Blueprint





 






EXHIBIT
10.58


 



FUSION TELECOMMUNICATIONS INTERNATIONAL, INC



 



2016 EQUITY INCENTIVE PLAN



 



EFFECTIVE DATE: October 28, 2016



APPROVED BY STOCKHOLDERS: October 28, 2016



TERMINATION DATE: October 27, 2026


 



ARTICLE 1



Establishment, Purpose, Effective Date, Expiration
Date


 


1.1           Establishment.  Fusion
Telecommunications International, Inc., a Delaware corporation (the
“Company”), hereby
establishes the Fusion Telecommunications International, Inc. 2016
Equity Incentive Plan (the “Plan”). The Plan will
supersede and replace the Fusion Telecommunications International,
Inc. 2009 Stock Option Plan, effective as of December 2009 (the
“2009
Plan”). No awards will be made pursuant to the 2009
Plan on or after the Effective Date; provided, however, that the
2009 Plan shall remain in effect until all awards granted under the
2009 Plan have been exercised, forfeited, canceled, expired or
otherwise terminated in accordance with the terms of such
grants.


 


1.2           Purpose. The
purpose of the Plan is to advance the interests of the Company and
its stockholders by enhancing the Company’s ability to
attract and retain qualified persons to perform services for the
Company, by providing incentives to such persons to put forth
maximum efforts for the Company and by rewarding persons who
contribute to the achievement of the Company’s economic
objectives. To further these objectives, the Plan provides for the
grant of Options, Stock Appreciation Rights, Restricted Stock,
Restricted Stock Units, Stock Grants, Stock Units, Performance
Shares, Performance Share Units, and Performance Cash. The Plan
also permits the grant of Awards that qualify for the
“performance-based compensation” exception to the
limitations on the deduction of compensation imposed by Section
162(m) of the Code. At the same time, the Plan permits the
Committee, in the exercise of its discretion, to grant Awards to
Covered Employees that do not qualify for the
“performance-based compensation”
exception.


 


1.3           Effective
Date. The Plan will
become effective on the date it is approved by the stockholders at
the Company’s 2016 Annual Meeting (the “Effective
Date”).


 


1.4           Expiration
Date. The Plan
will expire on, and no Award may be granted under the Plan after,
the tenth (10th) anniversary
of the Effective Date (the “Expiration Date”). Any
Awards that are outstanding on the Expiration Date shall remain in
force according to the terms of the Plan and the applicable Award
Agreement.


 



ARTICLE 2



Glossary; Construction


 


2.1           Glossary. When
a word or phrase appears in this Plan document with the initial
letter capitalized, and the word or phrase does not commence a
sentence, the word or phrase will generally be given the meaning
ascribed to it in Article
1 or in the attached Glossary, which is incorporated into
and is part of the Plan. All of these key terms are listed in the
Glossary. Whenever these key terms are used, they will be given the
defined meaning unless a clearly different meaning is required by
the context.


 


2.2           Construction.
The masculine gender, where appearing in the Plan, shall include
the feminine gender (and vice versa), and the singular shall
include the plural, unless the context clearly indicates to the
contrary. If any provision of this Plan is determined to be for any
reason invalid or unenforceable, the remaining provisions shall
continue in full force and effect.


 



 

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ARTICLE 3



Eligibility and Participation


 


3.1           General
Eligibility. Persons
eligible to participate in this Plan include all employees,
officers, Non-Employee Directors of, and Consultants to, the
Company or any Affiliate. Awards may also be granted to prospective
employees or Non-Employee Directors but no portion of any such
Award will vest, become exercisable, be issued, or become effective
prior to the date on which such individual begins to provide
services to the Company or its Affiliates.


 


3.2           Actual
Participation. Subject to the provisions of the
Plan, the Committee may, from time to time, select from among all
eligible individuals, those to whom Awards will be granted and will
determine the nature and amount of each Award.


 



ARTICLE 4



Administration


 


4.1           General. The
Plan shall be administered by the Committee or, with respect to
individuals who are Non-Employee Directors, the Board. All
references in the Plan to the “Committee” shall refer to
the Committee or Board, as applicable. The Committee, by majority
action thereof, is authorized to interpret the Plan, to prescribe,
amend, and rescind rules and regulations as it may deem necessary
or advisable to administer the Plan, to provide for conditions and
assurances deemed necessary or advisable to protect the interests
of the Company, and to make all other determinations necessary or
advisable for the administration of the Plan, but only to the
extent not contrary to the express provisions of the Plan.
Determinations, interpretations, or other actions made or taken by
the Committee in good faith pursuant to the provisions of the Plan
shall be final, binding and conclusive for all purposes of the
Plan.


 


4.2           Committee
Responsibilities.
Subject to the provisions of the Plan, the Committee shall have the
authority to: (a) designate the Participants who are entitled to
receive Awards under the Plan; (b) determine the types of Awards
and the times when Awards will be granted; (c) determine the number
of Awards to be granted and the number of shares of Stock to which
an Award will relate; (d) determine the terms and conditions of any
Award, including, but not limited to, the purchase price or
exercise price or base value, the grant price, the period(s) during
which such Awards shall be exercisable (whether in whole or in
part); (e) any restrictions or limitations on the Award, any
schedule for lapse of restrictions or limitations, and
accelerations or waivers thereof, based in each case on such
considerations as the Committee determines; provided, however, that
except in the case of a Change in Control, the Committee shall not
have the authority to accelerate the vesting or waive the
forfeiture restrictions on any Performance-Based Award; (f)
determine whether, to what extent, and in what circumstances an
Award may be settled in, or the exercise price or purchase price of
an Award may be paid in cash, Stock, or other Awards, or other
property, or whether an Award may be canceled, forfeited, exchanged
or surrendered; (g) prescribe the form of each Award Agreement,
which need not be the same for each Participant; (h) decide all
other matters that must be determined in connection with an Award;
(i) interpret the terms of, and determine any matter arising
pursuant to, the Plan or any Award Agreement; and (j) make all
other decisions or determinations that may be required pursuant to
the Plan or an Award Agreement as the Committee deems necessary or
advisable to administer the Plan. The Committee shall also have the
authority to modify existing Awards to the extent that such
modification is within the power and authority of the Committee as
set forth in the Plan.


 


4.3           Decisions
Final. The Committee
shall have the authority to interpret the Plan and subject to the
provisions of the Plan, any Award Agreement, and all decisions and
determinations by the Committee with respect to the Plan are final,
binding and conclusive on all parties. No member of the Committee
shall be liable for any action or determination made in good faith
with respect to the Plan or any Award granted under the
Plan.


 



 

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ARTICLE 5



Shares Available for Grant


 


5.1           Number
of Shares.  Subject to adjustment as
provided in Section 5.4, the aggregate number of shares of Stock
reserved and available for grant pursuant to the Plan shall be an
amount equal to ten percent (10%) of our shares of common stock
outstanding from time-to-time on a fully-diluted basis,
plus shares from any award granted under the 2009 Plan that
terminates, expires or lapses for any reason in the future. In
addition, the 101,749 shares not granted under the 2009 Plan will
be available for grant under this Plan. The shares of Stock
delivered pursuant to any Award may consist, in whole or in part,
of authorized by unissued Stock, treasury Stock not reserved for
any other purposes, or Stock purchased on the open
market.


 


5.2           Share
Counting. The
following rules shall apply solely for purposes of determining the
number of shares of Stock available for grant under the Plan at any
given time:


 


(a)           In
the event any Award granted under the Plan, or any award
outstanding under the 2009 Plan after the Effective Date is
terminated, expired, forfeited, or canceled for any reason, the
number of shares of Stock subject to such Award will again be
available for grant under the Plan (i.e., any prior charge against
the limit set forth in Section 5.1 shall be reversed).


 


(b)           If
shares of Stock are not delivered in connection with an Award
because the Award may only be settled in cash rather than in Stock,
no shares of Stock shall be counted against the limit set forth in
Section 5.1. If any Award may be settled in cash or Stock, the
rules set forth in Section 5.2(a) shall apply until the Award is
settled, at which time the underlying shares of Stock will be added
back to the shares available for grant pursuant to Section 5.1 but
only if the Award is settled in cash.


 


(c)           The
exercise of a stock-settled SAR or broker-assisted
“cashless” exercise of an Option (or a portion thereof)
will reduce the number of shares available for grant under Section
5.1 by the entire number of shares of Stock subject to that SAR or
Option (or applicable portion thereof), even though a smaller
number of shares of Stock will be issued upon such an
exercise.


 


(d)           Shares
of Stock tendered to pay the exercise price of an Option or
tendered, withheld or otherwise relinquished by a Participant to
satisfy a tax withholding obligation arising in connection with an
Award will not again become Stock available for grant under the
Plan. Moreover, shares of Stock purchased on the open market with
cash proceeds generated by the exercise of an Option will not
increase or replenish the number of shares available for grant
under Section 5.1.


 


(e)           If
the provisions of this Section 5.2 are inconsistent with the
requirements of any regulations issued pursuant to Section 422 of
the Code, the provisions of such regulations shall control over the
provisions of this Section 5.2, but only as this Section 5.2
relates to Incentive Stock Options.


 


(f)           The
Committee may adopt such other reasonable rules and procedures as
it deems to be appropriate for determining the number of shares of
Stock that are available for grant under Section 5.1.


 


5.3           Award
Limits.
Notwithstanding any other provision in the Plan, and subject to
adjustment as provided in Section 5.4:


 


(a)           The
maximum number of shares of Stock that may be issued as Incentive
Stock Options under the Plan shall be the same numeric limit set
forth in Section 5.1.


 


(b)           The
maximum number of shares of Stock that may be granted to any one
Participant during any 12-month period with respect to one or more
Awards shall be 1,000,000.


 



 

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(c)           The
maximum Performance Cash Award payable for any 12-month Performance
Period to any one Participant is $1,000,000. If the Performance
Period exceeds 12 months, the dollar limit expressed in the
preceding sentence shall be reduced or increased
proportionately.


 


(d)           The
aggregate Grant Date Fair Market Value of Awards granted to any one
Participant who is a Non-Employee Director during any one 12-month
period with respect to one or more Awards shall be
$500,000.


 


5.4           Adjustments
in Capitalization. In
the event of any change in the outstanding shares of Stock by
reason of a Stock dividend or split, recapitalization, liquidation,
merger, consolidation, combination, exchange of shares, or other
similar corporate change, the Committee shall make a proportionate
adjustment in: (a) the number and class of shares of Stock made
available for grant pursuant to Section 5.1; (b) the number of
shares of Stock set forth in Section 5.3, 11.9, and any other
similar numeric limit expressed in the Plan; (c) the number and
class of and/or price of shares of Stock subject to then
outstanding Awards; (d) subject to the limitations imposed on
Performance-Based Awards, the performance targets or other goals
applicable to any outstanding Awards; or (e) any other terms of an
Award that are affected by the event. Moreover, in the event of
such transaction or event, the Committee, in its discretion may
provide in substitution for any or all outstanding awards under the
Plan such alternative consideration (including cash) as it, in good
faith, may determine to be equitable under the circumstances and
may require in connection therewith the surrender of all Awards so
replaced. Any action taken pursuant to this Section 5.4 shall be
taken in a manner consistent with the requirements of Section 409A
of the Code and, in the case of Incentive Stock Options, in
accordance with the requirements of Section 424(a) of the
Code.


 


5.5           Replacement
Awards. In the event
of any corporate transaction in which the Company or an Affiliate
acquires a corporate entity which, at the time of such transaction,
maintains an equity compensation plan pursuant to which awards of
stock options, SARs, restricted stock, or any other form of equity
based compensation are then outstanding (the “Acquired Plan”), the
Committee may make Awards to assume, substitute or convert such
outstanding awards in such manner as may be determined to be
appropriate and equitable by the Committee; provided, however, that
the number of shares of Stock subject to any Award shall always be
a whole number by rounding any fractional share to the nearest
whole share. Options or SARs issued pursuant to this Section 5.5
shall not be subject to the requirement that the exercise price of
such Award not be less than the Fair Market Value of Stock on the
date the Award is granted. Shares used in connection with an Award
granted in substitution for an award outstanding under an Acquired
Plan under this Section 5.5 shall not be counted against the number
of shares of Stock available for grant under Section 5.1. Any
shares of Stock authorized and available for issuance under the
Acquired Plan shall, subject to adjustment as described in Section
5.4, be available for use in making Awards under this Plan with
respect to persons eligible under such Acquired Plan, by virtue of
the Company’s assumption of such Acquired Plan, consistent
with Nasdaq Listing Rules (or rules of any other exchange upon
which the Stock is then traded), as such rules may be amended or
replaced from time to time.


 


5.6           Fractional
Shares. No fractional
shares of Stock shall be issued pursuant to the Plan. Unless the
Committee specifies otherwise in the Award Agreement, or pursuant
to any policy adopted by the Committee, cash will be given in lieu
of fractional shares. In the event of adjustment as provided in
Section 5.4 or the issuance of replacement awards as provided in
Section 5.5, the total number of shares of Stock subject to any
affected Award shall always be a whole number by rounding any
fractional share to the nearest whole share.


 



ARTICLE 6



Stock Options


 


6.1           Options.
Subject to the terms and provisions of the Plan, the Committee, at
any time and from time to time, may grant Options to one or more
Participants upon such terms and conditions and in such amounts, as
shall be determined by the Committee. Options are also subject to
the following additional terms and conditions:


 


(a)           Exercise
Price.  No
Option shall be granted at an exercise price that is less than the
Fair Market Value of one share of Stock on the Grant
Date.


 



 

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(b)           Exercise
of Option.  Options shall be
exercisable at such times and in such manner, and shall be subject
to such restrictions or conditions, as the Committee shall in each
instance approve, which need not be the same for each grant or for
each Participant.


 


(c)           Term
of Option. Each
Option shall expire at such time as determined by the Committee;
provided, however, that no Option shall be exercisable later than
the tenth (10th) anniversary the Grant Date.


 


(d)           Payment.  The
exercise price for any Option shall be paid in cash or shares of
Stock held for longer than six (6) months (through actual tender or
by attestation). In the Award Agreement, the Committee also may
prescribe other methods by which the exercise price of an Option
may be paid and the form of payment including, without limitation,
any net-issuance arrangement or other property acceptable to the
Committee (including broker-assisted “cashless
exercise” arrangements), and the methods by which shares of
Stock shall be delivered or deemed to be delivered to Participants.
The Committee, in consideration of applicable accounting standards
and applicable law, may waive the six (6) month share holding
period described in the first sentence of this paragraph (d) in the
event payment of an Option is made through the tendering of
shares.


 


(e)           Repricing
of Options.  Notwithstanding any other
provision in the Plan to the contrary, without approval of the
Company’s stockholders, an Option may not be amended,
modified or repriced to reduce the exercise price after the Grant
Date. Except as otherwise provided in Section 5.4 with respect to
an adjustment in capitalization, an Option also may not be
surrendered in consideration of a new Option having an exercise
price below the exercise price of the Option being surrendered or
exchanged.


 


(f)           Nontransferability
of Options. No Option
may be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated, other than by will or by the laws of descent and
distribution. Further, all Options granted to a Participant shall
be exercisable during his or her lifetime only by such Participant
or his or her legal representative. Notwithstanding the foregoing,
the Committee may, in its discretion, permit the transfer of an
Option to a Family Member, trust or partnership, or to a charitable
organization, provided that no value or consideration is received
by the Participant with respect to such transfer.


 


6.2           Incentive
Stock Options.
Incentive Stock Options shall be granted only to Participants who
are employees and the terms of any Incentive Stock Options granted
pursuant to the Plan must comply with the following additional
provisions of this Section 6.2:


 


(a)           Exercise
Price. Subject to
Section 6.2(e), the exercise price per share of Stock pursuant to
any Incentive Stock Option shall be set by the Committee, provided
that the exercise price for any Incentive Stock Option shall not be
less than the Fair Market Value of one share of Stock as of the
Grant Date.


 


(b)           Term
of Incentive Stock Option.  In no event may any
Incentive Stock Option be exercisable for more than ten (10) years
from the Grant Date.


 


(c)           Lapse
of Option. An
Incentive Stock Option shall lapse in the following
circumstances:


 


(1)           The
Incentive Stock Option shall lapse ten (10) years from the Grant
Date, unless an earlier time is set in the Award
Agreement;


 


(2)           The
Incentive Stock Option shall lapse upon a Termination of Employment
for any reason other than the Participant’s death or
Disability, unless otherwise provided in the Award Agreement;
and


 


(3)           If
the Participant incurs a Termination of Employment on account of
Disability or death before the Option lapses pursuant to paragraph
(i) or (ii) above, the Incentive Stock Option shall lapse, unless
it is previously exercised, on the earlier of: (a) the scheduled
termination date of the Option; or (b) twelve months after the date
of the Participant’s Termination of Employment on account of
death or Disability. Upon the Participant’s death or
Disability, any Incentive Stock Options exercisable at the
Participant’s death or Disability may be exercised by the
Participant’s legal representative or representatives, by the
person or persons entitled to do so pursuant to the
Participant’s last will and testament, or, if the Participant
fails to make testamentary disposition of such Incentive Stock
Option or dies intestate, by the person or persons entitled to
receive the Incentive Stock Option pursuant to the applicable laws
of descent and distribution.


  
 



 

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(d)           Individual
Dollar Limitation.  The aggregate Fair Market
Value (determined as of the time an Award is made) of all shares of
Stock with respect to which Incentive Stock Options are first
exercisable by a Participant in any calendar year may not exceed
$100,000 or such other limitation as imposed by Section 422(d) of
the Code, or any successor provision. To the extent that Incentive
Stock Options are first exercisable by a Participant in excess of
such limitation, the excess shall be considered Non-Qualified Stock
Options.


 


(e)           Ten
Percent Owners.  An Incentive Stock Option
may be granted to any individual who, at the Grant Date, owns stock
possessing more than ten percent (10%) of the total combined voting
power of all classes of Stock of the Company only if such Option is
granted at a price that is not less than 110% of Fair Market Value
on the Grant Date and the Option is exercisable for no more than
five (5) years from the Grant Date.


 


(f)           Right
to Exercise. Except
as provided in Section 6.2(c)(iii), an Incentive Stock Option may
be exercised only by the Participant during the Participant’s
lifetime.


 


(g)           Limitation
on Number of Shares Subject to Awards.  In accordance with Section
5.3(a), but subject to adjustment as provided in Section 5.4, the
maximum number of shares of Stock that may be issued as Incentive
Stock Options under the Plan shall be the same numeric limit set
forth in Section 5.1.


 



ARTICLE 7



Stock Appreciation Rights


 


7.1           Stock
Appreciation Rights.  Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to
time, may grant SARs to one or more Participants upon such terms
and conditions and in such amounts, as shall be determined by the
Committee. SARs may be granted in connection with the grant of an
Option, in which case the exercise of such SARs will result in the
surrender of the right to purchase the shares under the Option as
to which the SARs were exercised. When SARs are granted in
connection an Incentive Stock Option, the SARs shall have such
terms and conditions as shall be required by Section 422 of the
Code. Alternatively, SARs may be granted independently of Options.
SARs are also subject to the following additional terms and
conditions:


 


(a)           Base
Value.  No
SAR shall be granted at a base value that is less than the Fair
Market Value of one share of Stock on the Grant Date.


 


(b)           Exercise
of SARs.  SARs shall be exercisable
at such times and be subject to such restrictions and conditions as
the Committee shall, in each instance approve, which need not be
the same for all Participants.


 


(c)           Term
of SARs. Each SAR
shall expire at such time as determined by the Committee; provided,
however, that no SAR shall be exercisable later than the tenth
(10th) anniversary the Grant Date.


 


(d)           Payment
of SAR Amount. Upon
the exercise of a SAR, the Participant shall be entitled to receive
the payment of an amount determined by multiplying: (i) the excess,
if any, of the Fair Market Value of a share of Stock on the date of
exercise, over the base value fixed by the Committee on the Grant
Date; by (ii) the number of shares with respect to which the SAR is
exercised. Payment for SARs shall be made in manner and at the time
specified by the Committee in the Award Agreement. At the
discretion of the Committee, the Award Agreement may provide for
payment of SARs in cash, shares of Stock of equivalent value, or in
a combination thereof. 


 


(e)           Repricing
of SARs.   Notwithstanding any
other provision in the Plan to the contrary, without approval of
the Company’s stockholders, a SAR may not be amended,
modified or repriced to reduce the base value after the Grant Date.
Except as otherwise provided in Section 5.4 with respect to an
adjustment in capitalization, a SAR also may not be surrendered in
consideration of or exchanged for cash, other Awards or a new SAR
having a base value below the base value of the SAR being
surrendered or exchanged.


 



 

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(f)           Nontransferability
of SARs. No SAR may
be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, all SARs granted to a Participant shall be
exercisable during his or her lifetime only by such Participant or
his or her legal representative. Notwithstanding the foregoing, the
Committee may, in its discretion, permit the transfer of a SAR to a
Family Member, trust or partnership, or to a charitable
organization, provided that no value or consideration is received
by the Participant with respect to such transfer.


 



ARTICLE 8



Restricted Stock and Restricted Stock Units


 


8.1           Restricted
Stock.  Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to
time, may grant Restricted Stock to one or more Participants upon
such terms and conditions, and in such amounts, as shall be
determined by the Committee. Restricted Stock Awards are also
subject to the following additional terms and
conditions:


 


(a)           Issuance
and Restrictions.
Restricted Stock shall be subject to such conditions and/or
restrictions as the Committee may impose (including, without
limitation, limitations on transferability, the right to receive
dividends, or the right to vote the Restricted Stock), which need
not be the same for each grant or for each Participant. These
restrictions may lapse separately or in combination at such times,
pursuant to such circumstances, in such installments, or otherwise,
as determined by the Committee. Except as otherwise provided in the
Award Agreement, Participants holding shares of Restricted Stock
may not exercise voting rights with respect to the shares of
Restricted Stock during the period of restriction.


 


(b)           Forfeiture.
Except as otherwise provided in the Award Agreement, upon a
Termination of Employment (or Termination of Service in the case of
a Consultant or Non-Employee Director) during the applicable period
of restriction, Restricted Stock that is at that time subject to
restrictions shall be forfeited.


 


(c)           Evidence
of Ownership for Restricted Stock.  Restricted Stock granted
pursuant to the Plan may be evidenced in such manner as the
Committee shall determine, which may include an appropriate book
entry credit on the books of the Company or a duly authorized
transfer agent of the Company. If certificates representing shares
of Restricted Stock are registered in the name of the Participant,
the certificates must bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Restricted
Stock, and the Company may, in its discretion, retain physical
possession of the certificate until such time as all applicable
restrictions lapse.


 


8.2           Restricted
Stock Units. Subject
to the terms and provisions of the Plan, the Committee, at any time
and from time to time, may grant Restricted Stock Units to one or
more Participants upon such terms and conditions, and in such
amounts, as shall be determined by the Committee. Restricted Stock
Unit Awards are also subject to the following additional terms and
conditions:


 


(a)           Issuance
and Restrictions.  Restricted Stock Unit
Awards grant a Participant the right to receive a specified number
of shares of Stock, or a cash payment equal to the Fair Market
Value (determined as of a specified date) of a specified number of
shares of Stock, subject to such conditions and/or restrictions as
the Committee may impose, which need not be the same for each grant
or for each Participant. These restrictions may lapse separately or
in combination at such times, in such circumstances, in such
installments, or otherwise, as determined by the
Committee. 


 


(b)           Forfeiture.
Except as otherwise provided in the Award Agreement, upon a
Termination of Employment (or Termination of Service in the case of
a Consultant or Non-Employee Director) during the applicable period
of restriction, Restricted Stock Units that are at that time
subject to restrictions shall be forfeited.


 



 

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(c)           Form
and Timing of Payment.  Payment for vested
Restricted Stock Units shall be made in the manner and at the time
designated by the Committee in the Award Agreement. In the Award
Agreement, the Committee may provide that payment will be made in
cash or Stock, or in a combination thereof.


 



ARTICLE 9



Stock Grant and Stock Units


 


9.1           Stock
Grants.  Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to
time, may grant Stock Awards to one or more Participants upon such
terms and conditions, and in such amounts, as shall be determined
by the Committee. Subject to Section 5.3(e), a Stock Grant Award
grants the Participant the right to receive (or purchase at such
price as determined by the Committee) a designated number of shares
of Stock free of any vesting restrictions. The purchase price, if
any, for a Stock Grant Award shall be payable in cash or other form
of consideration acceptable to the Committee. A Stock Grant Award
may be granted or sold as described in the preceding sentence in
respect of past services or other valid consideration, or in lieu
of any cash compensation due to such Participant.


 


9.2           Stock
Units. Subject to the
terms and provisions of the Plan, the Committee, at any time and
from time to time, may grant Stock Unit Awards to one or more
Participants upon such terms and conditions, and in such amounts,
as shall be determined by the Committee. Subject to Section 5.3(e),
a Stock Unit Award grants the Participant the right to receive a
designated number of shares of Stock, or a cash payment equal to
the Fair Market Value (determined as of a specified date) of a
designated number of shares of Stock, in the future free of any
vesting restrictions. A Stock Unit Award may be granted as
described in the preceding sentence in respect of past services or
other valid consideration, or in lieu of any cash compensation due
to such Participant.


 



ARTICLE 10



Performance Shares, Performance Share Units,



and Performance Cash


 


10.1           Performance
Shares.  Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to
time, may grant Performance Shares to one or more Participants upon
such terms and conditions, and in such amounts, as shall be
determined by the Committee. A Performance Share grants the
Participant the right to receive a specified number of shares of
Stock depending on the satisfaction of any one or more Performance
Goals. Performance may be measured on a specified date or dates or
over any period or periods determined by the Committee. Unless
otherwise provided in the Award Agreement, payment for vested
Performance Shares shall be made in Stock.


 


10.2           Performance
Share Units. Subject
to the terms and provisions of the Plan, the Committee, at any time
and from time to time, may grant Performance Share Units to one or
more Participants upon such terms and conditions, and in such
amounts, as shall be determined by the Committee. A Performance
Share Unit grants the Participant the right to receive a specified
number of shares of Stock or a cash payment equal to the Fair
Market Value (determined as of a specified date) of a specified
number of shares of Stock depending on the satisfaction of any one
or more Performance Goals. Performance may be measured on a
specified date or dates or over any period or periods determined by
the Committee. At the discretion of the Committee, the Award
Agreement may provide for payment for vested Performance Share
Units in cash, shares of Stock of equivalent cash value, or in a
combination thereof.


  


10.3           Performance
Cash. Subject to the
terms and provisions of the Plan, the Committee, at any time and
from time to time, may grant Performance Cash to one or more
Participants upon such terms and conditions, and in such amounts,
as shall be determined by the Committee. A Performance Cash Award
grants the Participant the right to receive an amount of cash
depending on the satisfaction of any one or more Performance
Goals.  Performance may be measured on a specified date
or dates or over any period or periods determined by the
Committee.


 


10.4           Performance
Goals. The
Performance Goal or Goals applicable to any Performance Share,
Performance Share Unit or Performance Cash Award shall be based on
the Performance Criteria selected by the Committee and designated
in the Award Agreement. The Performance Criteria applicable to any
Performance Share, Performance Share Unit or Performance Cash Award
granted to a Covered Employee that is designated as, or deemed to
be, a Performance-Based Award pursuant to Section 11 shall be
limited to the Performance Criteria specifically listed in the
Glossary. The Performance Criteria applicable to any other
Performance Share, Performance Share Unit or Performance Cash Award
shall include the Performance Criteria specifically listed in the
Glossary and such other criteria or factors as may be determined by
the Committee and specified in the Award Agreement. Except as
otherwise provided in Section 11 with respect to Performance-Based
Awards to Covered Employees, the Committee shall retain the power
to adjust the Performance Goals, the level of attainment of the
Performance Goals or otherwise increase or decrease the amount
payable with respect to any Award made pursuant to this Section
10.


 



 

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ARTICLE 11



Performance-Based Awards


 


11.1           Purpose.  Section
162(m) of the Code limits the amount of the Company’s
deductions for compensation payable to Covered Employees to
$1,000,000 per year. “Performance-based compensation”
that meets the requirements set forth in Section 162(m) of the Code
is not subject to this limitation. The purpose of this Section 11
is to enable the Committee to qualify some or all of the Awards
granted pursuant to Sections 8 and 10 as “performance-based
compensation” pursuant to Section 162(m) of the Code. If the
Committee decides that a particular Award to a Covered Employee
should qualify as “performance-based compensation,” the
Committee will provide in the Award Agreement or otherwise that the
Award is intended to be a Performance-Based Award.


 


11.2           Applicability.
This Section 11 shall apply only to Performance-Based Awards. If
this Section 11 applies, its provisions control over any contrary
provision contained in any other section of this Plan or any Award
Agreement. The provisions of this Section 11 and any Award
Agreement for a Performance-Based Award shall be interpreted in a
manner consistent with the requirements of Section 162(m) of the
Code. If any provision of this Plan or any Award Agreement for a
Performance-Based Award does not comply with or is inconsistent
with the requirements of Section 162(m) of the Code, such provision
shall be construed or deemed amended to the extent necessary to
conform to such requirements.


 


11.3           Committee
Discretion with Respect to Performance-Based
Awards. With regard
to a particular Performance Period, the Committee shall have full
discretion to select the length of the Performance Period, the type
of Performance-Based Awards to be issued, the kind and/or level of
the Performance Goal or Goals and whether the Performance Goal or
Goals apply to the Company or an Affiliate or any division or
business unit thereof or the Participant or any group of
Participants. Depending on the Performance Criteria used to
establish the Performance Goals, the Performance Goals may be
stated in terms of absolute levels or relative to another company
or to an index or indices.


  


11.4           Establishment
of Performance Goals.
A Performance-Based Award shall provide for payment only upon the
attainment of one or more pre-established, objective Performance
Goals. The Performance Goals, and the process by which they are
established, shall satisfy all of the requirements of Section
162(m) of the Code. By way of illustration, but not limitation, the
following requirements must be satisfied:


 


(a)           The
Performance Goals shall be based solely on the Performance Criteria
specifically identified in the Glossary;


 


(b)           The
Performance Goals shall be considered to be pre-established only if
the Performance Goals are established by the Committee in writing
not later than 90 days after the commencement of the Performance
Period for such Award provided that: (i) the outcome must be
substantially uncertain at the time the Committee establishes the
Performance Goals; and (ii) in no event may the Committee establish
the Performance Goals for any Performance-Based Award after 25% of
the Performance Period for such Award has elapsed;


 


(c)           A
Performance Goal will be considered to be objective only if a third
party having knowledge of the relevant facts could determine
whether the Performance Goal has been met;


 


(d)           The
Performance Goal must state, in terms of an objective formula or
standard, the method for computing the amount of compensation
payable to the Covered Employee if the Goal is attained. For this
purpose, the formula will be considered to be objective only if a
third party having knowledge of the relevant performance results
could calculate the amount to be paid to the Covered Employee;
and


 



 

9







 






 


(e)           The
objective formula or standard must preclude discretion to increase
the amount of compensation payable that would otherwise be due upon
attainment of the Performance Goal.


 


11.5           Performance
Evaluation; Adjustment of Goals. At the time a Performance-Based Award
is first issued, the Committee, in the Award Agreement or in
another written document, shall specify whether performance will be
evaluated including or excluding the effect of any of the following
events that occur during the Performance Period, as the Committee
deems appropriate: (a) judgments entered or settlements reached in
litigation or regulator proceedings; (b) the write down or sale of
assets; (c) the impact of any reorganization or restructuring; (d)
the impact of changes in tax laws, accounting principles,
regulatory actions or other laws affecting reported results; (e)
items that are unusual in nature or infrequently occurring as
described in Accounting Standards Update 2015-01 and/or in
management’s discussion and analysis of financial condition
and results of operations appearing in the Company’s annual
report to stockholders or Annual Report on Form 10-K, as the case
may be, for the applicable year; (f) the impact of any mergers,
acquisitions, spin-offs or other divestitures; and (g) foreign
exchange gains and losses.


 


The
inclusion or exclusion of these items shall be expressed in a form
that satisfies the requirements of Section 162(m) of the Code. The
Committee, in its discretion, also may, within the time prescribed
by Section 162(m) of the Code, adjust or modify the calculation of
Performance Goals for such Performance Period in order to prevent
the dilution or enlargement of the rights of Participants: (i) in
the event of, or in anticipation of, any unusual or extraordinary
corporate item, transaction, event, or development; or (ii) in
recognition of, or in anticipation of, any other unusual or
nonrecurring events affecting the Company, or the financial
statements of the Company, or in response to, or in anticipation
of, changes in applicable laws, regulations, accounting principles,
or business conditions.


 


11.6           Adjustment
of Performance-Based Awards. Notwithstanding any provision herein
to the contrary, the Committee may not make any adjustment or take
any other action with respect to any Performance-Based Award that
will increase the amount payable under any such Award. The
Committee shall retain the sole discretion to adjust
Performance-Based Awards downward or to otherwise reduce the amount
payable with respect to any Performance-Based Award.


 


11.7           Continued
Employment Required.
Unless otherwise provided in the relevant Award Agreement or in the
case of a Change in Control, a Participant must be an employee of
the Company or an Affiliate on the day a Performance-Based Award
for such Performance Period is paid to the
Participant.


 

             
11.8           Certification
By Committee.
Notwithstanding any provisions to the contrary, the payment of a
Performance-Based Award shall not occur until the Committee
certifies, in writing, that the pre-established Performance Goals
and any other material terms and conditions precedent to such
payment have been satisfied. Committee certification is not
required for compensation that is attributable solely to the
increase in the value of the Company’s Stock.


 


11.9           Maximum
Award Payable. In
accordance with Section 5.3, but subject to adjustment as provided
in Section 5.4, the maximum Performance-Based Award (other than a
Performance Cash Award of Performance Share Unit Award payable in
cash) payable to any one participant for any 12-month Performance
Period is 1,000,000 shares of Stock or the equivalent cash
value. The maximum Performance Cash Award (or Performance Share
Unit Award payable in cash) payable to any one Participant for any
12-month Performance Period is $1,000,000. If the Performance
Period exceeds 12 months, the dollar and share limits expressed in
the preceding sentences shall be reduced or increased
proportionately, as the case may be. For example, if the
Performance Period is three (3) years, the limit shall be increased
by multiplying it by three.


 


11.10           Miscellaneous.
The designation of a Covered Employee as a Participant for any
Performance Period shall not in any manner entitle the Participant
to receive a Performance-Based Award for such Performance Period.
Moreover, designation of a Covered Employee as a Participant for a
particular Performance Period shall not require designation of such
Covered Employee as a Participant for any subsequent Performance
Period.


 








 

10








 










 



ARTICLE 12



Change in Control


 


12.1           Vesting.
If so specified by the Committee at the time of the grant of an
Award, such Award shall become fully vested and exercisable and all
restrictions on such Awards shall lapse if, following a Change in
Control, the Participant’s employment is
terminated without Cause or Participant resigns for Good
Reason. To the extent that this provision causes Incentive Stock
Options to exceed the dollar limitation set forth in Section 422(d)
of the Code or any successor provision, the excess Options shall be
deemed to be Non-Qualified Stock Options.


 


12.2           Participant
Consent Not Required.
Nothing in this Section 12 or any other provision of this Plan is
intended to provide any Participant with any right to consent to or
object to any transaction that might result in a Change in Control
and each provision of this Plan shall be interpreted in a manner
consistent with this intent. Similarly, nothing in this Section 12
or any other provision of this Plan is intended to provide any
Participant with any right to consent to or object to any action
taken by the Board or Committee in connection with a Change in
Control transaction.


 



ARTICLE 13



Other Provisions Applicable to Awards


 


13.1           Award
Agreements.  All Awards shall be
evidenced by an Award Agreement. The Award Agreement shall include
such terms and provisions as the Committee determines appropriate.
The terms of the Award Agreement may vary depending on the type of
Award, the employee or classification of the employee to whom the
Award is made and such other factors as the Committee deems
appropriate.


 


13.2           Termination
of Employment or Service. Subject to the provisions of this
Plan, the Committee shall determine and set forth in the applicable
Award Agreement the extent to which a Participant shall
(i) have the right to retain and/or exercise an Award
following a Termination of Employment or (Termination of Service in
the context of a Consultant or Non-Employee Director) or (ii) be
entitled to accelerated vesting if the Participant is
terminated following a Change in Control. Such provisions need
not be uniform among all types of Awards and may reflect
distinctions based on the reasons for such terminations, including,
but not limited to, death, Disability, a termination for Cause or
reasons relating to the breach or threatened breach of restrictive
covenants.


 


13.3           Form
of Payment. Subject
to the provisions of this Plan, the Award Agreement and any
applicable law, payments or transfers to be made by the Company or
any Affiliate on the grant, exercise, or settlement of any Award
may be made in such form as determined by the Committee including,
without limitation, cash, Stock, other Awards, or other property,
or any combination thereof, and may be made in a single payment or
transfer, in installments, or any combination thereof, in each case
determined by rules adopted by the Committee.


 


13.4  
       Limits on
Transfer.


 


(a)           General.
Except as provided in Section 6.1(f), Section 7.1(f), Section
13.4(b) or Section 13.5, no Award granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution or pursuant to a domestic relations order (that would
otherwise qualify as a qualified domestic relations order as
defined in the Code or Title I of ERISA but for the fact that the
order pertains to an Award) in favor of a spouse or, if applicable,
until the expiration of any period during which any restrictions
are applicable or any Performance Period as determined by the
Committee.


 


(b)           Transfer
to Family Members.
The Committee shall have the authority to adopt a written policy
that is applicable to existing Awards, new Awards, or both, which
permits a Participant to transfer Awards during his or her lifetime
to any Family Member. In the event an Award is transferred as
permitted by such policy, such transferred Award may not be
subsequently transferred by the transferee (other than another
transfer meeting the conditions set forth in the policy) except by
will or the laws of descent and distribution. A transferred Award
shall continue to be governed by and subject to the terms and
limitations of the Plan and relevant Award Agreement, and the
transferee shall be entitled to the same rights as the Participant,
as if the transfer had not taken place.


 



 

11







 






 


13.5           Beneficiaries.
Notwithstanding Section 13.4(a), a Participant may, in the manner
determined by the Committee, designate a beneficiary to exercise
the rights of the Participant and to receive any distribution with
respect to any Award upon the Participant’s death, and in
accordance with Section 6.2(c)(iii), upon the Participant’s
Disability. A beneficiary, legal guardian, legal representative, or
other person claiming any rights pursuant to the Plan is subject to
all terms and conditions of the Plan and any Award Agreement
applicable to the Participant, except to the extent the Plan and
Award Agreement otherwise provide, and to any additional
restrictions deemed necessary or appropriate by the Committee. If
no beneficiary has been designated or survives the Participant,
payment shall be made to the person entitled thereto pursuant to
the Participant’s will or the laws of descent and
distribution. Subject to the foregoing, a beneficiary designation
may be changed or revoked by a Participant at any time provided the
change or revocation is provided to the Committee.


 


13.6           Evidence
of Ownership.  Notwithstanding anything
herein to the contrary, the Company shall not be required to issue
or deliver any certificates, make any book entry credits, or take
any other action to evidence shares of Stock pursuant to the
exercise of any Award, unless and until the Company has determined,
with advice of counsel, that the issuance and delivery of such
certificates, book entry credits, or other evidence of ownership is
in compliance with all applicable laws, regulations of governmental
authorities and, if applicable, the requirements of any exchange or
quotation system on which the shares of Stock are listed, quoted or
traded. All Stock certificates, book entry credits, or other
evidence of ownership delivered pursuant to the Plan are subject to
any stop-transfer orders and other restrictions as the Company
deems necessary or advisable to comply with Federal, state, or
foreign jurisdiction, securities or other laws, rules and
regulations and the rules of any national securities exchange or
automated quotation system on which the Stock is listed, quoted, or
traded. The Company may place legends on any Stock certificate to
reference restrictions applicable to the Stock. In addition to the
terms and conditions provided herein, the Company may require that
a Participant make such reasonable covenants, agreements, and
representations as the Company, in its discretion, deems advisable
in order to comply with any such laws, regulations, or
requirements.


 

 
13.7           Claw
back.  Every Award issued pursuant
to this Plan is subject to potential forfeiture or recovery to the
fullest extent called for by law, any applicable listing standard,
or any current or future claw back policy that may be adopted by
the Company from time to time, including, without limitation, any
claw back policy adopted to comply with the final rules issued by
the Securities and Exchange Commission and the final listing
standards to be adopted by Nasdaq pursuant to Section 954 of the
Dodd-Frank Wall Street Reform and Consumer Protection Act. By
accepting an Award, each Participant consents to the potential
forfeiture or recovery of his or her Awards pursuant to applicable
law, listing standard, and/or Company claw back policy, and agrees
to be bound by and comply with the claw back policy and to return
the full amount required by the claw back policy. As a condition to
the receipt of any Award, a Participant may be required to execute
any requested additional documents consenting to and agreeing to
abide by the Company claw back policy as it may be amended from
time to time.


 



ARTICLE 14



Amendment, Modification and Termination


 


14.1           Amendment,
Modification and Termination of the Plan. The Board may at any time, and from
time to time, terminate, amend or modify the Plan; provided
however, that any such action of the Board shall be subject to
approval of the stockholders to the extent required by law,
regulation or any stock exchange rule for any exchange on which
shares of Stock are listed. Notwithstanding the above, to the
extent permitted by law, the Board may delegate to the Committee or
the CEO the authority to approve non-substantive amendments to the
Plan.  Except as provided in Section 5.4, neither the
Board, the CEO, nor the Committee may, without the approval of the
stockholders: (a) increase the number of shares available under the
Plan; (b) reprice previously granted Options or SARs or take
any action relative to Options or SARs that would be treated
as a repricing under applicable Nasdaq Listing Rules (or the rules
of any exchange on which the Stock is then listed); (c) grant
Options or SARs with an exercise price or base value that is below
Fair Market Value on the Grant Date; (d) extend the exercise period
or term of any Option or SAR beyond 10 years from the Grant Date;
(e) expand the types of Award available for grant under the Plan;
or (f) expand the class of individuals eligible to participant in
the Plan.


 


14.2           Awards
Previously Granted.
No amendment, modification, or termination of the Plan or any Award
under the Plan shall in any manner adversely affect in any material
way the rights of the holder under any Award previously granted
pursuant to the Plan without the prior written consent of the
holder of the Award. Such consent shall not be required if the
change: (a) is required by law or regulation; (b) does not
adversely affect in any material way the rights of the holder; (c)
is required to cause the benefits under the Plan to qualify as
performance-based compensation within the meaning of Section 162(m)
of the Code or to comply with the requirements of Section 409A of
the Code; or (d) is made pursuant to any adjustment described in
Section 5.4.


 



 

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14.3           Performance-Based
Awards.  Except in the case of a
Change in Control, the Committee shall not have the authority to
amend an Award Agreement to accelerate the vesting or waive the
forfeiture restrictions of any Performance-Based Award. In
addition, the Committee shall not take any other action that would
cause a Performance-Based Award to fail to satisfy the requirements
of the performance-based compensation exception to the deduction
limitations imposed by Section 162(m) of the Code unless the
Committee concludes that the deduction limitations will not become
applicable or that the amendment is appropriate despite the
deduction limitations imposed by Section 162(m) of the
Code.


 



ARTICLE 15



Tax Withholding


 


The
Company shall have the power to withhold, or require a Participant
to remit to the Company, the minimum amount necessary to satisfy
federal, state, and local withholding tax requirements on any Award
under the Plan. The Company may permit the Participant to satisfy a
tax withholding obligation by: (a) directing the Company to
withhold shares of Stock to which the Participant is entitled
pursuant to the Award in an amount necessary to satisfy the
Company’s applicable federal, state, local or foreign income
and employment tax withholding obligations with respect to such
Participant; (b) tendering previously-owned shares of Stock held by
the Participant for six (6) months or longer to satisfy the
Company’s applicable federal, state, local, or foreign income
and employment tax withholding obligations with respect to the
Participant (which holding period may be waived in accordance with
Section 6.1(d)); (c) a broker-assisted “cashless”
transaction; or (d) personal check or other cash equivalent
acceptable to the Company.


 



ARTICLE 16



Indemnification


 


Each
person who is or shall have been a member of the Committee or of
the Board shall be indemnified and held harmless by the Company
against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him or her in connection
with or resulting from any claim, action, suit, or proceeding to
which he or she may be a party or in which he or she may be
involved by reason of any action taken or failure to act under the
Plan and against and from any and all amounts paid by him or her in
settlement thereof, with the Company’s approval, or paid by
him or her in satisfaction of any judgment in any such action,
suit, or proceeding against him or her, provided he or she shall
give the Company an opportunity, at its own expense, to handle and
defend the same before he undertakes to handle and defend it on his
or her behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such
person may be entitled under the Company’s certificate of
incorporation, bylaws, resolution or agreement, as a matter of law,
or otherwise.


 



ARTICLE 17



General Provisions


 


17.1           No
Rights to Awards.  No Participant or other
person shall have any claim to be granted any Award and neither the
Company nor the Committee is obligated to treat Participants and
other persons uniformly.


 


17.2           Continued
Employment.  Nothing in the Plan or any
Award Agreement shall interfere with or limit in any way the right
of the Company or any Affiliate to terminate any
Participant’s employment or service at any time, nor confer
upon any Participant any right to continue in the employ or service
of the Company.


 


17.3           Funding.  The
Company shall not be required to segregate any of its assets to
ensure the payment of any Award under the Plan. Neither the
Participant nor any other persons shall have any interest in any
fund or in any specific asset or assets of the Company or any other
entity by reason of any Award, except to the extent expressly
provided hereunder. The interests of each Participant and former
Participant hereunder are unsecured and shall be subject to the
general creditors of the Company.


 



 

13







 






 


17.4           Expenses.
The expenses of administering the Plan shall be borne by the
Company.


 


17.5           No
Stockholders Rights.  No Award gives the
Participant any of the rights of a stockholder of the Company
unless and until shares of Stock are in fact issued to such person
in connection with such Award.


 


17.6           Titles
and Headings.  The titles and headings of
the Sections in the Plan are for convenience of reference only and,
in the event of any conflict, the text of the Plan, rather than
such titles or headings, shall control.


 


17.7           Successors
and Assigns. The Plan
shall be binding upon and inure to the benefit of the successors
and permitted assigns of the Company, including without limitation,
whether by way of merger, consolidation, operation of law,
assignment, purchase, or other acquisition of substantially all of
the assets or business of the Company, and any and all such
successors and assigns shall absolutely and unconditionally assume
all of the Company’s obligations under the Plan.


  


17.8           Survival
of Provisions. The
rights, remedies, agreements, obligations and covenants contained
in or made pursuant to this Plan, any Agreement, and any other
notices or agreements in connection therewith, shall survive the
execution and delivery of such notices and agreements and the
delivery and receipt of such shares of Stock.


 


17.9           Requirements
of Law.  The granting of Awards and
the issuance of shares and/or cash under the Plan shall be subject
to all applicable laws, rules, and regulations, and to such
approvals by any governmental agencies or national securities
exchanges as may be required. The Company shall be under no
obligation to register pursuant to the Securities Act of 1933, any
of the shares of Stock paid pursuant to the Plan. If the shares of
Stock paid pursuant to the Plan may in certain circumstances be
exempt from registration pursuant to the Securities Act of 1933,
the Company may restrict the transfer of such shares in such manner
as it deems advisable to ensure the availability of any such
exemption. The Committee shall impose such restrictions on any
Award as it may deem advisable, including without limitation,
restrictions under applicable federal securities law, under the
requirements of Nasdaq (or any other exchange upon which the Stock
is then traded), and under any other blue sky or state securities
law applicable to such Award.


 


17.10           Governing
Law.  The
place of administration of the Plan shall be conclusively deemed to
be within the State of New York, and the rights and obligations of
any and all persons having or claiming to have had an interest
under the Plan or any Award Agreement shall be governed by and
construed exclusively and solely in accordance with the laws of the
State of New York without regard to the conflict of law’s
provisions of any jurisdictions. All parties agree to submit to the
jurisdiction of the state and federal courts of New York with
respect to matters relating to the Plan and agree not to raise or
assert the defense that such forum is not convenient for such
party. The Plan is an unfunded performance-based bonus plan for a
select group of persons or highly compensated employees and is not
intended to be either an employee pension or welfare benefit plan
subject to ERISA.


 


17.11           Securities
Law Compliance.  With respect to any
Participant who is, on the relevant date, obligated to file reports
pursuant to Section 16 of the Exchange Act, transactions pursuant
to this Plan are intended to comply with all applicable conditions
of Rule 16b-3 or its successors pursuant to the Exchange Act.
Notwithstanding any other provision of the Plan, the Committee may
impose such conditions on the exercise of any Award as may be
required to satisfy the requirements of Rule 16b-3 or its
successors pursuant to the Exchange Act. To the extent any
provision of the Plan or action by the Committee fails to so
comply, it shall be void to the extent permitted by law and
voidable as deemed advisable by the Committee.


 


17.12           Section
409A of the Code.


 


(a)           General
Compliance. Some of
the Awards that may be granted pursuant to the Plan (including, but
not necessarily limited to, Restricted Stock Units Awards,
Performance Share Awards, Performance Share Unit Awards,
Performance Cash and Stock Unit Awards) may be considered to be
“non-qualified deferred compensation” subject to
Section 409A of the Code. If an Award is subject to Section 409A of
the Code, the Company intends (but cannot and does not guarantee)
that the Award Agreement and this Plan comply with and meet all of
the requirements of Section 409A of the Code or an exception
thereto and the Award Agreement shall include such provisions, in
addition to the provisions of this Plan, as may be necessary to
assure compliance with Section 409A of the Code or an exception
thereto.


 



 

14







 






 


(b)           Delay
for Specified Employees. If, at the time of a
Participant’s Separation from Service, the Company has any
Stock which is publicly traded on an established securities market
or otherwise, and if the Participant is considered to be a
Specified Employee, to the extent any payment for any Award is
subject to the requirements of Section 409A of the Code and is
payable upon the Participant’s Separation from Service, such
payment shall not commence prior to the first business day
following the date which is six (6) months after the
Participant’s Separation from Service (or the date of the
Participant’s death if earlier than the end of the six (6)
month period). Any amounts that would have been distributed during
such six (6) month period will be distributed on the day following
the expiration of the six (6) month period.


  


(c)           Prohibition
on Acceleration or Deferral. Under no circumstances may the time or
schedule of any payment for any Award that is subject to the
requirements of Section 409A of the Code be accelerated or subject
to further deferral except as otherwise permitted or required
pursuant to regulations and other guidance issued pursuant to
Section 409A of the Code. If the Company fails to make any payment
pursuant to the payment provisions applicable to an Award that is
subject to Section 409A of the Code, either intentionally or
unintentionally, within the time period specified in such
provisions, but the payment is made within the same calendar year,
such payment will be treated as made within the specified time
period. In addition, in the event of a dispute with respect to any
payment, such payment may be delayed in accordance with the
regulations and other guidance issued pursuant to Section 409A of
the Code.


 


	
 

	



FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.


 


 


By:  /s/
Philip Turits


Its:
Philip Turits, Secretary and Treasurer









 


 




 

15








 






 


 



GLOSSARY


 


(a)           “Affiliate”
means any member of a “controlled group of
corporations” (within the meaning of Section 414(b) of the
Code as modified by Section 415(h) of the Code) that includes the
Company as a member of the group. In applying Section 1563(a)(1),
(2) and (3) of the Code for purposes of determining the members of
a controlled group of corporations under Section 414(b) of the
Code, the language “at least 50 percent” shall be used
instead of “at least 80 percent” each place it appears
in Section 1563(a)(1), (2) and (3).


 


(b)           “Award”
means any Option, Stock Appreciation Right, Restricted Stock,
Restricted Stock Unit, Stock Grant, Stock Unit, Performance Share,
Performance Share Unit, or Performance Cash Award granted to a
Participant under the Plan.


 


(c)           “Award
Agreement” means any written agreement, contract, or
other instrument or document, including an electronic agreement or
document, evidencing an Award.


 


(d)           “Board”
means the Company’s Board of Directors, as constituted from
time to time.


 


(e)           “Cause”
means any of the following:


 


(1)           Participant’s
commission of, or assistance to or conspiracy with others to
commit, fraud, misrepresentation, theft or embezzlement of Company
assets;


 


(2)           Participant’s
material intentional violations of law or of material Company
policies;


 


(3)           Participant’s
repeated insubordination or willful failure to substantially
perform his or her employment duties or duties as a Non-Employee
Director; or


 


(4)           Participant’s
willful engagement in conduct that is demonstrably and materially
injurious to the Company or any Affiliate.


 


(f)           “CEO”
means the Chief Executive Officer of the Company.


 


(g)           “Change
in Control” means any of the following:


 


(1)           The
sale, lease, exchange or other transfer of all or substantially all
of the Company’s assets in one transaction or in a series of
related transactions;


 


(2)           any
person (as such term is used in Section 13(d) and 14(d) of the
Exchange Act) becoming directly or indirectly the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), of
securities representing more than 50% of the combined voting power
of the Company’s outstanding securities ordinarily having the
right to vote at the elections of directors, except that any change
in the ownership of the stock of the Company as a result of a
financing by the Company that is approved by the Board will not be
considered a change in control; or


 


(3)           individuals
who constitute the Board as of the Effective Date cease for any
reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to the Effective
Date whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least a
majority of the directors comprising or deemed pursuant hereto to
comprise the Board as of the Effective Date (either by a specific
vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director) shall be, for
purposes of this clause, considered as though such person were a
member of the Board as of the Effective Date of the
Plan.


 



 

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(4)           For
sake of clarity, a “Change in Control” will not be
deemed to have occurred for purposes of the Plan until the
transaction (or services of transactions) that would otherwise be
considered a “Change in Control” closes. The transfer
of Stock or assets of the Company in connection with a bankruptcy
filing by or against the Company under Title 11 of the United
States Code will not be considered to be a “Change in
Control” for purposes of this Plan. Notwithstanding the
foregoing a “Change in Control” shall not occur for
purposes of this Plan in the case of Awards that are subject to the
requirements of Section 409A of the Code unless such “Change
in Control” constitutes a “change in control
event” as defined in Section 409A of the Code and the
regulations thereunder. Further and for the avoidance of doubt, a
transaction will not constitute a Change in Control if, (i) its
sole purpose is to change the state of the Company’s
incorporation, or (ii) its sole purpose is to create a holding
company that will be owned in substantially the same proportions by
the persons who held the Company’s securities immediately
before such transaction.


  


(h)           “Code”
means the Internal Revenue Code of 1986, as amended. All references
to the Code shall be interpreted to include a reference to any
applicable regulations, rulings or other official guidance
promulgated pursuant to such section of the Code.


 


(i)           “Committee”
except as set forth in Section 4.1, means the Compensation
Committee of the Board. At all times the Committee shall consist of
at least two (2) or more individuals, each of whom qualifies as:
(i) a “non-employee director” as defined in Rule
16b-3(b)(3) of the Exchange Act; (ii) an “outside
director” as defined in Section 162(m) of the Code; and (iii)
as “independent” for purposes of the applicable Nasdaq
Listing Rules.


 


(j)           “Company”
means Fusion Telecommunications International, Inc., a Delaware
company.


 


(k)           “Consultant”
means a consultant or adviser that provides bona fide services to
the Company or an Affiliate as an independent contractor and not as
an employee; provided, however that such person may become a
Participant in the Plan only if the Consultant: (i) is a natural
person; and (ii) does not provide services in connection with the
offer or sale of the Company’s securities in a
capital-raising transaction and do not promote or maintain a market
for the Company’s securities.


 


(1)           “Covered
Employee” means an Employee who is or could be a
“covered employee” within the meaning of Section 162(m)
of the Code.


 


(m)           “Disability”
means the inability of a Participant to engage in any substantially
gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or
which has lasted or can be expected to last for a continuous period
of not less than 12 months. The permanence and degree of impairment
shall be supported by medical evidence. For purposes of an
Incentive Stock Option, “Disability” shall have the
meaning ascribed to it in Section 22(e)(3) of the
Code.


 


(n)           “Effective
Date” means the date the Plan is approved by the
stockholders at the Company’s 2016 Annual
Meeting.


 


(o)           “ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended. All references to a section of ERISA shall be interpreted
to include a reference to any applicable regulations, rulings or
other official guidance promulgated pursuant to such section of
ERISA.


 


(p)           “Exchange
Act” means the Securities Exchange Act of 1934, as
amended from time to time. All references to the Exchange Act shall
be interpreted to include a reference to any applicable
regulations, rulings or other official guidance promulgated
pursuant to such section of the Exchange Act.


 


(q)           “Expiration
Date” means the tenth (10th) anniversary of the
Effective Date.


 


(r)           “Fair
Market Value” means, as of any date, the closing price
for the Stock as reported on  Nasdaq (or any other
exchange on which the Stock is than listed) for that date or, if no
prices are reported for that date, the closing price on the last
day on which such prices were reported.


 


(s)           “Family
Member” means a Participant’s spouse and any
parent, stepparent, grandparent, child, stepchild, or grandchild,
including adoptive relationships or a trust or any other entity in
which these persons (or the Participant) have more than 50% of the
beneficial interest.


 



 

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(t)           “Good
Reason” means any of the following:


 


(1)           A
material reduction of Participant’s duties, authority or
responsibilities, in effect immediately prior to such
reduction;


 


(2)           A
material reduction of Participant’s then-existing base
salary; or


 


(3)           The
Company’s decision to relocate a Participant’s
principal place of work by more than 50 miles.


 


(u)           “Grant
Date” means the date the Committee approves the Award
or a date in the future on which the Committee determines the Award
will become effective.


  


(v)           “Incentive
Stock Option” means an Option that is intended to meet
the requirements of Section 422 of the Code or any successor
provision thereto.


 


(w)           “Non-Employee
Director” means a member of the Company’s Board
who is not a common-law employee of the Company.


 


(x)           “Non-Qualified
Stock Option” means an Option that is not intended to
be an Incentive Stock Option.


 


(y)           “Option”
means a right granted to a Participant under Section 7. An Option
may be either an Incentive Stock Option or a Non-Qualified Stock
Option.


 


(z)           “Participant”
means a person who has been granted an Award under the
Plan.


 


(aa)           “Performance-Based
Awards” means an Award intended to satisfy the
requirements of the performance-based compensation exception to the
limitations imposed by Section 162(m) of the Code on the tax
deductibility of compensation payable to Covered
Employees.


 


(bb)           “Performance
Cash” means a right granted to a Participant pursuant
to Section 10.


 


(cc)           “Performance
Criteria” means the criteria that the Committee
selects for purposes of establishing the Performance Goal or
Performance Goals for a Participant for a Performance Period. The
Performance Criteria that will be used to establish Performance
Goals are limited to the following: net operating income before
taxes and extraordinary charges against income; earnings before
interest, and taxes; earnings before interest, taxes, depreciation,
and amortization; pre- or after-tax net earnings; sales growth;
production levels; unit costs; operating earnings; operating cash
flow; return on net assets; return on stockholders’ equity;
return on assets; return on capital; Stock price growth;
stockholder returns; gross or net profit margin; earnings per
share; price per share of Stock; market share; revenue; income;
safety objectives; environmental objectives; and completion of
major projects. The Performance Criteria that will be used to
establish Performance Goals with respect to any Award other than a
Performance-Based Award that is subject to Article 11 will include
the above-listed Performance Criteria and such other criteria as
may be set forth in the applicable Award Agreement. Any of the
Performance Criteria may be measured either in absolute terms or as
compared to any incremental increase or as compared to results of a
peer group, indices, or any other basket of companies. Financial
Performance Criteria may, but need not, be calculated in accordance
with generally accepted accounting principles (“GAAP”) or any successor
method to GAAP, including International Financial Reporting
Standards. The Committee shall, within the time prescribed by
Section 162(m) of the Code, define in an objective fashion the
manner of calculating the Performance Criteria it selects to use
for a particular Performance Period for a particular
Participant.


 


(dd)           “Performance
Goals” means, for a Performance Period, the goals
established in writing by the Committee for the Performance Period
based upon the Performance Criteria. Depending on the Performance
Criteria used to establish such Performance Goals, the Performance
Goals may be expressed in terms of overall Company performance or
the performance of a division, business unit or an individual. The
Performance Goals may be stated in terms of absolute levels or
relative to another company or companies or to an index or
indices.


 



 

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(ee)           “Performance
Period” means the one or more periods of time (but not
less than 12 months), which may be of varying and overlapping
durations, as the Committee may select, over which the attainment
of one or more Performance Goals will be measured for the purpose
of determining a Participant’s right to, and the payment of,
an Award.


 


(ff)           “Performance
Share” means a right granted to a Participant under
Section 10.


 


(gg)           “Performance
Share Unit” means a right granted to a Participant
under Section 10.


  


(hh)           “Plan”
means this Fusion Telecommunications International, Inc. 2016 Stock
Incentive Plan, as amended from time to time.


 


(ii)           “2009
Plan” means the Fusion Telecommunications
International, Inc. 2009 Stock Option  Plan.


 


(jj)           “Restricted
Stock” means Stock granted to a Participant under
Section 9,


 


(kk)           “Restricted
Stock Unit” means a right granted to a Participant
under Section 9.


 


(ll)           “Securities
Act” means the Securities Act of 1933, as amended from
time to time. All references to the Securities Act shall be
interpreted to include a reference to any applicable regulations,
rulings or other official guidance promulgated pursuant to such
section of the Securities Act.


 


(mm)           “Separation
from Service” is a term that applies only in the
context of an Award that the Company concludes is subject to
Section 409A of the Code. In that limited context, the term
“Separation from Service” means either: (i) the
termination of a Participant’s employment with the Company
and all Affiliates due to death, retirement or other reasons; or
(ii) a permanent reduction in the level of bona fide services the
Participant provides to the Company and all Affiliates to an amount
that is less than 50% of the average level of bona fide services
the Participant provided to the Company and all Affiliates in the
immediately preceding 36 months, with the level of bona fide
service calculated in accordance with Treasury Regulation Section
1.409A-1(h)(1)(ii). Solely for purposes of determining whether a
Participant has a “Separation from Service,” a
Participant’s employment relationship is treated as
continuing while the Participant is on military leave, medical or
sick leave, or other bona fide leave of absence (if the period of
such leave does not exceed six (6) months, or if longer, so long as
the Participant’s right to reemployment with the Company or
an Affiliate is provided either by statute or contract). If the
Participant’s period of leave exceeds six (6) months and the
Participant’s right to reemployment is not provided either by
statute or by contract, the employment relationship is deemed to
terminate on the first day immediately following the expiration of
such six (6) month period. Whether a Termination of Employment has
occurred will be determined based on all of the facts and
circumstances and in accordance with Section 409A of the
Code.


 


In the
case of a Non-Employee Director, Separation from Service means that
such member has ceased to be a member of the Board. Whether an
independent contractor consultant has incurred a Separation from
Service will be determined in accordance with Treasury Regulation
Section 1.409A-1(h).


 


(nn)           “Specified
Employee” means certain officers and highly
compensated employees of the Company as defined in Treasury
Regulation Section 1.409A-1(i). The identification date for
determining whether any employee is a Specified Employee during any
calendar year shall be the September 1 preceding the commencement
of such calendar year.


 


(oo)           “Stock”
means the common stock of the Company and such other securities of
the Company that may be substituted for Stock pursuant to Section
5.


 


(pp)           “Stock
Appreciation Right” or “SAR” means a right
granted to a Participant under Section 7.


 


(qq)           
“Stock Grant
Award” means a right granted to a Participant under
Section 9.


 


(rr)           “Stock
Unit” means a right granted to a Participant under
Section 9.


 


(ss)           “Termination
of Employment” or “Termination of Service”
means the cessation of performance of services for the Company. For
this purpose, the transfer of a Participant among the Company and
any Affiliate, or transfer from a position as a member of the Board
to Employee, shall not be considered a Termination of Service or a
Termination of Employment with the Company. In the context of an
Award that is subject to the requirements of Section 409A of the
Code, the terms “Termination of Service” and
“Termination of Employment” mean a Separation from
Service.


 


 




 

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