exv10w18



 









Exhibit 10.18




NUCRYST PHARMACEUTICALS CORP.

1998 Equity Incentive Plan

(as amended)




1. Purpose of the Plan



The purpose of this Stock Option Plan is to encourage equity ownership in Nucryst Pharmaceuticals
Corp. (the “Company”) and to develop the interest and incentive of eligible Employees, Directors
and other Service Providers (each as hereinafter defined) of the Company and Subsidiaries in the
Company’s growth and development and the growth and development of its Subsidiaries (as hereinafter
defined). It is believed that giving eligible Employees, Directors and other Service Providers an
opportunity to benefit from increases in value of the Common Shares will advance the interests of
the Company, align the interests of such persons with the interests of the Company’s shareholders,
enhance the value of the Common Shares for the benefit of all the Company’s shareholders and
increase the ability of the Company to attract and retain skilled and motivated individuals in the
service of the Company.




2. Definitions



In this Plan:





	 	(a)	 	“Award” means any award or benefit granted under the Plan, including,
without limitation, the grant of Options, Stock Appreciation Rights, and Full Value
Awards (including Stock Unit Awards and Restricted Stock Unit Awards);
	 
	 	(b)	 	“Award Agreement” means a written agreement between the Company and a
Participant evidencing the terms and conditions of an individual Award grant, in such
form and containing such terms and conditions as may be approved by the Committee from
time to time, provided that each Award Agreement shall be subject to the terms and
conditions of the Plan;
	 
	 	(c)	 	“Board of Directors” means the board of directors of the Company;
	 
	 	(d)	 	“Code” means the United States Internal Revenue Code of 1986, as
amended. A reference to any provision of the Code shall include reference to any
successor provision of the Code;
	 
	 	(e)	 	“Committee” means the appropriate committee(s) appointed by the Board
of Directors to administer the Plan. All references in the Plan to the Committee means
the Board of Directors if no Committee has been appointed;
	 
	 	(f)	 	“Common Shares” means the common shares of the Company or, upon the
occurrence of an event contemplated in Section 8 hereof, such other common shares to
which a Participant may be entitled upon the exercise of an Option as a result of such
event;
	 
	 	(g)	 	“Company” means Nucryst Pharmaceuticals Corp.;











 



 


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	 	(h)	 	“Date of Grant” means the date a Participant is granted an Award;
	 
	 	(i)	 	“Director” means a person occupying the position of director on the
Board of Directors;
	 
	 	(j)	 	“Disability” for purposes of this Plan, means the mental or physical
state of the Participant such that:






	 	(i)	 	the Committee determines that the Participant has been unable,
due to illness, disease, mental or physical disability or similar cause, to
fulfil his or her obligations as an employee either for any consecutive six
month period or for any period of twelve months (whether or not consecutive) in
any consecutive 24 month period; or
	 
	 	(ii)	 	a court of competent jurisdiction has declared the Participant
to be mentally incompetent or incapable of managing his or her affairs.






	 	(k)	 	“Employee” means an officer or employee of the Company or its
Subsidiaries;
	 
	 	(l)	 	“Exchange” means the NASDAQ Stock Market or, if the Common Shares are
not then listed and posted for trading on the NASDAQ Stock Market, on such stock
exchange or quotation system on which such shares are listed, posted for trading or
quoted. In the event the Common Shares are listed, posted for trading or quoted on
more than one such stock exchange or quotation system, the Committee shall, where
required, designate one exchange or quotation system as the relevant Exchange for
purposes of the Plan;
	 
	 	(m)	 	“Fair Market Price” per Common Share at any date shall be the closing
price of the Common Shares of the Company on the Exchange for the trading day
immediately preceding the date on which the granting of the Option is approved by the
Committee. In the event that the Common Shares are not listed and posted for trading
on any stock exchange, the Fair Market Price shall be determined in accordance with the
provisions in section 409A of the Code;
	 
	 	(n)	 	“Full Value Award” means the grant of one or more Common Shares or a
right to receive one or more Common Shares in the future as described in Section 7;
	 
	 	(o)	 	“Incentive Stock Option” means an Option that is intended to satisfy
the requirements applicable to an “incentive stock option” described in section 422(b)
of the Code;
	 
	 	(p)	 	“Insider” shall have the meaning attributed thereto by the Exchange;
	 
	 	(q)	 	“Nonqualified Option” means an Option that is not intended to be an
“incentive stock option” as that term is described in section 422(b) of the Code;










 



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	 	(r)	 	“Option” means an option to purchase Common Shares from the treasury of
the Company granted to a Participant pursuant to the Plan. An Option granted under the
Plan may be either an Incentive Stock Option or a Nonqualified Option;
	 
	 	(s)	 	“Option Price” means the price per Common Share at which a Participant
may purchase Option Shares or, in respect of an Independent Right (as defined in
Section 6 hereof), means the exercise price of such Independent Right; provided,
however, that under no circumstances shall the Option Price be less than the Fair
Market Price;
	 
	 	(t)	 	“Option Shares” or “Optioned Shares” means the underlying
Common Shares of the Company which a Participant is entitled to purchase under the Plan
upon the exercise of an Option;
	 
	 	(u)	 	“Outstanding Issue” means the total number of issued and outstanding
Common Shares of the Company from time to time, calculated on a non-diluted basis;
	 
	 	(v)	 	“Participants” means eligible Directors, Employees and Service
Providers to whom Options or Stock Appreciation Rights are granted pursuant to the Plan
and which remain unexercised, or to whom Full Value Awards are granted pursuant to the
Plan.
	 
	 	(w)	 	“Performance-Based Compensation” shall have the meaning ascribed to it
under Code section 162(m) and the regulations thereunder;
	 
	 	(x)	 	“Performance Measures” shall be based on any one or more of the
following Company, Subsidiary, operating unit or division performance measures: net
investment income; operating expenses; cash flow(s); operating income; earnings before
interest and taxes; net income; stock price; dividends; strategic business objectives,
consisting of one or more objectives based on meeting specified cost targets, business
expansion goals, and goals relating to acquisitions or divestitures; or any combination
thereof. Each goal may be expressed on an absolute and/or relative basis, may be based
on or otherwise employ comparisons based on internal targets, the past performance of
the Company and/or the past or current performance of other companies, and in the case
of earnings-based measures, may use or employ comparisons relating to capital,
shareholders equity and/or shares outstanding, investments or to assets or net assets;
	 
	 	(y)	 	“Plan” means this Stock Option Plan;
	 
	 	(z)	 	“Restricted Stock Unit” means the grant of Stock Unit subject to a
substantial risk of forfeiture or other restrictions;
	 
	 	(aa)	 	“Service Provider” means a person or company engaged by the Company to
provide services to the Company of an ongoing or recurring nature;
	 
	 	(bb)	 	“Stock Appreciation Right” shall, as the context prescribes, mean the
applicable stock appreciation right as referred to in Section 6 hereof;










 



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	 	(cc)	 	“Stock Unit” means the grant of a right to receive Common Shares in the
future;
	 
	 	(dd)	 	“Subsidiary” shall have the meaning attributed to such word by
applicable securities legislation;
	 
	 	(ee)	 	“Termination Date” means the date which is the earlier of:






	 	(i)	 	the effective date on which the Participant’s employment with
the Company or any Subsidiary is terminated or ceases, a Director ceases to be
a Director, or a Service Provider ceases to provide services to the Company;
and
	 
	 	(ii)	 	the date the Company notifies the Participant or the
Participant notifies the Company of such termination of employment,
directorship or service provision, as the case may be; and






	 	(ff)	 	“Vesting Period” means the period, as determined by the Committee and
stipulated in the Award Agreement, over which an Option or Stock Appreciation Right
becomes exercisable.





3. Eligibility



Participation in the Plan shall be limited to Participants who are designated from time to time by
the Committee in its sole discretion. Participation shall be voluntary and the extent to which any
Participant shall be entitled to participate in the Plan shall be determined by the Committee.



Each Award granted under the Plan shall be evidenced by an Award Agreement, the terms and
conditions of which need not be the same for all Participants. Any such Award Agreement may be
supplemented or amended in writing from time to time as approved by the Participant and the
Committee, provided that the terms of such agreement as amended or supplemented conform to the
provisions of the Plan and provided that Awards granted under the Plan shall be contingent on
shareholder approval of the Plan to the extent required by applicable law or the applicable rules
of any stock exchange. A prospective Participant shall not, with respect to any Award, have any
rights with respect to such Award unless and until such prospective Participant shall have executed
an Award Agreement or other instrument evidencing the Award and has otherwise complied with the
applicable terms and conditions of the Award, the Plan, and the Agreement.




4. Common Shares Subject to the Plan and Limitations on Issuance





	 	(a)	 	The aggregate number of Common Shares which may be reserved for issuance
pursuant to Awards shall not exceed 2,200,000 Common Shares. This prescribed maximum
may be subsequently increased to any other specified amount, subject to the approval of
the Exchange and any requisite regulatory approvals and such shareholder approvals as
may be required by the Exchange. For purposes of this paragraph (a), if an Option is
in tandem with a Stock Appreciation Right, such that the exercise of the Option or
Stock Appreciation Right with respect to a Common Share cancels the tandem Stock
Appreciation Right or Option right, respectively, with respect to such Common Share,
the tandem Option and Stock Appreciation










 



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	 	 	 	Rights with respect to each Common Share shall be counted as covering but one Common
Share for purposes of applying the limitations of this paragraph (a). Subject to
proper payment of the Option Price, all Common Shares issued pursuant to Awards will
be issued as fully paid and non-assessable. The total number of Common Shares
remaining reserved from time to time shall be adjusted in accordance with Section 8
hereof. The following restrictions shall also apply to this Plan as well as all
other plans or security-based compensation arrangements to which the Company may be
a party:






	 	(i)	 	the aggregate number of Common Shares (which for purposes of
this paragraph shall be deemed to include share equivalents in the case of
Independent Rights as defined in Section 6) reserved for issuance pursuant to
all Options, Stock Appreciation Rights and Stock Units as defined in Section 2
granted to Insiders shall not exceed 10% of the Outstanding Issue;
	 
	 	(ii)	 	Insiders shall not be issued, within any one year period, a
number of Options, Stock Appreciation Rights and Stock Units as defined in
Section 2 which exceeds 10% of the Outstanding Issue;
	 
	 	(iii)	 	no Participant together with such Participant’s associates, as
defined under the Alberta Business Corporations Act, shall be issued, within
any one year period, a number of Options or Stock Appreciation Rights which
exceeds 5% of the Outstanding Issue; and
	 
	 	(iv)	 	the number of Common Shares reserved for issuance pursuant to
Options and Stock Appreciation Rights granted to any one Participant shall not
exceed 5% of the Outstanding Issue.






	 	(b)	 	Subject to the foregoing provisions of Section 4, the following additional
maximums are imposed under the Plan:






	 	(i)	 	The maximum number of Common Shares that may be covered by
Awards granted to any one Participant during any one calendar-year period
pursuant to Sections 5 and 6 (relating to Options and Stock Appreciation
Rights) shall be 2,200,000 Common Shares.
	 
	 	(ii)	 	The maximum number of Common Shares that may be issued in
conjunction with Awards granted pursuant to Section 7 (relating to Full Value
Awards) shall be 2,200,000 Common Shares.
	 
	 	(iii)	 	For Full Value Awards that are intended to be
Performance-Based Compensation, no more than 2,200,000 Common Shares may be
delivered pursuant to such Awards granted to any one Participant during any one
calendar-year period (regardless of whether settlement of the Award is to occur
prior to, at the time of, or after the time of vesting); provided that
Awards described in this paragraph (iii) that are intended to be
Performance-Based Compensation shall be subject to the following:










 



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	 	(A)	 	If the Awards are denominated in Common Shares
but an equivalent amount of cash is delivered in lieu of delivery of
Common Shares, the foregoing limit shall be applied based on the
methodology used by the Committee to convert the number of Common
Shares into cash.
	 
	 	(B)	 	If delivery of Common Shares is deferred until
after Common Shares have been earned, any adjustment in the amount
delivered to reflect actual or deemed investment experience after the
date the shares are earned shall be disregarded.




No fractional shares may be purchased or issued hereunder. To the extent any Common Shares covered
by an Award are not delivered to a Participant or beneficiary because the Award is forfeited or
cancelled, or the Common Shares are not delivered on an unrestricted basis (including, without
limitation, by reason of the Award being settled in cash or used to satisfy the applicable tax
withholding obligation), such Common Shares shall not be deemed to have been delivered for purposes
of the determinations to be made pursuant to this Section 4. If the exercise price of any Option
or Stock Appreciation Right granted under the Plan, or the tax withholding obligation with respect
to any Award granted under the Plan, is satisfied by tendering Common Shares to the Company, only
the number of Common Shares issued net of the Common Shares tendered shall be deemed delivered for
purposes of determining the number of Common Shares available for delivery under the Plan.



The Common Shares with respect to which Awards may be made under the Plan shall be (i) Common
Shares currently authorized but unissued, or (ii) to the extent permitted by applicable law, Common
Shares purchased in the open market or in private transactions. At the discretion of the
Committee, an Award under the Plan may be settled in cash rather than Common Shares.



Subject to the foregoing, the number of Awards that a Participant is entitled to under the Plan
will be determined by the Committee.




5. Option Provisions





	 	(a)	 	Number and Price of Option Shares and Vesting Period
	 
	 	 	 	The Committee shall advise each Participant designated to receive Options in writing
of the number of Option Shares such Participant is entitled to purchase, the Option
Price at which the Option Shares may be purchased and the Vesting Period. The Option
Price at which the Option Shares may be purchased under the Plan shall be fixed by
the Committee, but under no circumstances shall the Option Price be less than the
Fair Market Price on the Date of Grant. The Committee may impose performance
thresholds or any other conditions which will need to be met prior to vesting of any
Options granted.











 



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	 	(b)	 	Exercise
	 
	 	 	 	Options granted under the Plan must be exercised, subject always to the Vesting
Period, within a period as determined by the Committee in its sole discretion,
acting reasonably and set forth in the Award Agreement, subject to a maximum of 10
years from the Date of Grant, failing which the Participant’s right to purchase such
Option Shares lapses. No Option in respect of which shareholder approval is
required under the rules of the Exchange shall be exercisable until such time as the
Option has been approved by the shareholders of the Company.
	 
	 	(c)	 	Payment
	 
	 	 	 	The Participant, from time to time, and at any time after the vesting of any Options
and prior to the lapse of such Options, may elect to purchase all or a portion of
the Option Shares, corresponding to the then vested Options, available for purchase
by delivering to the Company at its registered office, or such other address as the
Company may specify from time to time, a completed stock option purchase form
substantially in the form attached hereto as Appendix “A.1” or such other form as
the Company may specify. Payment may be made by cash, certified cheque, bank draft,
money order or the equivalent payable to the order of “Nucryst Pharmaceuticals
Corp.”, or other form of payment acceptable to the Company.
	 
	 	(d)	 	Share Certificates
	 
	 	 	 	Upon exercise of the Option and payment in full of the purchase price the Company
shall cause to be delivered to the Participant within a reasonable period of time a
certificate or certificates in the name of the Participant representing the number
of Option Shares the Participant has purchased.





6. Stock Appreciation Rights





	 	(a)	 	Authorized Rights
	 
	 	 	 	The following three types of Stock Appreciation Rights shall be authorized for
issuance under the Plan:






	 	(i)	 	Tandem Rights. A “Tandem Right” means a Stock
Appreciation Right granted appurtenant to an Option which is subject to the
same terms and conditions applicable to the particular Option grant to which it
pertains with the following exceptions. The Tandem Right shall require the
holder to elect between the exercise of the underlying Option to purchase the
Option Shares and the surrender, in whole or in part, of such Option for an
appreciation distribution. The appreciation distribution payable by the
Company to the Participant on the exercised Tandem Right shall be in cash (or,
if so provided in the Award Agreement, at the option of the Company in an
equivalent number of shares of Common Shares based on Fair Market Price on the
date of the Option surrender) in an amount equal to the excess of (A) the Fair
Market Price (on the date of the Option surrender) of the number of Common










 



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	 	 	 	Shares covered by that portion of the surrendered Option in which the Option
holder is vested over (B) the aggregate Option Price payable for such vested
shares.
	 
	 	(ii)	 	Concurrent Rights. A “Concurrent Right” means a Stock
Appreciation Right granted appurtenant to an Option which applies to all or a
portion of Option Shares subject to the underlying Option and which is subject
to the same terms and conditions applicable to the particular Option grant to
which it pertains with the following exceptions: A Concurrent Right shall be
exercised automatically at the same time the underlying Option is exercised
with respect to the particular Option Shares to which the Concurrent Right
pertains. The appreciation distribution payable by the Company to the
Participant on an exercised Concurrent Right shall be in cash (or, if so
provided in the Award Agreement, at the option of the Company in an equivalent
number of Common Shares based on the Fair Market Price on the date of the
exercise of the Concurrent Right) in an amount equal to such portion as
determined by the Board of Directors at the time of the grant of the excess of
(A) the aggregate Fair Market Price (on the date of the exercise of the
Concurrent Right) of the vested Option Shares purchased under the underlying
Option which have Concurrent Rights appurtenant to them over (B) the aggregate
Option Price paid for such shares.
	 
	 	(iii)	 	Independent Rights. An “Independent Right” means a
Stock Appreciation Right granted independently of any Option but which is
subject to the same terms and conditions applicable to an Option (including the
applicable provisions of Section 5) with the following exceptions: An
Independent Right shall be denominated in share equivalents. The appreciation
distribution payable by the Company to the Participant on the exercised
Independent Right shall be an amount equal to the excess of (A) the aggregate
Fair Market Price (on the date of the exercise of the Independent Right) of a
number of Common Shares equal to the number of share equivalents in which the
holder is vested under such Independent Right, and with respect to which the
holder is exercising the Independent Right on such date, over (B) the aggregate
Option Price for the Independent Rights exercised. The appreciation
distribution payable on the exercised Independent Right shall be in cash or, if
so provided in the Award Agreement, at the option of the Company in an
equivalent number of Common Shares based on the Fair Market Price on the date
of the exercise of the Independent Right. The number and/or Option Price of
share equivalents contained in the grant of an Independent Right shall be
subject to adjustment in accordance with the provisions of Section 8, mutatis
mutandis.










 



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	 	(b)	 	Exercise
	 
	 	 	 	To exercise any outstanding Stock Appreciation Right, the holder shall provide
written notice of exercise to the Company in compliance with the provisions of the
Award Agreement evidencing such right.
	 
	 	(c)	 	No Rights of Shareholders
	 
	 	 	 	Neither a Participant nor his personal representative shall be, or have any of the
rights and privileges of, a shareholder of the Company by virtue of receiving or
exercising a grant of Stock Appreciation Rights under the Plan.
	 
	 	(d)	 	Issuance of Shares
	 
	 	 	 	Any Common Shares issued pursuant to this Section 6 will be issued as fully paid and
non-assessable.





7. Full Value Awards





	 	(a)	 	Full Value Awards may be granted by the Committee subject to one or more of the
following, as determined by the Committee:






	 	(i)	 	The grant shall be in consideration of a Participant’s
previously performed services, or surrender of other compensation that may be
due.
	 
	 	(ii)	 	The grant shall be contingent on the achievement of Performance
Measures or other objectives during a specified period.
	 
	 	(iii)	 	The grant shall be subject to a risk of forfeiture or other
restrictions that will lapse upon the achievement of Performance Measures or
other objectives.






	 	 	 	The grant of Full Value Awards may also be subject to such other conditions,
restrictions and contingencies, as determined by the Committee.
	 
	 	(b)	 	The Committee may designate a Full Value Award granted to any Participant as
Performance-Based Compensation. To the extent required by Code section 162(m), any
Full Value Award so designated shall be conditioned on the achievement of one or more
performance objectives. The performance objectives shall be based on the Performance
Measures selected by the Committee. For Awards under this Section 7 intended to be
Performance-Based Compensation, the grant of the Awards and the establishment of the
Performance Measures shall be made during the period required under Code section
162(m).





8. Adjustments





	 	(a)	 	Subject to the applicable provisions of Code section 409A, appropriate
adjustments in the number of Common Shares subject to the Plan and, with respect to
Awards










 



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	 	 	 	granted or to be granted, in the number of Awards granted and in the Option Price
and in the securities which shall be deemed to be Common Shares for purposes of the
Plan, shall be made by the Committee acting reasonably to give effect to the
adjustments in the number, character and value of Common Shares resulting from
sub-divisions, consolidations or re-classification of the Common Shares or other
relevant changes in the authorized or issued capital of the Company, or the payment
of stock dividends or other dividends-in-kind by the Company, all as determined by
the Committee in its sole discretion acting reasonably.
	 
	 	(b)	 	Subject to the applicable provisions of Code section 409A, appropriate
adjustments in the number of Awards and the securities which shall be deemed to be
Common Shares for purposes of this Agreement, shall be made by the Committee in its
sole discretion acting reasonably, to give effect to adjustments in the number,
character and value of outstanding Common Shares of the Company resulting from any
reorganization, amalgamation, arrangement, merger, transfer or sale of all or
substantially all of the assets of the Company, or similar transactions affecting the
Company or its assets or the Common Shares, including such transactions as may be
undertaken in conjunction with or in anticipation of an initial public offering of the
securities of the Company. For greater certainty, the Committee may determine in its
sole discretion acting reasonably, that each Award shall be exchangeable for a Award of
such other corporation resulting from such transactions, having such terms and
conditions which in the Committee’s sole opinion are economically equivalent to the
Awards exchanged.





9. Cessation of Employment or Directorship or Services



In the event that an Employee’s employment with the Company or any of its Subsidiaries ceases or is
terminated for any reason (other than death or Disability), a Director ceases to be a Director for
any reason (other than death or Disability) or a Service Provider ceases to provide services to the
Company or any Subsidiary for any reason (other than death or Disability), the Participant may
elect to exercise all or a portion of the remaining Options and Stock Appreciation Rights that have
vested on the Termination Date, at any time during the 30 day period following the Termination
Date, or such later date as specified in the Participant’s Award Agreement or, subject to the
applicable provisions of Code section 409A, as may be subsequently agreed to in writing by the
Company and the Participant, but in no event after the lapse of any Options or Stock Appreciation
Rights held. For the purposes of this Plan, the transfer of the Employee’s employment to or from
the Company to or from any Subsidiary of the Company shall not be considered a cessation or a
termination of employment and the Employee’s rights under any Options or Stock Appreciation Rights
shall be the same as if such transfer had not occurred.




10. Death or Disability of Participant



In the event of the death or Disability of a Participant, the personal legal representative (or, in
the case of Disability, the Participant himself or herself if he or she is competent to do so) may
at any time during the 180 day period following the date of death or Disability, or such later date
as specified in the Participant’s Award Agreement, but in no event after the lapse of any Options
or










 



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Stock Appreciation Rights held, exercise all or any portion of such Participant’s Options or Stock
Appreciation Rights that have vested as of the date of death or Disability. At the end of such
period or the term of the applicable Options or Stock Appreciation Rights, whichever is earlier,
the Options or Stock Appreciation Rights shall forthwith terminate and be of no further force or
effect whatsoever.




11. Transfer and Assignment



Except as provided for in Section 10 or as otherwise provided by the Committee in its sole
discretion, the Participant’s rights under Awards granted under the Plan are not assignable or
transferable by the Participant or subject to any other alienation, sale, pledge or encumbrance by
such Participant during the Participant’s lifetime. The obligations of each Participant shall be
binding on his or her heirs, executors and administrators.




12. Employment and Board of Directors Position Non-Contractual



The granting of an Award to a Participant under the Plan does not confer upon the Participant any
right to continue in the employment of the Company or any Subsidiary of the Company or as a member
of the Board of Directors or as a Service Provider, as the case may be, nor does it interfere in
any way with the rights of an Employee or of the Company’s rights to terminate an Employee’s
employment at any time or of the shareholders’ right to elect Directors.




13. Rights As Shareholders



Participants shall not have any rights as a shareholder with respect to Options until, in the case
of an Option which has been duly and properly exercised, full payment of the Option Price for the
number of Option Shares purchased has been made to the Company. Participants receiving a grant of
a Stock Appreciation Right shall have no rights or privileges whatsoever as a shareholder of the
Company.




14. Administration of the Plan



The Plan shall be administered by one or more Committees. The Committee(s) shall have the power
and discretion to interpret and construe the terms and conditions of the Plan and the Awards; to
establish, amend or waive rules and regulations for the administration of the Plan (provided that
no such action shall, however, without the consent of the Participant, in any manner materially
adversely affect his rights under any Awards previously granted under the Plan); and to correct
errors, omissions or inconsistencies in the Plan or any Awards granted pursuant to the Plan. Any
determination by the Committee shall be final and conclusive on all persons affected thereby unless
otherwise determined by the Board of Directors, and subject to any applicable arbitration
provisions contained in an Award Agreement. The day-to-day administration of the Plan may be
delegated to such persons as the Committee(s) may determine.



Members of the Committee shall be eligible to receive Awards under the Plan, so long as a member of
the Committee does not participate in any discussion or decision as to the grant of any Awards to
such member. If stipulated by the Board of Directors, a grant of Awards under the Plan shall be
subject to the approval of the Board of Directors. Members of the Board of Directors shall be
eligible to receive Awards under the Plan, so long as a member of the Board of Directors does not








 



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participate in any discussion or decision as to the grant of any Awards to such member. A majority
of the members of the Board of Directors participating in any decisions as to any grant of Awards
under the Plan shall be persons who are not Employees of the Company.




15. Stock Exchange Rules



The Plan and any Award Agreements entered into hereunder shall comply with the requirements from
time to time of the Exchange.




16. Right to Issue Other Shares



The Company shall not by virtue of this Plan be in any way restricted from declaring and paying
stock dividends, issuing further Common Shares, varying or amending its share capital or corporate
structure or conducting its business in any way whatsoever.




17. Notices



Unless otherwise specified in a Participant’s Award Agreement, all written notices to be given by
the Participant to the Company may be delivered personally or by registered mail, postage prepaid,
addressed as follows:




NUCRYST Pharmaceuticals Corp.

10102 — 114 Street

Fort Saskatchewan, AB T8L 3W4

Canada




Attention: President




with a copy to:




NUCRYST Pharmaceuticals Corp.

50 Audubon Road, Suite B

Wakefield, MA 01880

USA




Attention: President



Any notice given by the Participant pursuant to the terms of an Award shall not be effective until
actually received by the Company at the above address. Any notice to be given to the Participant
shall be sufficiently given if delivered personally or by postage prepaid mail to the last address
of the Participant on the records of the Company and shall be effective seven days after mailing.




18. Corporate Action



Nothing contained in the Plan or in an Award shall be construed so as to prevent the Company or any
Subsidiary from taking corporate action which is deemed by the Company or any Subsidiary, acting in
good faith, to be appropriate or in its best interest, whether or not such action would have an








 



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adverse effect on the Plan, provided that the Company shall not undertake any such corporate action
with the intent to adversely prejudice any Award previously granted to a Participant. For greater
certainty, but not to restrict the generality of the foregoing, the Company shall, in their sole
and unfettered discretion, have the right and ability to issue shares and other securities,
purchase and sell assets and enter into corporate and commercial agreements (including without
limitation joint ventures, partnerships and development agreements) without the consent of any
Participant.




19. Conflicts and Amendments



The Board of Directors shall have the right, in its sole discretion, to alter, amend or discontinue
the Plan from time to time and at any time, subject to, as applicable, the approval of the Exchange
and any requisite regulatory approvals; provided however that no such amendment or alteration may,
without the consent of the Participant, alter or impair any Award previously granted to a
Participant. Any amendment to the Plan may require the prior approval of the Exchange and
applicable regulatory authorities and may require the approval of the Company’s shareholders, such
approval to be obtained from a majority of the holders of Common Shares (excluding the votes of
Common Shares held directly or indirectly by Insiders benefiting from the amendment) present, in
person or by proxy, at a duly constituted meeting of the holders of the Common Shares, in respect
of any amendment to the Plan which seeks to (i) reduce the Exercise Price or the purchase price
paid for any Optioned Shares, or (ii) extend the Vesting Period.




20. Governing Law



The Plan is established under the laws of the Province of Alberta and the rights of all parties and
the construction and effect of each provision of the Plan shall be according to the laws of the
Province of Alberta and the laws of Canada applicable therein.




21. Acceleration of Options



Without limiting the generality of the powers and discretions granted to the Committee herein, the
Committee may determine that any Option granted under the Plan shall include provisions which
accelerate the date on which any Option shall become exercisable, upon the happening of such events
as the Committee may determine and as may be prescribed in the applicable Award Agreement. Without
limiting the generality of the foregoing, and subject to the terms and provisions of the individual
Award Agreement, the Committee may determine that such acceleration should occur in the event of an
actual or anticipated change of effective control of the Company, or in the event of other
fundamental changes to the Company or its business or affairs.




22. Tax Withholding Requirements



Whenever the Company is required to issue Common Shares or make a payment under the Plan, the
Company may require the Participant to remit to the Company an amount sufficient to satisfy any
Federal, Provincial/State and local tax withholding requirements prior to the delivery of any
certificate for such shares or, in the discretion of the Committee, the Company may withhold from
the shares or payment to be delivered, shares or cash sufficient to satisfy all or a portion of
such tax withholding requirements.










 



-14-




23. Government Regulation



Notwithstanding any other provision contained herein, the Company’s obligation to issue and deliver
Common Shares under any Option is subject to:





	 	(a)	 	the satisfaction of all requirements under applicable securities law in respect
thereof and obtaining all regulatory approvals as the Company shall determine to be
necessary or advisable in connection with the authorization, issuance or sale thereof,
including shareholder approval, if required;
	 
	 	(b)	 	the requirements of any Exchange on which the Common Shares are or may become
listed;
	 
	 	(c)	 	the admission of such Common Shares to listing on any Exchange on which Common
Shares may then be listed; and
	 
	 	(d)	 	the receipt from the Participant of such representations, agreements and
undertakings as to future dealings in such Common Shares as the Company reasonably
determines to be necessary or advisable in order to safeguard against the violation of
the securities law of any jurisdiction.




In this connection, the Company shall take all reasonable steps to obtain such approvals and
registrations as may be necessary for the issuance of such Common Shares in compliance with
applicable securities law and for the listing of such Common Shares on any stock exchange on which
such Common Shares are then listed.




DATED as of the 2nd day of January, 1998.

AMENDED as of the 16th day of April, 2001.

AMENDED as of the ___day of                     , 2005.





 









 






Appendix “A.1"

Nucryst Pharmaceuticals Corp.

Stock Option Plan

Option Exercise Form




Part 1: Identification




	 	 	 
	 
	 	 
	 	 	 
	Name of Participant

	 	Office Phone Number
	 
	 	 
	 
	 	 
	 
	Address
	 	 
	 
	 	 
	 
	 	 
	 	 	 
	Social Insurance Number

	 	Home Phone Number
	 
	 	 
	 
	 	 
	Part 2: Option
	 	 





I hereby exercise the Option granted to me by agreement dated                                          under the Plan.



Total number of Option Shares exercised:                                         




	 	 	 	 	 	 	 	 	 	 	 
	Method of payment:

	 	(a)
	 	Cash	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	Other: (subject to Company approval)	 	 
	 

	 	 	 	 	 	Cash amount:	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Number of stock:
	 	 	 	(value:                     )
	 

	 	 	 	 	 	 	 	 	 	 




I hereby acknowledge that I have read, understood and accepted each and all the conditions
described in a document called “Nucryst Pharmaceuticals Corp. Stock Option Plan”.



Given at                                                             ,
 this                      day of                                          .



 



 




Signature