ex-10.2

 TRITON EMISSION SOLUTIONS INC.
 

 2014 STOCK OPTION PLAN
 

 Established September 8, 2014
 

 ARTICLE 1. 
 THE PLAN 
 1.1 
 Title 
 

 This plan is entitled the "2014 Stock Option Plan" (the "Plan") of Triton Emission Solutions Inc., a Delaware corporation (the "Company").
 

 1.2
 Purpose
 

 The purpose of the Plan is to enhance the long-term stockholder value of the Company by offering opportunities to directors, officers, employees and eligible consultants of the Company and any Related Company, as defined below, to acquire and maintain stock ownership in the Company in order to give these persons the opportunity to participate in the Company's growth and success, and to encourage them to remain in the service of the Company or a Related Company. 
  
 
ARTICLE 2. 
 DEFINITIONS 
 

 2.1
 Definitions
 

 The following terms will have the following meanings in the Plan: 
 

 "Award" means any Option granted under this Plan. 
 

 "Board" means the Board of Directors of the Company. 
 

 "Cause," unless otherwise defined in the instrument evidencing the award or in an employment or services agreement between the Company or a Related Company and a Participant, means a material breach of the employment or services agreement, dishonesty, fraud, misconduct, unauthorized use or disclosure of confidential information or trade secrets, or conviction or confession of a crime punishable by law (except minor violations), in each case as determined by the Plan Administrator, and its determination shall be conclusive and binding. 
 

 "Code" means the Internal Revenue Code of 1986, as amended from time to time. 
 

 "Common Stock" means the shares of common stock, par value $0.001 per share, of the Company. 
 

 “Consultant” means any consultant, agent, advisor or independent contractor who provides services to the Company or a Related Company, but does not include an officer or director of the Company.
  
 "Consultant Participant" has the meaning set forth in Article 5.1. 
 

 "Corporate Transaction," unless otherwise defined in the instrument evidencing the Award or in a written employment or services agreement between the Company or a Related Company and a Participant, means consummation of either: 
 

 (a) 
 a merger or consolidation of the Company with or into any other corporation, entity or person or 
 


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 (b) 
 a sale, lease, exchange or other transfer in one transaction or a series of related transactions of all or substantially all the Company's outstanding securities or all or substantially all the Company's assets; provided, however, that a Corporate Transaction shall not include a Related Party Transaction. 
 

 "Disability," unless otherwise defined by the Plan Administrator, means a mental or physical impairment of the Participant that is expected to result in death or that has lasted or is expected to last for a continuous period of twelve (12) months or more and that causes the Participant to be unable, in the opinion of the Company, to perform his or her duties for the Company or a Related Company and to be engaged in any substantial gainful activity. 
 

 "Employment Termination Date" means, with respect to a Participant, the first day upon which the Participant no longer has an employment or service relationship with the Company or any Related Company.  
 

 "Exchange Act" means the Securities Exchange Act of 1934, as amended. 
 

 "Fair Market Value" means the per share value of the Common Stock determined as follows: 
 

 (a)
 if the Common Stock is listed on a national exchange registered under Section 6 of the Exchange Act, the lesser of (i) the closing price per share on the date immediately preceding the date of the granting of the options; or (ii) the average closing price per share during the ten (10) trading days immediately preceding such date on the principal exchange on which it is traded;
 

 (b)
 if the Common Stock is not then listed on a national exchange registered under Section 6 of the Exchange Act, but is quoted or trades on the OTC Bulletin Board service or the OTC Link alternate trading system on the OTCQB market tier or higher, the lesser of (i) the closing price per share on the date immediately preceding the date of the granting of the options; or (ii) the average of the closing bid and ask prices per share for the Common Stock as quoted on the OTC Bulletin Board or the OTC Link, as the case may be, during the ten (10) trading days immediately preceding such date; or 
 

 (c)
 in any other case, the fair market value of the Common Stock as determined by the Plan Administrator acting in good faith.  
 

 "Grant Date" means the date on which the Plan Administrator completes the corporate action relating to the grant of an Award or such later date specified by the Plan Administrator, and on which all conditions precedent to the grant have been satisfied, provided that conditions to the exercisability or vesting of Awards shall not defer the Grant Date. 
 

 "Incentive Stock Option" means an Option granted with the intention, as reflected in the instrument evidencing the Option, that it qualify as an "incentive stock option" as that term is defined in Section 422 of the Code. 
 

 "Non-Qualified Stock Option" means an Option other than an Incentive Stock Option. 
 

 "Option" means the right to purchase Common Stock granted under Article 7. 
 

 "Option Expiration Date" has the meaning set forth in Article 7.6. 
 

 "Option Term" has the meaning set forth in Article 7.3. 
 

 "Participant" means the person to whom an Award is granted and who meets the eligibility requirements imposed by Article 5, including Consultant Participants. 
 


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 "Plan Administrator" has the meaning set forth in Article 3.1. 
 

 "Related Company" means any entity that, directly or indirectly, controls or is controlled by, the Company. 
 

 "Related Party Transaction" means: (a) a merger or consolidation of the Company in which the holders of shares of Common Stock immediately prior to the merger hold at least a majority of the shares of Common Stock in the Successor Corporation immediately after the merger; (b) a sale, lease, exchange or other transaction in one transaction or a series of related transactions of all or substantially all the Company's assets to a wholly-owned subsidiary corporation; (c) a mere reincorporation of the Company; or (d) a transaction undertaken for the sole purpose of creating a holding company that will be owned in substantially the same proportion by the persons who held the Company's securities immediately before such transaction. 
 

 "Securities Act" means the Securities Act of 1933, as amended. 
 

 "Successor Corporation" has the meaning set forth in Article 11.3(a). 
 

 "Vesting Commencement Date" means the Grant Date or such other date selected by the Plan Administrator as the date from which the Option begins to vest for purposes of Article 7.4. 
 

 

 ARTICLE 3. 
 ADMINISTRATION 
 

 3.1 
 Plan Administrator 
 

 The Plan shall be administered by the Board or a committee appointed by, and consisting of two or more members of, the Board (the "Plan Administrator"). If and so long as the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, any committee appointed by the Board as Plan Administrator shall consist solely of two or more “Non-Employee Directors” as that term is defined in Rule 16b-3 of the Exchange Act.  Committee members shall serve on such committee for such term, and may be removed, as determined by the Board in its sole discretion.  At any time when no committee has been appointed to administer the Plan, then the entire Board shall act as the Plan Administrator.
 

 3.2 
 Administration and Interpretation by Plan Administrator 
 

 Except for the terms and conditions explicitly set forth in the Plan, the Plan Administrator shall have exclusive authority, in its discretion, to determine all matters relating to Awards under the Plan, including the selection of individuals to be granted Awards, the type of Awards, the number of shares of Common Stock subject to an Award, all terms, conditions, restrictions and limitations, if any, of an Award and the terms of any instrument that evidences the Award. The Plan Administrator shall also have exclusive authority to interpret the Plan and the terms of any instrument evidencing the Award and may from time to time adopt and change rules and regulations of general application for the Plan's administration. The Plan Administrator's interpretation of the Plan and its rules and regulations, and all actions taken and determinations made by the Plan Administrator pursuant to the Plan, shall be conclusive and binding on all parties involved or affected. The Plan Administrator may delegate administrative duties to such of the Company's officers as it so determines. 
 

 

 

 


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 ARTICLE 4.
 STOCK SUBJECT TO THE PLAN
 

 4.1 
 Authorized Number of Shares 
 

 Subject to adjustment from time to time as provided in this Article 4.1 and in Article 11.1, the maximum aggregate number of shares of Common Stock available for issuance under the Plan shall be Thirteen Million Two Hundred Thousand (13,200,000) shares.  At any time after January 1, 2015, and from time to time thereafter, the Board may, by resolution, increase the maximum aggregate number of shares of Common Stock that may be optioned and sold under the Plan, provided that the maximum aggregate number of shares of Common Stock that may be optioned and sold under the Plan shall at no time be greater than 15% of the total number of shares of Common Stock outstanding, less any options still outstanding under any previous stock option plans.
 

 4.2 
 Reuse of Shares 
 

 Any shares of Common Stock that have been made subject to an Award that cease to be subject to the Award (other than by reason of exercise or settlement of the Award to the extent it is exercised for or settled in shares of Common Stock) shall again be available for issuance in connection with future grants of Awards under the Plan. In the event shares of Common Stock issued under the Plan are reacquired by the Company pursuant to any forfeiture provision or right of repurchase, such shares shall again be available for the purposes of the Plan; provided, however, that the maximum number of shares that may be issued upon the exercise of Awards shall equal the share number provided for in Article 4.1, subject to adjustment from time to time as provided in Articles 11.1 through 11.6.
 

 

 ARTICLE 5. 
 ELIGIBILITY 
 

 5.1
 Plan Eligibility
 

 An Award may be granted to any officer, director or employee of the Company or a Related Company that the Plan Administrator selects from time to time. An Award may also be granted to any consultant, agent, advisor or independent contractor who provides services to the Company or any Related Company (a “Consultant Participant”), so long as such Consultant Participant: (a) is a natural person; (b) renders bona fide services that are not in connection with the offer and sale of the Company's securities in a capital-raising transaction; and (c) does not directly or indirectly promote or maintain a market for the Company's securities.  
 

 

 ARTICLE 6. 
 AWARDS  - GENERAL
 

 6.1 
 Form and Grant of Awards 
 

 The Plan Administrator shall have the authority, in its sole discretion, to determine the type or types of Awards to be granted under the Plan. Awards may be granted singly or in combination. 
 

 

 

 

 


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 6.2 
 Settlement of Awards 
 

 The Company may settle Awards through the delivery of shares of Common Stock, the granting of replacement Awards or any combination thereof as the Plan Administrator shall determine. Any Award settlement, including payment deferrals, may be subject to such conditions, restrictions and contingencies as the Plan Administrator shall determine. The Plan Administrator may permit or require the deferral of any Award payment, subject to such rules and procedures as it may establish, which may include provisions for the payment or crediting of interest, or dividend equivalents, including converting such credits into deferred stock equivalents. 
 

 

 ARTICLE 7. 
 AWARDS OF OPTIONS
 

 7.1 
 Grant of Options 
 

 The Plan Administrator shall have the authority, in its sole discretion, to grant Options to Participants as Incentive Stock Options or as Non-Qualified Stock Options, which shall be appropriately designated.
 

 7.2 
 Option Exercise Price 
 

 The exercise price for shares purchased under an Option shall be as determined by the Plan Administrator, provided that:
 

 (a)
 the exercise price for Incentive Stock Options shall not be less than the minimum exercise price required by Article 8.3, and
 

 (b)
 the exercise price for Non-Qualified Stock Options shall not be less than 75% of the Fair Market Value of the Common Stock on the Grant Date.
 

 7.3 
 Term of Options 
 

 Subject to earlier termination in accordance with the terms of the Plan and the instrument evidencing the Option, the maximum term of an Option (the "Option Term") shall be as established for that Option by the Plan Administrator or, if not so established, shall be ten (10) years from the Grant Date. 
 

 7.4 
 Exercise of Options 
 

 The Plan Administrator shall establish and set forth in each instrument that evidences an Option the time at which, or the installments in which, the Option shall vest and become exercisable, any of which provisions may be waived or modified by the Plan Administrator at any time. 
 

 The Plan Administrator, in its sole discretion, may adjust the vesting schedule of an Option held by a Participant who works less than "full-time" as that term is defined by the Plan Administrator or who takes a Company-approved leave of absence. 
 

 To the extent an Option has vested and become exercisable, the Option may be exercised in whole or from time to time in part by delivery to the Company of a written stock option exercise agreement or notice, in a form and in accordance with procedures established by the Plan Administrator, setting forth the number of shares with respect to which the Option is being exercised, the restrictions imposed on the shares purchased under such exercise agreement, if any, and such representations and agreements as may be required by the Plan Administrator, accompanied by payment in full as described in Article 7.5. An Option may be exercised only for whole shares and may not be exercised for less than a reasonable number of shares at any one time, as determined by the Plan Administrator. 
 


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 7.5 
 Payment of Exercise Price 
 

 The exercise price for shares purchased under an Option shall be paid in full to the Company by the delivery of consideration equal to the product of the Option exercise price and the number of shares purchased. Such consideration must be paid before the Company will issue the shares being purchased and must be delivered in the form of a check or bank draft or other method of payment or some combination thereof as may be acceptable to the Plan Administrator for that purchase. 
 

 7.6 
 Post-Termination Exercises 
 

 The Plan Administrator shall establish and set forth, in each instrument that evidences an Option, whether the Option shall continue to be exercisable, and the terms and conditions of such exercise, if the Participant ceases to be employed by, or to provide services to, the Company or a Related Company, which provisions may be waived or modified by the Plan Administrator at any time.  If not so established in the instrument evidencing the Option, the Option shall be exercisable according to the following terms and conditions, which may be waived or modified by the Plan Administrator at any time: 
 

 (a) 
 Except as otherwise set forth in this Article 7.6, any portion of an Option that is not vested and exercisable on the Employment Termination Date shall expire on such date. 
 

 (b) 
 Any portion of an Option that is vested and exercisable on the Employment Termination Date shall expire on the earliest to occur of: 
 

 (i) 
 if the Participant's Employment Termination Date occurs by reason of retirement, resignation or for any other reasons other than for Cause, Disability or death, the day which is thirty (30) days after such Employment Termination Date; 
 

 (ii)
 if the Participant's Employment Termination Date occurs by reason of Disability or death, the day which is six (6) months after such Employment Termination Date; and 
 

 (iii) 
 the last day of the Option Term (subsections (i) through (iii) being, collectively, the "Option Expiration Date"). 
 

 Notwithstanding the foregoing, if the Participant dies after his or her Employment Termination Date, but while an Option is otherwise exercisable, the portion of the Option that is vested and exercisable on such Employment Termination Date shall expire upon the earlier to occur of: (A) the Option Expiration Date, and (B) the day which is six (6) months after the date of death, unless the Plan Administrator determines otherwise. 
 

 Also notwithstanding the foregoing, in case of termination of the Participant's employment or service relationship for Cause, all Options granted to that Participant shall automatically expire upon first notification to the Participant of such termination, unless the Plan Administrator determines otherwise. If a Participant's employment or service relationship with the Company is suspended pending an investigation of whether the Participant shall be terminated for Cause, all the Participant's rights under any Option shall likewise be suspended during the period of investigation. If any facts that would constitute termination for Cause are discovered after the Participant's relationship with the Company or a Related Company has ended, any Option then held by the Participant may be immediately terminated by the Plan Administrator, in its sole discretion. 
 

 

 

 

 


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 (c) 
 Unless the Plan Administrator determines otherwise, upon a termination of the Participant’s status as an employee, officer, director or Consultant of the Company or any Related Company (the “Original Position”), other than a termination for Cause, death or Disability, the Participant shall  not be deemed to have ceased to be employed by or to have ceased providing services to the Company or any Related Company, provided that the Participant acts as an employee, officer, director or Consultant of the Company or a Related Company eligible to receive an Award under the provisions of Article 5, in another capacity, immediately upon the termination of the Original Position.
 

 (d) 
 The effect of a Company-approved leave of absence on the application of this Article 7 shall be determined by the Plan Administrator, in its sole discretion. 
 

 (e) 
 If a Participant's employment or service relationship with the Company or a Related Company terminates by reason of Disability or death, the Option shall become fully vested and exercisable for all the shares subject to the Option. Such Option shall remain exercisable for the time period set forth in this Article 7.6. 
 

 

 ARTICLE 8. 
 INCENTIVE STOCK OPTION LIMITATIONS 
 

 Notwithstanding any other provisions of the Plan, and to the extent required by Section 422 of the Code, Incentive Stock Options shall be subject to the following additional terms and conditions: 
 

 8.1 
 Dollar Limitation 
 

 To the extent that the aggregate Fair Market Value (determined as of the Grant Date) of the Common Stock with respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under the Plan and all other stock option plans of the Company) exceeds $100,000, such excess shall be treated as Non-Qualified Stock Options. In the event the Participant holds two or more such Options that become exercisable by the Participant for the first time in the same calendar year, such limitation shall be applied on the basis of the order in which such Options were granted. 
 

 8.2 
 Eligible Employees 
 

 Incentive Stock Options may only be granted to Participants that are individuals employed by the Company or a parent or subsidiary corporation of the Company and may be granted only in connection with such individual Participant’s employment with the Company or a parent or subsidiary corporation of the Company.
 

 8.3 
 Exercise Price 
 

 The exercise price of an Incentive Stock Option shall not be less than 100% of the Fair Market Value of the Common Stock on the Grant Date, and in the case of an Incentive Stock Option granted to a Participant who owns more than 10% of the total combined voting power of all classes of the stock of the Company or of its parent or subsidiary corporations (a "Ten Percent Stockholder"), shall not be less than 110% of the Fair Market Value of the Common Stock on the Grant Date. The determination of whether a Participant is a Ten Percent Stockholder shall be made in accordance with Section 422 of the Code. 
 

 

 


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 8.4 
 Notification of Sale of Common Stock 
 

 The Participant shall be required to promptly notify the Company of a sale of Common Stock acquired by such Participant upon the exercise of Incentive Stock Options if such sale occurs within either:
 

 (a)
 two (2) years of the Grant Date of the particular Incentive Stock Options; or
 

 (b)
 one (1) year of after the date the Incentive Stock Option was exercised.
 

 8.5 
 Meaning of “Parent Corporation” and “Subsidiary Corporation” 
 

 For the purposes of this Article 8, "parent corporation," "subsidiary corporation" and "disability" shall have the meanings attributed to those terms for purposes of Section 422 of the Code. 
 

 

 ARTICLE 9. 
 WITHHOLDING 
 

 9.1
 General 
 

 The Company may require the Participant to pay to the Company the amount of any taxes that the Company is required by applicable federal, state, local or foreign law to withhold with respect to the grant, vesting or exercise of any Award. The Company shall not be required to issue any shares of Common Stock under the Plan until any such withholding obligations are satisfied. 
 

 9.2
 Payment of Withholding Obligations in Cash or Shares 
 

 The Plan Administrator may permit or require a Participant to satisfy all or part of his or her withholding obligations under Article 9.1 by: (a) paying cash to the Company, (b) having the Company withhold from any cash amounts otherwise due or to become due from the Company to the Participant, (c) having the Company withhold a portion of any shares of Common Stock that would otherwise be issued to the Participant having a value equal to the withholding obligations (up to the employer's minimum required tax withholding rate), or (d) surrendering any shares of Common Stock that the Participant previously acquired having a value equal to the withholding obligations (up to the employer's minimum required tax withholding rate to the extent the Participant has held the surrendered shares for less than six months). 
 

 

 ARTICLE 10. 
 TRANSFERABILITY
 

 10.1
 Transfer Restrictions
 

 Neither an Award nor any interest therein may be assigned, pledged or transferred by the Participant or made subject to attachment or similar proceedings other than by will or by the applicable laws of descent and distribution, and, during the Participant's lifetime, such Awards may be exercised only by the Participant. Notwithstanding the foregoing, and to the extent permitted by Section 422 of the Code with respect to Incentive Stock Options, the Plan Administrator, in its sole discretion, may permit a Participant to assign or transfer an Award or may permit a Participant to designate a beneficiary who may exercise the Award or receive payment under the Award after the Participant's death; provided, however, that any Award so assigned or transferred shall be subject to all the terms and conditions of the Plan and those contained in the instrument evidencing the Award. 
 

 


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 ARTICLE 11. 
 ADJUSTMENTS 
 

 11.1
 Adjustment of Shares 
 

 In the event, at any time or from time to time, a stock dividend, stock split, spin-off, combination or exchange of shares, recapitalization, merger, consolidation, distribution to stockholders other than a normal cash dividend, or other change in the Company's corporate or capital structure, including, without limitation, a Related Party Transaction, results in: (a) the outstanding shares of Common Stock, or any securities exchanged therefor or received in their place, being exchanged for a different number or kind of securities of the Company or of any other corporation, or (b) new, different or additional securities of the Company or of any other corporation being received by the holders of shares of Common Stock of the Company, then the Plan Administrator shall make proportional adjustments in: (i) the maximum number and kind of securities subject to the Plan and issuable upon the exercise of Awards as set forth in Article 4, and (ii) the number and kind of securities that are subject to any outstanding Award and the per share price of such securities, without any change in the aggregate price to be paid therefor. The determination by the Plan Administrator as to the terms of any of the foregoing adjustments shall be conclusive and binding. Notwithstanding the foregoing, a dissolution or liquidation of the Company or a Corporate Transaction shall not be governed by this Article 11.1 but shall be governed by Articles 11.2 and 11.3, respectively. 
 

 11.2
 Dissolution or Liquidation 
 

 To the extent not previously exercised or settled, and unless otherwise determined by the Plan Administrator in its sole discretion, Awards shall terminate immediately prior to the dissolution or liquidation of the Company. To the extent a forfeiture provision or repurchase right applicable to an Award has not been waived by the Plan Administrator, the Award shall be forfeited immediately prior to the consummation of the dissolution or liquidation. 
 

 11.3
 Corporate Transaction 
 

 (a) 
 In the event of a Corporate Transaction, except as otherwise provided in the instrument evidencing an Award (or in a written employment or services agreement between a Participant and the Company or Related Company) and except as provided in subsection (b) below, each outstanding Award shall be assumed or an equivalent option or right substituted by the surviving corporation, the successor corporation or its parent corporation, as applicable (the "Successor Corporation"). 
 

 (b) 
 If, in connection with a Corporate Transaction, the Successor Corporation refuses to assume or substitute for an Award, then each such outstanding Award shall become fully vested and exercisable with respect to 100% of the unvested portion of the Award. In such case, the Plan Administrator shall notify the Participant in writing or electronically that the unvested portion of the Award specified above shall be fully vested and exercisable for a specified time period. At the expiration of such specified time period, the Award shall terminate, provided that the Corporate Transaction has occurred. 
 

 

 

 

 

 


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 (c) 
 For the purposes of this Article 11.3, the Award shall be considered assumed or substituted for if following the Corporate Transaction, the option or right confers the right to purchase or receive, for each share of Common Stock subject to the Award immediately prior to the Corporate Transaction, the consideration (whether stock, cash, or other securities or property) that the Participant would have been entitled to receive had the Participant exercised such Award immediately prior to the Corporate Transaction becoming effective (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares); provided, however, that if such consideration that the Participant would have received is not solely common stock of the Successor Corporation, the Plan Administrator may, with the consent of the Successor Corporation, provide for the consideration to be received upon the exercise of the Award, for each share of Common Stock subject thereto, to be solely common stock of the Successor Corporation substantially equal in fair market value to the per share consideration received by holders of Common Stock in the Corporate Transaction as determined by the Plan Administrator in its sole discretion. 
 

 (d) 
 All Awards shall terminate and cease to remain outstanding immediately following the Corporate Transaction, except to the extent assumed by the Successor Corporation. 
 

 11.4
 Further Adjustment of Awards 
 

 Subject to Articles 11.2 and 11.3, the Plan Administrator shall have the discretion, exercisable at any time, including but not limited to, before a sale, merger, consolidation, reorganization, liquidation or change of control of the Company, as defined by the Plan Administrator, to take such further action as it determines to be necessary or advisable, and fair and equitable to the Participants, with respect to Awards. Such authorized action may include (but shall not be limited to) establishing, amending or waiving the type, terms, conditions or duration of, or restrictions on, Awards so as to provide for earlier, later, extended or additional time for exercise, lifting restrictions and other modifications, and the Plan Administrator may take such actions with respect to all Participants, to certain categories of Participants or only to individual Participants, provided however, that the Plan Administrator may not, without the express consent of the Participant holding the Award; (i) provide for the earlier expiration of the Award; (ii) increase the exercise price for an Award; or (iii) decrease the number of shares of Common Stock subject to an Award. The Plan Administrator may take such action before or after granting Awards to which the action relates and before or after any public announcement with respect to any sale, merger, consolidation, reorganization, liquidation, change of control or similar transaction that is the reason for such action. 
 

 11.5
 Limitations 
 

 The grant of Awards shall in no way affect the Company's right to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets. 
 

 11.6
 Fractional Shares 
 

 In the event of any adjustment in the number of shares covered by any Award, each such Award shall cover only the number of full shares resulting from such adjustment. 
 

 

 

 

 


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 ARTICLE 12. 
 AMENDMENT AND TERMINATION 
 

 12.1
 Amendment or Termination of Plan 
 

 The Board may suspend, amend or terminate the Plan or any portion of the Plan at any time and in such respects as it shall deem advisable; provided, however, that, solely, to the extent required for compliance with Section 422 of the Code with respect to any outstanding Incentive Stock Option or any applicable law or regulation, stockholder approval shall be required for any amendment that would: (a) increase the total number of shares available for issuance under the Plan, (b) modify the class of employees eligible to receive Awards, or (c) otherwise require stockholder approval under any applicable law or regulation. Any amendment made to the Plan that would constitute a "modification" to Incentive Stock Options outstanding on the date of such amendment shall not, without the consent of the Participant, be applicable to such outstanding Incentive Stock Options but shall have prospective effect only. 
 

 12.2
 Term of Plan 
 

 Unless sooner terminated as provided herein, the Plan shall terminate ten (10) years after the earlier of the Plan's adoption by the Board and approval by the stockholders. 
 

 12.3
 Consent of Participant 
 

 The suspension, amendment or termination of the Plan or a portion thereof or the amendment of an outstanding Award shall not, without the Participant's consent, materially adversely affect any rights under any Award theretofore granted to the Participant under the Plan. Any change or adjustment to an outstanding Incentive Stock Option shall not, without the consent of the Participant, be made in a manner so as to constitute a "modification" that would cause such Incentive Stock Option to fail to continue to qualify as an Incentive Stock Option. Notwithstanding the foregoing, any adjustments made pursuant to Article 11 shall not be subject to these restrictions. 
 

 

 ARTICLE 13. 
 GENERAL 
 

 13.1
 Evidence of Awards 
 

 Awards granted under the Plan shall be evidenced by a written instrument that shall contain such terms, conditions, limitations and restrictions as the Plan Administrator shall deem advisable and that are not inconsistent with the Plan. 
 

 13.2
 No Individual Rights 
 

 Nothing in the Plan or any Award granted under the Plan shall be deemed to constitute an employment contract or confer or be deemed to confer on any Participant any right to continue in the employ of, or to continue any other relationship with, the Company or any Related Company or limit in any way the right of the Company or any Related Company to terminate a Participant's employment or other relationship at any time, with or without Cause. 
 

 

 

 


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 13.3
 Issuance of Shares 
 

 Notwithstanding any other provision of the Plan or any written instrument evidencing an Award, the Company shall have no obligation to issue or deliver any shares of Common Stock under the Plan or make any other distribution of benefits under the Plan unless the Plan Administrator determines, in its sole and absolute discretion, acting in good faith, that such issuance, delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the Securities Act), and the applicable requirements of any securities exchange or similar entity.  The Company may affix to any Awards or Common Stock issued pursuant to or under the Plan with such restrictive legends as the Plan Administrator may determine, in its sole and absolute discretion, to be necessary in order to ensure compliance with any applicable laws.
 

 The Company shall be under no obligation to any Participant to register for offering or resale or to qualify for exemption under the Securities Act, or to register or qualify under state securities laws, any shares of Common Stock, security or interest in a security paid or issued under, or created by, the Plan, or to continue in effect any such registrations or qualifications if made. The Company may issue certificates for shares with such legends and subject to such restrictions on transfer and stop-transfer instructions as counsel for the Company deems necessary or desirable for compliance by the Company with federal and state securities laws. 
 

 To the extent the Plan or any instrument evidencing an Award provides for issuance of stock certificates to reflect the issuance of shares of Common Stock, the issuance may be effected on a noncertificated basis, to the extent not prohibited by applicable law or the applicable rules of any stock exchange. 
 

 13.4
 No Rights as a Stockholder 
 

 No Award shall entitle the Participant to any cash dividend, voting or other right of a stockholder unless and until the date of issuance under the Plan of the shares that are the subject of such Award. 
 

 13.5
 Compliance With Laws and Regulations 
 

 Notwithstanding anything in the Plan to the contrary, the Plan Administrator, in its sole discretion, may bifurcate the Plan so as to restrict, limit or condition the use of any provision of the Plan to Participants who are officers or directors subject to Section 16 of the Exchange Act without so restricting, limiting or conditioning the Plan with respect to other Participants. Additionally, in interpreting and applying the provisions of the Plan, any Award granted as an Incentive Stock Option pursuant to the Plan shall, to the extent permitted by law, be construed as an "incentive stock option" within the meaning of Section 422 of the Code. 
 

 13.6
 Participants in Other Countries 
 

 The Plan Administrator shall have the authority to adopt such modifications, procedures and subplans as may be necessary or desirable to comply with provisions of the laws of other countries in which the Company or any Related Company may operate to assure the viability of the benefits from Awards granted to Participants employed in such countries and to meet the objectives of the Plan. 
 

 13.7
 No Trust or Fund 
 

 The Plan is intended to constitute an "unfunded" plan. Nothing contained herein shall require the Company to segregate any monies or other property, or shares of Common Stock, or to create any trusts, or to make any special deposits for any immediate or deferred amounts payable to any Participant, and no Participant shall have any rights that are greater than those of a general unsecured creditor of the Company. 
 

 


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 13.8
 Severability 
 

 If any provision of the Plan or any Award is determined to be invalid, illegal or unenforceable in any jurisdiction, or as to any person, or would disqualify the Plan or any Award under any law deemed applicable by the Plan Administrator, such provision shall be construed or deemed amended to conform to applicable laws, or, if it cannot be so construed or deemed amended without, in the Plan Administrator's determination, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, person or Award, and the remainder of the Plan and any such Award shall remain in full force and effect. 
 

 13.9
 Choice of Law 
 

 The Plan and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by the laws of the United States, shall be governed by the laws of the State of Delaware without giving effect to principles of conflicts of law. 
 

 

 ARTICLE 14. 
 EFFECTIVE DATE 
 

 14.1
 Effective Date of Plan
 

 The effective date is the date on which the Plan is adopted by the Board. If the stockholders of the Company do not approve the Plan within twelve (12) months after the Board's adoption of the Plan, any Incentive Stock Options granted under the Plan will be treated as Non-Qualified Stock Options. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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