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EXHIBIT 2.2
OLICOM A/S
1996 SHARE INCENTIVE PLAN
1. PURPOSE. The purpose of the Olicom A/S 1996 Share Incentive Plan (the
"Plan") is to advance the interests of Olicom A/S, a corporation organized
under the laws of the Kingdom of Denmark, with its registered office in the
municipality of Lyngby-Taarbaek (the "Company"), by strengthening the ability
of the Company to attract and retain key personnel of high caliber through
encouraging a sense of proprietorship by means of stock ownership. Certain
options issued pursuant to the Plan are intended to qualify as "incentive stock
options" pursuant to Section 422 of the United States Internal Revenue Code of
1986, as amended (the "Code") ("Incentive Options"), while certain other
options issued pursuant to the Plan shall constitute options that are not so
qualified ("Nonqualified Options"). In addition to Incentive Options and
Nonqualified Options, warrants ("Warrants") may also be issued pursuant to the
Plan.
2. DEFINITIONS. As used in this Plan and in any Agreement (as defined
herein), the following terms shall have the indicated meanings, unless the
context otherwise requires:
"Board" means the Board of Directors of the Company.
"Common Shares" means the common shares of the Company, nominal value DKK
0.25 per share.
"Date of Issue" means the date on which an Option is granted or a Warrant
is issued pursuant hereto.
"Fair Market Value" means the closing sale price (or average of the quoted
closing bid and asked prices if there is no closing sale price reported) of the
Common Shares on the date specified as reported by the Nasdaq National Market
(the "NNM") or by the principal national stock exchange on which the Common
Shares are then listed. If there is no reported price information for such
date, the Fair Market Value shall be determined by the reported price
information for the Common Shares on the day nearest preceding such date. If
the Common Shares are not listed on the NNM or any national stock exchange,
Fair Market Value shall be such price as determined in good faith by the Board.
"Optionee" means a person to whom an Option is granted under the Plan or
who has obtained the right to exercise an Option in accordance with the
provisions of the Plan.
"Options" means Incentive Options and Nonqualified Options.
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"Subsidiary" means any now existing or hereinafter organized or acquired
corporation of which more than 50% of the issued and outstanding voting stock
is owned or controlled, directly or indirectly, by the Company or through one
or more Subsidiaries of the Company.
"Warrant Holder" means a person to whom a Warrant is issued under the Plan
or who has obtained the right to exercise a Warrant in accordance with the
provisions of the Plan.
3. SHARES SUBJECT TO THE PLAN. The aggregate amount of shares subject to
purchase or subscription pursuant to Options granted and Warrants issued
pursuant hereto shall not exceed 1,000,000 Common Shares. Any shares subject to
unexercised portions of Options granted or Warrants issued pursuant to the Plan
which shall have terminated, been canceled or expired may again be subject to
Options granted or Warrants issued pursuant hereto.
4. ADMINISTRATION. The Plan shall be administered by the Board. Option and
Warrant agreements (collectively, "Agreements"), in the form as approved by the
Board, and containing such terms and conditions not inconsistent with the
provisions of the Plan as shall have been determined by the Board, may be
executed on behalf of the Company by its Chairman of the Board and Managing
Director, and on behalf of any Subsidiary by its President, Managing Director
or Chief Executive Officer. The Board, from time to time, may adopt rules and
regulations for carrying out the provisions and purposes of the Plan and make
such other determinations, not inconsistent with the terms of the Plan, as the
Board shall deem appropriate. The Board shall have complete authority to (a)
construe, interpret and administer the provisions of the Plan and the
provisions of the Agreements executed pursuant hereto, (b) prescribe, amend and
rescind rules and regulations pertaining to the Plan, and (c) make all other
determinations necessary or deemed advisable in the administration of the Plan.
Notwithstanding the foregoing, the Board may delegate to the Compensation
Committee of the Board the authority to determine the Optionees to whom Options
may be granted and the Warrant Holders to whom Warrants may be issued (the
persons responsible for making such determinations are referred to herein as
the "Committee"). The interpretations and constructions by the Board of any
provision of the Plan shall be final and conclusive, and any proceedings
relating to the foregoing shall occur in Greater Copenhagen.
I. 5. ELIGIBILITY. Incentive Options may be issued pursuant hereto to such
key employees of the Company or its Subsidiaries (including any director who is
also a key employee of the Company or one or more of its Subsidiaries) as shall
be determined by the Committee. Nonqualified Options and Warrants may be issued
pursuant hereto to such employees, managers or directors of the Company or its
Subsidiaries as shall be determined by the Committee. The Board shall determine
the number of Options and Warrants, the consideration for each Warrant, the
exercise price of each Option and Warrant, the vesting and exercise period of
each Option and Warrant, the existence of any window periods during which
Options and Warrants may be exercised, and such other
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terms and conditions of each Option and Warrant as are not inconsistent with
the provisions of this Plan. The Board (or upon delegation of authority to it,
the Committee) shall determine which persons are to be issued Options and
Warrants pursuant hereto, and the number of Common Shares subject to each
Option and Warrant. In addition, the Board may, in its sole discretion, provide
for vesting of Options and Warrants to accelerate upon a change in control of
the Company. In connection with the issuance of Incentive Options, the
aggregate Fair Market Value (determined at the Date of Issue of an Incentive
Option) of the Common Shares with respect to which Incentive Options are
exercisable for the first time by an Optionee during any calendar year (under
all such plans of the Optionee's employer corporation and its parent and
subsidiary corporations, as defined in Section 424 of the Code) shall not
exceed US$100,000 or such other amount as from time to time provided in Section
422(d) of the Code or any successor provision.
6. PURCHASE PRICE FOR WARRANTS. The consideration to be received by
Company in consideration for the issuance of each Warrant issued pursuant
hereto (the "Purchase Price") shall be determined by the Board at the Date of
Issue.
7. EXERCISE PRICE. The subscription price or prices for Common Shares
subject to an Option or Warrant (the "Exercise Price") issued pursuant thereto
shall be determined by the Board at the Date of Issue; provided, however, that
(a) the Exercise Price for any Option shall not be less than the Fair Market
Value of the Common Shares on the Date of Issue, (b) the sum of the Purchase
Price and the Exercise Price for any Warrant shall not be less than the Fair
Market Value of the Common Shares on the Date of Issue, and (c) if the Optionee
is the holder of more than 10% of the total combined voting power of all
classes of shares of the Company or its parent or any of its subsidiaries, as
more fully described in Section 422(b)(6) of the Code or any successor
provision thereof (such shareholder is referred to herein as a "10%
Shareholder"), the Exercise Price for any Incentive Option issued to such
Optionee shall not be less than 110% of the Fair Market Value of the Common
Shares on the Date of Issue.
8. TERM OF OPTIONS AND WARRANTS; LIMITATIONS ON RIGHT TO EXERCISE. Subject
to the provisions of the Company's Articles of Association, as amended from
time to time (the "Articles"), and the Companies Act of the Kingdom of Denmark,
as amended from time to time (the "Companies Act"), (a) Incentive Options
issued pursuant hereto shall not be exercisable (i) more than five years after
the Date of Issue with respect to a 10% Shareholder, or (ii) more than ten
years after the Date of Issue with respect to all persons other than 10%
Shareholders, (b) Nonqualified Options issued pursuant hereto shall not be
exercisable more than ten years after the Date of Issue, and (c) Warrants
issued pursuant hereto shall not be exercisable more than five years after the
Date of Issue. Subject to the provisions of the Articles and the Companies Act,
Nonqualified Options and Warrants issued to non-management members of the Board
or of the board of directors of any Subsidiary shall be exercisable for ten and
five years, respectively, except that in the event of the death or termination
of service of such member as a director of the Company or a Subsidiary,
Nonqualified Options and Warrants issued to
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such a director shall not be exercisable after the expiration of one year
following the date of such member's death or termination (or if shorter, the
remaining term of the Option or Warrant). The Company shall not be required to
issue any fractional shares upon the exercise of any Option or Warrant. No
Optionee or Warrant Holder, or his or her representatives, legatees or
distributees, as the case may be, shall be, or shall be deemed to be, a holder
of any Common Shares subject to an Option or Warrant, as the case may be,
unless and until (x) the Purchase Price of such Warrant has been paid, (y) such
Option or Warrant has been exercised, and (z) the Exercise Price of the Common
Shares in respect of which the Option or Warrant has been exercised has been
paid. Options and Warrants shall be exercisable only by the Optionee or the
Warrant Holder or by a person who has obtained the Optionee's or Warrant
Holder's rights under the Option or Warrant by will or under the laws of
descent and distribution.
9. TERMINATION OF EMPLOYMENT. The Board shall determine at the Date of
Issue what conditions, if any, shall apply to the exercise of an Option or
Warrant issued pursuant hereto in the event that an Optionee or Warrant Holder
ceases to be employed by the Company or a Subsidiary for any reason. In the
event of the death of an Optionee or Warrant Holder while in the employ, or
while serving as a director, of the Company or a Subsidiary, the Option or
Warrant theretofore issued to him or her shall be exercisable by the executor
or administrator of the estate of the deceased Optionee or Warrant Holder (the
"Decedent"), or if such Decedent's estate is not in administration, by the
person or persons to whom the Decedent's rights shall have passed under the
Decedent's will or under the laws of descent and distribution, no later than 12
months following the date of death or such other shorter period as may be
specified in the Agreement, but in no case later than the expiration date of
such Option or Warrant, and then only to the extent that the Decedent was
entitled to exercise such Option or Warrant at the date of his or her death.
Neither the Plan nor any Option or Warrant issued pursuant hereto is intended
to confer upon any Optionee or Warrant Holder any rights with respect to
continuation of employment or other utilization of his or her services by the
Company or a Subsidiary, nor to interfere in any way with his or her right, or
that of his or her employer, to terminate his or her employment or other
services at any time (subject to the terms of any applicable contract or
applicable law). No spouse of an Optionee or Warrant Holder shall have any
rights in any Option or Warrant issued pursuant hereto, except as to rights
pursuant to will or the laws of descent and distribution that a spouse of a
Decedent acquires in an Option or Warrant issued to such Decedent.
10. ADJUSTMENT IN THE EVENT OF CHANGE IN CAPITAL STOCK. In the event of
changes in the outstanding Common Shares of the Company by reason of stock
dividends, recapitalizations, mergers, consolidations, split-ups, combinations
or exchanges of shares and the like, the aggregate number and class of shares
available under the Plan, and the number, class and the price of Common Shares
subject to outstanding Options and Warrants shall be appropriately adjusted by
the Board, whose determination shall be final and conclusive.
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11. EXPIRATION AND TERMINATION OF THE PLAN. The Plan became effective on
March 11, 1996, pursuant to a resolution of the Board on such date, conditioned
on and subject to approval of the Plan by an Annual General Meeting of the
Company's shareholders. Subject to the provisions of the Articles and the
Companies Act, the Plan shall terminate on March 10, 2001, or at such earlier
date as may be determined by the Board or mandated by the Articles or the
Companies Act. Termination of the Plan shall not affect the rights of Optionees
or Warrant Holders under Options and Warrants theretofore issued, and all
Options and Warrants that have not expired shall continue in force and
operation after termination of the Plan, except as same may lapse or be
terminated by their own terms and conditions or as may be provided by the
Articles or the Companies Act.
12. RELATIONSHIP TO ARTICLES OF ASSOCIATION. Pursuant to provisions of the
Articles, the Board has been, and may in the future be, granted the authority
to issue warrants, grant options and issue other instruments that entitle the
holders thereof to subscribe for Common Shares. Notwithstanding anything
contained herein, the action of the Board and of the Annual General Meetings in
authorizing this Plan or any amendment(s) hereto shall not derogate from or
otherwise affect the power of the Board to issue warrants, grant options or
issue other instruments pursuant to the authority granted to the Board in the
Articles (including, without limitation, the authority set forth in Article 8,
Section 2 of the Articles, as in effect on March 8, 1996, for the Board to
issue at any time earlier than May 5, 1997, by one or several stages, as the
Board shall determine, not more than 1,173,320 units of warrants for shares of
DKK 0.25 each).
13. RESTRICTIONS ON ISSUANCE OF SHARES.
(a) The Company shall not be obligated to issue any Common Shares upon the
exercise of any Option or Warrant issued under this Plan unless (i) the offer
and sale of Common Shares with respect to which such Option or Warrant is being
exercised have been registered under applicable securities laws or are exempt
from such registration, (ii) the prior approval of such sale or issuance has
been obtained from any regulatory body having jurisdiction, and (iii) in the
event the Common Shares have been listed on the NNM or any national stock
exchange, the shares with respect to which such Option or Warrant is being
exercised have been duly listed on the NNM or such exchange on which the Common
Shares are then listed, all in accordance with the procedures specified
therefor.
(b) No Incentive Option issued pursuant hereto shall be transferable by
the Optionee other than by will or the laws of descent and distribution.
Nonqualified Options and Warrants may be issued to an affiliate of a person
otherwise permitted to be an Optionee or Warrant Holder pursuant hereto. For
the purposes of the Plan, an "affiliate" of a person shall include any person,
group or entity controlled by, controlling or under common control of such
person.
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14. DETERMINATION OF BREACH OF CONDITIONS. The determination of the Board
as to whether an event has occurred resulting in a forfeiture or a termination
or reduction of the Company's obligations in accordance with the provisions of
the Plan or any Agreement shall be final and conclusive.
15. TAXES. Optionees and Warrant Holders shall be entitled to satisfy the
obligation to pay any amounts required by any governmental entity to be
withheld or otherwise deducted and paid with respect to the exercise of an
Option or Warrant (including, without limitation, all applicable taxes or other
governmental impost or levy) (collectively, "Applicable Taxes"), calculated on
the basis of the rate of taxation applicable to such Optionee or Warrant
Holder, by providing the Company with funds sufficient to enable the Company to
pay such Applicable Taxes or subject to the authority of the Company under the
Articles to repurchase Common Shares, by requiring the Company to retain or to
accept, upon delivery thereof by the Optionee or Warrant Holder, Common Shares
sufficient in value (based on Fair Market Value on the date on which the
Company receives notice of exercise or conversion) to cover the amount of such
Applicable Taxes.
16. AMENDMENT OF THE PLAN. The Board may amend the Plan from time to time
in such respects as it may deem advisable in its sole discretion or in order
that the Options and Warrants issued hereunder shall conform to any change in
applicable laws, in regulations or rulings of administrative agencies, or in
order that Options and Warrants issued or Common Shares acquired upon exercise
thereof may qualify for simplified registration under applicable securities or
other laws.
17. PAYMENT UPON EXERCISE.
(a) Upon the exercise of any Option or Warrant issued hereunder, the
Company may, in its sole discretion, make financing available, from time to
time on such terms and to such Optionees or Warrant Holders as the Board may
determine in its sole discretion, for the purchase of the Common Shares that
may be purchased or subscribed for pursuant to the exercise of such Option or
Warrant. An Optionee or Warrant Holder may pay the Exercise Price of the Common
Shares as to which an Option or Warrant is being exercised by the delivery of
cash or a certified or cashier's check.
(b) Any Option or Warrant issued under the Plan may be exercised by a
broker-dealer acting on behalf of an Optionee or a Warrant Holder, as the case
may be, if (i) the broker-dealer has received from the Optionee, the Warrant
Holder or the Company a fully-executed counterpart of the Agreement evidencing
such Option or Warrant, together with instructions signed by the Optionee or
Warrant Holder, as the case may be, requesting the Company to deliver the
Common Shares subject to such Option or Warrant to the broker-dealer on behalf
of such Optionee or Warrant Holder and specifying the account into which such
shares should be deposited, (ii) adequate provision has been made with respect
to the payment of Applicable Taxes due upon such exercise, and (iii) the
broker-dealer, on the one hand, and the Optionee or Warrant Holder, on the
other
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hand, have otherwise complied with Section 220.3(e)(4) of the Regulation T of
the United States Federal Reserve System, 12 CFR Part 220, or any successor
provision, to the extent applicable.
18. LIABILITY OF THE COMPANY. By accepting any benefits under this Plan,
each Optionee and Warrant Holder, together with each person claiming under or
through such Optionee and Warrant Holder, shall be conclusively deemed to have
indicated acceptance and ratification of, and consented to, any action taken or
made to be taken or made under the Plan by the Company and the Board (and the
Committee). No Optionee or Warrant Holder, or any person claiming under or
through him or her, shall have any right or interest, whether vested or
otherwise, in the Plan or in any Option or Warrant hereunder, contingent or
otherwise, unless and until such Optionee or Warrant Holder shall have complied
with all of the terms, conditions and provisions of the Plan, together with the
Agreement relating thereto. Neither the Company, its directors, officers or
employees, nor any of the Company's Subsidiaries which are in existence or
hereafter come into existence, shall be liable to any Optionee or Warrant
Holder or other person if it is determined for any reason by the United States
Internal Revenue Service or any court having jurisdiction that any Incentive
Options issued hereunder do not qualify for tax treatment as "incentive stock
options" under Section 422 of the Code.
19. APPLICABLE LAW. The obligations of the Company pursuant hereto shall
be governed and construed in accordance with the laws of the Kingdom of
Denmark; provided, however, that the provisions of this Plan relating to
Incentive Options shall be construed in a manner consistent with the treatment
of same as "incentive stock options" pursuant to Section 422 of the Code. In
the event of any conflict between the provisions hereof, on the one hand, and
the provisions of the Companies Act and/or the Articles, on the other hand, the
provisions of the Companies Act and/or the Articles shall be deemed paramount
and controlling.
Signed this 11th day of March, 1996
on behalf of the Board of Directors
/s/ Jan Bech
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Jan Bech, Chairman of the Board
/s/ Lars Stig Nielsen
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Lars Stig Nielsen, Managing Director