Exhibit 10.3


 


CHINACACHE INTERNATIONAL HOLDINGS LTD.


 


2010 STOCK INCENTIVE PLAN


 


1.     Purposes of the Plan.  The purposes of this Plan are to attract and
retain the best available personnel, to provide additional incentives to
Employees, Directors and Consultants and to promote the success of the Company’s
business.


 


2.     Definitions.  The following definitions shall apply as used
herein and in the individual Award Agreements except as defined otherwise in an
individual Award Agreement.  In the event
a term is separately defined in an individual Award Agreement, such definition
shall supersede the definition contained in this Section 2.


 


(a)           “Administrator” means the Board or any of the
Committees appointed to administer the Plan.


 


(b)           “Affiliate” and “Associate” shall have
the respective meanings ascribed to such terms in Rule 12b-2 promulgated
under the Exchange Act.


 


(c)           “Applicable Laws” means the legal
requirements relating to the Plan and the Awards under applicable provisions of
federal securities laws, state corporate and
securities laws, the Code, the rules of any applicable stock
exchange or national market system, and the rules of any jurisdiction
applicable to Awards granted to residents therein.


 


(d)           “Assumed” means that pursuant to a Corporate
Transaction either (i) the Award is expressly affirmed by the Company or
(ii) the contractual obligations represented by the Award are expressly
assumed (and not simply by operation of law) by the successor entity or its
Parent in connection with the Corporate Transaction with appropriate
adjustments to the number and type of securities of the successor entity or its
Parent subject to the Award and the exercise or purchase price thereof which at
least preserves the compensation element of the Award existing at the time of
the Corporate Transaction as determined in accordance with the instruments
evidencing the agreement to assume the Award.


 


(e)           “Award” means the grant of an Option, SAR,
Dividend Equivalent Right, Restricted Share, Restricted Share Unit or other right
or benefit under the Plan.


 


(f)            “Award Agreement” means the written agreement
evidencing the grant of an Award executed by the Company and the Grantee,
including any amendments thereto.


 


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


 


(h)           “Cause” means, with respect to the
termination by the Company or a Related Entity of the Grantee’s Continuous
Service, that such termination is for “Cause” as such term is expressly defined
in a then-effective written agreement between the Grantee and the Company or
such Related Entity, or in the absence of such then-effective written agreement
and definition, is based on, in the determination of the Administrator, the
Grantee’s: (i) performance of any act or failure to perform any act in bad
faith and to the detriment of the Company or a Related Entity;
(ii) dishonesty, intentional misconduct or material breach of any
agreement with 


 

















 


the Company or a Related Entity; or (iii) commission of a crime
involving dishonesty, breach of trust, or physical or emotional harm to any
person.


 


(i)            “Change in Control”  means
a change in ownership or control of the Company after the Registration Date
effected through  the direct or indirect acquisition by any person or related group of
persons (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company’s outstanding securities pursuant to
a tender or exchange offer made directly to the Company’s shareholders which a
majority of the Directors who are not Affiliates or Associates of the offeror
do not recommend such shareholders accept.


 


(j)            “Code” means the Internal Revenue Code of
1986, as amended.


 


(k)           “Committee” means any committee composed of
members of the Board appointed by the Board to administer the Plan.


 


(l)            “Ordinary Share” means a share of par value US$0.0001, of the Company having the rights and
restrictions set out in the Amended and Restated Articles of Association.


 


(m)          “Company” means ChinaCache International
Holdings Ltd., a company
incorporated under the laws of the Cayman Islands or any successor corporation
that adopts the Plan in connection with a Corporate Transaction.


 


(n)           “Competitor” means any firm, corporate,
company, organization or entity that is engaged in the business in direct
competition with the business of the Company and/or the Related Entities,
including but not limited to those listed in IRA.


 


(o)           “Consultant” means any person (other than an
Employee or a Director, solely with respect to rendering services in such
person’s capacity as an Employee or a Director) who is engaged by the Company
or any Related Entity to render consulting or advisory services to the Company
or such Related Entity.


 


(p)           “Continuous Service” means that the provision
of services to the Company or a Related Entity in any capacity of Employee,
Director or Consultant is not interrupted or terminated.  In jurisdictions requiring notice in advance
of an effective termination as an Employee, Director or Consultant, Continuous
Service shall be deemed terminated upon the actual cessation of providing
services to the Company or a Related Entity notwithstanding any required notice
period that must be fulfilled before a termination as an Employee, Director or
Consultant can be effective under Applicable Laws.  A Grantee’s Continuous Service shall be
deemed to have terminated either upon an actual termination of Continuous
Service or upon the entity for which the Grantee provides services ceasing to
be a Related Entity.  Continuous Service
shall not be considered interrupted in the case of (i) any approved leave
of absence, (ii) transfers among the Company, any Related Entity, or any
successor, in any capacity of Employee, Director or Consultant, or
(iii) any change in status as long as the individual remains in the
service of the Company or a Related Entity in any capacity of Employee,
Director or 


 


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Consultant
(except as otherwise provided in the Award Agreement).  An approved leave of absence shall include
sick leave, military leave, or any other authorized personal leave.  For purposes of each Incentive Share Option
granted under the Plan, if such leave exceeds ninety (90) days, and
reemployment upon expiration of such leave is not guaranteed by statute or
contract, then the Incentive Share Option shall be treated as a Non-Qualified
Share Option on the day three (3) months and one (1) day following
the expiration of such ninety (90) day period.


 


(q)           “Corporate Transaction” means any of the
following transactions, provided, however, that the Administrator shall
determine under parts (iv) and (v) whether multiple transactions are
related, and its determination shall be final, binding and conclusive:


 


(i)            a merger or consolidation in which the Company is
not the surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Company is incorporated;


 


(ii)           the sale, transfer or other disposition of all or
substantially all of the assets of the Company;


 


(iii)          the complete liquidation or dissolution of the
Company;


 


(iv)          any reverse merger or series of related transactions
culminating in a reverse merger (including, but not limited to, a tender offer
followed by a reverse merger) in which the Company is the surviving entity but
(A) the Ordinary Shares outstanding immediately prior to such merger are
converted or exchanged by virtue of the merger into other property, whether in
the form of securities, cash or otherwise, or (B) in which securities
possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities are transferred to a person or persons
different from those who held such securities immediately prior to such merger
or the initial transaction culminating in such merger, but excluding any such transaction or series of related transactions that
the Administrator determines shall not be a Corporate Transaction; or


 


(v)           acquisition in a single or
series of related transactions by any person or related group of persons (other
than the Company or by a Company-sponsored employee benefit plan) of beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of the total combined
voting power of the Company’s outstanding securities but excluding any such
transaction or series of related transactions that the Administrator determines
shall not be a Corporate Transaction.


 


(r)            “Director” means a member of the Board or the
board of directors of any Related Entity.


 


(s)           “Disability” means as defined under the
long-term disability policy of the Company or the Related Entity to which the
Grantee provides services regardless of whether the Grantee is covered by such
policy.  If the Company or the Related Entity
to which the Grantee provides service does not have a long-term disability plan
in place, “Disability” means that a Grantee is unable to carry out the
responsibilities and functions of the position held by the Grantee by reason of
any medically determinable physical or mental impairment for a period of 


 


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not
less than ninety (90) consecutive days. 
A Grantee will not be considered to have incurred a Disability unless he
or she furnishes proof of such impairment sufficient to satisfy the
Administrator in its discretion.


 


(t)            “Dividend Equivalent Right” means a right
entitling the Grantee to compensation measured by dividends paid with respect
to Ordinary Shares.


 


(u)           “Drag-Along Event” means any of the following
transactions, which is at arm’s length for
an aggregate consideration of not less than US$300 million:


 


(i)            an offer by an entity that is not an Affiliate of
any party hereof to purchase all the Shares in the Company;


 


(ii)           a merger or consolidation of the Company with or into
another corporation in which the Company is not the surviving entity but the
Shares of the Company outstanding immediately prior to the merger are converted
by virtue of the merger into other property, whether in the form of securities,
cash, or otherwise; or


 


(iii)          a sale or transfer of all or substantially all the Company’s
properties and assets to any other person.


 


The conditions and threshold of the Drag-Along Event shall be adjusted
subject to any amendment to the IRA.


 


(v)           “Employee” means any person, including an Officer or Director, who is in the employ
of the Company or any Related Entity, subject to the control and direction of
the Company or any Related Entity as to both the work to be performed and the
manner and method of performance.  The
payment of a director’s fee by the Company or a Related Entity shall not be
sufficient to constitute “employment” by the Company.


 


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


 


(x)            “Fair Market Value” means, as of any date,
the value of Ordinary Shares determined as follows:


 


(i)            If the Ordinary Shares are traded on a securities exchange, the value shall be
deemed to be the average of the security’s closing prices on such exchange over
the thirty (30) day period ending one (1) day prior to the distribution,


 


as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;


 


(ii)           If the Ordinary Shares are traded over-the-counter, the value shall be deemed to
be the average of the closing bid prices over the thirty (30) day period ending
three (3) days prior to the distributionas reported in The Wall
Street Journal or such other source as the Administrator deems reliable; and


 


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(iii)          In the absence of an
established market for the Ordinary Shares of the type described in (i) and
(ii), above, the Fair Market Value thereof shall be determined by the
Administrator in good faith.


 


The method of valuation of securities subject to investment
letter or other restrictions on free marketability shall be adjusted to make an appropriate
discount from the market value determined as above in sub-clauses (i), (ii) or
(iii) to reflect the fair market value thereof as determined in good faith
by the Administrator, or by a liquidator if one is appointed.


 


(y)           “Grantee” means an Employee, Director or
Consultant who receives an Award under the Plan.


 


(z)            “Incentive Share Option” means an Option
intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code.


 


(aa)         “IRA” means the Amended and Restated Investors Rights
Agreement of the Company dated May 14, 2010 by and among the Company, the
holders of ordinary shares and holders of preferred shares of the Company, including
any amendment thereto from time to time.


 


(bb)         “Non-Qualified Share Option” means an Option
not intended to qualify as an Incentive Stock Option.


 


(cc)         “Officer” means a person who is an officer of
the Company or a Related Entity within the meaning of Section 16 of the
Exchange Act and the rules and regulations promulgated thereunder.


 


(dd)         “Option” means an option to purchase Shares
pursuant to an Award Agreement granted under the Plan.


 


(ee)         “Parent” means a “parent corporation”,
whether now or hereafter existing, as defined in Section 424(e) of
the Code.


 


(ff)           “Plan” means this 2010 Stock Incentive Plan.


 


(gg)         “Qualified IPO” shall mean a public offering
of Shares of the Company (or securities representing such Shares) registered
under the Securities Act and with gross proceeds to the Company of at least
US$50 million and an implied, pre-money valuation of US$300 million or more, or
in a similar public offering of Shares in a jurisdiction and on an
internationally recognized securities exchange or inter-dealer quotation system
outside of the United States, including The Stock Exchange of Hong Kong
Limited, provided such public offering is equivalent to the aforementioned in
terms of offering proceeds and regulatory approval, and is approved by the holders
of at least fifty-one percent (51%) of the then outstanding preferred shares of the Company.  The
conditions and threshold of the Qualified IPO shall be adjusted subject to any
amendment to the IRA.


 


(hh)         “Registration Date” means the first to occur
of (i) the closing of the first sale to the general public pursuant to a
registration statement filed with and declared effective by 


 


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the
U.S. Securities and Exchange Commission under the Securities Act of 1933, as
amended, of (A) the Ordinary Shares or (B) the same class of
securities of a successor corporation (or its Parent) issued pursuant to a
Corporate Transaction in exchange for or in substitution of the Ordinary
Shares; and (ii) in the event of a Corporate Transaction, the date of the
consummation of the Corporate Transaction if the same class of securities of
the successor corporation (or its Parent) issuable in such Corporate
Transaction shall have been sold to the general public pursuant to a registration
statement filed with and declared effective by the Securities and Exchange
Commission under the Securities Act of 1933, as amended, on or prior to the
date of consummation of such Corporate Transaction.


 


(ii)           “Related Entity” means any Parent or Subsidiary
of the Company and any business, corporation, partnership, company, organization or other entity in which
the Company or a Parent or a Subsidiary of the Company holds or controls a substantial ownership
interest, directly or indirectly, including but not limited to ChinaCache Network
Technology (Beijing) Limited , Beijing Blue I.T. Technologies Co., Ltd. , Beijing
Jingtian Technology Co., Ltd.  , and Shanghai JNet Telecom Co., Ltd.
.


 


(jj)           “Replaced” means that
pursuant to a Corporate Transaction the Award is replaced with a comparable share or stock award or a cash
incentive program of the Company, the successor entity (if applicable) or
Parent of either of them which preserves the compensation element of such Award
existing at the time of the Corporate Transaction and provides for subsequent
payout in accordance with the same (or a more favorable) vesting schedule
applicable to such Award.  The
determination of Award comparability shall be made by the Administrator and its
determination shall be final, binding and conclusive.


 


(kk)         “Restricted Share” means a Share issued under
the Plan to the Grantee for such consideration, if any, and subject to such
restrictions on transfer, rights of first refusal, repurchase provisions,
forfeiture provisions, and other terms and conditions as established by the
Administrator.


 


(ll)           “Restricted Share Units” means an Award which
may be earned in whole or in part upon the passage of time or the attainment of
performance criteria established by the Administrator and which may be settled
for cash, Shares or other securities or a combination of cash, Shares or other
securities as established by the Administrator.


 


(mm)       “Rule 16b-3” means Rule 16b-3
promulgated under the Exchange Act or any successor thereto.


 


(nn)         “SAR” means a share appreciation right
entitling the Grantee to Shares or cash compensation, as established by the
Administrator, measured by appreciation in the value of Ordinary Shares.


 


(oo)         “Share” means an Ordinary Share of the
Company.


 


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(pp)         “Spin-off Transaction” means a distribution
by the Company to its shareholders of all or any portion of the securities of
any Subsidiary of the Company.


 


(qq)         “Subsidiary” means a “subsidiary corporation”,
whether now or hereafter existing, as defined in Section 424(f) of
the Code.


 


(rr)           “Trade Sale” means a
bona fide third party’s offer for the sale of all or
more than fifty percent (50%) of the equity or assets of the Company, whether
through a single transaction or a series of transactions,  for at least the greater of (i) an
amount that represents an implied valuation of the Company that generates a
minimum internal rate of return of thirty-five percent (35%) per annum to each
holder of Preferred Shares (in the event such internal rate of return is calculated for a period of
time that is less than a full year, such rate shall be calculated ratably based
on a 360-day year), and (ii) an amount which
represents an implied valuation of the Company of at least US$300 million.  The conditions and threshold of
the Trade Sale shall be adjusted subject to any amendment to the IRA.


 


3.     Shares Subject to the Plan.


 


(a)           Subject to the provisions of Section 10, below,
the maximum aggregate number of Shares which may be issued pursuant to all
Awards (including Incentive Share Options) under this Plan is  9,000,000 Shares (proportionally
adjusted to reflect any share dividends, share splits, or similar transactions).  The Shares to be issued
pursuant to Awards may be authorized, but unissued, or reacquired Ordinary
Shares.


 


(b)           Any Shares covered by an Award (or portion of an
Award) which is forfeited, canceled or expires (whether voluntarily or
involuntarily) shall be deemed not to have been issued for purposes of
determining the maximum aggregate number of Shares which may be issued under
the Plan.  Shares that actually have been
issued under the Plan pursuant to an Award shall not be returned to the Plan
and shall not become available for future issuance under the Plan, except that
if unvested Shares are forfeited, or repurchased by the Company at the lower of
their original purchase price or their Fair Market Value at the time of
repurchase, such Shares shall become available for future grant under the Plan.
 To
the extent not prohibited by Section 422(b)(1) of the Code (and the
corresponding regulations thereunder), the listing requirements of The Nasdaq
National Market (or other established stock exchange or national market system
on which the Ordinary Shares are traded) and Applicable Law, any Shares covered
by an Award which are surrendered (i) in payment of the Award exercise or
purchase price or (ii) in satisfaction of tax withholding obligations
incident to the exercise of an Award shall be deemed not to have been issued
for purposes of determining the maximum number of Shares which may be issued
pursuant to all Awards under the Plan, unless otherwise determined by the
Administrator.


 


4.     Administration of the Plan.


 


(a)           Plan Administrator.


 


(i)            Administration with Respect
to Directors and Officers.  With
respect to grants of Awards to Directors or Employees who are also Officers or
Directors of the Company, the Plan shall be administered by (A) the Board
or (B) a Committee designated by the 


 


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Board, which Committee shall be constituted in such
a manner as to satisfy the Applicable Laws and to permit such grants and
related transactions under the Plan to be exempt from Section 16(b) of
the Exchange Act in accordance with Rule 16b-3.  Once appointed, such Committee shall continue
to serve in its designated capacity until otherwise directed by the Board.


 


(ii)           Administration With Respect
to Consultants and Other Employees.  With respect to grants of Awards to Employees
or Consultants who are neither Directors nor Officers of the Company, the Plan
shall be administered by (A) the Board or (B) a Committee designated
by the Board, which Committee shall be constituted in such a manner as to
satisfy the Applicable Laws.  Once
appointed, such Committee shall continue to serve in its designated capacity
until otherwise directed by the Board. 
The Board may authorize one or more Officers to grant such Awards and
may limit such authority as the Board determines from time to time.


 


(iii)          Administration Errors.  In the event an Award is granted in a manner
inconsistent with the provisions of this subsection (a), such Award shall
be presumptively valid as of its grant date to the extent permitted by the
Applicable Laws.


 


(b)           Powers of the Administrator.  Subject to Applicable Laws and the provisions
of the Plan (including any other powers given to the Administrator hereunder),
and except as otherwise provided by the Board, the Administrator shall have the
authority, in its discretion:


 


(i)            to select the Employees,
Directors and Consultants to whom Awards may be granted from time to time
hereunder;


 


(ii)           to determine whether and to
what extent Awards are granted hereunder;


 


(iii)          to determine the number of
Shares or the amount of other consideration to be covered by each Award granted
hereunder;


 


(iv)          to approve forms of Award
Agreements for use under the Plan;


 


(v)           to determine the terms and
conditions of any Award granted hereunder (including the vesting schedule set
forth in the Notice of Stock Option Award);


 


(vi)          to amend the terms of any
outstanding Award granted under the Plan, provided that (A) any amendment
that would adversely affect the Grantee’s rights under an outstanding Award
shall not be made without the Grantee’s written consent;


 


(vii)         to construe and interpret
the terms of the Plan and Awards, including without limitation, any notice of
award or Award Agreement, granted pursuant to the  Plan;


 


(viii)        to grant Awards to
Employees, Directors and Consultants employed outside the United States on such
terms and conditions different from those specified 


 


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in the Plan as may, in the judgment of the
Administrator, be necessary or desirable to further the purpose of the Plan;
and


 


(ix)           to take such other action,
not inconsistent with the terms of the Plan, as the Administrator deems
appropriate.


 


(c)           Indemnification. In addition to such other
rights of indemnification as they may have as members of the Board or as
Officers or Employees of the Company or a Related Entity, members of the Board
and any Officers or Employees of the Company or a Related Entity to whom
authority to act for the Board, the Administrator or the Company is delegated
shall be defended and indemnified by the Company to the extent permitted by law
on an after-tax basis against all reasonable expenses, including attorneys’
fees, actually and necessarily incurred in connection with the defense of any
claim, investigation, action, suit or proceeding, or in connection with any
appeal therein, to which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with the Plan, or any
Award granted hereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by the Company) or paid by them
in satisfaction of a judgment in any such claim, investigation, action, suit or
proceeding, except in relation to matters as to which it shall be adjudged in
such claim, investigation, action, suit or proceeding that such person is
liable for gross negligence, bad faith or intentional misconduct; provided,
however, that within thirty (30) days after the institution of such claim,
investigation, action, suit or proceeding, such person shall offer to the
Company, in writing, the opportunity at the Company’s expense to defend the
same.


 


5.     Eligibility.  Awards other than Incentive Share Options may
be granted to Employees, Directors and Consultants.  Incentive Share Options may be granted only
to Employees of the Company or a Parent or a Subsidiary of the Company.  An Employee, Director or Consultant who has
been granted an Award may, if otherwise eligible, be granted additional Awards.


 


6.     Terms and Conditions of
Awards.


 


(a)           Types of Awards. The Administrator is authorized
under the Plan to award any type of arrangement to an Employee, Director or
Consultant that is not inconsistent with the provisions of the Plan and that by
its terms involves or might involve the issuance of (i) Shares,
(ii) cash or (iii) an Option, a SAR, or similar right with a fixed or
variable price related to the Fair Market Value of the Shares and with an
exercise or conversion privilege related to the passage of time, the occurrence
of one or more events, or the satisfaction of performance criteria or other
conditions.  Such awards include, without
limitation, Options, SARs, sales or bonuses of Restricted Share, Restricted
Share Units or Dividend Equivalent Rights, and an Award may consist of one such
security or benefit, or two (2) or more of them in any combination or
alternative.


 


(b)           Designation of Award.  Each Award shall be designated in the Award
Agreement.  In the case of an Option, the
Option shall be designated as either an Incentive Share Option or a
Non-Qualified Share Option.  However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of Shares subject to Options designated as Incentive Share Options which
become exercisable for the first time by a Grantee during any calendar year 


 


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(under
all plans of the Company or any Parent or Subsidiary of the Company) exceeds
$100,000, such excess Options, to the extent of the Shares covered thereby in
excess of the foregoing limitation, shall be treated as Non-Qualified Share
Options.  For this purpose, Incentive
Share Options shall be taken into account in the order in which they were
granted, and the Fair Market Value of the Shares shall be determined as of the
grant date of the relevant Option.


 


(c)           Conditions of Award.  Subject to the terms of the Plan, the
Administrator shall determine the provisions, terms, and conditions of each
Award including, but not limited to, the Award vesting schedule, repurchase
provisions, rights of first refusal, forfeiture provisions, form of payment
(cash, Shares, or other consideration) upon settlement of the Award, payment
contingencies, and satisfaction of any performance criteria.  The performance criteria established by the
Administrator may be based on any one of, or combination of, the following: (i) increase
in share price, (ii) earnings per share, (iii) total shareholder
return, (iv) operating margin, (v) gross margin, (vi) return on
equity, (vii) return on assets, (viii) return on investment, (ix) operating
income, (x) net operating income, (xi) pre-tax profit, (xii) cash
flow, (xiii) revenue, (xiv) expenses, (xv) earnings before
interest, taxes and depreciation, (xvi) economic value added and (xvii) market
share.  The performance criteria may be
applicable to the Company, Related Entities and/or any individual business
units of the Company or any Related Entity. 
Partial achievement of the specified criteria may result in a payment or
vesting corresponding to the degree of achievement as specified in the Award
Agreement.


 


(d)           Acquisitions and Other Transactions.  The Administrator may issue Awards under the
Plan in settlement, assumption or substitution for, outstanding awards or
obligations to grant future awards in connection with the Company or a Related
Entity acquiring another entity, an interest in another entity or an additional
interest in a Related Entity whether by merger, share purchase, asset purchase
or other form of transaction.


 


(e)           Deferral of Award Payment.  The Administrator may establish one or more programs
under the Plan to permit selected Grantees the opportunity to elect to defer
receipt of consideration upon exercise of an Award, satisfaction of performance
criteria, or other event that absent the election would entitle the Grantee to
payment or receipt of Shares or other consideration under an Award.  The Administrator may establish the election
procedures, the timing of such elections, the mechanisms for payments of, and
accrual of interest or other earnings, if any, on amounts, Shares or other consideration
so deferred, and such other terms, conditions, rules and procedures that
the Administrator deems advisable for the administration of any such deferral
program.


 


(f)            Separate Programs.  The Administrator may establish one or more
separate programs under the Plan for the purpose of issuing particular forms of
Awards to one or more classes of Grantees on such terms and conditions as
determined by the Administrator from time to time.


 


(g)           Early Exercise.  The Award Agreement may, but need not, include
a provision whereby the Grantee may elect at any time while an Employee,
Director or Consultant to exercise any part or all of the Award prior to full
vesting of the Award.  Any unvested
Shares received pursuant to such exercise may be subject to a repurchase right
in favor of the Company or a Related Entity or to any other restriction the
Administrator determines to be appropriate.


 


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(h)                                 Term of Award.  The term of each Award shall be the term
stated in the Award Agreement, provided, however, that the term of an Incentive
Share Option shall be no more than ten (10) years from the date of
grant thereof.  However, in the case of
an Incentive Share Option granted to a Grantee who, at the time the Option is
granted, owns shares representing more than ten percent (10%) of the
voting power of all classes of shares of the Company or any Parent or
Subsidiary of the Company, the term of the Incentive Stock Option shall be
five (5) years from the date of grant thereof or such shorter term as
may be provided in the Award Agreement. 
Notwithstanding the foregoing, the specified term of any Award shall not
include any period for which the Grantee has elected to defer the receipt of
the Shares or cash issuable pursuant to the Award.


 


(i)                                     Transferability
of Awards.  Incentive
Share Options may not be sold, pledged, assigned, hypothecated, transferred, or
disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Grantee, only by
the Grantee.  Non-Qualified
Stock Options and other Awards shall be transferable (i) by will
and by the laws of descent and distribution and (ii) during the lifetime
of the Grantee, to the extent and in the manner authorized by the
Administrator.  Notwithstanding the
foregoing, the Grantee may designate one or more beneficiaries of the Grantee’s
Award in the event of the Grantee’s death on a beneficiary designation form
provided by the Administrator.


 


(j)                                    Time of
Granting Awards.  The date of
grant of an Award shall for all purposes be the date on which the Administrator
makes the determination to grant such Award, or such other date as is
determined by the Administrator.


 


7.              Award Exercise
or Purchase Price, Consideration and Taxes.


 


(a)                                 Exercise or
Purchase Price.  The
exercise or purchase price, if any, for an Award shall be as follows:


 


(i)                                     In the case of
an Incentive Share Option:


 


(A)                               granted to an Employee
who, at the time of the grant of such Incentive Share Option owns shares
representing more than ten percent (10%) of the voting power of all classes of
shares of the Company or any Parent or Subsidiary of the Company, the per Share
exercise price shall be not less than one hundred ten percent (110%)  of the Fair Market Value per
Share on the date of grant; or


 


(B)                               granted to any
Employee other than an Employee described in the preceding paragraph, the per
Share exercise price shall be not less than one hundred percent (100%) of the
Fair Market Value per Share on the date of grant.


 


(ii)                                  In the case of
a Non-Qualified Share Option, the per Share exercise price shall be not less
than eighty-five percent (85%) of the Fair Market Value per Share on the date
of grant unless otherwise determined by the Administrator.


 


(iii)                               In the case of
other Awards, such price as is determined by the Administrator.


 


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(iv)                              Notwithstanding
the foregoing provisions of this Section 7(a), in the case of an Award
issued pursuant to Section 6(d), above, the exercise or purchase price for
the Award shall be determined in accordance with the provisions of the relevant
instrument evidencing the agreement to issue such Award.


 


(b)                                 Consideration.  Subject to Applicable Laws, the consideration
to be paid for the Shares to be issued upon exercise or purchase of an Award
including the method of payment, shall be determined by the Administrator (and,
in the case of an Incentive Share Option, shall be determined at the time of
grant).  In addition to any other types
of consideration the Administrator may determine, the Administrator is
authorized to accept as consideration for Shares issued under the Plan the
following:


 


(i)                                     cash;


 


(ii)                                  check;


 


(iii)                               if the exercise
or purchase occurs on or after the Registration Date, surrender of Shares or
delivery of a properly executed form of attestation of ownership of Shares as
the Administrator may require which have a Fair Market Value on the date of
surrender or attestation equal to the aggregate exercise price of the Shares as
to which said Award shall be exercised, provided, however, that Shares acquired
under the Plan or any other equity compensation plan or agreement of the
Company must have been held by the Grantee for a period of more than six (6) months
(and not used for another Award exercise by attestation during such period);


 


(iv)                              with respect to
Options, if the exercise occurs on or after the Registration Date, payment
through a broker-dealer sale and remittance procedure pursuant to which the
Grantee (A) shall provide written instructions to a Company designated
brokerage firm to effect the immediate sale of some or all of the purchased
Shares and remit to the Company sufficient funds to cover the aggregate
exercise price payable for the purchased Shares and (B) shall provide
written directives to the Company to deliver the certificates for the purchased
Shares directly to such brokerage firm in order to complete the sale transaction;
or


 


(v)                                 any combination
of the foregoing methods of payment.


 


The
Administrator may at any time or from time to time, by adoption of or by
amendment to the standard forms of Award Agreement described in
Section 4(b)(iv), or by other means, grant Awards which do not permit all
of the foregoing forms of consideration to be used in payment for the Shares or
which otherwise restrict one or more forms of consideration.


 


(c)                                  Taxes.  No Shares shall be delivered under the Plan
to any Grantee or other person until such Grantee or other person has made
arrangements acceptable to the Administrator for the satisfaction of any
non-U.S., federal, state, or local income and employment tax withholding
obligations, including, without limitation, obligations incident to the receipt
of Shares or the disqualifying disposition of Shares received on exercise of an
Incentive Share Option.  Upon exercise of
an Award the Company shall withhold or collect from Grantee an amount
sufficient to satisfy such tax obligations.


 


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8.              Exercise of
Award.


 


(a)                                 Procedure for
Exercise; Rights as a Shareholder.


 


(i)                                     Any Award
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator under the terms of the Plan and specified in
the Award Agreement.


 


(ii)                                  An Award shall
be deemed to be exercised when written notice of such exercise has been given
to the Company in accordance with the terms of the Award by the person entitled
to exercise the Award and full payment for the Shares with respect to which the
Award is exercised, including, to the extent selected, use of the broker-dealer
sale and remittance procedure to pay the purchase price as provided in
Section 7(b)(iv).


 


(b)                                 Exercise of
Award Following Termination of Continuous Service.


 


(i)                                     An Award may
not be exercised after the termination date of such Award set forth in the
Award Agreement and may be exercised following the termination of a Grantee’s
Continuous Service only to the extent provided in the Award Agreement.


 


(ii)                                  Where the Award
Agreement permits a Grantee to exercise an Award following the termination of
the Grantee’s Continuous Service for a specified period, the Award shall
terminate to the extent not exercised on the last day of the specified period
or the last day of the original term of the Award, whichever occurs first.


 


(iii)                               Any Award
designated as an Incentive Share Option to the extent not exercised within the
time permitted by law for the exercise of Incentive Share Options following the
termination of a Grantee’s Continuous Service shall convert automatically to a
Non-Qualified Share Option and thereafter shall be exercisable as such to the
extent exercisable by its terms for the period specified in the Award
Agreement.


 


9.              Conditions Upon
Issuance of Shares.


 


(a)                                 Shares shall
not be issued pursuant to the exercise of an Award unless the exercise of such
Award and the issuance and delivery of such Shares pursuant thereto shall
comply with all Applicable Laws, and shall be further subject to the approval
of counsel for the Company with respect to such compliance.


 


(b)                                 As a condition
to the exercise of an Award, the Company may require the person exercising such
Award to represent and warrant at the time of any such exercise that the Shares
are being purchased only for investment and without any present intention to
sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required by any Applicable Laws.


 


(c)          As a condition
to the exercise of an Award, the Company may require the person exercising such
Award to acknowledge and agree to be bound by the provisions of the Investors’
Rights Agreement entered into among the shareholders of the Company from time
to time, as if the Grantee is an Ordinary Shareholder thereunder.


 


13

















 


10.       Adjustments
Upon Changes in Capitalization.  Subject to any required action by the
shareholders of the Company, the number of Shares covered by each outstanding Award,
and the number of Shares which have been authorized for issuance under the Plan
but as to which no Awards have yet been granted or which have been returned to
the Plan, the exercise or purchase price of each such outstanding Award, the
maximum number of Shares with respect to which Awards may be granted to any
Grantee in any fiscal year of the Company, as well as any other terms that the
Administrator determines require adjustment shall be proportionately adjusted
for (i) any increase or decrease in the number of issued Shares resulting
from a share split, reverse share split, share dividend, combination or
reclassification of the Shares, or similar transaction affecting the Shares,
(ii) any other increase or decrease in the number of issued Shares effected
without receipt of consideration by the Company, or (iii) as the
Administrator may determine in its discretion, any other transaction with
respect to Ordinary Shares including a corporate merger, consolidation,
acquisition of property or equity, separation (including a spin-off or other
distribution of shares or property), reorganization, liquidation (whether
partial or complete) or any similar transaction; provided, however that
conversion of any convertible securities of the Company shall not be deemed to
have been “effected without receipt of consideration.”  Such adjustment shall be made by the
Administrator and its determination shall be final, binding and
conclusive.  Except as the Administrator
determines, no issuance by the Company of shares of any class, or securities
convertible into shares of any class, shall affect, and no adjustment by reason
hereof shall be made with respect to, the number or price of Shares subject to
an Award.  In the event of a Spin-off
Transaction, the Administrator may in its discretion make such adjustments and
take such other action as it deems appropriate with respect to outstanding
Awards under the Plan, including but not limited to: (i) adjustments to
the number and kind of Shares, the
exercise or purchase price per Share and the
vesting periods of outstanding Awards, (ii) prohibit the exercise of
Awards during certain periods of time prior to the consummation of the Spin-off
Transaction, or (iii) the substitution, exchange or grant of Awards to
purchase securities of the Subsidiary; provided that the Administrator shall
not be obligated to make any such adjustments or take any such action
hereunder.


 


11.       Corporate
Transactions and Changes in Control.


 


(a)                                 Termination of
Award to the Extent Not Assumed in Corporate Transaction.  Effective upon the consummation of a
Corporate Transaction, all outstanding Awards under the Plan shall
terminate.  However, all such Awards
shall not terminate to the extent they are Assumed in connection with the
Corporate Transaction.


 


(b)                                 Acceleration of
Award Upon Corporate Transaction or Change in Control.


 


(1).                              Corporate
Transaction.  Except as
provided otherwise in an individual Award Agreement, in the event of a
Corporate Transaction, for the portion of each Award that is neither Assumed
nor Replaced, such portion of the Award shall automatically become fully vested
and exercisable and be released from any repurchase or forfeiture rights (other
than repurchase rights exercisable at Fair Market Value) for all of the Shares
at the time represented by such portion of the Award, immediately prior to the
specified effective date of such Corporate Transaction, provided that the
Grantee’s Continuous Service has not terminated prior to such date.  The portion
of the Award that is not Assumed shall terminate under 


 


14

















 


subsection
(a) of this Section 11 to the extent not exercised prior to the
consummation of such Corporate Transaction.


 


(2)                                 Change in
Control.  Except as provided otherwise
in an individual Award Agreement, in the event of a Change in Control (other
than a Change in Control which also is a Corporate Transaction), each Award
which is at the time outstanding under the Plan automatically shall become
fully vested and exercisable and be released from any repurchase or forfeiture
rights (other than repurchase rights exercisable at Fair Market Value),
immediately prior to the specified effective date of such Change in Control,
for all of the Shares at the time represented by such Award, provided that the
Grantee’s Continuous Service has not terminated prior to such date.


 


(c)                                  Effect of
Acceleration on Incentive Share Options.  Any Incentive Share Option accelerated under
this Section 11 in connection with a Corporate Transaction or Change in
Control shall remain exercisable as an Incentive Share Option under the Code
only to the extent the $100,000 dollar limitation of Section 422(d) of
the Code is not exceeded.  To the extent such dollar limitation is
exceeded, the excess Options shall be treated as Non-Qualified Share
Options.


 


12.       Effective Date
and Term of Plan.  The Plan
shall become effective upon the later to occur of its adoption by the Board or
its approval by the shareholders of the Company.  It shall continue in effect for a term of nine (9) years unless sooner
terminated.  Subject to Section 17,
below, and Applicable Laws, Awards may be granted under the Plan upon its
becoming effective.


 


13.       Amendment,
Suspension or Termination of the Plan.


 


(a)                                 The Board may
at any time amend, suspend or terminate the Plan; provided, however, that no such amendment shall be made without the
approval of the Company’s shareholders to the extent such approval is required
by Applicable Laws, or if such amendment would change any of the provisions of
Section 4(b)(vi) or this Section 13(a).


 


(b)                                 No Award may be
granted during any suspension of the Plan or after termination of the Plan.


 


(c)                                  No suspension
or termination of the Plan (including termination of the Plan under
Section 12, above) shall adversely affect any rights under Awards already
granted to a Grantee.


 


14.       Reservation of
Shares.


 


(a)                                 The Company,
during the term of the Plan, will at all times reserve and keep available such
number of Shares as shall be sufficient to satisfy the requirements of the
Plan.


 


(b)                                 The inability
of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in 


 


15

















 


respect
of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.


 


15.       No Effect on
Terms of Employment/Consulting Relationship.  The Plan shall not confer upon any Grantee
any right with respect to the Grantee’s Continuous Service, nor shall it
interfere in any way with his or her right or the right of the Company or any
Related Entity to terminate the Grantee’s Continuous Service at any time, with
or without Cause, and with or without notice. 
The ability of the Company or any Related Entity to terminate the
employment of a Grantee who is employed at will is in no way affected by its determination
that the Grantee’s Continuous Service has been terminated for Cause for the
purposes of this Plan.


 


16.       No Effect on
Retirement and Other Benefit Plans.  Except as specifically provided in a
retirement or other benefit plan of the Company or a Related Entity, Awards
shall not be deemed compensation for purposes of computing benefits or
contributions under any retirement plan of the Company or a Related Entity, and
shall not affect any benefits under any other benefit plan of any kind or any
benefit plan subsequently instituted under which the availability or amount of
benefits is related to level of compensation. 
The Plan is not a “Retirement Plan” or “Welfare Plan” under the Employee
Retirement Income Security Act of 1974, as amended.


 


17.       Shareholder
Approval.  The grant
of Incentive Share Options under the Plan shall be subject to approval by the
shareholders  of the Company within two (2) months after the date the Plan is
adopted excluding Incentive Share Options issued in substitution for
outstanding Incentive Share Options pursuant to Section 424(a) of the
Code.  Such shareholder approval shall be
obtained in the degree and manner required under Applicable Laws.  The Administrator may grant Incentive Share
Options under the Plan prior to approval by the shareholders, but until such
approval is obtained, no such Incentive Share Option shall be exercisable.  In the event that shareholder approval is not
obtained within the two (2) month period provided above, all Incentive
Share Options previously granted under the Plan shall be exercisable as
Non-Qualified Share Options.


 


18.       Vesting Schedule.  Except as unanimously approved by the Board, Options to be issued under
the Plan shall be subject to a minimum four (4) year vesting schedule,
calling for vesting in accordance with one of the following schedules and methods: (A) counting from the applicable grant date with respect to the
issued Options, fifty percent (50%) at the end of twenty-four (24) months,
twenty-five percent (25%) each at the end of 
thirty-six (36) months and forty-eight (48) months; or (B) counting
from the applicable vesting commencement date with respect to the issued Options,
fifty percent (50%) each at the end of twelve (12) months, twenty-five
percent (25%) each at the end of twenty-fourth (24) months
and thirty-six (36) months.


 


19.       Drag-Along Events and Trade Sale.  The Award Agreement shall include a provision whereby in the event of a
Drag-Along Event or a Trade Sale, the Grantees who hold
any Shares upon exercise of the Award shall sell, transfer, convey or assign
all of their Shares pursuant to, and so as to give effect to, the Drag-Along
Event or the Trade
Sale, and each of such Grantees shall grant to
the then current chief executive officer of the Company or an authorized
officer, a power of attorney to transfer his/her Shares and to do and carry out
all other acts and to sign all other documents that are necessary or advisable to
complete the Drag-Along Event or the Trade Sale.


 


16

















 


20.       Qualified IPO.   The Award Agreement shall include a provision
whereby in the case of a Qualified IPO, the Grantees shall enter into any
agreements with any underwriter, coordinator, bankers or sponsor elected by the
Company for the purpose of the Qualified IPO, and each of such Grantees shall
grants to the then current chief executive officer or other authorized officer
of the Company a power of attorney to enter into any agreements with any
underwriter, coordinator, bankers or sponsor elected by the Company and to do
and carry out all the acts and to sign all the documents that are necessary or
advisable to complete the Qualified IPO.


 


21.       Service with Competitor. In the event of a Grantee serves as the director,
officer, employee (whether full time or part time), shareholder, representative
or agent of a Competitor (the “Service with Competitor”) after termination of
the Grantee’s Continuous Service, with or without Cause, the Grantee’s right to
exercise the Option shall terminate immediately upon the date of the Service
with Competitor, except as otherwise determined by the Administrator, and the
Company shall have rights to repurchase all vested options and exercised Shares
held by the Grantee at a discount price determined by the Administrator.


 


22.       Unfunded
Obligation.  Any amounts
payable to Grantees pursuant to the Plan shall be unfunded and unsecured
obligations for all purposes, including, without limitation, Title I of
the Employee Retirement Income Security Act of 1974, as amended.  Neither the Company nor any Related Entity
shall be required to segregate any monies from its general funds, or to create
any trusts, or establish any special accounts with respect to such
obligations.  The Company shall retain at
all times beneficial ownership of any investments, including trust investments,
which the Company may make to fulfill its payment obligations hereunder.  Any investments or the creation or
maintenance of any trust or any Grantee account shall not create or constitute
a trust or fiduciary relationship between the Administrator, the Company or any
Related Entity and a Grantee, or otherwise create any vested or beneficial
interest in any Grantee or the Grantee’s creditors in any assets of the Company
or a Related Entity. The Grantees shall have no claim against the Company or
any Related Entity for any changes in the value of any assets that may be
invested or reinvested by the Company with respect to the Plan.


 


23.       Construction.  Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan.  Except when
otherwise indicated by the context, the singular shall include the plural and
the plural shall include the singular.  Use
of the term “or” is not intended to be exclusive, unless the context clearly
requires otherwise.


 


17