¨
|
Preliminary
Proxy Statement
|
¨
|
Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
x
|
Definitive
Proxy Statement
|
¨
|
Definitive
Additional Materials
|
|
¨
|
Soliciting
Material Pursuant to Rule 14a-12
|
x
|
No
fee required
|
¨
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
(1)
|
Title
of each class of securities to which transaction
applies:
|
(2)
|
Aggregate
number of securities to which transaction
applies:
|
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was
determined):
|
(4)
|
Proposed
maximum aggregate value of
transaction:
|
(5)
|
Total
fee paid:
|
¨
|
Fee
paid previously with preliminary
materials.
|
¨
|
Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its
filing.
|
(1)
|
Amount
Previously Paid:
|
(2)
|
Form,
Schedule or Registration Statement
No.:
|
(3)
|
Filing
Party:
|
(4)
|
Date
Filed:
|
Blacksands
Petroleum, Inc.
25025
I-45 N., Ste. 410
The
Woodlands, TX 77380
E-mail:
info@blacksandspetroleum.com
Website:
www.blacksandspetroleum.com
|
|
●
|
The
election of the Nominees to the Company’s Board of Directors to serve
until the Company’s 2011 Annual Meeting of Stockholders, or until
successors are duly elected and qualified. The following are
Nominees for election as Directors: Mark Holcombe, Bruno Mosimann, Eric
Urban, Rick Wilson, and David
DeMarco;
|
|
●
|
To
approve the amended 2008 Company Stock Option
Plan;
|
|
●
|
Ratification
of appointment of Independent Registered Public Accountants, MaloneBailey
LLP; and
|
|
●
|
Any
other business that may properly come before the
meeting.
|
|
●
|
The
election of five (5) directors for terms expiring at the next Annual
Meeting in 2011;
|
|
●
|
The
approval of the amended 2008 Company Stock Option
Plan;
|
|
●
|
Ratification
of the appointment of MaloneBailey LLP as Independent Registered Public
Accountants; and
|
|
●
|
Any
other business that may properly come before the
meeting.
|
|
●
|
Signing
your proxy card and mailing it in the enclosed, prepaid and addressed
envelope;
|
|
●
|
Signing
and faxing your proxy card to our transfer agent for proxy voting at the
number provided on the proxy card;
|
|
●
|
Voting
over the Internet by following the procedures provided on the proxy card;
or
|
|
●
|
Attending
the Annual Meeting and voting in
person.
|
|
●
|
Signing
another proxy with a later date and mailing it to the Company’s Corporate
Secretary at the Company’s principal executive offices, so long as it is
received prior to
7 p.m., EST, on June 14,
2010;
|
|
●
|
Voting
in person at the Annual Meeting; or
|
|
●
|
Giving
written notice to the Company’s Secretary at the address given above,
prior to 7 p.m.,
EST, on June 14, 2010.
|
|
●
|
Submit
a properly executed proxy card (even if you do not provide voting
instructions); or
|
|
●
|
Attend
the Annual Meeting and vote in
person.
|
|
●
|
FOR each director
nominee for terms expiring in 2011;
|
|
●
|
FOR the approval of the
amended 2008 Company Stock Option Plan;
and
|
|
●
|
FOR the ratification of
the appointment of MaloneBailey LLP as Independent Registered Public
Accountants.
|
1.
|
Form
Proxy Card;
|
2.
|
A
Letter to Stockholders dated May 12, 2010;
and
|
3.
|
Form
10-K for the year ended October 31,
2009.
|
|
●
|
Mark
Holcombe;
|
|
●
|
Bruno
Mosimann;
|
|
●
|
Eric
Urban;
|
|
●
|
Rick
Wilson; and
|
|
●
|
David
DeMarco.
|
Name and
Municipality of
Residence
|
Current Office
with Blacksands
|
Principal Occupation in the
Last Five Years
|
Director Since
|
|||
Mark
Holcombe
Nassau,
Bahamas
|
Director,
Acting CFO
|
Appointed
President & CEO August 1, 2009, through May 6,
2010, Acting CFO of the Company since September 1, 2009, Consultant to the
Company, Founder, Partner and Managing Director of Stirling Partners
Limited since 2006; Former Head of Corporate Development,
Private Equity and Chief Compliance Officer at GEM Global Equities
Management, S.A. (2004-2006); CFO, Vice President Finance and
Corporate Development for Excalibur Pallet Group, LTD.; Director of
Sandfield Ventures Corporation since 2007, PNG LNG Ltd. since 2007, and
Pacific LNG Operations LTD. since 2007.
|
November
2007
|
|||
Rick Wilson
Vancouver,
British
Columbia,
Canada
|
Director
|
President,
Regent Ventures Ltd. since 2006; Director of Regent
Ventures Ltd. from 1993 to current; President of Emerson Explorations/GBS
Gold International Firm from 1998 to 2006.
|
February
2007
|
|||
Eric
Urban
Houston,
Tx
|
Director
|
Land
Manager, Gaither Petroleum Corporation since 2008; Landman, Gaither
Petroleum Corporation from 2005 to 2008.
|
March
2010
|
|||
Bruno
Mosimann
Zurich,
Switzerland
|
Director
|
President
and managing director of Romofin AG (investment management) since July
1985.
|
May
2006
|
|||
David
DeMarco
Houston,
Tx
|
President,
Chief Executive Officer and Director
|
Appointed
President & CEO of Blacksands May 6, 2010; Vice President of Business
Development, Gaither Petroleum Corporation from 2004 to April
2010.
|
May
2010
|
|
●
|
Mark
Holcombe;
|
|
●
|
Bruno
Mosimann (independent);
|
|
●
|
Eric
Urban; and
|
|
●
|
Rick
Wilson.
|
Name
|
Fees
Earned
or Paid
in Cash
(US$)
|
Stock
Awards(4)
($)
|
Option
Awards
($)
|
Non-Equity
Incentive Plan
Compensation
($)
|
Non-Qualified
Compensation
Earnings
($)
|
All Other
Compensation
($)
|
Total
(US$)
|
|||||||||||||||||||||
Bruno
Mosimann
|
17,500 | Nil | Nil | Nil | Nil | Nil | 17,500 | |||||||||||||||||||||
Darren
Stevenson (1)
|
5,000 | Nil | Nil | Nil | Nil | Nil | 5,000 | |||||||||||||||||||||
Mark
Holcombe (2)
|
15,000 | Nil | Nil | Nil | Nil | Nil | 15,000 | |||||||||||||||||||||
Paul
A. Parisotto (3)
|
2,500 | Nil | Nil | Nil | Nil | Nil | 2,500 | |||||||||||||||||||||
Rick
Wilson (3)
|
1,667 | Nil | Nil | Nil | Nil | Nil | 1,667 |
(1)
|
Mr.
Stevenson was the President and CEO and director of the Company until
October 31, 2007, and was terminated as President and CEO effective
November 1, 2007. In January 2008, the Board of Directors
approved Directors’ fees to be paid to Mr. Stevenson effective November 1,
2007. Mr. Stevenson resigned from the Board of Directors
effective January 21, 2009.
|
(2)
|
Mr.
Holcombe joined the Board as an independent director effective November 1,
2007. In January 2008, the Board of Directors approved
Directors’ fees to be paid to Mr. Holcombe effective November 1,
2007. Mr. Holcombe began President and CEO effective August 1,
2009, and CFO effective September 1, 2009 and effective that date, was no
longer eligible for directors’ fees. Mr. Holcombe resigned as
President and CEO of the Company on May 6, 2010, but he is remaining as
Acting CFO.
|
(3)
|
Mr.
Parisotto and Mr. Wilson ceased being senior executive officers of the
Company August 1, 2009 and September 1, 2009 respectively, and were
eligible for director fees for the period from August 1, 2009 to October
31, 2009 for Mr. Parisotto, and September 1, 2009 to October 31, 2009 for
Mr. Wilson. Mr. Parisotto resigned from the Board of Directors effective
April 30, 2010.
|
(4)
|
In
March 20010, stock options were approved for granting by the Board of
Directors, but these options have not been granted. See Equity
Compensation Plans below.
|
|
●
|
Quarterly
payments at the end of the Company’s fiscal quarters in the amount of
US$2,500.
|
|
●
|
No
cash compensation for attendance of any
meeting.
|
|
●
|
Any
expenses, travel, administrative, telephone or other costs associated with
a Board member’s fulfilling his or her duties as a Board member will be
reimbursed by Blacksands.
|
|
●
|
Paul
Parisotto’s compensation ceased effective April 30th,
2010 with his resignation from the Board of
Directors.
|
|
●
|
Quarterly
payments at the end of the Company’s fiscal quarters in the amount of
US$5,000.
|
|
●
|
Any
expenses, travel, administrative, telephone or other costs associated with
a Board member’s fulfilling his or her duties as a Board member were
reimbursed by Blacksands.
|
Name and Principal
Position
|
Year
|
Salary
$
|
Bonus
$
|
Stock
Awards
$
|
Options
Awards
$
|
Non-Equity
Incentive Plan
Compensation
$
|
Non-Qualified
Deferred
Compensation
Earnings
$
|
All Other
Compensation
$
|
Total $
|
|||||||||||||||||||||||||
Paul A. Parisotto
(1)
|
2009
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 165,793 | $ | 165,793 | |||||||||||||||||
2008
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 240,318 | $ | 240,318 | ||||||||||||||||||
2007
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 70,140 | $ | 70,140 | ||||||||||||||||||
Rick Wilson (2)
|
2009
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 45,340 | $ | 45,340 | |||||||||||||||||
2008
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 58,114 | $ | 58,114 | ||||||||||||||||||
2007
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 19,428 | $ | 19,428 | ||||||||||||||||||
Mark Holcombe (3)
|
2009
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 45,000 | $ | 45,000 | |||||||||||||||||
2008
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | 20,000 | $ | 20,000 | ||||||||||||||||||
2007
|
$ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil | $ | nil |
(1)
|
Paul
Parisotto was our President and Chief Executive Officer from November 1,
2007 to July 31, 2009, and became a director on August 3, 2007. Under the
terms of a consulting agreement between Access and Coniston (a company
controlled by Paul Parisotto), Access has paid or accrued for Coniston
Cdn$176,667 (US$163,293) (excluding goods and services tax) for the year
ended October 31, 2009 for management services provided to Access. Access
paid Coniston Cdn$260,000 (US$240,318) for the year ended October 31,
2008. Mr. Parisotto begun receiving directors fees effective
August 1, 2009 and $2,500 was accrued for these director fees for the
period of August 1, 2009 to October 31, 2009 and is included in “All Other
Compensation”. This director fee amount was paid subsequent to the year
end. The liability for amounts owing to Coniston from Access
accrued from August 1, 2009 to October 31, 2009 is the sole responsibility
of Access effective with the disposition of a majority ownership of Access
on April 30, 2010.
|
(2)
|
Rick
Wilson was paid Cdn$47,250 (US$43,673) for services to the Company until
August 31, 2009. He was paid Cdn$70,000 (US$64,701) for the year ended
October 31, 2008. Mr. Wilson received director fees effective September 1,
2009, and $1,667 was accrued for him for the period of September 1, 2009
to October 31, 2009 and is included in “All Other Compensation”. The
amount was paid subsequent to the year
end.
|
(3)
|
Mark Holcombe was
appointed President and Chief Executive Officer (CEO) effective August 1,
2009, and Chief Financial Officer (CFO) effective September 1, 2009. For
his services as President and CEO, he receives US$10,000 a month, with an
agreement that his services are on a month-to-month basis. For the year
ended October 31, 2009, he was paid starting August 1, 2009 for a total of
US$30,000. He does not receive any additional compensation for his
services as CFO. Mr. Holcombe also received directors fees of US$15,000 in
2009 (US$20,000 in 2008) included in “All Other Compensation”. Effective
May 6, 2010, Mr. Holcombe resigned as President and CEO. Mr. Holcombe
remains the Acting CFO of the
Company.
|
Plan category
|
Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
(a)
|
Weighted-average
exercise price of
outstanding options,
warrants and rights
(b)
|
Number of securities remaining
available for future issuance
under equity compensation
plans (excluding securities
reflected in column (a))
|
|||||||||
Equity
compensation plans approved by security holders
|
Nil | $ | Nil | 6,000,000 | ||||||||
Equity
compensation plans not approved by security holders
|
Nil | $ | Nil | Nil | ||||||||
Total
|
Nil | $ | Nil | 6,000,000 |
TITLE
OF CLASS
|
NAME
OF
BENEFICIAL
OWNER
|
SHARES
OF
COMMON
STOCK
|
OPTIONS
(VESTED)
|
PERCENT
OF
CLASS
|
||||||||||
Common
|
Mark
Holcombe
|
0 | 0 | 0 | % | |||||||||
Common
|
Rick
Wilson
|
0 | 0 | 0 | % |
Common
|
Bruno
Mosimann
|
0 | 0 | 0 | % | |||||||||
Common
|
Eric
Urban
|
12,000 | 0 | 0 | % | |||||||||
Directors
and Officers as a Group consisting of persons
|
12,000 | 0 | 0 | % |
|
●
|
Mark
Holcombe, Director;
|
|
●
|
Rick
Wilson, Director;
|
|
●
|
Eric
Urban, Director;
|
|
●
|
Bruno
Mosimann, Director and
|
|
●
|
David
DeMarco, President, CEO and
Director.
|
|
1)
|
The
application of accounting principles to a specified transaction, either
completed or proposed; or the type of audit opinion that might be rendered
on our financial statements, and neither a written report nor oral advice
was provided to us that we considered an important factor in reaching a
decision as to the accounting or financial reporting issue;
or
|
|
2)
|
Any
matter that was either the subject of a disagreement or a reportable event
(reportable under Regulation S-K, Item
304(a)(1)(iv)).
|
By
Order of the Board of Directors,
|
|
/s/
David DeMarco
|
|
David
DeMarco
|
|
CEO
and President
|
ARTICLE
1
|
PURPOSE
OF STOCK OPTION
|
2
|
ARTICLE
2
|
DEFINED
TERMS
|
2
|
ARTICLE
3
|
ADMINISTRATION
OF THE PLAN
|
4
|
ARTICLE
4
|
SHARES
SUBJECT TO PLAN
|
5
|
ARTICLE
5
|
ELIGIBILITY,
GRANT AND TERMS OF OPTIONS
|
5
|
ARTICLE
6
|
TERMINATION
OF EMPLOYMENT; DEATH
|
6
|
ARTICLE
7
|
EXERCISE
OF OPTIONS
|
7
|
ARTICLE
8
|
CERTAIN
ADJUSTMENTS
|
8
|
ARTICLE
9
|
AMENDMENT
OR DISCONTINUANCE OF PLAN
|
9
|
ARTICLE
10
|
MISCELLANEOUS
PROVISIONS
|
10
|
ARTICLE
11
|
SHAREHOLDER
AND REGULATORY APPROVAL
|
12
|
ARTICLE
12
|
U.S.
PARTICIPANTS
|
12
|
1.01
|
The
purpose of the Stock Option Plan (the “Plan”) is to enhance shareholder
value by (i) providing a long-term incentive to the Corporation's key
service providers, including directors, officers and employees; (ii)
improving the ability of the Corporation to attract, retain and motivate
its key personnel; and (iii) encouraging participants in the Plan to
maintain a significant level of investment in the Corporation, thereby
closely aligning their personal interests with those of the
shareholders.
|
2.01
|
"Associate"
means any Body Corporate in which the Corporation beneficially owns,
directly or indirectly, voting securities carrying more than 10% of the
voting rights attached to all voting securities of the Body Corporate for
the time being outstanding and any partnership, joint venture or other
similar entity in which the Corporation beneficially owns, directly or
indirectly, voting interests or rights which represent in excess of 50% of
the voting interests or rights of all partners, joint ventures, or other
persons therein;
|
2.02
|
"Board"
means the board of directors of the
Corporation;
|
2.03
|
"Body
Corporate" includes a company or other body corporate wherever or
however incorporated;
|
2.04
|
"cause"
means (i) the wilful, substantial and continued failure by Optionee
substantially to perform his or her duties and obligations (other than any
such failure resulting from his or her incapacity due to physical or
mental illness), (ii) Optionee’s conviction or plea bargain of any felony
or gross misdemeanour involving moral turpitude, fraud or misappropriation
of funds or (iii) the wilful engaging by Optionee in misconduct which
causes substantial injury to the Corporation or any Subsidiary, any of
their other employees or the employees of their clients, whether
monetarily or otherwise. For purposes of this paragraph, no
action or failure to act on Optionee’s part shall be considered “wilful”
unless done or omitted to be done, by Optionee in bad faith and without
reasonable belief that his or her action or omission was in the best
interests of the Corporation;
|
2.05
|
"Code"
means the United States Internal Revenue Code of 1986, as amended from
time to time, and any regulations promulgated there
under;
|
2.06
|
"Corporation"
means Blacksands Petroleum, Inc., a corporation existing pursuant to the
laws of the State of Nevada, including any successor corporation
thereto;
|
2.07
|
"Change of
Control" shall be deemed to have occurred if any person or any
group of two or more persons acting in concert, becomes the beneficial
owner, directly or indirectly, of voting securities of the Corporation
representing, or acquires the right to control or direct, 50% or more of
the outstanding voting securities of the Corporation, including, without
limitation, as a result of a take-over bid, and for the purposes hereof,
"voting security" means any security other than a debt security of the
Corporation carrying a voting right either under all circumstances or
under some circumstances that occurred and are
continuing;
|
2.08
|
"Eligible
Person" means
|
|
(a)
|
any
director, officer or employee of the Corporation or any Subsidiary;
or
|
|
(b)
|
any
consultant or advisor of the Corporation or any Subsidiary, but only if
such consultant or advisor:
|
|
(i)
|
is
a natural person;
|
|
(ii)
|
provides
bona fide services to the Corporation;
and
|
|
(iii)
|
the
services provided by such consultant or advisor are not in connection with
the offer or sale of securities in a capital-raising transaction, and do
not directly or indirectly promote or maintain a market for the
Corporation’s securities.
|
2.09
|
"Exchange
Act" means the United States Securities Exchange Act of 1934, as
amended;
|
2.10
|
"Family
Member" means a “family member” as such term is defined in the
General Instructions to Form S-8 (or successor to such Instructions or
such Form) under the Securities
Act;
|
2.11
|
"Insider"
means any insider of the Corporation (as such term is defined in the
Securities Act (Ontario), as such provision is from time to time amended,
varied or re-enacted), other than a person who falls within that
definition solely by virtue of being a director or senior officer of a
Subsidiary, and includes an Associate of any such
insider;
|
2.12
|
"Market
Price" as of a certain date means the fair market value of the
Shares on such date as determined by the Board in its sole discretion;
provided, however, that if the Shares are listed or quoted on a Stock
Exchange on such date, Market Price means (i) the closing sale price of
Shares on the Stock Exchange on such date, or (ii) if such date is not a
Trading Day or if no sales occurred on such Trading Day, the closing sales
price of Shares on the Stock Exchange on the most preceding date that is a
Trading Day on which sales
occurred;
|
2.13
|
"Option"
means an option to purchase Shares granted to an Eligible Person under the
Plan pursuant to Article V hereof;
|
2.14
|
"Option
Agreement" means any written agreement, contract or other
instrument or document evidencing any Option granted under the
Plan. Each Option Agreement shall be subject to the applicable
terms and conditions of the Plan and any other terms and conditions (not
inconsistent with the Plan) determined by the
Board;
|
2.15
|
"Option
Price" means the price per Share, determined by the Board, at which
shares may be purchased under the Option, as the same may be adjusted from
time to time in accordance with Article VIII
hereof;
|
2.16
|
"Optionee"
means an Eligible Person to whom an Option has been granted and who
continues to hold such Options;
|
2.17
|
"Person"
means any individual or entity, including a corporation, partnership,
limited liability company, association, joint venture or
trust;
|
2.18
|
"Plan"
means the Blacksands Petroleum, Inc. stock option plan, as embodied
herein, as the same may be amended or varied from time to
time;
|
2.19
|
"Rule
16b-3" means Rule 16b-3 under the Exchange
Act;
|
2.20
|
"Securities
Act" means the United States Securities Act of 1933, as
amended;
|
2.21
|
"Shares"
means the common shares of the Corporation, or, in the event of an
adjustment provided for in Article VIII hereof, such other shares or
securities to which an Optionee may be entitled upon the exercise of an
Option as a result of such
adjustment;
|
2.22
|
"Stock
Exchange" means the principal stock exchange or quotation system
upon which the Shares are listed or posted for trading or quoted, as
determined by the Board from time to time, and shall initially be the
Over-the-Counter Bulletin Board;
|
2.23
|
"Subsidiary
" means any entity that is controlled by the Corporation directly, or
indirectly through one or more intermediaries, and in which the
Corporation directly or indirectly owns at least 20% of the outstanding
voting securities; and
|
2.24
|
"Trading
Day" means any day on which the Stock Exchange is open for
trading.
|
3.01
|
The
Plan shall be administered by the
Board.
|
3.02
|
The
Board shall have the power, where consistent with the general purpose and
intent of the Plan and subject to the specific provisions of the Plan and
the corporate law of the State of
Nevada:
|
|
(a)
|
to
establish policies, and to adopt rules and regulations for carrying out
the purposes, provisions and administration of the Plan, and to amend,
suspend or waive such policies, rules and
regulations;
|
|
(b)
|
to
interpret and construe the Plan and to determine all questions pertaining
to the Plan or any Option;
|
|
(c)
|
to
determine which stock exchange or quotation system is the Stock
Exchange;
|
|
(d)
|
to
determine which Eligible Persons shall be granted Options and to grant
Options;
|
|
(e)
|
to
determine the number of Shares covered by each
Option;
|
|
(f)
|
to
determine the Option Price of each
Option;
|
|
(g)
|
to
determine the time or times when Options will be granted and will be
exercisable;
|
|
(h)
|
to
determine the expiration date of each
Option;
|
|
(i)
|
to
determine if the Shares that are issuable on the exercise of an Option
will be subject to any restrictions upon the exercise of such
Option;
|
(j)
|
to
prescribe the form of the Option Agreement relating to each Option, and to
amend or waive any term of any Option Agreement;
and
|
(k)
|
to
make any other determination and take any other action that the Board
deems necessary or desirable for the administration of the
Plan.
|
3.03
|
Unless
otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect
to the Plan or any Option shall be within the sole discretion of the
Board, may be made at any time and shall be final, conclusive and binding
upon any Eligible Person and any holder or beneficiary of any
Option.
|
3.04
|
Any
Options approved by the Board for any member thereof shall be subject to
confirmation by the Board. The Board may, in its discretion,
require as conditions to the grant or exercise of any Option that the
Optionee shall have:
|
(a)
|
represented,
warranted and agreed in form and substance satisfactory to the Corporation
that the Optionee is acquiring and will acquire such Option and any Shares
to be issued upon exercise thereof for such Optionee's own account, as the
case may be, and is acquiring such Shares, for the Optionee's own account,
for investment and not with a view to or in connection with any
distribution, that the Optionee has had access to such information as is
necessary to enable an evaluation of the merits and risks of such
investment;
|
(b)
|
agreed
to restrictions on issue, transfer and cancellation or to termination
arrangements in form and substance satisfactory to the Corporation and to
an endorsement on any Option Agreement or certificate representing the
Shares making appropriate reference to such restrictions;
and
|
(c)
|
agreed to indemnify the
Corporation in connection with the
foregoing.
|
4.01
|
The
maximum number of Shares reserved for issue pursuant to the Plan shall be
determined from time to time by the Board but, in any case, shall not
exceed, in the aggregate, 10% of the number of Shares
outstanding. Shares in respect of which Options are
surrendered, cancelled, terminated or otherwise expire without being
exercised shall be available for subsequent
Options.
|
4.02
|
In
the event of any subdivision, redivision, consolidation, reclassification,
reorganization, dividend, distribution, merger or other change that causes
(or would, if Options were outstanding, cause) an adjustment under Article
VIII, then the Board shall, in such manner as it may deem equitable,
adjust the number and type of Shares (or other securities or other
property) that thereafter may be made the subject of Options granted under
the Plan. The Board’s determination shall be final, binding and
conclusive.
|
5.01
|
Options
may be granted to any Eligible Person as determined by the Board from time
to time in accordance with the provisions
hereof.
|
5.02
|
Subject
as herein and otherwise specifically provided, the Board shall
determine: (i) which Eligible Persons are to be granted
Options; (ii) the time or times when Options will be granted; (iii) the
number of Shares subject to each Option; (iv) the Option Price of each
Option; (v) the expiration date of each Option; (vi) the extent to which
each Option is exercisable from time to time, including if the Shares
which are issuable on the exercise of an Option will be subject to any
restrictions upon the exercise of such Option; and (vii) any other terms
and conditions relating to each
Option.
|
5.03
|
Notwithstanding
any other provision contained
herein:
|
(a)
|
the
Option Price of any Option shall in no circumstances be lower than the
Market Price on the date on which the Option is
granted;
|
(b)
|
each
Option shall be governed by an Option Agreement;
and
|
(c)
|
in
no event may the term of an Option exceed ten (10) years from the date of
the grant of the Option.
|
5.04
|
An
Option is personal to the Optionee and may not be transferred or assigned,
except (i) by will or by the laws of descent and distribution, or (ii) if
approved by the Board, acting in its sole discretion, the Optionee may
transfer an Option to any Family Member of such Optionee, provided that
the transfer is not a “prohibited transfer for value” within the meaning
of Form S-8 or any successor Form and provided that the Family Member to
which the Option is transferred may not subsequently transfer such Option
except by will or by the laws of descent and
distribution.
|
5.05
|
No
Options shall be granted to any Optionee if such grant could result, at
any time, in:
|
(a)
|
the
number of Shares reserved for issuance pursuant to Options or other stock
options granted to Insiders exceeding 10% of the issued and outstanding
Shares;
|
(b)
|
the
issuance to Insiders, within a one-year period, of a number of Shares
exceeding 10% of the issued and outstanding
Shares;
|
(c)
|
the
issuance to any one Insider and such Insider's Associates, within a
one-year period, of a number of Shares exceeding 5% of the issued and
outstanding Shares; or
|
(d)
|
the
total number of Shares issuable to such Optionee pursuant to Options or
other stock options granted by the Corporation exceed 10% of the issued
and outstanding Shares.
|
5.06
|
For
the purposes of subsections 5.05(a), (b), (c), and (d) "issued and
outstanding Shares" is determined on the basis of the number of Shares
that are outstanding immediately prior to the Share issuance in question,
excluding Shares issued pursuant to Options or other stock options over
the preceding one year period. No Options shall be granted if such grant
would result in the number of Shares reserved for issuance pursuant to
Options or other stock options exceeding 10% of the issued and outstanding
Shares. For purposes of this Section 5.06, "issued and
outstanding Shares" is determined on the basis of the number of Shares
that are outstanding immediately prior to the grant of Options in
question, excluding Shares issued pursuant to Options or other stock
options over the preceding one year
period.
|
6.01
|
If,
before the expiry of an
Option:
|
(a)
|
an
Optionee ceases to be a director of the Corporation and any
Subsidiary;
|
(b)
|
an
Optionee voluntarily resigns his office or employment with the Corporation
and any Subsidiary;
|
(c)
|
an
Optionee voluntarily terminates his engagement to provide ongoing
consulting or advisory services to the Corporation and any
Subsidiary;
|
(d)
|
the
Optionee's employment or office with the Corporation and any Subsidiary is
terminated by the Corporation or Subsidiary without
cause;
|
(e)
|
the
Optionee's engagement to provide ongoing consulting or advisory services
to the Corporation and any Subsidiary is terminated by the Corporation or
Subsidiary without
cause; or
|
(f)
|
an
Optionee retires from his office or employment with the Corporation and
any Subsidiary upon attaining the mandatory retirement age established by
the Corporation or Subsidiary from time to
time;
|
6.02
|
If
before the expiry of an Option, an Optionee dies or Optionee’s
relationship with the Corporation and any Subsidiary becoming disabled
(within the meaning of section 22(e)(3) of the Code), the Options granted
to such Optionee shall be exercisable by the Optionee, the Optionee’s
guardian or the personal representatives, heirs or legatees of the
deceased Optionee during the six (6) month period after the date of death
of the Optionee or date of termination of relationship as a result of the
Optionee’s disability, as applicable (but in any case, prior to the expiry
of the Option in accordance with its terms), to the same extent that the
Option would have been exercisable by such Optionee on the date of such
Optionee’s termination of relationship due to death or
disability. After such period, the Option and all rights of the
Optionee there under shall immediately expire and terminate. If before the
expiry of an Option, the Optionee's employment or office with the
Corporation and any Subsidiary is terminated for cause or the Optionee's
engagement to provide ongoing consulting or advisory services to the
Corporation or to an entity controlled by the Corporation is terminated
for cause, the Option and all rights of the Optionee there under shall
immediately expire and
terminate.
|
6.03
|
If
the exercise period would otherwise expire (i) during a Blackout Period
(as defined below) applicable to the relevant Optionee or (ii) within ten
(10) trading days after the expiration of the Blackout Period applicable
to the relevant Optionee, the Term of the related Option shall expire on
the date that is the tenth trading day after the end of such Blackout
Period. For purposes of this Plan, “Blackout Period” means any
period during which the Optionee is prohibited by the Corporation’s
trading policy from trading in the Corporation’s
securities.
|
7.01
|
Subject
to the provisions of the Plan, an Option may be exercised from time to
time by delivery to the Corporation at its head office in Toronto,
Ontario, or such other location at which the Corporation’s head office is
located from time to time, a written notice of exercise addressed to the
Secretary of the Corporation specifying the number of Shares with respect
to which the Option is being exercised and accompanied by payment in full,
by cash or cheque, of the Option Price of the Shares to be purchased.
Certificates for such Shares shall be issued and delivered to the Optionee
within a reasonable time following the receipt of such notice and
payment.
|
7.02
|
Notwithstanding
any of the provisions contained in the Plan or in any Option, the
Corporation's obligation to issue Shares to an Optionee pursuant to the
exercise of an Option shall be subject
to:
|
(a)
|
compliance
with all relevant provisions of law, including, without limitation, the
Securities Act, the Exchange Act, the rules and regulations promulgated
there under, the requirements of the Stock Exchange and any other stock
exchange or quotation system on which Shares are then listed or quoted and
the corporate laws of the State of
Nevada;
|
(b)
|
completion
of such registration or other qualification of such Shares or obtaining
approval of such governmental authority or regulatory authority if any, as
the Board shall determine to be necessary or advisable in connection with
the authorization, issuance or sale
thereof;
|
(c)
|
the
admission of such Shares to listing or quotation on the Stock Exchange and
any other stock exchange or quotation system on which Shares are then
listed or quoted;
|
(d)
|
the
receipt from the Optionee of such representations, warranties, agreements
and undertakings, as the Board determines to be necessary or advisable in
order to safeguard against the violation of the securities laws of any
jurisdiction; and
|
(e)
|
the
satisfaction of any conditions on exercise prescribed pursuant to section
3.04 hereof.
|
8.01
|
In
the event of any subdivision or redivision of the Shares into a greater
number of Shares at any time after the grant of an Option to any Optionee
and prior to the expiration of the term of such Option, the Corporation
shall deliver to such Optionee at the time of any subsequent exercise of
his Option in accordance with the terms hereof, in lieu of the number of
Shares to which he was theretofore entitled upon such exercise, but for
the same aggregate consideration payable therefore, such number of Shares
as such Optionee would have held as a result of such subdivision or
redivision if, on the record date thereof, the Optionee had been the
registered holder of the number of Shares to which he was theretofore
entitled upon such exercise.
|
8.02
|
In
the event of any consolidation of the Shares into a lesser number of
Shares at any time after the grant of an Option to any Optionee and prior
to the expiration of the term of such Option, the Corporation shall
deliver to such Optionee at the time of any subsequent exercise of his
Option in accordance with the terms hereof, in lieu of the number of
Shares to which he was theretofore entitled upon such exercise, but for
the same aggregate consideration payable therefore, such number of Shares
as such Optionee would have held as a result of such consolidation if, on
the record date thereof, the Optionee had been registered holder of the
number of Shares to which he was theretofore entitled upon such
exercise.
|
8.03
|
If
at any time after the grant of an Option to any Optionee and prior to the
expiration of the term of such Option, the Shares shall be reclassified,
reorganized or otherwise changed, otherwise than as specified in sections
8.01 and 8.02 hereof or, subject to the provisions of subsection 9.05(a)
hereof, the Corporation shall consolidate or merge with or into another
corporation (the corporation resulting or continuing from such
consolidation or merger being herein called the "Successor Corporation"),
the Optionee shall be entitled to receive upon the subsequent exercise of
his Option in accordance with the terms hereof and shall accept in lieu of
the number of Shares to which he was theretofore entitled upon such
exercise but for the same aggregate consideration payable therefore, the
aggregate number of shares of the appropriate class and/or other
consideration from the Corporation or the Successor Corporation (as the
case may be) that the Optionee would have been entitled to receive as a
result of such reclassification, reorganization or other change or,
subject to the provisions of subsection 9.05(a) hereof, as a result of
such consolidation or merger, if on the record date of such
reclassification, reorganization, other change, or the effective date of
such consolidation or merger, as the case may be, he had been the
registered holder of the number of Shares to which he was theretofore
entitled upon such
exercise.
|
8.04
|
In
the event the Corporation should declare and pay a special cash dividend
or other distribution out of the ordinary course, a special dividend in
specie on the Shares, or a stock dividend other than in the ordinary
course, the Option Price of all Options outstanding on the record date of
such dividend or other distribution shall be reduced by an amount equal to
the cash payment or other distribution or the fair market value of the
dividend in specie or stock dividend or other distribution, as determined
by the Board in its sole discretion and provided, if required by the Stock
Exchange or any other stock exchange or quotation system on which Shares
are listed, that such reduction of the Option Price shall be subject to
prior approval by such stock exchange or quotation
system.
|
9.01
|
The
Board may amend, alter, suspend, discontinue or terminate the Plan at any
time; provided, however, that notwithstanding any other provision of the
Plan or any Option Agreement, without the approval of the shareholders of
the Corporation, no such amendment, alteration, suspension,
discontinuation or termination shall be made that, absent such
approval:
|
(a)
|
violates
the rules or regulations of the Stock Exchange or any other stock exchange
or quotation system that are applicable to the
Corporation;
|
(b)
|
increases
the number of Shares authorized under the Plan, except as provided by
section 4.02; or
|
(c)
|
permits
the award of Options at a price less than the Market Price on the date of
grant of the Option.
|
9.02
|
Any
amendment to the Plan shall, if required, be subject to the prior approval
of, or acceptance by, the Stock Exchange and any other stock exchange or
quotation system that are applicable to the
Corporation.
|
9.03
|
Notwithstanding
the foregoing, the Board may not amend the Plan or any Option Agreement in
a manner that materially and adversely affects any Option previously
granted to an Optionee without the consent of the Optionee, except to the
extent required by law or expressly permitted by the Plan or the Option
Agreement relating to such
Option.
|
9.04
|
Except
as provided in Article VIII hereof, no Option may be repriced or replaced,
regranted through cancellation, or otherwise modified, if the effect of
such replacement, regrant or modification is to reduce the Option Price of
such Option, without in each case the approval of the shareholders of the
Corporation.
|
9.05
|
Notwithstanding
anything contained to the contrary in this Plan or in any resolution of
the Board in implementation
thereof:
|
(a)
|
in
the event the Corporation proposes to merge or consolidate with any other
corporation (other than a wholly-owned Subsidiary) or to liquidate,
dissolve or wind-up, or in the event of a Change of Control, or in the
event of a take-over bid made in respect of the Corporation, the
Corporation shall have the right, upon written notice thereof to each
Optionee holding Options under the Plan, to permit the exercise of all
such Options prior to the earlier of (i) the close of business on that
date which is twenty (20) days following the date of such notice or (ii)
the close of business on the expiration date of the Option; and to
determine that upon the expiration of the applicable period, all rights of
the Optionees to such Options or to exercise same (to the extent not
theretofore exercised) shall ipso facto terminate and cease to have
further force or effect
whatsoever; and
|
(b)
|
in
the event of the sale by the Corporation of all or substantially all of
the assets of the Corporation as an entirety or substantially as an
entirety so that the Corporation shall cease to operate as an active
business, the Corporation shall have the right, upon written notice
thereof to each Optionee holding Options under the Plan, to permit the
exercise of any outstanding Option as to all or any part of the Shares in
respect of which the Optionee would have been entitled to exercise the
Option in accordance with the provisions of the Plan at the date of
completion of any such sale at any time up to and including, but not after
the earlier of: (i) the close of business on that date which is
thirty (30) days following the date of completion of such sale; and (ii)
the close of business on the expiration date of the Option; but the
Optionee shall not be entitled to exercise the Option with respect to any
other Shares. Upon the expiration of such period, all rights of
the Optionee to such Option or to exercise same (to the extent not
theretofore exercised) shall ipso facto terminate and cease to have
further force or effect
whatsoever.
|
9.06
|
Notwithstanding
the provisions of this Article IX, should changes be required to the Plan
by any securities commission, the Stock Exchange or any other stock
exchange, quotation system or the governmental or regulatory body of any
jurisdiction to which the Plan or the Corporation now is or hereafter
becomes subject, such changes shall be made to the Plan as are necessary
to conform with such requirements and, if such changes are approved by the
Board, the Plan, as amended, shall be filed with the records of the
Corporation and shall remain in full force and effect in its amended form
as of and from the date of its adoption by the
Board.
|
9.07
|
The
Board may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Option in the manner and to the extent it
shall deem desirable to carry the Plan into
effect.
|
10.01
|
No
Eligible Person or other person shall have any claim to be granted any
Option under the Plan, and there is no obligation for uniformity of
treatment of Eligible Persons or holders or beneficiaries of Options under
the Plan. The terms and conditions of Options need not be the
same with respect to any Optionee or with respect to different
Optionee.
|
10.02
|
No
Optionee will have rights under an Option granted to such Optionee unless
and until an Option Agreement shall have been duly executed on behalf of
the Corporation and, if requested by the Corporation, signed by the
Optionee, or until such Option Agreement is delivered and accepted through
any electronic medium in accordance with procedures established by the
Corporation.
|
10.03
|
In
the event that any provision of an Option Agreement conflicts with or is
inconsistent in any respect with the terms of the Plan as set forth herein
or subsequently amended, the terms of the Plan shall
control.
|
10.04
|
An
Optionee shall not have any rights as a shareholder of the Corporation
with respect to any of the Shares covered by such Option until the date of
issuance of a certificate for Shares upon the exercise of such Option, in
full or in part, and then only with respect to the Shares represented by
such certificate or
certificates.
|
10.05
|
Nothing
contained in the Plan shall prevent the Corporation or any Subsidiary from
adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific
cases.
|
10.06
|
Nothing
in the Plan or any Option shall confer upon a person any right to continue
or be re-elected as a director of the Corporation or any Subsidiary or any
right to continue in the employ of the Corporation or any Subsidiary, or
affect in any way the right of the Corporation or any Subsidiary to
terminate his employment at any time, or any right to continue to provide
consulting or advisory services, or affect in any way the right of the
Corporation or any Subsidiary to terminate such services at any time; nor
shall anything in the Plan or any Option be deemed or construed to
constitute an agreement, or an expression of intent, on the part of the
Corporation or any Subsidiary to extend the employment of any person
beyond the time which he would normally be retired pursuant to the
provisions of any present or future retirement plan of the Corporation or
any Subsidiary or any present or future retirement policy of the
Corporation or any Subsidiary, or beyond the time at which he or she would
otherwise be retired pursuant to the provisions of any contract of
employment with the Corporation or any
Subsidiary.
|
10.07
|
In
order to comply with all applicable United States, Canadian and foreign
federal, state, provincial or local income tax laws or regulations, the
Corporation may take such action as it deems appropriate to ensure that
all applicable federal, state, provincial or local payroll, withholding,
income or other taxes, which are the sole and absolute responsibility of
an Optionee, are withheld or collected from such Optionee. In
order to assist an Optionee in paying all or a portion of the federal,
state, provincial and local taxes to be withheld or collected upon
exercise or receipt of (or the lapse of restrictions relating to) an
Option, the Board, in its discretion and subject to such additional terms
and conditions as it may adopt, may permit the Optionee to satisfy such
tax obligation by (i) electing to have the Corporation withhold a portion
of the Shares otherwise to be delivered upon exercise or receipt of (or
the lapse of restrictions relating to) such Option with a Market Value
equal to the amount of such taxes or (ii) delivering to the Corporation
Shares other than Shares issuable upon exercise or receipt of (or the
lapse of restrictions relating to) such Option with a Market Value equal
to the amount of such taxes. The election, if any, must be made
on or before the date that the amount of tax to be withheld is
determined.
|
10.08
|
References
herein to any gender include all
genders.
|
10.09
|
The
validity, construction and effect of the Plan or any Option, and any rules
and regulations relating to the Plan or any Option, shall be determined in
accordance with the internal laws, and not the law of conflicts, of the
State of Nevada.
|
10.10
|
If
any provision of the Plan or any Option is or becomes or is deemed to be
invalid, illegal or unenforceable in any jurisdiction or would disqualify
the Plan or any Option under any law deemed applicable by the Board, such
provision shall be construed or deemed amended to conform to applicable
laws, or if it cannot be so construed or deemed amended without, in the
determination of the Board, materially altering the purpose or intent of
the Plan or the Option, such provision shall be stricken as to such
jurisdiction or Option, and the remainder of the Plan or any such Option
shall remain in full force and
effect.
|
10.11
|
Neither
the Plan nor any Option shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the
Corporation or any Subsidiary and an Eligible Person or any other
person. To the extent that any person acquires a right to
receive payments from the Corporation or any Subsidiary pursuant to an
Option, such right shall be no greater than the right of any unsecured
general creditor of the Corporation or any
Subsidiary.
|
10.12
|
No
compensation or benefit awarded to or realized by any Optionee under the
Plan shall be included for the purpose of computing such Optionee’s
compensation under any compensation-based retirement, disability, or
similar plan of the Corporation unless required by law or otherwise
provided by such other plan.
|
10.13
|
No
fractional Shares shall be issued or delivered pursuant to the Plan or any
Option, and the Board shall determine whether cash shall be paid in lieu
of any fractional Shares or whether such fractional Shares or any rights
thereto shall be cancelled, terminated or otherwise
eliminated.
|
10.14
|
Headings
are given to the sections and subsections of the Plan solely as a
convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision
thereof.
|
10.15
|
The
Plan is intended to comply in all respects with Rule 16b-3 or any
successor provision, as in effect from time to time, and in all events the
Plan shall be construed in accordance with the requirements of Rule
16b-3. If any Plan provision does not comply with Rule 16b-3 as
hereafter amended or interpreted, the provision shall be deemed
inoperative. The Board of Directors, in its absolute
discretion, may bifurcate the Plan so as to restrict, limit or condition
the use of any provision of the Plan with respect to persons who are
officers or directors subject to Section 16 of the Exchange Act without so
restricting, limiting or conditioning the Plan with respect to other
Eligible Persons.
|
10.16
|
The
holder of any Option granted hereunder acknowledges that the grant,
exercise, vesting or any payment with respect to such Option, and the sale
or other taxable disposition of the Shares acquired pursuant to the Plan,
may have tax consequences pursuant to United States or Canadian federal,
state, provincial or local laws or under foreign or other international
tax laws. Such a holder further acknowledges that such holder
is relying solely and exclusively on the holder’s own professional tax and
investment advisors with respect to any and all such matters (and is not
relying, in any manner, on the Corporation or any of its employees or
representatives). Finally, such a holder understands and agrees
that any and all tax consequences resulting from the Option and its grant,
exercise, vesting or any payment with respect thereto, and the sale or
other taxable disposition of the Shares acquired pursuant to the Plan, is
solely and exclusively the responsibility of such holder without any
expectation or understanding that the Corporation or any of its employees
or representatives will pay or reimburse such holder for such taxes or
other items.
|
11.01
|
The
Plan shall be subject to ratification by the shareholders of the
Corporation to be effected by a resolution passed at a meeting of the
shareholders of the Corporation, and to acceptance by the Stock Exchange
and any other relevant regulatory
authority.
|
12.01
|
Where
used in the Plan, with respect to U.S. Participants, the following terms
shall have the meanings ascribed to them in this section
12.01:
|
(a)
|
"Employee"
means, with respect to any U.S. Participant, a person who is an employee
of the Corporation (or of any Majority-Owned Subsidiary) for purposes of
section 422 of the Code;
|
(b)
|
"Fair Market
Value" means, with respect to any property (including, without
limitation, any Share), the fair market value, as of a given date, of such
property, determined by such methods or procedures as are established in
good faith from time to time by the Board. Unless otherwise
determined by the Board, the fair market value of a Share as of a given
date will be the Market
Price;
|
(c)
|
"Grant
Date" means, with respect to any Option, the date on which the
Board makes the determination to grant such Option and takes all actions
required under applicable law for the valid grant of such option or any
later date specified by the
Board;
|
(d)
|
"Incentive
Stock Option" means an Option that is intended to qualify as an
“incentive stock option” pursuant to section 422 of the
Code;
|
(e)
|
"Majority-Owned
Subsidiary" means any corporation (other than the Corporation) in
an unbroken chain of corporations beginning with the Corporation, if each
corporation (other than the last corporation) in such chain owns stock
possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such
chain. With respect to any U.S. Participant, the preceding
definition of the term “Majority-Owned Subsidiary” is intended to comply
with, and will be interpreted consistently with, the term defined in
section 424(f) of the
Code;
|
(f)
|
"Nonqualified
Stock Option" means an Option that is not an Incentive Stock
Option;
|
(g)
|
"Parent"
means any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation, if each corporation in such
chain (other than the Corporation) owns stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain. The preceding
definition of the term “Parent” is intended to comply with, and will be
interpreted consistently with, section 424(e) of the
Code;
|
(h)
|
"U.S.
Participant" means an Optionee who is a citizen of the United
States or a resident of the United States, in each case as defined in
section 7701(a)(30)(A) and section 7701(b)(1)of the Code;
and
|
(i)
|
"10%
Shareholder" means any person who owns, taking into account the
constructive ownership rules set forth in section 424(d) of the Code, more
than ten percent (10%) of the total combined voting power of all classes
of stock of the Corporation (or of any Parent or Majority-Owned
Subsidiary).
|
12.02
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Notwithstanding
any other provision of this Plan to the contrary, the aggregate number of
Shares available for Incentive Stock Options is 4,485,470, subject to
adjustment pursuant to Article VIII of this Plan and subject to the
provisions of sections 422 and 424 of the
Code.
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12.03
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Each
Option Agreement with respect to an Option granted to a U.S. Participant
shall specify whether the related Option is an Incentive Stock Option or a
Nonqualified Stock Option. If no such specification is made in
an Option Agreement, the related Option will be (a) an Incentive Stock
Option if all of the requirements under the Code that must be satisfied in
order for such Option to qualify as a Incentive Stock Option are satisfied
or (b) in all other cases, a Nonqualified Stock
Option.
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12.04
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In
addition to the other terms and conditions of this Plan (and
notwithstanding any other term or condition of this Plan to the contrary),
the following limitations and requirements will apply to an Incentive
Stock Option:
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(a)
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An
Incentive Stock Option may be granted only to an
Employee.
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(b)
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The
aggregate Fair Market Value of the Shares (determined as of the applicable
Grant Date) with respect to which Incentive Stock Options are exercisable
for the first time by any U.S. Participant during any calendar year
(pursuant to this Plan and all other plans of the Corporation and of any
Parent or Majority-Owned Subsidiary) will not exceed one hundred thousand
dollars (U.S.$100,000) or any other limitation subsequently set forth in
section 422(d) of the Code.
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(c)
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The
exercise price per Share payable upon exercise of an Incentive Stock
Option will be not less than one hundred percent (100%) of the Fair Market
Value of a Share on the applicable Grant Date; provided, however, that the
exercise price per Share payable upon exercise of an Incentive Stock
Option granted to a U.S. Participant who is a 10% Shareholder on the
applicable Grant Date will be not less than one hundred ten percent (110%)
of the Fair Market Value of a Share on the applicable Grant
Date.
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(d)
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No
Incentive Stock Option may be granted more than ten (10) years after the
earlier of (i) the date on which this Plan is adopted by the Board or (ii)
the date on which this Plan is approved by the shareholders of the
Corporation.
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(e)
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An
Incentive Stock Option will terminate and no longer be exercisable no
later than ten (10) years after the applicable Grant Date; provided,
however, that an Incentive Stock Option granted to a U.S. Participant who
is a 10% Shareholder on the applicable Grant Date will terminate and no
longer be exercisable no later than five (5) years after the applicable
Grant Date.
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(f)
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If
a U.S. Participant who has been granted an Incentive Stock Option ceases
to be an Employee, such Incentive Stock Option will be exercisable
pursuant to Article VI, except that the employment of a U.S. Participant
who has been granted an Incentive Stock Option will not be considered
interrupted or terminated upon (a) sick leave, military leave or any other
leave of absence approved by the Administrator that does not exceed ninety
(90) days in the aggregate; provided, however, that if reemployment upon
the expiration of any such leave is guaranteed by contract or applicable
law, such ninety (90) day limitation will not apply, or (b) a transfer
from one office of the Corporation (or of any Parent or Majority-Owned
Subsidiary) to another office of the Corporation (or of any Parent or
Majority-Owned Subsidiary) or a transfer between the Corporation and any
Parent or Majority-Owned
Subsidiary.
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(g)
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An
Incentive Stock Option granted to a U.S. Participant may be exercised
during such U.S. Participant’s lifetime only by such U.S.
Participant.
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(h)
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An
Incentive Stock Option granted to a U.S. Participant may not be
transferred, assigned, pledged, hypothecated or otherwise disposed of by
such U.S. Participant, except by will or by the laws of descent and
distribution.
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12.05
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In
the event that this Plan as amended and re-approved by the Board on April
21, 2010 is not approved by the shareholders of the Corporation within
twelve (12) months before or after April 21, 2010, any Incentive Stock
Option granted under this Plan will automatically be deemed to be a
Nonqualified Stock Option.
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