Exhibit
10.4


 


VELTI PLC


 


2009 US
NON-EMPLOYEE SHARE INCENTIVE PLAN


 


SECTION 1.           GENERAL
PURPOSE OF THE PLAN; DEFINITIONS


 


The name of the plan is
the Velti Plc 2009 US Non-Employee Share Incentive Plan (the “Plan”).  The purpose of the Plan is to encourage and
enable the non-employee directors and Consultants (as defined below) of Velti
Plc, a company incorporated under the laws of Jersey with company number 103899
(the “Company”), and its Affiliates (as
defined below), upon whose judgment, initiative and efforts the Company largely
depends for the successful conduct of its business, to acquire a proprietary
interest in the Company.  It is
anticipated that providing such persons with a direct stake in the Company’s
welfare will assure a closer identification of their interests with those of
the Company, thereby stimulating their efforts on the Company’s behalf and
strengthening their desire to remain with and further the interests of the
Company.


 


The following terms shall
be defined as set forth below:


 


“Act”
means the U.S. Securities Act of 1933, as amended.


 


“Affiliate”
means a corporation which, for purposes of Section 424 of the Code, is a
parent or subsidiary of the Company, directly or indirectly.


 


“Award”
or “Awards” shall include Share Options,
Restricted Share Awards, and Unrestricted Share Awards, or any combination of
the foregoing.


 


“Board”
means the Board of Directors of the Company or its successor entity.


 


“Cause”
shall have the same meaning with respect to a Grantee as “Cause” may be defined
under any equity award, consulting, service, non-competition or other similar
agreement between the Grantee and the Company, provided, however, in the
absence of any such agreement or “Cause” definition applicable to the Grantee, “Cause”
shall mean: (i) any act or omission by the Grantee which would reasonably
be likely to have a material adverse effect on the business of the Company or
any of its Affiliates, as the case may be (but excluding any omission due to
the Grantee’s death or disability); (ii) the Grantee’s conviction
(including any pleas of guilty or nolo contendere) of any crime (other than
ordinary traffic violations) which impairs the Grantee’s ability to perform his
or her duties; (iii) any material misconduct or willful and deliberate
non-performance of duties by the Grantee in connection with the business or
affairs of the Company or any of its Affiliates, as the case may be; (iv) the
Grantee’s theft, dishonesty or falsification of the Company’s or an Affiliate’s
documents or records; or (v) the Grantee’s improper use or disclosure of
the Company’s or an Affiliate’s confidential or proprietary information.


 


“Code”
means the U.S. Internal Revenue Code of 1986, as amended.


 


“Committee”
has the meaning specified in Section 2.


 

















 


“Companies
Law” means the Companies (Jersey) Law 1991 (as amended).


 


“Company”
has the meaning specified in the first paragraph of Section 1.


 


“Consultant”
means a person engaged to provide consulting, advisory, or other services
(other than as an employee or director) to the Company or an Affiliate, provided
that the identity of such person, the nature of such services or the entity to
which such services are provided would not preclude the Company from offering
or selling securities to such person pursuant to the Plan in reliance on either
the exemption from registration provided by Rule 701 under the Act or, if
the Company is required to file reports pursuant to Section 13 or 15(d) of
the Exchange Act, registration on a Form S-8 Registration Statement under
the Act.


 


“Control”
means (in relation to a body corporate) the power of a person to secure (i) by
means of the holding of shares or the possession of voting power in or in
relation to that or any other body corporate, or (ii) by virtue of any
powers conferred by the articles of association or any other document
regulating that or any other body corporate, that the affairs of the
first-mentioned body corporate are conducted in accordance with the wishes of
that person, provided that for purposes of this definition a person shall
be deemed to have obtained Control of a company if that person and others
acting in concert with that person have together obtained Control of it.


 


“Disability”
has the meaning specified in Section 22(e)(3) of the Code.


 


“Effective
Date” has the meaning specified in Section 13.


 


“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.


 


“Fair
Market Value” of a Share means: (i) if the Shares are
listed on a securities exchange or traded in the over-the-counter market and
sales prices are regularly reported for the Shares, the closing or last price
of the Shares on the relevant securities exchange for the applicable date, or
if the applicable date is not a trading day, the last trading day immediately
preceding the applicable date; (ii) if the Shares are not traded on a
securities exchange but are traded on the over-the-counter market, if sales
prices are not regularly reported for the Shares for the day referred to in
clause (i), and if bid and asked prices for the Shares are regularly reported,
the mean between the bid and the asked price for the Shares at the close of
trading in the over-the-counter market for the applicable date, or if the
applicable date is not a trading day, the last trading day on which Shares were
traded immediately preceding the applicable date; and (iii) if the Shares are
neither listed on a securities exchange nor traded in the over-the-counter
market, such value as the Board, in good faith, shall determine (but in any
event not less than fair market value within the meaning of Section 409A
of the Code, and any regulations and other guidance thereunder).  For purposes of this definition, when
determining the Fair Market Value for the grant of an Award, “applicable date”
means the date of grant of the Award.


 


“Grantee”
means a person who receives or holds an Award under the Plan.


 


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“Option”
or “Share Option” means any right to
subscribe for new Shares granted pursuant to Section 5; provided that in
no event shall any such right qualify as an “incentive stock option” as defined
in Section 422(b) of the Code.


 


“Option
Agreement” means a written agreement between the Company and a
Grantee setting forth the terms, conditions and restrictions of an Option
granted to the Grantee and any Shares acquired upon the exercise thereof.  An Option Agreement may consist of a “Notice
of Grant of Share Option,” or such other form or forms as the Committee may
approve from time to time.


 


“Option
Shares” means new Shares which are issuable by the Company to a
Grantee upon exercise of a Share Option.


 


“Plan”
has the meaning specified in the first paragraph of Section 1.


 


“Restricted
Shares” has the meaning specified in Section 6(a).


 


“Restricted
Share Agreement” means a written agreement between the Company
and a Grantee setting forth the terms, conditions and restrictions of a
Restricted Share Award granted to the Grantee.


 


“Restricted
Share Award” means any Award of Restricted Shares hereunder.


 


“Service
Relationship” means a Grantee’s service with the Company or an
Affiliate, whether in the capacity of a non-employee director or a
Consultant.  Unless otherwise determined
by the Committee, a Grantee’s Service Relationship shall not be deemed to have
terminated merely because of a change in the capacity in which the Grantee
renders service to the Company (or an Affiliate) (from a non-employee director
to a Consultant, or from a Consultant to a non-employee director, but under no
circumstances to or from the capacity of an employee) or a transfer between
locations of the Company (or an Affiliate) or a transfer between the Company
and any Affiliate, provided that there is no interruption or other
termination of the Service Relationship. 
Subject to the foregoing and Section 9 below, the Company, in its
discretion, shall determine whether the Grantee’s Service Relationship has
terminated and the effective date of such termination.


 


“Share
Dealing Code” means the Company’s share dealing code from time
to time.


 


“Shares”
means ordinary shares, £0.05 par value, of the Company, subject to adjustment
pursuant to Section 3(b).


 


“Transaction”
has the meaning specified in Section 3(c).


 


“Unrestricted
Shares” has the meaning specified in Section 7(a).


 


“Unrestricted
Share Award” means any Award of Unrestricted Shares hereunder.


 


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SECTION 2.           ADMINISTRATION OF PLAN; COMMITTEE POWERS


 


(a)                                  Administration of Plan. 
The Plan shall be administered by the Board, or at the discretion of the
Board, by a committee of the Board consisting of not less than two (2) directors
(the “Committee).  All references herein to the Committee shall
be deemed to refer to the entity then responsible for administration of the
Plan at the relevant time (i.e., either the Board or a committee of the Board,
as applicable).


 


(b)                                 Powers of Committee. 
The Committee shall have the power and authority to grant Awards
consistent with the terms of the Plan, including the power and authority:


 


(i)            to
select the non-employee directors and Consultants of the Company and its
Affiliates to whom Awards may from time to time be granted;


 


(ii)           to determine the time or times of
grant, and the type of Award to be granted which shall include Share Options,
Restricted Share Awards, and Unrestricted Share Awards, or any combination of
the forgoing, granted to any one or more Grantees, provided that as long
as the Shares are admitted to trading on the Alternative Investment Market of
the London Stock Exchange, Awards may only be granted in accordance with the
Share Dealing Code and in circumstances which do not constitute “market abuse”
(within Section 118 of the United Kingdom’s Financial Services and Markets
Act 2000).  In addition, Awards may only
be granted (A) within the 42 days immediately succeeding (I) the date
on which this Plan is adopted by the Board or (II) the announcement of the
Company’s final or interim results in respect of any of its financial years; or
(B) within a period of 14 days immediately after the Grantee first becomes
a non-employee director or Consultant of the Company and its Affiliates; or (C) on
any day on which the Board resolves that exceptional circumstances exist which
justify the grant of an Award.


 


(iii)          to
determine the number of Shares to be covered by any Award;


 


(iv)          to
determine and modify from time to time the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award, which
terms and conditions may differ among individual Awards and Grantees, and to
approve the form of written instruments evidencing the Awards;


 


(v)           to
impose any limitations on Awards granted under the Plan, including limitations
on transfers, repurchase provisions and the like and to exercise repurchase
rights or obligations;


 


(vi)          subject
to the provisions of Section 5(a)(ii), to extend at any time the period in
which Share Options may be exercised;


 


(vii)         to
determine at any time whether, to what extent, and under what circumstances
distribution or the receipt of Shares and other amounts payable with respect to
an Award shall be deferred either automatically or at the election of the
Grantee and whether and to what extent the Company shall pay or credit
dividends or deemed dividends on such deferrals; and


 


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(viii)        at
any time to adopt, alter and repeal such rules, guidelines and practices for
the administration of the Plan and for its own acts and proceedings as it shall
deem advisable; to interpret the terms and provisions of the Plan and any Award
(including related written instruments); to make all determinations it deems
advisable for the administration of the Plan; to decide all disputes arising in
connection with the Plan; and to otherwise supervise the administration of the
Plan.


 


All decisions and interpretations
of the Committee shall be binding on all persons, including the Company, its
Affiliates, the Company’s shareholders and Grantees.


 


(c)           Delegation
of Authority to Grant Awards.  The
Committee, in its discretion, may delegate to the senior management of the
Company all or part of the Committee’s authority and duties with respect to the
granting of Awards to certain individuals. 
The Committee may revoke or amend the terms of a delegation at any time
but such action shall not invalidate any prior actions of the Committee’s
delegate or delegates that were consistent with the terms of the Plan.


 


SECTION 3.           SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION


 


(a)           Shares Issuable.  The maximum aggregate number of Shares
reserved and available for issuance under the Plan shall be 50,000 Shares,
provided that the Shares in respect of which any Award may be made under the
Plan shall not, when added to the number of Shares over which awards have been
granted over the previous 3 years under any other equity incentive plan adopted
by the Company or Velti Plc (incorporated in England and Wales under company
number 5552480), exceed such number as represents 10% of the ordinary share
capital of the Company in issue immediately prior to any proposed Award hereunder.  The foregoing share numbers are subject to
adjustment as provided in Section 3(b). 
For purposes of this Section 3(a), the Shares underlying any Awards
which are forfeited, canceled, reacquired by the Company, satisfied without the
issuance of Shares or otherwise terminated (other than by exercise) shall be
added back to the Shares available for issuance under the Plan.


 


To
the extent required by Section 260.140.45 of Title 10 of the California
Code of Regulations, the total number of Shares issuable upon exercise of all
outstanding Options and the total number of shares reserved and available for
issuance under any share bonus or similar plan or agreement of the Company
shall not exceed the applicable percentage as calculated in accordance with the
conditions and exclusions of Section 260.140.45 of Title 10 of the
California Code of Regulations, based on the securities of the Company that are
outstanding at the time the calculation is made.


 


(b)           Changes
in Shares.  Subject to Section 3(c) hereof,
if, as a result of any reorganization, recapitalization, reclassification,
share dividend, share split, reverse share split or other similar change in the
Company’s capital shares, the outstanding Shares are increased or decreased or
are exchanged for a different number or kind of shares or other securities of
the Company, or additional shares or new or different shares or other
securities of the Company or other non-cash assets are distributed with respect
to such Shares or other securities, or, if, as a result of any merger,
consolidation or sale of all or substantially all of the assets of the Company,
the outstanding Shares are converted into or exchanged for a different number
or kind of 


 


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securities of the Company or any successor entity (or a parent or
subsidiary thereof), the Committee shall make an appropriate or proportionate
adjustment in (i) the maximum number of shares reserved for issuance under
the Plan, (ii) the number and kind of shares or other securities subject
to any then outstanding Awards under the Plan, (iii) the repurchase price
per share for each outstanding Restricted Share Award, and (iv) the
exercise price of any Share Option.  The
adjustment by the Committee shall be final, binding and conclusive.  No fractional Shares shall be issued under
the Plan resulting from any such adjustment, but the Committee in its
discretion may either make a cash payment in lieu of fractional shares or round
any resulting fractional share down to the nearest whole number.


 


To the extent that the
Committee, in its sole discretion, determines it is necessary in order to avoid
distortion in the operation of the Plan, the Committee shall also adjust the
number of shares subject to outstanding Awards and the exercise price and the
terms of outstanding Awards to take into consideration material changes in
accounting practices or principles, extraordinary dividends, and certain
acquisitions or dispositions of shares or property or other similar events.


 


(c)           Mergers and Other Transactions.  Upon the effectiveness of (i) a change
in Control of the Company as a result of a person making a general offer to
acquire the whole of the issued ordinary share capital of the Company, or (ii) a
person acquiring or becoming unconditionally bound to or entitled to acquire
Shares under Part 18 of the Companies Law, or (iii) any court
sanctioning a compromise or arrangement under Part 18A of the Companies
Law, or (iv) the Company being wound up by way of summary winding up (in
each case, a “Transaction”), unless
provision is made in connection with the Transaction, to the extent applicable,
for (x) the assumption of all outstanding Awards, or (y) the substitution
of such Awards with new Awards of the successor entity or parent thereof, with
appropriate adjustment as to the number and kind of shares and, if appropriate,
the per share exercise prices, as provided in Section 3(b) above, or (z) the
equitable settlement of such Awards in cash or cash equivalents (i.e., “cash
out” provision), all outstanding Awards granted under the Plan shall continue
to vest and be exercisable to the extent that they have vested for the periods
set out below in this Section, following which the Awards will lapse.  The relevant vesting periods referenced above
in this Section are (I) 6 months following a general offer within Section 3(c)(i) above
becoming wholly unconditional, or (II) 1 month following a person becoming
bound or entitled to acquire Shares within Section 3(c)(ii) above, or
(III) 1 month following the date on which a court sanctions a compromise
or arrangement within Section 3(c)(iii) above, or (IV) 1 month
after the Board passes a resolution to wind-up the Company by way of summary
winding up.  In the Board’s sole
discretion, the vesting and exercisability of all, or a specified portion of,
outstanding Awards may be accelerated in the event of a Transaction.  If a Grantee exercises an Option within 1
month after the Board passes a resolution to voluntarily wind-up the Company by
way of summary winding-up, the Grantee shall be entitled to share in the assets
of the Company with existing holders of Shares in the same manner as the
Grantee would have been entitled if the Shares had been registered in the
Grantee’s name before the resolution was passed.


 


(d)           Dissolution
or Liquidation.  In the event of a
dissolution or liquidation of the Company other than as set out in Section 3(c)(iv) above
or the declaration of the property of the


 


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Company en desastre, any outstanding Awards issued under the Plan shall
be terminated if not exercised prior to such event.


 


(e)                                  Substitute Awards. 
The Committee may grant Awards under the Plan in substitution for shares
and share-based awards held by non-employee directors or consultants of another
company in connection with a merger or consolidation of such company with the
Company (or any Affiliate of the Company) or the acquisition by the Company (or
any Affiliate of the Company) of property or shares of such company.  In connection with any such merger,
consolidation or acquisition, the Committee may direct that the substitute
Awards be granted on such terms and conditions as the Committee considers
appropriate in the circumstances.  Any
substitute Awards granted under the Plan shall not count against the share
limitation set forth in Section 3(a) above.


 


SECTION 4.           ELIGIBILITY


 


Awards may only be
granted to non-employee directors and Consultants of the Company and/or its
Affiliates who are responsible for, or contribute to, the management, growth or
profitability of the Company and/or its Affiliates as are selected from time to
time by the Committee in its sole discretion.


 


SECTION 5.           SHARE OPTIONS


 


Any Share Option granted
under the Plan shall be pursuant to an Option Agreement which shall be in such
form as the Committee may from time to time approve.  Option Agreements need not be identical.


 


(a)                                  Terms of Share Options. 
Share Options granted under the Plan shall be subject to the following
terms and conditions and shall contain such additional terms and conditions,
not inconsistent with the terms of the Plan, as the Committee shall deem
desirable:


 


(i)            Exercise
Price.  The exercise price per Share
covered by a Share Option (being the subscription price payable to the Company
in consideration for the issue of the relevant Shares) shall be determined by
the Committee at the time of grant, provided however that in no event may the
exercise price per Share be less than the nominal value of the Shares.


 


(ii)           Option
Term.  The term of each Share Option
shall be fixed by the Committee, but no Share Option shall be exercisable more
than ten (10) years after the date the Share Option is granted.


 


(iii)          Exercisability; Rights of a
Shareholder.  Share Options shall
become exercisable at such time or times, whether or not in installments, as
shall be determined by the Committee and set forth in the Option Agreement
evidencing such Option.  Notwithstanding
any other provision of this Plan or any Option Agreement, as long as the Shares
are admitted to trading on the Alternative Investment Market of the London
Stock Exchange, Options may only be exercised in accordance with the Share
Dealing Code and in circumstances which do not constitute “market abuse”
(within Section 118 of the United Kingdom’s Financial Services and


 


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Markets Act 2000).  In addition, the following provisions shall
apply to each Option, unless otherwise provided in an applicable Option
Agreement or in the Plan:


 


(A)          No portion of an Option may be
exercised until such portion shall have vested.


 


(B)           An Option shall be exercisable on and
after the initial vesting date (as designated in the Option Agreement) and
prior to the termination of the Option as provided herein, in an amount not to
exceed the aggregate number of vested Option Shares (as determined in the
Option Agreement) less the number of shares previously issued by the Company
upon exercise of such Option.  Subject to
Section 3(b), in no event shall an Option be exercisable for more than the
total number of Option Shares underlying the Option.


 


(C)           In the event that the Grantee’s
Service Relationship terminates, an Option may thereafter be exercised (subject
to Section 3(c)) to the extent it was vested and exercisable on the date
of such termination, until the date specified in Section 5(a)(iii)(D) below.  Any portion of an Option that is not
exercisable on the date of termination of the Service Relationship shall
immediately expire and be null and void provided that the Board may (in its
sole discretion) permit an unvested Award to vest either in full or in part (as
the Board may decide) in the event that the Grantee’s Service Relationship
terminates by reason of death or Disability, the company by which the Grantee is
serving ceases to be an Affiliate or any other reason at the sole discretion of
the Board other than Cause.


 


(D)          Once any portion of an Option becomes
vested and exercisable, subject to Section 3(c), it shall continue to be
exercisable by the Grantee or his or her representatives and legatees as
contemplated herein at any time or times prior to the earliest of (1) the
date which is (a) twelve (12) months following the date on which the
Grantee’s Service Relationship terminates due to death or Disability or (b) three
(3) months following the date on which the Grantee’s Service Relationship
terminates if the termination is due to any other reason, or (2) the
expiration date set forth in the Option Agreement, following which, to the
extent that it has not been exercised, the Option shall lapse; provided,
however, that notwithstanding the foregoing, if the Grantee’s Service
Relationship is terminated for Cause, the Option shall terminate immediately
and be null and void upon the date of the Grantee’s termination and shall not
thereafter be exercisable.


 


(E)           A Grantee shall have no rights of a
shareholder with respect to any shares covered by the Option until the date of
the issuance of the shares for which the Option has been exercised (as
evidenced by an appropriate entry on the books of the Company).  No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date
such shares are issued, expect as provided in Section 3(b).


 


(iv)                              Method of Exercise. 
Share Options may be exercised in whole or in part, by giving written
notice of exercise to the Company, specifying the number of Shares to be
subscribed for by the Grantee.  Payment
of the exercise price may be made by one or more of the following methods unless
otherwise provided in the applicable Option Agreement:


 


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(A)          in cash, by certified or bank check,
or other instrument acceptable to the Committee in U.S. funds payable to the
order of the Company in an amount equal to the exercise price of such Option
Shares;


 


(B)           by the Grantee
delivering to the Company a promissory note in a form approved by the
Committee, if the Committee has expressly authorized the loan of funds to the
Grantee for the purpose of enabling or assisting the Grantee to effect the
exercise of his or her Share Option;


 


(C)           if permitted by the Committee, by the
Grantee delivering to the Company a properly executed Exercise Notice together
with irrevocable instructions to a broker to promptly deliver to the Company
cash or a check payable and acceptable to the Company to pay the subscription
price payable for the relevant Shares, provided that in the event the
Grantee chooses such payment procedure, the Grantee and the broker shall comply
with such procedures and enter into such agreements of indemnity and other
agreements as the Committee shall prescribe as a condition of such payment
procedure; or


 


(D)          a combination of the payment methods
set forth in clauses (A), (B) or (C) above, if applicable.


 


Payment instruments will
be received subject to collection.  No
Option Shares will be issued to the Grantee until the Company has completed all
steps required by law to be taken in connection with the issuance of the
shares, including, without limitation, obtaining from Grantee payment or
provision for all withholding taxes due as a result of the exercise of the
Share Option, but only to the extent such withholding is required by law.  The issue of Option Shares pursuant to the
exercise of a Share Option will be contingent upon receipt from the Grantee (or
a purchaser acting in his or her stead in accordance with the provisions of the
Share Option) by the Company of the full exercise price therefor.


 


(b)           Non-transferability of Options.  No Share Option shall be transferable by the
Grantee otherwise than by will or by the laws of descent and distribution and all
Share Options shall be exercisable, during the Grantee’s lifetime, only by the
Grantee, or by the Grantee’s legal representative or guardian in the event of
the Grantee’s incapacity. 
Notwithstanding the foregoing, the Committee, in its sole discretion,
may provide in the Option Agreement regarding a given Option that the Grantee
may transfer, without consideration for the transfer, his or her Share Options
to members of his or her immediate family by gift or domestic relations order,
to trusts for the benefit of such family members provided that such family
members have more than 50% of the beneficial interest of such trusts, or to
partnerships in which such family members are the only partners, or to limited
liability companies in which such family members are the only members, provided
that the transferee agrees in writing with the Company to be bound by all of
the terms and conditions of this Plan and the applicable Option Agreement.  For purposes of the Plan, “immediate family”
shall mean, with respect to any Grantee, his or her wife, husband, children or
step-children (under the age of 20 years).


 


(c)           Repurchase Rights.  Subject to the Companies Law, Shares issued
pursuant to Options may be subject to one or more repurchase options or other
conditions and restrictions as


 


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determined by the
Committee and set forth in the applicable Option Agreement.  The Company shall have the right to assign to
any person at any time any repurchase right it may have, whether or not such
right is then exercisable.  To the extent
required, any repurchase rights shall comply with Section 260.140.8 of
Title 10 of the California Code of Regulations.


 


SECTION 6.                                RESTRICTED SHARE AWARDS


 


(a)           Nature
of Restricted Share Awards.  A
Restricted Share Award is an Award pursuant to which the Company may, in its
sole discretion, issue at such subscription price as determined by the
Committee in its sole discretion (but which shall be not less than the
aggregate par value of the Shares that are to be issued by the Company in
satisfaction of the Award), Shares subject to such restrictions and conditions
as the Committee may determine at the time of issue (“Restricted
Shares”), and any subscription price shall be payable in cash
or, if permitted by the Committee at the time of grant of such Award, by
promissory note, in a form approved by the Committee.  Conditions may be based on continuing service
and/or achievement of pre-established performance goals and objectives.  The issue of Shares subject to a Restricted
Share Award is contingent on the Grantee executing a Restricted Share
Agreement.  The terms and conditions of
each such Restricted Share Agreement shall be determined by the Committee, and
such terms and conditions may differ among individual Awards and Grantees.


 


(b)           Rights
as a Shareholder.  Upon execution of
the Restricted Share Agreement and payment of the applicable subscription
price, a Grantee shall have the rights of a shareholder with respect to the
voting of the Restricted Shares, subject to such conditions contained in the
Restricted Share Agreement.  Unless the
Committee shall otherwise determine, certificates (if any) evidencing the
Restricted Shares shall remain in the possession of the Company until such
Restricted Shares is vested as provided in Section 6(d) below, and the
Grantee shall be required, as a condition of the grant, to deliver to the
Company a stock transfer form if the Shares are in certificated form endorsed
in blank.


 


(c)           Restrictions.  Subject to Regulation 260.140.42(b) of
Title 10 of the California Code of regulations, to the extent applicable,
Restricted Shares may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of except as specifically provided herein or in the Restricted
Shares Agreement.  Subject to the
Companies Law, Shares issued pursuant to a Restricted Share Award may be
subject to a right of first refusal, one or more repurchase options, or other
conditions and restrictions as determined by the Committee and set forth in the
applicable Restricted Share Agreement. 
The Company shall have the right to assign to any person at any time any
repurchase right it may have, whether or not such right is then exercisable.


 


(d)           Vesting
of Restricted Shares.  The Committee
at the time of issue of any Shares subject to a Restricted Share Award shall
specify the date or dates and/or the attainment of pre-established performance
goals, objectives and other conditions on which Restricted Shares shall become
vested, subject to such further rights of the Company or its assigns as may be
specified in the Restricted Share Agreement. 
To the extent required, any repurchase rights shall comply with Section 260.140.8
of Title 10 of the California Code of Regulations.


 


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(e)           Waiver,
Deferral and Reinvestment of Dividends. 
The Restricted Share Agreement may require or permit the immediate
payment, waiver, deferral or investment of dividends paid on the Restricted
Shares.


 


SECTION 7.                                UNRESTRICTED SHARE AWARDS


 


(a)           Grant
or Sale of Unrestricted Share.  The
Committee may, in its sole discretion, issue, at such subscription price as
determined by the Committee (but which shall be not less than the aggregate par
value of the Shares that are to be issued by the Company in satisfaction of the
Award), an Unrestricted Share Award to any Grantee, pursuant to which such
Grantee may be issued Shares free of any vesting restrictions (“Unrestricted Shares”) under the
Plan.  Unrestricted Share Awards may be
issued by the Company to a Grantee as described in the preceding sentence in
respect of past services or other valid consideration, or in lieu of any cash
compensation due to such individual.


 


(b)           Restrictions
on Transfers.  The right to be issued
Unrestricted Shares on a deferred basis may not be sold, assigned, transferred,
pledged or otherwise encumbered, other than by will or the laws of descent and
distribution.


 


SECTION 8.                                TAX WITHHOLDING


 


(a)           Payment
by Grantee.  To the extent
applicable,  each Grantee shall no later
than the date as of which the value of an Award or of any Shares or other
amounts received thereunder first becomes includable in the gross income of the
Grantee for federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of, any U.S. federal, state,
foreign, or local taxes of any kind required by law to be withheld with respect
to such income.  The Company and its
Affiliates shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the Grantee.


 


(b)           Payment
in Shares.  Subject to approval by
the Committee, a Grantee may elect to have the minimum required tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the Company
to withhold from Shares to be issued pursuant to any Award a number of shares
with an aggregate Fair Market Value (as of the date the withholding is
effected) that would satisfy the withholding amount due, or (ii) transferring
to the Company Shares owned by the Grantee with an aggregate Fair Market Value
(as of the date the withholding is effected) that would satisfy the withholding
amount due.  The Fair Market Value of any
Shares withheld or tendered to satisfy any such tax withholding obligation
shall not exceed the amount determined by the applicable minimum statutory
withholding rates.


 


SECTION 9.                                LEAVE OF ABSENCE


 


For purposes of the Plan,
the following events shall not be deemed a termination of the Service
Relationship:


 


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(a)           an
approved leave of absence for military service or sickness, or for any other
purpose approved by the Company; provided, however, that if any
such leave exceeds ninety (90) days, on the ninety-first (91st) day of such leave, the Grantee’s Service
Relationship shall be deemed to have terminated unless the Grantee’s right to
return to service is guaranteed either by a statute or by contract; and


 


(b)           notwithstanding
the foregoing, unless otherwise designated by the Company or required by law, a
leave of absence shall not be treated as service for purposes of determining
vesting under the Grantee’s Option Agreement or Restricted Share Agreement.


 


SECTION 10.                          AMENDMENTS AND TERMINATION


 


The Board may, at any
time, amend or terminate the Plan or any outstanding Award, but no such action
shall adversely affect rights under any outstanding Award without the holder’s
consent unless required to comply with applicable law.  Except as
herein provided, no such action of the Board, unless taken with the approval of
the shareholders of the Company, may (a) increase the maximum aggregate
number of Shares for which Awards granted under this Plan may be issued (except
by operation of Section 3(b)) or (b) amend the Plan in any manner
which the Board, in its discretion, determines would require approval of the
shareholders under any applicable law, rule or regulation to become
effective even though such shareholder approval is not expressly required by
this Plan.  No termination or amendment
of the Plan shall affect any outstanding Award unless as expressly provided for
hereunder or as determined by the Board. 
Nothing in this Section 10  shall
limit the Board’s or the Committee’s authority to take any action permitted pursuant
to Section 3(c).  The Plan shall
continue in effect until the earliest of: (i) ten (10) years after
the Effective Date, (ii) its termination by the Board, or (iii) the
date on which all of the Shares available for issuance under the Plan have been
issued and all restrictions on such shares under the terms of the Plan, the
Option Agreements and Restricted Share Agreements have lapsed.


 


SECTION 11.                          STATUS OF PLAN


 


With respect to the
portion of any Award that has not been exercised and any payments in cash,
Shares or other consideration not received by a Grantee, a Grantee shall have
no rights greater than those of a general creditor of the Company unless the
Committee shall otherwise expressly determine in connection with any Award or
Awards.  In its sole discretion, the
Committee may authorize the creation of trusts or other arrangements to meet
the Company’s obligations to deliver Shares or make payments with respect to
Awards hereunder, provided that the existence of such trusts or other
arrangements is consistent with the foregoing sentence.


 


SECTION 12.                          GENERAL PROVISIONS


 


(a)           No
Distribution; Compliance with Legal Requirements.  The grant of Awards and the issuance of
Shares upon exercise of Awards shall be subject to compliance with all
applicable requirements of U.S. federal, state and foreign law, including
Jersey Law, with respect to such securities, including the requirements of any
stock exchange on which the Shares may then be listed.  Awards may not be exercised if the issuance
of Shares upon exercise would


 


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constitute a violation of any applicable U.S. federal, state or foreign
securities laws, including Jersey Law, or other law or regulations or the
requirements of any stock exchange or market system upon which the Shares may
then be listed.  In addition, no Award
may be exercised unless: (i) a registration statement under the Act shall
at the time of exercise of the Award be in effect with respect to the Shares
issuable upon exercise of the Award, or (ii) in the opinion of legal
counsel to the Company, the Shares issuable upon exercise of the Award may be
issued in accordance with the terms of an applicable exemption from the
registration requirements of the Act. 
The inability of the Company to obtain from any regulatory body having
jurisdiction the authority, if any, deemed by Company’s legal counsel to be
necessary to the lawful issuance and sale of any shares hereunder shall relieve
the Company of any liability in respect of the failure to issue or sell such
shares as to which such requisite authority shall not have been obtained.  As a condition to the exercise of any Award,
the Company may require the Grantee to satisfy any qualifications that may be
necessary or appropriate, to evidence compliance with any applicable law or
regulation and to make any representation or warranty with respect thereto as
may be requested by the Company.


 


(b)           Other
Compensation Arrangements; No Service Rights.  Nothing contained in this Plan shall prevent
the Committee from adopting other or additional compensation arrangements,
including trusts, and such arrangements as may be either generally applicable
or applicable only in specific cases. 
The adoption of this Plan and the grant of Awards do not confer upon any
Grantee any right to continued service with the Company or any Affiliate of the
Company or interfere in any way with the right of the Company or its Affiliates
to terminate the Grantee’s service at any time.


 


(c)           “Market
Stand-Off” Agreement.  In connection
with any public offering by the Company of its Shares, a Grantee, if requested
in good faith by the Company and the managing underwriter of the Company’s
securities, shall not, directly or indirectly, offer, sell, pledge, contract to
sell (including any short sale), grant any option to purchase or otherwise
dispose of any securities of the Company held by him (except for any securities
sold pursuant to such registration statement) or enter into any Hedging
Transaction (as defined below) relating to any securities of the Company for a
period determined by the managing underwriter. 
For these purposes, “Hedging Transaction”
means any short sale (whether or not against the box) or any purchase, sale or
grant of any right (including without limitation, any put or call option) with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from the
Company’s Shares.


 


(d)           Trading
Policy Restrictions.  Sale of Shares
received pursuant to this Plan or upon exercise of an Award under the Plan
shall be subject to any insider-trading-policy-related restrictions of the
Company, and any other terms and conditions as may be established by the
Committee from time to time.


 


(e)           Conflict
with Agreement.  In the event of a
conflict between the terms and provisions of this Plan and the terms and
provisions of any Restricted Share Agreement, Option Agreement or other award
agreement, the terms and provisions of this Plan shall govern.


 


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SECTION 13.         EFFECTIVE
DATE OF PLAN


 


The Plan is effective on 14 September, 2009  (the “Effective Date”),
the date on which the Board adopted the Plan, subject to approval by the
shareholders of the Company in the manner and within the time required under Section 260.140.41(g)
of Title 10 of the California Code of Regulations.  Any increase in the maximum aggregate number
of Shares issuable under the Plan pursuant to Section 3(a) shall be
approved by the shareholders of the Company within twelve (12) months of
approval of such increase by the Board in accordance with applicable law.  Subject to such approvals by the shareholders
and to the requirement that no Shares may be issued hereunder prior to such
approval, Awards may be granted hereunder on and after adoption of the Plan by
the Board.


 


No Awards shall be
granted under the Plan after the date which is ten (10) years  from the date the Plan is approved by the Board.


 


SECTION 14.         GOVERNING
LAW


 


This Plan and all Awards,
and actions taken hereunder and thereunder, shall be governed by and construed
in accordance with the laws of England and Wales, applied without regard to
conflict of law principles thereof.


 


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