With respect to an option only, to the extent permitted by law and to the extent the award agreement so provides, payment of the exercise price may be made all or in part by delivery (on a form acceptable to the Company) of an irrevocable direction to a licensed securities broker acceptable to the Company to sell shares and to deliver all or part of the sales proceeds to the Company in payment of the exercise price and any withholding taxes.
To the extent the award agreement so provides, payment of the exercise price or the purchase price for restricted stock may be made in any other form that is consistent with applicable laws, regulations and rules, including the Company’s withholding of shares otherwise due to the applicable participant.
Performance Awards. The right of a participant to exercise or receive a grant or settlement of any award, and the timing thereof, may be subject to such performance conditions as may be specified by the Board. The Board may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance conditions, and may reduce the amounts payable under any award subject to performance conditions. The Board may determine that such awards will be granted, exercised or settled upon achievement of any one performance goal or that two or more of the performance goals must be achieved as a condition to grant, exercise or settlement of such awards. The Compensation Committee may determine the extent to which measurement of performance goals may exclude the impact of charges for restructuring, discontinued operations, extraordinary items, debt redemption or retirement, asset write downs, litigation or claim judgments or settlements, acquisitions or divestitures, foreign exchange gains and losses and other extraordinary, unusual or non-recurring items, and the cumulative effects of tax or accounting changes (each as defined by generally accepted accounting principles and as identified in the Company’s financial statements or other SEC filings).
Settlement of performance awards may be in cash, shares, other awards or other property. The Board may reduce the amount of a settlement otherwise to be made in connection with such awards.
Other Share-Based Awards. Other share-based awards may be granted in lieu of other cash or other compensation to which a service provider is entitled from the Company or may be used in the settlement of amounts payable in shares under any other compensation plan or arrangement of the Company, including any other Company incentive compensation plan. Unless the Board determines otherwise, any such award will be confirmed by an award agreement, which will contain such provisions as the Board determines to be necessary or appropriate to carry out the intent of the 2023 Plan with respect to such award.
Any common stock subject to other share-based awards may not be sold, assigned, transferred, pledged or otherwise encumbered prior to the date on which the shares are issued, or, if later, the date on which any applicable restriction, performance or deferral period lapses.
Requirements of Law. Notwithstanding any other provision of this 2023 Plan to the contrary, no participant who is a nonemployee director or an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act will be permitted to make payment with respect to any awards granted under the 2023 Plan, or continue any extension of credit with respect to such payment, with a loan from the Company or a loan arranged by the Company in violation of Section 13(k) of the Exchange Act.
Adjustments for Changes in Capital Structure. Subject to any required action by the stockholders, in the event of any change in the common stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders in a form other than shares (excepting normal cash dividends) that has a material effect on the fair market value of the shares, appropriate and proportionate adjustments will be made in the number and class of shares subject to the 2023 Plan and to any outstanding awards, and in the exercise price or purchase price per share of any outstanding awards in order to prevent dilution or enlargement of participants’ rights under the 2023 Plan.
In the event of any such amendment, the number of shares subject to, and the exercise price or purchase price per share of, the outstanding awards will be adjusted in a fair and equitable manner.
In no event may the exercise price of any award be decreased to an amount less than the par value, if any, of the stock subject to the award. The Board may also make such adjustments in the terms of any award to reflect, or related to, such changes in the capital structure of the Company or distributions as it deems appropriate.