EXHIBIT 10.3
ASPREVA PHARMACEUTICALS CORPORATION
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ASPREVA 2002 INCENTIVE STOCK
OPTION PLAN
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ASPREVA PHARMACEUTICALS CORPORATION
ASPREVA 2002 INCENTIVE STOCK OPTION PLAN
(as amended by the board of directors on May 5, 2004,
as amended by the board of directors on December 8, 2004, and
as revised to give effect to a stock split effective February 8, 2005)
1. PURPOSE OF THE PLAN
1.1 PURPOSE OF THIS PLAN. The purpose of this Plan is to promote the
interests of the Corporation by:
(a) furnishing certain directors, officers, employees or consultants of
the Corporation or an Affiliate or other persons as the Compensation
Committee may approve with greater incentive to further develop and
promote the business and financial success of the Corporation;
(b) furthering the identity of interests of persons to whom options may
be granted with those of the shareholders of the Corporation
generally through share ownership in the Corporation; and
(c) assisting the Corporation in attracting, retaining and motivating
its directors, officers, employees and consultants.
The Corporation believes that these purposes may best be effected by granting
Options to acquire Common Shares.
2. DEFINITIONS
2.1 DEFINITIONS. In this Plan, unless there is something in the subject
matter or context inconsistent therewith, capitalized words and
terms will have the following meanings:
(a) "AFFILIATE" means a corporation that is an affiliate of the
Corporation under the Securities Act (British Columbia), as amended
from time to time;
(b) "BOARD OF DIRECTORS" means the board of directors of the Corporation
as constituted from time to time;
(a) "CHANGE IN CONTROL" means:
(i) any merger or consolidation in which voting securities of the
Corporation possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding
securities are transferred to a person or persons different
from the persons holding those securities immediately prior to
such transaction and the composition of the Board of Directors
following such transaction is such that the directors of the
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Corporation prior to the transaction constitute less than
fifty percent (50%) of the Board of Directors membership
following the transaction;
(ii) any acquisition, directly or indirectly, by an person or
related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by,
or is under common control with, the Corporation) of
beneficial ownership of voting securities of the Corporation
possessing more than fifty percent (50%) of the total combined
voting power of the Corporation's outstanding securities;
(iii) any acquisition, directly or indirectly, by a person or
related group of persons of the right to appoint a majority of
the directors of the Corporation or otherwise directly or
indirectly control the management, affairs and business of the
Corporation;
(iv) any sale, transfer or other disposition of all or
substantially all of the assets of the Corporation; and
(v) a complete liquidation or dissolution of the Corporation;
provided however, that a Change in Control shall not be deemed to
have occurred if such Change in Control results solely from the
issuance, in connection with a bona fide financing or series of
financings by the Corporation or any of its Affiliates, of voting
securities of the Corporation or any of its Affiliates or any rights
to acquire voting securities of the Corporation or any of its
Affiliates which are convertible into voting securities;
(c) "COMMON SHARES" means the common shares in the capital of the
Corporation as constituted on the Effective Date, provided that if
the rights of any Participant are subsequently adjusted pursuant to
Article 9 hereof, "Common Shares" thereafter means the shares or
other securities or property which such Participant is entitled to
purchase after given effect to such adjustment;
(d) "COMPENSATION COMMITTEE" meaning ascribed thereto in Section 5.1 of
this Plan;
(e) "CONSULTANT" means any individual, corporation or other person
engaged to provide ongoing valuable services to the Corporation or
an Affiliate;
(f) "CORPORATION" means Aspreva Pharmaceuticals Corporation and includes
any successor corporation thereto;
(g) "EFFECTIVE DATE" has the meaning ascribed thereto by Section 3.1 of
this Plan;
(h) "ELIGIBLE PERSON" means a director, officer, employee or Consultant
of the Corporation or an Affiliate or a person otherwise approved by
the Compensation Committee;
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(i) "EXERCISE PRICE" means the price per Common Share at which a
Participant may purchase Common Shares pursuant to an Option,
provided that if such price is adjusted pursuant to Section 9.1
hereof, "Exercise Price" thereafter means the price per Common Share
at which such Participant may purchase Common Shares pursuant to
such Option after giving effect to such adjustment;
(j) "LEGAL REPRESENTATIVE" has the meaning ascribed thereto by Section
6.7 of this Plan;
(k) "MERGER AND ACQUISITION TRANSACTION" means:
(i) any merger;
(ii) any acquisition;
(iii) any amalgamation;
(iv) any offer for shares of the Corporation which if successful
would entitle the offeror to acquire all of the voting
securities of the Corporation; or
(v) any arrangement or other scheme of reorganization;
that results in a Change in Control;
(l) "OPTIONS" means stock options granted hereunder to purchase Common
Shares from treasury pursuant to the terms and conditions hereof and
as evidenced by an Option Agreement and "Option" means any one of
them;
(m) "OPTION AGREEMENT" means an agreement evidencing an Option, entered
into by and between the Corporation and an Eligible Person;
(n) "OUTSTANDING COMMON SHARES" at the time of any share issuance or
grant of Options means the number of Common Shares that are
outstanding immediately prior to the share issuance or grant of
Options in question, on a non-diluted basis, excluding Common Shares
issued pursuant to share compensation arrangements over the
preceding one-year period, or such other number as may be determined
under the applicable rules and regulations of all regulatory
authorities to which the Corporation is subject, including the Stock
Exchange;
(o) "PARTICIPANT" means a person to whom Options have been granted under
this Plan;
(p) "PLAN" means the Aspreva 2002 Incentive Stock Option Plan, as the
same may from time to time be supplemented or amended and in effect;
(q) "STOCK EXCHANGE" means such stock exchange or other organized market
on which the Common Shares are listed or posted for trading;
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(r) "U.S. EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934,
as amended from time to time;
(s) "U.S. INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986
of the United States, as amended from time to time;
(t) "U.S. NONQUALIFIED STOCK OPTION" means an Option to purchase Common
Shares other than a U.S. Qualified Incentive Stock Option;
(u) "U.S. OPTIONEE" means a Participant who is a citizen or a resident
of the United States (including its territories, possessions and all
areas subject to the jurisdiction); and
(v) "U.S. QUALIFIED INCENTIVE STOCK OPTION" means an Option to purchase
Common Shares with the intention that it qualify as an "incentive
stock option" as that term is defined in Section 422 of the U.S.
Internal Revenue Code, such intention being evidenced by the
resolutions of the Compensation Committee at the time of grant.
3. EFFECTIVE DATE OF PLAN
3.1 EFFECTIVE DATE OF THIS PLAN. The effective date (the "Effective
Date") of this Plan is January 22, 2002, the date on which this Plan was deemed
to be adopted by the Board of Directors.
4. COMMON SHARES SUBJECT TO PLAN
4.1 COMMON SHARES SUBJECT TO THIS PLAN. The aggregate number of Common
Shares in respect of which Options may be granted pursuant to this Plan shall
not exceed 3,531,000. The number of Common Shares in respect of which Options
may be granted pursuant to this Plan may be increased, decreased or fixed by the
Board of Directors, as permitted under the applicable rules and regulations of
all regulatory authorities to which the Corporation is subject, including the
Stock Exchange.
4.2 REGRANTING OF SHARES. Upon the expiry, termination or surrender of
an Option which has not been exercised in full, the number of Common Shares
reserved for issuance under that Option which have not been issued shall become
available for issue for the purpose of additional Options which may be granted
under this Plan.
4.3 RESERVATION OF SHARES. The Board of Directors will reserve for
allotment from time to time out of the authorized but unissued Common Shares
sufficient Common Shares to provide for issuance of all Common Shares which are
issuable under all outstanding Options.
4.4 NO FRACTIONAL SHARES. No fractional Common Shares may be purchased
or issued under this Plan.
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5. ADMINISTRATION OF PLAN
5.1 ADMINISTRATION OF PLAN. The Board of Directors may at any time
appoint a committee (the "Compensation Committee") to, among other things,
interpret, administer and implement this Plan on behalf of the Board of
Directors in accordance with such terms and conditions as the Board of Directors
may prescribe, consistent with this Plan (provided that if at any such time such
a committee has not been appointed by the Board of Directors, this Plan will be
administered by the Board of Directors, and in such event references herein to
the Compensation Committee shall be construed to be a reference to the Board of
Directors). The Board of Directors will take such steps which in its opinion are
required to ensure that the Compensation Committee has the necessary authority
to fulfil its functions under this Plan.
5.2 POWERS OF COMPENSATION COMMITTEE. The Compensation Committee is
authorized, subject to the provisions of this Plan, to establish from time to
time such rules and regulations, make such determinations and to take such steps
in connection with this Plan as in the opinion of the Compensation Committee are
necessary or desirable for the proper administration of this Plan. For greater
certainty, without limiting the generality of the foregoing, the Compensation
Committee will have the power, where consistent with the general purpose and
intent of this Plan and subject to the specific provisions of this Plan and any
approval of the Stock Exchange, if applicable:
(a) to interpret and construe this Plan and any Option Agreement and to
determine all questions arising out of this Plan and any Option
Agreement, and any such interpretation, construction or
determination made by the Compensation Committee will be final,
binding and conclusive for all purposes;
(b) to determine to which Eligible Persons Options are granted, and to
grant, Options;
(c) to determine the number of Common Shares covered by each Option;
(d) to determine the Exercise Price for each Option;
(e) to determine the time or times when Options will be granted, vest
and be exerciseable and to determine when it is appropriate to
accelerate when Options otherwise subject to vesting may be
exercised;
(f) to determine if the Common Shares that are subject to an Option will
be subject to any restrictions or repurchase rights upon the
exercise of such Option including, where applicable, the endorsement
of a legend on any certificate representing Common Shares acquired
on the exercise of any Option to the effect that such Common Shares
may not be offered, sold or delivered except in compliance with the
applicable securities laws and regulations of Canada, the United
States or any other country and if any rights or restrictions exist
they will be described in the applicable option agreement;
(g) to determine the expiration date for each Option and to extend the
period of time for which any Option is to remain exerciseable in
appropriate circumstances, including, without limitation, in the
event of the Participant's cessation of service
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or in the event of a prolonged Corporation-mandated trading
restriction period, provided that such date may not be later than
the earlier of (A) the date which is the tenth anniversary of the
date on which such Option is granted, and (B) the latest date
permitted under the applicable rules and regulations of all
regulatory authorities to which the Corporation is subject,
including the Stock Exchange;
(h) to prescribe the form of the instruments relating to the grant,
exercise and other terms of Options;
(i) to enter into an Option Agreement evidencing each Option which will
incorporate such terms as the Compensation Committee in its
discretion deems consistent with this Plan;
(j) to take such steps and require such documentation from Eligible
Persons which in its opinion are necessary or desirable to ensure
compliance with the rules and regulations of the Stock Exchange and
all applicable laws;
(k) to adopt such modifications, procedures and subplans as may be
necessary or desirable to comply with the provisions of the laws of
Canada, the United States and other countries in which the
Corporation or its Affiliates may operate to ensure the viability
and maximization of the benefits from the Options granted to
Participants residing in such countries and to meet the objectives
of this Plan; and
(l) to determine such other matters as provided for herein.
6. GRANT OF OPTIONS
Subject to the rules set out below, the Compensation Committee (or
in the case of any proposed Participant who is a member of the Compensation
Committee, the Board of Directors) may from time to time grant to any Eligible
Person one or more Options as the Compensation Committee deems appropriate:
6.1 DATE OPTION GRANTED. The date on which an Option will be deemed to
have been granted under this Plan will be the date on which the Compensation
Committee authorizes the grant of such Option or such other date as may be
specified by the Compensation Committee at the time of such authorization.
6.2 NUMBER OF COMMON SHARES/MAXIMUM GRANT. The number of Common Shares
that may be purchased under any Option will be determined by the Compensation
Committee, provided that the number of Common Shares reserved for issuance to
any one person pursuant to this Plan shall not, in aggregate, exceed 5% of the
total number of Outstanding Common Shares. A Participant who holds Options at
the time of granting an Option, may hold more than one Option.
6.3 EXERCISE PRICE. The Exercise Price per Common Share under each
Option will be the fair market value of such shares at the time of grant,
expressed in terms of money, as determined by the Compensation Committee, in its
sole discretion, provided that such price may
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not be less than the lowest price permitted under the applicable rules and
regulations of all regulatory authorities to which the Corporation is subject,
including the Stock Exchange.
6.4 OPTION AGREEMENTS. Each Option will be evidenced by an Option
Agreement which incorporates such terms and conditions as the Compensation
Committee in its discretion deems appropriate and consistent with the provisions
of this Plan (and the execution and delivery by the Corporation of an Option
Agreement with a Participant shall be conclusive evidence that such Option
Agreement incorporates terms and conditions approved by the Compensation
Committee and is consistent with the provisions of this Plan). Each Option
Agreement will be executed by the Participant to whom the Option is granted and
on behalf of the Corporation by any member of the Compensation Committee or any
officer of the Corporation or such other person as the Compensation Committee
may designate for such purpose.
6.5 TERM OF OPTIONS. Each Option will expire on the earlier of:
(a) the date determined by the Compensation Committee and specified in
the Option Agreement pursuant to which such Option is granted,
provided that such date may not be later than the earlier of (A) the
date which is the tenth anniversary of the date on which such Option
is granted, and (B) the latest date permitted under the applicable
rules and regulations of all regulatory authorities to which the
Corporation is subject, including the Stock Exchange;
(b) in the event the Participant ceases to be an Eligible Person for any
reason, other than the death of the Participant or the termination
of the Participant for cause, such period of time after the date on
which the Participant ceases to be an Eligible Person as may be
specified by the Compensation Committee, which date shall not exceed
three months following the termination of the Participant's
employment with the Corporation or in the case of options granted to
a director or Consultant, three months following the Participant
ceasing to be a director or a Consultant, unless the Compensation
Committee otherwise determines, and which period will be specified
in the Option Agreement with the Participant with respect to such
Option;
(c) in the event of the termination of the Participant as a director,
officer, employee or Consultant of the Corporation or an Affiliate
for cause, the date of such termination;
(d) in the event of the death of a Participant prior to: (A) the
Participant ceasing to be an Eligible Person; or (B) the date which
is the number of days specified by the Compensation Committee
pursuant to subparagraph (b) above from the date on which the
Participant ceased to be an Eligible Person; the date which is one
year after the date of death of such Participant or such other date
as may be specified by the Compensation Committee and which period
will be specified in the Option Agreement with the Participant with
respect to such Option; and
(e) notwithstanding the foregoing provisions of subparagraphs (b), (c)
and (d) of this Section 6.5, the Compensation Committee may, subject
to regulatory approval, at
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any time prior to expiry of an Option extend the period of time
within which an Option may be exercised by a Participant who has
ceased to be an Eligible Person, but such an extension shall not be
granted beyond the original expiry date of the Option as provided
for in subparagraph (a) above.
Notwithstanding the foregoing, except as expressly permitted by the Compensation
Committee, all Options will cease to vest as at the date upon which the
Participant ceases to be an Eligible Person.
6.6 CHANGE IN STATUS. A change in the status, office, position or duties
of a Participant from the status, office, position or duties held by such
Participant on the date on which the Option was granted to such Participant will
not result in the termination of the Option granted to such Participant provided
that such Participant remains a director, officer, employee or Consultant of the
Corporation or an Affiliate.
6.7 NON-TRANSFERABILITY OF OPTIONS. Each Option Agreement will provide
that the Option granted thereunder is not transferable or assignable and may be
exercised only by the Participant or, in the event of the death of the
Participant or the appointment of a committee or duly appointed attorney of the
Participant or of the estate of the Participant on the grounds that the
Participant is incapable, by reason of physical or mental infirmity, of managing
their affairs, the Participant's legal representative or such committee or
attorney, as the case may be (the "Legal Representative").
6.8 REPRESENTATIONS AND COVENANTS OF PARTICIPANTS. Each Option Agreement
will contain representations and covenants of the Participant that:
(a) the Participant is a director, officer, employee, or Consultant of
the Corporation or an Affiliate or a person otherwise approved as an
"Eligible Person" under this Plan by the Compensation Committee;
(b) the Participant has not been induced to enter into such Option
Agreement by the expectation of employment or continued employment
with the Corporation or an Affiliate;
(c) the Participant is aware that the grant of the Option and the
issuance by the Corporation of Common Shares thereunder are exempt
from the obligation under applicable securities laws to file a
prospectus or other registration document qualifying the
distribution of the Options or the Common Shares to be distributed
thereunder under any applicable securities laws;
(d) upon each exercise of an Option, the Participant, or the Legal
Representative of the Participant, as the case may be, will, if
requested by the Corporation, represent and agree in writing that
the person is, or the Participant was, a director, officer, employee
or Consultant of the Corporation or an Affiliate or a person
otherwise approved as an "Eligible Person" under this Plan by the
Compensation Committee and has not been induced to purchase the
Common Shares by expectation of employment or continued employment
with the Corporation or an Affiliate, and
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that such person is not aware of any commission or other
remuneration having been paid or given to others in respect of the
trade in the Common Shares; and
(e) if the Participant or the Legal Representative of the Participant
exercises the Option, the Participant or the Legal Representative,
as the case may be, will prior to and upon any sale or disposition
of any Common Shares purchased pursuant to the exercise of the
Option, comply with all applicable securities laws and all
applicable rules and regulations of all regulatory authorities to
which the Corporation is subject, including the Stock Exchange, and
will not offer, sell or deliver any of such Common Shares, directly
or indirectly, in the United States or to any citizen or resident
of, or any Corporation, partnership or other entity created or
organized in or under the laws of, the United States, or any estate
or trust the income of which is subject to United States federal
income taxation regardless of its source, except in compliance with
the securities laws of the United States.
6.9 PROVISIONS RELATING TO SHARE ISSUANCES. Each Option Agreement will
contain such provisions as in the opinion of the Compensation Committee are
required to ensure that no Common Shares are issued on the exercise of an Option
unless the Compensation Committee is satisfied that the issuance of such Common
Shares will be exempt from all registration or qualification requirements of
applicable securities laws and will be permitted under the applicable rules and
regulations of all regulatory authorities to which the Corporation is subject,
including the Stock Exchange. In particular, if required by any regulatory
authority to which the Corporation is subject, including the Stock Exchange, an
Option Agreement may provide that shareholder approval to the grant of an Option
must be obtained prior to the exercise of the Option or to the amendment of the
Option Agreement.
7. U.S. QUALIFIED INCENTIVE STOCK OPTION PROVISIONS
To the extent required by Section 422 of the U.S. Internal Revenue
Code, U.S. Qualified Incentive Stock Options shall be subject to the following
additional terms and conditions and if there is any conflict between the terms
of this Article and other provisions under this Plan, the provisions under this
Article shall prevail:
7.1 ELIGIBLE EMPLOYEES. All classes of employees of the Corporation or
one of its parent corporations or subsidiary corporations may be granted U.S.
Qualified Incentive Stock Options. U.S. Qualified Incentive Stock Options shall
only be granted to U.S. Optionees who are, at the time of grant, officers, key
employees or directors of the Corporation or one of its parent corporations or
subsidiary corporations (provided, for purposes of this Article 7 only, such
directors are then also officers or key employees of the Corporation or one of
its parent corporations or subsidiary corporations). For purposes of this
Article 7, "parent corporation" and "subsidiary corporation" shall have the
meanings attributed to those terms for the purposes of Section 422 of the U.S.
Internal Revenue Code. Any director of the Corporation who is a U.S. Optionee
shall be ineligible to vote upon the granting of such Option; and for greater
certainty, contractors of the Corporation or subsidiary corporations may not be
granted U.S. Qualified Incentive Stock Options.
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7.2 DOLLAR LIMITATION. To the extent the aggregate fair market value
(determined as of the grant date) of Common Shares with respect to which U.S.
Qualified Incentive Stock Options are exercisable for the first time by a U.S.
Optionee during any calendar year (under this Plan and all other stock option
plans of the Corporation) exceeds U.S. $100,000, such portion in excess of U.S.
$100,000 shall be treated as a U.S. Nonqualified Stock Option. In the event the
U.S. Optionee holds two or more such Options that become exercisable for the
first time in the same calendar year, such limitation shall be applied on the
basis of the order in which such Options are granted.
7.3 10% SHAREHOLDERS. If any U.S. Optionee to whom an U.S. Qualified
Incentive Stock Option is to be granted under this Plan at the time of the grant
of such U.S. Qualified Incentive Stock Option is the owner of shares possessing
more than ten percent (10%) of the total combined voting power of all classes of
shares of the Corporation, then the following special provisions shall be
applicable to the U.S. Qualified Incentive Stock Option granted to such
individual:
(i) the Exercise Price (per Common Share) subject to such U.S. Qualified
Incentive Stock Option shall not be less than one hundred ten
percent (110%) of the fair market value of one Common Share at the
time of grant; and
(ii) for the purposes of this Article 7 only, the option exercise period
shall not exceed five (5) years from the date of grant.
The determination of 10% ownership shall be made in accordance with Section 422
of the U.S. Internal Revenue Code.
7.4 EXERCISABILITY. To qualify for U.S. Qualified Incentive Stock Option
tax treatment, an Option designated as a U.S. Qualified Incentive Stock Option
must be exercised within three months after termination of employment for
reasons other than death, except that, in the case of termination of employment
due to total disability, such Option must be exercised within one year after
such termination. Employment shall not be deemed to continue beyond the first 90
days of a leave of absence unless the U.S. Optionee's reemployment rights are
guaranteed by statute or contract. For purposes of this Section 7.4, "total
disability" shall mean a mental or physical impairment of the U.S. Optionee
which is expected to result in death or which has lasted or is expected to last
for a continuous period of 12 months or more and which causes the U.S. Optionee
to be unable, in the opinion of the Corporation and two independent physicians,
to perform his or her duties for the Corporation and to be engaged in any
substantial gainful activity. Total disability shall be deemed to have occurred
on the first day after the Corporation and the two independent physicians have
furnished their opinion of total disability to the Compensation Committee.
7.5 TAXATION OF U.S. QUALIFIED INCENTIVE STOCK OPTIONS. In order to
obtain certain tax benefits afforded to U.S. Qualified Incentive Stock Options
under Section 422 of the U.S. Internal Revenue Code, the U.S. Optionee must hold
the Common Shares issued upon the exercise of a U.S. Qualified Incentive Stock
Option for two years after the date of grant of the U.S. Qualified Incentive
Stock Option and one year from the date of exercise. A U.S. Optionee
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may be subject to U.S. alternative minimum tax at the time of exercise of a U.S.
Qualified Incentive Stock Option. The Compensation Committee may require a U.S.
Optionee to give the Corporation prompt notice of any disposition of shares
acquired by the exercise of a U.S. Qualified Incentive Stock Option prior to the
expiration of such holding periods.
7.6 TRANSFERABILITY. No U.S. Qualified Incentive Stock Option granted
under this Plan may be assigned or transferred by the U.S. Optionee other than
by will or by the laws of descent and distribution, and during the U.S.
Optionee's lifetime, such U.S. Qualified Incentive Stock Option may be exercised
only by the U.S. Optionee.
7.7 COMPENSATION COMMITTEE GOVERNANCE IF U.S. REGISTRANT. If and so long
as the Common Shares are registered under Section 12(b) or 12(g) of the U.S.
Securities Exchange Act, the Board of Directors will consider in selecting the
members of the Compensation Committee, with respect to any persons subject or
likely to become subject to Section 16 of the U.S. Securities Exchange Act, the
provisions regarding "nonemployee directors" as contemplated by Rule 16b-3 under
the U.S. Securities Exchange Act.
7.8 EXERCISE PRICE. Notwithstanding Section 6.3, no U.S. Qualified
Incentive Stock Option granted under the Plan shall have an Exercise Price less
than the fair market value of the underlying Common Shares at the date of grant
of such Option, as determined at such time in good faith by the Board or
Directors or the Compensation Committee, as the case may be.
7.9 APPROVAL BY SHAREHOLDERS. No U.S. Qualified Incentive Stock Option
granted to a U.S. Optionee under this Plan shall become exercisable unless and
until this Plan shall have been approved by the shareholders of the Corporation
within 12 months of approval by the Board of Directors of the Corporation.
7.10 OPTION AGREEMENTS. Each Option will be evidenced by an Option
Agreement which incorporates such terms and conditions as the Compensation
Committee in its discretion deems appropriate and consistent with the provisions
of this Plan (and the execution and delivery by the Corporation of an Option
Agreement with a Participant shall be conclusive evidence that such Option
Agreement incorporates terms and conditions approved by the Compensation
Committee and is consistent with the provisions of this Plan). Each Option
Agreement will be executed by the Participant to whom the Option is granted and
on behalf of the Corporation by any member of the Compensation Committee or any
officer of the Corporation or such other person as the Compensation Committee
may designate for such purpose. Each Option Agreement will specify the reasons
for the Corporation granting Options to such Participant.
8. EXERCISE OF OPTIONS
8.1 EXERCISE OF OPTIONS. Subject to the terms and conditions of this
Plan, the Compensation Committee may impose such limitations or conditions on
the exercise or vesting of any Option as the Compensation Committee in its
discretion deems appropriate, including limiting the number of Common Shares for
which any Option may be exercised during any period as may be specified by the
Compensation Committee and which number of Common Shares for which such Option
may be exercised in any period will be specified in the Option Agreement with
respect to such Option. Each Option Agreement will provide that the Option
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granted thereunder may be exercised only by notice signed by the Participant or
the Legal Representative of the Participant and accompanied by full payment for
the Common Shares being purchased. Such consideration may be paid in any
combination of the following:
(a) cash, bank draft or certified cheque; or
(b) such other consideration as the Compensation Committee may permit
consistent with applicable laws.
As soon as practicable after any exercise of an Option, a certificate or
certificates representing the Common Shares in respect of which such Option is
exercised will be delivered by the Corporation to the Participant.
8.2 WITHHOLDING TAX. The Participant will be solely responsible for
paying any applicable withholding taxes arising from the grant, vesting or
exercise of any Option and payment is to be made in a manner satisfactory to the
Corporation. Notwithstanding the foregoing, the Corporation will have the right
to withhold from any Option or any Common Shares issuable pursuant to an Option
or from any cash amounts otherwise due or to become due from the Corporation to
the Participant, an amount equal to any such taxes.
8.3 CONDITIONS. Notwithstanding any of the provisions contained in this
Plan or in any Option Agreement, the Corporation's obligation to issue Common
Shares to a Participant pursuant to the exercise of an Option will be subject
to, if applicable:
(a) completion of such registration or other qualification of such
Common Shares or obtaining approval of such governmental authority
as the Corporation will determine to be necessary or advisable in
connection with the authorization, issuance or sale thereof;
(b) the admission of such Common Shares to listing or quotation on the
Stock Exchange; and
(c) the receipt from the Participant of such representations, agreements
and undertakings, including as to future dealings in such Common
Shares, as the Company or its counsel determines to be necessary or
advisable in order to safeguard against the violation of the
securities laws of any jurisdiction.
9. SUSPENSION, AMENDMENT OR TERMINATION OF PLAN
9.1 SUSPENSION, AMENDMENT OR TERMINATION OF PLAN. This Plan will
terminate on the tenth anniversary of the Effective Date. The Compensation
Committee will have the right at any time to suspend, amend or terminate this
Plan in any manner including, without limitation, to reflect any requirements of
any regulatory authorities to which the Corporation is subject, including the
Stock Exchange, and on behalf of the Corporation agree to any amendment to any
Option Agreement provided that the Compensation Committee in its discretion
deems such amendment consistent with the terms of this Plan and all procedures
and necessary approvals required under the applicable rules and regulations of
all regulatory authorities to which the
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Corporation is subject are complied with and obtained, but the Compensation
Committee will not have the right to:
(a) affect in a manner that is adverse or prejudicial to, or that
impairs, the benefits and rights of any Participant under any Option
previously granted under this Plan (except as permitted pursuant to
Article 10 and except for the purpose of complying with applicable
securities laws or the bylaws, rules and regulations of any
regulatory authority to which the Corporation is subject, including
the Stock Exchange);
(b) decrease the number of Common Shares which may be purchased pursuant
to any Option (except as permitted pursuant to Article 10) without
the consent of such Participant;
(c) increase the Exercise Price at which Common Shares may be purchased
pursuant to any Option (except as permitted pursuant to Article 10)
without the consent of such Participant;
(d) extend the term of any Option beyond a period of ten years or the
latest date permitted under the applicable rules and regulations of
all regulatory authorities to which the Corporation is subject,
including the Stock Exchange;
(e) grant any Option if this Plan is suspended or has been terminated;
or
(f) change or adjust any outstanding U.S. Qualified Incentive Stock
Option without the consent of the Participant if such change or
adjustment would constitute a "modification" that would cause such
U.S. Qualified Incentive Stock Option to fail to continue to qualify
as a U.S. Qualified Incentive Stock Option.
9.2 POWERS OF COMPENSATION COMMITTEE SURVIVE TERMINATION. The full
powers of the Compensation Committee as provided for in this Plan will survive
the termination of this Plan until all Options have been exercised in full or
have otherwise expired.
10. ADJUSTMENTS
10.1 ADJUSTMENTS. Appropriate adjustments in the number of Common Shares
subject to this Plan, as regards Options granted or to be granted, in the number
of Common Shares optioned and the applicable Exercise Price will be conclusively
determined by the Compensation Committee to give effect to adjustments in the
number of Common Shares resulting from subdivisions, consolidations,
substitutions, or reclassifications of the Common Shares, the payment of stock
dividends by the Corporation (other than dividends in the ordinary course) or
other relevant changes in the capital of the Corporation or from a proposed
merger, amalgamation or other corporate arrangement or reorganization involving
the exchange or replacement of Common Shares of the Corporation for those in
another corporation. Any dispute that arises at any time with respect to any
such adjustment will be conclusively determined by the Compensation Committee,
and any such determination will be binding on the Corporation, the Participant
and all other affected parties.
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10.2 MERGER AND ACQUISITION TRANSACTION. In the event of a Merger and
Acquisition Transaction or proposed Merger and Acquisition Transaction, the
Compensation Committee, at its option, may do any of the following:
(a) the Compensation Committee may, in a fair and equitable manner,
determine the manner in which all unexercised option rights granted
under this Plan will be treated including, without limitation,
requiring the acceleration of the time for the exercise of such
rights by the Participants, the time for the fulfilment of any
conditions or restrictions on such exercise, and the time for the
expiry of such rights; or
(b) the Compensation Committee or any corporation which is or would be
the successor to the Corporation or which may issue securities in
exchange for Common Shares upon the Merger and Acquisition
Transaction becoming effective may offer any Participant the
opportunity to obtain a new or replacement option over any
securities into which the Common Shares are changed or are
convertible or exchangeable, on a basis proportionate to the number
of Common Shares under option and the Exercise Price (and otherwise
substantially upon the terms of the Option being replaced, or upon
terms no less favourable to the Participant) including, without
limitation, the periods during which the Option may be exercised and
expiry dates; and in such event, the Participant shall, if he
accepts such offer, be deemed to have released his Option over the
Common Shares and such Option shall be deemed to have lapsed and be
cancelled; or
(c) the Compensation Committee may commute for or into any other
security or any other property or cash, any Option that is still
capable of being exercised, upon giving to the Participant to whom
such Option has been granted at least 30 days written notice of its
intention to commute such Option, and during such period of notice,
the Option, to the extent it has not been exercised, may be
exercised by the Participant without regard to any vesting
conditions attached thereto; and on the expiry of such period of
notice, the unexercised portion of the Option shall lapse and be
cancelled.
Section 10.1 and subsections (a), (b) and (c) of this Section 10.2 are intended
to be permissive and may be utilized independently or successively in
combination or otherwise, and nothing therein contained shall be construed as
limiting or affecting the ability of the Compensation Committee to deal with
Options in any other manner. All determinations by the Compensation Committee
under this Section will be final, binding and conclusive for all purposes.
10.3 LIMITATIONS. The grant of Options under this Plan will in no way
affect the Corporation's right to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, amalgamate, reorganize,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets or engage in any like transaction.
10.4 NO FRACTIONAL SHARES. No adjustment or substitution provided for in
this Article 10 will require the Corporation to issue a fractional share in
respect of any Option and the total substitution or adjustment with respect to
each Option will be limited accordingly.
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11. GENERAL
11.1 NO RIGHTS AS SHAREHOLDER. Nothing herein or otherwise shall be
construed so as to confer on any Participant any rights as a shareholder of the
Corporation with respect to any Common Shares reserved for the purpose of any
Option.
11.2 NO EFFECT ON EMPLOYMENT. Nothing in this Plan or any Option
Agreement will confer upon any Participant any right to continue in the employ
of or under contract with the Corporation or an Affiliate or affect in any way
the right of the Corporation or any such Affiliate to terminate his or her
employment at any time or terminate his or her consulting contract; nor will
anything in this Plan or any Option Agreement be deemed or construed to
constitute an agreement, or an expression of intent, on the part of the
Corporation or any such Affiliate to extend the employment of any Participant
beyond the time that he or she would normally be retired pursuant to the
provisions of any present or future retirement plan of the Corporation or an
Affiliate or any present or future retirement policy of the Corporation or an
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
an Affiliate. Neither any period of notice nor any payment in lieu thereof upon
termination of employment shall be considered as extending the period of
employment for the purposes of the Plan.
11.3 NO FETTERING OF DIRECTORS' DISCRETION. Nothing contained in this
Plan will restrict or limit or be deemed to restrict or limit the right or power
of the Board of Directors in connection with any allotment and issuance of
Common Shares which are not allotted and issued under this Plan including,
without limitation, with respect to other compensation arrangements.
11.4 APPLICABLE LAW. The Plan and any Option Agreement granted hereunder
will be governed, construed and administered in accordance with the laws of the
Province of British Columbia and the laws of Canada applicable therein.
11.5 INTERPRETATION. References herein to any gender include all genders
and to the plural includes the singular and vice versa. The division of this
Plan into Sections and Articles and the insertion of headings are for
convenience of reference only and will not affect the construction or
interpretation of this Plan.
11.6 REFERENCE. This Plan may be referred to as the "Aspreva 2002
Incentive Stock Option Plan".