shall the number of shares be less than Twenty-Five
Million (25,000,000) shares of Common Stock. Notwithstanding the foregoing,
in no event shall more than an aggregate of ten percent (10%) of the total
shares of Common Stock within the plan be subject to ISO Awards during the
term
of the Plan. The Company shall reserve as of the end of each preceding calendar
year a sufficient number of Shares to satisfy outstanding Awards under the
Plan
and the number of additional shares available for issuance in accordance with
the formula stated above. If any Award, or portion of an Award, under the Plan
expires or terminates unexercised, becomes unexercisable or is forfeited or
otherwise terminated, surrendered or canceled as to any Shares, or if any Shares
are surrendered to the Company in connection with any Award (whether or not
such surrendered shares were acquired pursuant to any Award), or if any shares
are withheld by the Company, the shares subject to such Award and the
surrendered and withheld shares shall thereafter be available for further Awards
under the Plan; provided, however, that any such shares that are surrendered
to
or withheld by the Company in connection with any Award or that are otherwise
forfeited after issuance shall not be available for purchase pursuant to ISOs.
For all Awards, the Shares of Common Stock issued pursuant to the Plan may
be
authorized but unissued Shares, Shares that the Company has reacquired or
otherwise holds in treasury, or Shares held in a grantor or other trust that
the
Board approves.
(b) Specific
Award Limitations.
Subject
to the provisions of Section 15 of the Plan, the maximum number of Shares
that the Company may issue in a form other than Options and SARs is ten
percent (10%) of the total shares within the plan.
(c) Individual
Award Limits.
Subject
to adjustments as provided in Section 15(b) of the Plan, the maximum number
of Shares of Common Stock subject to Awards of any combination that may be
granted during any one (1) fiscal year of the Company to any one (1)
individual under this Plan shall be determined from time to time at the sole
discretion of the Administrator, including any such maximum number with respect
to any individual during the first fiscal year that the individual is employed
with the Company or an Affiliate. The Administrator may adjust any such
limitations pursuant to Section 15(b) below. Any such per-individual limits
shall not be adjusted to effect a restoration of Shares of Common Stock with
respect to which the related Award is terminated, surrendered or
canceled.
5. Participation
Participation
in the Plan shall be open to all Employees, Consultants, advisors, sales
representatives, officers and Directors of, and other individuals providing
bona
fide services to or for, the Company, or of any Affiliate of the Company, as
may
be selected by the Administrator from time to time. The Administrator may also
grant Awards to individuals in connection with hiring, retention or otherwise,
prior to the date the individual first performs services for the Company or
an
Affiliate provided that such Awards shall not become vested or exercisable
prior
to the date the individual first commences performance of such services. A
Participant who has been granted an Award may be granted an additional Award
or
Awards if the Administrator shall so determine, if such person is otherwise
an
Eligible Person and if otherwise in accordance with the terms of the
Plan.
6. Awards
(a) General.
The
Administrator, in its sole discretion, establishes the terms of all Awards
granted under the Plan. Awards may be granted individually or in tandem with
other types of Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement. The Administrator may permit or require a
recipient of an Award to defer such individual’s receipt of the payment of cash
or the delivery of Common Stock that would otherwise be due to such individual
by virtue of the exercise of, payment of, or lapse or waiver of restrictions
respecting, any Award. If any such payment deferral is required or permitted,
the Administrator shall, in its sole discretion, establish rules and procedures
for such payment deferrals.
(b) Replacement
Awards.
Subject
to Applicable Laws (including any associated Shareholder approval
requirements), the Administrator may, in its sole discretion and upon such
terms
as it deems appropriate, require as a condition of the grant of an Award to
a
Participant that the Participant surrender for cancellation some or all of
the
Awards that have previously been granted to the Participant under this Plan
or
otherwise. An Award that is conditioned upon such surrender may or may not
be
the same type of Award, may cover the same (or a lesser or greater) number
of Shares as such surrendered Award, may have other terms that are determined
without regard to the terms or conditions of such surrendered Award, and may
contain any other terms that the Administrator deems appropriate. In the case
of
Options and SARs, these other terms may not involve an exercise price that
is
lower than the exercise price of the surrendered Option or SARs unless the
Company’s shareholders approve the grant itself or the program under which the
grant is made pursuant to the Plan.
7. Option
Awards
(a) Types;
Documentation.
The
Administrator may in its discretion grant ISOs to any Employee and Nonqualified
Options to any Eligible Person, and shall evidence any such grants in a Grant
Agreement that is delivered to the Participant. Each Option shall be designated
in the Grant Agreement as an ISO or a Nonqualified Option, and the same Grant
Agreement may grant both types of Options, provided, however, that Awards of
ISOs shall be limited to Employees of the Company or of any current or hereafter
existing “parent corporation” or “subsidiary corporation”, as defined in Code
Sections 424(e) and (f), respectively, of the Company. At the sole
discretion of the Administrator, any Option may be exercisable, in whole or
in
part, immediately upon the grant thereof, or only after the occurrence of a
specified event, or only in installments, which installments may vary. Options
granted under the Plan may contain such terms and provisions not inconsistent
with the Plan that the Administrator shall deem advisable in its sole and
absolute discretion.
(b) ISO
$100,000 Limitation.
To the
extent that the aggregate Fair Market Value of Shares with respect to which
Options designated as ISOs first become exercisable by a Participant in any
calendar year (under this Plan and any other plan of the Company or any
Affiliate) exceeds $100,000, such excess Options shall be treated as
Nonqualified Options. For purposes of determining whether the $100,000 limit
is
exceeded, the Fair Market Value of the Shares subject to an ISO shall be
determined as of the Grant Date. In reducing the number of Options treated
as
ISOs to meet the $100,000 limit, the most recently granted Options shall be
reduced first. In the event that Section 422 of the Code is amended to
alter the limitation set forth therein, the limitation of this Section 7(b)
shall be automatically adjusted accordingly.
(c) Term
of Options.
Each
Grant Agreement shall specify a term at the end of which the Option
automatically expires, subject to earlier termination provisions contained
in
Section 7(e) hereof; provided, that, the term of any Option may not exceed
ten (10) years from the Grant Date. In the case of an ISO granted to an Employee
who is a Ten Percent Holder on the Grant Date, the term of the ISO shall not
exceed five (5) years from the Grant Date.
(d) Exercise
Price.
The
exercise price of an Option shall be determined by the Administrator in its
discretion and shall be set forth in the Grant Agreement, subject to the
following special rules:
(i) ISOs.
If an
ISO is granted to an Employee who on the Grant Date is a Ten Percent Holder,
the
per Share exercise price shall not be less than one hundred ten
percent (110%) of the Fair Market Value per Share on such Grant Date. If an
ISO is granted to any other Employee, the per Share exercise price shall not
be
less than one hundred percent (100%) of the Fair Market Value per Share on
the Grant Date.
(ii) Nonqualified
Options.
The per
Share exercise price for the Shares to be issued pursuant to the exercise of
a
Nonqualified Option shall not be less than one hundred percent (100%) of
the Fair Market Value per Share on the Grant Date.
(e) Termination
of Continuous Service.
The
Administrator may establish and set forth in the applicable Grant Agreement
the
terms and conditions on which an Option shall remain exercisable, if at all,
following termination of a Participant’s Continuous Service. The Administrator
may waive or modify these provisions at any time. To the extent that a
Participant is not entitled to exercise an Option at the date of his or her
termination of Continuous Service, or if the Participant (or other person
entitled to exercise the Option) does not exercise the Option to the extent
so
entitled within the time specified in the Grant Agreement or below (as
applicable), the Option shall terminate and the Shares underlying the
unexercised portion of the Option shall revert to the Plan and become available
for future Awards. In no event may any Option be exercised after the expiration
of the Option term as set forth in the Grant Agreement.
The
following provisions shall apply to the extent a Grant Agreement does not
specify the terms and conditions upon which an Option shall terminate when
there
is a termination of a Participant’s Continuous Service:
(i) Termination
other than Upon Disability or Death or for Cause.
In the
event of termination of a Participant’s Continuous Service (other than as a
result of Participant’s death, disability, retirement or termination for Cause),
the Participant shall have the right to exercise an Option at any time within
ninety (90) days following such termination to the extent the Participant
was entitled to exercise such Option at the date of such
termination.
(ii) Disability.
In the event of termination of a Participant’s Continuous Service as a result of
his or her being Disabled, the Participant shall have the right to exercise
an
Option at any time within one year following such termination to the extent
the
Participant was entitled to exercise such Option at the date of such
termination.
(iii) Retirement.
In the event of termination of a Participant’s Continuous Service as a result of
Participant’s retirement, the Participant shall have the right to exercise the
Option at any time within one (1) year following such termination to the extent
the Participant was entitled to exercise such Option at the date of such
termination.
(iv) Death.
In
the event of the death of a Participant during the period of Continuous Service
since the Grant Date of an Option, or within thirty (30) days following
termination of the Participant’s Continuous Service, the Option may be
exercised, at any time within one (1) year following the date of the
Participant’s death, by the Participant’s estate or by a person who acquired the
right to exercise the Option by bequest or inheritance, but only to the extent
the right to exercise the Option had vested at the date of death or, if earlier,
the date the Participant’s Continuous Service terminated.
(v) Cause.
If the
Administrator determines that a Participant’s Continuous Service terminated due
to Cause, the Participant shall immediately forfeit the right to exercise any
Option, and it shall be considered immediately null and void.
(f) Reverse
Vesting.
The
Administrator in its sole and absolute discretion may allow a Participant to
exercise unvested Options, in which case the Shares then issued shall be
Restricted Shares having analogous vesting restrictions to the unvested
Options.
(g) Buyout
Provisions.
The
Administrator may at any time offer to buy out an Option, in exchange for a
payment in cash or Shares, based on such terms and conditions as the
Administrator shall establish and communicate to the Participant at the time
that such offer is made. In addition, but subject to any shareholder approval
requirement of applicable law, if the Fair Market Value for Shares subject
to an
Option is more than thirty three percent (33%) below their exercise price
for more than thirty (30) consecutive business days, the Administrator may
unilaterally terminate and cancel the Option either (i) by paying the
Participant, in cash or Shares, an amount not less than the Black-Scholes value
of the vested portion of the Option, or (ii) subject to the approval of the
shareholders of the Company, by irrevocably committing to grant a new Option,
on
a designated date more than six (6) months after such termination and
cancellation of such Option (but only if the Participant’s Continuous
Service has not terminated prior to such designated date), on substantially
the
same terms as the cancelled Option, provided that the per Share exercise price
for the new Option shall equal the per Share Fair Market Value of a Share on
the
date the new grant occurs.
8. Stock
Appreciation Rights
(a) Stock
Appreciation Rights.
The
Administrator may from time to time grant to eligible participants Awards of
Stock Appreciation Rights (“SARs”).
A SAR
entitles the grantee to receive, subject to the provisions of the Plan and
the
Grant Agreement, a payment having an aggregate value equal to the product
of (i) the excess of (A) the Fair Market Value on the exercise date of
one (1) share of Common Stock over (B) the base price per Share specified
in the Grant Agreement, times (ii) the number of shares specified by the
SAR, or portion thereof, which is exercised. Payment by the Company of the
amount receivable upon any exercise of a SAR may be made by the delivery of
Common Stock or cash, or any combination of Common Stock and cash, as determined
in the sole discretion of the Administrator. If upon settlement of the exercise
of a SAR a grantee is to receive a portion of such payment in Shares of Common
Stock, the number of shares shall be determined by dividing such portion by
the
Fair Market Value of a share of Common Stock on the exercise date. No fractional
shares shall be used for such payment and the Administrator shall determine
whether cash shall be given in lieu of such fractional shares or whether such
fractional shares shall be eliminated.
(b) Termination
of Employment or Consulting Relationship.
The
Administrator shall establish and set forth in the applicable Grant Agreement
the terms and conditions on which a SAR shall remain exercisable, if at all,
following termination of a Participant’s Continuous Service. The provisions of
Section 7(e) above shall apply to the extent a Grant Agreement does not
specify the terms and conditions upon which a SAR shall terminate when there
is
a termination of a Participant’s Continuous Service.
(c) Buy-out.
The
Administrator has the same discretion to buy-out SARs as it has to take such
actions pursuant to Section 7(g) above with respect to
Options.
9. Restricted
Shares and Restricted Share Units; Unrestricted Shares
(a) Grants.
The
Administrator may in its discretion grant restricted shares (“Restricted
Shares”)
to any
Eligible Person and shall evidence such grant in a Grant Agreement that is
delivered to the Participant and that sets forth the number of Restricted
Shares, the purchase price for such Restricted Shares (if any), and the
terms upon which the Restricted Shares may become vested. In addition, the
Company may in its discretion grant the right to receive Shares after certain
vesting requirements are met (“Restricted
Share Units”)
to any
Eligible Person and shall evidence such grant in a Grant Agreement that is
delivered to the Participant which sets forth the number of Shares (or
formula, that may be based on future performance or conditions, for determining
the number of Shares) that the Participant shall be entitled to receive upon
vesting and the terms upon which the Shares subject to a Restricted Share Unit
may become vested. The Administrator may condition any Award of Restricted
Shares or Restricted Share Units to a Participant on receiving from the
Participant such further assurances and documents as the Administrator may
require to enforce the restrictions. In addition, the Committee may grant Awards
hereunder in the form of unrestricted shares (“Unrestricted
Shares”),
which
shall vest in full upon the date of grant or such other date as the Committee
may determine or which the Committee may issue pursuant to any program under
which one or more Eligible Persons (selected by the Committee in its
discretion) elect to receive Unrestricted Shares in lieu of cash bonuses that
would otherwise be paid.
(b) Vesting
and Forfeiture.
The
Administrator shall set forth in a Grant Agreement granting Restricted Shares
or
Restricted Share Units, the terms and conditions under which the Participant’s
interest in the Restricted Shares or the Shares subject to Restricted Share
Units will become vested and non-forfeitable. Except as set forth in the
applicable Grant Agreement or the Administrator otherwise determines, upon
termination of a Participant’s Continuous Service for any other reason, the
Participant shall forfeit his or her Restricted Shares and Restricted Share
Units; provided that if a Participant purchases the Restricted Shares and
forfeits them for any reason, the Company shall return the purchase price to
the
Participant only if and to the extent set forth in a Grant Agreement.
(c) Issuance
of Restricted Shares Prior to Vesting.
The
Company shall issue stock certificates that evidence Restricted Shares pending
the lapse of applicable restrictions, and that bear a legend making appropriate
reference to such restrictions. Except as set forth in the applicable Grant
Agreement or the Administrator otherwise determines, the Company or a third
party that the Company designates shall hold such Restricted Shares and any
dividends that accrue with respect to Restricted Shares pursuant to
Section 9(e) below.
(d) Issuance
of Shares upon Vesting.
As soon
as practicable after vesting of a Participant’s Restricted Shares (or
Shares underlying Restricted Share Units) and the Participant’s satisfaction of
applicable tax withholding requirements, the Company shall release to the
Participant, free from the vesting restrictions, one (1) Share for each
vested Restricted Share (or issue one (1) Share free of the vesting
restriction for each vested Restricted Share Unit), unless a Grant Agreement
provides otherwise. No fractional shares shall be distributed but shall be
rounded up to the next full share at the election of the Administrator.
Notwithstanding the foregoing, if the Administrator determines that an issuance
of Shares at the time of vesting is not a “permissible distribution event”
within the meaning of Section 409A of the Code, then the issuance of the
Shares will be automatically deferred until the earliest date on which issuance
of the Shares in unrestricted form will constitute a permissible distribution
event pursuant to paragraphs (i), (ii), (iii), (v)
or (iv) of Section 409A(a)(2)(A) of the Code.
(e) Dividends
Payable on Vesting.
Whenever Shares are released to a Participant or duly-authorized transferee
pursuant to Section 9(d) above as a result of the vesting of Restricted
Shares or the Shares underlying Restricted Share Units are issued to a
Participant pursuant to Section 9(d) above, such Participant or
duly-authorized transferee shall also be entitled to receive (unless
otherwise provided in the Grant Agreement), with respect to each Share released
or issued, an amount equal to any cash dividends (plus, in the discretion
of the Administrator, simple interest at a rate as the Administrator may
determine) and a number of Shares equal to any stock dividends, which were
declared and paid to the holders of Shares between the Grant Date and the date
such Share is released from the vesting restrictions in the case of Restricted
Shares or issued in the case of Restricted Share Units.
(f) Section 83(b)
Elections.
A
Participant may make an election under Section 83(b) of the Code (the
“Section 83(b)
Election”)
with
respect to Restricted Shares. If a Participant who has received Restricted
Share
Units provides the Administrator with written notice of his or her intention
to
make Section 83(b) Election with respect to the Shares subject to such
Restricted Share Units, the Administrator may in its discretion convert the
Participant’s Restricted Share Units into Restricted Shares, on a one-for-one
basis, in full satisfaction of the Participant’s Restricted Share Unit Award.
The Participant may then make a Section 83(b) Election with respect to
those Restricted Shares.
Shares
with respect to which a Participant makes a Section 83(b) Election shall
not be eligible for deferral pursuant to Section 10 below.
(g) Deferral
Elections.
At any
time within the thirty (30) day period (or other shorter or longer period
that the Administrator selects) in which a Participant who is a member of a
select group of management or highly compensated employees (within the
meaning of the Code) receives an Award of either Restricted Shares or Restricted
Share Units, the Administrator may permit the Participant to irrevocably elect,
on a form provided by and acceptable to the Administrator, to defer the receipt
of all or a percentage of the Shares that would otherwise be transferred to
the
Participant upon the vesting of such Award. If the Participant makes this
election, the Shares subject to the election, and any associated dividends
and
interest, shall be credited to an account established pursuant to
Section 10 hereof on the date such Shares would otherwise have been
released or issued to the Participant pursuant to Section 9(d)
above.
The
Administrator may grant Awards hereunder in the form of unrestricted
shares (“Unrestricted
Shares”),
which
shall vest in full upon the date of grant or such other date as the
Administrator may determine or which the Administrator may issue pursuant to
any
program under which one or more Eligible Persons (selected by the
Administrator in its discretion) elect to receive Unrestricted Shares in lieu
of
cash bonuses that would otherwise be paid.
10. Deferred
Share Units
(a) Elections
to Defer.
The
Administrator may permit any Eligible Person who is a Director, Consultant
or
member of a select group of management or highly compensated
employees (within the meaning of the Code) to irrevocably elect, on a form
provided by and acceptable to the Administrator (the “Election
Form”),
to
forego the receipt of cash or other compensation (including the Shares
deliverable pursuant to any Award other than Restricted Shares for which a
Section 83(b) Election has been made), and in lieu thereof to have the
Company credit to an internal Plan account (the “Account”)
a
number of deferred share units (“Deferred
Share Units”)
having
a Fair Market Value equal to the Shares and other compensation deferred. These
credits will be made at the end of each calendar quarter (or other period
that the Administrator establishes prospectively) during which compensation
is
deferred. Unless, within five (5) business days after the Company receives
an
Election Form, the Company sends the Participant a written notice explaining
why
it is invalid, each Election Form shall take effect on the first day of the
next
calendar year (or on the first day of the next calendar month in the case
of an initial election by a Participant who is first eligible to defer
hereunder) after its delivery to the Company, subject to Section 9(g)
regarding deferral of Restricted Shares and Restricted Share Units and to
Section 13(e) regarding deferral of Performance Awards. Notwithstanding the
foregoing sentence: (i) Election Forms shall be ineffective with respect to
any compensation that a Participant earns before the date on which the Company
receives the Election Form, and (ii) the Administrator may unilaterally
make awards in the form of Deferred Share Units, regardless of whether or not
the Participant foregoes other compensation.
(b) Vesting.
Unless
a Grant Agreement expressly provides otherwise, each Participant shall be one
hundred percent (100%) vested at all times in any Shares subject to
Deferred Share Units.
(c) Issuances
of Shares.
The
Company shall provide a Participant with one (1) Share for each Deferred
Share Unit in five (5) substantially equal annual installments that are
issued before the last day of each of the five (5) calendar years that end
after the date on which the Participant’s Continuous Service terminates, unless
-
(i) the
Participant has properly elected a different form of distribution, on a form
approved by the Administrator, that permits the Participant to select any
combination of a lump sum and annual installments that are completed within
ten (10) years following termination of the Participant’s Continuous
Service, and
(ii) the
Company received the Participant’s distribution election form at the time the
Participant elects to defer the receipt of cash or other compensation pursuant
to Section 10(a), provided that (subject to any prospective changes
that the Administrator communicates in writing to a Participant), the
Participant may change such election through any subsequent election
that (i) is delivered to the Administrator at least one (1) year
before the date on which distributions are otherwise scheduled to commence
pursuant to the Participant’s election, and (ii) defers the commencement of
distributions by at least five (5) years from the originally scheduled
commencement date.
Fractional
shares shall not be issued and shall be rounded up to the next full share at
the
election of the Administrator.
(d) Crediting
of Dividends.
Whenever Shares are issued to a Participant pursuant to Section 10(c)
above, such Participant shall also be entitled to receive, with respect to
each
Share issued, a cash amount equal to any cash dividends (plus simple
interest at a rate of five percent (5%) per annum, or such other reasonable
rate as the Administrator may determine in a Grant Agreement), and a number
of
Shares equal to any stock dividends which were declared and paid to the holders
of Shares between the Grant Date and the date such Share is issued.
(e) Emergency
Withdrawals.
In the
event a Participant suffers an unforeseeable emergency within the contemplation
of this Section 10 and Section 409A of the Code, the Participant may
apply to the Company for an immediate distribution of all or a portion of the
Participant’s Deferred Share Units. The unforeseeable emergency must result from
a sudden and unexpected illness or accident of the Participant, the
Participant’s spouse, or a dependent (within the meaning of
Section 152(a) of the Code) of the Participant, casualty loss of the
Participant’s property, or other similar extraordinary and unforeseeable
conditions beyond the control of the Participant. Examples of purposes which
are
not
considered unforeseeable emergencies include post-secondary school expenses
or
the desire to purchase a residence. In no event will a distribution be made
to
the extent the unforeseeable emergency could be relieved through reimbursement
or compensation by insurance or otherwise, or by liquidation of the
Participant’s nonessential assets to the extent such liquidation would not
itself cause a severe financial hardship. The amount of any distribution
hereunder shall be limited to the amount necessary to relieve the Participant’s
unforeseeable emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution. The Administrator shall determine
whether a Participant has a qualifying unforeseeable emergency and the amount
which qualifies for distribution, if any. The Administrator may require evidence
of the purpose and amount of the need, and may establish such application or
other procedures as it deems appropriate.
(f) Unsecured
Rights to Deferred Compensation.
A
Participant’s right to Deferred Share Units shall at all times constitute an
unsecured promise of the Company to pay benefits as they come due. The right
of
the Participant or the Participant’s duly-authorized transferee to receive
benefits hereunder shall be solely an unsecured claim against the general assets
of the Company. Neither the Participant nor the Participant’s duly-authorized
transferee shall have any claim against or rights in any specific assets,
shares, or other funds of the Company.
11. Phantom
Stock
The
Administrator may from time to time grant Awards to eligible participants
denominate in stock-equivalent units (“Phantom
Stock”)
in
such amounts and on such terms and conditions as it shall determine. Phantom
Stock units granted to a participant shall be credited to a bookkeeping reserve
account solely for accounting purposes and shall not require a segregation
of
any of the Company’s assets. An Award of Phantom Stock may be settled in Common
Stock, in cash, or in a combination of Common Stock and cash, as determined
in
the sole discretion of the Administrator. Except as otherwise provided in the
applicable Grant Agreement, the grantee shall not have the rights of a
stockholder with respect to any Shares of Common Stock represented by a Phantom
Stock unit solely as a result of the grant of a Phantom Stock unit to the
grantee.
12. Other
Stock-Based Awards
The
Administrator may from time to time grant other stock-based awards to eligible
participants in such amounts, on such terms and conditions, and for such
consideration, including no consideration or such minimum consideration as
may
be required by law, as it shall determine. Other stock-based awards may be
denominated in cash, in Common Stock or other securities, in stock-equivalent
units, in stock appreciation units, in securities or debentures convertible
into
Common Stock, or in any combination of the foregoing and may be paid in Common
Stock or other securities, in cash, or in a combination of Common Stock or
other
securities and cash, all as determined in the sole discretion of the
Administrator.
13. Performance
Awards
(a) Performance
Units.
Subject
to the limitations set forth in paragraph (c) hereof, the Administrator may
in its discretion grant Performance Units to any Eligible Person and shall
evidence such grant in a Grant Agreement that is delivered to the Participant
which sets forth the terms and conditions of the Award. A Performance Unit
is an
Award which is based on the achievement of specific goals with respect to the
Company or any Affiliate or individual performance of the Participant, or a
combination thereof, over a specified period of time.
(b) Performance
Compensation Awards.
Subject
to the limitations set forth in paragraph (c) hereof, the Administrator
may, at the time of grant of a Performance Unit, designate such Award as a
“Performance
Compensation Award”
in
order that such Award constitutes “qualified performance-based compensation”
under Code Section 162(m), in which event the Administrator shall have the
power to grant such Performance Compensation Award upon terms and conditions
that qualify it as “qualified performance-based compensation” within the meaning
of Code Section 162(m). With respect to each such Performance Compensation
Award, the Administrator shall establish, in writing within the time required
under Code Section 162(m), a “Performance
Period”,
“Performance
Measure(s)”,
and
“Performance
Formula(e)” (each
such term being hereinafter defined). Once established for a Performance Period,
the Performance Measure(s) and Performance Formula(e) shall not be amended
or
otherwise modified to the extent such amendment or modification would cause
the
compensation payable pursuant to the Award to fail to constitute qualified
performance-based compensation under Code Section 162(m).
A
Participant shall be eligible to receive payment in respect of a Performance
Compensation Award only to the extent that the Performance Measure(s) for such
Award is achieved and the Performance Formula(e) as applied against such
Performance Measure(s) determines that all or some portion of such Participant’s
Award has been earned for the Performance Period. As soon as practicable after
the close of each Performance Period, the Administrator shall review and certify
in writing whether, and to what extent, the Performance Measure(s) for the
Performance Period have been achieved and, if so, determine and certify in
writing the amount of the Performance Compensation Award to be paid to the
Participant and, in so doing, may use negative discretion to decrease, but
not
increase, the amount of the Award otherwise payable to the Participant based
upon such performance.
(c) Limitations
on Awards.
The
maximum Performance Unit Award and the maximum Performance Compensation Award
that any one (1) Participant may receive for any one (1) Performance
Period shall be determined from time to time by the Administrator. The
Administrator shall have the discretion to provide in any Grant Agreement that
any amounts earned in excess of any such limitations will either be credited
as
Deferred Share Units, or as deferred cash compensation under a separate plan
of
the Company (provided in the latter case that such deferred compensation
either bears a reasonable rate of interest or has a value based on one (1)
or more predetermined actual investments). Any amounts for which payment to
the
Participant is deferred pursuant to the preceding sentence shall be paid to
the
Participant in a future year or years not earlier than, and only to the extent
that, the Participant is either not receiving compensation in excess of any
such
limits for a Performance Period, or is not subject to the restrictions set
forth
under Section 162(b) of the Code.
(d) Definitions.
(i) “Performance
Formula”
means,
for a Performance Period, one (1) or more objective formulas or standards
established by the Administrator for purposes of determining whether or the
extent to which an Award has been earned based on the level of performance
attained or to be attained with respect to one or more Performance Measure(s).
Performance Formulae may vary from Performance Period to Performance Period
and
from Participant to Participant and may be established on a stand-alone basis,
in tandem or in the alternative.
(ii) “Performance
Measure”
means
one (1) or more of the following selected by the Administrator to measure
Company, Affiliate, and/or business unit performance for a Performance Period,
whether in absolute or relative terms (including, without limitation, terms
relative to a peer group or index): basic, diluted, or adjusted earnings per
share; sales or revenue; earnings before interest, taxes, and other
adjustments (in total or on a per share basis); basic or adjusted net
income; returns on equity, assets, capital, revenue or similar measure; economic
value added; working capital; total shareholder return; and product development,
product market share, research, licensing, litigation, human resources,
information services, mergers, acquisitions, sales of assets of Affiliates
or
business units. Each such measure shall be, to the extent applicable, determined
in accordance with generally accepted accounting principles as consistently
applied by the Company (or such other standard applied by the
Administrator) and, if so determined by the Administrator, and in the case
of a
Performance Compensation Award, to the extent permitted under Code
Section 162(m), adjusted to omit the effects of extraordinary items, gain
or loss on the disposal of a business segment, unusual or infrequently occurring
events and transactions and cumulative effects of changes in accounting
principles.
Performance
Measures may vary from Performance Period to Performance Period and from
Participant to Participant, and may be established on a stand-alone basis,
in
tandem or in the alternative.
(iii) “Performance
Period”
means
one (1) or more periods of time (of not less than one (1) fiscal
year of the Company), as the Administrator may designate, over which the
attainment of one (1) or more Performance Measure(s) will be measured for
the purpose of determining a Participant’s rights in respect of an
Award.
(e) Deferral
Elections.
At any
time prior to the date that is at least six (6) months before the close of
a Performance Period (or shorter or longer period that the Administrator
selects) with respect to an Award of either Performance Units or Performance
Compensation, the Administrator may permit a Participant who is a member of
a
select group of management or highly compensated employees (within the
meaning of the Code) to irrevocably elect, on a form provided by and acceptable
to the Administrator, to defer the receipt of all or a percentage of the cash
or
Shares that would otherwise be transferred to the Participant upon the vesting
of such Award. If the Participant makes this election, the cash or Shares
subject to the election, and any associated interest and dividends, shall be
credited to an account established pursuant to Section 10 hereof on the
date such cash or Shares would otherwise have been released or issued to the
Participant pursuant to Section 13(a) or Section 13(b)
above.
14. Taxes
(a) General.
As a
condition to the issuance or distribution of Shares pursuant to the Plan, the
Participant (or in the case of the Participant’s death, the person who
succeeds to the Participant’s rights) shall make such arrangements as the
Company may require for the satisfaction of any applicable federal, state,
local
or foreign withholding tax obligations that may arise in connection with the
Award and the issuance of Shares. The Company shall not be required to issue
any
Shares until such obligations are satisfied. If the Administrator allows the
withholding or surrender of Shares to satisfy a Participant’s tax withholding
obligations, the Administrator shall not allow Shares to be withheld in an
amount that exceeds the minimum statutory withholding rates for federal and
state tax purposes, including payroll taxes.
(b) Default
Rule for Employees.
In the
absence of any other arrangement, an Employee shall be deemed to have directed
the Company to withhold or collect from his or her cash compensation an amount
sufficient to satisfy such tax obligations from the next payroll payment
otherwise payable after the date of the exercise of an Award.
(c) Special
Rules.
In the
case of a Participant other than an Employee (or in the case of an Employee
where the next payroll payment is not sufficient to satisfy such tax
obligations, with respect to any remaining tax obligations), in the absence
of
any other arrangement and to the extent permitted under Applicable Law, the
Participant shall be deemed to have elected to have the Company withhold from
the Shares or cash to be issued pursuant to an Award that number of Shares
having a Fair Market Value determined as of the applicable Tax Date (as
defined below) or cash equal to the amount required to be withheld. For purposes
of this Section 14, the Fair Market Value of the Shares to be withheld
shall be determined on the date that the amount of tax to be withheld is to
be
determined under the Applicable Law (the “Tax
Date”).
(d) Surrender
of Shares.
If
permitted by the Administrator, in its discretion, a Participant may satisfy
the
minimum applicable tax withholding and employment tax obligations associated
with an Award by surrendering Shares to the Company (including Shares that
would otherwise be issued pursuant to the Award) that have a Fair Market Value
determined as of the applicable Tax Date equal to the amount required to be
withheld. In the case of Shares previously acquired from the Company that are
surrendered under this Section 14, such Shares must have been owned by the
Participant for more than six months on the date of surrender (or such
longer period of time the Company may in its discretion require).
(e) Income
Taxes and Deferred Compensation.
Participants are solely responsible and liable for the satisfaction of all
taxes
and penalties that may arise in connection with Awards (including any taxes
arising under Section 409A of the Code), and the Company shall not have any
obligation to indemnify or otherwise hold any Participant harmless from any
or
all of such taxes. The Administrator shall have the discretion to organize
any
deferral program, to require deferral election forms, and to grant or to
unilaterally modify any Award in a manner that (i) conforms with the
requirements of Section 409A of the Code with respect to compensation that
is deferred and that vests after December 31, 2004, (ii) that voids
any Participant election to the extent it would violate Section 409A of the
Code, and (iii) for any distribution election that would violate
Section 409A of the Code, to make distributions pursuant to the Award at
the earliest to occur of a distribution event that is allowable under
Section 409A of the Code or any distribution event that is both allowable
under Section 409A of the Code and is elected by the Participant, subject
to any valid second election to defer, provided that the Administrator permits
second elections to defer in accordance with Section 409A(a)(4)(C). The
Administrator shall have the sole discretion to interpret the requirements
of
the Code, including Section 409A, for purposes of the Plan and all
Awards.
(f) Loans.
The
Company or its Affiliate may make or guarantee loans to grantees to assist
grantees in exercising Awards and satisfying any withholding tax
obligations.
15. Transfers,
Adjustments and Change in Control Transactions
(a) Transferability.
Except
as otherwise determined by the Administrator, and in any event in the case
of an
ISO or a Stock Appreciation Right granted with respect to an ISO, no Award
granted under the Plan shall be transferable by a grantee otherwise than by
will
or the laws of descent and distribution. Unless otherwise determined by the
Administrator in accord with the provisions of the immediately preceding
sentence, an Award may be exercised during the lifetime of the grantee, only
by
the grantee or, during the period the grantee is under a legal disability,
by
the grantee’s guardian or legal representative.
(b) Adjustments
for Corporate Transactions and Other Events.
(i) Stock
Dividend, Stock Split and Reverse Stock Split.
In the
event of a stock dividend of, or stock split or reverse stock split affecting,
the Common Stock, (A) the maximum number of shares of such Common Stock as
to which Awards may be granted under this Plan and the maximum number of shares
with respect to which Awards may be granted during any one (1) fiscal year
of the Company to any individual, as provided in Section 4 of the Plan,
and (B) the number of shares covered by and the exercise price and other
terms of outstanding Awards, shall, without further action of the Board, be
adjusted to reflect such event unless the Board determines, at the time it
approves such stock dividend, stock split or reverse stock split, that no such
adjustment shall be made. The Administrator may make adjustments, in its
discretion, to address the treatment of fractional shares and fractional cents
that arise with respect to outstanding Awards as a result of the stock dividend,
stock split or reverse stock split.
(ii) Non-Change
in Control Transactions.
Except
with respect to the transactions set forth in Section 15(b)(i), in the
event of any change affecting the Common Stock, the Company or its
capitalization, by reason of a spin-off, split-up, dividend, recapitalization,
merger, consolidation or share exchange, other than any such change that is
part
of a transaction resulting in a Change in Control of the Company, the
Administrator, in its discretion and without the consent of the holders of
the
Awards, shall make (A) appropriate adjustments to the maximum number and
kind of shares reserved for issuance or with respect to which Awards may be
granted under the Plan, in the aggregate and with respect to any individual
during any one fiscal year of the Company, as provided in Section 4 of the
Plan; and (B) any adjustments in outstanding Awards, including but not
limited to modifying the number, kind and price of securities subject to
Awards.
(iii) Change
in Control Transactions.
In the
event of any transaction resulting in a Change in Control of the Company,
outstanding Options and SARs under this Plan will terminate upon the effective
time of such Change in Control unless provision is made in connection with
the
transaction for the continuation or assumption of such Awards by, or for the
substitution of the equivalent awards of, the surviving or successor entity
or a
parent thereof. In the event of such termination, the holders of Options and
SARs under the Plan will be permitted, for a period of at least twenty (20)
days prior to the effective time of the Change in Control, to exercise all
portions of such Awards that are then exercisable or which become exercisable
upon or prior to the effective time of the Change in Control; provided, however,
that any such exercise of any portion of such an Award which becomes exercisable
as a result of such Change in Control shall be deemed to occur immediately
prior
to the effective time of such Change in Control.
(iv) Pooling
of Interests Transactions.
In
connection with any business combination authorized by the Board, the
Administrator, in its sole discretion and without the consent of the holders
of
the Awards, may make any modifications to any Awards, including but not limited
to cancellation, forfeiture, surrender or other termination of the Awards,
in
whole or in part, regardless of the vested status of the Award, but solely
to
the extent necessary to facilitate the compliance of such transaction with
requirements for treatment as a pooling of interests transaction for accounting
purposes under generally accepted accounting principles.
(v) Unusual
or Nonrecurring Events.
The
Administrator is authorized to make, in its discretion and without the consent
of holders of Awards, adjustments in the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring events
affecting the Company, or the financial statements of the Company or any
Affiliate, or of changes in applicable laws, regulations, or accounting
principles, whenever the Administrator determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
(c) Substitution
of Awards in Mergers and Acquisitions.
Awards
may be granted under the Plan from time to time in substitution for awards
held
by employees, officers, consultants or directors of entities who become or
are
about to become employees, officers, consultants or directors of the Company
or
an Affiliate as the result of a merger or consolidation of the employing entity
with the Company or an Affiliate, or the acquisition by the Company or an
Affiliate of the assets or stock of the employing entity. The terms and
conditions of any substitute Awards so granted may vary from the terms and
conditions set forth herein to the extent that the Administrator deems
appropriate at the time of grant to conform the substitute Awards to the
provisions of the awards for which they are substituted.
16. Time
of Granting of Awards
The
date
of grant (“Grant
Date”)
of an
Award shall be the date on which the Administrator makes the determination
granting such Award or such other date as is determined by the Administrator,
provided that in the case of an ISO, the Grant Date shall be the later of the
date on which the Administrator makes the determination granting such ISO or
the
date of commencement of the Participant’s employment relationship with the
Company.
17. Modification
of Awards and Substitution of Options
(a) Modification,
Extension and Renewal of Awards.
Within
the limitations of the Plan, the Administrator may modify an Award to accelerate
the rate at which an Option or SAR may be exercised (including without
limitation permitting an Option or SAR to be exercised in full without regard
to
the installment or vesting provisions of the applicable Grant Agreement or
whether the Option or SAR is at the time exercisable, to the extent it has
not
previously been exercised), to accelerate the vesting of any Award, to extend
or
renew outstanding Awards, or to accept the cancellation of outstanding Awards
to
the extent not previously exercised either for the granting of new Awards or
for
other consideration in substitution or replacement thereof. Notwithstanding
the
foregoing provision, no modification of an outstanding Award shall materially
and adversely affect such Participant’s rights thereunder, unless either the
Participant provides written consent or there is an express Plan provision
permitting the Administrator to act unilaterally to make the
modification.
(b) Substitution
of Options.
Notwithstanding any inconsistent provisions or limits under the Plan, in the
event the Company or an Affiliate acquires (whether by purchase, merger or
otherwise) all or substantially all of outstanding capital stock or assets
of
another corporation or in the event of any reorganization or other transaction
qualifying under Section 424 of the Code, the Administrator may, in
accordance with the provisions of that Section, substitute Options for options
under the plan of the acquired company provided (i) the excess of the
aggregate fair market value of the shares subject to an option immediately
after
the substitution over the aggregate option price of such shares is not more
than
the similar excess immediately before such substitution and (ii) the new
option does not give persons additional benefits, including any extension of
the
exercise period.
18. Term
of Plan
The
Plan
shall continue in effect for a term of ten (10) years from its effective
date as determined under Section 22 below, unless the Plan is sooner
terminated under Section 19 below.
19. Amendment
and Termination of the Plan
(a) Authority
to Amend or Terminate.
Subject
to Applicable Laws, the Board may from time to time amend, alter, suspend,
discontinue or terminate the Plan.
(b) Effect
of Amendment or Termination.
No
amendment, suspension, or termination of the Plan shall materially and adversely
affect Awards already granted unless either it relates to an adjustment pursuant
to Section 15 above, or it is otherwise mutually agreed between the
Participant and the Administrator, which agreement must be in writing and signed
by the Participant and the Company. Notwithstanding the foregoing, the
Administrator may amend the Plan to eliminate provisions which are no longer
necessary as a result of changes in tax or securities laws or regulations,
or in
the interpretation thereof.
Conditions
Upon Issuance of Shares
Notwithstanding
any other provision of the Plan or any agreement entered into by the Company
pursuant to the Plan, the Company shall not be obligated, and shall have no
liability for failure, to issue or deliver any Shares under the Plan unless
such
issuance or delivery would comply with Applicable Law, with such compliance
determined by the Company in consultation with its legal counsel.
20. Reservation
of Shares
The
Company, during the term of this Plan, will at all times reserve and keep
available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
21. Effective
Date
(a) Effective
Date; Termination Date.
This
Plan shall become effective on the date of its approval by the Board; provided
that this Plan shall be submitted to the Company’s shareholders for approval,
and if not approved by the shareholders in accordance with Applicable
Laws (as determined by the Administrator in its discretion) within
one (1) year from the date of approval by the Board, this Plan and any
Awards shall be null, void and of no force and effect. Awards granted under
this
Plan before approval of this Plan by the shareholders shall be granted subject
to such approval. No Award shall be granted under the Plan after the close
of
business on the day immediately preceding the tenth (10th)
anniversary of the effective date of the Plan, or if earlier, the
tenth (10th)
anniversary of the date this Plan is approved by the shareholders. Subject
to
other applicable provisions of the Plan, all Awards made under the Plan prior
to
such termination of the Plan shall remain in effect until such Awards have
been
satisfied or terminated in accordance with the Plan and the terms of such
Awards.
22. Governing
Law
The
validity, construction and effect of the Plan, of Grant Agreements entered
into
pursuant to the Plan, and of any rules, regulations, determinations or decisions
made by the Administrator relating to the Plan or such Grant Agreements, and
the
rights of any and all persons having or claiming to have any interest therein
or
thereunder, shall be determined exclusively in accordance with applicable
federal laws and the laws of the State of Delaware, without regard to its
conflict of laws principles.
23. Other
Applicable Laws And Regulations
(a) U.S.
Securities Laws.
This
Plan, the grant of Awards, and the exercise of Options and SARs under this
Plan,
and the obligation of the Company to sell or deliver any of its
securities (including, without limitation, Options, Restricted Shares,
Restricted Share Units, Deferred Share Units and Shares) under this Plan shall
be subject to all Applicable Law. In the event that the Shares are not
registered under the Securities Act, or any applicable state securities laws
prior to the delivery of such Shares, the Company may require, as a condition
to
the issuance thereof, that the persons to whom Shares are to be issued represent
and warrant in writing to the Company that such Shares are being acquired by
him
or her for investment for his or her own account and not with a view to, for
resale in connection with, or with an intent of participating directly or
indirectly in, any distribution of such Shares within the meaning of the
Securities Act, and a legend to that effect may be placed on the certificates
representing the Shares.
(b) Other
Jurisdictions.
To
facilitate the making of any grant of an Award under this Plan, the
Administrator may provide for such special terms for Awards to Participants
who
are foreign nationals or who are employed by the Company or any Affiliate
outside of the United States of America as the Administrator may consider
necessary or appropriate to accommodate differences in local law, tax policy
or
custom. The Company may adopt rules and procedures relating to the operation
and
administration of this Plan to accommodate the specific requirements of local
laws and procedures of particular countries. Without limiting the foregoing,
the
Company is specifically authorized to adopt rules and procedures regarding
the
conversion of local currency, taxes, withholding procedures and handling of
stock certificates which vary with the customs and requirements of particular
countries. The Company may adopt sub-plans and establish escrow accounts and
trusts as may be appropriate or applicable to particular locations and
countries.
24. No
Shareholder Rights
Neither
a
Participant nor any transferee of a Participant shall have any rights as a
shareholder of the Company with respect to any Shares underlying any Award
until
the date of issuance of a share certificate to a Participant or a transferee
of
a Participant for such Shares in accordance with the Company’s governing
instruments and Applicable Law. Prior to the issuance of Shares pursuant to
an
Award, a Participant shall not have the right to vote or to receive dividends
or
any other rights as a shareholder with respect to the Shares underlying the
Award, notwithstanding its exercise in the case of Options and SARs. No
adjustment will be made for a dividend or other right that is determined based
on a record date prior to the date the stock certificate is issued, except
as
otherwise specifically provided for in this Plan.
25. No
Employment Rights
Nothing
in the Plan or in any Grant Agreement thereunder shall confer any right on
an
individual to continue in the service of the Company or shall interfere in
any
way with the right of the Company to terminate such service at any time with
or
without cause or notice and whether or not such termination results in (i)
the failure of any Award to vest; (ii) the forfeiture of any unvested or
vested portion of any Award; and/or (iii) any other adverse effect on the
individual’s interests under the Plan.
26. No
Trust or Fund Created
Neither
the Plan nor any Award shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the Company and
a
grantee or any other person. To the extent that any grantee or other person
acquires a right to receive payments from the Company pursuant to an Award,
such
right shall be no greater than the right of any unsecured general creditor
of
the Company.
27. Compliance
with Section 409A of The Code
The
Company intends that all Options granted under the Plan not be considered to
provide for the deferral of compensation under Section 409A of the Code and
that any other Award that does provide for such deferral of compensation shall
comply with the requirements of Section 409A of the Code and, accordingly,
this Plan shall be so administered and construed. Further, the Company may
modify the Plan and any Award to the extent necessary to fulfill this
intent.
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