Restricted Stock Awards (i) The restricted shares of common stock of the Company awarded under this paragraph (c) (collectively, the “Restricted Shares”) shall be awarded pursuant to and, to the extent not expressly inconsistent herewith, governed by the Company stock option and incentive compensation plan as in effect as the effective date of the respective award (the “Stock Plan”). All grants described in this paragraph (c) shall be conditioned upon the approval of the shareholders of the Company at the annual shareholders’ meeting in 2008 of (A) an increase in the maximum number of shares that may be issued pursuant to awards under the Stock Plan, or (B) a new or amended plan authorizing grants of restricted shares of the Company. The number of Restricted Shares shall be adjusted in accordance with the terms of the Stock Plan for stock splits, stock dividends, recapitalizations and the like. Until and only to the extent the Restricted Shares shall vest as provided herein, all stock certificates evidencing the Restricted Shares owned by Employee shall be held by the Company for the benefit of Employee. As and to the extent any Restricted Shares shall vest as provided herein, the Company will promptly deliver certificates representing such vested shares to Employee.
(ii) Provided Employee shall continue to be employed hereunder, effective on July 15, 2008, the Company shall award to Employee 5,000 restricted shares of common stock of the Company. The restricted shares awarded as provided in the preceding sentence shall be referred to as the “Fixed Restricted Shares.” The Fixed Restricted Shares shall be subject to vesting as provided below. Provided Employee shall continue to be employed hereunder, one-fourth (1/4) of the Fixed Restricted Shares shall vest on June 1, 2009, an additional one-fourth (1/4) of the Fixed Restricted Shares shall vest on June 1, 2010, an additional one-fourth (1/4) of the Fixed Restricted Shares shall vest on June 1, 2011, and the final one-fourth (1/4) of the Fixed Restricted Shares shall vest on June 1, 2012.
(iii) Provided Employee shall continue to be employed hereunder, and further provided that the applicable Annual Performance Award Test (as defined below) has been satisfied, on the Performance Award Date (as defined below) each year during the Term, commencing in 2009, the Company shall award to Employee that number of shares of common stock of the Company as is equal to $100,000 divided by the Performance Award Price (as defined below), with any fractional share resulting therefrom being rounded up to one whole share if 0.5 or more and eliminated if less than 0.5. For each year, the “Performance Award Date” shall be that date the Company files its Annual Report on Form 10-K with the Securities and Exchange Commission for the immediately preceding calendar year. Satisfaction of the “Annual Performance Award Test” shall be determined as of each Performance Award Date and measured based upon the Company Net Income for the immediately preceding calendar year. The Annual Performance Award Test shall be satisfied for a calendar year if (A) the Annual Net Income Target for the calendar year being measured is at least ten percent (10%) higher than the actual Company Net Income for the immediately preceding calendar year, and (B) the actual Company Net Income for the calendar year being measured equals or exceeds ninety-five percent (95%) of the Annual Net Income Target for the calendar year being measured. The “Performance Award Price” shall be equal to the closing sale price of Company common stock as reported on the Nasdaq National Market on the respective Performance Award Date (or if the respective Performance Award Date is not a trading date for the Company common stock, on the immediately preceding trading date). Any Restricted Shares awarded pursuant to this subparagraph (iii) shall be immediately vested in full on the respective date such shares are awarded.
(iv) Notwithstanding any provision in this paragraph (c) to the contrary, all of the Restricted Shares that have not been previously vested shall immediately vest if Employee shall continue to be employed hereunder and (A) Employee shall die, (B) Employee shall be subject to a “permanent disability” as described in Section 4(b) hereof, or (C) a Change of Control (as defined below) has occurred with respect to the Company. A “Change of Control” for purposes of this subparagraph (iv) shall have the same meaning as that term is given in the Stock Plan.
Share Options With respect to the share options (the “Share Options”) granted pursuant to the share-based compensation plans of the Company and its subsidiaries (the “Company Share Plans”), (i) each Share Option intended to qualify as an “incentive stock option” under Section 422 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), so qualifies, (ii) each grant of a Share Option was duly authorized no later than the date on which the grant of such Share Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Company Share Plans, the Exchange Act, and all other applicable laws and regulatory rules or requirements, including the rules of the New York Stock Exchange (the “Exchange”), and (iv) each such grant was properly accounted for in accordance with IFRS in the financial statements (including the related notes) of the Company. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Share Options prior to, or otherwise coordinating the grant of Share Options with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
Nonstatutory Stock Option If the Grant Notice so designates, this Option is intended to be a Nonstatutory Stock Option and shall not be treated as an Incentive Stock Option within the meaning of Section 422(b) of the Code.
Stock Awards “Stock Awards” means all stock options, restricted stock and such other awards granted pursuant to the Company’s stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof.
Stock Options (i) As of the close of business on October 19, 2007: (i) 3,359,430 shares of Company Common Stock were subject to issuance pursuant to outstanding options to purchase Company Common Stock under the Company Stock Plans (the “Company Options”) and (ii) 920,296 shares of Company Common Stock were reserved for future issuance pursuant to Company Options or other equity-based awards available for grant under the Company Stock Plans. Since the close of business on October 19, 2007 through the execution of this Agreement, no Company Options have been granted and no shares of Company Common Stock have been reserved for future issuance pursuant to Company Options or other equity-based awards available for grant under the Company Stock Plans. There are no outstanding or authorized stock appreciation, phantom stock or other similar rights (whether payable in stock, cash or other property) with respect to the Company.
(ii) Section 2.2(a) of the Company Disclosure Letter sets forth a list of each outstanding Company Option issued and (a) the particular Company Stock Plan (if any) pursuant to which such Company Option was granted, (b) the name and last known state of domicile of the holder of such Company Option (provided, however, that the Company may redact names of employees (other than with respect to officers of the Company) from such list), (c) the number of shares of Company Common Stock subject to such Company Option, (d) the exercise price of such Company Option (and whether such option is subject to Section 409A of the Code), (e) the date on which such Company Option was granted, (e) the applicable vesting schedule (including any acceleration provisions with respect thereto), and the extent to which such Company Option is vested and exercisable as of the date hereof, (f) the date on which such Company Option expires, and (g) whether such Company Option is intended to qualify as an incentive stock option as defined in Section 422 of the Code. All shares of Company Common Stock subject to issuance under the Company Stock Plans, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable. True and complete copies of the forms of all agreements relating to Company Options issued under the Company Stock Plans have been provided to Parent, such forms of agreements are not materially different from the agreements evidencing such Company Options (other than with respect to the name of the holder, the per share exercise price, the number of shares subject to such Company Options and the applicable vesting schedule), and such agreements and instruments have not been amended, modified or supplemented, and the Company has no obligations under any Contract to amend, modify or supplement such agreements in any case from the forms provided to Parent (or the actual agreements evidencing such Company Options).
Restricted Stock Award Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants to the Participant Shares (the “Restricted Shares”), which shall vest and become nonforfeitable in accordance with Section 3 hereof.
Share Option Plans Each share option granted by the Company under the Company’s share option plan was granted (i) in accordance with the terms of the Company’s share option plan and (ii) with an exercise price at least equal to the fair market value of the Ordinary Shares on the date such share option would be considered granted under GAAP and applicable law. No share option granted under the Company’s share option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, share options prior to, or otherwise knowingly coordinate the grant of share options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
Stock Appreciation Rights The Grantee or other person entitled to exercise this Option is further hereby granted the right ("Stock Appreciation Right") in lieu of exercising this Option or any portion thereof to receive an amount equal to the lesser of (a) the excess of the Fair Market Value of the stock subject to this Option or such portion thereof over the aggregate exercise price for such shares hereunder as of the date the Stock Appreciation Right is exercised. The amount payable upon exercise of such Stock Appreciation Right may be settled by payment in cash or in shares of the class then subject to this Option valued on the basis of their Fair Market Value on the date Stock Appreciation Right is exercised, or in a combination of cash and such shares so valued. No Stock Appreciation Right may be exercised, in whole or in part, (i) other than in connection with the contemporaneous surrender without exercise of this Option or the portion thereof that corresponds to the portion of the Stock Appreciation Right being exercised, or (ii) except to the extent that this Option or such portion thereof is exercisable on the date of exercise of the Stock Appreciation Right by the Person exercising the Stock Appreciation Right, or (iii) unless the class of stock then subject to this Option is then Publicly Traded.
Company Stock Options (a) At the Effective Time, Parent shall assume, by virtue of this Agreement and without any further action on the part of the Company, all of the Company's obligations with respect to each outstanding Company Stock Option, whether vested or unvested. Unless otherwise elected by Parent prior to the Effective Time, Parent shall make such assumption in such manner that Parent (i) is a corporation "assuming a stock option in a transaction to which Section 424(a) applies" within the meaning of Section 424 of the Code or (ii) to the extent that Section 424 of the Code does not apply to such Company Stock Option, would be such a corporation were Section 424 of the Code applicable to such Company Stock Option; and, if not so otherwise elected, after the Effective Time, all references to the Company in the Company Stock Plans and the applicable Company Stock Option agreements shall be deemed to refer to Parent, which shall have assumed the Company Stock Plans as of the Effective Time by virtue of this Agreement and without any further action on the part of the Company or Parent. Each Company Stock Option so assumed by Parent under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Plan and the applicable Company Stock Option as in effect immediately prior to the Effective Time, except as otherwise provided in Section 3.05. Parent shall use all reasonable efforts to ensure that Company Stock Options intended to qualify as incentive stock options under Section 422 of the Code prior to the Effective Time continue to so qualify after the Effective Time.
(b) With respect to the Company Stock Plans, Parent shall take all corporate action necessary or appropriate to, as soon as practicable after the Effective Time, file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to the shares of Parent Common Stock subject to such plan to the extent such registration statement is required under applicable law in order for such shares of Parent Common Stock to be sold without restriction, and Parent shall use its best efforts to maintain the effectiveness of such registration statements (and maintain the current status of the prospectuses contained therein) for so long as such benefits and grants remain payable and such options under such plans remain outstanding.
Award Distribution In the event Lessor accepts Lessee's offer to purchase the Leased Property, or to substitute a new property for the Leased Property, as described in clause (b) of Section 15.4, the entire Award shall belong to Lessee provided no event of default is continuing and Lessor agrees to assign to Lessee all of its rights thereto. In any other event, the entire Award shall belong to and be paid to Lessor, except that, if this Lease is terminated, and subject to the rights of the Facility Mortgagee, Lessee shall be entitled to receive from the Award, if and to the extent such Award specifically includes such items, the following:
(a) A sum attributable to the Capital Additions for which Lessee would be entitled to reimbursement at the end of the Term pursuant to the provisions of Section 10.2(c) and the value, if any, of the leasehold interest of Lessee under this Lease; and
(b) A sum attributable to Lessee's Personal Property and any reasonable removal and relocation costs included in the Award. If Lessee is required or elects to restore the Facility, Lessor agrees that, subject to the rights of the Facility Mortgagees, its portion of the Award shall be used for such restoration and it shall hold such portion of the Award in trust, for application to the cost of the restoration.
