360networks inc.
1998 LONG TERM INCENTIVE AND SHARE AWARD PLAN
(AMENDED)
1. PURPOSES
The purposes of the 1998 Long Term Incentive and Share Award Plan are to advance
the interests of 360networks inc. and its shareholders by providing a means to
attract, retain, and motivate employees and directors of the Company upon whose
judgment, initiative and efforts the continued success, growth and development
of the Company is dependent.
2. DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set forth
below:
(a) "Affiliate" means any entity other than the Company and its
Subsidiaries that is designated by the Board or the Committee as a
participating employer under the Plan.
(b) "Award" means any Option, SAR, Restricted Share, Restricted Share
Unit, Performance Share, Performance Unit, Dividend Equivalent, or
Other Share-Based Award granted to an Eligible Person under the Plan.
(c) "Award Agreement" means any written agreement, contract, or other
instrument or document evidencing an Award.
(d) "Beneficiary" means the person, persons, trust or trusts which have
been designated by such Eligible Person in his or her most recent
written beneficiary designation filed with the Company to receive the
benefits specified under this Plan upon the death of the Eligible
Person, or, if there is no designated Beneficiary or surviving
designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive
such benefits.
(e) "Board" means the Board of Directors of the Company.
(f) "Change of Control" means and shall be deemed to have occurred if any
person (within the meaning of the Exchange Act), other than Worldwide
Fiber Holdings Ltd. or a Related Party, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of Voting Securities representing (i) 30 percent or more
of the total voting power of all the then-outstanding Voting
Securities, and (ii) a percentage of Voting Securities in excess
<PAGE>
-2-
of the percentage then beneficially owned, directly or indirectly, by
Worldwide Fiber Holdings Ltd. and the Related Parties.
(g) "Code" means the Internal Revenue Code of 1986, as amended from time
to time. References to any provision of the Code shall be deemed to
include successor provisions thereto and regulations thereunder.
(h) "Committee" means the Compensation Committee of the Board, or such
other Board committee (which may include the entire Board) as may be
designated by the Board to administer the Plan.
(i) "Company" means 360networks inc., a Nova Scotia company, or any
successor corporation.
(j) "Director" means a member of the Board who is not an employee of the
Company, a Subsidiary or an Affiliate.
(k) "Dividend Equivalent" means a right, granted under Section 5(g), to
receive cash, Shares, or other property equal in value to dividends
paid with respect to a specified number of Shares. Dividend
Equivalents may be awarded on a free-standing basis or in-connection
with another Award, and may be paid currently or on a deferred basis.
(l) "Eligible Person" means (i) an employee of the Company, a Subsidiary
or an Affiliate, including any director who is an employee, (ii) a
Director, or (iii) any other person or company engaged to provide
ongoing services to the Company and its Affiliates and, at that
Participant's discretion and subject to any required regulatory
approvals and conditions, an Eligible Person may include a personal
holding company controlled by the Participant, the issued and
outstanding shares of which are owned by, and continue while the
Awards granted under this Plan held by such personal holding company
are outstanding to be owned by, that Participant or a registered
retirement savings plan established for the sole benefit of that
Participant.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time. References to any provision of the Exchange Act
shall be deemed to include successor provisions thereto and
regulations thereunder.
(n) "Fair Market Value" means, with respect to Shares or other property,
the fair market value of such Shares or other property determined by
such methods or procedures as shall be established from time to time
by the Committee. If the Shares are listed on any established stock
exchange or a national market system, unless otherwise determined by
the Committee in good faith, the Fair Market Value of Shares shall
mean the mean between the high and low selling prices per Share on the
immediately preceding date (or, if the Shares were not traded on that
day, the next preceding day that the Shares were traded) on the
principal exchange
<PAGE>
-3-
on which the Shares are traded, as such prices are officially quoted
on such exchange.
(o) "Initial Public Offering" means the consummation of the first public
offering of Shares pursuant to a registration statement (other than on
Form S-8) filed with, and declared effective by, the Securities and
Exchange Commission.
(p) "ISO" means any option intended to be and designated as an incentive
stock option within the meaning of Section 422 of the Code.
(q) "NQSO" means any Option that is not an ISO.
(r) "Option" means a right, granted under Section 5(b), to purchase
Shares.
(s) "Other Share-Based Award" means a right, granted under Section 5(h),
that relates to or is valued by reference to Shares.
(t) "Participant" means an Eligible Person who has been granted an Award
under the Plan.
(u) "Performance Share" means a performance share granted under Section
5(f).
(v) "Performance Unit" means a performance unit granted under Section
5(f).
(w) "Plan" means this 1998 Long Term Incentive and Share Award Plan.
(x) "Related Party" means (i) a majority-owned subsidiary of Worldwide
Fiber Holdings Ltd., or (ii) a corporation or partnership owned
directly or indirectly by the stockholders of Worldwide Fiber Holdings
Ltd. in substantially the same proportion as their ownership of voting
securities of Worldwide Fiber Holdings Ltd.
(y) "Restricted Shares" means an Award of Shares under Section 5(d) that
may be subject to certain restrictions and to a risk of forfeiture.
(z) "Restricted Share Unit" means a right, granted under Section 5(e), to
receive Shares or cash at the end of a specified deferral period.
(aa) "SAR" or "Share Appreciation Right" means the right, granted under
Section 5(c), to be paid an amount measured by the difference between
the exercise price of the right and the Fair Market Value of Shares on
the date of exercise of the right, with payment to be made in cash,
Shares, or property as specified in the Award or determined by the
Committee.
(bb) "Shares" means the Company's Subordinate Voting Shares and any shares
into which such shares may be exchanged, reclassified, recapitalized,
converted or otherwise.
<PAGE>
-4-
(cc) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of
the corporations (other than the last corporation in the unbroken
chain) owns shares possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the
chain.
(dd) "Voting Securities or Security" means any securities of the Company
which carry the right to vote generally in the election of directors.
3. ADMINISTRATION
(a) Authority of the Committee. The Plan shall be administered by the
Committee, and the Committee shall have full and final authority to
take the following actions, in each case subject to and consistent
with the provisions of the Plan:
(i) to select Eligible Persons to whom Awards may be granted;
(ii) to designate Affiliates;
(iii) to determine the type or types of Awards to be granted to each
Eligible Person;
(iv) to determine the type and number of Awards to be granted, the
number of Shares to which an Award may relate, the terms and
conditions of any Award granted under the Plan (including, but
not limited to, any exercise price, grant price, or purchase
price, and any bases for adjusting such exercise, grant or
purchase price, any restriction or condition, any schedule for
lapse of restrictions or conditions relating to transferability
or forfeiture, exercisability, or settlement of an Award, and
waiver or accelerations thereof, and waivers of performance
conditions relating to an Award, based in each case on such
considerations as the Committee shall determine), and all other
matters to be determined in connection with an Award;
(v) to determine whether, to what extent, and under what
circumstances an Award may be settled, or the exercise price of
an Award may be paid, in cash, Shares, other Awards, or other
property, or an Award may be cancelled, forfeited, exchanged, or
surrendered;
(vi) to determine whether, to what extent, and under what
circumstances cash, Shares, other Awards, or other property
payable with respect to an Award will be deferred either
automatically, at the election of the Committee, or at the
election of the Eligible Person;
(vii) to prescribe the form of each Award Agreement, which need not be
identical for each Eligible Person;
<PAGE>
-5-
(viii) to adopt, amend, suspend, waive, and rescind such rules and
regulations and appoint such agents as the Committee may deem
necessary or advisable to administer the Plan;
(ix) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan
and any Award, rules and regulations, Award Agreement, or other
instrument hereunder;
(x) to accelerate the exercisability or vesting of all or any portion
of any Award or to extend the period during which an Award is
exercisable; and
(xi) to make all other decisions and determinations as may be required
under the terms of the Plan or as the Committee may deem
necessary or advisable for the administration of the Plan.
(b) Manner of Exercise of Committee Authority. The Committee shall have
sole discretion in exercising its authority under the Plan. Any action
of the Committee with respect to the Plan shall be final, conclusive,
and binding on all persons, including the Company, Subsidiaries,
Affiliates, Eligible Persons, any person claiming any rights under the
Plan from or through any Eligible Person, and shareholders. The
express grant of any specific power to the Committee, and the taking
of any action by the Committee, shall not be construed as limiting any
power or authority of the Committee. The Committee may delegate to
officers or managers of the Company or any Subsidiary or Affiliate the
authority, subject to such terms as the Committee shall determine, to
perform administrative functions and to perform such other functions
as the Committee may determine, to the extent permitted under
applicable law.
(c) Limitation of Liability. Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other
information furnished to him or her by any officer or other employee
of the Company or any Subsidiary or Affiliate, the Company's
independent certified public accountants, or other professional
retained by the Company to assist in the administration of the Plan.
No member of the Committee, nor any officer or employee of the Company
acting on behalf of the Committee, shall be personally liable for any
action, determination, or interpretation taken or made in good faith
with respect to the Plan, and all members of the Committee and any
officer or employee of the Company acting on their behalf shall, to
the extent permitted by law, be fully indemnified and protected by the
Company with respect to any such action, determination, or
interpretation.
4. SHARES SUBJECT TO THE PLAN
(a) Subject to adjustment as provided in Section 4(b) hereof, the total
number of Shares reserved for issuance in connection with Awards under
the Plan shall be
<PAGE>
-6-
71,133,008. No Award may be granted if the number of Shares to which
such Award relates, when added to the number of Shares previously
issued under the Plan, exceeds the number of Shares reserved under the
preceding sentence. If any Awards are forfeited, cancelled,
terminated, exchanged or surrendered or such Award is settled in cash
or otherwise terminates without a distribution of Shares to the
Participant, any Shares counted against the number of Shares reserved
and available under the Plan with respect to such Award shall, to the
extent of any such forfeiture, settlement, termination, cancellation,
exchange or surrender, again be available for further Awards under the
Plan, and any such further Awards shall be considered replacement
Awards. Upon the exercise of any Award granted in tandem with any
other Awards, such related Awards shall be cancelled to the extent of
the number of Shares as to which the Award is exercised. Subject to
adjustment as provided in Section 4(b) hereof, the maximum number of
Shares with respect to which options or SARs may be granted during a
calendar year to any Eligible Person under this Plan shall be
8,000,000 Shares and the maximum number of Shares with respect to
which options or SARs may be granted to any Eligible Person, in the
aggregate, shall be 5% of the issued and outstanding Shares.
(b) In the event that the Committee shall determine that any dividend in
Shares, recapitalization, Share split, reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share
exchange, or other similar corporate transaction or event, affects the
Shares such that an adjustment is appropriate in order to prevent
dilution or enlargement of the rights of Eligible Persons under the
Plan, then the Committee shall make such equitable changes or
adjustments as it deems appropriate and, in such manner as it may deem
equitable, adjust any or all of (i) the number and kind of shares
which may thereafter be issued under the Plan, (ii) the number and
kind of shares, other securities or other consideration issued or
issuable in respect of outstanding Awards, and (iii) the exercise
price, grant price, or purchase price relating to any Award; provided,
however, in each case that, with respect to ISOs, such adjustment
shall be made in accordance with Section 424(a) of the Code, unless
the Committee determines otherwise. In addition, the Committee is
authorized to make adjustments in the terms and conditions of, and the
criteria and performance objectives included in, Awards in recognition
of unusual or non-recurring events (including, without limitation,
events described in the preceding sentence) affecting the Company or
any Subsidiary or Affiliate or the financial statements of the Company
or any Subsidiary or Affiliate, or in response to changes in
applicable laws, regulations, or accounting principles.
(c) Any Shares distributed pursuant to an Award may consist, in whole or
in part, of authorized and unissued Shares or treasury Shares
including Shares acquired by purchase in the open market or in private
transactions.
5. SPECIFIC TERMS OF AWARDS
<PAGE>
-7-
(a) General. Awards may be granted on the terms and conditions set forth
in this Section 5. In addition, the Committee may impose on any Award
or the exercise thereof, at the date of grant or thereafter (subject
to Section 8(d)), such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall
determine, including terms regarding forfeiture of Awards or continued
exercisability of Awards in the event of termination of employment by
the Eligible Person.
(b) Options. The Committee is authorized to grant Options, which may be
NQSOs or ISOs, to Eligible Persons on the following terms and
conditions:
(i) Exercise Price. The exercise price per Share purchasable under an
Option shall be determined by the Committee, and the Committee
may, without limitation, set an exercise price that is based upon
achievement of performance criteria if deemed appropriate by the
Committee.
(ii) Option Term. Unless otherwise determined by the Committee at the
date of grant or thereafter (subject to Section 8(d)) or as
otherwise set forth below in the case of termination of the
Eligible Person's service with the Company and its Affiliates,
the term of each Option shall be ten years from the date of grant
(the "Option Period").
(iii) Termination of Service. Unless otherwise determined by the
Committee at the date of grant or thereafter (subject to Section
8(d)), the following provisions shall apply in the case of
termination of service of an Eligible Employee.
(A) Death in Service. In the event an Eligible Person dies
during his or her period of service with the Company, the
estate or other legal representative of the Eligible Person
shall be entitled to exercise the portion of the Option
exercisable at the time of death during the period ending 24
months following the date of the Eligible Person's death
(but not beyond the Option Period).
(B) Death After Service. In the event an Eligible Person dies
after a termination of his or her service with the Company
and at a time when all or a portion of an Option remains
exercisable, the estate or other legal representative of the
Eligible Person shall be entitled to exercise the Option, to
the extent so exercisable, during the period ending 12
months following the date of the Eligible Person's death
(but not beyond the Option Period).
(C) Termination Due to Disability. In the event an Eligible
Person's service with the Company is terminated by reason of
the Eligible Person's disability, the Eligible Person shall
be entitled to exercise
<PAGE>
-8-
the portion of his or her Options exercisable at the time of
such termination only during the period ending 12 months
following the date of the Eligible Person's termination of
service (but not beyond the Option Period).
(D) Termination for Cause. In the event an Eligible Person's
service is terminated by the Company for Cause, all rights
of the Eligible Person under his or her Options shall
immediately terminate. For purposes of this Plan, "Cause"
shall mean willful misconduct, a willful failure to perform
the Eligible Person's duties, insubordination, theft,
dishonesty, conviction of a felony or any other willful
conduct that is detrimental to the Company or such other
cause as the Board in good faith reasonably determines
provides cause for the discharge of an Eligible Person.
(E) Retirement. In the event of retirement of an Eligible Person
from the Company at or after age 65, the Eligible Person
shall be entitled to exercise the portion of his or her
Options exercisable at the time of such retirement for the
entire Option Period.
(F) Other Termination. In the event of termination of an
Eligible Person's service with the Company other than as set
forth above, the Eligible Person shall be entitled to
exercise the portion of his or her Options exercisable at
the time of termination, and the Options shall continue to
be exercisable by the Eligible Person for only 30 days
following the date of termination (but not beyond the Option
Period).
(G) Forfeiture. That portion of an Option which remains
unexercisable following a termination of an Eligible
Person's service, as described above, shall be forfeited.
(H) Service With Affiliates. For purposes of this Section
5(b)(iii), service with an Affiliate of the Company shall be
considered to be service with the Company.
(iv) Time of Exercise. Unless otherwise determined by the Committee at
the date of grant or thereafter (subject to Section 8(d)) or as
otherwise set forth in Section 7 below, Options shall become
exercisable in four equal annual instalments beginning on the
first anniversary of their date of grant.
(v) Method of Exercise. The Committee shall determine at the date of
grant or thereafter (subject to Section 8(d)) the methods by
which the exercise price may be paid or deemed to be paid
(including, without limitation, broker-assisted exercise
arrangements), the form of such payment (including, without
limitation, cash, Shares, notes or other property), and the
methods
<PAGE>
-9-
by which Shares will be delivered or deemed to be delivered to
Eligible Persons.
(vi) ISOs. The terms of any ISO granted under the Plan shall comply in
all respects with the provisions of Section 422 of the Code,
including but not limited to the requirement that the ISO shall
be granted within ten years from the earlier of the date of
adoption or shareholder approval of the Plan. ISOs may only be
granted to employees of the Company or a Subsidiary.
(c) SARs. The Committee is authorized to grant SARs (Share Appreciation
Rights) to Eligible Persons on the following terms and conditions:
(i) Right to Payment. An SAR shall confer on the Eligible Person to
whom it is granted a right to receive with respect to each Share
subject thereto, upon exercise thereof, the excess of (1) the
Fair Market Value of one Share on the date of exercise (or, if
the Committee shall so determine in the case of any such right,
the Fair Market Value of one Share at any time during a specified
period before or after the date of exercise) over (2) the
exercise price of the SAR as determined by the Committee as of
the date of grant of the SAR (which, in the case of an SAR
granted in tandem with an Option, shall be equal to the exercise
price of the underlying Option).
(ii) Other Terms. The Committee shall determine, at the time of grant
or thereafter, the time or times at which an SAR may be exercised
in whole or in part, the method of exercise, method of
settlement, form of consideration payable in settlement, method
by which Shares will be delivered or deemed to be delivered to
Eligible Persons, whether or not an SAR shall be in tandem with
any other Award, and any other terms and conditions of any SAR.
Unless the Committee determines otherwise, an SAR (1) granted in
tandem with an NQSO may be granted at the time of grant of the
related NQSO or at any time thereafter and (2) granted in tandem
with an ISO may only be granted at the time of grant of the
related ISO.
(d) Restricted Shares. The Committee is authorized to grant Restricted
Shares to Eligible Persons on the following terms and conditions:
(i) Issuance and Restrictions. Restricted Shares shall be subject to
such restrictions on transferability and other restrictions, if
any, as the Committee may impose at the date of grant or
thereafter, which restrictions may lapse separately or in
combination at such times, under such circumstances (including,
without limitation, upon achievement of performance criteria if
deemed appropriate by the Committee), in such instalments, or
otherwise, as the Committee may determine. Except to the extent
restricted under the Award Agreement relating to the Restricted
<PAGE>
-10-
Shares, an Eligible Person granted Restricted Shares shall have
all of the rights of a shareholder including, without limitation,
the right to vote Restricted Shares and the right to receive
dividends thereon. The Committee must certify in writing prior to
the lapse of restrictions conditioned on achievement of
performance criteria that such performance criteria were in fact
satisfied.
(ii) Forfeiture. Except as otherwise determined by the Committee, at
the date of grant or thereafter, upon termination of employment
during the applicable restriction period, Restricted Shares and
any accrued but unpaid dividends or Dividend Equivalents that are
at that time subject to restrictions shall be forfeited;
provided, however, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions
relating to Restricted Shares will be waived in whole or in part
in the event of terminations resulting from specified causes, and
the Committee may in other cases waive in whole or in part the
forfeiture of Restricted Shares.
(iii) Certificates for Shares. Restricted Shares granted under the
Plan may be evidenced in such manner as the Committee shall
determine. If certificates representing Restricted Shares are
registered in the name of the Eligible Person, such certificates
shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted
Shares, and the Company shall retain physical possession of the
certificate.
(iv) Dividends. Dividends paid on Restricted Shares shall be either
paid at the dividend payment date, or deferred for payment to
such date as determined by the Committee, in cash or in
unrestricted Shares having a Fair Market Value equal to the
amount of such dividends. Shares distributed in connection with a
Share split or dividend in Shares, and other property distributed
as a dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Shares with
respect to which such Shares or other property has been
distributed.
(e) Restricted Share Units. The Committee is authorized to grant
Restricted Share Units to Eligible Persons, subject to the following
terms and conditions:
(i) Award and Restrictions. Delivery of Shares or cash, as the case
may be, will occur upon expiration of the deferral period
specified for Restricted Share Units by the Committee (or, if
permitted by the Committee, as elected by the Eligible Person).
In addition, Restricted Share Units shall be subject to such
restrictions as the Committee may impose, if any (including,
without limitation, the achievement of performance criteria if
deemed appropriate by the Committee), at the date of grant or
thereafter, which restrictions may lapse at the expiration of the
deferral period or at earlier or later specified times,
separately or in combination, in instalments
<PAGE>
-11-
or otherwise, as the Committee may determine. The Committee must
certify in writing prior to the lapse of restrictions conditioned
on the achievement of performance criteria that such performance
criteria were in fact satisfied.
(ii) Forfeiture. Except as otherwise determined by the Committee at
date of grant or thereafter, upon termination of employment (as
determined under criteria established by the Committee) during
the applicable deferral period or portion thereof to which
forfeiture conditions apply (as provided in the Award Agreement
evidencing the Restricted Share Units), or upon failure to
satisfy any other conditions precedent to the delivery of Shares
or cash to which such Restricted Share Units relate, all
Restricted Share Units that are at that time subject to deferral
or restriction shall be forfeited; provided, however, that the
Committee may provide, by rule or regulation or in any Award
Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted
Share Units will be waived in whole or in part in the event of
termination resulting from specified causes, and the Committee
may in other cases waive in whole or in part the forfeiture of
Restricted Share Units.
(f) Performance Shares and Performance Units. The Committee is authorized
to grant Performance Shares or Performance Units or both to Eligible
Persons on the following terms and conditions:
(i) Performance Period. The Committee shall determine a performance
period (the "Performance Period") of one or more years and shall
determine the performance objectives for grants of Performance
Shares and Performance Units. Performance objectives may vary
from Eligible Person to Eligible Person and shall be based upon
such performance criteria as the Committee may deem appropriate.
Performance Periods may overlap and Eligible Persons may
participate simultaneously with respect to Performance Shares and
Performance Units for which different Performance Periods are
prescribed.
(ii) Award Value. At the beginning of a Performance Period, the
Committee shall determine for each Eligible Person or group of
Eligible Persons with respect to that Performance Period the
range of number of Shares, if any, in the case of Performance
Shares, and the range of dollar values, if any, in the case of
Performance Units, which may be fixed or may vary in accordance
with such performance or other criteria specified by the
Committee, which shall be paid to an Eligible Person as an Award
if the relevant measure of Company performance for the
Performance Period is met.
(iii) Significant Events. If during the course of a Performance Period
there shall occur significant events as determined by the
Committee which the
<PAGE>
-12-
Committee expects to have a substantial effect on a performance
objective during such period, the Committee may revise such
objective.
(iv) Forfeiture. Except as otherwise determined by the Committee, at
the date of grant or thereafter, upon termination of employment
during the applicable Performance Period, Performance Shares and
Performance Units for which the Performance Period was prescribed
shall be forfeited; provided, however, that the Committee may
provide, by rule or regulation or in any Award Agreement, or may
determine in an individual case, that restrictions or forfeiture
conditions relating to Performance Shares and Performance Units
will be waived in whole or in part in the event of terminations
resulting from specified causes, and the Committee may in other
cases waive in whole or in part the forfeiture of Performance
Shares and Performance Units.
(v) Payment. Each Performance Share or Performance Unit may be paid
in whole Shares, or cash, or a combination of Shares and cash
either as a lump sum payment or in instalments, all as the
Committee shall determine, at the time of grant of the
Performance Share or Performance Unit or otherwise, commencing as
soon as practicable after the end of the relevant Performance
Period. The Committee must certify in writing prior to the
payment of any Performance Share or Performance Unit that the
performance objectives and any other material terms were in fact
satisfied.
(g) Dividend Equivalents. The Committee is authorized to grant Dividend
Equivalents to Eligible Persons. The Committee may provide, at the
date of grant or thereafter, that Dividend Equivalents shall be paid
or distributed when accrued or shall be deemed to have been reinvested
in additional Shares, or other investment vehicles as the Committee
may specify, provided that Dividend Equivalents (other than
freestanding Dividend Equivalents) shall be subject to all conditions
and restrictions of the underlying Awards to which they relate.
(h) Other Share-Based Awards. The Committee is authorized, subject to
limitations under applicable law, to grant to Eligible Persons such
other Awards that may be denominated or payable in, valued in whole or
in part by reference to, or otherwise based on, or related to, Shares,
as deemed by the Committee to be consistent with the purposes of the
Plan, including, without limitation, unrestricted shares awarded
purely as a "bonus" and not subject to any restrictions or conditions,
other rights convertible or exchangeable into Shares, purchase rights
for Shares, Awards with value and payment contingent upon performance
of the Company or any other factors designated by the Committee, and
Awards valued by reference to the performance of specified
Subsidiaries or Affiliates. The Committee shall determine the terms
and conditions of such Awards at date of grant or thereafter. Shares
delivered pursuant to an Award in the nature of a purchase right
granted under this Section 5(h) shall be purchased for such
consideration, paid for at such times, by such methods, and in such
forms,
<PAGE>
-13-
including, without limitation, cash, Shares, notes or other property,
as the Committee shall determine. Cash awards, as an element of or
supplement to any other Award under the Plan, shall also be authorized
pursuant to this Section 5(h).
6. CERTAIN PROVISIONS APPLICABLE TO AWARDS
(a) Stand-Alone, Additional, Tandem and Substitute Awards. Awards granted
under the Plan may, in the discretion of the Committee, be granted to
Eligible Persons either alone or in addition to, in tandem with, or in
exchange or substitution for, any other Award granted under the Plan
or any award granted under any other plan or agreement of the Company,
any Subsidiary or Affiliate, or any business entity to be acquired by
the Company or a Subsidiary or Affiliate, or any other right of an
Eligible Person to receive payment from the Company or any Subsidiary
or Affiliate. Awards may be granted in addition to or in tandem with
such other Awards or awards, and may be granted either as of the same
time as or a different time from the grant of such other Awards or
awards. The per Share exercise price of any Option, grant price of any
SAR, or purchase price of any other Award conferring a right to
purchase Shares which is granted, in connection with the substitution
of awards granted under any other plan or agreement of the Company or
any Subsidiary or Affiliate or any business entity to be acquired by
the Company or any Subsidiary or Affiliate, shall be determined by the
Committee, in its discretion.
(b) Terms of Awards. The term of each Award granted to an Eligible Person
shall be for such period as may be determined by the Committee;
provided, however, that in no event shall the term of any ISO or an
SAR granted in tandem therewith exceed a period of ten years from the
date of its grant (or such shorter period as may be applicable under
Section 422 of the Code).
(c) Form of Payment Under Awards. Subject to the terms of the Plan and any
applicable Award Agreement, payments to be made by the Company or a
Subsidiary or Affiliate upon the grant, maturation, or exercise of an
Award may be made in such forms as the Committee shall determine at
the date of grant or thereafter, including, without limitation, cash,
Shares, or other property, and may be made in a single payment or
transfer, in instalments, or on a deferred basis. The Committee may
make rules relating to instalment or deferred payments with respect to
Awards, including the rate of interest to be credited with respect to
such payments.
(d) Nontransferability. Unless otherwise set forth by the Committee in an
Award Agreement, Awards (except for vested shares) shall not be
transferable by an Eligible Person except by will or the laws of
descent and distribution (except pursuant to a Beneficiary
designation) and shall be exercisable during the lifetime of an
Eligible Person only by such Eligible Person or his guardian or legal
representative. An Eligible Person's rights under the Plan may not be
pledged,
<PAGE>
-14-
mortgaged, hypothecated, or otherwise encumbered, and shall not be
subject to claims of the Eligible Person's creditors.
7. CHANGE OF CONTROL PROVISIONS
In the event of a Change of Control, (i) all outstanding Awards pursuant to
which the Participant may have rights the exercise of which is restricted or
limited, shall become fully exercisable at the time of the Change of Control,
and (ii) all restrictions or limitations (including risks of forfeiture and
deferrals) on outstanding Awards subject to restrictions or limitations under
the Plan shall lapse, and all performance criteria and other conditions to
payment of Awards under which payments of cash, Shares or other property are
subject to conditions shall be deemed to be achieved or fulfilled and shall be
waived by the Company at the time of the Change of Control provided that the
provisions of this Section 7 only apply in the event that the Participant's
service with the Company has been terminated without cause within the six month
period following the time of the Change of Control.
8. GENERAL PROVISIONS
(a) Compliance with Legal and Trading Requirements. The Plan, the granting
and exercising of Awards thereunder, and the other obligations of the
Company under the Plan and any Award Agreement, shall be subject to
all applicable federal and state laws, rules and regulations, and to
such approvals by any regulatory or governmental agency as may be
required. The Company, in its discretion, may postpone the issuance or
delivery of Shares under any Award until completion of such stock
exchange or market system listing or registration or qualification of
such Shares or other required action under any state or federal law,
rule or regulation as the Company may consider appropriate, and may
require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the
issuance or delivery of Shares in compliance with applicable laws,
rules and regulations. No provisions of the Plan shall be interpreted
or construed to obligate the Company to register any Shares under
federal or state law.
(b) No Right to Continued Employment or Service. Neither the Plan nor any
action taken thereunder shall be construed as giving any employee or
director the right to be retained in the employ or service of the
Company or any of its Subsidiaries or Affiliates, nor shall it
interfere in any way with the right of the Company or any of its
Subsidiaries or Affiliates to terminate any employee's or director's
employment or service at any time.
(c) Taxes. The Company or any Subsidiary or Affiliate is authorized to
withhold from any Award granted, any payment relating to an Award
under the Plan, including from a distribution of Shares, or any
payroll or other payment to an Eligible Person, amounts of withholding
and other taxes due in connection with any transaction involving an
Award, and to take such other action as the Committee may deem
advisable to enable the Company and Eligible Persons to satisfy
<PAGE>
-15-
obligations for the payment of withholding taxes and other tax
obligations relating to any Award. This authority shall include
authority to withhold or receive Shares or other property and to make
cash payments in respect thereof in satisfaction of an Eligible
Person's tax obligations.
(d) Changes to the Plan and Awards. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or the Committee's authority to
grant Awards under the Plan without the consent of shareholders of the
Company or Participants, except that any such amendment, alteration,
suspension, discontinuation, or termination shall be subject to the
approval of the Company's shareholders to the extent such shareholder
approval is required under Section 422 of the Code; provided, however,
that, without the consent of an affected Participant, no amendment,
alteration, suspension, discontinuation, or termination of the Plan
may materially and adversely affect the rights of such Participant
under any Award theretofore granted to him or her. The Committee may
waive any conditions or rights under, amend any terms of, or amend,
alter, suspend, discontinue or terminate, any Award theretofore
granted, prospectively or retrospectively; provided, however, that,
without the consent of a Participant, no amendment, alteration,
suspension, discontinuation or termination of any Award may materially
and adversely affect the rights of such Participant under any Award
theretofore granted to him or her.
(e) No Rights to Awards; No Shareholder Rights. No Eligible Person or
employee shall have any claim to be granted any Award under the Plan,
and there is no obligation for uniformity of treatment of Eligible
Persons and employees. No Award shall confer on any Eligible Person
any of the rights of a shareholder of the Company unless and until
Shares are duly issued or transferred to the Eligible Person in
accordance with the terms of the Award.
(f) Unfunded Status of Awards. The Plan is intended to constitute an
"unfunded" plan for incentive compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing
contained in the Plan or any Award shall give any such Participant any
rights that are greater than those of a general creditor of the
Company; provided, however, that the Committee may authorize the
creation of trusts or make other arrangements to meet the Company's
obligations under the Plan to deliver cash, Shares, other Awards, or
other property pursuant to any Award, which trusts or other
arrangements shall be consistent with the "unfunded" status of the
Plan unless the Committee otherwise determines with the consent of
each affected Participant.
(g) Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board nor its submission to the shareholders of the Company for
approval shall be construed as creating any limitations on the power
of the Board to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of options and
other awards otherwise than under the Plan, and such arrangements may
be either applicable generally or only in specific cases.
<PAGE>
-16-
(h) Not Compensation for Benefit Plans. No Award payable under this Plan
shall be deemed salary or compensation for the purpose of computing
benefits under any benefit plan or other arrangement of the Company
for the benefit of its employees or directors unless the Company shall
determine otherwise.
(i) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award. The Committee shall
determine whether cash, other Awards, or other property shall be
issued or paid in lieu of such fractional Shares or whether such
fractional Shares or any rights thereto shall be forfeited or
otherwise eliminated.
(j) Governing Law. The validity, construction, and effect of the Plan, any
rules and regulations relating to the Plan, and any Award Agreement
shall be determined in accordance with the laws of British Columbia
without giving effect to principles of conflict of laws.
(k) Effective Date; Plan Termination. The Plan shall become effective as
of March 26, 1999, (the "Effective Date"). The Plan shall terminate as
to future awards on the date which is ten (10) years after the
Effective Date.
(l) Titles and Headings. The titles and headings of the sections in the
Plan are for convenience of reference only. In the event of any
conflict, the text of the Plan, rather than such titles or headings,
shall control.
