exv10w18





Exhibit 10.18




UNILIFE CORPORATION 2009 STOCK INCENTIVE PLAN




1. Establishment, Purpose and Types of Awards




Unilife Corporation, a Delaware corporation (the “Company”), hereby establishes the UNILIFE
CORPORATION 2009 STOCK INCENTIVE PLAN (the “Plan”). The purpose of the Plan is to promote the
long-term growth and profitability of the Company by (i) providing key people with incentives to
improve stockholder value and to contribute to the growth and financial success of the Company
through their future services, and (ii) enabling the Company to attract, retain and reward the
best-available personnel.



The Plan permits the granting of stock options (including incentive stock options qualifying
under Code section 422 and nonstatutory stock options), stock appreciation rights, restricted or
unrestricted stock awards, phantom stock, performance awards, other stock-based awards, or any
combination of the foregoing.



2. Definitions




Under this Plan, except where the context otherwise indicates, the following definitions
apply:




(a) “Administrator” means the Board or the committee(s) or officer(s) appointed by the
Board that have authority to administer the Plan as provided in Section 3 hereof.




(b) “Affiliate” means any entity, whether now or hereafter existing, which controls, is
controlled by, or is under common control with, the Company (including, but not limited to,
joint ventures, limited liability companies, and partnerships). For this purpose, “control”
shall mean ownership of 50% or more of the total combined voting power or value of all
classes of stock or interests of the entity, or the power to direct the management and
policies of the entity, by contract or otherwise.




(c) “ASX” means ASX Limited ACN 008 624 691 or the securities market which it operates,
as the context requires.




(d) “Award” means any stock option, stock appreciation right, stock award, phantom
stock award, performance award, or other stock-based award.




(e) “Board” means the Board of Directors of the Company.




(f) “Change in Control” means: a (i) Change in Ownership of the Company, (ii) Change
in Effective Control of the Company, or (iii) Change in the Ownership of Assets of the
Company, all as described herein and construed in accordance with Code section 409A.


 


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(i) A Change in Ownership of the Company shall occur on the date that any one
Person acquires, or Persons Acting as a Group acquire, ownership of the capital stock
of the Company that, together with the stock held by such Person or Group,
constitutes more than 50% of the total fair market value or total voting power of the
capital stock of the Company. However, if any one Person is, or Persons Acting as a
Group are, considered to own more than 50% of the total fair market value or total
voting power of the capital stock of the Company, the acquisition of additional stock
by the same Person or Persons Acting as a Group is not considered to cause a Change
in Ownership of the Company or to cause a Change in Effective Control of the Company
(as described below). An increase in the percentage of capital stock owned by any
one Person, or Persons Acting as a Group, as a result of a transaction in which the
Company acquires its stock in exchange for property will be treated as an acquisition
of stock.




(ii) A Change in Effective Control of the Company shall occur on the date a
majority of members of the Board is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the members of the
Board before the date of the appointment or election.




(iii) A Change in the Ownership of Assets of the Company shall occur on the date
that any one Person acquires, or Persons Acting as a Group acquire (or has or have
acquired during the 12-month period ending on the date of the most recent acquisition
by such Person or Persons), assets from the Company the total gross fair market value
of which is more than 50% of the total gross fair market value of all of the assets
of the Company immediately before such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets of the Company, or the
value of the assets being disposed of, determined without regard to any liabilities
associated with such assets.




The following rules of construction apply in interpreting the definition of Change in
Control:




(A) A Person means any individual, entity or group within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended, other than
employee benefit plans sponsored or maintained by the Company and by entities
controlled by the Company or an underwriter of the capital stock of the Company in a
registered public offering.




(B) Persons will be considered to be Persons Acting as a Group (or
Group) if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction with
the Company. If a Person owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be acting as a Group with other shareholders only with
respect to the ownership in that corporation before the transaction giving rise to
the change and not with respect to the ownership interest in the other corporation.
Persons will not be considered to be acting as a Group solely because they purchase
assets of the same corporation at the same time or purchase or own stock of the same
corporation at the same time, or as a result of the same public offering.


 


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(C) For purposes of this Section 2(f), fair market value shall be determined by
the Administrator.




(D) A Change in Control shall not include a transfer to a related person as
described in Code section 409A or a public offering of capital stock of the Company.




(E) For purposes of this Section 2(f), Code section 318(a) applies to determine
stock ownership. Common Stock underlying a vested option is considered owned by the
individual who holds the vested option (and the stock underlying an unvested option
is not considered owned by the individual who holds the unvested option). For
purposes of the preceding sentence, however, if a vested option is exercisable for
stock that is not substantially vested (as defined by Treasury Regulation §1.83-3(b)
and (j)), the stock underlying the option is not treated as owned by the individual
who holds the option.




(F) For purposes of this Section 2(f), the Redomiciliation shall not be
considered a Change in Control.




(g) “CDIs” means CHESS Depository Interests.




(h) “Code” means the United States Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.




(i) “Committee” means the Compensation Committee of the Board or any other committee
the Board appoints to administer the Plan.




(j) “Common Stock” means shares of common stock of the Company, par value of one cent
($0.01) per share, in the form of Common Stock or CDIs.




(k) “Fair Market Value” means, with respect to the Common Stock, as of any date:




(i) if the principal market for the Common Stock (as determined by the Board if
the Common Stock is listed or admitted to trading on more than one exchange or
market) is a national securities exchange or an established securities market
(including, without limitation, ASX and NASDAQ Stock Market), the closing price per
share of Common Stock on that date on the principal exchange or market on which the
Common Stock is then listed or admitted to trading or, if no sale is reported for
that date, the last preceding day on which a sale was reported;


 


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(ii) if the principal market for the Common Stock is not a national securities
exchange or an established securities market, the average of the highest bid and
lowest asked prices for the Common Stock on that date as reported on a national
quotation system or, if no prices are reported for that date, on the last preceding
day on which prices were reported; or




(iii) if the Common Stock is neither listed or admitted to trading on a national
securities exchange or an established securities market, nor quoted by a national
quotation system, the value determined by the Board in good faith.




With respect to property other than Common Stock, Fair Market Value means the value of the
property determined by such methods or procedures to be established from time to time by the
Board in accordance with Code section 409A.




(l) “Grant Agreement” means a written document, including an electronic writing
acceptable to the Administrator, memorializing the terms and conditions of an Award granted
pursuant to the Plan and which shall incorporate the terms of the Plan.




(m) “Listing Rules” means the applicable listing rules of the securities exchange or
market on which shares of Common Stock are listed for trading, which may include, without
limitation, NASDAQ Stock Market and the ASX.




(n) “Performance Measures” shall mean criteria established by the Administrator
relating to any of the following, as it may apply to an individual, one or more business
units, divisions or subsidiaries, or on a Company-wide basis, and in either absolute terms
or relative to the performance of one or more comparable companies or an index covering
multiple companies: revenue; earnings before interest, taxes, depreciation and amortization
(EBITDA); operating income; pre- or after-tax income; cash flow; cash flow per share; net
earnings; earnings per share; price-to-earnings ratio; return on equity; return on invested
capital; return on assets; growth in assets; share price performance; economic value added;
total shareholder return; improvement in or attainment of expense levels; improvement in or
attainment of working capital levels; relative performance to a group of companies
comparable to the Company, and strategic business criteria consisting of one or more
objectives based on the Company meeting specified goals relating to revenue, market
penetration, business expansion, costs, clinical trials, product feasibility studies,
regulatory submissions, regulatory approvals, or acquisitions or divestitures.




(o) “Redomiciliation” means the transactions effected pursuant to the schemes of
arrangement between the Company and Unilife Medical Solutions Limited as a result of which
the Company will become the parent company of Unilife Medical Solutions Limited.


 


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3. Administration





(a) Administration of the Plan. The Plan shall be administered by the Board or by such
committee or committees as may be appointed by the Board from time to time. To the extent
allowed by applicable state law, the Board by resolution may authorize an officer or
officers to grant Awards (other than Stock Awards) to other officers and employees of the
Company and its Affiliates, and, to the extent of such authorization, such officer or
officers shall be the Administrator.




(b) Powers of the Administrator. The Administrator shall have all the powers vested in
it by the terms of the Plan, such powers to include authority, in its sole and absolute
discretion, to grant Awards under the Plan, prescribe Grant Agreements evidencing such
Awards and establish programs for granting Awards.




The Administrator shall have full power and authority to take all other actions
necessary to carry out the purpose and intent of the Plan, including, but not limited to,
the authority to: (i) determine the eligible persons to whom, and the time or times at
which Awards shall be granted; (ii) determine the types of Awards to be granted; (iii)
determine the number of shares of Common Stock to be covered by or used for reference
purposes for each Award; (iv) impose such terms, limitations, restrictions and conditions
upon any such Award as the Administrator shall deem appropriate; (v) modify, amend, extend
or renew outstanding Awards, or accept the surrender of outstanding Awards and substitute
new Awards (provided however, that, except as provided in Section 6 or 7(d) of the Plan, any
modification that would materially adversely affect any outstanding Award shall not be made
without the consent of the holder and no such modification, amendment or substitution that
results in repricing the Award, within the meaning of NASDAQ Marketplace Rule 5635(c) and
IM-5635-1, or any successor provision, shall be made without prior stockholder approval);
(vi) accelerate or otherwise change the time in which an Award may be exercised or becomes
payable and to waive or accelerate the lapse, in whole or in part, of any restriction or
condition with respect to such Award, including, but not limited to, any restriction or
condition with respect to the vesting or exercisability of an Award following termination of
any grantee’s employment or other relationship with the Company; provided,
however, that no such waiver or acceleration of lapse restrictions shall be
made with respect to a performance-based stock award granted to an executive officer of the
Company if such waiver or acceleration is inconsistent with Code section 162(m) and the
Committee had determined that qualification of such award under Code section 162(m) is
desirable; (vii) establish objectives and conditions, if any, for earning Awards and
determining whether Awards will be paid with respect to a performance period; and (viii) for
any purpose, including but not limited to, qualifying for preferred tax treatment under
foreign tax laws or otherwise complying with the regulatory requirements of local or foreign
jurisdictions, to establish, amend, modify, administer or terminate sub-plans, and
prescribe, amend and rescind rules and regulations relating to such sub-plans.


 


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The Administrator shall have full power and authority, in its sole and absolute
discretion, to administer, construe and interpret the Plan, Grant Agreements and all other
documents relevant to the Plan and Awards issued thereunder, to establish, amend, rescind
and interpret such rules, regulations, agreements, guidelines and instruments for the
administration of the Plan and for the conduct of its business as the Administrator deems
necessary or advisable, and to correct any defect, supply any omission or reconcile any
inconsistency in the Plan or in any Award in the manner and to the extent the Administrator
shall deem it desirable to carry it into effect.




(c) Non-Uniform Determinations. The Administrator’s determinations under the Plan
(including, without limitation, determinations of the persons to receive Awards, the form,
amount and timing of such Awards, the terms and provisions of such Awards and the Grant
Agreements evidencing such Awards) need not be uniform and may be made by the Administrator
selectively among persons who receive, or are eligible to receive, Awards under the Plan,
whether or not such persons are similarly situated.




(d) Limited Liability. To the maximum extent permitted by law, no member of the
Administrator shall be liable for any action taken or decision made in good faith relating
to the Plan or any Award thereunder.




(e) Indemnification. To the maximum extent permitted by law and by the Company’s
charter and by-laws, the members of the Administrator shall be indemnified by the Company in
respect of all their activities under the Plan.




(f) Effect of Administrator’s Decision. All actions taken and decisions and
determinations made by the Administrator on all matters relating to the Plan pursuant to the
powers vested in it hereunder shall be in the Administrator’s sole and absolute discretion
and shall be conclusive and binding on all parties concerned, including the Company, its
stockholders, any participants in the Plan and any other employee, consultant, or director
of the Company, and their respective successors in interest.



4. Shares Available for the Plan; Maximum Awards




(a) Share Reserve. Subject to adjustments as provided in Section 7(d) of the Plan, upon the
effective date of the Plan, the total number of shares of Common Stock reserved and available for
grant and issuance pursuant to this Plan will be equal to 36,000,000 shares, which shall be
adjusted to 6,000,000 shares upon the effectiveness of the Redomiciliation (the “Share Reserve”).
Commencing January 1, 2011, and on each January 1st thereafter through January 1, 2019, the Share
Reserve will automatically adjust so that it will equal (i) twelve and one-half percent (12.5%) of
the weighted average number of shares of Common Stock outstanding, as that number is determined by
the Company to calculate basic earnings (loss) per share for the


 


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preceding four fiscal quarters; reduced by (ii) the sum of (A) any shares of Common Stock issued or
delivered pursuant to Awards under the Plan, and (B) any shares of Common Stock subject to any
outstanding Award under the Plan; provided, however, that any such adjustment may only increase,
and not decrease, the Share Reserve. Notwithstanding the foregoing, the Board may act, prior to
the first day of any calendar year, to provide that there shall be no increase in the Share Reserve
for such calendar year or that the increase in the Share Reserve for such calendar year shall be a
lesser number of shares of Common Stock than would otherwise occur pursuant to the preceding
sentence. Common Stock may be issued in connection with a merger or acquisition as permitted by
NASDAQ Rule 5635(c)(3) or, if applicable, NYSE Listed Company Manual Section 303A.08, or AMEX
Company Guide Section 711 or other applicable rule of the principal exchange or market on which the
Common Stock is listed for trade and such issuance shall not reduce the number of shares of Common
Stock available for issuance under the Plan.



(b) ISO Limit. Notwithstanding the foregoing, not more than 36,000,000 shares of Common
Stock, which shall be adjusted to 6,000,000 shares upon the effectiveness of the Redomiciliation,
subject to adjustments as provided in Section 7(d) of the Plan, of the total shares authorized for
issuance under the Plan shall be available for issuance pursuant to incentive stock options
intended to qualify under Code section 422.



(c) Reversion of Shares to the Share Reserve. If any (i) Award shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in full, (ii) shares of
Common Stock issued to an Award recipient pursuant to an Award are forfeited back to or repurchased
by the Company because of the failure to meet a contingency or condition required for the vesting
of such shares, or (iii) an Award is settled in cash, then the shares of Common Stock not issued
under such Award, or forfeited to or repurchased by the Company, shall revert to and again become
available for issuance under the Plan. If any shares subject to an Award are not delivered to an
Award recipient because such shares are withheld for the payment of taxes or the Award is exercised
through a reduction of shares subject to the Award (i.e., “net exercised”) or an appreciation
distribution in respect of a stock appreciation right is paid in shares of Common Stock, the number
of shares subject to the Award that are not delivered to the Award recipient shall remain available
for subsequent issuance under the Plan. If the exercise price of any Award is satisfied by
tendering shares of Common Stock held by the Award recipient (either by actual delivery or
attestation), then the number of shares so tendered shall remain available for issuance under the
Plan.



(d) Code section 162(m) Limit. Subject to adjustments as provided in Section 7(d) of the
Plan, the maximum number of shares of Common Stock subject to Awards of any combination that may be
granted during any one fiscal year of the Company to any one individual under this Plan shall be
limited to one-third of the total number of shares issuable under the Plan, pursuant to Section
4(a), as of the Plan’s effective date.



(e) Source of Shares. The stock issuable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock or treasury shares, including shares repurchased by the Company
on the open market. The Company shall at all times during the term of the Plan and while any
Awards are outstanding retain as authorized and unissued Common Stock, or as treasury Common Stock, at least the number of shares
of Common Stock required to fulfill the Company’s obligations under such Awards, or otherwise
assure itself of its ability to perform its obligations thereunder.


 


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5. Participation




Participation in the Plan shall be open to all employees, officers, and directors of, and
other individuals providing bona fide services to, or for, the Company or of any Affiliate of the
Company, as may be selected by the Administrator from time to time. The Administrator may also
grant Awards to individuals in connection with hiring, retention or otherwise, prior to the date
the individual first performs services for the Company or an Affiliate, provided that such Awards
shall not become vested or exercisable, and no shares shall be issued to such individual, prior to
the date the individual first commences performance of such services.



6. Awards




The Administrator, in its sole discretion, establishes the terms of all Awards granted under
the Plan. Awards may be granted individually or in tandem with other types of Awards, concurrently
with or with respect to outstanding Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement.




(a) Stock Options. The Administrator may from time to time grant to eligible
participants Awards of incentive stock options as that term is defined in Code section 422
or nonstatutory stock options; provided, however, that Awards of incentive
stock options shall be limited to employees of the Company or of any current or hereafter
existing “parent corporation” or “subsidiary corporation,” as defined in Code sections
424(e) and (f), respectively, of the Company and any other individuals who are eligible to
receive incentive stock options under the provisions of Code section 422. Options must have
an exercise price at least equal to Fair Market Value as of the date of grant and may not
have a term in excess of ten years’ duration. No stock option shall be an incentive stock
option unless so designated by the Administrator at the time of grant or in the Grant
Agreement evidencing such stock option.




(b) Stock Appreciation Rights. The Administrator may from time to time grant to
eligible participants Awards of Stock Appreciation Rights (“SAR”). An SAR entitles the
grantee to receive, subject to the provisions of the Plan and the Grant Agreement, a payment
having an aggregate value equal to the product of (i) the excess of (A) the Fair Market
Value on the exercise date of one share of Common Stock over (B) the base price per share
specified in the Grant Agreement, times (ii) the number of shares specified by the SAR, or
portion thereof, which is exercised. The base price per share specified in the Grant
Agreement shall not be less than the lower of the Fair Market Value on the grant date or the
exercise price of any tandem stock option Award to which the SAR is related. No SAR shall
have a term longer than ten years’ duration. Payment by the Company of the amount
receivable upon any exercise of an SAR may be made by the delivery of Common Stock or cash,
or any combination of


 


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Common Stock and cash, as determined in the sole discretion of the Administrator. If
upon settlement of the exercise of an SAR a grantee is to receive a portion of such payment
in shares of Common Stock, the number of shares shall be determined by dividing such portion
by the Fair Market Value of a share of Common Stock on the exercise date. No fractional
 shares shall be used for such payment and the Administrator shall determine whether cash
shall be given in lieu of such fractional shares or whether such fractional shares shall be
eliminated.




(c) Stock Awards.




(i) The Administrator may from time to time grant stock awards to eligible
participants in such amounts, on such terms and conditions, and for such
consideration, including no consideration or such minimum consideration as may be
required by law, as it shall determine. A stock award may be denominated in Common
Stock or other securities, stock-equivalent units, securities or debentures
convertible into Common Stock, or any combination of the foregoing and may be paid in
Common Stock or other securities, in cash, or in a combination of Common Stock or
other securities and cash, all as determined in the sole discretion of the
Administrator.




(ii) The Administrator may grant stock awards in a manner constituting
“qualified performance-based compensation” within the meaning of Code section 162(m).
The grant of, or lapse of restrictions with respect to, such performance-based stock
awards shall be based upon one or more Performance Measures and objective performance
targets to be attained relative to those Performance Measures, all as determined by
the Administrator. Performance targets may include minimum, maximum, intermediate
and target levels of performance, with the size of the performance-based stock award
or the lapse of restrictions with respect thereto based on the level attained. A
performance target may be stated as an absolute value or as a value determined
relative to prior performance, one or more indices, budget, one or more peer group
companies, any other standard selected by the Administrator, or any combination
thereof. The Administrator shall be authorized to make adjustments in the method of
calculating attainment of Performance Measures and performance targets in recognition
of: (A) extraordinary or non-recurring items; (B) changes in tax laws; (C) changes
in generally accepted accounting principles or changes in accounting policies; (D)
changes related to restructured or discontinued operations; (E) restatement of prior
period financial results; and (F) any other unusual, non-recurring gain or loss that
is separately identified and quantified in the Company’s financial statements;
provided that the Administrator’s decision as to whether such adjustments will be
made with respect to any Covered Employee, within the meaning of Code section 162(m),
is determined when the performance targets are established for the applicable
performance period. Notwithstanding the foregoing, the Administrator may, at its
sole discretion, modify the performance results upon which Awards are based under the
Plan to offset any unintended


 


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results arising from events not anticipated when the Performance Measures and
performance targets were established; provided, that such modifications may be made
with respect to an Award granted to any Covered Employee, within the meaning of Code
section 162(m) only to the extent permitted by Code section 162(m). Notwithstanding
anything in the Plan to the contrary, the Administrator is not authorized to waive or
accelerate the lapse of restrictions on a performance-based stock award granted to
any Covered Employee, within the meaning of Code section 162(m) except upon death,
disability or a change of ownership or control of the Company. In the event that a
Change in Control occurs after a performance-based stock award has been granted but
before completion of the applicable performance period, such Award shall become
payable (or the lapse restrictions shall lapse, as applicable) as of the date of the
Change in Control.



7. Miscellaneous





(a) Withholding of Taxes. Grantees and holders of Awards shall pay to the Company or
its Affiliate, or make provision satisfactory to the Administrator for payment of, any taxes
required to be withheld in respect of Awards under the Plan no later than the date of the
event creating the tax liability. The Company or its Affiliate may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind otherwise due to the
grantee or holder of an Award. In the event that payment to the Company or its Affiliate of
such tax obligations is made in shares of Common Stock, such shares shall be valued at Fair
Market Value on the applicable date for such purposes and shall not exceed in amount the
minimum statutory tax withholding obligation.




(b) Loans. To the extent otherwise permitted by law, the Company or its Affiliate may
make or guarantee loans to grantees to assist grantees in exercising Awards and satisfying
any withholding tax obligations.




(c) Transferability. Except as otherwise determined by the Administrator, and in any
event in the case of an incentive stock option, within the meaning of Code section 422, or a
stock appreciation right granted with respect to an incentive stock option, no Award granted
under the Plan shall be transferable by a grantee otherwise than by will or the laws of
descent and distribution. Unless otherwise determined by the Administrator in accord with
the provisions of the immediately preceding sentence, an Award may be exercised during the
lifetime of the grantee, only by the grantee or, during the period the grantee is under a
legal disability, by the grantee’s guardian or legal representative.


 


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(d) Adjustments for Corporate Transactions and Other Events.




	 	(i)	 	Stock Dividend, Stock Split and Reverse Stock
Split. In the event of a stock dividend of, or stock split or reverse
stock split affecting, the Common Stock, (A) the maximum number of shares of such Common Stock as to which
Awards may be granted under this Plan, the maximum number of shares
available for issuance pursuant to incentive stock options intended to
qualify under Code section 422, and the maximum number of shares with
respect to which Awards may be granted during any one fiscal year of
the Company to any individual, as provided in Section 4 of the Plan,
and (B) the number of shares covered by and the exercise price and
other terms of outstanding Awards, shall, without further action of the
Board, be adjusted to reflect such event. The Administrator may make
adjustments, in its discretion, to address the treatment of fractional
 shares and fractional cents that arise with respect to outstanding
Awards as a result of the stock dividend, stock split or reverse stock
split.







	 	(ii)	 	Non-Change in Control Transactions. Except with
respect to the transactions set forth in Section 7(d)(i), in the event of
any change affecting the Common Stock, the Company or its capitalization,
by reason of a spin-off, split-up, dividend, recapitalization, merger,
consolidation or share exchange, other than any such change that is part
of a transaction resulting in a Change in Control of the Company, the
Administrator, in its discretion and without the consent of the holders
of the Awards, may make (A) appropriate adjustments to the maximum number
and kind of shares reserved for issuance or with respect to which Awards
may be granted under the Plan, in the aggregate and with respect to any
individual during any one fiscal year of the Company, as provided in
Section 4 of the Plan; and (B) any adjustments in outstanding Awards,
including but not limited to modifying the number, kind and price of
securities subject to Awards.







	 	(iii)	 	Change in Control Transactions. In the event of
any transaction resulting in a Change in Control of the Company,
outstanding stock options and other Awards that are payable in or
convertible into Common Stock under this Plan will terminate upon the
effective time of such Change in Control unless provision is made in
connection with the transaction for the continuation or assumption of
such Awards by, or for the substitution of the equivalent awards, as
determined in the sole discretion of the Administrator, of, the surviving
or successor entity or a parent thereof. In the event of such
termination, (A) the outstanding stock options and other Awards that will
terminate upon the effective time of the Change in Control shall become
fully vested immediately before the effective time of the Change in
Control, and (B) the holders of stock options and other Awards under the
Plan will be permitted, immediately before the Change in Control, to
exercise or convert all portions of such stock options or other Awards
under the Plan that are then exercisable or convertible or which become exercisable or convertible upon or prior to the effective time of the
Change in Control.





 


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	 	(iv)	 	Unusual or Nonrecurring Events. The Administrator
is authorized to make, in its discretion and without the consent of
holders of Awards, adjustments in the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring
events affecting the Company, or the financial statements of the Company
or any Affiliate, or of changes in applicable laws, regulations, or
accounting principles, whenever the Administrator determines that such
adjustments are appropriate in order to prevent dilution or enlargement
of the benefits or potential benefits intended to be made available under
the Plan provided always that the rights of holders of Awards will be
changed to the extent necessary to comply with the Listing Rules applying
to a reorganization of capital at the time of the reorganization.







(e) Substitution of Awards in Mergers and Acquisitions. Awards may be granted under
the Plan from time to time in substitution for awards held by employees, officers,
consultants or directors of entities who become or are about to become employees, officers,
consultants or directors of the Company or an Affiliate as the result of a merger or
consolidation of the employing entity with the Company or an Affiliate, or the acquisition
by the Company or an Affiliate of the assets or stock of the employing entity. The terms
and conditions of any substitute Awards so granted may vary from the terms and conditions
set forth herein to the extent that the Administrator deems appropriate at the time of grant
to conform the substitute Awards to the provisions of the Awards for which they are
substituted.




(f) Termination, Amendment and Modification of the Plan. The Board may terminate,
amend or modify the Plan or any portion thereof at any time. Except as otherwise determined
by the Board, termination of the Plan shall not affect the Administrator’s ability to
exercise the powers granted to it hereunder with respect to Awards granted under the Plan
prior to the date of such termination.




(g) Non-Guarantee of Employment or Service. Nothing in the Plan or in any Grant
Agreement thereunder shall confer any right on an individual to continue in the service of
the Company or shall interfere in any way with the right of the Company to terminate such
service at any time with or without cause or notice and whether or not such termination
results in (i) the failure of any Award to vest; (ii) the forfeiture of any unvested or
vested portion of any Award; and/or (iii) any other adverse effect on the individual’s
interests under the Plan.


 


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(h) Compliance with Securities Laws; Listing and Registration. If at any time the
Administrator determines that the delivery of Common Stock under the Plan is or may be
unlawful under the laws of any applicable jurisdiction, or United States federal or state
securities laws, or applicable non-United States securities laws, the right to exercise an Award or receive shares of
Common Stock pursuant to an Award shall be suspended until the Administrator determines that
such delivery is lawful. If at any time the Administrator determines that the delivery of
Common Stock under the Plan is or may violate the rules of the national exchange on which
the shares of Common Stock are then listed for trade, the right to exercise an Award or
receive shares of Common Stock pursuant to an Award shall be suspended until the
Administrator determines that such delivery would not violate such rules. The Company shall
have no obligation to effect any registration or qualification of the Common Stock under
United States federal or state securities laws, or applicable non-United States securities
laws.




The Company may require that a grantee, as a condition to exercise of an Award, and as
a condition to the delivery of any share certificate, make such written representations
(including representations to the effect that such person will not dispose of the Common
Stock so acquired in violation of United States federal or state securities laws, or
applicable non-United States securities laws) and furnish such information as may, in the
opinion of counsel for the Company, be appropriate to permit the Company to issue the Common
Stock in compliance with applicable United States federal or state securities laws, or
applicable non-United States securities laws. The stock certificates for any shares of
Common Stock issued pursuant to this Plan may bear a legend restricting transferability of
the shares of Common Stock unless such shares are registered or an exemption from
registration is available under the Securities Act of 1933, as amended, and applicable state
or applicable non-United States securities laws.




(i) No Trust or Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary relationship between
the Company and a grantee or any other person. To the extent that any grantee or other
person acquires a right to receive payments from the Company pursuant to an Award, such
right shall be no greater than the right of any unsecured general creditor of the Company.




(j) Governing Law. The validity, construction and effect of the Plan, of Grant
Agreements entered into pursuant to the Plan, and of any rules, regulations, determinations
or decisions made by the Administrator relating to the Plan or such Grant Agreements, and
the rights of any and all persons having or claiming to have any interest therein or
thereunder, shall be determined exclusively in accordance with applicable federal laws and
the laws of the State of Delaware, without regard to its conflict of laws principles.


 


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(k) 409A Savings Clause. The Plan and all Awards granted hereunder are intended to
comply with, or otherwise be exempt from, Code section 409A. The Plan and all Awards
granted under the Plan shall be administered, interpreted, and construed in a manner
consistent with Code section 409A to the extent necessary to avoid the imposition of
additional taxes under Code section 409A(a)(1)(B). Should any provision of the Plan, any
Award Agreement, or any other agreement or arrangement contemplated by the Plan be found not to comply with, or otherwise be
exempt from, the provisions of Code section 409A, such provision shall be modified and given
effect (retroactively if necessary), in the sole discretion of the Administrator, and
without the consent of the holder of the Award, in such manner as the Administrator
determines to be necessary or appropriate to comply with, or to effectuate an exemption
from, Code section 409A. Notwithstanding anything in the Plan to the contrary, in no event
shall the Administrator exercise its discretion to accelerate the payment or settlement of
an Award where such payment or settlement constitutes deferred compensation within the
meaning of Code section 409A unless, and solely to the extent, that such accelerated payment
or settlement is permissible under Treasury Regulation section 1.409A-3(j)(4) or any
successor provision.




(l) Effective Date; Termination Date. The Plan is effective as of the date on which
the Plan is adopted by the Board, subject to approval of the stockholders within twelve
months before or after such date. No Award shall be granted under the Plan after the close
of business on the day immediately preceding the tenth anniversary of the effective date of
the Plan, or if earlier, the tenth anniversary of the date this Plan is approved by the
stockholders. Subject to other applicable provisions of the Plan, all Awards made under the
Plan prior to such termination of the Plan shall remain in effect until such Awards have
been satisfied or terminated in accordance with the Plan and the terms of such Awards.




(m) Listing Rules. While the Shares are listed for trading on any securities exchange
or market (including, without limitation, ASX and NASDAQ Stock Market), the Company and the
Administrator agree that they will not make any amendments to this Plan or issue any Awards
or take any other action unless such action complies with the relevant Listing Rules.




(n) Stockholder Rights. No person to whom an Award is made pursuant to this Plan has
the rights of a stockholder with respect to Common Stock until the Common Stock have been
issued and the Company shall make no adjustment for dividends, distributions or other rights
for which the record date is before the date the Common Stock are issued.




(o) The Board. The Administrator may elect not to offer Awards under the Plan to
persons who are resident outside of the United States of America if it determines that it
may be illegal or impracticable to do so and the Board may formulate special terms and
conditions, in addition to those set out in this document, to apply to persons resident
outside of the United States of America.




 


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