STOCK OPTION PLAN AGREEMENT
EXHIBIT
4(c) 1
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
INC.
2007
STOCK INCENTIVE PLAN
| 1. |
PURPOSE
OF PLAN
|
The
purpose of the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. 2007 Stock Incentive Plan (this
“Plan”)
is to
aid the Corporation in recruiting and retaining key employees, directors and/or
consultants of outstanding ability and to motivate such employees, directors
and
consultants to exert their best efforts on behalf of the Corporation by
providing incentives through the granting of Awards. The Company expects that
it
will benefit from the added interest which such key employees, directors or
consultants will have in the welfare of the Company as a result of their
proprietary interest in the Company’s success. As used herein, “Corporation”
means
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a company organized under the laws of the Cayman
Islands; “Subsidiary”
means
any corporation or other entity a majority of whose outstanding voting stock
or
voting power is beneficially owned directly or indirectly by the Corporation,
or
in which the Corporation has a variable interest; “Group”
means
the Corporation and its Subsidiaries, collectively; and “Board”
means
the
Board of Directors of the Corporation.
| 2. |
ELIGIBILITY
|
The
Administrator (as such term is defined in Section 3.1) may grant awards
under this Plan only to those persons that the Administrator determines to
be
Eligible Persons. An “Eligible
Person”
is
any
person who is either: (a) an officer (whether or not a director) or
employee of the Group; (b) a director of any member of the Group; or
(c) an individual consultant or advisor who renders or has rendered bona
fide services (other than services in connection with the offering or sale
of
securities of the Corporation in a capital-raising transaction or as a market
maker or promoter of the Corporation’s securities) to the Corporation and who is
selected to participate in this Plan by the Administrator. Notwithstanding
the
foregoing, a person who is otherwise an Eligible Person under clause
(c) above may participate in this Plan only if such participation would not
compromise the Corporation’s ability to rely on Rule 701 to exempt from
registration under the United States Securities Act of 1933, as amended (the
“Securities
Act”),
or
use Form S-8 to register under the Securities Act, the offering and sale of
securities issuable under this Plan by the Corporation or the Corporation’s
compliance with any other applicable laws. An Eligible Person who has been
granted an award (a “participant”)
may,
if otherwise eligible, be granted additional awards if the Administrator shall
so determine.
| 3. |
PLAN
ADMINISTRATION
|
3.1 The
Administrator.
This
Plan shall be administered by and all awards under this Plan shall be authorized
by the Administrator. The “Administrator”
means
the Board or one or more committees appointed by the Board or another committee
(within its delegated authority) to administer all or certain aspects of this
Plan. Any such committee shall be comprised solely of one or more directors
or
such number of directors as may be required under applicable law. A committee
may delegate some or all of its authority to another committee so constituted.
Unless otherwise provided in the Memorandum and Articles of Association of
the
Corporation, as amended, or the applicable charter of any Administrator:
(a) a majority of the members of the acting Administrator shall constitute
a quorum, and (b) the vote of a majority of the members present assuming
the presence of a quorum or the unanimous written consent of the members of
the
Administrator shall constitute action by the acting Administrator. With respect
to awards intended to satisfy the requirements for performance-based
compensation under Section 162(m) of the United States Internal Revenue
Code of 1986, as amended (the “Code”),
this
Plan shall be administered by a committee consisting solely of two or more
outside directors (as this requirement is applied under Section 162(m) of
the Code); provided, however, that the failure to satisfy such requirement
shall
not affect the validity of the action of any committee otherwise duly authorized
and acting in the matter. To the extent required by any applicable listing
agency, this Plan shall be administered by a committee composed entirely of
independent directors (within the meaning of the applicable listing
agency).
3.2 Powers
of the Administrator.
Subject
to the express provisions of this Plan, the Administrator is authorized and
empowered to do all things necessary or desirable in connection with the
authorization of awards and the administration of this Plan (in the case of
a
committee, within the authority delegated to that committee or person(s)),
including, without limitation, the authority to:
3.2.1 determine
eligibility and, from among those persons determined to be eligible, the
particular Eligible Persons who will receive an award under this Plan;
3.2.2 grant
awards to Eligible Persons, determine the price at which securities will be
offered or awarded and the number of securities to be offered or awarded to
any
of such persons, determine the other specific terms and conditions of such
awards consistent with the express limits of this Plan, establish the
installments (if any) in which such awards shall become exercisable or shall
vest (which may include, without limitation, performance and/or time-based
schedules), or determine that no delayed exercisability or vesting is required,
establish any applicable performance targets, and establish the events of
termination or reversion of such awards;
3.2.3 approve
the forms of award agreements (which need not be identical either as to type
of
award or among participants);
3.2.4 construe
and interpret this Plan and any agreements defining the rights and obligations
of the Corporation and participants under this Plan, further define the terms
used in this Plan, and prescribe, amend and rescind rules and regulations
relating to the administration of this Plan or the awards granted under this
Plan;
3.2.5 cancel,
modify, or waive the Corporation’s rights with respect to, or modify,
discontinue, suspend, or terminate any or all outstanding awards, subject to
any
required consent under Section 8.6.5;
3.2.6 accelerate
or extend the vesting or exercisability or extend the term of any or all such
outstanding awards (in the case of options or stock appreciation rights, within
the maximum ten-year term of such awards) in such circumstances as the
Administrator may deem appropriate (including, without limitation, in connection
with a termination of employment or services or other events of a personal
nature) subject to any required consent under Section 8.6.5;
3.2.7 adjust
the number of shares subject to any award, adjust the price of any or all
outstanding awards or otherwise change previously imposed terms and conditions,
in such circumstances as the Administrator may deem appropriate, in each case
subject to Sections 4 and 8.6, and provided that in no case (except due to
an
adjustment contemplated by Section 7 or any repricing that may be approved
by shareholders) shall such an adjustment constitute a repricing (by amendment,
cancellation and regrant, exchange or other means) of the per share exercise
or
base price of any option or stock appreciation right to a price that is less
than the fair market value of a share (as adjusted pursuant to Section 7)
on the date of the grant of the initial award;
3.2.8 determine
the date of grant of an award, which may be a designated date after but not
before the date of the Administrator’s action (unless otherwise designated by
the Administrator, the date of grant of an award shall be the date upon which
the Administrator took the action granting an award);
3.2.9 determine
whether, and the extent to which, adjustments are required pursuant to
Section 7 hereof and authorize the termination, conversion, substitution or
succession of awards upon the occurrence of an event of the type described
in
Section 7;
3.2.10 acquire
or settle (subject to Sections 7 and 8.6) rights under awards in cash, stock
of
equivalent value, or other consideration; and
3.2.11 determine
the fair market value of the shares or awards under this Plan from time to
time
and/or the manner in which such value will be determined.
3.3 Binding
Determinations.
Any
action taken by, or inaction of, the Corporation, any Subsidiary, or the
Administrator relating or pursuant to this Plan and within its authority
hereunder or under applicable law shall be within the absolute discretion of
that entity or body and shall be conclusive and binding upon all persons.
Neither the Board nor any Board committee, nor any member thereof or person
acting at the direction thereof, shall be liable for any act, omission,
interpretation, construction or determination made in good faith in connection
with this Plan (or any award made under this Plan), and all such persons shall
be entitled to indemnification and reimbursement by the Corporation in respect
of any claim, loss, damage or expense (including, without limitation, attorneys’
fees) arising or resulting therefrom to the fullest extent permitted by law
and/or under any directors and officers liability insurance coverage that may
be
in effect from time to time.
3.4 Reliance
on Experts.
In
making any determination or in taking or not taking any action under this Plan,
the Board or a committee, as the case may be, may obtain and may rely upon
the
advice of experts, including employees and professional advisors to the
Corporation. No director, officer or agent of any member of the Group shall
be
liable for any such action or determination taken or made or omitted in good
faith.
3.5 Delegation.
The
Administrator may delegate ministerial, non-discretionary functions to
individuals who are officers or employees of any member of the Group or to
third
parties.
| 4. |
COMMON
SHARES SUBJECT TO THE PLAN; SHARE LIMITS
|
4.1 Shares
Available.
Subject
to the provisions of Section 7.1, the capital stock that may be delivered
under this Plan shall be shares of the Corporation’s authorized but unissued
common shares (“Common
Shares”).
For
purposes of this Plan, “Plan
Shares”
shall
mean the Common Shares of the Corporation and such other securities or property
as may become the subject of awards under this Plan, or may become subject
to
such awards, pursuant to an adjustment made under Section 7.1.
4.2 Share
Limits.
The
maximum aggregate number of Common Shares that may be delivered pursuant to
awards granted to Eligible Persons under this Plan (the “Share
Limit”)
is
1,000,000 Common Shares. The following limits also apply with respect to awards
granted under this Plan:
4.2.1 the
maximum number of Common Shares subject to awards that are granted during any
single calendar year under this Plan (the “Annual
Award Cap”)
is
such number as equals 10% of the Corporation’s issued and outstanding Common
Shares as of the first business day of such calendar year;
4.2.2 the
maximum number of Common Shares subject to those options and stock appreciation
rights that are granted during any calendar year to any individual under this
Plan is 250,000 Common Shares; and
4.2.3 to
the
extent that awards are made under this Plan in forms other than awards of stock
options, the Annual Award Cap shall be reduced so that the total accounting
charge (under U.S. generally accepted accounting principles) to the Corporation
in any single year in which such awards are made shall not be greater than
it
would have been if all awards made in that year had been made in the form of
stock options.
Each
of
the foregoing numerical limits is subject to adjustment as contemplated by
Section 4.3, Section 7.1, and Section 8.10.
4.3 Awards
Settled in Cash, Reissue of Awards and Shares.
To the
extent that an award granted under the Plan is settled in cash or a form other
than Plan Shares, the Plan Shares that would have been delivered had there
been
no such cash or other settlement shall not be counted against the Common Shares
available for issuance under this Plan. In the event that Plan Shares are
delivered in respect of a dividend equivalent, stock appreciation right, or
other award, only the actual number of Plan Shares delivered with respect to
the
award shall be counted against the share limits of this Plan. Plan Shares that
are subject to or underlie awards which expire or for any reason are cancelled
or terminated, are forfeited, fail to vest, or for any other reason are not
paid
or delivered under this Plan shall again be available for subsequent awards
under this Plan. Plan Shares that are exchanged by a participant or withheld
by
the Corporation as full or partial payment in connection with any award under
this Plan, as well as any Plan Shares exchanged by a participant or withheld
by
the Group to satisfy the tax withholding obligations related to any award under
this Plan, shall be available for subsequent awards under this Plan. Refer
to
Section 8.10 for application of the foregoing share limits with respect to
assumed awards. The foregoing adjustments to the share limits of this Plan
are
subject to any applicable limitations under Section 162(m) of the Code with
respect to awards intended as performance-based compensation thereunder.
4.4 Reservation
of Shares; Minimum Issue.
The
Corporation shall at all times reserve a number of Common Shares sufficient
to
cover the Corporation’s obligations and contingent obligations to deliver Plan
Shares with respect to awards then outstanding under this Plan (exclusive of
any
dividend equivalent obligations to the extent the Corporation has the right
to
settle such rights in cash). No fractional shares shall be delivered under
this
Plan, but instead cash may be paid for a fraction or, if the Administrator
should so determine, the number of Shares will be rounded downward to the next
whole Common Share. No fewer than 1000 Common Shares may be purchased on
exercise of any award (or, in the case of stock appreciation or purchase rights,
no fewer than 1000 rights may be exercised at any one time) unless the total
number purchased or exercised is the total number at the time available for
purchase or exercise under the award.
| 5. |
AWARDS
|
5.1 Type
and Form of Awards.
The
Administrator shall determine the type or types of award(s) to be made to each
selected Eligible Person. Awards may be granted singly, in combination or in
tandem. Awards also may be made in combination or in tandem with, in replacement
of, as alternatives to, or as the payment form for grants or rights under any
other employee or compensation plan of the Group. The types of awards that
may
be granted under this Plan are:
5.1.1 Stock
Options.
A stock
option is the grant of a right to purchase a specified number of Plan Shares
during a specified period as determined by the Administrator. An option may
be
intended as an incentive stock option within the meaning of Section 422 of
the Code (an “ISO”)
or a
nonqualified stock option (an option not intended to be an ISO). The award
agreement for an option will indicate if the option is intended as an ISO,
otherwise it will be deemed to be a nonqualified stock option. The maximum
term
of each option (ISO or nonqualified) shall be five (5) years. The per share
exercise price for each option shall be not less than 100% of the fair market
value of a Plan Share on the date of grant of the option, except as follows:
(a) in the case of a stock option granted retroactively in tandem with or
as a substitution for another award, the per share exercise price may be no
lower than the fair market value of a Plan Share on the date such other award
was granted (to the extent consistent with Sections 422 and 424 of the Code
in
the case of options intended as incentive stock options); and (b) in any
other circumstances, a nonqualified stock option may be granted with a per
share
exercise price that is less than the fair market value of a Plan Share on the
date of grant. When an option is exercised, the exercise price for the Plan
Shares to be purchased shall be paid in full in cash or such other method
permitted by the Administrator consistent with Section 5.5.
5.1.2
Additional
Rules Applicable to ISOs.
To the
extent that the aggregate fair market value (determined at the time of grant
of
the applicable option) of the Common Shares with respect to which ISOs first
become exercisable by a participant in any calendar year exceeds US$100,000,
taking into account both Plan Shares subject to ISOs under this Plan and Common
Shares subject to ISOs under all other plans of the Group (or any parent or
predecessor corporation to the extent required by and within the meaning of
Section 422 of the Code and the regulations promulgated thereunder), such
options shall be treated as nonqualified stock options. In reducing the number
of options treated as ISOs to meet the US$100,000 limit, the most recently
granted options shall be reduced first. To the extent a reduction of
simultaneously granted options is necessary to meet the US$100,000 limit, the
Administrator may, in the manner and to the extent permitted by law, designate
which Plan Shares are to be treated as shares acquired pursuant to the exercise
of an ISO. ISOs may only be granted to employees of the Corporation or one
of
its subsidiaries (for this purpose, the term “subsidiary” is used as defined in
Section 424(f) of the Code, which generally requires an unbroken chain of
ownership of at least 50% of the total combined voting power of all classes
of
stock of each subsidiary in the chain beginning with the Corporation and ending
with the subsidiary in question). There shall be imposed in any award agreement
relating to ISOs such other terms and conditions as from time to time are
required in order that the option be an “incentive stock option” as that term is
defined in Section 422 of the Code.
5.1.3
Stock
Appreciation Rights.
A stock
appreciation right is a right to receive a payment, in cash and/or Plan Shares,
equal to the excess of the fair market value of a specified number of Plan
Shares on the date the stock appreciation right is exercised over the fair
market value of a Plan Share on the date the stock appreciation right was
granted (the “base
price”)
as set
forth in the applicable award agreement, except in the case of a stock
appreciation right granted retroactively in tandem with or as a substitution
for
another award, the base price may be no lower than the fair market value of
a
Plan Share on the date such other award was granted. The maximum term of a
stock
appreciation right shall be ten (10) years. The Administrator may grant
limited stock appreciation rights which are exercisable only upon a change
in
control or other specified event and may be payable based on the spread between
the base price of the stock appreciation right and the fair market value of
a
Plan Share during a specified period or at a specified time within a specified
period before, after or including the date of such event.
5.1.4
Other
Awards.
The
other types of awards that may be granted under this Plan include:
(a) stock bonuses, restricted stock, performance stock, stock units,
phantom stock, dividend equivalents, or similar rights to purchase or acquire
shares, whether at a fixed or variable price or ratio related to the Plan
Shares, upon the passage of time, the occurrence of one or more events, or
the
satisfaction of performance criteria or other conditions, or any combination
thereof; (b) any similar securities with a value derived from the value of
or related to the Plan Shares and/or returns thereon; or (c) cash awards
granted consistent with Section 5.2 below.
5.2 Section 162(m)
Performance-Based Awards.
Without
limiting the generality of the foregoing, any of the types of awards listed
in
Section 5.1.4 above may be, and options and stock appreciation rights
granted with an exercise or base price not less than the fair market value
of a
Plan Share at the date of grant (“Qualifying
Options”
and
“Qualifying
Stock Appreciation Rights,”
respectively) typically will be, granted as awards intended to satisfy the
requirements for “performance-based compensation” within the meaning of
Section 162(m) of the Code (“Performance-Based
Awards”).
The
grant, vesting, exercisability or payment of Performance-Based Awards may depend
(or, in the case of Qualifying Options or Qualifying Stock Appreciation Rights,
may also depend) on the degree of achievement of one or more performance goals
relative to a pre-established targeted level or level using one or more of
the
Business Criteria set forth below (on an absolute or relative basis) for the
Corporation on a consolidated basis or for one or more of the Corporation’s
subsidiaries, segments, divisions or business units, or any combination of
the
foregoing. Any Qualifying Option or Qualifying Stock Appreciation Right shall
be
subject only to the requirements of Section 5.2.1 and 5.2.3 in order for
such award to satisfy the requirements for “performance-based compensation”
under Section 162(m) of the Code. Any other Performance-Based Award shall
be subject to all of the following provisions of this Section 5.2.
5.2.1
Class;
Administrator.
The
eligible class of persons for Performance-Based Awards under this
Section 5.2 shall be officers and employees of any member of the Group. The
Administrator approving Performance-Based Awards or making any certification
required pursuant to Section 5.2.4 must be constituted as provided in
Section 3.1 for awards that are intended as performance-based compensation
under Section 162(m) of the Code.
5.2.2
Performance
Goals.
The
specific performance goals for Performance-Based Awards (other than Qualifying
Options and Qualifying Stock Appreciation Rights) shall be, on an absolute
or
relative basis, established based on one or more of the following business
criteria, or any other additional business criteria as deemed appropriate by
the
Administrator, (“Business
Criteria”)
as
selected by the Administrator in its sole discretion: earnings per share, cash
flow (which means cash and cash equivalents derived from either net cash flow
from operations or net cash flow from operations, financing and investing
activities), total shareholder return, gross revenue, revenue growth, operating
income (before or after taxes), net earnings (before or after interest, taxes,
depreciation and/or amortization), return on equity or on assets or on net
investment, cost containment or reduction, or any combination thereof. These
terms are used as applied under generally accepted accounting principles or
in
the Group’s financial reporting. To qualify awards as performance-based under
Section 162(m) of the Code, the applicable Business Criteria and specific
performance goal or goals (“targets”)
must
be established and approved by the Administrator during the first 90 days of
the
performance period (and, in the case of performance periods of less than one
year, no later than the date on which the first 25% of the total performance
period shall have elapsed) and while performance relating to such target(s)
remains substantially uncertain within the meaning of Section 162(m) of the
Code. Performance targets shall be adjusted to mitigate the unbudgeted impact
of
material, unusual or nonrecurring gains and losses, accounting changes or other
extraordinary events not foreseen at the time the targets were set unless the
Administrator provides otherwise at the time of establishing the targets. The
applicable performance measurement period may not be less than three months
nor
more than 10 years.
5.2.3
Form
of Payment; Maximum Performance-Based Award.
Grants
or
awards under this Section 5.2 may be paid in cash or Plan Shares or any
combination thereof. The maximum number of Common Shares which may be delivered
pursuant to Performance-Based Awards (other than Qualifying Options and
Qualifying Stock Appreciation Rights, and other than cash awards covered by
the
following sentence) that are granted to any one participant in any one calendar
year shall not exceed 500,000 shares, either individually or in the aggregate,
subject to adjustment as provided in Section 7.1. In addition, the aggregate
amount of compensation to be paid to any one participant in respect of all
Performance-Based Awards payable only in cash and not related to Common Shares
and granted to that participant in any one calendar year shall not exceed
US$500,000. Awards that are cancelled during the year shall be counted against
these limits to the extent permitted by Section 162(m) of the Code.
5.2.4
Certification
of Payment.
Before
any Performance-Based Award under this Section 5.2 (other than Qualifying
Options and Qualifying Stock Appreciation Rights) is paid and to the extent
required to qualify the award as performance-based compensation within the
meaning of Section 162(m) of the Code, the Administrator must certify in
writing that the performance target(s) and any other material terms of the
Performance-Based Award were in fact timely satisfied.
5.2.5
Reservation
of Discretion.
The
Administrator will have the discretion to determine the restrictions or other
limitations of the individual awards granted under this Section 5.2
including the authority to reduce awards, payouts or vesting or to pay no
awards, in its sole discretion, if the Administrator preserves such authority
at
the time of grant by language to this effect in its authorizing resolutions
or
otherwise.
5.2.6
Expiration
of Grant Authority.
As
required pursuant to Section 162(m) of the Code and the regulations
promulgated thereunder, the Administrator’s authority to grant new awards that
are intended to qualify as performance-based compensation within the meaning
of
Section 162(m) of the Code (other than Qualifying Options and Qualifying
Stock Appreciation Rights) shall terminate upon the first meeting of the
Corporation’s shareholders that occurs in the fifth year following the year in
which the Corporation’s shareholders first approve this Plan.
5.3 Award
Agreements.
Each
award shall be evidenced by a written award agreement in the form approved
by
the Administrator and executed on behalf of the Corporation and, if required
by
the Administrator, executed by the recipient of the award. The Administrator
may
authorize any officer of the Corporation (other than the particular award
recipient) to execute any or all award agreements on behalf of the Corporation.
The award agreement shall set forth the material terms and conditions of the
award as established by the Administrator consistent with the express
limitations of this Plan.
5.4 Deferrals
and Settlements.
Payment
of awards may be in the form of cash, Plan Shares, other awards or combinations
thereof as the Administrator shall determine, and with such restrictions as
it
may impose. The Administrator may also require or permit participants to elect
to defer the issuance of shares or the settlement of awards in cash under such
rules and procedures as it may establish under this Plan. The Administrator
may
also provide that deferred settlements include the payment or crediting of
interest or other earnings on the deferral amounts, or the payment or crediting
of dividend equivalents where the deferred amounts are denominated in shares.
5.5 Consideration
for Plan Shares or Awards.
The
purchase price for any award granted under this Plan or the Plan Shares to
be
delivered pursuant to an award, as applicable, may be paid by means of any
lawful consideration as determined by the Administrator, including, without
limitation, one or a combination of the following methods:
| • | services rendered by the recipient of such award; |
| • | cash, check payable to the order of the Corporation, or electronic funds transfer; |
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notice
and third party payment in such manner as may be authorized by the
Administrator;
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| • | the delivery of previously owned Plan Shares; |
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•
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by
a reduction in the number of Plan Shares otherwise deliverable pursuant
to
the award; or
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•
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subject
to such procedures as the Administrator may adopt, pursuant to a
“cashless
exercise” with a third party who provides financing for the purposes of
(or who otherwise facilitates) the purchase or exercise of awards.
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In
no
event shall any shares newly-issued by the Corporation be issued for less than
the minimum lawful consideration for such shares or for consideration other
than
consideration permitted by applicable law. In the event that the Administrator
allows a participant to exercise an award by delivering Plan Shares previously
owned by such participant and unless otherwise expressly provided by the
Administrator, any shares delivered which were initially acquired by the
participant from the Corporation (upon exercise of a stock option or otherwise)
must have been owned by the participant at least six months as of the date
of
delivery. Plan Shares used to satisfy the exercise price of an option shall
be
valued at their fair market value on the date of exercise. The Corporation
will
not be obligated to deliver any Plan Shares unless and until it receives full
payment of the exercise or purchase price therefor and any related withholding
obligations under Section 8.5 and any other conditions to exercise or
purchase have been satisfied. Unless otherwise expressly provided in the
applicable award agreement, the Administrator may at any time eliminate or
limit
a participant’s ability to pay the purchase or exercise price of any award or
shares by any method other than cash payment to the Corporation.
5.6 Definition
of Fair Market Value.
For
purposes of this Plan, “fair market value” of one Plan Share on any date shall
be (i) the closing sale price per Plan Share during normal trading hours on
the U.S. national securities exchange on which the Plan Shares are principally
traded for such date or the last preceding date on which there was a sale of
such Plan Shares on such exchange, or (ii) if the Plan Shares are then
traded in an over-the-counter market in the United States, the average of the
closing bid and asked prices for the Plan Shares, during normal trading hours
in
such over-the-counter market for such date or the last preceding date on which
there was a sale of such Plan Shares in such market, or (iii) if the Plan
Shares are not then listed on a U.S. national securities exchange or traded
in
an over-the-counter market in the United States, such value as the
Administrator, in its sole discretion, shall determine. The Administrator also
may adopt a different methodology for determining fair market value with respect
to one or more awards if a different methodology is necessary or advisable
to
secure any intended favorable tax, legal or other treatment for the particular
award(s) (for example, and without limitation, the Administrator may provide
that fair market value for purposes of one or more awards will be based on
an
average of closing prices (or the average of high and low daily trading prices)
for a specified period preceding the relevant date). Notwithstanding the
foregoing, the fair market value of Plan Shares for purposes of grants of ISOs
shall be determined in compliance with applicable provisions of the Code.
5.7 Transfer
Restrictions.
5.7.1
Limitations
on Exercise and Transfer.
Unless
otherwise expressly provided in (or pursuant to) this Section 5.7, by
applicable law and by the award agreement, as the same may be amended,
(a) all awards are non-transferable and shall not be subject in any manner
to sale, transfer, anticipation, alienation, assignment, pledge, encumbrance
or
charge; (b) awards shall be exercised only by the participant; and
(c) amounts payable or shares issuable pursuant to any award shall be
delivered only to (or for the account of) the participant.
5.7.2
Exceptions.
The
Administrator may permit awards to be exercised by and paid to certain persons
or entities related to the participant, including but not limited to members
of
the participant’s immediate family, trusts or other entities controlled by or
whose beneficiaries or beneficial owners are the participant and/or members
of
the participant’s immediate family, pursuant to such conditions and procedures,
including limitations on subsequent transfers, as the Administrator may
establish. Consistent with Section 8.1, any permitted transfer shall be
subject to the condition that the Administrator receive evidence satisfactory
to
it that the transfer: (a) is being made for essentially donative, estate
and/or tax planning purposes on a gratuitous or donative basis and without
consideration (other than nominal consideration or in exchange for an interest
in a qualified transferee); and (b) will not compromise the Corporation’s
ability to rely on Rule 701, or register Plan Shares issuable under this Plan
on
Form S-8, under the Securities Act. Notwithstanding the foregoing or anything
in
Section 5.7.3, ISOs and restricted stock awards shall be subject to any and
all additional transfer restrictions under the Code to the extent necessary
to
maintain the intended tax consequences of such awards.
5.7.3
Further
Exceptions to Limits on Transfer.
The
exercise and transfer restrictions in Section 5.7.1 shall not apply to:
(a) transfers
to the Corporation;
(b) the
designation of a beneficiary to receive benefits in the event of the
participant’s death or, if the participant has died, transfers to or exercise by
the participant’s beneficiary, or, in the absence of a validly designated
beneficiary, transfers by will or the laws of descent and
distribution;
(c) subject
to any applicable limitations on ISOs, transfers to a family member (or former
family member) pursuant to a domestic relations order if approved or ratified
by
the Administrator;
(d) if
the
participant has suffered a disability, permitted transfers or exercises on
behalf of the participant by his or her legal representative; or
(e) the
authorization by the Administrator of “cashless exercise” procedures with third
parties who provide financing for the purpose of (or who otherwise facilitate)
the exercise of awards consistent with applicable laws and the express
authorization of the Administrator.
| 6. |
EFFECT
OF TERMINATION OF SERVICE ON AWARDS
|
6.1 General.
The
Administrator shall establish the effect of a termination of employment or
service on the rights and benefits under each award under this Plan and in
so
doing may make distinctions based upon, inter alia, the cause of termination
and
type of award. Notwithstanding the foregoing, unless the Board expressly
otherwise provides, if the participant is not an employee of any member of
the
Group and provides other services to the Group, the Administrator shall be
the
sole judge for purposes of this Plan (unless a contract or the award otherwise
provides) of whether the participant continues to render services to the Group
and the date, if any, upon which such services shall be deemed to have
terminated. Unless the Board otherwise expressly provides: (1) to the
extent an outstanding option granted under this Plan has not become vested
and
exercisable on the date the participant’s employment by or service to the Group
terminates, the option to the extent unvested and unexercisable shall terminate;
and (2) any shares subject to a restricted stock award that remain subject
to restrictions at the time the participant’s employment by or service to the
Group terminates shall not vest and the Corporation shall have the right to
reacquire any such unvested shares subject to such award in such manner and
on
such terms as the Administrator provides, which terms shall include return
or
repayment of the lower of the Fair Market Value or the original purchase price
of the restricted shares, without interest, to the participant to the extent
not
prohibited by law.
6.2 Events
Not Deemed Terminations of Service.
Unless
the Administrator otherwise provides, the employment relationship shall not
be
considered terminated in the case of (a) sick leave, (b) military
leave, or (c) any other leave of absence authorized by the Group or the
Administrator; provided that unless reemployment upon the expiration of such
leave is guaranteed by contract or law, such leave is for a period of not more
than 90 days. In the case of any employee of any member of the Group on an
approved leave of absence, continued vesting of the award while on leave from
the employ of such member of the Group may be suspended until the employee
returns to service, unless the Administrator otherwise provides or applicable
law otherwise requires. In no event shall an award be exercised after the
expiration of the term set forth in the award agreement.
6.3 Effect
of Change of Subsidiary Status.
For
purposes of this Plan and any award, if an entity ceases to be a Subsidiary
of
the Corporation, a termination of employment or service shall be deemed to
have
occurred with respect to each Eligible Person in respect of such Subsidiary
who
does not continue as an Eligible Person in respect of another member of the
Group after giving effect to the Subsidiary’s change in status.
| 7. |
ADJUSTMENTS;
ACCELERATION
|
7.1 Adjustments.
Upon or
in contemplation of: any reclassification, recapitalization, stock split
(including a stock split in the form of a stock dividend) (“forward
stock split”)
or
reverse stock split (“reverse
stock split”);
any
merger, combination, consolidation, or other reorganization; any spin-off,
split-up, or similar extraordinary dividend distribution in respect of the
Plan
Shares (whether in the form of securities or property); any exchange of Plan
Shares or other securities of the Corporation, or any similar, unusual or
extraordinary corporate transaction in respect of the Plan Shares; or a sale
of
all or substantially all the business or assets of the Corporation as an
entirety; then the Administrator shall, in the following manner, to such extent
(if any) and at such time as it deems appropriate and equitable in the
circumstances:
7.1.1 proportionately
adjust any or all of (1) the number and type of Plan Shares (or other
securities) that thereafter may be made the subject of awards (including the
specific share limits, maximums and numbers of shares set forth elsewhere in
this Plan), (2) the number, amount and type of Plan Shares (or other
securities or property) subject to any or all outstanding awards, (3) the
grant, purchase, or exercise price (which term includes the base price of any
stock appreciation right or similar right) of any or all outstanding awards,
(4) the securities, cash or other property deliverable upon exercise or
payment of any outstanding awards, or (5) (subject to Sections 7.7 and
8.8.3(a)) the performance standards applicable to any outstanding awards, or
7.1.2 make
provision for a cash payment or for the assumption, substitution or exchange
of
any or all outstanding share-based awards or the cash, securities or property
deliverable to the holder of any or all outstanding share-based awards, based
upon the distribution or consideration payable to holders of the Plan Shares
upon or in respect of such event.
The
Administrator may adopt such valuation methodologies for outstanding awards
as
it deems reasonable in the event of a cash or property settlement and, in the
case of options, stock appreciation rights or similar rights, but without
limitation on other methodologies, may base such settlement solely upon the
excess if any of the per share amount payable upon or in respect of such event
over the exercise or base price of the award. With respect to any award of
an
ISO, the Administrator may make such an adjustment that causes the option to
cease to qualify as an ISO without the consent of the affected participant.
In
any of
such events, the Administrator may take such action prior to such event to
the
extent that the Administrator deems the action necessary to permit the
participant to realize the benefits intended to be conveyed with respect to
the
underlying shares in the same manner as is or will be available to shareholders
generally. In the case of any forward stock split or reverse stock split, if
no
action is taken by the Administrator, the proportionate adjustments contemplated
by clause 7.1.1 above shall nevertheless be made.
7.2 Automatic
Acceleration of Awards.
Upon a
dissolution of the Corporation or other event described in Section 7.1 that
the Corporation does not survive (or does not survive as a public company in
respect of its Common Shares), then each then outstanding option and stock
appreciation right shall become fully vested, all shares of restricted stock
then outstanding shall fully vest free of restrictions, and each other award
granted under this Plan that is then outstanding shall become payable to the
holder of such award; provided, however, that this acceleration provision shall
not apply, unless otherwise expressly provided by the Administrator, with
respect to any award to the extent that the Administrator has made a provision
for the substitution, assumption, exchange or other continuation or settlement
of the award, or the award would otherwise continue in accordance with its
terms, in the circumstances.
7.3 Possible
Acceleration of Awards.
Without
limiting Section 7.2, in the event of a Change in Control Event (as defined
below), the Administrator may, in its discretion, provide that any outstanding
option or stock appreciation right shall become fully vested, that any share
of
restricted stock then outstanding shall fully vest free of restrictions, and
that any other award granted under this Plan that is then outstanding shall
be
payable to the holder of such award. The Administrator may take such action
with
respect to all awards then outstanding or only with respect to certain specific
awards identified by the Administrator in the circumstances. For purposes of
this Plan, “Change
in Control Event”
means
any of the following:
7.3.1 The
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 50% or more of either (1) the then-outstanding Common
Shares of the Corporation (the “Outstanding
Common Shares”)
or
(2) the combined voting power of the then-outstanding voting securities of
the Corporation entitled to vote generally in the election of directors (the
“Outstanding
Voting Securities”);
provided, however, that, for purposes of this definition, the following
acquisitions shall not constitute a Change in Control Event: (A) any
acquisition directly from the Corporation; (B) any acquisition by the
Corporation; (C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any affiliate of the
Corporation or a successor; or (D) any acquisition by any entity pursuant
to a transaction that complies with Sections 7.2.3(A), (B) and
(C) below;
7.3.2 Individuals
who, as of the Effective Date, constitute the Board (the “Incumbent
Board”)
cease
for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the Effective
Date whose election, or nomination for election by the Corporation’s
shareholders, was approved by a vote of at least two-thirds of the directors
then comprising the Incumbent Board (including for these purposes, the new
members whose election or nomination was so approved, without counting the
member and his predecessor twice) shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any
such
individual whose initial assumption of office occurs as a result of an actual
or
threatened election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board;
7.3.3 Consummation
of a reorganization, merger, statutory share exchange or consolidation or
similar corporate transaction involving the Corporation or any of its
Subsidiaries, a sale or other disposition of all or substantially all of the
assets of the Corporation, or the acquisition of assets or stock of another
entity by the Corporation or any of its Subsidiaries (each, a “Business
Combination”),
in
each case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the beneficial
owners of the Outstanding Common Shares and the Outstanding Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding common shares and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the entity
resulting from such Business Combination (including, without limitation, an
entity that, as a result of such transaction, owns the Corporation or all or
substantially all of the Corporation’s assets directly or through one or more
subsidiaries (a “Parent”))
in
substantially the same proportions as their ownership immediately prior to
such
Business Combination of the Outstanding Common Shares and the Outstanding Voting
Securities, as the case may be; (B) no Person (excluding any entity
resulting from such Business Combination or a Parent or any employee benefit
plan (or related trust) of the Corporation or such entity resulting from such
Business Combination or Parent) beneficially owns, directly or indirectly,
20%
or more of, respectively, the then-outstanding common shares of the entity
resulting from such Business Combination or the combined voting power of the
then-outstanding voting securities of such entity, except to the extent that
the
ownership in excess of 20% existed prior to the Business Combination; and
(C) at least a majority of the members of the board of directors or
trustees of the entity resulting from such Business Combination or a Parent
were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business Combination;
or
7.3.4 Approval
by the shareholders of the Corporation of a complete liquidation or dissolution
of the Corporation other than in the context of a transaction that does not
constitute a Change in Control Event under clause 7.3.3 above.
7.4 Early
Termination of Awards.
Any
award that has been accelerated as required or contemplated by Section 7.2
or 7.3 (or would have been so accelerated but for Section 7.5, 7.6 or 7.7)
shall terminate upon the related event referred to in Section 7.2 or 7.3,
as applicable, subject to any provision that has been expressly made by the
Administrator, through a plan of reorganization or otherwise, for the survival,
substitution, assumption, exchange or other continuation or settlement of such
award and provided that, in the case of options and stock appreciation rights
that will not survive, be substituted for, assumed, exchanged, or otherwise
continued or settled in the transaction, the holder of such award shall be
given
reasonable advance notice of the impending termination and a reasonable
opportunity to exercise his or her outstanding options and stock appreciation
rights in accordance with their terms before the termination of such awards
(except that in no case shall more than ten calendar days’ notice of accelerated
vesting and the impending termination be required and any acceleration may
be
made contingent upon the actual occurrence of the event).
7.5 Other
Acceleration Rules.
Any
acceleration of awards pursuant to this Section 7 shall comply with
applicable legal requirements and, if necessary to accomplish the purposes
of
the acceleration or if the circumstances require, may be deemed by the
Administrator to occur a limited period of time not greater than 30 days before
the event. Without limiting the generality of the foregoing, the Administrator
may deem an acceleration to occur immediately prior to the applicable event
and/or reinstate the original terms of an award if an event giving rise to
an
acceleration does not occur. The Administrator may override the provisions
of
Section 7.2, 7.3, 7.4 and/or 7.6 by express provision in the award
agreement and may accord any Eligible Person a right to refuse any acceleration,
whether pursuant to the award agreement or otherwise, in such circumstances
as
the Administrator may approve. The portion of any ISO accelerated in connection
with a Change in Control Event or any other action permitted hereunder shall
remain exercisable as an ISO only to the extent the applicable US$100,000
limitation on ISOs is not exceeded. To the extent exceeded, the accelerated
portion of the option shall be exercisable as a nonqualified stock option under
the Code.
7.6 Possible
Rescission of Acceleration.
If the
vesting of an award has been accelerated expressly in anticipation of an event
or upon shareholder approval of an event and the Administrator later determines
that the event will not occur, the Administrator may rescind the effect of
the
acceleration as to any then outstanding and unexercised or otherwise unvested
awards.
7.7 Golden
Parachute Limitation.
Notwithstanding anything else contained in this Section 7 to the contrary
and to the extent the Group is subject to U.S. federal income tax, in no event
shall an award be accelerated under this Plan to an extent or in a manner which
would not be fully deductible by the Group for federal income tax purposes
because of Section 280G of the Code, nor shall any payment hereunder be
accelerated to the extent any portion of such accelerated payment would not
be
deductible by the Group because of Section 280G of the Code. If a
participant would be entitled to benefits or payments hereunder and under any
other plan or program that would constitute “parachute payments” as defined in
Section 280G of the Code, then the participant may, by written notice to
the Corporation, designate the order in which such parachute payments will
be
reduced or modified so that the Group is not denied federal income tax
deductions for any “parachute payments” because of Section 280G of the
Code. Notwithstanding the foregoing, an employment or other agreement with
the
participant may expressly provide for benefits in excess of amounts determined
by applying the foregoing Section 280G limitations.
7.8 Section 162(m)
Limitations.
To the
extent limited by Section 162(m) of the Code in the case of an award
intended as performance-based compensation thereunder and necessary to assure
the deductibility of the compensation payable under the award, the Administrator
shall have no discretion under this Plan: (a) to increase the amount of
compensation or the number of shares that would otherwise be due upon the
attainment of the applicable performance target or the exercise of the option
or
SAR; or (b) to waive the achievement of any applicable performance goal as
a condition to receiving a benefit or right under the award.
| 8. |
OTHER
PROVISIONS
|
8.1 Compliance
with Laws.
This
Plan, the granting and vesting of awards under this Plan, the offer, issuance
and delivery of Plan Shares, the acceptance of promissory notes and/or the
payment of money under this Plan or under awards are subject to compliance
with
all applicable national, federal and state laws, rules and regulations
(including but not limited to state and federal securities law and federal
margin requirements) and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Group, be
necessary or advisable in connection therewith. The person acquiring any
securities under this Plan will, if requested by the Corporation, provide such
assurances and representations to the Corporation as the Administrator may
deem
necessary or desirable to assure compliance with all applicable legal and
accounting requirements.
8.2 No
Rights to Award.
No
person shall have any claim or rights to be granted an award (or additional
awards, as the case may be) under this Plan, subject to any express contractual
rights (set forth in a document other than this Plan) to the contrary.
8.3 No
Employment/Service Contract.
Nothing
contained in this Plan (or in any other documents under this Plan or in any
award) shall confer upon any Eligible Person or other participant any right
to
continue in the employ or other service of any member of the Group, constitute
any contract or agreement of employment or other service or affect an employee’s
status as an employee at will, nor shall interfere in any way with the right
of
such member of the Group to change a person’s compensation or other benefits, or
to terminate his or her employment or other service, with or without cause.
Nothing in this Section 8.3, however, is intended to adversely affect any
express independent right of such person under a separate employment or service
contract other than an award agreement.
8.4 Plan
Not Funded.
Awards
payable under this Plan shall be payable in Plan Shares or from the general
assets of the Corporation, and no special or separate reserve, fund or deposit
shall be made to assure payment of such awards. No participant, beneficiary
or
other person shall have any right, title or interest in any fund or in any
specific asset (including Plan Shares, except as expressly otherwise provided)
of any member of the Group by reason of any award hereunder. Neither the
provisions of this Plan (or of any related documents), nor the creation or
adoption of this Plan, nor any action taken pursuant to the provisions of this
Plan shall create, or be construed to create, a trust of any kind or a fiduciary
relationship between any member of the Group and any participant, beneficiary
or
other person. To the extent that a participant, beneficiary or other person
acquires a right to receive payment pursuant to any award hereunder, such right
shall be no greater than the right of any unsecured general creditor of the
Group.
8.5 Tax
Withholding.
Upon
any exercise, vesting, or payment of any award or upon the disposition of Plan
Shares acquired pursuant to the exercise of an ISO prior to satisfaction of
the
holding period requirements of Section 422 of the Code, the Group shall
have the right at its option to:
(a) require
the participant (or the participant’s personal representative or beneficiary, as
the case may be) to pay or provide for payment of at least the minimum amount
of
any taxes which the Group may be required to withhold with respect to such
award
event or payment; or
(b) deduct
from any amount otherwise payable in cash to the participant (or the
participant’s personal representative or beneficiary, as the case may be) the
minimum amount of any taxes which the Group may be required to withhold with
respect to such cash payment.
In
any
case where a tax is required to be withheld in connection with the delivery
of
Plan Shares under this Plan, the Administrator may, in its sole discretion
(subject to Section 8.1), grant (either at the time of the award or
thereafter) to the participant the right to elect, pursuant to such rules and
subject to such conditions as the Administrator may establish, to have the
Corporation reduce the number of Plan Shares to be delivered by (or otherwise
reacquire) the appropriate number of Plan Shares, valued in a consistent manner
at their fair market value or at the sales price in accordance with authorized
procedures for cashless exercises, necessary to satisfy the minimum applicable
withholding obligation on exercise, vesting or payment. In no event shall the
Plan Shares withheld exceed the minimum whole number of shares required for
tax
withholding under applicable law. The Corporation may, with the Administrator’s
approval, accept one or more promissory notes from any Eligible Person in
connection with taxes required to be withheld upon the exercise, vesting or
payment of any award under this Plan; provided that any such note shall be
subject to terms and conditions established by the Administrator and the
requirements of applicable law.
8.6 Effective
Date, Termination and Suspension, Amendments.
8.6.1
Effective
Date.
This
Plan is effective as of October __, 2007, the date of its approval by the Board
(the “Effective
Date”).
This
Plan shall be submitted for and subject to Company shareholder approval no
later
than twelve months after the Effective Date. Unless earlier terminated by the
shareholders or the Board, this Plan shall terminate at the close of business
on
the day before the tenth (10th)
anniversary of the Effective Date. After the termination of this Plan either
upon such stated expiration date or its earlier termination by the shareholders
or the Board, no additional awards may be granted under this Plan, but
previously granted awards (and the authority of the Administrator with respect
thereto, including the authority to amend such awards) shall remain outstanding
in accordance with their applicable terms and conditions and the terms and
conditions of this Plan.
8.6.2
Board
Authorization.
The
Board may, at any time, terminate or, from time to time, amend, modify or
suspend this Plan, in whole or in part. No awards may be granted during any
period that the Board suspends this Plan.
8.6.3 Shareholder
Approval.
To the
extent then required by applicable law or any applicable listing agency or
required under Sections 162, 422 or 424 of the Code to preserve the intended
tax
consequences of this Plan, or deemed necessary or advisable by the Board, any
amendment to this Plan shall be subject to shareholder approval.
8.6.4 Amendments
to Awards.
Without
limiting any other express authority of the Administrator under (but subject
to)
the express limits of this Plan, the Administrator, by agreement or resolution,
may waive conditions of or limitations on awards to participants that the
Administrator in the prior exercise of its discretion has imposed, without
the
consent of a participant, and (subject to the requirements of Sections 3.2
and
8.6.5) may make other changes to the terms and conditions of awards. Any
amendment or other action that would constitute a repricing of an award is
subject to the limitations set forth in Section 3.2(g).
8.6.5
Limitations
on Amendments to Plan and Awards.
No
amendment, suspension or termination of this Plan or change of or affecting
any
outstanding award shall, without written consent of the participant, affect
in
any manner materially adverse to the participant any rights or benefits of
the
participant or obligations of the Group under any award granted under this
Plan
prior to the effective date of such change. Changes, settlements and other
actions contemplated by Section 7 shall not be deemed to constitute changes
or amendments for purposes of this Section 8.6.
8.7 Privileges
of Share Ownership.
Except
as otherwise expressly authorized by the Administrator or this Plan, a
participant shall not be entitled to any privilege of share ownership as to
any
Plan Shares not actually delivered to and held of record by the participant.
No
adjustment will be made for dividends or other rights as a shareholder for
which
a record date is prior to such date of delivery.
8.8 Governing
Law; Severability; Construction.
8.8.1
Choice
of Law.
This
Plan, the awards, all documents evidencing awards and all other related
documents shall be governed by, and construed in accordance with the laws of
Canada without regard to conflicts of law principles thereof.
8.8.2
Severability.
If a
court of competent jurisdiction holds any provision invalid and unenforceable,
the remaining provisions of this Plan shall continue in effect.
8.8.3
Plan
Construction.
Awards
under Section 5.1.4 to persons described in Section 5.2 that are
either granted or become vested, exercisable or payable based on attainment
of
one or more performance goals related to the Business Criteria, as well as
Qualifying Options and Qualifying Stock Appreciation Rights granted to persons
described in Section 5.2, that are approved by a committee composed solely
of two or more outside directors (as this requirement is applied under
Section 162(m) of the Code) shall be deemed to be intended as
performance-based compensation within the meaning of Section 162(m) of the
Code unless such committee provides otherwise at the time of grant of the award.
It is the further intent of the Group that (to the extent the Group or awards
under this Plan may be or become subject to limitations on deductibility under
Section 162(m) of the Code) any such awards and any other Performance-Based
Awards under Section 5.2 that are granted to or held by a person subject to
Section 162(m) will qualify as performance-based compensation or otherwise
be exempt from deductibility limitations under Section 162(m).
8.9 Captions.
Captions and headings are given to the sections and subsections of this Plan
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation
of
this Plan or any provision thereof.
8.10 Stock-Based
Awards in Substitution for Stock Options or Awards Granted by Other
Corporation.
Awards
may be granted to Eligible Persons under this Plan in substitution for or in
connection with an assumption of employee stock options, stock appreciation
rights, restricted stock units, restricted stock or other stock-based awards
granted by other entities to persons who are or who will become Eligible Persons
in respect of the Group, in connection with a distribution, merger or other
reorganization by or with the granting entity or an affiliated entity, or the
acquisition by the Group, directly or indirectly, of all or a substantial part
of the stock or assets of the employing entity. The awards so granted need
not
comply with other specific terms of this Plan, provided the awards reflect
only
adjustments giving effect to the assumption or substitution consistent with
the
conversion applicable to the Plan Shares in the transaction and any change
in
the issuer of the security. Any shares that are delivered and any awards that
are granted by, or become obligations of, the Corporation, as a result of the
assumption by the Corporation of, or in substitution for, outstanding awards
previously granted by an acquired company (or previously granted by a
predecessor employer (or direct or indirect parent thereof) in the case of
persons that become employed by any member of the Group in connection with
a
business or asset acquisition or similar transaction) shall not be counted
against the Share Limit or other limits on the number of Plan Shares available
for issuance under this Plan.
8.11 Non-Exclusivity
of Plan.
Nothing
in this Plan shall limit or be deemed to limit the authority of the Board or
the
Administrator to grant awards or authorize any other compensation, with or
without reference to the Plan Shares, under any other plan or authority.
8.12 No
Corporate Action Restriction.
The
existence of this Plan, the award agreements and the awards granted hereunder
shall not limit, affect or restrict in any way the right or power of the Board
or the shareholders of the Corporation to make or authorize: (a) any
adjustment, recapitalization, reorganization or other change in the capital
structure or business of the Corporation or any Subsidiary, (b) any merger,
amalgamation, consolidation or change in the ownership of the Corporation or
any
Subsidiary, (c) any issue of bonds, debentures, capital, preferred or prior
preference stock ahead of or affecting the capital stock (or the rights thereof)
of the Corporation or any Subsidiary, (d) any dissolution or liquidation of
the Corporation or any Subsidiary, (e) any sale or transfer of all or any
part of the assets or business of the Corporation or any Subsidiary, or
(f) any other corporate act or proceeding by the Corporation or any
Subsidiary. No participant, beneficiary or any other person shall have any
claim
under any award or award agreement against any member of the Board or the
Administrator, or the Corporation or any employees, officers or agents of the
Corporation or any subsidiary, as a result of any such action.
8.13 Other
Benefit and Compensation Programs.
Payments and other benefits received by a participant under an award made
pursuant to this Plan shall not be deemed a part of a participant’s compensation
for purposes of the determination of benefits under any other employee welfare
or benefit plans or arrangements, if any, provided by the Corporation or any
Subsidiary, except where the Administrator expressly otherwise provides or
authorizes in writing. Awards under this Plan may be made in addition to, in
combination with, as alternatives to or in payment of grants, awards or
commitments under any other plans or arrangements of the Corporation or the
Subsidiaries.
IN
WITNESS WHEREOF this Agreement has been executed on the 11th
day of
October, 2007.
SIGNED
by
▇▇▇ ▇▇▇ for and on behalf of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
INC.
|
Authorized Signature:
|
/s/
▇▇▇ ▇▇▇
|
|
Name: ▇▇▇ ▇▇▇
|
|
|
Title: CEO & President
|
|