exv10w2



 






Exhibit 10.2




SMART Modular Technologies (WWH), Inc.




Stock Incentive Plan





     Section 1. Purpose. The purposes of the SMART Modular Technologies (WWH), Inc. Stock
Incentive Plan (the “Plan”) are to promote the interests of SMART Modular Technologies (WWH), Inc.,
an exempted company organised under the laws of the Cayman Islands (together with its successors
and assigns, the “Company”) and its shareholders by (i) attracting and retaining exceptional
executive personnel, employees, directors, and consultants of the Company and its Affiliates (as
defined below); (ii) motivating employees, consultants and directors by means of performance
related incentives to achieve longer range performance goals; and (iii) enabling employees,
consultants and directors to participate in the long term growth and financial success of the
Company.



     Section 2.  Definitions. As used in the Plan, the following terms shall have the meanings
set forth below:



     (a) “Affiliate” means with respect to any Person, (i) any other Person directly or indirectly
controlling, controlled by or under common control with such Person and any entity that is,
directly or indirectly, controlled by the Company and (ii) any other entity in which such Person
has a significant equity interest or which has a significant equity interest in such Person, in
either case as determined by the Committee. For purposes of this definition, the terms “control”
(including with correlative meanings, the terms “controlling”, “controlled by” and “under common
control with”) when used with respect to any Person, means the possession, directly or indirectly
of the power to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise. Notwithstanding the
foregoing, for purposes of any Incentive Stock Option, “Affiliate” shall mean any parent
corporation or subsidiary corporation of the Company as those terms are defined in Sections 424(e)
and (f), respectively, of the Code.



     (b) “Award” means any Option or other stock-based award granted hereunder.



     (c) “Award Agreement” means any written agreement, contract, or other instrument or document
evidencing any Award, which may, but need not, be executed or acknowledged by a Participant.



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



     (e) “Cause” means, unless otherwise defined in any Employment Agreement or Award Agreement:



          (i) a Participant’s willful and continued failure substantially to perform his or her duties
(other than as a result of total or partial incapacity due to physical or mental illness);




          (ii) a Participant’s gross negligence or willful malfeasance in the performance of his or her
duties;




 









 








          (iii) a Participant’s commission of an act constituting fraud, embezzlement, or any other act
constituting a felony or other similar offense under the laws of the United States, the Cayman
Islands or any other jurisdiction in which the Company conducts business;




          (iv) a Participant being repeatedly under the influence of alcohol or illegal drugs while
performing his or her duties; or




          (v) any other act or omission which is materially injurious to the financial condition or
business reputation of the Company or any of its Affiliates as determined in the reasonable
discretion of the Company, including a Participant’s breach of the provisions of any
non-solicitation, non-competition, trade secret or confidentiality covenant in favor of the Company
or its Affiliates binding upon such Participant.




     (f) “Change of Control” means the occurrence of one of the following events:



          (i) the consummation of a merger or consolidation of the Company with or into any other entity
pursuant to which the shareholders of the Company, or applicable, immediately prior to such merger
or consolidation hold less than 50% of the voting power of the surviving entity;




          (ii) the sale or other disposition of all or substantially all of the Company’s assets; or




          (iii) any acquisition by any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act and other than the direct and indirect shareholders of the Company
immediately before such transaction) of the beneficial ownership of 50% or more of the voting power
of the Company’s equity securities in a single transaction or series of related transactions, other
than in an underwritten public offering of the securities of the Company;



provided, however, that a transaction shall not constitute a Change of Control if its sole purpose
is to change the state of the Company’s incorporation or to create a holding company that will be
owned in substantially the same proportions by the persons who held the Company’s securities
immediately before such transaction.




     (g) “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.



     (h) “Committee” means a committee of one or more members of the Board designated by the Board
to administer the Plan. Until otherwise determined by the Board, the full Board shall be the
Committee under the Plan.



     (i) “Consultant” means any person, including an advisor, engaged by the Company or an
Affiliate to render consulting or advisory services and who is compensated for such services.



     (j) “Director” means a member of the Board.



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     (k) “Disability” shall mean “permanent and total disability” as defined in Section 22(e)(3) of
the Code.



     (l) “Employee” means an employee of the Company or any of its Affiliates.



     (m) “Employment Agreement” means an employment agreement entered into between a Participant
and the Company or any of its Affiliates.



     (n) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     (o) “Exercise Price” means the purchase price of the Option as set forth in the Award
Agreement.



     (p) “Fair Market Value” means, with respect to a Share as of any date of determination, the
reported closing price of a Share on such exchange or market as is the principal trading market for
the Shares for the trading day immediately preceding such date of determination. If the Shares are
not traded on an exchange or principal trading market on such date, the fair market value of a
Share shall be determined by the Committee in good faith taking into account such factors as the
Committee shall in its sole discretion deem relevant or appropriate.



     (q) “Incentive Stock Option” means a right to purchase Shares from the Company that is granted
under Section 6 of the Plan and that is intended to meet the requirements of Section 422 of the
Code or any successor provision thereto.



     (r) “Initial Public Offering” shall mean the closing of the first underwritten public offering
of Shares after which the Shares are publicly traded.



     (s) “Initial Transferability Date” shall mean the earlier to occur of (i) the Initial Public
Offering or (ii) the Reporting Date.



     (t) “Listing Date” means the first date on which any security of the Company is listed or
approved for listing upon notice of issuance on a national securities exchange or on the National
Market System of the Nasdaq Stock Market (or any successor to that entity), if the exchange or
Nasdaq Stock Market (or its successor) has been certified by rule or order of the commissioner.



     (u) “Non-Qualified Stock Option” means a right to purchase Shares from the Company that is
granted under Section 6 of the Plan and that is not intended to be an Incentive Stock Option.



     (v) “Option” means an Incentive Stock Option or a Non-Qualified Stock Option.



     (w) “Participant” means a Person granted an Award under the Plan (and to the extent
applicable, any heirs or legal representatives thereof).



     (x) “Permitted Transferees” shall mean, with respect to each Participant, (i) those persons
who acquire Shares pursuant to such Participant’s will or the laws of descent and



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distribution or as a result of other donative transfers to “family members” as defined in, and
under the circumstances permitted under, Rule 701 and (ii) the Company.




     (y) “Person” means any individual, corporation, limited liability company, partnership,
association, joint-stock company, trust, unincorporated organization, government or political
subdivision thereof or other entity.



     (z) “Reporting Date” means the date on which the Company becomes a reporting company under the
Exchange Act with respect to any class of its equity securities.



     (aa) “Rule 701” means Rule 701 as promulgated under the Securities Act.



     (bb) “SEC” means the Securities and Exchange Commission or any successor thereto.



     (cc) “Securities Act” means the Securities Act of 1933, as amended.



     (dd) “Shares” means the ordinary shares, of US$0.001 par value, in the authorised capital of
the Company or such other securities as may be designated by the Committee from time to time.



     (ee) “Substitute Awards” means Awards granted in assumption of, or in substitution for,
outstanding awards previously granted by a company acquired by the Company or with which the
Company combines.



     Section 3.
Administration.



     (a) Authority of Committee. The Plan shall be administered by the Committee. Subject to the
terms of the Plan, applicable law and contractual restrictions affecting the Company, and in
addition to other express powers and authorizations conferred on the Committee by the Plan, the
Committee shall have full power and authority to:



          (i) designate Participants;




          (ii) determine the type or types of Awards to be granted to a Participant and the exercise
price or purchase price, if applicable;




          (iii) determine the number of Shares to be covered by, or with respect to which payments,
rights, or other matters are to be calculated in connection with, Awards;




          (iv) determine the terms and conditions (including the vesting schedule, if any) of any Award
and Award Agreement;




          (v) determine whether, to what extent, and under what circumstances Awards may be settled or
exercised in cash, Shares, other securities, other Awards or other property, or canceled,
forfeited, or suspended and the method or methods by which Awards may be settled, exercised,
canceled, forfeited or suspended;




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          (vi) determine whether, to what extent, and under what circumstances cash, Shares, other
securities, other Awards, other property, and other amounts payable with respect to an Award shall
be deferred either automatically or at the election of the holder thereof or of the Committee;




          (vii) interpret and administer the Plan and any instrument or agreement relating to, or Award
made under, the Plan;




          (viii) establish, amend, suspend, or waive such rules and regulations and appoint such agents
as it shall deem appropriate for the proper administration of the Plan; and




          (ix) make any other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan.




     (b) Committee Discretion Binding. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and
shall be final, conclusive and binding upon all Persons, including the Company, any of its
Affiliates, any Participant, any holder or beneficiary of any Award, any shareholder and any
Employee.



     Section 4. Shares Available For Awards.



     (a) Shares Available. Subject to adjustment as provided in this Section, the number of Shares
with respect to which Awards may be granted under the Plan shall be
7,329,948. Such Shares may
consist, in whole or in part, of authorised and unissued shares. If, after the effective date of
the Plan, any Shares covered by an Award granted under the Plan (including any Substitute Award) or
to which such an Award relates are forfeited, or if such an Award is settled for cash or otherwise
terminates or is canceled without the delivery of Shares, then the Shares covered by such Award, or
to which such Award relates, shall again become Shares with respect to which Awards may be granted.
In addition, Shares tendered in satisfaction or partial satisfaction of the exercise price of any
Award or any tax withholding obligations will again become Shares with respect to which Awards may
be granted.



     (b) Adjustments. In the event that the number of issued Shares is increased or decreased as a
result of a stock dividend, stock split, reverse stock split, combination or reclassification of
Shares, or any other increase or decrease in the number of issued Shares effected without receipt
of consideration by the Company (provided that conversion of any convertible securities of the
Company shall not be deemed to have been “effected without receipt of consideration”), then the
Committee shall, in such manner as it may deem equitable but otherwise in its discretion, adjust
any or all of (i) the number of Shares of the Company (or number and kind of other securities or
property) with respect to which Awards may thereafter be granted, (ii) the number of Shares or
other securities of the Company (or number and kind of other securities or property) subject to
outstanding Awards, and (iii) the grant or exercise price with respect to any Award.





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     (c) Substitute Awards. Any Shares underlying Substitute Awards shall not be counted against
the Shares authorised for issuance under the Plan and shall, subject to existing corporate
authorities, increase the number of Shares available for issuance hereunder, unless determined
otherwise by the Committee.




     Section 5. Eligibility.



     (a) General. Any Employee, Consultant or Director shall be eligible to be selected by the
Committee to receive an Award under the Plan.



     (b) Incentive Stock Options. Only Employees who are U.S. taxpayers shall be eligible for the
grant of Incentive Stock Options.



     Section 6. Stock Options.




     (a) Grants. The Committee is authorised to grant Options to Participants with the terms and
conditions set forth in this Section and with such additional terms and conditions, in either case
not inconsistent with the provisions of the Plan, as the Committee shall determine.



     (b) Type of Option. The Committee shall have the authority to grant Incentive Stock Options
to U.S. taxpayers or to grant Non-Qualified Stock Options to any Participant, or both. In the case
of Incentive Stock Options, the terms and conditions of such grants shall be subject to and comply
with the provisions of Section 422 of the Code, as from time to time amended, or any successor
provision thereto, and any regulations implementing such statute.



     (c) Exercise Price. The Committee in its sole discretion shall establish the Exercise Price at
the time each Option is granted. Notwithstanding the foregoing, the Exercise Price of any Option
granted prior to the Listing Date shall not be less than 85% of the Fair Market Value at the time
the Option is granted (or 110% of the Fair Market Value in the case of any person who owns
securities possessing more than 10% of the total combined voting power of all classes of securities
of the Company or its Affiliates).



     (d) Exercise. Each Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may, in its sole discretion, specify in the applicable Award Agreement
or thereafter. The Committee may impose such conditions with respect to the exercise of Options,
including without limitation, any relating to the application of U.S. federal or state securities
laws, or those of any other jurisdiction, as it may deem necessary or advisable. Notwithstanding
the foregoing, any Option granted prior to the Listing Date to any Employee who is not an officer,
director or consultant shall become exercisable at the rate of at least 20% per year over five
years from the date the Option is granted, subject to continued employment.



     (e) Payment. No Shares shall be delivered pursuant to any exercise of an Option until payment
in full of the exercise price is received by the Company, together with any documentation required
by the Company and any applicable taxes. Such payment may be made:



          (i) in cash;




          (ii) if approved by the Committee, in Shares (the value of such Shares shall be their Fair
Market Value on the date of exercise) owned by the Participant for the period required to avoid a
charge to the Company’s earnings (which is generally six months);




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          (iii) if approved by the Committee, by a combination of the foregoing;




          (iv) if approved by the Committee, in accordance with a cashless exercise program; or




          (v) in such other manner as permitted by the Committee at the time of grant or thereafter.




     Section 7. Other Stock-based Awards. The Committee is hereby authorised to grant to
Participants such other Awards (including, without limitation, grants of restricted stock,
restricted stock units, rights to purchase stock, warrants, and rights to dividends and dividend
equivalents) that are denominated or payable in, valued in whole or in part by reference to, or
otherwise based on or related to, Shares (including, without limitation, securities convertible
into Shares) as are deemed by the Committee to be consistent with the purposes of the Plan. Subject
to the terms of the Plan, the Committee shall determine the terms and conditions of such Awards.
Shares or other securities delivered pursuant to a purchase right granted under this Section shall
be purchased for such consideration, which may be paid by such method or methods and in such form
or forms, including, without limitation, cash, Shares, other securities, other Awards, or other
property, or any combination thereof, as the Committee shall determine.



     Section 8. Effect Of Termination Of Employment Or Service.



     (a) Termination of Employment or Service. Except as the Committee may otherwise provide at
the time the Award is granted or thereafter, or as required to comply with applicable law, if the
Participant’s employment or service with the Company and its Affiliates is terminated by
Participant or by the Company for any reason (other than death or Disability or by the Company for
Cause), then vesting shall immediately cease and, to the extent vested as of the date of
termination, an Award may be retained and, if applicable, exercised until the earlier of (i) the
date three months (or such longer or shorter period, if any, specified in the applicable Award
Agreement or Employment Agreement) after such termination of employment or service or (ii) the date
such Award would have expired had it not been for the termination of employment or service, after
which time, in either case, the Award shall expire.



     (b) Death or Disability. Except as the Committee may otherwise provide at the time the Award
is granted or thereafter, or as required to comply with applicable law, if the Participant’s
employment or service with the Company and its Affiliates is terminated by reason of death or
Disability, then vesting shall immediately cease and, to the extent vested as of the date of
termination, the Award may be retained and, if applicable, exercised by the Participant or his
successor (if employment or service is terminated by death) until the earlier of (i) the date one
year after such termination of employment or service or (ii) the date such Award would have expired
had it not been for the termination of such employment or service, after which time, in either
case, the Award shall expire.




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     (c) Cause. Except as the Committee may otherwise provide at the time the Award is granted or
thereafter, or as required to comply with applicable law, if the Participant’s employment or
service with the Company and its Affiliates is terminated by the Company or an
Affiliate for Cause, all Awards shall be forfeited and shall expire immediately on the date of
termination.




     (d) Repurchase Rights Prior to an Initial Public Offering. Unless otherwise determined in an
Employment Agreement or Award Agreement, the Company shall have the following rights to repurchase
a Participant’s Shares (the “Repurchase Right”) upon termination of Participant’s employment or
service:



          (i) If the Participant’s employment or service with the Company and its Affiliates shall be
terminated by the Company or any of its Affiliates for Cause, all Shares previously acquired
hereunder and held by Participant for the period determined by the Company in its discretion that
will not result in adverse accounting consequences to the Company (which is generally six months)
shall be subject to a right of repurchase by the Company from the Participant or his or her
Permitted Transferee at a price per Share equal to the lesser of (A) the Exercise Price or (B) Fair
Market Value as of the date of the notice given pursuant to clause (iii) below.




          (ii) If the Participant’s employment or service with the Company and its Affiliates shall be
terminated (A) by Participant for any reason, (B) by the Company or any of its Affiliates for any
reason other than Cause, or (C) as a result of death or Disability, all Shares previously acquired
hereunder and held by Participant for the period determined by the Company in its discretion that
will not result in adverse accounting consequences to the Company (which is generally six months)
shall be subject to a right of repurchase by the Company from the Participant or his or her
Permitted Transferee at a price per Share equal to Fair Market Value as of the date of the notice
given pursuant to clause (iii) below.




          (iii) If the Company elects to exercise its Repurchase Right under this Section, the Company
shall deliver written notice to the Participant or his or her Permitted Transferee, as applicable,
setting forth the number of Shares proposed to be purchased and the then Fair Market Value. Upon
the consummation of any such purchase, Participant shall deliver certificates, as applicable, or
other documents satisfactory to the Company in its sole discretion evidencing such Shares duly
endorsed, or accompanied by written instruments of transfer, free and clear of any encumbrances
against delivery of payment for such Shares.




          (iv) The Repurchase Right shall lapse and be of no further force and effect upon the earlier
to occur of (A) an Initial Public Offering and (B) 12 months after termination of Participant’s
employment or service, or earlier as required by applicable law or regulation.




          (v) Any exercise of a Repurchase Right shall be made in accordance with the Company’s
articles of association from time to time.




     Section 9.  Amendment And Termination.



     (a) Amendment or Termination of the Plan. The Board may amend, alter, suspend, discontinue, or
terminate the Plan or any portion thereof at any time; provided that (i) no such amendment,
alteration, suspension, discontinuation or termination shall be made without shareholder approval
if such approval is necessary to comply with any tax or regulatory requirement with which the Board
deems it necessary or desirable to qualify or comply and



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(ii) any amendment, alteration, suspension, discontinuance, or termination that would
adversely affect the rights of a Participant with respect to any outstanding Award shall not to
that extent be effective with respect to such Award without the consent of the affected
Participant, holder or beneficiary, except as otherwise provided in Section 10 below or elsewhere
in the Plan. Notwithstanding anything to the contrary herein, the Committee may amend the Plan in
such manner as may be necessary so as to have the Plan conform with local rules and regulations in
any jurisdiction outside the United States.




     (b) Amendment or Termination of Awards. Subject to the terms of the Plan and applicable law,
the Committee may waive any conditions or rights under, amend any terms of, or alter, suspend,
discontinue, cancel or terminate, any Award theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or
termination that would adversely affect the rights of a Participant shall not to that extent be
effective without the consent of the affected Participant, holder or beneficiary, except as
otherwise provided in Section 10 below or elsewhere in the Plan or the applicable Award Agreement.



     Section 10. Corporate Transactions.



     (a) Change of Control. Any provision of this Plan or any Award Agreement to the contrary
notwithstanding, in the event of a Change of Control, the Committee, in its sole discretion, (i)
may cause any outstanding Award to be (A) continued by the Company, (B) assumed, or substituted
with a substantially equivalent award, by the successor company (or its parent or any of its
subsidiaries), or (C) canceled in consideration of a cash payment or alternative Award, if
applicable, made to the holder of such canceled Award equal in value to the Fair Market Value of
such canceled Award less any exercise price (provided that the Committee may determine that only
holders of vested Awards shall receive any such cash payment or alternative Award); or (ii) may
take any other action or actions with respect to the outstanding Awards that it deems appropriate.
Any Award (or any portion thereof) not continued or assumed by the Company or the successor company
(or its parent or any of its subsidiaries), as applicable, pursuant to the foregoing shall
terminate on such Change of Control and the holder thereof shall be entitled to no consideration
for such Award.



     (b) Dissolution or Liquidation. In the event of a dissolution or liquidation of the Company,
then all outstanding Awards shall terminate immediately prior to such event.



     Section 11.  General Provisions.



     (a) Dividend Equivalents. In the sole and complete discretion of the Committee, an Award may
provide the Participant with dividends or dividend equivalents, payable in cash, Shares, other
securities or other property on a current or deferred basis.



     (b) Nontransferability of Awards. Except to the extent otherwise provided in an Award
Agreement or as determined by the Committee (except with respect to Incentive Stock Options), no
Award shall be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered
by a Participant, except by will or the laws of descent and distribution.



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     (c) Transfer Restrictions on Shares. Shares issued hereunder may not be sold, given,
transferred, assigned, or otherwise hypothecated by the holder thereof prior to the Initial
Transferability Date, except to such holder’s Permitted Transferees. Any attempted transfer in
violation of this subsection will be void ab initio. Shares held by Permitted Transferees who
receive such Shares in accordance with this subsection shall be subject to the restrictions herein
as if such Permitted Transferee were the original holder of the Shares transferred to the Permitted
Transferee.



     (d) No Rights to Awards. No Employee, Participant or other Person shall have any claim to be
granted any Award, and there is no obligation for uniformity of treatment of Employees,
Participants, or holders or beneficiaries of Awards. The terms and conditions of Awards need not be
the same with respect to each recipient.



     (e) Lock-up Period. Unless otherwise determined by the Committee, Shares shall not be issued
under this Plan unless the Participant agrees that he or she will not sell, transfer, make any
short sale of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale, any Shares (or other securities of the
Company) held by the Participant prior to the date 180 days following the effective date of a
registration statement with respect to any underwritten public offering by the Company of its
securities as requested by the managing underwriters for such offering, including the Initial
Public Offering.



     (f) Information Obligations. Prior to the Listing Date, to the extent required by applicable
law, the Company shall deliver financial statements to Participants at least annually. This
subsection shall not apply to key employees whose duties in connection with the Company assure them
access to equivalent information.



     (g) Share Certificates. Certificates issued in respect of Shares shall, unless the Committee
otherwise determines, be registered in the name of the Participant or its permitted transferees and
shall be deposited by such Participant or permitted transferee, together with a stock power
endorsed in blank, with the Company. When the Participant ceases to be bound by any transfer
restrictions set forth herein or in the applicable Award Agreement, the Company shall deliver such
certificates to the Participant upon request. Such stock certificate shall carry such appropriate
legends, and such written instructions shall be given to the Company transfer agent, as may be
deemed necessary or advisable by counsel to the Company in order to comply with the requirements of
the Securities Act of 1933, any state securities laws or any other applicable laws. All
certificates for Shares or other securities of the Company or any of its Affiliates delivered under
the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable under the Plan or the rules,
regulations and other requirements of the Securities and Exchange Commission or any stock exchange
upon which such Shares or other securities are then listed and any applicable laws or rules or
regulations, and the Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.



     (h) Withholding. A Participant may be required to pay to the Company or any of its Affiliates,
and the Company or any Affiliate shall have the right and is hereby authorised (i) to withhold from
any Award, from any payment due or transfer made under any Award or under



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the Plan or from any compensation or other amount owing to a Participant, the amount (in cash,
Shares, other securities, other Awards or other property) of any applicable taxes, social
contributions or other amounts required by applicable law in respect of the grant, exercise, lapse
or vesting of an Award or any payment or transfer under an Award or under the Plan and (ii) to take
such other action as may be necessary in the opinion of the Company to satisfy all obligations for
the payment of such amounts.




     (i) Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement which
shall be delivered to the Participant and shall specify the terms and conditions of the Award and
any rules applicable thereto.



     (j) No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall prevent
the Company or any Affiliate from adopting or continuing in effect other compensation arrangements.



     (k) No Right to Employment. The grant of an Award shall not be construed as giving a
Participant the right to be retained in the employ or service of the Company or any Affiliate and
shall not lessen or effect the right of the Company or its Affiliates to terminate the employment
or service of a Participant.



     (l) Rights as a Shareholder. Subject to the provisions of the applicable Award, no Participant
or holder or beneficiary of any Award shall have any rights as a shareholder with respect to any
Shares to be issued under the Plan until he or she has become the holder of such Shares.



     (m) Governing Law. The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan and any Award Agreement shall be determined in accordance with the
laws of the Cayman Islands, without, to the fullest extent permissible thereby, application of the
conflict of law principles thereof.



     (n) Severability. If any provision of the Plan or any Award is or becomes or is deemed to be
invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to the applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person
or Award and the remainder of the Plan and any such Award shall remain in full force and effect.



     (o) Other Laws. The Committee may refuse to issue or transfer any Shares or other
consideration under an Award if, acting in its sole discretion, it determines that the issuance or
transfer of such Shares or such other consideration might violate any applicable law or regulation
or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and any payment
tendered to the Company by a Participant in connection therewith shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of the foregoing, no
Award granted hereunder is, nor shall be construed as, an offer to sell securities of the Company,
and no such offer shall be outstanding, unless and until the Committee in its sole



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discretion has determined that any such offer, if made, would be in compliance with all
applicable requirements of the laws of the Cayman Islands, the U.S. federal securities laws and any
other laws to which such offer, if made, would be subject.




     (p) 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 or any
Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to
receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any Affiliate.



     (q) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the
Plan or any Award, and the Committee shall determine whether cash or other securities or other
property shall be paid or transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated, or otherwise eliminated.



     (r) Headings. 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.



     (s) Proprietary Information and Inventions Agreement. A Participant shall, as a condition
precedent to the exercise or settlement of an Award, have executed and be in compliance with the
Company’s (or its Affiliate’s) standard form of confidentiality and non-disclosure agreement.



     (t) Modification of Award Terms for non-U.S. Participants. The Committee shall have the
discretion and authority to grant Awards with such modified terms as the Committee deems necessary
or appropriate in order to comply with the laws of the country in which the Participant resides or
is employed, and the Committee may establish a subplan under this Plan for such purposes.



     (u) Company Governing Instruments. All Shares issued and/or vested pursuant to an Award or
Substitute Award, or transferred thereafter, shall be held subject to the Memorandum and Articles
of Association of the Company.



     Section 12. Term Of The Plan.



     (a) Effective Date. The Plan shall be effective as of the date of its adoption by the Board.



     (b) Expiration Date. No Award shall be granted under the Plan more than ten years after the
date of adoption of the Plan by the Board. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority of the Board or the
Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive
any conditions or rights under any such Award shall, continue after the authority for grant of new
Awards hereunder has been exhausted.




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