UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
April 30, 2015
Berkshire Homes, Inc.
(Exact name of small business issuer as specified
in its charter)
| Nevada |
68-0680858 |
| (State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification No.) |
|
2375 East Camelback Road, Suite 600
Phoenix, AZ 85016 |
| (Address of principal executive offices) |
| (602) 387-5393 |
| (Issuer’s telephone number) |
|
________________________________________________
(Former name or former address,
if changed since last report) |
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
[ ] Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
SECTION 1 – Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement
Approval of the 2015 Equity Incentive Plan
On April 30, 2015, the board of directors of Berkshire Homes, Inc.
(the “Company”) approved the adoption of the Berkshire Homes, Inc. 2015 Equity Incentive Plan (the “2015 Equity
Incentive Plan”). The description of the 2015 Equity Incentive Plan provided below is qualified in its entirety by reference
to the complete terms of the 2015 Equity Incentive Plan, a copy of which is attached hereto as Exhibit 10.1 and incorporated by
reference herein.
The purpose of the 2015 Equity Incentive Plan is to foster and promote
the Company’s long-term financial success and increase stockholder value by motivating performance through incentive compensation.
The 2015 Equity Incentive Plan is intended to encourage participants to acquire and maintain ownership interests in the Company
and to attract and retain the services of talented individuals upon whose judgment and special efforts the successful conduct of
the Company’s business is largely dependent.
The 2015 Equity Incentive Plan became effective upon its approval
by the board of directors on April 30, 2015 and, unless earlier terminated, will continue until April 30, 2025. A total of 10,000,000
shares of common stock may be issued under the 2015 Equity Incentive Plan.
The 2015 Equity Incentive Plan provides for the granting of incentive
stock options, non-qualified stock options, stock appreciation rights, restricted stock, stock units, performance shares and performance
units to our employees, officers, directors and consultants, including incentive stock options, non-qualified stock options, restricted
stock, and other benefits.
Executive Officer Employment Agreements
On April 30, 2015, the Company entered into an employment agreement
effective January 1, 2015 with Llorn Kylo (“Kylo”) to be its Chief Executive Officer (the “Kylo Agreement”).
The description of the Kylo Agreement provided below is qualified in its entirety by reference to the complete terms of the Kylo
Agreement, a copy of which is attached hereto as Exhibit 10.2 and incorporated by reference herein.
The following is a summary of the material terms of the Kylo Agreement.
- The term commences on January 1, 2015 and terminates (i) by mutual consent; (b) if Kylo gives 30 days’
prior written notice to the Company; or (c) if the Company gives 90 days’ prior written notice to Kylo.
- Kylo’s annual Base Salary is $72,000.
- The Company will immediately grant to Kylo an option under the Company’s 2015 Equity Incentive Plan
to purchase 2,000,000 shares of the Company's Common Stock with the strike price set forth in the Kylo Agreement.
- Kylo will be entitled to receive full medical, dental, insurance and automobile coverage paid for by the
Company.
- Kylo will be entitled to keep the Company vehicle in the event of termination.
- Upon termination of Kylo’s employment, he is entitled to one year paid severance.
Also on April 30, 2015, the Company entered into an indemnity agreement
(the “Kylo Indemnity”) and granted Kylo a contractual right of indemnity. The description of the Kylo Indemnity is
qualified in its entirety by reference to the complete terms of the Kylo Indemnity, a copy of which is attached hereto as Exhibit
10.3 and incorporated by reference herein.
On April 30, 2015, the Company entered into an employment agreement
effective January 1, 2015 with Munjit Johal (“Johal”) to be its Chief Financial Officer (the “Johal Agreement”).
The description of the Johal Agreement provided below is qualified in its entirety by reference to the complete terms of the Johal
Agreement, a copy of which is attached hereto as Exhibit 10.4 and incorporated by reference herein.
The following is a summary of the material terms of the Johal Agreement.
- The term commences on January 1, 2015 and terminates (i) by mutual consent; (b) if Johal gives 30 days’
prior written notice to the Company; or (c) if the Company gives 90 days’ prior written notice to Johal.
- Johal’s annual Base Salary is $48,000.
- The Company will immediately grant to Johal an option under the Company’s 2015 Equity Incentive Plan
to purchase 2,000,000 shares of the Company's Common Stock with the strike price set forth in the Johal Agreement.
- Johal will be entitled to receive full medical, dental, insurance and automobile coverage paid for by the
Company.
- Upon termination of Johal’s employment, he is entitled to one year paid severance.
Also on April 30, 2015, the Company entered into an indemnity agreement
(the “Johal Indemnity”) and granted Johal a contractual right of indemnity. The description of the Johal Indemnity
is qualified in its entirety by reference to the complete terms of the Johal Indemnity, a copy of which is attached hereto as Exhibit
10.5 and incorporated by reference herein.
SECTION 3 – SECURITIES AND TRADING MARKETS
Item 3.02 Unregistered Sales of Equity Securities
The information set forth in Items 1.01 is
incorporated into this Item 3.02 by reference.
On April 30, 2015 we granted Kylo an option
to purchase 2,000,000 shares of the Company's Common Stock with a strike price set forth in the Kylo Agreement.
On April 30, 2015 we granted Johal an option
to purchase 2,000,000 shares of the Company's Common Stock with a strike price set forth in the Johal Agreement.
The issuance of the above shares was made in
reliance upon an exemption from registration pursuant to Section 4(a)(2) under the Securities Act of 1933 and/or Regulation D promulgated
thereunder.
SECTION 5 – CORPORATE GOVERNANCE AND
MANAGEMENT
Item 5.02 Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
The information set forth in Items 1.01 and
3.02 is incorporated into this Item 5.02 by reference.
Section 9 – FINANCIAL STATEMENTS AND EXHIBITS
Item 9.01 Financial Statements and Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Berkshire Homes, Inc.
/s/ Llorn Kylo
Llorn Kylo
Chief Executive Officer
Date: May 5, 2015
Berkshire Homes, Inc.
(the “Company”)
2015 INCENTIVE PLAN
The purpose of the Berkshire Homes, Inc. 2015
Incentive Plan is to attract, retain and motivate employees, officers, directors, consultants, agents, advisors and independent
contractors of the Company and its Related Companies by providing them the opportunity to acquire a proprietary interest in the
Company and to align their interests and efforts to the long-term interests of the Company’s stockholders.
Certain capitalized terms used in the Plan
have the meanings set forth in Appendix A.
| 3.1 | Administration of the Plan |
The Plan shall be administered by the
Board or its Compensation Committee. The Compensation Committee shall be composed of two or more directors, each of whom is a
“non-employee director” within the meaning of Rule 16b-3(b)(3) promulgated under the Exchange Act, or any successor
definition adopted by the Securities and Exchange Commission. As used in this Plan, the term “Compensation Committee”
shall be construed as if followed by the words “(if any)”; nothing in this Plan requires the Board to have a Compensation
Committee.
Notwithstanding the foregoing, the Board may
delegate responsibility for administering the Plan with respect to designated classes of Eligible Persons to different committees
consisting of one or more members of the Board, subject to such limitations as the Board deems appropriate, except with respect
to Awards to any Participants who are then subject to Section 16 of the Exchange Act. Members of any committee shall serve for
such term as the Board may determine, subject to removal by the Board at any time. To the extent consistent with applicable law,
the Board or the Compensation Committee may authorize one or more officers of the Company to grant Awards to designated classes
of Eligible Persons, within limits specifically prescribed by the Board or the Compensation Committee; provided, however, that
no such officer shall have or obtain authority to grant Awards to himself or herself or to any person then subject to Section 16
of the Exchange Act. All references in the Plan to the “Committee” shall be, as applicable, to the Board, the Compensation
Committee or any other committee or any officer to whom the Board or the Compensation Committee has delegated authority to administer
the Plan.
| 3.4 | Administration and Interpretation by Committee |
(a) Except
for the terms and conditions explicitly set forth in the Plan and to the extent permitted by applicable law, the Committee shall
have full power and exclusive authority, subject to such orders or resolutions not inconsistent with the provisions of the Plan
as may from time to time be adopted by the Board, to
(i) select
the Eligible Persons to whom Awards may from time to time be granted under the Plan;
(ii) determine
the type or types of Awards to be granted to each Participant under the Plan;
(iii) determine
the number of shares of Common Stock, if any, to be covered by each Award granted under the Plan;
(iv) determine
the terms and conditions of any Award granted under the Plan;
(v) approve
the forms of notice or agreement for use under the Plan;
(vi) determine
whether, to what extent and under what circumstances Awards may be settled in cash, shares of Common Stock or other property or
canceled or suspended;
(vii) determine
whether, to what extent and under what circumstances cash, shares of Common Stock, other property and other amounts payable with
respect to an Award shall be deferred either automatically or at the election of the Participant;
(viii) interpret
and administer the Plan and any instrument evidencing an Award, notice or agreement executed or entered into under the Plan;
(ix) establish
such rules and regulations as it shall deem appropriate for the proper administration of the Plan;
(x) delegate
ministerial duties to such of the Company’s employees as it so determines; and
(xi) make any
other determination and take any other action that the Committee deems necessary or desirable for administration of the Plan.
(b) The Committee
shall have the right, without stockholder approval, to cancel or amend outstanding Options or SARs for the purpose of repricing,
replacing or regranting such Options or SARs with Options or SARs that have a purchase or grant price that is less than the purchase
or grant price for the original Options or SARs except in connection with adjustments provided in Section 15.
(c) The effect
on the vesting of an Award of a Company-approved leave of absence or a Participant’s working less than full-time shall be
determined by the Company’s chief human resources officer or other person performing that function or, with respect to directors
or executive officers, by the Committee, whose determination shall be final.
(d) Decisions
of the Committee shall be final, conclusive and binding on all persons, including the Company, any Participant, any stockholder
and any Eligible Person. A majority of the members of the Committee may determine its actions.
| Section | 4. SHARES SUBJECT TO THE PLAN |
| 4.1 | Authorized Number of Shares |
Subject to adjustment from time to time as
provided in subsection 15.1, a maximum of 10,000,000 shares of Common Stock shall be available for issuance under the Plan. Shares
issued under the Plan shall be drawn from authorized and unissued shares or shares now held or subsequently acquired by the Company
as treasury shares.
(a) Shares
of Common Stock covered by an Award shall not be counted as used unless and until they are actually issued and delivered to a
Participant. If any Award lapses, expires, terminates or is canceled prior to the issuance of shares thereunder or if shares of
Common Stock are issued under the Plan to a Participant and thereafter are forfeited to or otherwise reacquired by the Company,
the shares subject to such Awards and the forfeited or reacquired shares shall again be available for issuance under the Plan.
Any shares of Common Stock
(i) tendered
by a Participant or retained by the Company as full or partial payment to the Company for the purchase price of an Award or to
satisfy tax withholding obligations in connection with an Award, or
(ii) covered
by an Award that is settled in cash, or in a manner such that some or all of the shares of Common Stock covered by the Award are
not issued, shall be available for Awards under the Plan. The number of shares of Common Stock available for issuance under the
Plan shall not be reduced to reflect any dividends or dividend equivalents that are reinvested into additional shares of Common
Stock or credited as additional shares of Common Stock subject or paid with respect to an Award.
(b) The Committee
shall also, without limitation, have the authority to grant Awards as an alternative to or as the form of payment for grants or
rights earned or due under other compensation plans or arrangements of the Company.
(c) Notwithstanding
anything in the Plan to the contrary, the Committee may grant Substitute Awards under the Plan. Substitute Awards shall not reduce
the number of shares authorized for issuance under the Plan. In the event that an Acquired Entity has shares available for awards
or grants under one or more preexisting plans not adopted in contemplation of such acquisition or combination, then, to the extent
determined by the Committee, the shares available for grant pursuant to the terms of such preexisting plan (as adjusted, to the
extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination
to determine the consideration payable to holders of common stock of the entities that are parties to such acquisition or combination)
may be used for Awards under the Plan and shall not reduce the number of shares of Common Stock authorized for issuance under
the Plan; provided, however, that Awards using such available shares shall not be made after the date awards or grants could have
been made under the terms of such preexisting plans, absent the acquisition or combination, and shall only be made to individuals
who were not employees or directors of the Company or a Related Company prior to such acquisition or combination. In the event
that a written agreement between the Company and an Acquired Entity pursuant to which a merger or consolidation is completed is
approved by the Board and that agreement sets forth the terms and conditions of the substitution for or assumption of outstanding
awards of the Acquired Entity, those terms and conditions shall be deemed to be the action of the Committee without any further
action by the Committee, except as may be required for compliance with Rule 16b-3 under the Exchange Act, and the persons holding
such awards shall be deemed to be Participants.
(d) Notwithstanding
the other provisions in this subsection, the maximum number of shares that may be issued upon the exercise of Incentive Stock
Options shall equal the aggregate share number stated in subsection 4.1, subject to adjustment as provided in subsection 15.1.
An Award may be granted to any employee, officer
or director of the Company or a Related Company whom the Committee from time to time selects. An Award may also be granted to any
consultant, agent, advisor or independent contractor for bona fide services rendered to the Company or any Related Company that:
(a) are not
in connection with the offer and sale of the Company’s securities in a capital-raising transaction, and
(b) do not
directly or indirectly promote or maintain a market for the Company’s securities.
| 6.1 | Form, Grant and Settlement of Awards |
The Committee shall have the authority, in
its sole discretion, to determine the type or types of Awards to be granted under the Plan. Such Awards may be granted either alone
or in addition to or in tandem with any other type of Award. Any Award settlement may be subject to such conditions, restrictions
and contingencies as the Committee shall determine.
Awards granted under the Plan shall be evidenced
by a written, including an electronic, notice or agreement that shall contain such terms, conditions, limitations and restrictions
as the Committee shall deem advisable and that are not inconsistent with the Plan.
The Committee may permit or require a Participant
to defer receipt of the payment of any Award if and to the extent set forth in the instrument evidencing the Award at the time
of grant. If any such deferral election is permitted or required, the Committee, in its sole discretion, shall establish rules
and procedures for such payment deferrals, which may include the grant of additional Awards or provisions for the payment or crediting
of interest or dividend equivalents, including converting such credits to deferred stock unit equivalents; provided, however, that
the terms of any deferrals under this subsection shall comply with all applicable law, rules and regulations, including, without
limitation, Section 409A of the Code.
| 6.4 | Dividends and Distributions |
Participants may, if and to the extent the
Committee so determines and sets forth in the instrument evidencing the Award at the time of grant, be credited with dividends
paid with respect to shares of Common Stock underlying an Award in a manner determined by the Committee in its sole discretion.
The Committee may apply any restrictions to the dividends or dividend equivalents that the Committee deems appropriate. The Committee,
in its sole discretion, may determine the form of payment of dividends or dividend equivalents, including cash, shares of Common
Stock, Restricted Stock or Stock Units.
The Committee may grant Options designated
as Incentive Stock Options or Nonqualified Stock Options.
The exercise price for shares purchased under
an Option shall be at least 100% of the Fair Market Value on the Grant Date (and shall not be less than the minimum exercise price
required by Section 422 of the Code with respect to Incentive Stock Options), except in the case of Substitute Awards.
Subject to earlier termination in accordance
with the terms of the Plan and the instrument evidencing the Option, the maximum term of a Nonqualified Stock Option shall be ten
years from the Grant Date.
The Committee shall establish and set forth
in each instrument that evidences an Option the time at which, or the installments in which, the Option shall vest and become exercisable,
any of which provisions may be waived or modified by the Committee at any time.
To the extent an Option has vested and become
exercisable, the Option may be exercised in whole or from time to time in part by delivery to or as directed or approved by the
Company of a properly executed stock option exercise agreement or notice, in a form and in accordance with procedures established
by the Committee, setting forth the number of shares with respect to which the Option is being exercised, the restrictions imposed
on the shares purchased under such exercise agreement, if any, and such representations and agreements as may be required by the
Committee, accompanied by payment in full as described in subsection 7.5 and Section 13. An Option may be exercised only for whole
shares and may not be exercised for less than a reasonable number of shares at any one time, as determined by the Committee.
| 7.5 | Payment of Exercise Price |
The exercise price for shares purchased under
an Option shall be paid in full to the Company by delivery of consideration equal to the product of the Option exercise price and
the number of shares purchased. Such consideration must be paid before the Company will issue the shares being purchased and must
be in a form or a combination of forms acceptable to the Committee for that purchase, which forms may include:
(a) cash;
(b) check
or wire transfer;
(c) having
the Company withhold shares of Common Stock that would otherwise be issued on exercise of the Option that have an aggregate Fair
Market Value equal to the aggregate exercise price of the shares being purchased under the Option;
(d) tendering
(either actually or, so long as the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, by attestation)
shares of Common Stock owned by the Participant that have an aggregate Fair Market Value equal to the aggregate exercise price
of the shares being purchased under the Option;
(e) so long
as the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, and to the extent permitted by law, delivery
of a properly executed exercise notice, together with irrevocable instructions to a brokerage firm designated or approved by the
Company to deliver promptly to the Company the aggregate amount of proceeds to pay the Option exercise price and any withholding
tax obligations that may arise in connection with the exercise, all in accordance with the regulations of the Federal Reserve
Board; or
(f) such other
consideration as the Committee may permit.
| 7.6 | Effect of Termination of Service |
The Committee shall establish and set forth
in each instrument that evidences an Option whether the Option shall continue to be exercisable, and the terms and conditions of
such exercise, after a Termination of Service, any of which provisions may be waived or modified by the Committee at any time.
If not so established in the instrument evidencing the Option, the Option shall be exercisable according to the following terms
and conditions, which may be waived or modified by the Committee at any time:
(a) Any portion
of an Option that is not vested and exercisable on the date of a Participant’s Termination of Service shall expire on such
date.
(b) Any portion
of an Option that is vested and exercisable on the date of a Participant’s Termination of Service shall expire on the earliest
to occur of:
(i) if the
Participant’s Termination of Service occurs for reasons other than Cause, Retirement, Disability or death, the date that
is three months after such Termination of Service;
(ii) if the
Participant’s Termination of Service occurs by reason of Retirement, Disability or death, the one-year anniversary of such
Termination of Service; and
(iii) the Option
Expiration Date.
Notwithstanding the foregoing, if
a Participant dies after his or her Termination of Service but while an Option is otherwise exercisable, the portion of the Option
that is vested and exercisable on the date of such Termination of Service shall expire upon the earlier to occur of (y) the Option
Expiration Date and (z) the one-year anniversary of the date of death, unless the Committee determines otherwise. Also notwithstanding
the foregoing, in case a Participant’s Termination of Service occurs for Cause, all Options granted to the Participant shall
automatically expire upon first notification to the Participant of such termination, unless the Committee determines otherwise.
If a Participant’s employment or service relationship with the Company is suspended pending an investigation of whether the
Participant shall be terminated for Cause, all the Participant’s rights under any Option shall likewise be suspended during
the period of investigation. If any facts that would constitute termination for Cause are discovered after a Participant’s
Termination of Service, any Option then held by the Participant may be immediately terminated by the Committee, in its sole discretion.
(c) If the
exercise of the Option following a Participant’s Termination of Service, but while the Option is otherwise exercisable,
would be prohibited solely because the issuance of Common Stock would violate either the registration requirements under the Securities
Act or the Company’s insider trading policy, then the Option shall remain exercisable until the earlier of (i) the Option
Expiration Date and (ii) the expiration of a period of three months (or such longer period of time as determined by the Committee
in its sole discretion) after the Participant’s Termination of Service during which the exercise of the Option would not
be in violation of such Securities Act or insider trading policy requirements.
| Section | 8. INCENTIVE STOCK OPTION LIMITATIONS |
Notwithstanding any other provisions of the
Plan, the terms and conditions of any Incentive Stock Options shall also comply in all respects with Section 422 of the Code, or
any successor provision, and any applicable regulations thereunder, including, to the extent required thereunder, the following:
To the extent the aggregate Fair Market Value
(determined as of the Grant Date) of Common Stock with respect to which a Participant’s Incentive Stock Options become exercisable
for the first time during any calendar year (under the Plan and all other stock option plans of the Company and its parent and
subsidiary corporations) exceeds $100,000, such portion in excess of $100,000 shall be treated as a Nonqualified Stock Option.
In the event the Participant holds two or more such Options that become exercisable for the first time in the same calendar year,
such limitation shall be applied on the basis of the order in which such Options are granted.
Individuals who are not employees of the Company
or one of its parent or subsidiary corporations may not be granted Incentive Stock Options.
The exercise price of an Incentive Stock Option
shall be at least 100% of the Fair Market Value of the Common Stock on the Grant Date, and in the case of an Incentive Stock Option
granted to a Participant who owns more than 10% of the total combined voting power of all classes of the stock of the Company or
of its parent or subsidiary corporations (a “Ten Percent Stockholder”), shall not be less than 110% of the Fair Market
Value of the Common Stock on the Grant Date. The determination of more than 10% ownership shall be made in accordance with Section
422 of the Code.
Subject to earlier termination in accordance
with the terms of the Plan and the instrument evidencing the Option, the maximum term of an Incentive Stock Option shall not exceed
ten years, and in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, shall not exceed five years.
An Option designated as an Incentive Stock
Option shall cease to qualify for favorable tax treatment as an Incentive Stock Option to the extent it is exercised (if permitted
by the terms of the Option) (a) more than three months after the date of a Participant’s Termination of Service if termination
was for reasons other than death or disability, (b) more than one year after the date of a Participant’s Termination of Service
if termination was by reason of disability, or (c) after the Participant has been on leave of absence for more than 90 days, unless
the Participant’s reemployment rights are guaranteed by statute or contract.
| 8.6 | Taxation of Incentive Stock Options |
In order to obtain certain tax benefits afforded
to Incentive Stock Options under Section 422 of the Code, the Participant must hold the shares acquired upon the exercise of an
Incentive Stock Option for two years after the Grant Date and one year after the date of exercise.
A Participant may be subject to the alternative
minimum tax at the time of exercise of an Incentive Stock Option. The Participant shall give the Company prompt notice of any disposition
of shares acquired on the exercise of an Incentive Stock Option prior to the expiration of such holding periods.
For the purposes of this Section, “disability”
“parent corporation” and “subsidiary corporation” shall have the meanings attributed to those terms for
purposes of Section 422 of the Code.
| Section | 9. STOCK APPRECIATION RIGHTS |
| 9.1 | Grant of Stock Appreciation Rights |
The Committee may grant Stock Appreciation
Rights to Participants at any time on such terms and conditions as the Committee shall determine in its sole discretion. An SAR
may be granted in tandem with an Option or alone (“freestanding”). The grant price of a tandem SAR shall be equal to
the exercise price of the related Option. The grant price of a freestanding SAR shall be established in accordance with procedures
for Options set forth in subsection 7.2. An SAR may be exercised upon such terms and conditions and for the term as the Committee
determines in its sole discretion; provided, however, that, subject to earlier termination in accordance with the terms of the
Plan and the instrument evidencing the SAR, the maximum term of a freestanding SAR shall be ten years, and in the case of a tandem
SAR, (a) the term shall not exceed the term of the related Option and (b) the tandem SAR may be exercised for all or part of the
shares subject to the related Option upon the surrender of the right to exercise the equivalent portion of the related Option,
except that the tandem SAR may be exercised only with respect to the shares for which its related Option is then exercisable.
Upon the exercise of an SAR, a Participant
shall be entitled to receive payment in an amount determined by multiplying:
(a) the difference
between the Fair Market Value of the Common Stock on the date of exercise over the grant price of the SAR by
(b) the number
of shares with respect to which the SAR is exercised.
At the discretion of the Committee as set forth
in the instrument evidencing the Award, the payment upon exercise of an SAR may be in cash, in shares, in some combination thereof
or in any other manner approved by the Committee in its sole discretion.
| 9.3 | Waiver of Restrictions |
Subject to subsection 18.5, the Committee,
in its sole discretion, may waive any other terms, conditions or restrictions on any SAR under such circumstances and subject to
such terms and conditions as the Committee shall deem appropriate.
| Section | 10. STOCK AWARDS, RESTRICTED STOCK AND STOCK UNITS |
| 10.1 | Grant of Stock Awards, Restricted Stock and Stock Units |
The Committee may grant Stock Awards, Restricted
Stock and Stock Units on such terms and conditions and subject to such repurchase or forfeiture restrictions, if any, which may
be based on continuous service with the Company or a Related Company or the achievement of any performance goals, as the Committee
shall determine in its sole discretion, which terms, conditions and restrictions shall be set forth in the instrument evidencing
the Award.
| 10.2 | Vesting of Restricted Stock and Stock Units |
Upon the satisfaction of any terms, conditions
and restrictions prescribed with respect to Restricted Stock or Stock Units, or upon a Participant’s release from any terms,
conditions and restrictions of Restricted Stock or Stock Units, as determined by the Committee, and subject to the provisions of
Section 13:
(a) the shares
of Restricted Stock covered by each Award of Restricted Stock shall become freely transferable by the Participant, and
(b) Stock
Units shall be paid in shares of Common Stock or, if set forth in the instrument evidencing the Awards, in cash or a combination
of cash and shares of Common Stock.
Any fractional shares subject to such Awards
shall be paid to the Participant in cash.
| 10.3 | Waiver of Restrictions |
Subject to subsection 18.5, the Committee,
in its sole discretion, may waive the repurchase or forfeiture period and any other terms, conditions or restrictions on any Restricted
Stock or Stock Unit under such circumstances and subject to such terms and conditions as the Committee shall deem appropriate.
| Section | 11. PERFORMANCE AWARDS |
The Committee may grant Awards of Performance
Shares, designate the Participants to whom Performance Shares are to be awarded and determine the number of Performance Shares
and the terms and conditions of each such Award. Performance Shares shall consist of a unit valued by reference to a designated
number of shares of Common Stock, the value of which may be paid to the Participant by delivery of shares of Common Stock or, if
set forth in the instrument evidencing the Award, of such property as the Committee shall determine, including, without limitation,
cash, shares of Common Stock, other property, or any combination thereof, upon the attainment of performance goals, as established
by the Committee, and other terms and conditions specified by the Committee. Subject to subsection 18.5, the amount to be paid
under an Award of Performance Shares may be adjusted on the basis of such further consideration as the Committee shall determine
in its sole discretion.
The Committee may grant Awards of Performance
Units, designate the Participants to whom Performance Units are to be awarded and determine the number of Performance Units and
the terms and conditions of each such Award. Performance Units shall consist of a unit valued by reference to a designated amount
of property other than shares of Common Stock, which value may be paid to the Participant by delivery of such property as the Committee
shall determine, including, without limitation, cash, shares of Common Stock, other property, or any combination thereof, upon
the attainment of performance goals, as established by the Committee, and other terms and conditions specified by the Committee.
Subject to subsection 18.5, the amount to be paid under an Award of Performance Units may be adjusted on the basis of such further
consideration as the Committee shall determine in its sole discretion.
| Section | 12. OTHER STOCK OR CASH-BASED AWARDS |
Subject to the terms of the Plan and such other
terms and conditions as the Committee deems appropriate, the Committee may grant other incentives payable in cash or in shares
of Common Stock under the Plan.
The Company may require the Participant to
pay to the Company the amount of:
(a) any taxes
that the Company is required by applicable federal, state, local or foreign law to withhold with respect to the grant, vesting
or exercise of an Award (“tax withholding obligations”); and
(b) any amounts
due from the Participant to the Company or to any Related Company (“other obligations”).
The Company shall not be required to issue
any shares of Common Stock or otherwise settle an Award under the Plan until such tax withholding obligations and other obligations
are satisfied. The Committee may permit or require a Participant to satisfy all or part of the Participant’s tax withholding
obligations and other obligations by:
(i) paying
cash to the Company,
(ii) having
the Company withhold an amount from any cash amounts otherwise due or to become due from the Company to the Participant,
(iii) having
the Company withhold a number of shares of Common Stock that would otherwise be issued to the Participant (or become vested, in
the case of Restricted Stock) having a Fair Market Value equal to the tax withholding obligations and other obligations, or
(iv) surrendering
a number of shares of Common Stock the Participant already owns having a value equal to the tax withholding obligations and other
obligations.
The value of the shares so withheld or tendered
may not exceed the employer’s minimum required tax withholding rate.
No Award or interest in an Award may be sold,
assigned, pledged (as collateral for a loan or as security for the performance of an obligation or for any other purpose) or transferred
by a Participant or made subject to attachment or similar proceedings otherwise than by will or by the applicable laws of descent
and distribution, except to the extent the Participant designates one or more beneficiaries on a Company-approved form who may
exercise the Award or receive payment under the Award after the Participant’s death. During a Participant’s lifetime,
an Award may be exercised only by the Participant. Notwithstanding the foregoing and to the extent permitted by Section 422 of
the Code, the Committee, in its sole discretion, may permit a Participant to assign or transfer an Award subject to such terms
and conditions as the Committee shall specify.
In the event, at any time or from time to time,
a stock dividend, stock split, spin-off, combination or exchange of shares, recapitalization, merger, consolidation, distribution
to stockholders other than a normal cash dividend, or other change in the Company’s corporate or capital structure results
in
(a) the outstanding
shares of Common Stock, or any securities exchanged therefor or received in their place, being exchanged for a different number
or kind of securities of the Company or
(b) new, different
or additional securities of the Company or any other company being received by the holders of shares of Common Stock,
then the Committee shall make proportional
adjustments in
(i) the maximum
number and kind of securities available for issuance under the Plan;
(ii) the maximum
number and kind of securities issuable as Incentive Stock Options as set forth in subsection 4.2; and
(iii) the number
and kind of securities that are subject to any outstanding Award and the per share price of such securities, without any change
in the aggregate price to be paid therefor.
The determination by the Committee, as to the
terms of any of the foregoing adjustments shall be conclusive and binding. Notwithstanding the foregoing, the issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor
or services rendered, either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion
of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, outstanding Awards. Also notwithstanding the foregoing, a dissolution or liquidation
of the Company or a Company Transaction shall not be governed by this subsection but shall be governed by subsections 15.2 and
15.3, respectively.
| 15.2 | Dissolution or Liquidation |
To the extent not previously exercised or settled,
and unless otherwise determined by the Committee in its sole discretion, Awards shall terminate immediately prior to the dissolution
or liquidation of the Company. To the extent a vesting condition, forfeiture provision or repurchase right applicable to an Award
has not been waived by the Committee, the Award shall be forfeited immediately prior to the consummation of the dissolution or
liquidation.
Notwithstanding any other provision of the
Plan to the contrary, unless the Committee shall determine otherwise in the instrument evidencing the Award or in a written employment,
services or other agreement between the Participant and the Company or a Related Company, in the event of a Change in Control:
(a) All outstanding
Awards, other than Performance Shares and Performance Units, shall become fully and immediately exercisable, and all applicable
deferral and restriction limitations or forfeiture provisions shall lapse, immediately prior to the Change in Control and shall
terminate at the effective time of the Change in Control; provided, however, that with respect to a Change in Control that is
a Company Transaction, such Awards shall become fully and immediately exercisable, and all applicable deferral and restriction
limitations or forfeiture provisions shall lapse, only if and to the extent such Awards are not converted, assumed or replaced
by the Successor Company. For the purposes of this paragraph, an Award shall be considered converted, assumed or replaced by the
Successor Company if following the Company Transaction the option or right confers the right to purchase or receive, for each
share of Common Stock subject to the Award immediately prior to the Company Transaction, the consideration (whether stock, cash
or other securities or property) received in the Company Transaction by holders of Common Stock for each share held on the effective
date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders
of a majority of the outstanding shares); provided, however, that if such consideration received in the Company Transaction is
not solely common stock of the Successor Company, the Committee may, with the consent of the Successor Company, provide for the
consideration to be received upon the exercise of the Option, for each share of Common Stock subject thereto, to be solely common
stock of the Successor Company substantially equal in fair market value to the per share consideration received by holders of
Common Stock in the Company Transaction. The determination of such substantial equality of value of consideration shall be made
by the Committee, and its determination shall be conclusive and binding.
(b) All Performance
Shares or Performance Units earned and outstanding as of the date the Change in Control is determined to have occurred shall be
payable in full at the target level in accordance with the payout schedule pursuant to the instrument evidencing the Award. Any
remaining Performance Shares or Performance Units (including any applicable performance period) for which the payout level has
not been determined shall be prorated at the target payout level up to and including the date of such Change in Control and shall
be payable in full at the target level in accordance with the payout schedule pursuant to the instrument evidencing the Award.
Any existing deferrals or other restrictions not waived by the Committee in its sole discretion shall remain in effect.
(c) Notwithstanding
paragraphs 15.3(a) and 15.3(b), the Committee, in its sole discretion, may (unless otherwise provided in the instrument evidencing
the Award or in a written employment, services or other agreement between the Participant and the Company or a Related Company)
instead provide in the event of a Change in Control that is a Company Transaction
(i) for adjustments
to the Plan and outstanding Awards as contemplated by subsection 15.1 or
(ii) that a
Participant’s outstanding Awards shall terminate upon or immediately prior to such Company Transaction and that such Participant
shall receive, in exchange therefor, a cash payment equal to the amount (if any) by which (x) the value of the per share consideration
received by holders of Common Stock in the Company Transaction, or, if the Company Transaction is a sale of assets or otherwise
does not result in direct receipt of consideration by holders of Common Stock, the value of the deemed per share consideration
received, in each case as determined by the Committee in its sole discretion, multiplied by the number of shares of Common Stock
subject to such outstanding Awards (to the extent then vested and exercisable or whether or not then vested and exercisable, as
determined by the Committee in its sole discretion) exceeds (y) if applicable, the respective aggregate exercise price or grant
price for such Awards.
| 15.4 | Further Adjustment of Awards |
Subject to subsections 15.2 and 15.3, the Committee
shall have the discretion, exercisable at any time before a sale, merger, consolidation, reorganization, liquidation, dissolution
or change in control of the Company, as defined by the Committee, to take such further action as it determines to be necessary
or advisable with respect to Awards. Such authorized action may include (but shall not be limited to) establishing, amending or
waiving the type, terms, conditions or duration of, or restrictions on, Awards so as to provide for earlier, later, extended or
additional time for exercise, lifting restrictions and other modifications, and the Committee may take such actions with respect
to all Participants, to certain categories of Participants or only to individual Participants. The Committee may take such action
before or after granting Awards to which the action relates and before or after any public announcement with respect to such sale,
merger, consolidation, reorganization, liquidation, dissolution or change in control that is the reason for such action.
The grant of Awards shall
in no way affect the Company’s right to adjust, reclassify, reorganize or otherwise change its capital or business structure
or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.
In the event of any adjustment in the number
of shares covered by any Award, each such Award shall cover only the number of full shares resulting from such adjustment.
| 15.7 | Section 409A of the Code |
Notwithstanding anything in this Plan to the
contrary,
(a) any adjustments
made pursuant to this Section 15 or any other amendments to Awards that are considered “deferred compensation” within
the meaning of Section 409A of the Code shall be made in compliance with the requirements of Section 409A of the Code and
(b) any adjustments
made pursuant to this Section 15 or any other amendments to Awards that are not considered “deferred compensation”
subject to Section 409A of the Code
shall be made in such a manner as to ensure
that after such adjustment or amendment the Awards either
(i) continue
not to be subject to Section 409A of the Code or
(ii) comply
with the requirements of Section 409A of the Code.
| Section | 16. MARKET STANDOFF |
In the event of an underwritten public offering
by the Company of its equity securities pursuant to an effective registration statement filed under the Securities Act, no person
may sell, make any short sale of, loan, hypothecate, pledge, grant any option for the purchase of, or otherwise dispose of or
transfer for value or otherwise agree to engage in any of the foregoing transactions with respect to any shares issued pursuant
to an Award granted under the Plan without the prior written consent of the Company or its underwriters. Such limitations shall
be in effect for such period of time as may be requested by the Company or such underwriters; provided, however, that in no event
shall such period exceed
(a) 180 days
after the effective date of the registration statement for such public offering or
(b) such longer
period requested by the underwriter as is necessary to comply with regulatory restrictions on the publication of research reports
(including, but not limited to, NYSE Rule 472 or NASD Conduct Rule 2711).
In the event of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change affecting the Company’s outstanding Common Stock
effected as a class without the Company’s receipt of consideration, any new, substituted or additional securities distributed
with respect to any shares issued as or pursuant to an Award under the Plan shall be immediately subject to the provisions of this
Section 16, to the same extent such shares are at such time covered by such provisions. In order to enforce the limitations of
this Section 16, the Company may impose stop-transfer instructions with respect to the purchased shares until the end of the applicable
standoff period.
| Section | 17. AMENDMENT AND TERMINATION |
| 17.1 | Amendment, Suspension or Termination |
The Board or the Compensation Committee may
amend, suspend or terminate the Plan or any portion of the Plan at any time and in such respects as it shall deem advisable; provided,
however, that, to the extent required by applicable law, regulation or stock exchange rule, stockholder approval shall be required
for any amendment to the Plan; and provided, further, that any amendment that requires stockholder approval may be made only by
the Board and not by the Compensation Committee. Subject to subsection 17.3, the Committee may amend the terms of any outstanding
Award, prospectively or retroactively.
Unless sooner terminated as provided herein,
the Plan shall terminate 10 years from the Effective Date. After the Plan is terminated, no future Awards may be granted, but Awards
previously granted shall remain outstanding in accordance with their applicable terms and conditions and the Plan’s terms
and conditions. Notwithstanding the foregoing, no Incentive Stock Options may be granted more than 10 years after the later of:
(a) the adoption
of the Plan by the Board and
(b) the adoption
by the Board of any amendment to the Plan that constitutes the adoption of a new plan for purposes of Section 422 of the Code.
| 17.3 | Consent of Participant |
The amendment, suspension or termination of
the Plan or a portion thereof or the amendment of an outstanding Award shall not, without the Participant’s consent, materially
adversely affect any rights under any Award theretofore granted to a Participant under the Plan. Any change or adjustment to an
outstanding Incentive Stock Option shall not, without the consent of the Participant, be made in a manner so as to constitute a
“modification” that would cause such Incentive Stock Option to fail to continue to qualify as an Incentive Stock Option.
Notwithstanding the foregoing, any adjustments made pursuant to Section 15 shall not be subject to these restrictions.
No individual or Eligible Person shall have
any claim to be granted any Award under the Plan, and the Company has no obligation for uniformity of treatment of Eligible Persons
or Participants under the Plan. Furthermore, nothing in the Plan or any Award granted under the Plan shall be deemed to constitute
an employment contract or confer or be deemed to confer on any Participant any right to continue in the employ of, or to continue
any other relationship with, the Company or any Related Company or limit in any way the right of the Company or any Related Company
to terminate a Participant’s employment or other relationship at any time, with or without cause.
Notwithstanding any other provision of the
Plan, the Company shall have no obligation to issue or deliver any shares of Common Stock under the Plan or make any other distribution
of benefits under the Plan unless, in the opinion of the Company’s counsel, such issuance, delivery or distribution would
comply with all applicable laws (including, without limitation, the requirements of the Securities Act or the laws of any state
or foreign jurisdiction) and the applicable requirements of any securities exchange or similar entity. The Company shall be under
no obligation to any Participant to register for offering or resale or to qualify for exemption under the Securities Act, or to
register or qualify under the laws of any state or foreign jurisdiction, any shares of Common Stock, security or interest in a
security paid or issued under, or created by, the Plan, or to continue in effect any such registrations or qualifications if made.
As a condition to the exercise of an Option or any other receipt of Common Stock pursuant to an Award under the Plan, the Company
may require:
(a) the Participant
to represent and warrant at the time of any such exercise or receipt that such shares are being purchased or received only for
the Participant’s own account and without any present intention to sell or distribute such shares and
(b) such other
action or agreement by the Participant as may from time to time be necessary to comply with the federal, state and foreign securities
laws.
At the option of the Company, a stop-transfer
order against any such shares may be placed on the official stock books and records of the Company, and a legend indicating that
such shares may not be pledged, sold or otherwise transferred, unless an opinion of counsel (satisfactory to the Company, in its
sole discretion) is provided stating that such transfer is not in violation of any applicable law or regulation, may be stamped
on stock certificates to ensure exemption from registration. The Committee may also require the Participant to execute and deliver
to the Company a purchase agreement or such other agreement as may be in use by the Company at such time that describes certain
terms and conditions applicable to the shares. To the extent the Plan or any instrument evidencing an Award provides for issuance
of stock certificates to reflect the issuance of shares of Common Stock, the issuance may be effected on a noncertificated basis,
to the extent not prohibited by applicable law or the applicable rules of any stock exchange.
Each person who is or shall have been a member
of the Board, or a committee appointed by the Board, or an officer of the Company to whom authority was delegated in accordance
with Section 3, 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 such person in connection with or resulting from any claim, action, suit or proceeding
to which such person may be a party or in which such person 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 such person in settlement thereof, with the Company’s approval,
or paid by such person in satisfaction of any judgment in any such claim, action, suit or proceeding against such person; provided,
however, that such person shall give the Company an opportunity, at its own expense, to handle and defend the same before such
person undertakes to handle and defend it on such person’s own behalf. This duty to indemnify shall not apply to the extent
that:
(a) such loss,
cost, liability or expense is a result of such person’s own willful misconduct or
(b) such indemnification
is expressly prohibited by statute.
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 or bylaws, as a matter of law, or otherwise, or of any power that the Company may have to indemnify or hold harmless.
| 18.4 | No Rights as a Stockholder |
Unless otherwise provided by the Committee
or in the instrument evidencing the Award or in a written employment, services or other agreement, no Award, other than a Stock
Award, shall entitle the Participant to any cash dividend, voting or other right of a stockholder unless and until the date of
issuance under the Plan of the shares that are the subject of such Award.
| 18.5 | Compliance with Laws and Regulations |
In interpreting and applying the provisions
of the Plan, any Option granted as an Incentive Stock Option pursuant to the Plan shall, to the extent permitted by law, be construed
as an “incentive stock option” within the meaning of Section 422 of the Code. Any Award granted pursuant to the Plan
is intended to comply with the requirements of Section 409A of the Code, including any applicable regulations and guidance issued
thereunder, and including transition guidance, to the extent Section 409A of the Code is applicable thereto, and the terms of the
Plan and any Award granted under the Plan shall be interpreted, operated and administered in a manner consistent with this intention
to the extent the Committee deems necessary or advisable to comply with Section 409A of the Code and any official guidance issued
thereunder. Any payment or distribution that is to be made under the Plan (or pursuant to an Award under the Plan) to a Participant
who is a “specified employee” of the Company within the meaning of that term under Section 409A of the Code and as
determined by the Committee, on account of a “separation from service” within the meaning of that term under Section
409A of the Code, may not be made before the date which is six months after the date of such “separation from service”
unless the payment or distribution is exempt from the application of Section 409A of the Code by reason of the short-term deferral
exemption or otherwise. Notwithstanding any other provision in the Plan, the Committee, to the extent it deems necessary or advisable
in its sole discretion, reserves the right, but shall not be required, to unilaterally amend or modify the Plan and any Award granted
under the Plan so that the Award qualifies for exemption from or complies with Section 409A of the Code; provided, however, that
the Committee makes no representations that Awards granted under the Plan shall be exempt from or comply with Section 409A of the
Code and makes no undertaking to preclude Section 409A of the Code from applying to Awards granted under the Plan.
| 18.6 | Participants in Other Countries or Jurisdictions |
Without amending the Plan, the Committee may
grant Awards to Eligible Persons who are foreign nationals on such terms and conditions different from those specified in the Plan
as may, in the judgment of the Committee, be necessary or desirable to foster and promote achievement of the purposes of the Plan
and shall have the authority to adopt such modifications, procedures, subplans and the like as may be necessary or desirable to
comply with provisions of the laws or regulations of other countries or jurisdictions in which the Company or any Related Company
may operate or have employees to ensure the viability of the benefits from Awards granted to Participants employed in such countries
or jurisdictions, meet the requirements that permit the Plan to operate in a qualified or tax-efficient manner, comply with applicable
foreign laws or regulations and meet the objectives of the Plan.
The Plan is intended to constitute an “unfunded”
plan. Nothing contained herein shall require the Company to segregate any monies or other property, or shares of Common Stock,
or to create any trusts, or to make any special deposits for any immediate or deferred amounts payable to any Participant, and
no Participant shall have any rights that are greater than those of a general unsecured creditor of the Company.
All obligations of the Company under the Plan
with respect to Awards shall be binding on any successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all the business and/or assets of
the Company.
If any provision of the Plan or any Award is
determined to be invalid, illegal or unenforceable in any jurisdiction, or as to any person, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable
laws, or, if it cannot be so construed or deemed amended without, in the Committee’s determination, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, person or Award, and the remainder of
the Plan and any such Award shall remain in full force and effect.
| 18.10 | Choice of Law and Venue |
The Plan, all Awards granted thereunder and
all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by the laws of the United States,
shall be governed by the laws of the State of Nevada without giving effect to principles of conflicts of law. Participants irrevocably
consent to the nonexclusive jurisdiction and venue of the state and federal courts located in the State of Nevada.
The granting of Awards and the issuance of
shares of Common Stock under the Plan are subject to all applicable laws, rules and regulations and to such approvals by any governmental
agencies or national securities exchanges as may be required.
| Section | 19. EFFECTIVE DATE |
The effective date (the “Effective Date”)
is the date on which the Plan is adopted by the Board. If the stockholders of the Company do not approve the Plan within 12 months
after the Board’s adoption of the Plan, any Incentive Stock Options granted under the Plan will be treated as Nonqualified
Stock Options.
APPENDIX A
DEFINITIONS
“Acquired
Entity” means any entity acquired by the Company or a Related Company or with which the Company or a Related Company
merges or combines.
“Award”
means any Option, Stock Appreciation Right, Stock Award, Restricted Stock, Stock Unit, Performance Share, Performance Unit, or
other incentive payable in shares of Common Stock as may be designated by the Committee from time to time
“Board”
means the Board of Directors of the Company.
“Cause”
means, unless otherwise defined in the instrument evidencing an Award or in a written employment, services or other agreement between
the Participant and the Company or a Related Company, dishonesty, fraud, serious or willful misconduct, unauthorized use or disclosure
of confidential information or trade secrets, or conduct prohibited by law (except minor violations), in each case as determined
by the Company’s chief human resources officer or other person performing that function or, in the case of directors and
executive officers, the Committee, whose determination shall be conclusive and binding.
“Change
in Control” means, unless the Committee determines otherwise with respect to an Award at the time the Award is granted
or unless otherwise defined for purposes of an Award in a written employment, services or other agreement between the Participant
and the Company or a Related Company, the occurrence of any of the following events:
(a) An acquisition
by any individual, entity or group, within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act, (a “Person”)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%)
of either:
(i) the then
outstanding shares of Common Stock of the Company (the “Outstanding Common Stock”) or
(ii)
(iii) the combined
voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors
(the “Outstanding Voting Securities”);
excluding, however, the following:
(iv) any acquisition
directly from the Company, other than an acquisition by virtue of the exercise, exchange or conversion of any Convertible Securities
unless such securities were themselves acquired directly from the Company,
(v) any acquisition
by the Company;
(vi) any acquisition
by any Person pursuant to a transaction which complies with clauses (b)(i), (b)(ii) and (b)(iii) of the definition of Company
Transaction; or
(b) Within
any period of 24 consecutive months, a change in the composition of the Board such that the individuals who, immediately prior
to such period, constituted the Board (such Board shall be hereinafter referred to as the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board; provided, however, for purposes hereof, that any individual who
becomes a member of the Board during such period, whose election, or nomination for election by the Company’s stockholders,
was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of
the Incumbent Board; but, provided further, that any such individual whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board
shall not be so considered as a member of the Incumbent Board; or
(c) A Company
Transaction; or
(d) The approval
by the stockholders of the Company of a complete liquidation or dissolution of the Company, other than to an entity pursuant to
a transaction which would comply with clauses (1), (2) and (3) of the definition of “Company Transaction”, assuming
for this purpose that such transaction were a Company Transaction.
For purposes of the definition of
“Change of Control” and “Company Transaction”, a series of transactions undertaken with a common purpose
shall be treated as a single transaction that begins at the consummation of the first transaction in the series and ends at the
consummation of the last transaction in the series.
“Company
Transaction” means the consummation of
(a) a reorganization,
merger or consolidation of the Company or
(b) the sale
or other disposition of all or substantially all of the assets of the Company and its direct and indirect subsidiaries taken as
a whole, except in each case a transaction pursuant to which
(i) all or
substantially all of the individuals and entities who are the beneficial owners, respectively, of the Outstanding Common Stock
and Outstanding Voting Securities immediately prior to such transaction will beneficially own, directly or indirectly, more than
sixty percent (60%) of, respectively, the outstanding shares of common stock, and the combined voting power of the outstanding
voting securities entitled to vote generally in the election of directors, as the case may be, of the entity resulting from such
transaction (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially
all of the Company’s assets, either directly or through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such transaction, of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be,
(ii) no person
(other than the Company) will beneficially own, directly or indirectly, more than twenty-five percent (25%) of, respectively,
the outstanding shares of common stock of the Company resulting from such transaction or the combined voting power of the outstanding
voting securities of such Company entitled to vote generally in the election of directors, except to the extent that such ownership
existed with respect to the Company prior to the transaction, and
(iii) individuals
who were members of the Board immediately prior to the approval by the stockholders of the Company of such transaction will constitute
at least a majority of the members of the board of directors of the Company resulting from such transaction.
“Convertible
Security” means any security convertible into or exchangeable for shares of Common Stock of the Company, or any option,
warrant or other right to acquire shares of Common Stock of the Company.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time.
“Committee”
has the meaning set forth in subsection 3.2.
“Common
Stock” means the common stock of the Company.
“Company”
means Berkshire Homes, Inc., a Nevada corporation
“Compensation
Committee” means the Compensation Committee (if any) of the Board.
“Disability”
means, unless otherwise defined by the Committee for purposes of the Plan or in the instrument evidencing an Award or in a written
employment, services or other agreement between the Participant and the Company or a Related Company, a mental or physical impairment
of the Participant that is expected to result in death or that has lasted or is expected to last for a continuous period of 12
months or more and that causes the Participant to be unable to perform his or her material duties for the Company or a Related
Company and to be engaged in any substantial gainful activity, in each case as determined by the Company’s chief human resources
officer or other person performing that function or, in the case of directors and executive officers, the Committee, whose determination
shall be conclusive and binding.
“Effective
Date” has the meaning set forth in Section 19.
“Eligible
Person” means any person eligible to receive an Award as set forth in Section 5.
“Entity”
means any individual, entity or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Fair
Market Value” means the closing price for the Common Stock on any given date during regular trading, or if not trading
on that date, such price on the last preceding date on which the Common Stock was traded, unless determined otherwise by the Committee
using such methods or procedures as it may establish.
“Grant
Date” means the later of:
(c) the
date on which the Committee completes the corporate action authorizing the grant of an Award or such later date specified by the
Committee and
(d) the date
on which all conditions precedent to an Award have been satisfied, provided that conditions to the exercisability or vesting of
Awards shall not defer the Grant Date.
“Incentive
Stock Option” means an Option granted with the intention that it qualify as an “incentive stock option” as
that term is defined for purposes of Section 422 of the Code or any successor provision.
“including”,
“include”, “includes” and words of similar import shall be construed broadly as if followed
by the phrase “without limitation”.
“Nonqualified
Stock Option” means an Option other than an Incentive Stock Option.
“Option”
means a right to purchase Common Stock granted under Section 7. .
“Option
Expiration Date” means the last day of the maximum term of an Option.
“Outstanding
Company Common Stock” has the meaning set forth in the definition of “Change in Control.”
“Outstanding
Company Voting Securities” has the meaning set forth in the definition of “Change in Control.”
“Parent
Company” means a company or other entity which as a result of a Company Transaction owns the Company or all or substantially
all of the Company’s assets either directly or through one or more subsidiaries.
“Participant”
means any Eligible Person to whom an Award is granted.
“Performance
Award” means an Award of Performance Shares or Performance Units granted under Section 11.
“Performance
Share” means an Award of units denominated in shares of Common Stock granted under subsection 11.1.
“Performance
Unit” means an Award of units denominated in cash or property other than shares of Common Stock granted under subsection
11.2.
“Plan”
means this Berkshire Homes, Inc. 2015 Incentive Plan.
‘‘Related
Company” means any entity that is directly or indirectly controlled by, in control of or under common control with the
Company.
“Restricted
Stock” means an Award of shares of Common Stock granted under Section 10. , the rights of ownership of which are subject
to restrictions prescribed by the Committee.
“Retirement”
means, unless otherwise defined in the instrument evidencing the Award or in a written employment, services or other agreement
between the Participant and the Company or a Related Company, retirement as defined for purposes of the Plan by the Committee or
the Company’s chief human resources officer or other person performing that function or, if not so defined, means Termination
of Service on or after the date the Participant reaches “normal retirement age” as that term is defined in Section
411(a)(8) of the Code.
“Securities
Act” means the Securities Act of 1933, as amended from time to time.
“Stock
Appreciation Right” or “SAR” means a right granted under subsection 9.1 to receive the excess of the
Fair Market Value of a specified number of shares of Common Stock over the grant price.
“Stock
Award” means an Award of shares of Common Stock granted under Section 10, the rights of ownership of which are not subject
to restrictions prescribed by the Committee.
“Stock
Unit” means an Award denominated in units of Common Stock granted under Section 10.
“Substitute
Awards” means Awards granted or shares of Common Stock issued by the Company in substitution or exchange for awards previously
granted by an Acquired Entity.
“Successor
Company” means the surviving company, the successor company or Parent Company, as applicable, in connection with a Company
Transaction.
“Termination
of Service” means a termination of employment or service relationship with the Company or a Related Company for any reason,
whether voluntary or involuntary, including by reason of death, Disability or Retirement. Any question as to whether and when there
has been a Termination of Service for the purposes of an Award and the cause of such Termination of Service shall be determined
by the Company’s chief human resources officer or other person performing that function or, with respect to directors and
executive officers, by the Committee, whose determination shall be conclusive and binding. Transfer of a Participant’s employment
or service relationship between the Company and any Related Company shall not be considered a Termination of Service for purposes
of an Award. Unless the Committee determines otherwise, a Termination of Service shall be deemed to occur if the Participant’s
employment or service relationship is with an entity that has ceased to be a Related Company. A Participant’s change in status
from an employee of the Company or a Related Company to a consultant, advisor or independent contractor of the Company or a Related
Company or a change in status from a consultant, advisor or independent contractor of the Company or a Related Company to an employee
of the Company or a Related Company, shall not be considered a Termination of Service.
“Vesting
Commencement Date” means the Grant Date or such other date selected by the Committee as the date from which an Award
begins to vest.
PLAN ADOPTION AND AMENDMENTS/ADJUSTMENTS
SUMMARY PAGE
|
Date of Board
Action |
Action |
Section/Effect
of Amendment |
Date of Shareholder
Approval |
| |
|
|
|
| , 2015 |
Initial Plan Adoption |
|
, 2015 |
EMPLOYMENT
AGREEMENT
THIS AGREEMENT
MADE AS OF April 30, 2015 but effective as of January 1, 2015 (The “Effective Date”)
BETWEEN:
Berkshire
Homes, Inc., a company incorporated under the laws of the State of Nevada, USA, having a business address at 2375 East
Camelback Road – Suite 600, Phoenix, Arizona, 85016.
(the
“Company”)
OF
THE FIRST PART
AND:
Llorn
Kylo, A Canadian citizen, having work authorization in the United States of American under an E2 Visa
(the
“Employee”)
OF
THE SECOND PART
WHEREAS
the Company has agreed to hire the Llorn Kylo as a full-time Employee of the Company and the Employee has agreed to provide management
services to the Company on the terms and conditions hereinafter set forth;
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements herein contained, the parties
hereto agree (the “Agreement”) as follows:
| 1.1. | The
Company hereby retains the Employee to provide the Company management with services as
the Chief Executive Officer and as a member of the Company’s Board of Directors
(the “Services”) in regards to the Company’s management and operations,
and the Employee hereby agrees to provide such Services upon the terms and conditions
contained in this Agreement. |
| 1.1. | The
term of this Agreement will begin on the Effective Date and terminate (i) by mutual consent;
(b) if the Employee gives 30 days’ prior written notice to the Company; or (c)
if the Company gives 90 days’ prior written notice to the Employee. If the Company
terminates the Employee, the Employee shall be entitled to one year’s severance
pay and any bonus payable to Employee. Employee will also be able to keep the Company
vehicle in the event of termination. |
| 1.1. | Due
to the personal nature of the services to be rendered by Employee, this Agreement may
not be assigned. Company may assign all rights and liabilities under this agreement to
a subsidiary or an affiliate or to a successor to all or a substantial part of its business
and assets with the prior written consent of the Employee. Subject to the foregoing,
this Agreement will inure to the benefit of and be binding upon each of the heirs, assigns,
and successors of the respective parties. |
| 4. | REMUNERATION/REIMBURSEMENT |
| 1.1. | Salary.
During the term of this Agreement, and provided the Agreement has not been terminated
pursuant to Section 2, Company shall pay Employee a salary of $6,000 per month commencing
from the Effective Date payable in respect of each calendar month on the last day of
each month. The Employee shall be entitled to four weeks per year of paid vacation. |
| 1.2. | Bonus.
The Employee will be entitled to a bonus set by the Board of Directors at year end each
year. |
| 1.3. | Expenses.
Company shall reimburse Employee for all reasonable and necessary out-of-pocket expenses,
including travelling expenses, associated with providing the Services. Any monthly expenses
shall be approved by the Company prior to their being incurred. |
| 1.4. | Stock
Options. On the date of this Agreement, the Employee shall be granted 2,000,000 options
in the Company exercisable at the price of the most recent trade of the Company’s
shares as of the end of trading on that date. |
| 1.5. | Benefits.
Employee is to receive full medical, dental, insurance and automobile coverage paid for
by the Company. |
| 1.6. | Taxes.
Company will deduct the required tax owing and remit monthly to the IRS on the Employee’s
behalf. If Employee incurs income tax or any other tax, including payroll tax, as a result
of the receipt of non-cash compensation during any fiscal year, Company shall pay to
Employee an amount equal to cover any and all such tax. |
| 1.1. | The
Employee shall provide management services to the Company pursuant to this Agreement
by directing, overseeing and coordinating major activities of the Company’s operations,
including identifying, evaluating, performing due diligence and acquiring direct equity
holdings in promising properties located in the US, raising capital, as well as acting
as spokesperson for the Company. The Company recognizes that the Employee is actively
involved in other businesses as board member and management, and that therefore, the
Employee shall devote the necessary time, ability, and attention to the business of the
Employer as he and the Board of Directors mutually deem necessary to carry out his duties. |
| 1.1. | Unless
permitted by resolution of the Directors, the Employee shall not, during the term of
this Agreement or at any time thereafter, use for its own purposes or for any purposes
other than those of the Company any intellectual property or knowledge or confidential
information of any kind whatsoever it may acquire in relation to the Company’s
business or the business of its subsidiaries, and such shall be and remain the property
of the Company. |
| 1.1. | The
headings and section references in this Agreement are for convenience of reference only
and do not form a part of this Agreement and are not intended to interpret, define or
limit the scope, extent or intent of this Agreement or any provision thereof. |
| 1.2. | Time
is hereby expressly made of the essence of this Agreement with respect to the performance
by the parties of their respective obligations under this Agreement. |
| 1.3. | This
Agreement shall insure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, personal representatives, successors and
permitted assigns. This Agreement may not be assigned by either party hereto without
the prior express written consent of the other party. |
| 1.4. | This
Agreement constitutes the entire agreement between the parties hereto relating to the
subject matter hereof and may not be amended, waived or discharged except by an instrument
in writing executed by the party against whom enforcement of such amendment, waiver or
discharge is sought and this Agreement supersedes all prior agreements between the parties. |
| 1.5. | Each
of the parties hereto hereby covenants and agrees to execute such further and other documents
and instruments and do such further acts and other things as may be necessary to implement
and carry out the intent of this Agreement. |
| 1.6. | All
notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered by hand or mailed by postage prepaid
double registered mail address as follows: |
To
the Company:
Berkshire
Homes, Inc.
Address:
2375 East Camelback Road, Phoenix, Arizona, 85016
Attention:
The President
To
the Employee:
Address:
5838 E Berneil Lane, Paradise Valley, Arizona, 85253
Attention:
Llorn Kylo
IN WITNESS
WHEREOF this Agreement has been duly executed by the parties hereto effective as of the day and year first above written.
BERKSHIRE
HOMES, INC.
| Per: /s/ Authorized Signatory |
/s/ Llorn Kylo |
| Authorized Signatory |
Llorn Kylo |
INDEMNITY
AGREEMENT
This
Indemnity Agreement, effective as of April 30, 2015, is made by and between Berkshire Homes, Inc., a Nevada corporation with executive
offices located at 2375 E Camelback Rd, Suite 600, Phoenix, Arizona, 85016 (the “Company”), and Llorn Kylo, the
Company’s director and president residing at 5838 E Berneil Ln, Paradise Valley, AZ, 85253 (the “Indemnitee”).
RECITALS
A.
The Company is aware that competent and experienced persons are increasingly reluctant to serve as directors or officers of corporations
unless they are protected by comprehensive liability insurance or indemnification, due to increased exposure to litigation costs
and risks resulting from their service to such corporations, and due to the fact that the exposure frequently bears no reasonable
relationship to the
compensation
of such directors and officers;
B.
The statutes and judicial decisions regarding the duties of directors and officers are often difficult to apply, ambiguous, or
conflicting, and therefore fail to provide such directors and officers with adequate, reliable knowledge of legal risks to which
they are exposed or information regarding the proper course of action to take;
C.
Plaintiffs often seek damages in such large amounts and the costs of litigation may be so substantial (whether or not the case
is meritorious), that the defense and/or settlement of such litigation is often beyond the personal resources of officers and
directors;
D.
The Company believes that it is unfair for its directors and officers and the directors and officers of its subsidiaries to assume
the risk of large judgments and other expense that may be incurred in cases in which the director or officer received no personal
profit and in cases where the director or officer was not culpable;
E.
The Company recognizes that the issues in controversy in litigation against a director or officer of a corporation such as the
Company or a subsidiary of the Company are often related to the knowledge, motives and intent of such director or officer, that
he or she is usually the only witness with knowledge of the essential facts and exculpating circumstances regarding such matters
and that the long period of time which usually elapses before the trial or other disposition of which litigation often extends
beyond the time that the director or officer can reasonably recall such matters; and may extend beyond the normal time for retirement
or in the event of his or her death, his or her spouse, heirs, executors or administrators, may be faced with limited ability
and undue hardship in maintaining an adequate defense, which may discourage such a director or officer from serving in that position;
F.
Based upon their experience as business managers, the Board of Directors of the Company (the “Board”) has concluded
that, to retain and attract talented and experienced individuals to serve as officers and directors of the Company and its subsidiaries
and to encourage such individuals to take the business risks necessary for the success of the Company and its subsidiaries, it
is necessary for the Company to contractually indemnify its officers and directors and the officers and directors of its subsidiaries,
and to assume for itself maximum liability for expenses and damages in connection with claims against such officers and directors
in connection with their service to the Company and its subsidiaries, and has further concluded that the failure to provide such
contractual indemnification could result in great harm to the Company and its subsidiaries and the Company’s stockholders;
G.
The corporate law of Nevada, under which the Company is organized, empowers the Company to indemnify by agreement its officers,
directors, employees and agents, and persons who serve, at the request of the Company, as directors, officers, employees or agents
of other corporations or enterprises, and expressly provides that the indemnification provided by such legislation is not exclusive;
H.
The Company, after reasonable investigation prior to the date hereof, has determined that the liability insurance coverage available
to the Company and its subsidiaries as of the date hereof is inadequate and/or unreasonably expensive. The Company believes, therefore,
that the interest of the Company’s stockholders would best be served by a combination of such insurance as the Company may
obtain, or request a subsidiary to obtain, pursuant to the Company’s obligations hereunder, and the indemnification by the
Company of the directors and officers of the Company and its subsidiaries;
I.
The Company desires and has requested the Indemnitee to serve or continue to serve as a director or officer of the Company and/or
the subsidiaries of the Company free from undue concern for claims for damages arising out of or related to such services to the
Company and/or a subsidiary of the Company; and
J.
The Indemnitee is willing to serve, or to continue to serve, the Company and/or the subsidiaries of the Company, provided that
he or she is furnished the indemnity provided for herein.
AGREEMENT
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
(a) Agent.
For the purposes of this Agreement, “agent” of the Company means any person who is or was a director, officer, employee
or other agent of the Company or a subsidiary of the Company; or is or was serving at the request of, for the convenience of or
to represent the interest of the Company or a subsidiary of the Company as a director, officer, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust or other enterprise; or was a director, officer, employee or agent
of a foreign or domestic corporation which was a predecessor corporation of the Company or a subsidiary of the Company, or was
a director, officer, employee or agent of another enterprise at the request of, for the convenience of or to represent the interests
of such predecessor corporation.
(b) Expenses. For
purposes of this Agreement, “expenses” includes all direct and indirect costs of any type or nature whatsoever (including,
without limitation, all attorneys’ fees and related disbursements, and other out-of-pocket costs) actually and reasonably
incurred by the Indemnitee in connection with either the investigation, defense or appeal of a proceeding or establishing or enforcing
a right to indemnification under this Agreement; provided, however, that expenses shall not include any judgments, fines, ERISA
excise taxes or penalties or amounts paid in settlement of a proceeding.
(c) Proceeding. For
the purposes of this Agreement, “proceeding” means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other type whatsoever.
(d) Subsidiary. For
purposes of this Agreement, “subsidiary” means any corporation of which more than 50% of the outstanding voting securities
is owned directly or indirectly by the Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries.
2. Agreement
to Serve. The Indemnitee agrees to serve and/or continue to serve as an agent of the Company, at its will (or under separate
agreement, if such agreement exists), in the capacity the Indemnitee currently serves as an agent of the Company, so long as he
or she is duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws of the Company or
any subsidiary of the Company or until such time as he or she tenders his resignation in writing or he or she is removed from
such position, provided, however, that nothing contained in this Agreement is intended to create any right to continued employment
by the Indemnitee.
3. Maintenance
of Liability Insurance.
(a)
The Company hereby covenants and agrees that, so long as the Indemnitee shall continue to serve as an agent of the Company and
thereafter so long as the Indemnitee shall be subject to any possible proceeding by reason of the fact that the Indemnitee was
an agent of the Company, the Company, subject to Section 3(b), shall use reasonable efforts to obtain and maintain in full
force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts
from established and reputable insurers.
(b)
Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company determines
in good faith that such insurance is not reasonably available, the premium costs for such insurance are disproportionate to the
amount of coverage provided, the coverage is reduced by exclusions so as to provide an insufficient benefit, or the Indemnitee
is covered by similar insurance maintained by a subsidiary of the Company.
4. Mandatory
Indemnification. The Company shall indemnify the Indemnitee from:
(a) Third
Party Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any proceeding (other
than an action by or in the right of the Company) by reason of the fact that he or she is or was an agent of the Company, or by
reason of anything done or not done by him or her in any such capacity, against any and all expenses and liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement)
actually and reasonably incurred by him or her in connection with the investigation, defense, settlement or appeal of such proceeding
if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful; and
(b) Derivative
Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any proceeding by
or in the right of the Company to procure a judgment in its favor by reason of the fact that he or she is or was an agent of the
Company, or by reason of anything done or not done by him or her in any such capacity, against any amounts paid in settlement
of any such proceeding and all expenses actually and reasonably incurred by him or her in connection with the investigation, defense,
settlement, or appeal of such proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Company; except that no indemnification under this subsection shall be made in
respect of any claim, issue or matter as to which such person shall have been finally adjudged to be liable to the Company after
the time for an appeal has expired by a court of competent jurisdiction due to willful misconduct of a culpable nature in the
performance of his or her duty to the Company unless and only to the extent that the court in which such proceeding was brought
shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such amounts which the court shall deem proper; and
(c) Actions
Where Indemnitee is Deceased. If the Indemnitee is a person who was or is a party or is threatened to be made a party
to any proceeding by reason of the fact that he or she is or was an agent of the Company, or by reason of anything done or not
done by him or her in any such capacity, against any and all expenses and liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) actually and reasonably incurred
by him or her in connection with the investigation, defense, settlement or appeal of such proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company, and prior to,
during the pendency or after completion of such proceeding the Indemnitee is deceased, except that in a proceeding by or in the
right of the Company no indemnification shall be due under the provisions of this subsection in respect of any claim, issue or
matter as to which such person shall have been finally adjudged to be liable to the Company after the time for an appeal has expired,
by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of his or her duty to the
Company, unless and only to the extent that the court in which such proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such amounts which the court shall deem proper; and
(d) Exception
for Amounts Covered by Insurance. Notwithstanding the foregoing, the Company shall not be obligated to indemnify the
Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fees, ERISA excise taxes
or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee under D&O Insurance.
5. Partial
Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of any expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement) incurred by him or her in the investigation, defense, settlement
or appeal of a proceeding but not entitled, however, to indemnification for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for such total amount except as to the portion thereof to which the Indemnitee is not entitled.
6. Mandatory
Advancement of Expenses. Subject to Section 10 below, the Company shall advance all expenses incurred by the Indemnitee
in connection with the investigation, defense, settlement or appeal of any proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or was an agent of the Company or by reason of anything
done or not done by him or her in any such capacity. Indemnitee hereby undertakes to repay such amounts advanced only if, and
to the extent that, it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid by the Company to the Indemnitee within ten (10) days
following delivery of a written request therefor by the Indemnitee to the Company.
7. Notice
and Other Indemnification Procedures.
(a)
Promptly after receipt by the Indemnitee of notice of the commencement of or the threat of commencement of any proceeding, the
Indemnitee shall, if the Indemnitee believes that indemnification with respect thereto may be sought from the Company under this
Agreement, notify the Company of the commencement or threat of commencement thereof.
(b)
If, at the time of the receipt of a notice of the commencement of a proceeding pursuant to Section 7(a) hereof, the Company
has D&O Insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(c)
In the event the Company shall be obligated to advance the expenses for any proceeding against the Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, with counsel approved by the Indemnitee, upon the delivery
to the Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by the Indemnitee
and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any
fees of counsel subsequently incurred by the Indemnitee with respect to the same proceeding, provided that (i) the Indemnitee
shall have the right to employ his or her counsel in any such proceeding at the Indemnitee’s expense; and (ii) if (A) the
employment of counsel by the Indemnitee has been previously authorized by the Company, (B) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense or
(C) the Company shall not, in fact, have employed counsel to assume the defense of such proceeding, the fees and expenses
of the Indemnitee’s counsel shall be at the expense of the Company.
8. Determination
of Right to Indemnification.
(a)
To the extent the Indemnitee has been successful on the merits or otherwise in defense of any proceeding referred to in Section 4(a),
4(b) or 4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify
the Indemnitee against expenses actually and reasonably incurred by him or her in connection therewith.
(b)
In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent
that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that the Indemnitee
has not met the applicable standard of conduct required to entitle the Indemnitee to such indemnification.
(c)
The Indemnitee shall be entitled to select the forum in which the validity of the Company’s claim under Section 8(b)
hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1)
A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2)
The stockholders of the Company;
(3)
Legal counsel selected by the Indemnitee and reasonably approved by the Board, which counsel shall make such determination in
a written opinion;
(4)
A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by the Indemnitee and the last
of whom is selected by the first two arbitrators so selected.
(d)
As soon as practicable, and in no event later than 30 days after written notice of the Indemnitee’s choice of forum pursuant
to Section 8(c) above, the Company shall, at its own expense, submit to the selected forum in such manner as the Indemnitee
or the Indemnitee’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification; and
the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e)
Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification
with respect to a specific proceeding, the Indemnitee shall have the right to apply to the the court in which that proceeding
is or was pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee’s right to indemnification
pursuant to the Agreement.
(f)
The Company shall indemnify the Indemnitee against all expenses incurred by the Indemnitee in connection with any hearing or proceeding
under this Section 8 involving the Indemnitee and against all expenses incurred by the Indemnitee in connection with any
other proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee
in any such proceeding was frivolous or not made in good faith.
9. Limitation
of Actions and Release of Claims. No proceeding shall be brought and no cause of action shall be asserted by or on behalf
of the Company or any subsidiary against the Indemnitee, his or her spouse, heirs, estate, executors or administrators after the
expiration of one year from the act or omission of the Indemnitee upon which such proceeding is based; however, in a case where
the Indemnitee fraudulently conceals the facts underlying such cause of action, no proceeding shall be brought and no cause of
action shall be asserted after the expiration of one year from the earlier of (i) the date the Company or any subsidiary
of the Company discovers such facts, or (ii) the date the Company or any subsidiary of the Company could have discovered
such facts by the exercise of reasonable diligence. Any claim or cause of action of the Company or any subsidiary of the Company,
including claims predicated upon the negligent act or omission of the Indemnitee, shall be extinguished and deemed released unless
asserted by filing of a legal action within such period. This Section 9 shall not apply to any cause of action which has
accrued on the date hereof and of which the Indemnitee is aware on the date hereof, but as to which the Company has no actual
knowledge apart from the Indemnitee’s knowledge.
10. Exceptions. Any
other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims
Initiated by Indemnitee. To indemnify or advance expenses to the Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by the Indemnitee and not by way of defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute or law, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of Directors finds it to be appropriate; or
(b) Lack
of Good Faith. To indemnify the Indemnitee for any expenses incurred by the Indemnitee with respect to any proceeding
instituted by the Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each
of the material assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Unauthorized
Settlements. To indemnify the Indemnitee under this Agreement for any amounts paid in settlement of a proceeding unless
the Company consents to such settlement; or
(d) Claims
by the Company for Willful Misconduct. To indemnify or advance expenses to the Indemnitee under this Agreement for any
expenses incurred by the Indemnitee with respect to any proceeding or claim brought by the Company against the Indemnitee for
willful misconduct, unless a court of competent jurisdiction determines that each of such claims was not made in good faith or
was frivolous; or
(e) Section 16(b).
To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities
in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute; or
(f) Willful
Misconduct. To indemnify the Indemnitee on account of the Indemnitee’s conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct; or
(g) Unlawful
Indemnification. To indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful; or
(h) Forfeiture
of Certain Bonuses and Profits. To indemnify Indemnitee for the payment of amounts required to be reimbursed to the Company
pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, as amended, or any similar successor statute.
11. Nonexclusivity. The
provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the
vote of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as to actions in his
or her official capacity and to actions in another capacity while occupying his or her position as an agent of the Company, and
the Indemnitee’s rights hereunder shall continue after the Indemnitee has ceased acting as an agent of the Company and shall
inure to the benefit of the heirs, executors and administrators of the Indemnitee.
12. Interpretation
of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to the Indemnitee to the fullest extent now or hereafter permitted by law.
13. Severability. If
any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
(i) the validity, legality and enforceability of the remaining provisions of the Agreement (including, without limitation,
all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable
and to give effect to Section 12 hereof.
14. Modification
and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
15. Successors
and Assigns. The terms of this Agreement shall bind, and shall inure to the benefit of, the successors, heirs, executors,
and administrators and assigns of the parties hereto.
16. Notice. All
notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by certified or registered mail with postage
prepaid, on the third business day after the mailing date. Addresses for notice to either party are as shown on the first page
of this Agreement, or as subsequently modified by written notice.
17. Governing
Law. This Agreement shall be governed exclusively by and construed according to the laws of the State of Nevada, as applied
to contracts between Nevada residents entered into and to be performed entirely within Nevada.
18. Consent
to Jurisdiction. The Company and the Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of
the State of Nevada for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement.
The
parties hereto have entered into this Indemnity Agreement effective as of the date first above written.
| |
|
|
| BERKSHIRE
HOMES, INC. |
| |
|
| By: |
|
|
| |
|
| Its: |
|
|
| |
| INDEMNITEE: |
|
| LLORN KYLO |
EMPLOYMENT
AGREEMENT
THIS AGREEMENT
MADE AS OF April 30, 2015 but effective as of January 1, 2015 (The “Effective Date”)
BETWEEN:
Berkshire
Homes, Inc., a company incorporated under the laws of the State of Nevada, USA, having a business address at 2375 East
Camelback Road – Suite 600, Phoenix, Arizona, 85016.
(the
“Company”)
OF
THE FIRST PART
AND:
Munjit
Johal, A US citizen, with an address at 42 Rockwood, Irvine, California 92614.
(the
“Employee”)
OF
THE SECOND PART
WHEREAS
the Company has agreed to hire the Munjit Johal as a full-time Employee of the Company and the Employee has agreed to provide
management services to the Company on the terms and conditions hereinafter set forth;
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements herein contained, the parties
hereto agree (the “Agreement”) as follows:
| 1.1. | The
Company hereby retains the Employee to provide the Company management with services as
the Chief Financial Officer (the “Services”) in regards to the Company’s
management and operations, and the Employee hereby agrees to provide such Services upon
the terms and conditions contained in this Agreement. |
| 1.1. | The
term of this Agreement will begin on the date of the Effective Date and terminate (i)
by mutual consent; (b) if the Employee gives 30 days’ prior written notice to the
Company; or (c) if the Company gives 90 days’ prior written notice to the Employee.
If the Company terminates the Employee, the Employee shall be entitled to one year’s
severance pay and any bonus payable to Employee. |
| 1.1. | Due
to the personal nature of the services to be rendered by Employee, this Agreement may
not be assigned. Company may assign all rights and liabilities under this agreement to
a subsidiary or an affiliate or to a successor to all or a substantial part of its business
and assets with the prior written consent of the Employee. Subject to the foregoing,
this Agreement will inure to the benefit of and be binding upon each of the heirs, assigns,
and successors of the respective parties. |
| 4. | REMUNERATION/REIMBURSEMENT |
| 1.1. | Salary.
During the term of this Agreement, and provided the Agreement has not been terminated
pursuant to Section 2, Company shall pay Employee a salary of $4,000 per month commencing
from the Effective Date payable in respect of each calendar month on the last day of
each month. The Employee shall be entitled to four weeks per year of paid vacation. |
| 1.2. | Bonus.
The Employee will be entitled to a bonus set by the Board of Directors at year end each
year. |
| 1.3. | Expenses.
Company shall reimburse Employee for all reasonable and necessary out-of-pocket expenses,
including travelling expenses, associated with providing the Services. Any monthly expenses
shall be approved by the Company prior to their being incurred. |
| 1.4. | Stock
Options. On the date of this Agreement, the Employee shall be granted 2,000,000 options
in the Company exercisable at the price of the most recent trade of the Company’s
shares as of the end of trading on that date. |
| 1.5. | Benefits.
Employee is to receive full medical, dental, insurance and automobile coverage paid for
by the Company. |
| 1.6. | Taxes.
Company will deduct the required tax owing and remit monthly to the IRS on the Employee’s
behalf. If Employee incurs income tax or any other tax, including payroll tax, as a result
of the receipt of non-cash compensation during any fiscal year, Company shall pay to
Employee an amount equal to cover any and all such tax. |
| 1.1. | The
Employee shall provide management services to the Company pursuant to this Agreement
by directing, overseeing and coordinating major activities of the Company’s operations,
including identifying, evaluating, performing due diligence and acquiring direct equity
holdings in promising properties located in the US, raising capital, as well as acting
as spokesperson for the Company. The Company recognizes that the Employee is actively
involved in other businesses as board member and management, and that therefore, the
Employee shall devote the necessary time, ability, and attention to the business of the
Employer as he and the Board of Directors mutually deem necessary to carry out his duties. |
| 1.1. | Unless
permitted by resolution of the Directors, the Employee shall not, during the term of
this Agreement or at any time thereafter, use for its own purposes or for any purposes
other than those of the Company any intellectual property or knowledge or confidential
information of any kind whatsoever it may acquire in relation to the Company’s
business or the business of its subsidiaries, and such shall be and remain the property
of the Company. |
| 1.1. | The
headings and section references in this Agreement are for convenience of reference only
and do not form a part of this Agreement and are not intended to interpret, define or
limit the scope, extent or intent of this Agreement or any provision thereof. |
| 1.2. | Time
is hereby expressly made of the essence of this Agreement with respect to the performance
by the parties of their respective obligations under this Agreement. |
| 1.3. | This
Agreement shall insure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, personal representatives, successors and
permitted assigns. This Agreement may not be assigned by either party hereto without
the prior express written consent of the other party. |
| 1.4. | This
Agreement constitutes the entire agreement between the parties hereto relating to the
subject matter hereof and may not be amended, waived or discharged except by an instrument
in writing executed by the party against whom enforcement of such amendment, waiver or
discharge is sought and this Agreement supersedes all prior agreements between the parties. |
| 1.5. | Each
of the parties hereto hereby covenants and agrees to execute such further and other documents
and instruments and do such further acts and other things as may be necessary to implement
and carry out the intent of this Agreement. |
| 1.6. | All
notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered by hand or mailed by postage prepaid
double registered mail address as follows: |
To
the Company:
Berkshire
Homes, Inc.
Address:
2375 East Camelback Road, Phoenix, Arizona, 85016
Attention:
The President
To
the Employee:
Address:
42
Rockwood, Irvine, California 92614.
Attention:
Munjit Johal
IN WITNESS
WHEREOF this Agreement has been duly executed by the parties hereto effective as of the day and year first above written.
BERKSHIRE
HOMES, INC.
| Per: /s/ Authorized Signatory |
/s/ Munjit Johal |
| Authorized Signatory |
Munjit Johal |
INDEMNITY
AGREEMENT
This
Indemnity Agreement, effective as of April 30, 2015, is made by and between Berkshire Homes, Inc., a Nevada corporation with
executive offices located at 2375 E Camelback Rd, Suite 600, Phoenix, Arizona, 85016 (the “Company”), and Munjit
Johal, the Company’s chief financial officer residing at 42 Rockwood, Irvine, California 92614 (the “Indemnitee”).
RECITALS
A.
The Company is aware that competent and experienced persons are increasingly reluctant to serve as directors or officers of corporations
unless they are protected by comprehensive liability insurance or indemnification, due to increased exposure to litigation costs
and risks resulting from their service to such corporations, and due to the fact that the exposure frequently bears no reasonable
relationship to the compensation of such directors and officers;
B.
The statutes and judicial decisions regarding the duties of directors and officers are often difficult to apply, ambiguous, or
conflicting, and therefore fail to provide such directors and officers with adequate, reliable knowledge of legal risks to which
they are exposed or information regarding the proper course of action to take;
C.
Plaintiffs often seek damages in such large amounts and the costs of litigation may be so substantial (whether or not the case
is meritorious), that the defense and/or settlement of such litigation is often beyond the personal resources of officers and
directors;
D.
The Company believes that it is unfair for its directors and officers and the directors and officers of its subsidiaries to assume
the risk of large judgments and other expense that may be incurred in cases in which the director or officer received no personal
profit and in cases where the director or officer was not culpable;
E.
The Company recognizes that the issues in controversy in litigation against a director or officer of a corporation such as the
Company or a subsidiary of the Company are often related to the knowledge, motives and intent of such director or officer, that
he or she is usually the only witness with knowledge of the essential facts and exculpating circumstances regarding such matters
and that the long period of time which usually elapses before the trial or other disposition of which litigation often extends
beyond the time that the director or officer can reasonably recall such matters; and may extend beyond the normal time for retirement
or in the event of his or her death, his or her spouse, heirs, executors or administrators, may be faced with limited ability
and undue hardship in maintaining an adequate defense, which may discourage such a director or officer from serving in that position;
F.
Based upon their experience as business managers, the Board of Directors of the Company (the “Board”) has concluded
that, to retain and attract talented and experienced individuals to serve as officers and directors of the Company and its subsidiaries
and to encourage such individuals to take the business risks necessary for the success of the Company and its subsidiaries, it
is necessary for the Company to contractually indemnify its officers and directors and the officers and directors of its subsidiaries,
and to assume for itself maximum liability for expenses and damages in connection with claims against such officers and directors
in connection with their service to the Company and its subsidiaries, and has further concluded that the failure to provide such
contractual indemnification could result in great harm to the Company and its subsidiaries and the Company’s stockholders;
G.
The corporate law of Nevada, under which the Company is organized, empowers the Company to indemnify by agreement its officers,
directors, employees and agents, and persons who serve, at the request of the Company, as directors, officers, employees or agents
of other corporations or enterprises, and expressly provides that the indemnification provided by such legislation is not exclusive;
H.
The Company, after reasonable investigation prior to the date hereof, has determined that the liability insurance coverage available
to the Company and its subsidiaries as of the date hereof is inadequate and/or unreasonably expensive. The Company believes, therefore,
that the interest of the Company’s stockholders would best be served by a combination of such insurance as the Company may
obtain, or request a subsidiary to obtain, pursuant to the Company’s obligations hereunder, and the indemnification by the
Company of the directors and officers of the Company and its subsidiaries;
I.
The Company desires and has requested the Indemnitee to serve or continue to serve as a director or officer of the Company and/or
the subsidiaries of the Company free from undue concern for claims for damages arising out of or related to such services to the
Company and/or a subsidiary of the Company; and
J.
The Indemnitee is willing to serve, or to continue to serve, the Company and/or the subsidiaries of the Company, provided that
he or she is furnished the indemnity provided for herein.
AGREEMENT
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
(a) Agent.
For the purposes of this Agreement, “agent” of the Company means any person who is or was a director, officer, employee
or other agent of the Company or a subsidiary of the Company; or is or was serving at the request of, for the convenience of or
to represent the interest of the Company or a subsidiary of the Company as a director, officer, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust or other enterprise; or was a director, officer, employee or agent
of a foreign or domestic corporation which was a predecessor corporation of the Company or a subsidiary of the Company, or was
a director, officer, employee or agent of another enterprise at the request of, for the convenience of or to represent the interests
of such predecessor corporation.
(b) Expenses. For
purposes of this Agreement, “expenses” includes all direct and indirect costs of any type or nature whatsoever (including,
without limitation, all attorneys’ fees and related disbursements, and other out-of-pocket costs) actually and reasonably
incurred by the Indemnitee in connection with either the investigation, defense or appeal of a proceeding or establishing or enforcing
a right to indemnification under this Agreement; provided, however, that expenses shall not include any judgments, fines, ERISA
excise taxes or penalties or amounts paid in settlement of a proceeding.
(c) Proceeding. For
the purposes of this Agreement, “proceeding” means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other type whatsoever.
(d) Subsidiary. For
purposes of this Agreement, “subsidiary” means any corporation of which more than 50% of the outstanding voting securities
is owned directly or indirectly by the Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries.
2. Agreement
to Serve. The Indemnitee agrees to serve and/or continue to serve as an agent of the Company, at its will (or under separate
agreement, if such agreement exists), in the capacity the Indemnitee currently serves as an agent of the Company, so long as he
or she is duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws of the Company or
any subsidiary of the Company or until such time as he or she tenders his resignation in writing or he or she is removed from
such position, provided, however, that nothing contained in this Agreement is intended to create any right to continued employment
by the Indemnitee.
3. Maintenance
of Liability Insurance.
(a)
The Company hereby covenants and agrees that, so long as the Indemnitee shall continue to serve as an agent of the Company and
thereafter so long as the Indemnitee shall be subject to any possible proceeding by reason of the fact that the Indemnitee was
an agent of the Company, the Company, subject to Section 3(b), shall use reasonable efforts to obtain and maintain in full
force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts
from established and reputable insurers.
(b)
Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company determines
in good faith that such insurance is not reasonably available, the premium costs for such insurance are disproportionate to the
amount of coverage provided, the coverage is reduced by exclusions so as to provide an insufficient benefit, or the Indemnitee
is covered by similar insurance maintained by a subsidiary of the Company.
4. Mandatory
Indemnification. The Company shall indemnify the Indemnitee from:
(a) Third
Party Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any proceeding (other
than an action by or in the right of the Company) by reason of the fact that he or she is or was an agent of the Company, or by
reason of anything done or not done by him or her in any such capacity, against any and all expenses and liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement)
actually and reasonably incurred by him or her in connection with the investigation, defense, settlement or appeal of such proceeding
if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful; and
(b) Derivative
Actions. If the Indemnitee is a person who was or is a party or is threatened to be made a party to any proceeding by
or in the right of the Company to procure a judgment in its favor by reason of the fact that he or she is or was an agent of the
Company, or by reason of anything done or not done by him or her in any such capacity, against any amounts paid in settlement
of any such proceeding and all expenses actually and reasonably incurred by him or her in connection with the investigation, defense,
settlement, or appeal of such proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Company; except that no indemnification under this subsection shall be made in
respect of any claim, issue or matter as to which such person shall have been finally adjudged to be liable to the Company after
the time for an appeal has expired by a court of competent jurisdiction due to willful misconduct of a culpable nature in the
performance of his or her duty to the Company unless and only to the extent that the court in which such proceeding was brought
shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such amounts which the court shall deem proper; and
(c) Actions
Where Indemnitee is Deceased. If the Indemnitee is a person who was or is a party or is threatened to be made a party
to any proceeding by reason of the fact that he or she is or was an agent of the Company, or by reason of anything done or not
done by him or her in any such capacity, against any and all expenses and liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) actually and reasonably incurred
by him or her in connection with the investigation, defense, settlement or appeal of such proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company, and prior to,
during the pendency or after completion of such proceeding the Indemnitee is deceased, except that in a proceeding by or in the
right of the Company no indemnification shall be due under the provisions of this subsection in respect of any claim, issue or
matter as to which such person shall have been finally adjudged to be liable to the Company after the time for an appeal has expired,
by a court of competent jurisdiction due to willful misconduct of a culpable nature in the performance of his or her duty to the
Company, unless and only to the extent that the court in which such proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such amounts which the court shall deem proper; and
(d) Exception
for Amounts Covered by Insurance. Notwithstanding the foregoing, the Company shall not be obligated to indemnify the
Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fees, ERISA excise taxes
or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee under D&O Insurance.
5. Partial
Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of any expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement) incurred by him or her in the investigation, defense, settlement
or appeal of a proceeding but not entitled, however, to indemnification for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for such total amount except as to the portion thereof to which the Indemnitee is not entitled.
6. Mandatory
Advancement of Expenses. Subject to Section 10 below, the Company shall advance all expenses incurred by the Indemnitee
in connection with the investigation, defense, settlement or appeal of any proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or was an agent of the Company or by reason of anything
done or not done by him or her in any such capacity. Indemnitee hereby undertakes to repay such amounts advanced only if, and
to the extent that, it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid by the Company to the Indemnitee within ten (10) days
following delivery of a written request therefor by the Indemnitee to the Company.
7. Notice
and Other Indemnification Procedures.
(a)
Promptly after receipt by the Indemnitee of notice of the commencement of or the threat of commencement of any proceeding, the
Indemnitee shall, if the Indemnitee believes that indemnification with respect thereto may be sought from the Company under this
Agreement, notify the Company of the commencement or threat of commencement thereof.
(b)
If, at the time of the receipt of a notice of the commencement of a proceeding pursuant to Section 7(a) hereof, the Company
has D&O Insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(c)
In the event the Company shall be obligated to advance the expenses for any proceeding against the Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, with counsel approved by the Indemnitee, upon the delivery
to the Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by the Indemnitee
and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any
fees of counsel subsequently incurred by the Indemnitee with respect to the same proceeding, provided that (i) the Indemnitee
shall have the right to employ his or her counsel in any such proceeding at the Indemnitee’s expense; and (ii) if (A) the
employment of counsel by the Indemnitee has been previously authorized by the Company, (B) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense or
(C) the Company shall not, in fact, have employed counsel to assume the defense of such proceeding, the fees and expenses
of the Indemnitee’s counsel shall be at the expense of the Company.
8. Determination
of Right to Indemnification.
(a)
To the extent the Indemnitee has been successful on the merits or otherwise in defense of any proceeding referred to in Section 4(a),
4(b) or 4(c) of this Agreement or in the defense of any claim, issue or matter described therein, the Company shall indemnify
the Indemnitee against expenses actually and reasonably incurred by him or her in connection therewith.
(b)
In the event that Section 8(a) is inapplicable, the Company shall also indemnify the Indemnitee unless, and only to the extent
that, the Company shall prove by clear and convincing evidence to a forum listed in Section 8(c) below that the Indemnitee
has not met the applicable standard of conduct required to entitle the Indemnitee to such indemnification.
(c)
The Indemnitee shall be entitled to select the forum in which the validity of the Company’s claim under Section 8(b)
hereof that the Indemnitee is not entitled to indemnification will be heard from among the following:
(1)
A quorum of the Board consisting of directors who are not parties to the proceeding for which indemnification is being sought;
(2)
The stockholders of the Company;
(3)
Legal counsel selected by the Indemnitee and reasonably approved by the Board, which counsel shall make such determination in
a written opinion;
(4)
A panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by the Indemnitee and the last
of whom is selected by the first two arbitrators so selected.
(d)
As soon as practicable, and in no event later than 30 days after written notice of the Indemnitee’s choice of forum pursuant
to Section 8(c) above, the Company shall, at its own expense, submit to the selected forum in such manner as the Indemnitee
or the Indemnitee’s counsel may reasonably request, its claim that the Indemnitee is not entitled to indemnification; and
the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim.
(e)
Notwithstanding a determination by any forum listed in Section 8(c) hereof that the Indemnitee is not entitled to indemnification
with respect to a specific proceeding, the Indemnitee shall have the right to apply to the the court in which that proceeding
is or was pending or any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee’s right to indemnification
pursuant to the Agreement.
(f)
The Company shall indemnify the Indemnitee against all expenses incurred by the Indemnitee in connection with any hearing or proceeding
under this Section 8 involving the Indemnitee and against all expenses incurred by the Indemnitee in connection with any
other proceeding between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement unless a court of competent jurisdiction finds that each of the material claims and/or defenses of the Indemnitee
in any such proceeding was frivolous or not made in good faith.
9. Limitation
of Actions and Release of Claims. No proceeding shall be brought and no cause of action shall be asserted by or on behalf
of the Company or any subsidiary against the Indemnitee, his or her spouse, heirs, estate, executors or administrators after the
expiration of one year from the act or omission of the Indemnitee upon which such proceeding is based; however, in a case where
the Indemnitee fraudulently conceals the facts underlying such cause of action, no proceeding shall be brought and no cause of
action shall be asserted after the expiration of one year from the earlier of (i) the date the Company or any subsidiary
of the Company discovers such facts, or (ii) the date the Company or any subsidiary of the Company could have discovered
such facts by the exercise of reasonable diligence. Any claim or cause of action of the Company or any subsidiary of the Company,
including claims predicated upon the negligent act or omission of the Indemnitee, shall be extinguished and deemed released unless
asserted by filing of a legal action within such period. This Section 9 shall not apply to any cause of action which has
accrued on the date hereof and of which the Indemnitee is aware on the date hereof, but as to which the Company has no actual
knowledge apart from the Indemnitee’s knowledge.
10. Exceptions. Any
other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims
Initiated by Indemnitee. To indemnify or advance expenses to the Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by the Indemnitee and not by way of defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute or law, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of Directors finds it to be appropriate; or
(b) Lack
of Good Faith. To indemnify the Indemnitee for any expenses incurred by the Indemnitee with respect to any proceeding
instituted by the Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each
of the material assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Unauthorized
Settlements. To indemnify the Indemnitee under this Agreement for any amounts paid in settlement of a proceeding unless
the Company consents to such settlement; or
(d) Claims
by the Company for Willful Misconduct. To indemnify or advance expenses to the Indemnitee under this Agreement for any
expenses incurred by the Indemnitee with respect to any proceeding or claim brought by the Company against the Indemnitee for
willful misconduct, unless a court of competent jurisdiction determines that each of such claims was not made in good faith or
was frivolous; or
(e) Section 16(b).
To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities
in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute; or
(f) Willful
Misconduct. To indemnify the Indemnitee on account of the Indemnitee’s conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful misconduct; or
(g) Unlawful
Indemnification. To indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful; or
(h) Forfeiture
of Certain Bonuses and Profits. To indemnify Indemnitee for the payment of amounts required to be reimbursed to the Company
pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, as amended, or any similar successor statute.
11. Nonexclusivity. The
provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the
vote of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as to actions in his
or her official capacity and to actions in another capacity while occupying his or her position as an agent of the Company, and
the Indemnitee’s rights hereunder shall continue after the Indemnitee has ceased acting as an agent of the Company and shall
inure to the benefit of the heirs, executors and administrators of the Indemnitee.
12. Interpretation
of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to the Indemnitee to the fullest extent now or hereafter permitted by law.
13. Severability. If
any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
(i) the validity, legality and enforceability of the remaining provisions of the Agreement (including, without limitation,
all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable
and to give effect to Section 12 hereof.
14. Modification
and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
15. Successors
and Assigns. The terms of this Agreement shall bind, and shall inure to the benefit of, the successors, heirs, executors,
and administrators and assigns of the parties hereto.
16. Notice. All
notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by certified or registered mail with postage
prepaid, on the third business day after the mailing date. Addresses for notice to either party are as shown on the first page
of this Agreement, or as subsequently modified by written notice.
17. Governing
Law. This Agreement shall be governed exclusively by and construed according to the laws of the State of Nevada, as applied
to contracts between Nevada residents entered into and to be performed entirely within Nevada.
18. Consent
to Jurisdiction. The Company and the Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of
the State of Nevada for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement.
The
parties hereto have entered into this Indemnity Agreement effective as of the date first above written.
| |
|
|
| BERKSHIRE
HOMES, INC. |
| |
|
| By: |
|
|
| |
|
| Its: |
|
|
| |
| INDEMNITEE: |
|
| MUNJIT JOHAL |
Berkshire Homes (CE) (USOTC:BKSH)
Historical Stock Chart
From May 2024 to Jun 2024
Berkshire Homes (CE) (USOTC:BKSH)
Historical Stock Chart
From Jun 2023 to Jun 2024
