EXHIBIT 4.7
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TLC VENTURES CORP.
STOCK OPTION PLAN
EFFECTIVE DATE: APRIL 29, 2004
Approved by the Board of
Directors on April 29, 2004.
Approved by the
Shareholders on May 26, 2004.
TABLE OF CONTENTS
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Page
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SECTION 1 DEFINITIONS AND INTERPRETATION......................................1
1.1 Definitions..........................................................1
1.2 Choice of Law........................................................4
1.3 Headings.............................................................4
SECTION 2 GRANT OF OPTIONS....................................................4
2.1 Grant of Options.....................................................4
2.2 Record of Option Grants..............................................5
2.3 Effect of Plan.......................................................5
SECTION 3 PURPOSE AND PARTICIPATION...........................................5
3.1 Purpose of Plan......................................................5
3.2 Participation in Plan................................................5
3.3 Limits on Option Grants..............................................5
3.4 Notification of Grant................................................6
3.5 Copy of Plan.........................................................6
3.6 Limitation on Service................................................6
3.7 No Obligation to Exercise............................................7
3.8 Agreement............................................................7
3.9 Notice...............................................................7
3.10 Representation to TSX-VN.............................................7
SECTION 4 NUMBER OF SHARES UNDER PLAN.........................................7
4.1 Board to Approve Issuance of Shares..................................7
4.2 Number of Shares.....................................................7
4.3 Fractional Shares....................................................7
SECTION 5 TERMS AND CONDITIONS OF OPTIONS.....................................8
5.1 Exercise Period of Option............................................8
5.2 Number of Shares Under Option........................................8
5.3 Exercise Price of Option.............................................8
5.4 Termination of Option................................................8
5.5 Vesting of Option and Acceleration...................................9
5.6 Additional Terms.....................................................9
SECTION 6 TRANSFERABILITY OF OPTIONS.........................................10
6.1 Non-transferable....................................................10
6.2 Death of Option Holder..............................................10
6.3 Disability of Option Holder.........................................10
6.4 Disability and Death of Option Holder...............................10
6.5 Vesting.............................................................10
6.6 Deemed Non-Interruption of Engagement...............................10
SECTION 7 EXERCISE OF OPTION.................................................11
7.1 Exercise of Option..................................................11
7.2 Issue of Share Certificates.........................................11
7.3 No Rights as Shareholder............................................11
SECTION 8 ADMINISTRATION.....................................................11
8.1 Board or Committee..................................................11
8.2 Appointment of Committee............................................11
8.3 Quorum and Voting...................................................11
8.4 Powers of Committee.................................................12
8.5 Administration by Committee.........................................12
8.6 Interpretation......................................................12
SECTION 9 APPROVALS AND AMENDMENT............................................13
9.1 Shareholder Approval of Plan........................................13
9.2 Amendment of Option or Plan.........................................13
SECTION 10 CONDITIONS PRECEDENT TO ISSUANCE OF OPTIONS AND SHARES............13
10.1 Compliance with Laws................................................13
10.2 Obligation to Obtain Regulatory Approvals...........................13
10.3 Inability to Obtain Regulatory Approvals............................13
SECTION 11 ADJUSTMENTS AND TERMINATION.......................................14
11.1 Termination of Plan.................................................14
11.2 No Grant During Suspension of Plan..................................14
11.3 Alteration in Capital Structure.....................................14
11.4 Triggering Events...................................................14
11.5 Notice of Termination by Triggering Event...........................15
11.6 Determinations to be Made By Committee..............................15
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STOCK OPTION PLAN
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SECTION 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
As used herein, unless there is something in the subject matter or context
inconsistent therewith, the following terms shall have the meanings set forth
below:
(a) "Administrator" means such Executive or Employee of the Company as may
be designated as Administrator by the Committee from time to time, if
any.
(b) "Associate" means, where used to indicate a relationship with any
person:
(i) any relative, including the spouse of that person or a
relative of that person's spouse, where the relative has the
same home as the person;
(ii) any partner, other than a limited partner, of that person;
(iii) any trust or estate in which such person has a substantial
beneficial interest or as to which such person serves as
trustee or in a similar capacity; and
(iv) any corporation of which such person beneficially owns or
controls, directly or indirectly, voting securities carrying
more than 10% of the voting rights attached to all outstanding
voting securities of the corporation.
(c) "Black-Out" means a restriction imposed by the Company on all or any of
its directors, officers, employees, insiders or persons in a special
relationship whereby they are to refrain from trading in the Company's
securities until the restriction has been lifted by the Company.
(d) "Board" means the board of directors of the Company.
(e) "Change of Control" means an occurrence when either:
(i) a Person or Entity, other than the current "control person" of
the Company (as that term is defined in the SECURITIES ACT),
becomes a "control person" of the Company; or
(ii) a majority of the directors elected at any annual or
extraordinary general meeting of shareholders of the Company
are not individuals nominated by the Company's then-incumbent
Board.
(f) "Committee" means a committee of the Board appointed in accordance with
this Plan or if no such committee is appointed, the Board itself.
(g) "Company" means TLC Ventures Corp.
(h) "Consultant" means an individual who:
(i) is engaged to provide, on an ongoing BONA FIDE basis,
consulting, technical, management or other services to the
Company or any Subsidiary other than services provided in
relation to a "distribution" (as that term is described in the
SECURITIES ACT);
(ii) provides the services under a written contract between the
Company or any Subsidiary and the individual or a Consultant
Entity (as defined in clause (h)(v) below);
(iii) in the reasonable opinion of the Company, spends or will spend
a significant amount of time and attention on the affairs and
business of the Company or any Subsidiary; and
(iv) has a relationship with the Company or any Subsidiary that
enables the individual to be knowledgeable about the business
and affairs of the Company or is otherwise permitted by
applicable Regulatory Rules to be granted Options as a
Consultant or as an equivalent thereof,
and includes:
(v) a corporation of which the individual is an employee or
shareholder or a partnership of which the individual is an
employee or partner (a "Consultant Entity"); or
(vi) an RRSP or RRIF established by or for the individual under
which he or she is the beneficiary.
(i) "Disability" means a medically determinable physical or mental
impairment expected to result in death or
to last for a continuous period of not less than 12 months, and which
causes an individual to be unable to engage in any substantial gainful
activity, or any other condition of impairment that the Committee,
acting reasonably, determines constitutes a disability.
(j) "Employee" means:
(i) an individual who works full-time or part-time for the Company
or any Subsidiary and such other individual as may, from time
to time, be permitted by applicable Regulatory Rules to be
granted Options as an employee or as an equivalent thereto; or
(ii) an individual who works for the Company or any Subsidiary
either full-time or on a continuing and regular basis for a
minimum amount of time per week providing services normally
provided by an employee and who is subject to the same control
and direction by the Company or any Subsidiary over the
details and methods of work as an employee of the Company or
any Subsidiary, but for whom income tax deductions are not
made at source,
and includes:
(iii) a corporation wholly-owned by such individual; and
(iv) any RRSP or RRIF established by or for such individual under
which he or she is the beneficiary.
(k) "Executive" means an individual who is a director or officer of the
Company or a Subsidiary, and includes:
(i) a corporation wholly-owned by such individual; and
(ii) any RRSP or RRIF established by or for such individual under
which he or she is the beneficiary.
(l) "Exercise Notice" means the written notice of the exercise of an
Option, in the form set out as Schedule "B" hereto, duly executed by
the Option Holder.
(m) "Exercise Period" means the period during which a particular Option may
be exercised and is the period from and including the Grant Date
through to and including the Expiry Time on the Expiry Date provided,
however, that no Option can be exercised unless and until all necessary
Regulatory Approvals have been obtained.
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(n) "Exercise Price" means the price at which an Option is exercisable as
determined in accordance with section 5.3.
(o) "Expiry Date" means the date the Option expires as set out in the
Option Certificate or as otherwise determined in accordance with
sections 5.4, 6.2, 6.3, 6.4 or 11.4.
(p) "Expiry Time" means the time the Option expires on the Expiry Date,
which is 5:00 p.m. local time in Vancouver, British Columbia on the
Expiry Date.
(q) "Grant Date" means the date on which the Committee grants a particular
Option, which is the date the Option comes into effect provided however
that no Option can be exercised unless and until all necessary
Regulatory Approvals have been obtained.
(r) "Insider" means an insider as that term is defined in the SECURITIES
ACT;
(s) "Market Value" means the market value of the Shares as determined in
accordance with section 5.3. ]
(t) "Option" means an incentive share purchase option granted pursuant to
this Plan entitling the Option Holder to purchase Shares of the
Company.
(u) "Option Certificate" means the certificate, in substantially the form
set out as Schedule "A" hereto, evidencing the Option.
(v) "Option Holder" means a Person or Entity who holds an unexercised and
unexpired Option or, where applicable, the Personal Representative of
such person.
(w) "Outstanding Issue" means the number of Shares that are outstanding (on
a non-diluted basis) immediately prior to the Share issuance or grant
of Option in question.
(x) "Person or Entity" means an individual, natural person, corporation,
government or political subdivision or agency of a government, and
where two or more persons act as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding or
disposing of securities of an issuer, such partnership, limited
partnership, syndicate or group shall be deemed to be a Person or
Entity.
(y) "Personal Representative" means:
(i) in the case of a deceased Option Holder, the executor or
administrator of the deceased duly appointed by a court or
public authority having jurisdiction to do so; and
(ii) in the case of an Option Holder who for any reason is unable
to manage his or her affairs, the person entitled by law to
act on behalf of such Option Holder.
(z) "Plan" means this stock option plan as from time to time amended.
(aa) "Regulatory Approvals" means any necessary approvals of the Regulatory
Authorities as may be required from time to time for the
implementation, operation or amendment of this Plan or for the Options
granted from time to time hereunder.
(bb) "Regulatory Authorities" means all organized trading facilities on
which the Shares are listed, and all securities commissions or similar
securities regulatory bodies having jurisdiction over the Company, this
Plan or the Options granted from time to time hereunder.
(cc) "Regulatory Rules" means all corporate and securities laws,
regulations, rules, policies, notices, instruments and other orders of
any kind whatsoever which may, from time to time, apply to the
implementation,
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operation or amendment of this Plan or the Options granted from time
to time hereunder including, without limitation, those of the
applicable Regulatory Authorities.
(dd) "SECURITIES ACT" means the SECURITIES ACT (British Columbia), RSBC
1996, c.418 as from time to time amended.
(ee) "Share" or "Shares" means, as the case may be, one or more common
shares without par value in the capital stock of the Company.
(ff) "Subsidiary" means a wholly-owned or controlled subsidiary corporation
of the Company.
(gg) "Triggering Event" means:
(i) the proposed dissolution, liquidation or wind-up of the
Company;
(ii) a proposed merger, amalgamation, arrangement or reorganization
of the Company with one or more corporations as a result of
which, immediately following such event, the shareholders of
the Company as a group, as they were immediately prior to such
event, are expected to hold less than a majority of the
outstanding capital stock of the surviving corporation;
(iii) the proposed acquisition of all or substantially all of the
issued and outstanding shares of the Company by one or more
Persons or Entities;
(iv) a proposed Change of Control of the Company;
(v) the proposed sale or other disposition of all or substantially
all of the assets of the Company; or
(vi) a proposed material alteration of the capital structure of the
Company which, in the opinion of the Committee, is of such a
nature that it is not practical or feasible to make
adjustments to this Plan or to the Options granted hereunder
to permit the Plan and Options granted hereunder to stay in
effect.
(hh) "TSX-VN" means the TSX Venture Exchange Inc.
(ii) "Vest" or "Vesting" means that a portion of the Option granted to the
Option Holder which is available to be exercised by the Option Holder
at any time and from time to time.
1.2 CHOICE OF LAW
The Plan is established under, and the provisions of the Plan shall be subject
to and interpreted and construed in accordance with, the laws of the Province of
British Columbia. The Company and each Option Holder hereby attorn to the
jurisdiction of the Courts of British Columbia.
1.3 HEADINGS
The headings used herein are for convenience only and are not to affect the
interpretation of the Plan.
SECTION 2
GRANT OF OPTIONS
2.1 GRANT OF OPTIONS
The Committee (or the Board if no Committee is in place) shall, from time to
time in its sole discretion, grant Options to such Persons or Entities and on
such terms and conditions as are permitted under this Plan.
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2.2 RECORD OF OPTION GRANTS
The Committee shall be responsible to maintain a record of all Options granted
under this Plan and such record shall contain, in respect of each Option:
(a) the name and address of the Option Holder;
(b) the category (Executive, Employee or Consultant) under which the Option
was granted to him, her or it;
(c) the Grant Date and Expiry Date of the Option;
(d) the number of Shares which may be acquired on the exercise of the
Option and the Exercise Price of the Option;
(e) the vesting and other additional terms, if any, attached to the Option;
and
(f) the particulars of each and every time the Option is exercised. 2.3
EFFECT OF PLAN
All Options granted pursuant to the Plan shall be subject to the terms and
conditions of the Plan notwithstanding the fact that the Option Certificates
issued in respect thereof do not expressly contain such terms and conditions but
instead incorporate them by reference to the Plan. The Option Certificates will
be issued for convenience only and in the case of a dispute with regard to any
matter in respect thereof, the provisions of the Plan and the records of the
Company shall prevail over the terms and conditions in the Option Certificate,
save and except as noted below. Each Option will also be subject to, in addition
to the provisions of the Plan, the terms and conditions contained in the
schedules, if any, attached to the Option Certificate for such Option. Should
the terms and conditions contained in such schedules be inconsistent with the
provisions of the Plan, such terms and conditions will supersede the provisions
of the Plan.
SECTION 3
PURPOSE AND PARTICIPATION
3.1 PURPOSE OF PLAN
The purpose of the Plan is to provide the Company with a share-related mechanism
to attract, retain and motivate qualified Executives, Employees and Consultants,
to incent such individuals to contribute toward the long term goals of the
Company, and to encourage such individuals to acquire Shares of the Company as
long term investments.
3.2 PARTICIPATION IN PLAN
The Committee shall, from time to time and in its sole discretion, determine
those Executives, Employees and Consultants, if any, to whom Options are to be
granted.
3.3 LIMITS ON OPTION GRANTS - TIER 1 ISSUER
If the Company is listed on TSX-VN as a Tier 1 issuer, the following limitations
shall apply to the Plan and all Options thereunder so long as such limitations
are required by the TSX-VN:
(a) the maximum number of Options which may be granted to any one Option
Holder under the Plan within any 12 month period shall be 5% of the
Outstanding Issue, unless the Company has obtained the approval of the
disinterested shareholders of the Company;
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(b) with respect to section 5.1, the Expiry Date of an Option shall be no
later than the tenth anniversary of the Grant Date of such Option;
(c) the maximum number of Options which may be granted to any one
Consultant within any 12 month period must not exceed 2% of the
Outstanding Issue; and
(d) the maximum number of Options which may be granted within any 12 month
period to Employees or Consultants engaged in investor relations
activities must not exceed 2% of the Outstanding Issue and such options
must vest in stages over 12 months with no more than 25% of the Options
vesting in any three month period,
and such limitation will not be an amendment to this Plan requiring the Option
Holders consent under section 9.2
of this Plan.
3.4 LIMITS ON OPTION GRANTS - TIER 2 ISSUER
If the Company is listed on TSX-VN as a Tier 2 issuer, the following limitations
shall apply to the Plan and all Options thereunder so long as such limitations
are required by the TSX-VN:
(a) the maximum number of Options which may be granted to any one Option
Holder under the Plan within any 12 month period shall be 5% of the
Outstanding Issue;
(b) with respect to section 5.1, the Expiry Date of an Option shall be no
later than the fifth anniversary of the Grant Date of such Option;
(c) the maximum number of Options which may be granted to any one
Consultant within any 12 month period must not exceed 2% of the
Outstanding Issue; and
(d) the maximum number of Options which may be granted within any 12 month
period to Employees or Consultants engaged in investor relations
activities must not exceed 2% of the Outstanding Issue and such options
must vest in stages over 12 months with no more than 25% of the Options
vesting in any three month period,
and such limitation will not be an amendment to this Plan requiring the Option
Holders consent under section 9.2 of this Plan.
3.5 NOTIFICATION OF GRANT
Following the granting of an Option, the Administrator shall, within a
reasonable period of time, notify the Option Holder in writing of the grant and
shall enclose with such notice the Option Certificate representing the Option so
granted. In no case will the Company be required to deliver an Option
Certificate to an Option Holder until such time as the Company has obtained all
necessary Regulatory Approvals for the grant of the Option.
3.6 COPY OF PLAN
Each Option Holder, concurrently with the notice of the grant of the Option,
shall be provided with a copy of the Plan. A copy of any amendment to the Plan
shall be promptly provided by the Administrator to each Option Holder.
3.7 LIMITATION ON SERVICE
The Plan does not give any Option Holder that is an Executive the right to serve
or continue to serve as an Executive of the Company or any Subsidiary, nor does
it give any Option Holder that is an Employee or Consultant the right to be or
to continue to be employed or engaged by the Company or any Subsidiary.
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3.8 NO OBLIGATION TO EXERCISE
Option Holders shall be under no obligation to exercise Options granted under
this Plan.
3.9 AGREEMENT
The Company and every Option Holder granted an Option hereunder shall be bound
by and subject to the terms and conditions of this Plan. By accepting an Option
granted hereunder, the Option Holder has expressly agreed with the Company to be
bound by the terms and conditions of this Plan. In the event that the Option
Holder receives his, her or its Options pursuant to an oral or written agreement
with the Company or a Subsidiary, whether such agreement is an employment
agreement, consulting agreement or any other kind of agreement of any kind
whatsoever, the Option Holder acknowledges that in the event of any
inconsistency between the terms relating to the grant of such Options in that
agreement and the terms attaching to the Options as provided for in this Plan,
the terms provided for in this Plan shall prevail and the other agreement shall
be deemed to have been amended accordingly.
3.10 NOTICE
Any notice, delivery or other correspondence of any kind whatsoever to be
provided by the Company to an Option Holder will be deemed to have been provided
if provided to the last home address, fax number or email address of the Option
Holder in the records of the Company and the Company shall be under no
obligation to confirm receipt or delivery.
3.11 REPRESENTATION TO TSX-VN
As a condition precedent to the issuance of an Option, the Company must be able
to represent to TSX-VN as of the Grant Date that the Option Holder is a BONA
FIDE Executive, Employee or Consultant of the Company or any Subsidiary.
SECTION 4
NUMBER OF SHARES UNDER PLAN
4.1 BOARD TO APPROVE ISSUANCE OF SHARES
The Board shall approve by resolution the issuance of all Shares to be issued to
Option Holders upon the exercise of Options, such authorization to be deemed
effective as of the Grant Date of such Options regardless of when it is actually
done. The Board shall be entitled to approve the issuance of Shares in advance
of the Grant Date, retroactively after the Grant Date, or by a general approval
of this Plan.
4.2 NUMBER OF SHARES
Subject to adjustment as provided for herein, the number of Shares which will be
available for purchase pursuant to Options granted pursuant to this Plan will
not exceed 3,600,000 Shares, including the existing 1,355,000 Shares currently
subject to outstanding Options as of the date of this Plan which were granted
prior to implementation of this Plan and, which, by the implementation of this
Plan are grandfathered under this Plan. If any Option expires or otherwise
terminates for any reason without having been exercised in full, the number of
Shares in respect of such expired or terminated Option shall again be available
for the purposes of granting Options pursuant to this Plan.
4.3 FRACTIONAL SHARES
No fractional shares shall be issued upon the exercise of any Option and, if as
a result of any adjustment, an Option Holder would become entitled to a
fractional share, such Option Holder shall have the right to purchase only the
next lowest whole number of Shares and no payment or other adjustment will be
made for the fractional interest.
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SECTION 5
TERMS AND CONDITIONS OF OPTIONS
5.1 EXERCISE PERIOD OF OPTION
Subject to sections 5.4, 6.2, 6.3, 6.4 and 11.4, the Grant Date and the Expiry
Date of an Option shall be the dates fixed by the Committee at the time the
Option is granted and shall be set out in the Option Certificate issued in
respect of such Option.
5.2 NUMBER OF SHARES UNDER OPTION
The number of Shares which may be purchased pursuant to an Option shall be
determined by the Committee and shall be set out in the Option Certificate
issued in respect of the Option.
5.3 EXERCISE PRICE OF OPTION
The Exercise Price at which an Option Holder may purchase a Share upon the
exercise of an Option shall be determined by the Committee and shall be set out
in the Option Certificate issued in respect of the Option. The Exercise Price
shall not be less than the Market Value of the Shares as of the Grant Date. The
Market Value of the Shares for a particular Grant Date shall be determined as
follows:
(a) for each organized trading facility on which the Shares are listed,
Market Value will be the closing trading price of the Shares on the day
immediately preceding the Grant Date, and may be less than this price
if it is within the discounts permitted by the applicable Regulatory
Authorities;
(b) if the Company's Shares are listed on more than one organized trading
facility, the Market Value shall be the Market Value as determined in
accordance with subparagraph (a) above for the primary organized
trading facility on which the Shares are listed, as determined by the
Committee, subject to any adjustments as may be required to secure all
necessary Regulatory Approvals;
(c) if the Company's Shares are listed on one or more organized trading
facilities but have not traded during the ten trading days immediately
preceding the Grant Date, then the Market Value will be, subject to any
adjustments as may be required to secure all necessary Regulatory
Approvals, such value as is determined by the Committee; and
(d) if the Company's Shares are not listed on any organized trading
facility, then the Market Value will be, subject to any adjustments as
may be required to secure all necessary Regulatory Approvals, such
value as is determined by the Committee to be the fair value of the
Shares, taking into consideration all factors that the Committee deems
appropriate, including, without limitation, recent sale and offer
prices of the Shares in private transactions negotiated at arms'
length.
Notwithstanding anything else contained herein, in no case will the Market Value
be less than the minimum prescribed by each of the organized trading facilities
that would apply to the Company on the Grant Date in question.
5.4 TERMINATION OF OPTION
Subject to such other terms or conditions that may be attached to Options
granted hereunder, an Option Holder may exercise an Option in whole or in part
at any time and from time to time during the Exercise Period. Any Option or part
thereof not exercised within the Exercise Period shall terminate and become
null, void and of no effect as of the Expiry Time on the Expiry Date. The Expiry
Date of an Option shall be the earlier of the date so fixed by the Committee at
the time the Option is granted as set out in the Option Certificate and the date
established, if applicable, in paragraphs (a) or (b) below or sections 6.2, 6.3,
6.4, or 11.4 of this Plan:
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(A) CEASING TO HOLD OFFICE - In the event that the Option Holder holds his
or her Option as an Executive and such Option Holder ceases to hold
such position other than by reason of death or Disability, the Expiry
Date of the Option shall be, unless otherwise expressly provided for in
the Option Certificate, the 90th day following the date the Option
Holder ceases to hold such position unless the Option Holder ceases to
hold such position as a result of:
(i) ceasing to meet the qualifications set forth in the corporate
legislation applicable to the Company;
(ii) a special resolution having been passed by the shareholders of
the Company removing the Option Holder as a director of the
Company or any Subsidiary; or
(iii) an order made by any Regulatory Authority having jurisdiction
to so order;
in which case the Expiry Date shall be the date the Option Holder
ceases to hold such position; OR
(B) CEASING TO BE EMPLOYED OR ENGAGED - In the event that the Option Holder
holds his or her Option as an Employee or Consultant, other than an
Option Holder who is engaged in investor relations activities, and such
Option Holder ceases to hold such position other than by reason of
death or Disability, the Expiry Date of the Option shall be, unless
otherwise expressly provided for in the Option Certificate, the 90th
day following the date the Option Holder ceases to hold such position,
or, in the case of an Option Holder that is engaged in investor
relations activities while the Company is classified as a Tier 2 issuer
on the TSX-VN, the 30th day after the date such Option Holder ceases to
hold such position, unless the Option Holder ceases to hold such
position as a result of:
(i) termination for cause;
(ii) resigning or terminating his or her position; or
(iii) an order made by any Regulatory Authority having jurisdiction
to so order;
in which case the Expiry Date shall be the date the Option Holder
ceases to hold such position.
In the event that the Option Holder ceases to hold the position of Executive,
Employee or Consultant for which the Option was originally granted, but comes to
hold a different position as an Executive, Employee or Consultant prior to the
expiry of the Option, the Committee may, in its sole discretion, choose to
permit the Option to stay in place for that Option Holder with such Option then
to be treated as being held by that Option Holder in his or her new position and
such will not be considered to be an amendment to the Option in question
requiring the consent of the Option Holder under section 9.2 of this Plan.
Notwithstanding anything else contained herein, in no case will an Option be
exercisable later than the Expiry Date of the Option.
5.5 VESTING OF OPTION AND ACCELERATION
The vesting schedule for an Option, if any, shall be determined by the Committee
and shall be set out in the Option Certificate issued in respect of the Option.
The Committee may elect, at any time, to accelerate the vesting schedule of one
or more Options including, without limitation, on a Triggering Event, and such
acceleration will not be considered an amendment to the Option in question
requiring the consent of the Option Holder under section 9.2 of this Plan.
5.6 ADDITIONAL TERMS
Subject to all applicable Regulatory Rules and all necessary Regulatory
Approvals, the Committee may attach additional terms and conditions to the grant
of a particular Option, such terms and conditions to be set out in a schedule
attached to the Option Certificate. The Option Certificates will be issued for
convenience only, and in the case of a dispute with regard to any matter in
respect thereof, the provisions of this Plan and the records of the
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Company shall prevail over the terms and conditions in the Option Certificate,
save and except as noted below. Each Option will also be subject to, in addition
to the provisions of the Plan, the terms and conditions contained in the
schedules, if any, attached to the Option Certificate for such Option. Should
the terms and conditions contained in such schedules be inconsistent with the
provisions of the Plan, such terms and conditions will supersede the provisions
of the Plan.
SECTION 6
TRANSFERABILITY OF OPTIONS
6.1 NON-TRANSFERABLE
Except as provided otherwise in this Section 6, Options are non-assignable and
non-transferable.
6.2 DEATH OF OPTION HOLDER
In the event of the Option Holder's death, any Options held by such Option
Holder shall pass to the Personal Representative of the Option Holder and shall
be exercisable by the Personal Representative on or before the date which is the
earlier of six months following the date of death and the applicable Expiry
Date.
6.3 DISABILITY OF OPTION HOLDER
If the employment or engagement of an Option Holder as an Employee or Consultant
or the position of an Option Holder as a director or officer of the Company or a
Subsidiary is terminated by the Company by reason of such Option Holder's
Disability, any Options held by such Option Holder shall be exercisable by such
Option Holder or by the Personal Representative on or before the date which is
the earlier of six months following the termination of employment, engagement or
appointment as a director or officer and the applicable Expiry Date.
6.4 DISABILITY AND DEATH OF OPTION HOLDER
If an Option Holder has ceased to be employed, engaged or appointed as a
director or officer of the Company or a Subsidiary by reason of such Option
Holder's Disability and such Option Holder dies within six months after the
termination of such engagement, any Options held by such Option Holder that
could have been exercised immediately prior to his or her death shall pass to
the Personal Representative of such Option Holder and shall be exercisable by
the Personal Representative on or before the date which is the earlier of six
months following the death of such Option Holder and the applicable Expiry Date.
6.5 VESTING
Unless the Committee determines otherwise, Options held by or exercisable by a
Personal Representative shall, during the period prior to their termination,
continue to vest in accordance with any vesting schedule to which such Options
are subject.
6.6 DEEMED NON-INTERRUPTION OF ENGAGEMENT
Employment or engagement by the Company shall be deemed to continue intact
during any military or sick leave or other BONA FIDE leave of absence if the
period of such leave does not exceed 90 days or, if longer, for so long as the
Option Holder's right to re-employment or re-engagement by the Company is
guaranteed either by statute or by contract. If the period of such leave exceeds
90 days and the Option Holder's re-employment or re-engagement is not so
guaranteed, then his or her employment or engagement shall be deemed to have
terminated on the ninety-first day of such leave.
10
SECTION 7
EXERCISE OF OPTION
7.1 EXERCISE OF OPTION
An Option may be exercised only by the Option Holder or the Personal
Representative of any Option Holder. An Option Holder or the Personal
Representative of any Option Holder may exercise an Option in whole or in part
at any time and from time to time during the Exercise Period up to the Expiry
Time on the Expiry Date by delivering to the Administrator the required Exercise
Notice, the applicable Option Certificate and a certified cheque or bank draft
payable to the Company in an amount equal to the aggregate Exercise Price of the
Shares then being purchased pursuant to the exercise of the Option.
Notwithstanding anything else contained herein, Options may not be exercised
during Black-Out unless the Committee determines otherwise.
7.2 ISSUE OF SHARE CERTIFICATES
As soon as reasonably practicable following the receipt of the Exercise Notice,
the Administrator shall cause to be delivered to the Option Holder a certificate
for the Shares so purchased. If the number of Shares so purchased is less than
the number of Shares subject to the Option Certificate surrendered, the
Administrator shall also provide a new Option Certificate for the balance of
Shares available under the Option to the Option Holder concurrent with delivery
of the Share Certificate.
7.3 NO RIGHTS AS SHAREHOLDER
Until the date of the issuance of the certificate for the Shares purchased
pursuant to the exercise of an Option, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to such Shares,
notwithstanding the exercise of the Option, unless the Committee determines
otherwise. In the event of any dispute over the date of the issuance of the
certificates, the decision of the Committee shall be final, conclusive and
binding.
SECTION 8
ADMINISTRATION
8.1 BOARD OR COMMITTEE
The Plan shall be administered by the Board, by a Committee of the Board
appointed in accordance with section 8.2 below, or by an Administrator appointed
in accordance with subsection 8.4(b).
8.2 APPOINTMENT OF COMMITTEE
The Board may at any time appoint a Committee, consisting of not less than two
of its members, to administer the Plan on behalf of the Board in accordance with
such terms and conditions as the Board may prescribe, consistent with this Plan.
Once appointed, the Committee shall continue to serve until otherwise directed
by the Board. From time to time, the Board may increase the size of the
Committee and appoint additional members, remove members (with or without cause)
and appoint new members in their place, fill vacancies however caused, or remove
all members of the Committee and thereafter directly administer the Plan.
8.3 QUORUM AND VOTING
A majority of the members of the Committee shall constitute a quorum and,
subject to the limitations in this Section 8, all actions of the Committee shall
require the affirmative vote of members who constitute a majority of such
quorum. Members of the Committee may vote on any matters affecting the
administration of the Plan or the grant of Options pursuant to the Plan, except
that no such member shall act upon the granting of an Option to himself or
herself (but any such member may be counted in determining the existence of a
quorum at any meeting of the Committee during which action is taken with respect
to the granting of Options to that member). The Committee may approve matters by
written resolution signed by a majority of the quorum.
11
8.4 POWERS OF COMMITTEE
The Committee (or the Board if no Committee is in place) shall have the
authority to do the following:
(a) administer the Plan in accordance with its terms;
(b) appoint or replace the Administrator from time to time; (c) determine
all questions arising in connection with the administration,
interpretation and application of the Plan, including all questions
relating to the Market Value of the Shares;
(d) correct any defect, supply any information or reconcile any
inconsistency in the Plan in such manner and to such extent as shall be
deemed necessary or advisable to carry out the purposes of the Plan;
(e) prescribe, amend, and rescind rules and regulations relating to the
administration of the Plan;
(f) determine the duration and purposes of leaves of absence from
employment or engagement by the Company which may be granted to Option
Holders without constituting a termination of employment or engagement
for purposes of the Plan;
(g) do the following with respect to the granting of Options:
(i) determine the Executives, Employees or Consultants to whom
Options shall be granted, based on the eligibility criteria
set out in this Plan;
(ii) determine the terms of the Option to be granted to an Option
Holder including, without limitation, the Grant Date, Expiry
Date, Exercise Price and vesting schedule (which need not be
identical with the terms of any other Option);
(iii) subject to any necessary Regulatory Approvals and section 9.2,
amend the terms of any Options; (iv) determine when Options
shall be granted; and (v) determine the number of Shares
subject to each Option; (h) accelerate the vesting schedule of
any Option previously granted; and (i) make all other
determinations necessary or advisable, in its sole discretion,
for the administration of the Plan.
8.5 ADMINISTRATION BY COMMITTEE
All determinations made by the Committee in good faith shall be final,
conclusive and binding upon all persons. The Committee shall have all powers
necessary or appropriate to accomplish its duties under this Plan.
8.6 INTERPRETATION
The interpretation by the Committee of any of the provisions of the Plan and any
determination by it pursuant thereto shall be final, conclusive and binding and
shall not be subject to dispute by any Option Holder. No member of the Committee
or any person acting pursuant to authority delegated by it hereunder shall be
personally liable for any action or determination in connection with the Plan
made or taken in good faith and each member of the Committee and each such
person shall be entitled to indemnification with respect to any such action or
determination in the manner provided for by the Company.
12
SECTION 9
APPROVALS AND AMENDMENT
9.1 SHAREHOLDER APPROVAL OF PLAN
If required by a Regulatory Authority or by the Committee, this Plan may be made
subject to the approval of a majority of the votes cast at a meeting of the
shareholders of the Company or by a majority of votes cast by disinterested
shareholders at a meeting of shareholders of the Company. Any Options granted
under this Plan prior to such time will not be exercisable or binding on the
Company unless and until such shareholder approval is obtained.
9.2 AMENDMENT OF OPTION OR PLAN
Subject to any required Regulatory Approvals, the Committee may from time to
time amend any existing Option or the Plan or the terms and conditions of any
Option thereafter to be granted provided that where such amendment relates to an
existing Option and it would:
(a) materially decrease the rights or benefits accruing to an Option
Holder; or
(b) materially increase the obligations of an Option Holder;
then, unless otherwise excepted out by a provision of this Plan, the Committee
must also obtain the written consent of the Option Holder in question to such
amendment. If at the time the Exercise Price of an Option is reduced the Option
Holder is an Insider of the Company, the Insider must not exercise the option at
the reduced Exercise Price until the reduction in Exercise Price has been
approved by the disinterested shareholders of the Company, if required by the
TSX-VN.
SECTION 10
CONDITIONS PRECEDENT TO ISSUANCE OF OPTIONS AND SHARES
10.1 COMPLIANCE WITH LAWS
An Option shall not be granted or exercised, and Shares shall not be issued
pursuant to the exercise of any Option, unless the grant and exercise of such
Option and the issuance and delivery of such Shares comply with all applicable
Regulatory Rules, and such Options and Shares will be subject to all applicable
trading restrictions in effect pursuant to such Regulatory Rules and the Company
shall be entitled to legend the Option Certificates and the certificates
representing such Shares accordingly.
10.2 OBLIGATION TO OBTAIN REGULATORY APPROVALS
In administering this Plan, the Committee will seek any Regulatory Approvals
which may be required. The Committee will not permit any Options to be granted
without first obtaining the necessary Regulatory Approvals unless such Options
are granted conditional upon such Regulatory Approvals being obtained. The
Committee will make all filings required with the Regulatory Authorities in
respect of the Plan and each grant of Options hereunder. No Option granted will
be exercisable or binding on the Company unless and until all necessary
Regulatory Approvals have been obtained. The Committee shall be entitled to
amend this Plan and the Options granted hereunder in order to secure any
necessary Regulatory Approvals and such amendments will not require the consent
of the Option Holders under section 9.2 of this Plan.
10.3 INABILITY TO OBTAIN REGULATORY APPROVALS
The Company's inability to obtain Regulatory Approval from any applicable
Regulatory Authority, which Regulatory Approval is deemed by the Committee to be
necessary to complete the grant of Options hereunder, the exercise of
13
those Options or the lawful issuance and sale of any Shares pursuant to such
Options, shall relieve the Company of any liability with respect to the failure
to complete such transaction.
SECTION 11
ADJUSTMENTS AND TERMINATION
11.1 TERMINATION OF PLAN
Subject to any necessary Regulatory Approvals, the Committee may terminate or
suspend the Plan. Unless earlier terminated as provided in this Section 11, the
Plan shall terminate on, and no more Options shall be granted under the Plan
after, the tenth anniversary of the Effective Date of the Plan.
11.2 NO GRANT DURING SUSPENSION OF PLAN
No Option may be granted during any suspension, or after termination, of the
Plan. Suspension or termination of the Plan shall not, without the consent of
the Option Holder, alter or impair any rights or obligations under any Option
previously granted.
11.3 ALTERATION IN CAPITAL STRUCTURE
If there is a material alteration in the capital structure of the Company and
the Shares are consolidated, subdivided, converted, exchanged, reclassified or
in any way substituted for, the Committee shall make such adjustments to this
Plan and to the Options then outstanding under this Plan as the Committee
determines to be appropriate and equitable under the circumstances, so that the
proportionate interest of each Option Holder shall, to the extent practicable,
be maintained as before the occurrence of such event. Such adjustments may
include, without limitation:
(a) a change in the number or kind of shares of the Company covered by such
Options; and
(b) a change in the Exercise Price payable per Share provided, however,
that the aggregate Exercise Price applicable to the unexercised portion
of existing Options shall not be altered, it being intended that any
adjustments made with respect to such Options shall apply only to the
Exercise Price per Share and the number of Shares subject thereto.
For purposes of this section 11.3, and without limitation, neither:
(c) the issuance of additional securities of the Company in exchange for
adequate consideration (including services); nor
(d) the conversion of outstanding securities of the Company into Shares
shall be deemed to be material alterations of the capital structure of
the Company.
Any adjustment made to any Options pursuant to this section 11.3 shall not be
considered an amendment requiring the Option Holder's consent for the purposes
of Section 9.2 of this Plan.
11.4 TRIGGERING EVENTS
Subject to the Company complying with section 11.5 and any necessary Regulatory
Approvals and notwithstanding any other provisions of this Plan or any Option
Certificate, the Committee may, without the consent of the Option Holder or
Holders in question:
(a) cause all or a portion of any of the Options granted under the Plan to
terminate upon the occurrence of a Triggering Event; or
14
(b) cause all or a portion of any of the Options granted under the Plan to
be exchanged for incentive stock options of another corporation upon
the occurrence of a Triggering Event in such ratio and at such exercise
price as the Committee deems appropriate, acting reasonably.
Such termination or exchange shall not be considered an amendment requiring the
Option Holder's consent for the purpose of section 9.2 of the Plan.
11.5 NOTICE OF TERMINATION BY TRIGGERING EVENT
In the event that the Committee wishes to cause all or a portion of any of the
Options granted under this Plan to terminate on the occurrence of a Triggering
Event, it must give written notice to the Option Holders in question not less
than 10 days prior to the consummation of a Triggering Event so as to permit the
Option Holder the opportunity to exercise the vested portion of the Options
prior to such termination. Upon the giving of such notice and subject to any
necessary Regulatory Approvals, all Options or portions thereof granted under
the Plan which the Company proposes to terminate shall become immediately
exercisable notwithstanding any contingent vesting provision to which such
Options may have otherwise been subject.
11.6 DETERMINATIONS TO BE MADE BY COMMITTEE
Adjustments and determinations under this Section 11 shall be made by the
Committee, whose decisions as to what adjustments or determination shall be
made, and the extent thereof, shall be final, binding, and conclusive.
15
SCHEDULE "A"
WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH
ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR
THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO
OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL o[DATE FOUR MONTHS AND ONE DAY
AFTER GRANT DATE].
TLC VENTURES CORP.
STOCK OPTION PLAN - OPTION CERTIFICATE
This Option Certificate is issued pursuant to the provisions of the Stock Option
Plan (the "Plan") of TLC Ventures Corp. (the "Company") and evidences that
o[Name of Option Holder] is the holder (the "Option Holder") of an option (the
"Option") to purchase up to o common shares (the "Shares") in the capital stock
of the Company at a purchase price of Cdn.$o per Share (the "Exercise Price").
This Option may be exercised at any time and from time to time from and
including the following Grant Date through to and including up to 5:00 p.m.
local time in Vancouver, British Columbia (the "Expiry Time") on the following
Expiry Date:
(a) the Grant Date of this Option is o, 200o; and
(b) subject to sections 5.4, 6.2, 6.3, 6.4 and 11.4 of the Plan, the Expiry
Date of this Option is o, 200o.
To exercise this Option, the Option Holder must deliver to the Administrator of
the Plan, prior to the Expiry Time on the Expiry Date, an Exercise Notice, in
the form provided in the Plan, which is incorporated by reference herein,
together with the original of this Option Certificate and a certified cheque or
bank draft payable to the Company in an amount equal to the aggregate of the
Exercise Price of the Shares in respect of which this Option is being exercised.
This Option Certificate and the Option evidenced hereby is not assignable,
transferable or negotiable and is subject to the detailed terms and conditions
contained in the Plan. This Option Certificate is issued for convenience only
and in the case of any dispute with regard to any matter in respect hereof, the
provisions of the Plan and the records of the Company shall prevail. This Option
is also subject to the terms and conditions contained in the schedules, if any,
attached hereto.
Any share certificates issued pursuant to an exercise of the Option before
o[DATE FOUR MONTHS AND ONE DAY AFTER GRANT DATE] will contain the following
legend:
"Without prior written approval of the TSX Venture Exchange and
compliance with all applicable securities legislation, the securities
represented by this certificate may not be sold, transferred,
hypothecated or otherwise traded on or through the facilities of the
TSX Venture Exchange or otherwise in Canada or to or for the benefit of
a Canadian resident until o[DATE FOUR MONTHS AND ONE DAY AFTER GRANT
DATE]."
If the Option Holder is a resident or citizen of the United States of America at
the time of the exercise of the Option, the certificate(s) representing the
Shares will be endorsed with the following or a similar legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, of the United
States of America (the "Act") or the securities laws of any state
("State") of the United States of America and may not be sold,
transferred, pledged, hypothecated or distributed, directly or
indirectly, to a U.S. person (as defined in Regulation S adopted by the
U.S. Securities and Exchange Commission under the Act) or within the
United States unless such securities are (i) registered under the Act
and any applicable State securities act (a "State Act"), or (ii) exempt
from registration under the Act and any applicable State Act and the
Company has
received an opinion of counsel to such effect reasonably satisfactory
to it, or (iii) sold in accordance with Regulation S and the Company
has received an opinion of counsel to such effect reasonably
satisfactory to it."
This Option was granted to the Option Holder in his or her capacity as a o[pick
one: Director, Officer, Employee, Consultant] of the Company o[, and shall
continue in effect should his or her status change and he or she continue in a
new capacity as a Director, Officer, Employee or Consultant of the Company].
TLC VENTURES CORP.
Per:
------------------------------------------
o[Full Name of Person], Administrator,
Stock Option Plan
The Option Holder acknowledges receipt of a copy of the Plan and represents to
the Company that the Option Holder is familiar with the terms and conditions of
the Plan, and hereby accepts this Option subject to all of the terms and
conditions of the Plan. The Option Holder agrees to execute, deliver, file and
otherwise assist the Company in filing any report, undertaking or document with
respect to the awarding of the Option and exercise of the Option, as may be
required by the Regulatory Authorities. The Option Holder further acknowledges
that if the Plan has not been approved by the shareholders of the Company on the
Grant Date, this Option is not exercisable until such approval has been
obtained.
Signature of Optionee:
Date signed:
- ----------------------------------- -------------------------
Signature
- -----------------------------------
Print Name
- -----------------------------------
Address
- -----------------------------------
2
OPTION CERTIFICATE - SCHEDULE
-----------------------------
The additional terms and conditions attached to the Option represented by this
Option Certificate are as follows:
The Options will not be exercisable unless and until they have vested and then
only to the extent that they have vested. The Options will vest in accordance
with the following:
(a) o Shares (o%) will vest and be exercisable on or after the Grant Date;
(b) o additional Shares (o%) will vest and be exercisable on or after o
[date];
(c) o additional Shares (o%) will vest and be exercisable on or after o
[date];
(d) o additional Shares (o%) will vest and be exercisable on or after o
[date];
SCHEDULE "B"
TLC VENTURES CORP.
STOCK OPTION PLAN
NOTICE OF EXERCISE OF OPTION
----------------------------
TO: The Administrator, Stock Option Plan
TLC VENTURES CORP.
o[ Address]
(or such other address as the Company may advise)
The undersigned hereby irrevocably gives notice, pursuant to the Stock Option
Plan (the "Plan") of TLC Ventures Corp. (the "Company"), of the exercise of the
Option to acquire and hereby subscribes for (CROSS OUT INAPPLICABLE ITEM):
(a) all of the Shares; or (b) of the Shares;
which are the subject of the Option Certificate attached hereto (ATTACH YOUR
ORIGINAL OPTION CERTIFICATE).
The undersigned tenders herewith a certified cheque or bank draft (CIRCLE ONE)
payable to "o[Full Name of Company]" in an amount equal to the aggregate
Exercise Price of the aforesaid Shares and directs the Company to issue the
certificate evidencing said Shares in the name of the undersigned to be mailed
to the undersigned at the following address (PROVIDE FULL COMPLETE ADDRESS):
___________________________________
___________________________________
___________________________________
___________________________________
The undersigned acknowledges the Option is not validly exercised unless this
Notice is completed in strict compliance with this form and delivered to the
required address with the required payment prior to 5:00 p.m. local time in
Vancouver, B.C. on the Expiry Date of the Option.
DATED the __________________ day of __________________, 20__.
------------------------------------
SIGNATURE OF OPTION HOLDER