Exhibit 4.5
DYNACARE INC.
AMENDED AND RESTATED
EMPLOYEE STOCK OPTION PLAN
1 Purpose of the Plan
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1.1 The purpose of the Plan is to attract, retain and motivate persons as
key service providers to the Corporation and its Affiliates and to
advance the interests of the Corporation by providing such persons
with the opportunity, through share options, to acquire a proprietary
interest in the Corporation.
2 Defined Terms
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Where used herein, the following terms shall have the following meanings,
respectively:
2.1 "AFFILIATE" means:
(1) any corporation which is an affiliate, as such term is
used in Subsection 1(2) of the Business Corporations Act
(Ontario), of the Corporation; and
(2) subject to compliance with any applicable regulatory
requirements, any other person, firm or company including
a partnership in which the Corporation, either directly or
indirectly through a Subsidiary, has, directly or
indirectly, at least a 25% ownership interest;
2.2 "BOARD" means the board of directors of the Corporation or, if
established and duly authorized to act, any Committee;
2.3 "COMMITTEE" shall have the meaning attributed thereto in Section 3.1
hereof;
2.4 "CORPORATION" means Dynacare Inc. and includes any successor
corporation thereof;
2.5 "ELIGIBLE PERSON" means any director, officer or employee of the
Corporation or any Affiliate, or any other Service Provider (an
"ELIGIBLE INDIVIDUAL");
2.6 "INITIAL PUBLIC OFFERING" means an initial public offering of any
equity securities of the Corporation by way of a prospectus,
registration statement or similar document where, or in connection
with which, such equity securities have become listed and posted for
trading on a stock exchange (including the National Association of
Security Dealers Automated Quotation) in the United States;
2.7 "LIMITED PURPOSE PLAN" means the Dynacare Inc. Stock Option Incentive
Plan created on June 12, 1997, as amended and restated on November
17, 2000, as the same may be amended or varied from time to time;
2.8 "MARKET PRICE" at any date in respect of the Shares means the closing
price as reported by The Toronto Stock Exchange or The Nasdaq Stock
Market (or such other stock exchange or over-the-counter market on
which the Shares may be listed or admitted for trading) as may be
selected for such purpose by the Board, on the day immediately
preceding the day upon which the Option is granted, or if not so
traded, the average between the closing bid and asked prices thereof
as reported for the day immediately preceding the day upon which the
Option is granted.
2.9 "OPTION" means an option to purchase Shares granted to an Eligible
Person under the Plan;
2.10 "OPTION PRICE" means the price per Share at which Shares may be
purchased under an Option, as the same may be adjusted from time to
time in accordance with Article 8 hereof;
2.11 "OPTIONED SHARES" means the Shares issuable pursuant to an exercise
of Options;
2.12 "OPTIONEE" means an Eligible Person to whom an Option has been
granted and who continues to hold such Option;
2.13 "PLAN" means this Amended and Restated Dynacare Employee Stock Option
Plan, as the same may be amended or varied from time to time;
2.14 "SALE" means the sale of a majority voting interest in the Shares or
the sale of all or substantially all of the assets of the Corporation
on a consolidated basis as an entirety or substantially as an
entirety on an arm's length basis, but for certainty does not include
an Initial Public Offering;
2.15 "SERVICE PROVIDER" means:
(1) an employee of the Corporation or any Affiliate; or
(2) any other person or company engaged to provide ongoing
management or consulting services for the Corporation or
for any entity controlled by the Corporation;
2.16 "SHARES" means the common shares of the Corporation or any shares of
the Corporation into which the Shares are convertible, as the context
may require, and in the event of an adjustment contemplated by
Article 8 hereof, such other shares or securities to which an
Optionee may be entitled upon the exercise of an Option as a result
of such adjustment;
2.17 "SUBSIDIARY" has the meaning given thereto in the Business
Corporations Act (Ontario); and
2.18 "TERMINATION" has the meaning ascribed thereto in Section 6.2.
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3 Administration of the Plan
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3.1 The Plan shall be administered by the Board or by any committee (the
"Committee") of the Board established by the Board for that purpose.
3.2 The Board or Committee shall have the power, where consistent with
the general purpose and intent of the Plan and subject to the
specific provisions of the Plan:
(1) to establish policies and to adopt rules and regulations
for carrying out the purposes, provisions and
administration of the Plan;
(2) to interpret and construe the Plan and to determine all
questions arising out of the Plan or any Option, and any
such interpretation, construction or determination made by
the Committee shall be final, binding and conclusive for
all purposes;
(3) to determine the number of Shares covered by each Option;
(4) to determine the Option Price of each Option;
(5) to determine the time or times where Options will be
granted and exercisable;
(6) to determine if the Shares which are issuable on the
exercise of an Option will be subject to any restrictions
upon the exercise of such Option; and
(7) to prescribe the form of the instruments relating to the
grant, exercise and other terms of Options.
3.3 The Board or the Committee may, in its discretion, require as
conditions to the grant or exercise of any Option that the Optionee
shall have:
(1) represented, warranted and agreed in form and substance
satisfactory to the Corporation that he or she is
acquiring and will acquire such Option and the Shares to
be issued upon the exercise thereof or, as the case may
be, is acquiring such Shares, for his or her own account,
for investment and not with a view to or in connection
with any distribution, that he or she has had access to
such information as is necessary to enable him or her to
evaluate the merits and risks of such investment and that
he or she is able to bear the economic risk of holding
such Shares for an indefinite period;
(2) agreed to restrictions on transfer in form and substance
satisfactory to the Corporation and to an endorsement on
any option agreement or certificate representing the
Shares making appropriate reference to such restrictions;
and
(3) agreed to indemnify the Corporation in connection with the
foregoing.
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3.4 Any Option granted under the Plan shall be subject to the requirement
that, if at any time counsel to the Corporation shall determine that
the listing, registration or qualification of the Shares subject to
such Option upon any securities exchange or under any law or
regulation of any jurisdiction, or the consent or approval of any
securities exchange or any governmental or regulatory body, is
necessary as a condition of, or in connection with, the grant or
exercise such Option or the issuance or purchase of Shares
thereunder, such Option may not be accepted or exercised in whole or
in part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained on conditions
acceptable to the Board or the Committee. Nothing herein shall be
deemed to require the Corporation to apply for or to obtain such
listing, registration, qualification, consent or approval.
3.5 Without limiting the generality of Sections 3.3, 3.4 and 7.2 hereof,
unless a registration statement relating to the Shares covered by any
Option issued in favour of an Optionee resident in the United States
of America has been filed with the United States Securities and
Exchange Commission and is effective on the date of exercise, the
exercise of the Option by such Optionee will be contingent upon (i)
the receipt from the Optionee of a representation in writing
satisfactory to the Board or the Committee that at the time of such
exercise it is the Optionee's then intention to acquire the Shares
being purchased for investment and not for resale or other
distribution thereof to the public in the United States of America
and covering such other matters as the Board or the Committee may, in
its discretion, require, and (ii) the satisfaction of such other
conditions as applicable law or regulation may require or as the
Board or the Committee may, in its discretion, require. If such
representation in writing is required, the Board or the Committee may
in its discretion inscribe an investment legend on the share
certificates issued pursuant to the exercise of the Option. The
issuance of Shares upon the exercise of the Option shall be subject
to all applicable laws, rules and regulations and Shares shall not be
issued except upon the approval of proper government agencies or
stock exchanges as may be required. Provided, however, the Option
shall not be exercisable if at any date of exercise, it is the
opinion of counsel for the Corporation that registration of the said
Shares under the Securities Act of 1933 or other applicable statute
or regulation is required unless the Corporation elects to and
thereafter effects a registration of the Shares subject to the Option
under the Securities Act of 1933 or other applicable statute or
regulation within the period of the Option. If the Option may not be
exercised, the Corporation shall return to the Optionee, without
interest or deduction, any funds received by it in connection with
the proposed exercise of the Option.
3.6 Any Option granted under the Plan shall be subject to the provision
that, if at any time the Corporation shall determine, in its sole
discretion, that it is riot reasonably feasible for the Corporation
to comply with any condition of any law or regulation of any
jurisdiction in which any Optionee or proposed Optionee is resident,
which the Corporation has determined is necessary as a condition of,
or in connection with, the grant or exercise of any Option or the
issuance or purchase of Shares thereunder, such Option may not be
accepted or exercised in whole or in part unless such condition is
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complied with by the Corporation on terms acceptable to the Board or
the Committee. Nothing herein shall be deemed to require the
Corporation to take any action or refrain from taking any action in
order to comply with any condition of any law or regulation
applicable to the grant or exercise of any Option or the issuance or
purchase of any Shares thereunder.
3.7 Any Option granted under the Plan shall be subject to the provision
that the Corporation shall require the Optionee to reimburse the
Corporation for any amounts required to be paid by the Corporation to
any taxing or other governmental authority on behalf of the Optionee
or on its own behalf in respect of the grant of the Options hereunder
or the issuance or disposition of the Shares including, without
limitation, excise, employment or income withholding taxes. In lieu
thereof, the grant of the Options and the issuance of the Shares upon
the exercise thereof by the Optionee is conditional upon the
Corporation's reservation, in its discretion, of the right to
withhold, consistent with any applicable law, from any compensation
or other amounts payable to the Optionee, any amounts required to be
paid by the Corporation to any taxing or other governmental authority
on behalf of the Optionee or its own behalf under any federal, state,
provincial or local law as a result of the grant or exercise of the
Option or the issuance or disposition of the Shares. To the extent
that compensation or other amounts, if any, payable to the Optionee
are insufficient to pay any amounts required to be so paid by the
Corporation, the Corporation may, in its sole discretion, require the
Optionee, as a condition to the exercise of the Option, to pay in
cash or by certified cheque to the Corporation an amount sufficient
to cover such liability or otherwise make adequate provision for the
Corporation's satisfaction of its obligations under federal, state,
provincial and/or local law, including, without limitation, (i) the
holding by the Corporation of the share certificate to which the
Optionee is entitled upon the exercise of the Option as security for
the payment of such obligation, until cash sufficient to pay that
liability has accumulated; (ii) to retain some or all of the Shares,
having a fair market value at the date of the exercise of the Option
which is equal to the amount of the Corporation's obligations set
forth above; or (iii) to direct the Optionee's selling broker to
withhold from the proceeds realized from the sale of the Shares an
amount which is equal to the Corporation's obligations set forth
above and to pay such amount directly to the Corporation.
4 Shares Subject to the Plan
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4.1 Options may be granted in respect of authorized and unissued Shares,
provided that the aggregate number of Shares reserved for issuance
upon the exercise of all Options issuable under the Plan, subject to
any adjustment pursuant to the provisions of Article 8 hereof, shall
not exceed 909,340 Shares, all as may be determined by the Board and
approved by any relevant stock exchange or other regulatory authority
and, if required, by the shareholders of the Corporation. Optioned
Shares in respect of which Options are not exercised shall be
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available for subsequent Options. No fractional Shares may be
purchased or issued under the Plan.
4.2 If Options granted hereunder are cancelled or surrendered, terminate
or expire without being exercised in whole or in part in accordance
with the terms of the Plan, new Options may be granted in respect of
the number of Shares not purchased under such lapsed Options.
4.3 Subject only to the approval of any stock exchange or
over-the-counter market on which the Shares may be listed or admitted
for trading the Board, on the recommendation of the Committee, may
amend the Plan to increase or decrease, as the case may be, the
number of Shares reserved for issuance under the Plan provided that
the number of Shares reserved for issuance under the Limited Purpose
Plan is correspondingly decreased or increased, respectively, and
provided further that in the event of a decrease in the number of
Shares reserved for issuance under the Plan pursuant to this Section
4.3, the number of Shares reserved for issuance under the Plan
thereafter shall not be less then the number of Options issued and
outstanding at the time of such decrease is effective.
5 Eligibility; Grant; Terms of Options
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5.1 Options may be granted by the Board or the Committee, if authorized
to do so by the Board, to any Eligible Person.
5.2 Subject as herein and otherwise specifically provided in this Article
5, the number of Shares subject to each Option, the Option Price of
each Option, the expiration date of each Option, the extent to which
each Option is exercisable from time to time during the term of the
Option and other terms and conditions relating to each such Option
shall be determined by the Board or the Committee, if authorized to
do so by the Committee. The Board or the Committee may, in their
entire discretion, subsequent to the time of granting Options
hereunder, permit an Optionee to exercise any or all of the unvested
options then outstanding and granted to the Optionee under this Plan,
in which event all such unvested Options then outstanding and granted
to the Optionee shall be deemed to be immediately exercisable during
such period of time as may be specified by the Board or the
Committee.
5.3 Subject to any adjustments pursuant to the provisions of Article 8
hereof, the Option Price of any Option granted in 1998 shall be $6.45
(Canadian) per Share and the Option Price of any Option granted
thereafter shall be such price as approved by the Board or the
Committee, as the case may be, and shall in no circumstances be lower
than the Market Price on the date on which the grant of the Option is
approved by the Board or the Committee. If, as and when any Shares
have been duly purchased and paid for under the terms of an Option,
such Shares shall be conclusively deemed allotted and issued as fully
paid non-assessable Shares at the price paid therefor.
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5.4 (a) The term of an Option shall not exceed seven years from the date
of the grant of the Option; and
(b) Unless otherwise determined by the Board or the Committee and
specifically set out in the Option notification referred to in
Section 5.7 hereof, Options shall vest as to 20% on each of the
first, second, third, fourth and fifth anniversary of the date of the
grant (the "Option Period");
provided that if the Optionee shall, during any Option Period, not exercise his
or her right to purchase all of the Shares purchasable by him or her during such
Option Period (including any Optioned Shares purchasable by him or her as a
result of the operation of this proviso), then, subject to the provisions to the
contrary contained in the Plan, the Optionee shall have the right, at any time
or from time to time thereafter but prior to the Expiry Date, to purchase such
number of Shares which were purchasable but not purchased by him or her. Except
as otherwise expressly provided herein, no Option may be exercised prior to the
date of vesting thereof.
5.5 The maximum number of Shares which may be reserved for issuance to
any one person pursuant to Options granted under the Plan or under
the Limited Purpose Plan shall not exceed, in the aggregate, 5% of
the issued and outstanding Shares (for purposes hereof, the phrase
"issued and outstanding Shares" excludes any Shares issued pursuant
to the Plan or pursuant to the Limited Purpose Plan over the
preceding one year period).
5.6 An Option is personal to the Optionee and non-assignable (whether by
operation of law or otherwise), except as provided for herein. Upon
any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of an Option contrary to the provisions of the Plan, or upon
the levy of any attachment or similar process upon an Option, the
Option shall, at the election of the Corporation, cease and terminate
and be of no further force or effect whatsoever.
5.7 All Options granted hereunder shall be evidenced by a notification
from the Corporation to the Optionee substantially in the form of
Schedule "1" attached hereto or such other form of agreement as the
Board or the Committee may from time to time approve, which
notification shall be delivered by the Board or the Committee to the
Optionee.
5.8 Notwithstanding anything to the contrary contained in this Plan,
including without limitation the vesting of any Options granted
hereunder, the Optionee shall have no right to exercise such Options
until the first to occur of the following:
(a) an Initial Public Offering; or
(b) the Optionee ceasing to be an Eligible Person pursuant to
Article 6.
5.9 If the Corporation or its shareholders shall enter into an agreement
providing for a Sale and if within six months of such Sale the
employment of the Optionee is terminated by the Corporation or any
Affiliate (or the Optionee does not continue to be a Service Provider
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thereto or director or officer thereof), the Option may be exercised
as to any or all of the Shares forming the subject matter of the
Option in respect of which the Optionee would have been entitled as
if all vesting periods provided for in the grant of such Options
occurring during the two year period following the date of the Sale
had expired at the time of such termination. Such Option may be
exercised either immediately upon the Optionee having received notice
of such termination or at any time up to and including, but not after
5:00 p.m. (Toronto time) on the date which is the earlier of (i) the
date which is 90 days following the date of such termination and (ii)
the Expiry Date.
5.10 Upon the occurrence of (i) an Initial Public Offering; or (ii) a Sale
following which the employment of the Optionee is not terminated by
the Corporation or any Affiliate (or the Optionee does continue to be
a Service Provider thereto or a director or officer thereof), the
Options granted hereunder shall be deemed to continue in full force
and effect upon substantially the same terms and conditions contained
in the Plan save only that the Plan may be amended to reflect an
adjustment in the Optioned Shares so as to apply to the securities
which holders of Shares become entitled to upon the occurrence of
such Initial Public Offering or Sale, or in the event that holders of
Shares do not become entitled to any securities resulting therefrom,
then to make such payments or to pay such other consideration as may
be appropriate in the circumstances in accordance with a good faith
determination by the Board or Committee or by the board of directors
or a committee of the successor entity of the Corporation, as the
case may be.
6 Termination of Employment
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6.1 Subject to Sections 6.2 and 6.3 hereof and to any express resolution
passed by the Committee or the Board with respect to an Option, an
Option and all rights to purchase Shares pursuant thereto shall
expire and terminate immediately upon the Optionee who holds such
Option ceasing to be an Eligible Person.
6.2 Notwithstanding Sections 5.4 and 6.1 hereof and subject to any
express resolution passed by the Committee or the Board or any
specific rights granted to an Eligible Person as set out in the
written option notification delivered by the Corporation to the
Optionee as referred to in Section 5.8 hereof, if an Eligible Person:
(a) ceases to be a director of the Corporation or any
Affiliate (and is not or does not continue to be a Service
Provider thereto or an employee or officer thereof);
(b) ceases to be an officer of the Corporation or any
Affiliate (and is not or does not continue to be a Service
Provider thereto or a director or employee thereof);
(c) ceases to be employed by the Corporation or any Affiliate
(and is not or does not continue to be a Service Provider
thereto or a director or officer thereof); or
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(d) ceases to be a Service Provider to the Corporation or any
Affiliate (and is not or does not continue to be an
employee, director or officer thereof);
(a "Termination") because of the death, permanent disability or retirement (with
the Corporation's consent) of the Eligible Person (collectively the "Events" and
individually, an "Event"), then each Option theretofore granted to such Optionee
which has vested shall be exercisable until the earlier of: (A) the date which
is six months following the date of the Event; and (B) the expiry date of such
Option. Any Option theretofore granted to such Eligible Person which has not
vested at the date of such Event shall immediately terminate and shall not be
exercisable by such Eligible Person.
6.3 Subject to any express resolution posed by the Committee or the Board
or any specific rights granted to an Eligible Person as set out in
the written option notification provided by the Corporation to the
Optionee, in the event of an Eligible Person's Termination for any
reason other than as provided for in Section 6.2, each Option
theretofore granted to such Eligible Person which has vested shall be
exercisable until the earlier of: (A) the date which is 30 days
following the date of such Eligible Person's Termination; and (B) the
expiry date of such Option. Any Option theretofore granted to such
Eligible Person which has not vested at the date of such Eligible
Person's Termination shall immediately terminate and shall not be
exercisable by such Eligible Person.
6.4 For greater certainty, Options shall not be affected by any change of
employment of the Optionee or by the Optionee ceasing to be a
director or officer of the Corporation or any Affiliate provided that
the Optionee continues to be an Eligible Person.
7 Exercise of Options
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7.1 Subject to the provisions of the Plan, an Option may be exercised
from time to time by delivery to the Corporation at its registered
office of a written notice of election to exercise substantially in
the form attached hereto as Schedule 2 addressed to the Secretary of
the Corporation specifying the number of Shares with respect to which
the Option is being exercised and accompanied by payment in full, by
cash or cheque, of the Option Price of the Shares then being
purchased. Subject to any provisions of the Plan to the contrary,
certificates for such Shares shall be issued and delivered to the
Optionee within a reasonable time following the receipt of such
notice and payment.
7.2 Notwithstanding any of the provisions contained in the Plan or in any
Option, the Corporation's obligation to issue Shares to an Optionee
pursuant to the exercise of any Option shall be subject to:
(a) completion of such registration or other qualification of
such Shares or obtaining approval of such governmental or
regulatory authority as the Corporation shall determine to
be necessary or advisable in connection with the
authorization, issuance or sale thereof;
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(b) the receipt from the Optionee of such representations,
warranties, agreements and undertakings as the Corporation
determines to be necessary or advisable in order to
safeguard against the violation of the securities laws of
any jurisdiction; and
(c) the satisfaction of any conditions on exercise prescribed
pursuit to Article 3 hereof.
8 Certain Adjustments
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8.1 In the event that the Shares are at any time changed or affected as a
result of the declaration of a stock dividend thereon or their
sub-division or consolidation, the number of Shares reserved for
Option shall be adjusted accordingly by the Board or the Committee to
such extent as they deem proper in their discretion. In such event,
the number of, and the price payable for, any Shares that are then
subject to Option may also be adjusted by the Board or the Committee
to such extent, if any, as they deem proper in their discretion.
8.2 If at any time after the grant of an Option to any Optionee and prior
to the expiration of the term of such Option, the Shares shall be
reclassified, reorganized or otherwise changed, otherwise than as
specified in Section 8.1 or the Corporation shall consolidate, merge
or amalgamate with or into another corporation (the corporation
resulting or continuing from such consolidation, merger or
amalgamation being herein called the "Successor Corporation") or
shall reorganize in any other manner having the effect of
distributing the assets of the Corporation among its shareholders,
the Optionee shall be entitled to receive upon the subsequent
exercise of his or her Option in accordance with the terms hereof and
shall accept in lieu of the number of Shares to which he or she was
theretofore entitled upon such exercise but for the same aggregate
consideration payable therefor, the aggregate number of shares of the
appropriate class and/or other securities of the Corporation or the
Successor Corporation (as the case may be) and/or other consideration
from the Corporation or the Successor Corporation (as the case may
be) that the Optionee would have been entitled to receive as a result
of such reclassification, reorganization or other change or as a
result of such consolidation, merger, amalgamation or reorganization
if on the record date of such reclassification, reorganization or
other change or the effective date of such consolidation, merger,
amalgamation or reorganization, as the case may be, he or she had
been the registered holder of the number of Shares to which he or she
was theretofore entitled upon such exercise, or in the event that
holders of Shares do not become entitled to any securities resulting
therefrom, then to make such payments or to pay such other
consideration as may be appropriate in the circumstances in
accordance with a good faith determination by the Board or Committee
or by a board of directors or a committee of the successor entity of
the Corporation, as the case may be.
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9 Amendment or Discontinuance of the Plan and Options
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9.1 Subject in all cases to the approval of any stock exchange and/or
over-the-counter market on which the Shares may be listed or admitted
for trading, if required, the Board may amend the Plan (or any Option
granted hereunder) at any time, provided, however, that no such
amendment may materially and adversely affect any Option previously
granted to an Optionee without the consent of the Optionee, except to
the extent required by law.
9.2 Notwithstanding anything contained to the contrary in this Plan or in
any resolution of the Board or the Committee in implementation
thereof, but subject in all cases to the approval of any stock
exchange and/or over-the-counter market on which the Shares may be
listed or admitted for trading, if required:
(a) the Board or the Committee may, by resolution, advance the
date on which any Option may be exercised or extend the
expiration date of any Option. The Board or the Committee
shall not, in the event of any such advancement or
extension, be under any obligation to advance or extend
the date on or by which Options may be exercised by any
other Optionee; and
(b) the Board or the Committee may, by resolution, decide that
any of the provisions set out in Article 6 hereof
concerning the effect of termination of the Optionee's
employment shall not apply to any Optionee for any reason
acceptable to the Board or the Committee, as the case may
be.
9.3 Notwithstanding any other provision of this Plan, but subject in all
cases to the approval of any stock exchange and/or over-the-counter
market on which the Shares may be listed or admitted for trading, if
required, the Board may at any time by resolution terminate this
Plan. In such event, all Options then outstanding and granted to an
Optionee may be exercised by the Optionee for a period of thirty (30)
days after the date on which the Corporation shall have notified all
Optionees of the termination of this Plan, but only to the same
extent as the Optionee could have exercised such Options immediately
prior to the date of such notification.
10 Purchase for Cancellation
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10.1 Subject to applicable law and the rules of any stock exchange and/or
over-the-counter market on which the Shares may be listed or admitted
for trading, the Corporation may, at any time and from time to time,
purchase for cancellation the whole or any part of the Shares at the
lowest price at which, in the opinion of the directors of the
Corporation, such Shares are obtainable. Except where the Corporation
is purchasing or otherwise acquiring Shares issued by it to settle or
compromise a debt or claim asserted by or against the Corporation, to
eliminate fractional Shares, to fulfil the terms of an agreement
under which the Corporation has an option or is obliged to purchase
Shares owned by a current or former director, officer or employee of
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the Corporation, to satisfy the claim of a shareholder who dissents
under Section 185 of the Business Corporations Act (Ontario) or to
comply with an order under Section 248 of the Business Corporations
Act (Ontario), the Shares shall be purchased either:
(a) with the consent of all the outstanding holders of Shares;
or
(b) pursuant to tenders received by the Corporation upon
request for tenders addressed to all the holders of the
Shares at the time outstanding and the Corporation shall
accept only the lowest tenders.
Where, in response to the invitation for tenders, two or more shareholders
submit tenders at the same price and the tenders are accepted by the Corporation
as to part only of the Shares offered, the Corporation shall accept part of the
Shares offered in each tender in proportion as nearly as may be to the total
number of Shares offered in each tender.
10.2 The Corporation has the right, prior to an Initial Public Offering,
without having to obtain the consent of any Optionee or any holder of
Shares, to purchase at any time and from time to time from any or all
Optionees as determined by the Corporation, in its sole discretion,
any or all of the Optioned Shares issued pursuant to the Option at a
price equal to the aggregate of:
(a) the exercise price per Optioned Share as provided for in
Section 5.3; and
(b) the Book Value Per Equity Share (as herein defined) as at
the date of the most recently completed fiscal year of the
Corporation immediately preceding the date of such
purchase, minus the Book Value Per Equity Share as at the
date of the most recently completed fiscal year of the
Corporation immediately preceding the date of the grant of
the option to purchase such Share. The "Book Value Per
Equity Share" at any time shall mean the amount (expressed
in Canadian funds and to be not less than zero) determined
by dividing the book value of the Corporation on a
consolidated basis as set out in its audited financial
statements as at such time by the aggregate of (i) the
aggregate number of issued and outstanding Class B common
shares Class C common shares, Class D common shares and
all other fully participating equity shares of the
Corporation as at such time and (ii) the aggregate number
of Class C common shares, Class D common shares and all
other fully participating equity shares of the Corporation
that would be issuable by the Corporation on the exercise
of all fully vested and unexercised options that are
outstanding at such time, and shall, for greater
certainty, deduct the redemption amount of any special
shares (including, for greater certainty, all redeemable
shares which are not fully participating equity shares) of
the Corporation as at any such time. The determination of
such amount by the board of directors shall be final and
binding.
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11 Miscellaneous Provisions
------------------------
11.1 An Optionee shall not have any rights as a shareholder of the
Corporation with respect to any of the Shares covered by such Option
until the date of issuance of a certificate for Shares upon the
exercise of such Option, in full or in part, and then only with
respect to the Shares represented by such certificate or
certificates. Without in any way limiting the generality of the
foregoing, no adjustment shall be made for dividends or other rights
for which the record date is prior to the date such share certificate
is issued.
11.2 Nothing in the Plans or any Option shall confer upon an Optionee any
right to continue in the employ of the Corporation or any Affiliate,
or affect in any way the right of the Corporation or any Affiliate to
terminate his or her employment at any time; nor shall anything in
the Plan or any Option be deemed or construed to constitute an
agreement, or an expression of intent, on the part of the Corporation
or any Affiliate, to extend the employment of any Optionee beyond the
time which he or she would normally be retired pursuant to the
provisions of any present or future retirement plan of the
Corporation or any Affiliate or any present or future retirement
policy of the Corporation or any Affiliate, or beyond the time at
which he or she would otherwise be retired pursuant to the provisions
of any contract of employment with the Corporation or any Affiliate.
11.3 The Plan and all matters to which reference is made herein shall be
governed by and interpreted in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein.
11.4 The establishment of the Plan shall be subject to: (i) ratification
by the board of directors of the Corporation to be effected by a
resolution passed by the directors of the Corporation; (ii)
acceptance by any relevant regulatory authority, including any stock
exchange and/or over-the-counter market on which the Common Shares
may be listed or admitted for trading; and (iii) completion of the
Corporation's initial public offering of Shares pursuant to an
amended preliminary prospectus of the Corporation dated October 11,
2000. Any Options granted prior to such ratification and acceptance
shall be conditional upon such ratification and acceptance being
given and no such Options may be exercised unless and until such
ratification and acceptance are given.
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SCHEDULE 1
NOTIFICATION OF GRANT OF OPTION
-------------------------------
Dynacare Inc. (the "Corporation") hereby provides this notice to
________________________ (the "Optionee") pursuant to the terms of the stock
option plan (the "Plan") adopted by the Corporation on August 14, 1998, and
amended and restated on November 17, 2000.
Pursuant to the Plan and in consideration of $1.00 paid and services
provided to the Corporation or any Affiliate by the Optionee the Corporation
hereby grants an option (the "Option") to acquire up to __________________
common shares (the "Shares") of the Corporation at an exercise price of
$___________ per Share to the Optionee and as may be described below in
accordance with the terms of the Plan
PURSUANT TO THE TERMS OF THE PLAN, THE OPTIONS GRANTED HEREUNDER
SHALL TERMINATE IMMEDIATELY UPON THE OPTIONEE CEASING TO BE AN ELIGIBLE PERSON.
The granting and exercise of the Option and the issue of Shares are
subject to the terms and conditions of the Plan, all of which are incorporated
into and form an integral part of this agreement.
Subject to the terms of the Plan, the Option shall be exercisable for
seven years from the date of the grant, being ________________ (the "Expiry
Date"), subject to the terms of the Plan, unless otherwise determined by the
Board or the Committee and specifically set out in the Option notification
referred to in Section 5.7 hereof, and the Option shall vest as to 20% on each
of the first, second, third, fourth and fifth anniversary of the date of the
grant; provided that if the Optionee shall, during any Option Period, not
exercise his or her right to purchase all of the Shares purchasable by him or
her during such Option Period (including any Optioned Shares purchasable by him
or her as a result of the operation of this proviso), then, subject to the terms
of the Plan, the Optionee shall have the right, at any time or from time to time
thereafter but prior to the Expiry Date, to purchase such number of Shares which
were purchasable but not purchased by him or her.
Pursuant to the terms of the Plan, the Corporation may, in its sole
discretion, require the Optionee to reimburse the Corporation for any amounts
required to be paid by the Corporation to any taxing or other governmental
authority on behalf of the Optionee or on its own behalf in respect of the grant
of the Options hereunder or the issuance or disposition of the Shares including,
without limitation, excise, employment or income withholding taxes. In lieu
thereof, the grant of the Options and the issuance of the Shares upon the
exercise thereof by the Optionee is conditional upon the Corporation's
reservation, in its discretion, of the right to withhold, consistent with any
applicable law, from any compensation or other amounts payable to the Optionee,
any amounts required to be paid by the Corporation to any taxing or other
governmental authority on behalf of the Optionee or its own behalf under any
federal, state, provincial or local law as a result of the grant or exercise of
the Option or the issuance or disposition of the Shares. To the extent that
14
compensation or other amounts, if any, payable to the Optionee are insufficient
to pay any amounts required to be so paid by the Corporation, the Corporation
may, in its sole discretion, require the Optionee, as a condition to the
exercise of the Option to pay in cash or by certified cheque to the Corporation
an amount sufficient to cover such liability or otherwise make adequate
provision for the Corporation's satisfaction of its obligations under federal,
state, provincial and/or local law, including, without limitation, (i) the
holding by the Corporation of the share certificate to which the Optionee is
entitled upon the exercise of the Option as security for the payment of such
obligation, until cash sufficient to pay that liability has accumulated; (ii) to
retain some or all of the Shares, having a fair market value at the date of the
exercise of the Option which is equal to the amount of the Corporation's
obligations set forth above; or (iii) to direct the Optionee's selling broker to
withhold from the proceeds realized from the sale of the Shares an amount which
is equal to the Corporation's obligations set forth above and to pay such amount
directly to the Corporation.
This agreement shall be binding upon and enure to the benefit of the
Corporation, its successors and assigns and the Optionee and the legal
representatives of his or her estate and any other person who acquires the
Optionee's rights in respect of the Options by bequest or inheritance.
Capitalized terms not defined herein shall have the meanings ascribed
thereto in the Plan.
DATED the _____day of _____
DYNACARE INC.
Per: ___________________________
Per: ___________________________
The Optionee hereby confirms and acknowledges that he or she has not
been induced to enter into this agreement or acquire any Option by expectation
of employment or continued employment with the Corporation or any Affiliate. The
Optionee hereby further confirms and acknowledges receipt of a copy of the Plan.
DATED the _______ day of ____
- ----------------------------- --------------------------
Witness Optionee
--------------------------
PRINT NAME OF OPTIONEE
15
SCHEDULE 2
ELECTION
--------
TO: DYNACARE INC.
Pursuant to the employee stock option plan (the "Plan") of Dynacare
Inc. (the "Corporation") adopted on August 14, 1998, and amended and restated on
November 17, 2000, the undersigned elects to purchase ___________ common shares
(the "Shares") of the Corporation which are subject to an option granted on
______________, ____, and encloses a cheque payable to the Corporation in the
aggregate amount of $_______________ , being $__________ per Share.
The undersigned requests that the Shares be issued in his, her or its
name as follows in accordance with the terms of the Plan:
-----------------------------------------------
(Print Name as Name is to Appear on Share Certificate)
All capitalized terms not defined herein shall have the meanings
ascribed to them in the Plan.
The undersigned acknowledges that he or she has not been induced to
purchase the Shares by expectation of employment or continued employment with
the Corporation or any Affiliate (as defined in the Plan). The undersigned
hereby further confirms and acknowledges receipt of a copy of the Plan.
DATED this ________ day of ______,
- -------------------------------- -------------------------------
Witness Participant
-------------------------------
PRINT NAME OF PARTICIPANT
16