Exhibit 10.95
HURRAY! HOLDING CO., LTD.
2004 SHARE INCENTIVE PLAN
1. Purposes of the Plan. The purposes of this Plan are to attract and
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retain the best available personnel, to provide additional incentives to
Employees, Directors and Consultants and to promote the success of the Company's
business.
2. Definitions. The following definitions shall apply as used herein and in
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the individual Award Agreements except as defined otherwise in an individual
Award Agreement. In the event a term is separately defined in an individual
Award Agreement, such definition shall supercede the definition contained in
this Section 2.
(a) "Administrator" means the Board or any of the Committees appointed
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to administer the Plan.
(b) "Affiliate" and "Associate" shall have the respective meanings
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ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act.
(c) "Applicable Laws" means the legal requirements relating to the
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Plan and the Awards under applicable provisions of the corporate and securities
laws of the State of New York, the Code, the rules of any applicable stock
exchange or national market system, and the rules of any jurisdiction applicable
to Awards granted to residents therein.
(d) "Assumed" means that pursuant to a Corporate Transaction either
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(i) the Award is expressly affirmed by the Company or (ii) the contractual
obligations represented by the Award are expressly assumed (and not simply by
operation of law) by the successor entity or its Parent in connection with the
Corporate Transaction with appropriate adjustments to the number and type of
securities of the successor entity or its Parent subject to the Award and the
exercise or purchase price thereof which at least preserves the compensation
element of the Award existing at the time of the Corporate Transaction as
determined in accordance with the instruments evidencing the agreement to assume
the Award.
(e) "Award" means the grant of an Option, SAR, Dividend Equivalent
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Right, Restricted Share, Restricted Share Unit or other right or benefit under
the Plan.
(f) "Award Agreement" means the written agreement evidencing the grant
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of an Award executed by the Company and the Grantee, including any amendments
thereto.
(g) "Board" means the Board of Directors of the Company.
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(h) "Cause" means, with respect to the termination by the Company or a
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Related Entity of the Grantee's Continuous Service, that such termination is for
"Cause" as such term is expressly defined in a then-effective written agreement
between the Grantee and the Company or such Related Entity, or in the absence of
such then-effective written agreement and definition, is based on, in the
determination of the Administrator, the Grantee's: (i) performance of any act or
failure to perform any act in bad faith and to the detriment of the Company or a
Related Entity; (ii) dishonesty, intentional misconduct or material breach of
any agreement with
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(i) the Company or a Related Entity; or (iii) commission of a crime
involving dishonesty, breach of trust, or physical or emotional harm to any
person.
(j) "Change in Control" means a change in ownership or control of the
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Company after the Registration Date effected through either of the following
transactions:
(i) the direct or indirect acquisition by any person or related
group of persons (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities pursuant to
a tender or exchange offer made directly to the Company's shareholders which a
majority of the Continuing Directors who are not Affiliates or Associates of the
offeror do not recommend such shareholders accept, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) months or less such that a majority of the Board members
(rounded up to the next whole number) ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who are
Continuing Directors.
(k) "Code" means the Internal Revenue Code of 1986, as amended.
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(l) "Committee" means any committee composed of members of the Board
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appointed by the Board to administer the Plan.
(m) "Ordinary Share" means a share of US$0.00005 nominal or par value,
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of the Company, or, if applicable, the number or fraction of American Depositary
Receipt representing an Ordinary Share.
(n) "Company" means Hurray! Holding Co., Ltd., a company incorporated
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under the laws of the Cayman Islands or any successor corporation that adopts
the Plan in connection with a Corporate Transaction.
(o) "Consultant" means any person (other than an Employee or a
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Director, solely with respect to rendering services in such person's capacity as
a Director) who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related Entity.
(p) "Continuing Directors" means members of the Board who either (i)
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have been Board members continuously for a period of at least thirty-six (36)
months or (ii) have been Board members for less than thirty-six (36) months and
were elected or nominated for election as Board members by at least a majority
of the Board members described in clause (i) who were still in office at the
time such election or nomination was approved by the Board.
(q) "Continuous Service" means that the provision of services to the
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Company or a Related Entity in any capacity of Employee, Director or Consultant
is not interrupted or terminated. In jurisdictions requiring notice in advance
of an effective termination as an
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Employee, Director or Consultant, Continuous Service shall be deemed terminated
upon the actual cessation of providing services to the Company or a Related
Entity notwithstanding any required notice period that must be fulfilled before
a termination as an Employee, Director or Consultant can be effective under
Applicable Laws. A Grantee's Continuous Service shall be deemed to have
terminated either upon an actual termination of Continuous Service or upon the
entity for which the Grantee provides services ceasing to be a Related Entity.
Continuous Service shall not be considered interrupted in the case of (i) any
approved leave of absence, (ii) transfers among the Company, any Related Entity,
or any successor, in any capacity of Employee, Director or Consultant, or (iii)
any change in status as long as the individual remains in the service of the
Company or a Related Entity in any capacity of Employee, Director or Consultant
(except as otherwise provided in the Award Agreement). An approved leave of
absence shall include sick leave, military leave, or any other authorized
personal leave. For purposes of each Incentive Share Option granted under the
Plan, if such leave exceeds ninety (90) days, and reemployment upon expiration
of such leave is not guaranteed by statute or contract, then the Incentive Share
Option shall be treated as a Non-Qualified Share Option on the day three (3)
months and one (1) day following the expiration of such ninety (90) day period.
(r) "Corporate Transaction" means any of the following transactions,
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provided, however, that the Administrator shall determine under parts (iv) and
(v) whether multiple transactions are related, and its determination shall be
final, binding and conclusive:
(i) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state in which the Company is incorporated;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company;
(iii) the complete liquidation or dissolution of the Company;
(iv) any reverse merger or series of related transactions
culminating in a reverse merger (including, but not limited to, a tender offer
followed by a reverse merger) in which the Company is the surviving entity but
(A) the Ordinary Shares outstanding immediately prior to such merger are
converted or exchanged by virtue of the merger into other property, whether in
the form of securities, cash or otherwise, or (B) in which securities possessing
more than forty percent (40%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or persons
different from those who held such securities immediately prior to such merger
or the initial transaction culminating in such merger, but excluding any such
transaction or series of related transactions that the Administrator determines
shall not be a Corporate Transaction; or
(v) acquisition in a single or series of related transactions by
any person or related group of persons (other than the Company or by a
Company-sponsored employee benefit plan) of beneficial ownership (within the
meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than
fifty percent (50%) of the total combined voting power of the Company's
outstanding securities but excluding any such transaction or
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series of related transactions that the Administrator determines shall not be a
Corporate Transaction.
(s) "Director" means a member of the Board or the board of directors
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of any Related Entity.
(t) "Disability" means as defined under the long-term disability
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policy of the Company or the Related Entity to which the Grantee provides
services regardless of whether the Grantee is covered by such policy. If the
Company or the Related Entity to which the Grantee provides service does not
have a long-term disability plan in place, "Disability" means that a Grantee is
unable to carry out the responsibilities and functions of the position held by
the Grantee by reason of any medically determinable physical or mental
impairment for a period of not less than ninety (90) consecutive days. A Grantee
will not be considered to have incurred a Disability unless he or she furnishes
proof of such impairment sufficient to satisfy the Administrator in its
discretion.
(u) "Dividend Equivalent Right" means a right entitling the Grantee to
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compensation measured by dividends paid with respect to Ordinary Shares.
(v) "Employee" means any person, including an Officer or Director, who
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is in the employ of the Company or any Related Entity, subject to the control
and direction of the Company or any Related Entity as to both the work to be
performed and the manner and method of performance. The payment of a director's
fee by the Company or a Related Entity shall not be sufficient to constitute
"employment" by the Company.
(w) "Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
(x) "Fair Market Value" means, as of any date, the value of Ordinary
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Shares determined as follows:
(vi) If the Ordinary Shares are listed on one or more established
stock exchanges or national market systems, including without limitation The
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market,
its Fair Market Value shall be the closing sales price for such shares (or the
closing bid, if no sales were reported) as quoted on the principal exchange or
system on which the Ordinary Shares are listed (as determined by the
Administrator) on the date of determination (or, if no closing sales price or
closing bid was reported on that date, as applicable, on the last trading date
such closing sales price or closing bid was reported), as reported in The Wall
Street Journal or such other source as the Administrator deems reliable;
(vii) If the Ordinary Shares are regularly quoted on an automated
quotation system (including the OTC Bulletin Board) or by a recognized
securities dealer, its Fair Market Value shall be the closing sales price for
such shares as quoted on such system on the date of determination, but if
selling prices are not reported, the Fair Market Value of an Ordinary Share
shall be the mean between the high bid and low asked prices for the Ordinary
Shares on the date of determination (or, if no such prices were reported on that
date, on the last date such prices were reported), as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; or
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(viii) In the absence of an established market for the Ordinary
Shares of the type described in (i) and (ii), above, the Fair Market Value
thereof shall be determined by the Administrator in good faith.
(y) "Grantee" means an Employee, Director or Consultant who receives
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an Award under the Plan.
(z) "Incentive Share Option" means an Option intended to qualify as an
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incentive stock option within the meaning of Section 422 of the Code
(aa) "Non-Qualified Share Option" means an Option not intended to
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qualify as an Incentive Stock Option.
(bb) "Officer" means a person who is an officer of the Company or a
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Related Entity within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
(cc) "Option" means an option to purchase Shares pursuant to an Award
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Agreement granted under the Plan.
(dd) "Parent" means a "parent corporation", whether now or hereafter
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existing, as defined in Section 424(e) of the Code.
(ee) "Plan" means this 2004 Share Incentive Plan.
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(ff) "Registration Date" means the first to occur of (i) the closing
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of the first sale to the general public pursuant to a registration statement
filed with and declared effective by the Securities and Exchange Commission
under the Securities Act of 1933, as amended, of (A) the Ordinary Shares or (B)
the same class of securities of a successor corporation (or its Parent) issued
pursuant to a Corporate Transaction in exchange for or in substitution of the
Ordinary Shares; and (ii) in the event of a Corporate Transaction, the date of
the consummation of the Corporate Transaction if the same class of securities of
the successor corporation (or its Parent) issuable in such Corporate Transaction
shall have been sold to the general public pursuant to a registration statement
filed with and declared effective by the Securities and Exchange Commission
under the Securities Act of 1933, as amended, on or prior to the date of
consummation of such Corporate Transaction.
(gg) "Related Entity" means any Parent or Subsidiary of the Company
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and any business, corporation, partnership, limited liability company or other
entity in which the Company or a Parent or a Subsidiary of the Company holds a
substantial ownership interest, directly or indirectly.
(hh) "Replaced" means that pursuant to a Corporate Transaction the
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Award is replaced with a comparable share or stock award or a cash incentive
program of the Company, the successor entity (if applicable) or Parent of either
of them which preserves the compensation element of such Award existing at the
time of the Corporate Transaction and provides for subsequent payout in
accordance with the same (or a more favorable) vesting schedule
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applicable to such Award. The determination of Award comparability shall be made
by the Administrator and its determination shall be final, binding and
conclusive.
(ii) "Restricted Share" means a Share issued under the Plan to the
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Grantee for such consideration, if any, and subject to such restrictions on
transfer, rights of first refusal, repurchase provisions, forfeiture provisions,
and other terms and conditions as established by the Administrator.
(jj) "Restricted Share Units" means an Award which may be earned in
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whole or in part upon the passage of time or the attainment of performance
criteria established by the Administrator and which may be settled for cash,
Shares or other securities or a combination of cash, Shares or other securities
as established by the Administrator.
(kk) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act
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or any successor thereto.
(ll) "SAR" means a share appreciation right entitling the Grantee to
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Shares or cash compensation, as established by the Administrator, measured by
appreciation in the value of Ordinary Shares.
(mm) "Share" means an Ordinary Share of the Company.
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(nn) "Spin-off Transaction" means a distribution by the Company to its
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shareholders of all or any portion of the securities of any Subsidiary of the
Company.
(oo) "Subsidiary" means a "subsidiary corporation", whether now or
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hereafter existing, as defined in Section 424(f) of the Code.
3. Shares Subject to the Plan.
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(a) Subject to the provisions of Section 10, below, the maximum
aggregate number of Shares which may be issued pursuant to all Awards (including
Incentive Share Options) is 80,000,000 Shares, plus an annual increase to be
added on the first business day of each calendar year for three years beginning
in 2005 equal to the lesser of (x) 70,000,000 Shares, (y) two and one-half
percent (2.5%) of the number of Shares outstanding as of such date, or (z) a
lesser number of Shares determined by the Administrator. In addition, the
maximum aggregate number of Shares which may be issued pursuant to all Awards
(including Incentive Share Options) shall be increased by any Shares (up to a
maximum of 100,000,000 Shares) that are represented by awards under the
Company's 2003 Stock Option Plan and the 2002 Incentive Compensation Plan that
are forfeited, expire or are cancelled without delivery of the Shares or which
result in forfeiture of the Shares back to the Company on or after the June ,
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2004. The Shares to be issued pursuant to Awards may be authorized, but
unissued, or reacquired Ordinary Shares.
(b) Any Shares covered by an Award (or portion of an Award) which is
forfeited, canceled or expires (whether voluntarily or involuntarily) shall be
deemed not to have been issued for purposes of determining the maximum aggregate
number of Shares which may be issued under the Plan. Shares that actually have
been issued under the Plan pursuant to an
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Award shall not be returned to the Plan and shall not become available for
future issuance under the Plan, except that if unvested Shares are forfeited, or
repurchased by the Company at the lower of their original purchase price or
their Fair Market Value at the time of repurchase, such Shares shall become
available for future grant under the Plan. To the extent not prohibited by
Section 422(b)(1) of the Code (and the corresponding regulations thereunder),
the listing requirements of The Nasdaq National Market (or other established
stock exchange or national market system on which the Ordinary Shares are
traded) and Applicable Law, any Shares covered by an Award which are surrendered
(i) in payment of the Award exercise or purchase price or (ii) in satisfaction
of tax withholding obligations incident to the exercise of an Award shall be
deemed not to have been issued for purposes of determining the maximum number of
Shares which may be issued pursuant to all Awards under the Plan, unless
otherwise determined by the Administrator.
4. Administration of the Plan.
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(a) Plan Administrator.
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(i) Administration with Respect to Directors and Officers. With
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respect to grants of Awards to Directors or Employees who are also Officers or
Directors of the Company, the Plan shall be administered by (A) the Board or (B)
a Committee designated by the Board, which Committee shall be constituted in
such a manner as to satisfy the Applicable Laws and to permit such grants and
related transactions under the Plan to be exempt from Section 16(b) of the
Exchange Act in accordance with Rule 16b-3. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board.
(ii) Administration With Respect to Consultants and Other
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Employees. With respect to grants of Awards to Employees or Consultants who are
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neither Directors nor Officers of the Company, the Plan shall be administered by
(A) the Board or (B) a Committee designated by the Board, which Committee shall
be constituted in such a manner as to satisfy the Applicable Laws. Once
appointed, such Committee shall continue to serve in its designated capacity
until otherwise directed by the Board. The Board may authorize one or more
Officers to grant such Awards and may limit such authority as the Board
determines from time to time.
(iii) Administration Errors. In the event an Award is granted in
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a manner inconsistent with the provisions of this subsection (a), such Award
shall be presumptively valid as of its grant date to the extent permitted by the
Applicable Laws.
(b) Powers of the Administrator. Subject to Applicable Laws and the
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provisions of the Plan (including any other powers given to the Administrator
hereunder), and except as otherwise provided by the Board, the Administrator
shall have the authority, in its discretion:
(i) to select the Employees, Directors and Consultants to whom
Awards may be granted from time to time hereunder;
(ii) to determine whether and to what extent Awards are granted
hereunder;
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(iii) to determine the number of Shares or the amount of other
consideration to be covered by each Award granted hereunder;
(iv) to approve forms of Award Agreements for use under the Plan;
(v) to determine the terms and conditions of any Award granted
hereunder;
(vi) to amend the terms of any outstanding Award granted under
the Plan, provided that (A) any amendment that would adversely affect the
Grantee's rights under an outstanding Award shall not be made without the
Grantee's written consent, (B) the reduction of the exercise price of any Option
awarded under the Plan shall be subject to shareholder approval and (C)
canceling an Option at a time when its exercise price exceeds the Fair Market
Value of the underlying Shares, in exchange for another Option, Restricted
Share, or other Award shall be subject to shareholder approval, unless the
cancellation and exchange occurs in connection with a Corporate Transaction;
(vii) to construe and interpret the terms of the Plan and Awards,
including without limitation, any notice of award or Award Agreement, granted
pursuant to the Plan;
(viii) to grant Awards to Employees, Directors and Consultants
employed outside the United States on such terms and conditions different from
those specified in the Plan as may, in the judgment of the Administrator, be
necessary or desirable to further the purpose of the Plan;
(ix) to take such other action, not inconsistent with the terms
of the Plan, as the Administrator deems appropriate.
(c) Indemnification. In addition to such other rights of
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indemnification as they may have as members of the Board or as Officers or
Employees of the Company or a Related Entity, members of the Board and any
Officers or Employees of the Company or a Related Entity to whom authority to
act for the Board, the Administrator or the Company is delegated shall be
defended and indemnified by the Company to the extent permitted by law on an
after-tax basis against all reasonable expenses, including attorneys' fees,
actually and necessarily incurred in connection with the defense of any claim,
investigation, action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan, or any Award
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by the Company) or paid by them in
satisfaction of a judgment in any such claim, investigation, action, suit or
proceeding, except in relation to matters as to which it shall be adjudged in
such claim, investigation, action, suit or proceeding that such person is liable
for gross negligence, bad faith or intentional misconduct; provided, however,
that within thirty (30) days after the institution of such claim, investigation,
action, suit or proceeding, such person shall offer to the Company, in writing,
the opportunity at the Company's expense to defend the same.
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5. Eligibility. Awards other than Incentive Share Options may be granted to
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Employees, Directors and Consultants. Incentive Share Options may be granted
only to Employees of the Company or a Parent or a Subsidiary of the Company. An
Employee, Director or Consultant who has been granted an Award may, if otherwise
eligible, be granted additional Awards. Awards may be granted to such Employees,
Directors or Consultants who are residing in non-U.S. jurisdictions as the
Administrator may determine from time to time.
6. Terms and Conditions of Awards.
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(a) Types of Awards. The Administrator is authorized under the Plan to
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award any type of arrangement to an Employee, Director or Consultant that is not
inconsistent with the provisions of the Plan and that by its terms involves or
might involve the issuance of (i) Shares, (ii) cash or (iii) an Option, a SAR,
or similar right with a fixed or variable price related to the Fair Market Value
of the Shares and with an exercise or conversion privilege related to the
passage of time, the occurrence of one or more events, or the satisfaction of
performance criteria or other conditions. Such awards include, without
limitation, Options, SARs, sales or bonuses of Restricted Share, Restricted
Share Units or Dividend Equivalent Rights, and an Award may consist of one such
security or benefit, or two (2) or more of them in any combination or
alternative.
(b) Designation of Award. Each Award shall be designated in the Award
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Agreement. In the case of an Option, the Option shall be designated as either an
Incentive Share Option or a Non-Qualified Share Option. However, notwithstanding
such designation, to the extent that the aggregate Fair Market Value of Shares
subject to Options designated as Incentive Share Options which become
exercisable for the first time by a Grantee during any calendar year (under all
plans of the Company or any Parent or Subsidiary of the Company) exceeds
$100,000, such excess Options, to the extent of the Shares covered thereby in
excess of the foregoing limitation, shall be treated as Non-Qualified Share
Options. For this purpose, Incentive Share Options shall be taken into account
in the order in which they were granted, and the Fair Market Value of the Shares
shall be determined as of the grant date of the relevant Option.
(c) Conditions of Award. Subject to the terms of the Plan, the
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Administrator shall determine the provisions, terms, and conditions of each
Award including, but not limited to, the Award vesting schedule, repurchase
provisions, rights of first refusal, forfeiture provisions, form of payment
(cash, Shares, or other consideration) upon settlement of the Award, payment
contingencies, and satisfaction of any performance criteria. The performance
criteria established by the Administrator may be based on any one of, or
combination of, the following: (i) increase in share price, (ii) earnings per
share, (iii) total shareholder return, (iv) operating margin, (v) gross margin,
(vi) return on equity, (vii) return on assets, (viii) return on investment, (ix)
operating income, (x) net operating income, (xi) pre-tax profit, (xii) cash
flow, (xiii) revenue, (xiv) expenses, (xv) earnings before interest, taxes and
depreciation, (xvi) economic value added and (xvii) market share. The
performance criteria may be applicable to the Company, Related Entities and/or
any individual business units of the Company or any Related Entity. Partial
achievement of the specified criteria may result in a payment or vesting
corresponding to the degree of achievement as specified in the Award Agreement.
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(d) Acquisitions and Other Transactions. The Administrator may issue
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Awards under the Plan in settlement, assumption or substitution for, outstanding
awards or obligations to grant future awards in connection with the Company or a
Related Entity acquiring another entity, an interest in another entity or an
additional interest in a Related Entity whether by merger, share purchase, asset
purchase or other form of transaction.
(e) Deferral of Award Payment. The Administrator may establish one or
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more programs under the Plan to permit selected Grantees the opportunity to
elect to defer receipt of consideration upon exercise of an Award, satisfaction
of performance criteria, or other event that absent the election would entitle
the Grantee to payment or receipt of Shares or other consideration under an
Award. The Administrator may establish the election procedures, the timing of
such elections, the mechanisms for payments of, and accrual of interest or other
earnings, if any, on amounts, Shares or other consideration so deferred, and
such other terms, conditions, rules and procedures that the Administrator deems
advisable for the administration of any such deferral program.
(f) Separate Programs. The Administrator may establish one or more
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separate programs under the Plan for the purpose of issuing particular forms of
Awards to one or more classes of Grantees on such terms and conditions as
determined by the Administrator from time to time.
(g) Early Exercise. The Award Agreement may, but need not, include a
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provision whereby the Grantee may elect at any time while an Employee, Director
or Consultant to exercise any part or all of the Award prior to full vesting of
the Award. Any unvested Shares received pursuant to such exercise may be subject
to a repurchase right in favor of the Company or a Related Entity or to any
other restriction the Administrator determines to be appropriate.
(h) Term of Award. The term of each Award shall be the term stated in
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the Award Agreement, provided, however, that the term of an Incentive Share
Option shall be no more than ten (10) years from the date of grant thereof.
However, in the case of an Incentive Share Option granted to a Grantee who, at
the time the Option is granted, owns shares representing more than ten percent
(10%) of the voting power of all classes of shares of the Company or any Parent
or Subsidiary of the Company, the term of the Incentive Stock Option shall be
five (5) years from the date of grant thereof or such shorter term as may be
provided in the Award Agreement. Notwithstanding the foregoing, the specified
term of any Award shall not include any period for which the Grantee has elected
to defer the receipt of the Shares or cash issuable pursuant to the Award.
(i) Transferability of Awards. Incentive Share Options may not be
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sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Grantee, only by the Grantee. Other Awards
shall be transferable (i) by will and by the laws of descent and distribution
and (ii) during the lifetime of the Grantee, to the extent and in the manner
authorized by the Administrator. Notwithstanding the foregoing, the Grantee may
designate one or more beneficiaries of the Grantee's Award in the event of the
Grantee's death on a beneficiary designation form provided by the Administrator.
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(j) Time of Granting Awards. The date of grant of an Award shall for
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all purposes be the date on which the Administrator makes the determination to
grant such Award, or such other date as is determined by the Administrator.
7. Award Exercise or Purchase Price, Consideration and Taxes.
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(a) Exercise or Purchase Price. The exercise or purchase price, if
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any, for an Award shall be as follows:
(i) In the case of an Incentive Share Option:
(A) granted to an Employee who, at the time of the grant of
such Incentive Share Option owns shares representing more than ten percent (10%)
of the voting power of all classes of shares of the Company or any Parent or
Subsidiary of the Company, the per Share exercise price shall be not less than
one hundred ten percent (110%) of the Fair Market Value per Share on the date of
grant; or
(B) granted to any Employee other than an Employee described
in the preceding paragraph, the per Share exercise price shall be not less than
one hundred percent (100%) of the Fair Market Value per Share on the date of
grant.
(ii) In the case of a Non-Qualified Share Option, the per Share
exercise price shall be not less than eighty-five percent (85%) of the Fair
Market Value per Share on the date of grant unless otherwise determined by the
Administrator.
(iii) In the case of other Awards, such price as is determined by
the Administrator.
(iv) Notwithstanding the foregoing provisions of this Section
7(a), in the case of an Award issued pursuant to Section 6(d), above, the
exercise or purchase price for the Award shall be determined in accordance with
the provisions of the relevant instrument evidencing the agreement to issue such
Award.
(b) Consideration. Subject to Applicable Laws, the consideration to be
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paid for the Shares to be issued upon exercise or purchase of an Award including
the method of payment, shall be determined by the Administrator (and, in the
case of an Incentive Share Option, shall be determined at the time of grant). In
addition to any other types of consideration the Administrator may determine,
the Administrator is authorized to accept as consideration for Shares issued
under the Plan the following, provided that the portion of the consideration
equal to the par value of the Shares must be paid in cash or other legal
consideration permitted by the Delaware General Corporation Law:
(i) cash;
(ii) check;
(iii) if the exercise or purchase occurs on or after the
Registration Date, surrender of Shares or delivery of a properly executed form
of attestation of ownership of Shares
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as the Administrator may require which have a Fair Market Value on the date of
surrender or attestation equal to the aggregate exercise price of the Shares as
to which said Award shall be exercised, provided, however, that Shares acquired
under the Plan or any other equity compensation plan or agreement of the Company
must have been held by the Grantee for a period of more than six (6) months (and
not used for another Award exercise by attestation during such period);
(iv) with respect to Options, if the exercise occurs on or after
the Registration Date, payment through a broker-dealer sale and remittance
procedure pursuant to which the Grantee (A) shall provide written instructions
to a Company designated brokerage firm to effect the immediate sale of some or
all of the purchased Shares and remit to the Company sufficient funds to cover
the aggregate exercise price payable for the purchased Shares and (B) shall
provide written directives to the Company to deliver the certificates for the
purchased Shares directly to such brokerage firm in order to complete the sale
transaction; or
(v) any combination of the foregoing methods of payment.
The Administrator may at any time or from time to time, by adoption of or by
amendment to the standard forms of Award Agreement described in Section
4(b)(iv), or by other means, grant Awards which do not permit all of the
foregoing forms of consideration to be used in payment for the Shares or which
otherwise restrict one or more forms of consideration.
(c) Taxes. No Shares shall be delivered under the Plan to any Grantee
-----
or other person until such Grantee or other person has made arrangements
acceptable to the Administrator for the satisfaction of any non-U.S., federal,
state, or local income and employment tax withholding obligations, including,
without limitation, obligations incident to the receipt of Shares or the
disqualifying disposition of Shares received on exercise of an Incentive Share
Option. Upon exercise of an Award the Company shall withhold or collect from
Grantee an amount sufficient to satisfy such tax obligations.
8. Exercise of Award.
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(a) Procedure for Exercise; Rights as a Shareholder.
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(i) Any Award granted hereunder shall be exercisable at such
times and under such conditions as determined by the Administrator under the
terms of the Plan and specified in the Award Agreement.
(ii) An Award shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Award by the person entitled to exercise the Award and full payment for the
Shares with respect to which the Award is exercised, including, to the extent
selected, use of the broker-dealer sale and remittance procedure to pay the
purchase price as provided in Section 7(b)(iv).
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(b) Exercise of Award Following Termination of Continuous Service.
-------------------------------------------------------------
(i) An Award may not be exercised after the termination date of
such Award set forth in the Award Agreement and may be exercised following the
termination of a Grantee's Continuous Service only to the extent provided in the
Award Agreement.
(ii) Where the Award Agreement permits a Grantee to exercise an
Award following the termination of the Grantee's Continuous Service for a
specified period, the Award shall terminate to the extent not exercised on the
last day of the specified period or the last day of the original term of the
Award, whichever occurs first.
(iii) Any Award designated as an Incentive Share Option to the
extent not exercised within the time permitted by law for the exercise of
Incentive Share Options following the termination of a Grantee's Continuous
Service shall convert automatically to a Non-Qualified Share Option and
thereafter shall be exercisable as such to the extent exercisable by its terms
for the period specified in the Award Agreement.
9. Conditions Upon Issuance of Shares.
----------------------------------
(a) Shares shall not be issued pursuant to the exercise of an Award
unless the exercise of such Award and the issuance and delivery of such Shares
pursuant thereto shall comply with all Applicable Laws, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
(b) As a condition to the exercise of an Award, the Company may
require the person exercising such Award to represent and warrant at the time of
any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any
Applicable Laws.
10. Adjustments Upon Changes in Capitalization. Subject to any required
------------------------------------------
action by the shareholders of the Company, the number of Shares covered by each
outstanding Award, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Awards have yet been granted or which
have been returned to the Plan, the exercise or purchase price of each such
outstanding Award, the maximum number of Shares with respect to which Awards may
be granted to any Grantee in any fiscal year of the Company, as well as any
other terms that the Administrator determines require adjustment shall be
proportionately adjusted for (i) any increase or decrease in the number of
issued Shares resulting from a share split, reverse share split, share dividend,
combination or reclassification of the Shares, or similar transaction affecting
the Shares, (ii) any other increase or decrease in the number of issued Shares
effected without receipt of consideration by the Company, or (iii) as the
Administrator may determine in its discretion, any other transaction with
respect to Ordinary Shares including a corporate merger, consolidation,
acquisition of property or equity, separation (including a spin-off or other
distribution of shares or property), reorganization, liquidation (whether
partial or complete) or any similar transaction; provided, however that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration. " Such adjustment shall be
made by the Administrator and its determination shall be final, binding and
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conclusive. Except as the Administrator determines, no issuance by the Company
of shares of any class, or securities convertible into shares of any class,
shall affect, and no adjustment by reason hereof shall be made with respect to,
the number or price of Shares subject to an Award. In the event of a Spin-off
Transaction, the Administrator may in its discretion make such adjustments and
take such other action as it deems appropriate with respect to outstanding
Awards under the Plan, including but not limited to: (i) adjustments to the
number and kind of shares, the exercise or purchase price per share and the
vesting periods of outstanding Awards, (ii) prohibit the exercise of Awards
during certain periods of time prior to the consummation of the Spin-off
Transaction, or (iii) the substitution, exchange or grant of Awards to purchase
securities of the Subsidiary; provided that the Administrator shall not be
obligated to make any such adjustments or take any such action hereunder.
11. Corporate Transactions and Changes in Control.
---------------------------------------------
(a) Termination of Award to Extent Not Assumed in Corporate
-------------------------------------------------------
Transaction. Effective upon the consummation of a Corporate Transaction, all
- -----------
outstanding Awards under the Plan shall terminate. However, all such Awards
shall not terminate to the extent they are Assumed in connection with the
Corporate Transaction.
1. Acceleration of Award Upon Corporate Transaction or Change in
-------------------------------------------------------------
Control.
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2. Corporate Transaction. Except as provided otherwise in an
---------------------
individual Award Agreement, in the event of a Corporate Transaction, for the
portion of each Award that is neither Assumed nor Replaced, such portion of the
Award shall automatically become fully vested and exercisable and be released
from any repurchase or forfeiture rights (other than repurchase rights
exercisable at Fair Market Value) for all of the Shares at the time represented
by such portion of the Award, immediately prior to the specified effective date
of such Corporate Transaction, provided that the Grantee's Continuous Service
has not terminated prior to such date. The portion of the Award that is not
Assumed shall terminate under subsection (a) of this Section 11 to the extent
not exercised prior to the consummation of such Corporate Transaction.
3. Change in Control. Except as provided otherwise in an
-----------------
individual Award Agreement, in the event of a Change in Control (other than a
Change in Control which also is a Corporate Transaction), each Award which is at
the time outstanding under the Plan automatically shall become fully vested and
exercisable and be released from any repurchase or forfeiture rights (other than
repurchase rights exercisable at Fair Market Value), immediately prior to the
specified effective date of such Change in Control, for all of the Shares at the
time represented by such Award, provided that the Grantee's Continuous Service
has not terminated prior to such date.
4. Effect of Acceleration on Incentive Share Options. Any Incentive
-------------------------------------------------
Share Option accelerated under this Section 11 in connection with a Corporate
Transaction or Change in Control shall remain exercisable as an Incentive Share
Option under the Code only to the extent the $100,000 dollar limitation of
Section 422(d) of the Code is not exceeded. To the extent such dollar limitation
is exceeded, the excess Options shall be treated as Non-Qualified Share Options.
14
12. Effective Date and Term of Plan. The Plan shall become effective upon
-------------------------------
the earlier to occur of its adoption by the Board or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated. Subject to Section 17, below, and Applicable
Laws, Awards may be granted under the Plan upon its becoming effective.
13. Amendment, Suspension or Termination of the Plan.
------------------------------------------------
(a) The Board may at any time amend, suspend or terminate the Plan;
provided, however, that no such amendment shall be made without the approval of
the Company's shareholders to the extent such approval is required by Applicable
Laws, or if such amendment would change any of the provisions of Section
4(b)(vi) or this Section 13(a).
(b) No Award may be granted during any suspension of the Plan or after
termination of the Plan.
(c) No suspension or termination of the Plan (including termination of
the Plan under Section 12, above) shall adversely affect any rights under Awards
already granted to a Grantee.
14. Reservation of Shares.
---------------------
(a) The Company, during the term of the Plan, will at all times
reserve and keep available such number of Shares as shall be sufficient to
satisfy the requirements of the Plan.
(b) The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
15. No Effect on Terms of Employment/Consulting Relationship. The Plan
--------------------------------------------------------
shall not confer upon any Grantee any right with respect to the Grantee's
Continuous Service, nor shall it interfere in any way with his or her right or
the right of the Company or any Related Entity to terminate the Grantee's
Continuous Service at any time, with or without Cause, and with or without
notice. The ability of the Company or any Related Entity to terminate the
employment of a Grantee who is employed at will is in no way affected by its
determination that the Grantee's Continuous Service has been terminated for
Cause for the purposes of this Plan.
16. No Effect on Retirement and Other Benefit Plans. Except as specifically
-----------------------------------------------
provided in a retirement or other benefit plan of the Company or a Related
Entity, Awards shall not be deemed compensation for purposes of computing
benefits or contributions under any retirement plan of the Company or a Related
Entity, and shall not affect any benefits under any other benefit plan of any
kind or any benefit plan subsequently instituted under which the availability or
amount of benefits is related to level of compensation. The Plan is not a
"Retirement Plan" or "Welfare Plan" under the Employee Retirement Income
Security Act of 1974, as amended.
15
17. Shareholder Approval. The grant of Incentive Share Options under the
--------------------
Plan shall be subject to approval by the shareholders of the Company within
twelve (12) months before or after the date the Plan is adopted excluding
Incentive Share Options issued in substitution for outstanding Incentive Share
Options pursuant to Section 424(a) of the Code. Such shareholder approval shall
be obtained in the degree and manner required under Applicable Laws. The
Administrator may grant Incentive Share Options under the Plan prior to approval
by the shareholders, but until such approval is obtained, no such Incentive
Share Option shall be exercisable. In the event that shareholder approval is not
obtained within the twelve (12) month period provided above, all Incentive Share
Options previously granted under the Plan shall be exercisable as Non-Qualified
Share Options.
18. Unfunded Obligation. Grantees shall have the status of general
-------------------
unsecured creditors of the Company. Any amounts payable to Grantees pursuant to
the Plan shall be unfunded and unsecured obligations for all purposes,
including, without limitation, Title I of the Employee Retirement Income
Security Act of 1974, as amended. Neither the Company nor any Related Entity
shall be required to segregate any monies from its general funds, or to create
any trusts, or establish any special accounts with respect to such obligations.
The Company shall retain at all times beneficial ownership of any investments,
including trust investments, which the Company may make to fulfill its payment
obligations hereunder. Any investments or the creation or maintenance of any
trust or any Grantee account shall not create or constitute a trust or fiduciary
relationship between the Administrator, the Company or any Related Entity and a
Grantee, or otherwise create any vested or beneficial interest in any Grantee or
the Grantee's creditors in any assets of the Company or a Related Entity. The
Grantees shall have no claim against the Company or any Related Entity for any
changes in the value of any assets that may be invested or reinvested by the
Company with respect to the Plan.
19. Construction. Captions and titles contained herein are for convenience
------------
only and shall not affect the meaning or interpretation of any provision of the
Plan. Except when otherwise indicated by the context, the singular shall include
the plural and the plural shall include the singular. Use of the term "or" is
not intended to be exclusive, unless the context clearly requires otherwise.
16