EXHIBIT 10.2
Metrowerks, Inc. and Subsidiaries
1995 Stock Option Plan and Related Agreements
METROWERKS INC.
1995 STOCK OPTION PLAN
1. INTERPRETATION
1 Defined Terms - For the purposes of this Plan, the following terms shall
have the following meanings:
(a) "Affiliate" means a Parent Corporation or a Subsidiary Corporation of
a corporation;
(b) "Associate" means, where used to indicate a relationship with any
Person,
(i) any relative of that Person,
(ii) any person of the opposite sex to whom that Xxxxxx is married
or with whom that Xxxxxx is living in a conjugal relationship outside marriage,
(iii) any relative of a Person mentioned in clause (ii) who has the
same home as that Person,
(iv) any partner of that Person,
(v) any trust or estate in which such Person has a substantial
beneficial interest or as to which such Person serves as trustee or in
a similar capacity, or
(vi) any corporation of which such Person beneficially owns,
directly or indirectly, voting securities carrying more than 10 percent of the
voting rights attached to all outstanding voting securities of the corporation;
(c) "Beneficial Owner" of a security includes any Person who, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise has voting power over the security or the power to dispose or direct
the disposition of the security, and any Person who uses a trust or other
arrangement with the purpose or effect of divesting such Person of beneficial
ownership as part of a plan to evade the reporting requirements of section 13 of
the Exchange Act shall be deemed to be the Beneficial Owner of the security;
(d) "Board" means the Board of Directors of Metrowerks Inc.;
(e) "Change in Control" means the acquisition, directly or indirectly,
through one transaction or a number of transactions, by any Person, of an
aggregate of more than fifty percent of the outstanding Shares;
(f) "Code" means the United States Internal Revenue Code of 1986, as
amended from time to time;
(g) "Committee" means a committee of the Board appointed in accordance
with this Plan, or if no such committee is appointed, the Board itself;
(h) "Company" means Metrowerks Inc.;
(i) "Date of Grant" means the date on which a grant of an Option is
effective;
(j) "Direct or Indirect Ownership" of securities by a Person is calculated
in accordance with the following rules:
(i) the Person shall be deemed to own stock owned, directly or
indirectly, by or for his brothers and sisters (including half-brothers and
half-sisters), spouse, ancestors and lineal descendants, and
(ii) stock owned, directly or indirectly, by or for a corporation,
partnership, estate or trust, shall be deemed to be owned proportionately by or
for its shareholders, partners or beneficiaries;
(k) "Disability" means a medically determinable physical or mental
impairment expected to result in death or to last for a continuous period of not
less than 12 months which causes an individual to be unable to engage in any
substantial gainful activity;
(l) "Disinterested Person" means a director who qualifies as a
"Disinterested Person" as defined in subclause 240.16b-3(c)(2)(i) of Title 17 of
the Code of Federal Regulations of the United States; meaning a director who has
not been granted or awarded equity securities pursuant to the Plan or any other
plan of the Company or its Affiliates for one year prior to the initiation of
his service as an administrator of the Plan, other than securities received
pursuant to an annual retainer fee;
(m) "Disposition" includes a sale, exchange, gift, or transfer of legal
title, but does not include a pledge, hypothecation, transfer from a decedent to
an estate, transfer by bequest or inheritance, or the other excepted
circumstances referred to in section 424(c) of the Code;
(n) "Domestic Relations Successor" means a person entitled to receive
transfer of ownership of an Option pursuant to a Qualified Domestic Relations
Order;
(o) "Effective Date" means the effective date of this Plan, which is
June 21, 1995;
(p) "Exchange Act" means the Securities Exchange Act of 1934, as amended ;
(q) "Fair Market Value" means:
(i) where the Shares are listed for trading on a stock exchange or
over the counter market, the closing price of the Shares on the stock exchange
or over the counter market which is the principal trading market for the
Company's Shares, as may be determined for such purpose by the Committee, or
(ii) where the Shares are not listed for trading on a stock exchange
or over the counter market, the value which is determined by the Committee to be
the fair value of the Shares, taking into consideration all factors that the
Committee deems appropriate, including, without limitation, recent sale and
offer prices of the Shares in private transactions negotiated at arm's length;
(r) "Guardian" means the guardian, if any, appointed for an Optionee;
(s) "ISO" means an Option granted to an employee of the Company or an
Affiliate of the Company that qualifies as an "incentive stock option" for
purposes of section 422 of the Code and is therefore subject to favourable tax
treatment under the Code;
(t) "ISO Optionee" means an Optionee to whom an ISO has been granted;
(u) "Modification" means any change in the terms of an Option which gives
the Optionee additional benefits under the Option, but such change shall not
include a change in the terms of an Option:
(i) to make the Option not transferable other than by will or the
laws of descent and distribution,
(ii) to make the Option exercisable only by the Optionee during his
lifetime,
(iii) in the case of an Option not immediately exercisable in full, to
accelerate the time within which the Option may be exercised, or
(iv) attributable to the issuance or assumption of an Option by
reason of a corporate merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation if the new Option or assumption of the
old Option does not give the Optionee additional benefits which he did not have
under the old Option;
(v) "Non-ISO" means an Option that is not an "incentive stock option" for
purposes of section 422 of the Code, and is therefore not subject to favourable
tax treatment under the Code;
(w) "Non-ISO Optionee" means an Optionee to whom a Non-ISO has been
granted;
(x) "Option" means an option to purchase Shares granted pursuant to the
terms of this Plan;
(y) "Option Agreement" means a written agreement between the Company and
an Optionee, specifying the terms of the Option being granted to the Optionee
under the Plan;
(z) "Option Price" means the price at which an Option is exercisable to
purchase Shares;
(aa) "Optionee" means a person to whom an Option has been granted;
(bb) "Parent Corporation" means any corporation in an unbroken chain of
corporations ending with the Company if, at the Date of Grant, each corporation
other than the Company owns stock possessing 50 percent or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain;
(cc) "Person" means a natural person, company, government, or political
subdivision or agency of a government; and where two or more Persons act as a
partnership, limited partnership, syndicate or other group for the purpose of
acquiring, holding or disposing of securities of an issuer, such syndicate or
group shall be deemed to be a Person;
(dd) "Plan" means this Stock Option Plan of the Company;
(ee) "Qualified Domestic Relations Order" means a judgment or order which
relates to the provision of child support, alimony payments or marital property
rights to a spouse, former spouse, child or other dependent of an Optionee, made
pursuant to domestic relations law of a state of the United States, and which
meets all the requirements of section 414(p) of the Code;
(ff) "Qualified Successor" means a person who is:
(i) entitled to ownership of an Option upon the death of an ISO
Optionee, pursuant to a will or the applicable laws of descent and distribution
upon death, or
(ii) a Domestic Relations Successor of an Optionee;
(gg) "Shares" means the common shares without par value in the capital of
the Company;
(hh) "Subsidiary Corporation" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the Date of Grant, each of the
corporations other than the last corporation owns stock possessing 50 percent or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain;
(ii) "Term" means the period of time during which an Option is exercisable;
and
(jj) "Terminating Event" means:
(i) the dissolution or liquidation of the Company,
(ii) a merger or consolidation of the Company with one or more
corporations as a result of which, immediately following such merger or
consolidation, the shareholders of the Company as a group will hold less than a
majority of the outstanding capital stock of the surviving corporation,
(iii) the sale or other disposition of all or substantially all of the
assets of the Company, or
(iv) a material change in the capital structure of the Company that
is deemed to be a Terminating Event by virtue of the last sentence of Section
11.1 of this Plan or by virtue of Section 11.4 of this Plan.
2. STATEMENT OF PURPOSE
1 Principal Purposes - The principal purposes of the Plan are to provide the
Company with the advantages of the incentive inherent in stock ownership on the
part of employees, officers, directors, and consultants responsible for the
continued success of the Company; to create in such individuals a proprietary
interest in, and a greater concern for, the welfare and success of the Company;
to encourage such individuals to remain with the Company; and to attract new
employees, officers, directors and consultants to the Company.
2 ISOs and Non-ISOs - Under this Plan, the Company may grant either ISOs or
Non-ISOs. Each ISO granted hereunder is intended to constitute an "incentive
stock option," for the purposes of section 422 of the Code, and this Plan and
each such ISO is intended to comply with all of the requirements of Section 422
of the Code and of all other provisions of the Code applicable to incentive
stock options and to plans issuing the same. Each Non-ISO granted hereunder is
intended to constitute an Option that is not an "incentive stock option" for the
purposes of section 422 of the Code, and that does not comply with the
requirements of Section 422 of the Code.
3 Benefit to Shareholders - The Plan is expected to benefit shareholders by
enabling the Company to attract and retain personnel of the highest caliber by
offering them an opportunity to share in any increase in value of the Shares
resulting from their efforts.
3. ADMINISTRATION
1 Board or Committee - The Plan shall be administered by the Board or by a
committee of the Board appointed in accordance with Section 3.2 or 3.4(b)
below.
2 Appointment of Committee - The Board may at any time appoint a
Committee, consisting of not less than two of its members, to administer the
Plan on behalf of the Board in accordance with such terms and conditions as the
Board may prescribe, consistent with this Plan. Once appointed, the Committee
shall continue to serve until otherwise directed by the Board. From time to
time, the Board may increase the size of the Committee and appoint additional
members, remove members (with or without cause) and appoint new members in their
place, fill vacancies however caused, or remove all members of the Committee and
thereafter directly administer the Plan.
3 Quorum and Voting - A majority of the members of the Committee shall
constitute a quorum, and, subject to the limitations in this Section 3, all
actions of the Committee shall require the affirmative vote of members who
constitute a majority of such quorum. Members of the Committee who are not
Disinterested Persons may vote on any matters affecting the administration of
the Plan or the grant of Options pursuant to the Plan, except that no such
member shall act upon the granting of an Option to himself (but any such member
may be counted in determining the existence of a quorum at any meeting of the
Committee during which action is taken with respect to the granting of Options
to him).
4 Administration of Plan upon Registration of Equity Securities -
Notwithstanding the foregoing provisions of this Section 3, if the Company
registers any class of any equity security pursuant to section 12 of the
Exchange Act the Plan shall, from the effective date of such registration until
six months after the termination of such registration, be administered as
follows:
(a) the Plan shall be administered by the Board so long as each member of
the Board is a Disinterested Person; and,
(b) if at any time not all members of the Board are Disinterested Persons,
then the Board shall appoint a Committee consisting of two or more of its
members, all of whom are Disinterested Persons, to administer the Plan on behalf
of the Board in accordance with such terms and conditions as the Board may
prescribe, consistent with this Plan (provided, however, with respect to
selection of officers and directors for participation, and decisions concerning
the timing, pricing and amount of a grant or award, decisions shall be made in
the sole discretion of the Committee). Once appointed, the Committee shall
continue to serve until otherwise directed by the Board. From time to time the
Board may increase the size of the Committee and appoint additional members (all
of whom shall be Disinterested Persons), remove members (with or without cause)
and appoint new members in their place, fill vacancies however caused, or remove
all members of the Committee and thereafter directly administer the Plan so long
as all members of the Board are Disinterested Persons. At no time shall a person
who is not a Disinterested Person serve on the Committee appointed under this
Section 3.4(b), nor shall such Committee at any time consist of less than two
members of the Board.
5 Powers of Committee - Any Committee appointed under Section 3.2 or 3.4(b)
above shall have the authority to do the following:
(a) administer the Plan in accordance with its express terms;
(b) determine all questions arising in connection with the administration,
interpretation, and application of the Plan, including all questions relating to
the value of the Shares;
(c) correct any defect, supply any information, or reconcile any
inconsistency in the Plan in such manner and to such extent as shall be deemed
necessary or advisable to carry out the purposes of the Plan;
(d) prescribe, amend, and rescind rules and regulations relating to the
administration of the Plan;
(e) determine the duration and purposes of leaves of absence from
employment which may be granted to Optionees without constituting a termination
of employment for purposes of the Plan;
(f) do the following with respect to the granting of Options:
(i) determine the employees, officers, directors, or consultants to
whom Options shall be granted, based on the eligibility criteria set out in this
Plan,
(ii) determine whether such Options shall be ISOs or Non-ISOs,
(iii) determine the terms and provisions of the Option Agreement to be
entered into with any Optionee (which need not be identical with the terms of
any other Option Agreement),
(iv) amend the terms and provisions of Option Agreements, provided
the Committee obtains:
A. the consent of the Optionee; and
B. the approval of any stock exchange on which the Company is
listed,
(v) determine when Options shall be granted,
(vi) determine the number of Shares subject to each Option, and
(g) make all other determinations necessary or advisable for
administration of the Plan.
6 Obtain Regulatory Approvals - In administering this Plan the Committee will
obtain any regulatory approvals which may be required pursuant to applicable
securities laws or the rules of any stock exchange or over the counter market on
which the Shares are listed.
7 Administration by Committee - The Committee's exercise of the authority set
out in Section 3.5 shall be consistent with the intent that ISOs issued under
the Plan be qualified under the terms of
Section 422 of the Code, and that Non-ISOs shall not be so qualified. All
determinations made by the Committee in good faith on matters referred to in
Section 3.5 shall be final, conclusive, and binding upon all Persons. The
Committee shall have all powers necessary or appropriate to accomplish its
duties under this Plan. In addition, the Committee's administration of the Plan
shall in all respects be consistent with the policies and rules of any stock
exchange or over the counter market on which the Shares are listed.
4. ELIGIBILITY
1 Eligibility for ISOs - ISOs may be granted to any employee of the Company
or an Affiliate of the Company, including directors or officers who are
employees of the Company or an Affiliate of the Company. An Optionee who is not
an employee of the Company or an Affiliate of the Company is not eligible to
receive an ISO under the Plan.
2 Eligibility for Non-ISOs - Non-ISOs may be granted to any employee,
officer, director or consultant of the Company or an Affiliate of the Company.
3 No Violation of Securities Laws - No Option shall be granted to any
Optionee unless the Committee has determined that the grant of such Option and
the exercise thereof by the Optionee will not violate the securities law of the
jurisdiction where the Optionee resides.
4 Limit on Maximum Grant to any Optionee - Notwithstanding anything in this
Plan to the contrary, no officer or employee of the Company or an Affiliate of
the Company shall receive Options exercisable for more than 800,000 Shares over
any three year period.
5. SHARES SUBJECT TO THE PLAN
1 Number of Shares - The Committee, from time to time, may grant Options to
purchase an aggregate of up to 1,600,000 Shares subject to regulatory approval,
to be made available from authorized, but unissued or reacquired, Shares. In
calculating the foregoing 1,600,000 Shares, the Committee shall include all
Shares subject to options outstanding prior to the Effective Date of the Plan,
which as at June 19, 1995, comprises 722,650 Shares. The maximum number of
1,600,000 Shares shall be adjusted, where necessary, to take account of the
events referred to in Section 11 hereof.
2 Decrease in Number of Shares Subject to Plan - Upon exercise of an Option,
the number of Shares thereafter available under the Plan and under the Option
shall decrease by the number of Shares as to which the Option was exercised.
3 Expiry of Option - If an Option expires or terminates for any reason
without having been exercised in full, the unpurchased Shares subject thereto
shall again be available for the purposes of the Plan.
4 Reservation of Shares - The Company will at all times reserve and keep
available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
6. OPTION TERMS
1 Option Agreement - With respect to each Option to be granted to an
Optionee, the Committee shall specify the following terms in the Option
Agreement between the Company and the Optionee:
(a) whether such Option is an ISO or a Non-ISO;
(b) the number of Shares subject to purchase pursuant to such Option,
provided that the number of Shares reserved for issuance to any one person
pursuant to Options does not exceed 5% of the outstanding Shares;
(c) the Date of Xxxxx;
(d) the Term, provided that:
(i) the Term shall in no event be more than ten years following the
Date of Xxxxx; and
(ii) if an ISO Option is granted to an Optionee who on the Date of
Xxxxx has Direct or Indirect Ownership of more than 10% of the total combined
voting power of all classes of stock of the Company, the Term of the Option
shall not exceed five years;
(e) the Option Price, provided that:
(i) the Option Price shall not be less than the Fair Market Value of
the Shares on the trading day preceding the Date of Grant; and
(ii) if an ISO Option is granted to an Optionee who on the Date of
Grant has Direct or Indirect Ownership of more than 10% of the total combined
voting power of all classes of stock of the Company or an Affiliate of the
Company, then the Option Price shall be at least 110% of the Fair Market Value
of the Shares on the Date of Grant;
(f) any vesting schedule upon which the exercise of an Option is
contingent; provided that the Committee shall have complete discretion with
respect to the terms of any such vesting schedule, including, without
limitation, discretion to:
(i) allow full and immediate vesting upon the grant of such Option,
(ii) to permit partial vesting in stated percentage amounts based on
the length of the Term of such Option, and
(iii) to permit full vesting after a stated period of time has passed
from the Date of Grant; and
(g) such other terms and conditions as the Committee deems advisable and
are consistent with the purposes of this Plan.
2 No Grant After Ten Years From Effective Date - No Option shall be granted
under the Plan later than ten years from the Effective Date of the Plan. Except
as expressly provided herein, nothing contained in this Plan shall require that
the terms and conditions of Options granted under the Plan be uniform.
3 No Disposition for Six Months - An Optionee who is subject to section 16 of
the Exchange Act shall not make a Disposition of any Shares issued upon exercise
of an Option unless at least six months has elapsed between the Date of Grant of
the Option and the date of Disposition of the Shares issued upon exercise of
such Option.
7. LIMITATION ON GRANTS OF OPTIONS
1 Non-ISO if Exceed $100,000 (U.S.) - If the aggregate Fair Market Value of:
(a) Shares underlying ISOs which have been granted to an Optionee under
this Plan and which are exercisable for the first time during a calendar year,
and
(b) Shares underlying incentive stock options which have been granted to
such Optionee under any other plan of the Company or its Affiliates and which
are exercisable for the first time during that calendar year, exceeds $100,000
(U.S.), as such amount may be adjusted from time to time under Section 422(d) of
the Code, then to the extent of such excess such Options shall be treated as
Non-ISOs.
2 ISO Optionee Owning Greater Than 10% of Voting Securities - The Committee
may grant an ISO to an employee of the Company or an Affiliate of the Company
who, at the Date of Grant, owns securities of the Company or its Affiliates
representing more than 10% of the total combined voting power of all classes of
stock of the Company or an Affiliate of the Company, only if:
(a) the Option Price is at least 110% of the Fair Market Value of the
Shares at the Date of Grant; and
(b) the Term is five years or less.
8. EXERCISE OF OPTION
1 Method of Exercise - Subject to any limitations or conditions imposed upon
an Optionee pursuant to the Option Agreement or Section 6 above, an Optionee may
exercise an Option by giving written notice thereof to the Company at its
principal place of business.
2 Payment of Option Price - The notice described in Section 8.1 shall be
accompanied by full payment of the aggregate Option Price to the extent the
Option is so exercised, and full payment of any amounts the Company determines
must be withheld for tax purposes from the Optionee pursuant to the Option
Agreement. Such payment shall be:
(a) in lawful money (Canadian funds) by xxxxxx;
(b) at the discretion of the Committee and if such form of payment is
permitted under the corporate laws then governing the Company, by delivery of
the Optionee's personal recourse note bearing interest at a rate deemed
appropriate by the Committee;
(c) at the discretion of the Committee, and subject to all applicable
securities laws, through delivery by the Optionee and/or withholding by the
Company, of Shares having a market value as of the date of exercise equal to the
cash exercise price of the Option plus any amounts that the Company determines
must be withheld from the Optionee for U.S. or Canadian tax purposes. The market
value of each of the Shares on the date of delivery shall be determined in good
faith by the Committee, which determination shall be binding for all purposes
hereunder; or
(d) at the discretion of the Committee, by any combination of
Sections 8.2(a) to 8.2(c) above.
3 Issuance of Stock Certificate - As soon as practicable after exercise of an
Option in accordance with Sections 8.1 and 8.2 above, the Company shall issue a
stock certificate evidencing the Shares with respect to which the Option has
been exercised. Until the issuance of such stock certificate, no right to vote
or receive dividends or any other rights as a shareholder shall exist with
respect to such Shares, notwithstanding the exercise of the Option. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the stock certificate is issued, except as provided in
Section 11 below.
9. TRANSFERABILITY OF OPTIONS
1 Non-Transferable - Except as provided otherwise in this Section 9, Options
are non-assignable and non-transferable.
2 Death of Optionee - If the employment of an Optionee as an employee or
consultant of the Company or an Affiliate of the Company, or the position of an
Optionee as a director of the Company or an Affiliate of the Company, terminates
as a result of his or her death, any Options held by such Optionee shall pass to
the Qualified Successor of the Optionee, and
(a) in the case of an ISO, shall be exercisable by the Qualified Successor
for a period of six months following such death, and
(b) in the case of a Non-ISO, shall be exercisable by the Qualified
Successor for a period of 12 months following such death.
3 Disability of Optionee - If the employment of an Optionee as an employee or
consultant of the Company or an Affiliate of the Company, or the position of an
Optionee as a director of the Company or an Affiliate of the Company, is
terminated by the Company or its Affiliate by reason of such Optionee's
Disability, any Option held by such Optionee that could have been exercised
immediately prior to such termination of service shall be exercisable by such
Optionee, or by his Guardian, for a period of one year following the termination
of service of such Optionee.
4 Disability and Death of Optionee - If an Optionee who has ceased to be
employed by the Company or an Affiliate of the Company by reason of such
Optionee's Disability dies within six months after the termination of such
employment, any Option held by such Optionee that could have been exercised
immediately prior to his or her death shall pass to the Qualified Successor of
such Optionee, and shall be exercisable by the Qualified Successor:
(a) in the case of an ISO, for a period of six months following the death
of such Optionee, and
(b) in the case of a Non-ISO, for a period of 12 months following the
death of such Optionee.
5 Qualified Domestic Relations Order - In the event that a Qualified Domestic
Relations Order mandates the transfer of any Option that could have been
exercised immediately prior to the issuance of such order, such Option shall
pass to the Domestic Relations Successor, and shall be exercisable by such
person or persons in accordance with the terms of the applicable Option
Agreement.
6 Vesting - Options held by a Qualified Successor or exercisable by a
Guardian shall, during the period prior to their termination, continue to vest
in accordance with any vesting schedule to which such Options are subject.
7 Unanimous Agreement - If two or more persons constitute the Qualified
Successor or the Guardian of an Optionee, the rights of such Qualified Successor
or such Guardian shall be exercisable only upon the unanimous agreement of such
persons.
8 Deemed Non-Interruption of Employment - Employment shall be deemed to
continue intact during any military or sick leave or other bona fide leave of
absence if the period of such leave does not exceed 90 days or, if longer, for
so long as the Optionee's right to reemployment with the Company or an Affiliate
of the Company is guaranteed either by statute or by contract. If the period of
such leave exceeds 90 days and the Optionee's reemployment is not so guaranteed,
then his or her employment shall be deemed to have terminated on the ninety-
first day of such leave.
10. TERMINATION OF OPTIONS
1 Termination of Options - To the extent not earlier exercised or
terminated in accordance with section 9 above, an Option shall
terminate at the earliest of the following dates:
(a) the termination date specified for such Option in the Option
Agreement;
(b) where the Optionee's position as an employee, consultant or director
of the Company or an Affiliate of the Company is terminated for just cause, the
date of such termination for just cause;
(c) where the Optionee's position as an employee, consultant or director
of the Company or an Affiliate of the Company terminates for a reason other than
the Optionee's Disability, death, or termination for just cause, 30 days after
such date of termination, or upon the Optionee making written application to the
Committee and receiving the written consent of the Committee, which consent may
be given at the discretion of the Committee, up to 90 days after such date of
termination;
(d) the date of any sale, transfer, assignment or hypothecation, or any
attempted sale, transfer, assignment or hypothecation, of such Option in
violation of Section 9.1 above; and
(e) the date specified in Section 11.2 below for such termination in the
event of a Terminating Event.
11. ADJUSTMENTS TO OPTIONS
1 Alteration in Capital Structure - If there is a material alteration in the
capital structure of the Company resulting from a recapitalization, stock split,
reverse stock split, stock dividend, or otherwise, the Committee shall make such
adjustments to this Plan and to the Options then outstanding under this Plan as
the Committee determines to be appropriate and equitable under the
circumstances, so that the proportionate interest of each holder of any such
Option shall, to the extent practicable, be maintained as before the occurrence
of such event. Such adjustments may include, without limitation (a) a change in
the number or kind of shares of stock of the Company covered by such Options,
and (b) a change in the Option Price payable per share; provided, however, that
the aggregate Option Price applicable to the unexercised portion of existing
Options shall not be altered, it being intended that any adjustments made with
respect to such Options shall apply only to the price per share and the number
of shares subject thereto. For purposes of this Section 11.1, neither (i) the
issuance of additional shares of stock of the Company in exchange for adequate
consideration (including services), nor (ii) the conversion of outstanding
preferred shares of the Company into Shares shall be deemed to be material
alterations of the capital structure of the Company. If the Committee determines
that the nature of a material alteration in the capital structure of the Company
is such that it is not practical or feasible to make appropriate adjustments to
this Plan or to the Options granted hereunder, such event shall be deemed a
Terminating Event for the purposes of this Plan.
2 Terminating Events - Subject to Section 11.3, all Options granted under the
Plan shall terminate upon the occurrence of a Terminating Event.
3 Notice of Terminating Event - The Committee shall give notice to Optionees
not less than thirty days prior to the consummation of a Terminating Event. Upon
the giving of such notice, all Options granted under the Plan shall become
immediately exercisable, notwithstanding any contingent vesting provision to
which such Options may have otherwise been subject.
4 Corporate Reorganization - In the event of a reorganization as defined in
this Section 11.4 in which the Company is not the surviving or acquiring
corporation, or in which the Company is or becomes a wholly-owned subsidiary of
another corporation after the effective date of the reorganization, then unless
provision is made by the acquiring corporation for the assumption of each Option
granted under this Plan, or the substitution of an option therefor, such that no
Modification of any such Option occurs, all Options granted under this Plan
shall terminate and such event shall be deemed a Terminating Event. For purposes
of this Section 11.4, reorganization shall mean any statutory merger, statutory
consolidation, sale of all or substantially all of the assets of the Company, or
sale, pursuant to an agreement with the Company, of securities of the Company
pursuant to which the Company is or becomes a wholly-owned subsidiary of another
corporation after the effective date of the reorganization.
5 Acceleration on Change of Control - Upon a Change in Control, all Options
shall become immediately exercisable, notwithstanding any contingent vesting
provisions to which such Options may have otherwise been subject.
6 Acceleration of Date of Exercise - The Committee shall have the right to
accelerate the date of exercise of any installment of any Option; provided that,
without the consent of the Optionee with respect to any Option, the Committee
shall not accelerate the date of any installment of any Option granted to an
employee as an ISO (and not previously converted into a Non-ISO pursuant to
Section 13 below) if such acceleration would violate the annual vesting
limitation contained in Section 422(d) of the Code, as described in Section 7.1
above.
7 Determinations to be Made By Committee - Adjustments and determinations
under this Section 11 shall be made by the Committee,
whose decisions as to what adjustments or determination shall be made,
and the extent thereof, shall be final, binding, and conclusive.
12. TERMINATION AND AMENDMENT OF PLAN
1 Termination of Plan - Unless earlier terminated as provided in Section 11
above or in Section 12.2 below, the Plan shall terminate on, and no Option shall
be granted under the Plan, after ten years has passed from the Effective Date of
the Plan.
2 Power of Committee to Terminate or Amend Plan - Subject to the approval of
any stock exchange on which the Company is listed, the Committee may terminate,
suspend or amend the terms of the Plan; provided, however, that, except as
provided in Section 11 above, the Committee may not do any of the following
without obtaining, within 12 months either before or after the Committee's
adoption of a resolution authorizing such action, approval by the affirmative
votes of the holders of a majority of the voting securities of the Company
present, or represented, and entitled to vote at a meeting duly held in
accordance with the applicable corporate laws, or by the written consent of the
holders of a majority of the securities of the Company entitled to vote:
(a) increase the aggregate number of Shares which may be issued under the
Plan;
(b) materially modify the requirements as to eligibility for participation
in the Plan, or change the designation of the employees or class of employees
eligible to receive ISOs under the Plan;
(c) materially increase the benefits accruing to participants
under the Plan; or
(d) make any change in the terms of the Plan that would cause the ISOs
granted hereunder to lose their qualification as "incentive stock options" under
Section 422 of the Code;
however, the Committee may amend the terms of the Plan to comply with the
requirements of any applicable regulatory authority, without obtaining the
approval of its shareholders.
3 No Grant During Suspension of Plan - No Option may be granted during any
suspension, or after termination, of the Plan. Amendment, suspension, or
termination of the Plan shall not, without the consent of the Optionee, alter or
impair any rights or obligations under any Option previously granted.
13. CONVERSION OF ISOS INTO NON-ISOS
1 Conversion of ISOs into Non-ISOs - At the written request of any ISO
Optionee, the Committee may in its discretion take such actions as may be
necessary to convert such Optionee's ISOs (or any installments
or portions of installments thereof) that have not been exercised on the date of
conversion into Non-ISOs at any time prior to the expiration of such ISOs,
regardless of whether the Optionee is an employee of the Company or an Affiliate
of the Company at the time of such conversion. Such actions include, but shall
not be limited to, extending the exercise period of such ISOs. At the time of
such conversion, the Committee, with the consent of the Optionee, may impose
such conditions on the exercise of the resulting Non-ISOs as the Committee in
its discretion may determine, provided that such conditions are consistent with
this Plan. Nothing in the Plan shall be deemed to give any Optionee the right to
have such Optionee's ISOs converted into Non-ISOs, and no such conversion shall
occur until and
unless the Committee takes appropriate action. The Committee, with the consent
of the Optionee, may also terminate any portion of any ISO that has not been
exercised at the time of such conversion.
14. CONDITIONS PRECEDENT TO ISSUANCE OF SHARES
1 Compliance with Laws - Shares shall not be issued pursuant to the exercise
of any Option unless the Shares are fully paid and non-assessable and the
exercise of such Option and the issuance and delivery of such Shares comply with
all relevant provisions of law, including, without limitation, the Securities
Act of 1933, as amended, the Exchange Act, any applicable state or provincial
securities or corporate laws, the rules and regulations promulgated thereunder,
and the requirements of any stock exchange upon which the Shares may then be
listed or otherwise traded.
2 Representations by Optionee - As a condition precedent to the exercise of
any Option, the Company may require the Optionee to represent and warrant, at
the time of exercise, that the Shares are being purchased only for investment
and without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such representations and warranties are
required by any applicable law.
3 Regulatory Approval to Issuance of Shares - The Company's inability to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability with
respect to the failure to issue or sell such Shares.
15. USE OF PROCEEDS
1 Use of Proceeds - Proceeds from the sale of Shares pursuant to the Options
granted and exercised under the Plan shall constitute general funds of the
Company and shall be used for general corporate purposes.
16. NOTICES
1 Notices - All notices, requests, demands and other communications required
or permitted to be given under this Plan and the Options granted under this Plan
shall be in writing and shall be either served personally on the party to whom
notice is to be given, in which case notice shall be deemed to have been duly
given on the date of such service; telefaxed, in which case notice shall be
deemed to have been duly given on the date the telefax is sent; or mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, return receipt requested, postage prepaid, and addressed to the party
at his or its most recent known address, in which case such notice shall be
deemed to have been duly given on the tenth postal delivery day following.
17. MISCELLANEOUS PROVISIONS
1 No Obligation to Exercise - Optionees shall be under no obligation to
exercise Options granted under this Plan.
2 No Obligation to Retain Optionee - Nothing contained in this Plan shall
obligate the Company or an Affiliate of the Company to retain an Optionee as an
employee, officer, director, or consultant for any period, nor shall this Plan
interfere in any way with the right of the Company or Affiliates of the Company
to reduce such Optionee's compensation.
3 Binding Agreement - The provisions of this Plan and each Option Agreement
with an Optionee shall be binding upon such Optionee and the Qualified Successor
or Guardian of such Optionee.
4 Use of Terms - Where the context so requires, references herein to the
singular shall include the plural, and vice versa, and references to a
particular gender shall include either or both genders.
5 Headings - The headings used in this Plan are for convenience of reference
only and shall not in any way affect or be used in interpreting any of the
provisions of this Plan.
18. SHAREHOLDER APPROVAL TO PLAN
1 Shareholder Approval to Plan - This Plan must be approved by a majority of
the votes cast at a meeting of the shareholders of the Company , other than
votes attaching to securities beneficially owned by:
(a) insiders of the Company, meaning directors, officers and greater than
10 percent shareholders; and
(b) Associates of persons referred to in (a).
19. EFFECTIVE DATE OF PLAN
1 Effective Date of Plan - This Plan was approved and adopted by the Board of
Directors on June 21, 1995 and will be submitted to the shareholders of the
Company for approval at the Company's next annual general meeting. The Effective
Date of the Plan is June 21, 1995, provided that any Options granted pursuant to
the Plan prior to the date on which shareholder approval to the Plan is given
may not be exercised until the Plan and any such Options receive shareholder
approval.
