Attached files
file | filename |
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10-Q - FORM 10-Q - IVANHOE ENERGY INC | c20254e10vq.htm |
EX-1.1 - EXHIBIT 1.1 - IVANHOE ENERGY INC | c20254exv1w1.htm |
EX-4.1 - EXHIBIT 4.1 - IVANHOE ENERGY INC | c20254exv4w1.htm |
EX-32.1 - EXHIBIT 32.1 - IVANHOE ENERGY INC | c20254exv32w1.htm |
EX-31.1 - EXHIBIT 31.1 - IVANHOE ENERGY INC | c20254exv31w1.htm |
EX-32.2 - EXHIBIT 32.2 - IVANHOE ENERGY INC | c20254exv32w2.htm |
EX-31.2 - EXHIBIT 31.2 - IVANHOE ENERGY INC | c20254exv31w2.htm |
Exhibit 10.1
RESTRICTED SHARE UNIT PLAN
The Board of Directors of Ivanhoe Energy Inc. (the Company) has established this Restricted
Share Unit Plan (the Plan) for the Company governing the issuance of Restricted Share Units (as
defined herein) of the Company to Service Providers (as defined herein) of the Company and its
Affiliates (as defined herein).
1. | Purposes |
|
The principal purposes of the Plan are as follows: |
(a) | to strengthen the ability of the Company to attract and retain qualified
Service Providers which the Company and its Affiliates require; |
(b) | to align the interests of Service Providers with the interests of the Companys
shareholders; and |
(c) | to focus management of the Company and its Affiliates on operating and
financial performance and total long-term shareholder return by providing an increased
incentive to contribute to the Companys growth and profitability. |
2. | Definitions |
As used in this Plan, the following words and phrases shall have the meanings indicated:
(a) | Accelerated Vesting Event means, in respect of a Grantee, a Termination
Without Cause occurring within six months of the effective time of a Change of Control; |
(b) | Affiliate has the meaning set forth in Section 1(2) of the Securities Act
(Ontario), as amended, and includes those issuers that are similarly related, whether
or not any of the issuers are corporations, companies, partnerships, limited
partnerships, trusts, income trusts or investment trusts or any other organized entity
and, for the purposes of this Plan, a reference to an Affiliate shall mean an Affiliate
of the Company within such meaning; |
(c) | Board means the board of directors of the Company as it may be constituted
from time to time; |
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(d) | Change of Control means an event pursuant to which: |
(i) | a merger, amalgamation, arrangement, consolidation,
reorganization or transfer takes place in which securities of the Company
having more than 50% of the total combined voting power of the Companys
outstanding voting securities are acquired by a person or persons different
from the persons holding those voting securities immediately prior to such
event, and the composition of the Board following such event is such that the
directors of the Company prior to the transaction constitute less than 50% of
the Board membership following the event; or |
(ii) | any person, or any combination of persons acting jointly or in
concert by virtue of an agreement, arrangement, commitment, or understanding
acquires, directly or indirectly, 50% or more of the voting rights attached to
all outstanding voting securities; or |
(iii) | any person or any combination of persons acting jointly or in
concert by virtue of an agreement, arrangement, commitment or understanding
acquires, directly or indirectly, the right to appoint a majority of the
directors of the Company; or |
(iv) | the Company sells, transfers or otherwise disposes of all or
substantially all of its assets, except that no Change of Control will be
deemed to occur if such sale or disposition is made to a subsidiary or
subsidiaries of the Company; |
(e) | Committee has the meaning set forth in Section 3 hereof; |
(f) | Consultant means a person or company, other than an employee, executive
officer or director of the Company or an Affiliate that: |
(i) | is engaged to provide services to the Company or an Affiliate; |
(ii) | provides services under a written contract with the Company or
an Affiliate; and |
(iii) | spends or will spend a significant amount of time and
attention on the affairs and business of the Company or an Affiliate; |
and includes, for an individual Consultant, a company of which the individual
Consultant is an employee or shareholder and a partnership of which the individual
Consultant is an employee or a partner;
(g) | Disability means a physical or mental incapacity of the Grantee that has
prevented the Grantee from performing the duties customarily assigned to the Grantee
for one hundred and eighty (180) days, whether or not consecutive, out of any twelve
(12) consecutive months and that are in the opinion of the Board likely to continue; |
(h) | Exchange means the principal stock exchange upon which the Shares are listed
or upon which the Shares have been approved for listing; |
(i) | Fair Market Value means, with respect to a Share on any date, the weighted
average price of the Shares on the Exchange for the five days on which Shares were
traded immediately preceding that date; provided that if the Shares are not listed for
trading on a stock exchange on such date, the Fair Market Value shall be the price per
Share as the Board, acting in good faith, may determine; |
(j) | Grant Date means the effective date of the granting of a Unit Award as is
specified in the applicable Unit Award Agreement between the Company to the Grantee; |
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(k) | Grantee has the meaning set forth in Section 4 hereof; |
(l) | Performance Measures for any fiscal year or other period that the Board in
its sole discretion shall determine, means the performance measures to be taken into
consideration in awarding Restricted Share Units under the Plan; |
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(m) | Plan Trustee means a Plan Trustee appointed by the Company pursuant to the
terms of an employee benefit plan trust agreement providing for contributions by the
Company to a trust created thereunder for the purpose of purchasing Shares on the open
market to be delivered to holders of Unit Awards pursuant to Section 5(c)(iii); |
(n) | Restricted Share Unit means the right of a Grantee to receive a Share or a
cash payment on the Vesting Date of such Restricted Share Unit, subject to adjustment
pursuant to the provisions of Section 5, in the manner and subject to the terms and
provisions set forth in the Plan and the applicable Unit Award Agreement; |
(o) | Retirement shall have such meaning as the Committee or the Board shall
determine from time to time; |
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(p) | Service Provider has the meaning set forth in Section 4 hereof; |
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(q) | Shareholder means a holder of Shares; |
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(r) | Shares means common shares in the capital of the Company; |
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(s) | Termination Without Cause has the meaning set forth in Section 5 hereof; |
(t) | Trust Fund means one or more trust funds, as specified by the Committee,
established by the Company for the purpose of funding Unit Awards granted pursuant to
the Plan; |
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(u) | Unit Award means an award of Restricted Share Units under the Plan; |
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(v) | Unit Award Agreement has the meaning set forth in Section 5 hereof; and |
(w) | Vesting Date means, with respect to any Restricted Share Unit, the date,
determined in accordance with Section 5(b), upon which the Shares or cash to be
received thereunder shall become deliverable to the Grantee of such Restricted Share
Unit. |
3. | Administration |
The Plan shall be administered by the Board or by such committee as the Board delegates such
authority to from time to time (either the Board or such committee of the Board shall be referred
to as the Committee and any reference to the Board shall include a reference to the Committee, as
the context may require). The Committee shall have the authority in its discretion, subject to and
not inconsistent with the express provisions of the Plan, to administer the Plan and to exercise
all the powers and authorities either specifically granted to it under the Plan or necessary or
advisable in the administration of the Plan, including, without limitation, the authority:
(a) | to make Unit Awards; |
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(b) | to determine the Fair Market Value of the Shares on any date; |
(c) | to determine the Service Providers to whom, and the time or times at which,
Unit Awards shall be granted; |
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(d) | to determine the number of Restricted Share Units to be awarded pursuant to
each Unit Award; |
(e) | to determine the Vesting Dates of the Restricted Share Units provided that the
Vesting Date for all Restricted Share Units granted under a particular Unit Award shall
not be later than November 30 of the third year following the year in which the
particular Unit Award was made; |
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(f) | to prescribe, amend and rescind rules and regulations relating to the Plan; |
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(g) | to interpret the Plan; |
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(h) | to appoint or replace the Plan Trustee; |
(i) | to determine the terms and provisions of Unit Award Agreements (which need not
be identical) entered into in connection with Unit Awards; and |
(j) | to make all other determinations deemed necessary or advisable for the
administration of the Plan. |
The Committee may delegate to one or more of its members or to one or more agents such
administrative duties as it may deem advisable, including without limitation, to a third-party
agent or trustee, including the Plan Trustee the authority to acquire Shares for delivery to
Grantees in accordance with the Plan, and the Committee or any person to whom it has delegated
duties as aforesaid may employ one or more persons to render advice with respect to any
responsibility the Committee or such person may have under the Plan.
For greater certainty and without limiting the discretion conferred on the Committee pursuant
to this Section, the Committees decision to approve the grant of a Unit Award in any year shall
not require the Committee to approve the grant of a Unit Award to any Service Provider in any other
year; nor shall the Committees decision with respect to the size or terms and conditions of a Unit
Award in any year require it to approve the grant of a Unit Award of the same size or with the same
terms and conditions to any Service Provider in any other year. The Committee shall not be
precluded from approving the grant of a Unit Award to any Service Provider solely because such
Service Provider may previously have been granted a Unit Award under this Plan or any other similar
compensation arrangement of the Company or an Affiliate. No Service Provider has any claim or right
to be granted a Unit Award.
4. | Eligibility and Award Determination |
Unit Awards may only be granted to full-time and part-time employees, senior officers,
directors or Consultants of the Company or an Affiliate (collectively, Service Providers);
provided, however, that the participation of a Service Provider in the Plan is voluntary. In
determining the Service Providers to whom Unit Awards may be granted (Grantees) and the number of
Restricted Share Units to be awarded pursuant to each Unit Award, the Committee may take into
account the following factors:
(a) | compensation data for comparable benchmark positions among the Companys
competitors; |
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(b) | the duties and seniority of the Service Provider; |
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(c) | the performance of the Service Provider in the prior year relevant to the
Performance Measures of the Company for the relevant performance period; |
(d) | individual and/or departmental contributions and potential contributions to the
success of the Company; and |
(e) | such other factors as the Committee shall deem relevant in connection with
accomplishing the purposes of the Plan. |
5. | Terms and Conditions of Unit Awards |
Each Unit Award granted under the Plan shall be subject to the terms and conditions of the
Plan and evidenced by an agreement between the Company and the Grantee (a Unit Award Agreement),
which agreement shall comply with, and be subject to, any applicable requirements of the Exchange
and the following terms and conditions (and with such other terms and conditions not inconsistent
with the terms of this Plan as the Committee, in its discretion, shall establish):
(a) | Number of Restricted Share Units The Committee shall determine the
number of Restricted Share Units to be awarded to a Grantee pursuant to the Unit Award
in accordance with the provisions set forth in Section 4 of the Plan. |
(b) | Vesting Date Subject to Section 3(e) and the remaining provisions of
this Section 5, with respect to any Unit Award, the Restricted Share Units thereunder
shall vest as follows: |
(i) | as to 33 1/3 % of the Restricted Share Units with respect to
such Unit Award on the first anniversary of the Grant Date; |
(ii) | as to 33 1/3 % of the Restricted Share Units with respect to
such Unit Award on the second anniversary of the Grant Date; and |
(iii) | as to 33 1/3 % of the Restricted Share Units with respect to
such Unit Award on the third anniversary of the Grant Date; |
provided, however, that if an Accelerated Vesting Event occurs in respect of a
Grantee prior to any of the Vesting Dates determined in accordance with the above
provisions, all of the Grantees Restricted Share Units that have not yet vested as
of such time shall vest on the earlier of: (i) the next applicable Vesting Date
determined in accordance with the Unit Award; and (ii) immediately prior to the
effective time of the Accelerated Vesting Event.
(c) | Payment in Respect of Restricted Share Units |
(i) | Notwithstanding anything else contained herein, for a Grantee
who is subject to tax in a jurisdiction outside of Canada (including a Grantee
who may also be subject to tax in Canada), the Company, or the Affiliate in
whose service the Grantee may be, shall pay on a Vesting Date to such Grantee a
cash payment equal to the Fair Market Value of a Share on such Vesting Date
multiplied by the number of Restricted Share Units that vest in the Grantee on
such Vesting Date (as adjusted in accordance with the relevant provisions set
forth in this Section 5), in consideration for the surrender by the Grantee of
the right to receive such cash payment under such Unit Award. |
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(ii) | Subject to Section 5(c)(i), the Committee may at any time
decide in its sole discretion that the Company, or the Affiliate in whose
service the Grantee may be, will pay on a Vesting Date to such Grantee a cash
amount equal to the Fair Market Value of the Shares that would be otherwise
deliverable on such Vesting Date under a Unit Award (as adjusted in accordance
with the relevant provisions set forth in this Section 5) (such fair value
being referred to herein as the Settlement Amount) in consideration for the
surrender by the Grantee of the rights to receive such Shares (or a cash
payment) under such Unit Award. |
(iii) | Subject to Section 5(c)(i), unless the Settlement Amount is
paid to a Grantee wholly in cash, the number of Shares that are deliverable to
a Grantee on a Vesting Date shall be acquired by and delivered to the Grantee
by the Plan Trustee (and not by the Company or any of its Affiliates) pursuant
to the terms of a benefit plan trust agreement between the Company and the Plan
Trustee, such Shares to be acquired on the Exchange by the Plan Trustee from
contributions made by the Company to the Trust Fund established under the
employee benefit plan trust agreement. Notwithstanding anything in this Plan
or in any benefit plan trust agreement to the contrary, any Shares acquired by
the Plan Trustee for the purposes of the Plan will be acquired on behalf, and
for the sole benefit, of a Grantee in respect of Restricted Share Units and not
on behalf, or for the benefit, of the Company or any of its Affiliates. |
(iv) | The Company or the Affiliate, as the case may be, shall be
entitled to withhold from any cash payments or Shares delivered to the Grantee
all amounts as may be required by law and in the manner contemplated by Section
7 hereof. |
(d) | Termination of Relationship as Service Provider Unless otherwise
provided in a Unit Award Agreement pertaining to a particular Unit Award or any written
employment agreement governing a Grantees role as a Service Provider, or unless
otherwise determined by the Committee, the following provisions shall apply in the
event that a Grantee ceases to be a Service Provider: |
(i) | Termination for cause If a Grantee ceases to be a
Service Provider as a result of termination for cause, effective as of the date
notice is given to the Grantee of such termination, all unvested Restricted
Share Units held by such Grantee shall be terminated and all rights to receive
any payment thereunder shall be forfeited by the Grantee following the date on
which such Grantee ceases to be a Service Provider. |
(ii) | Termination not for cause If a Grantee ceases to be
a Service Provider as a result of being terminated other than a termination for
cause (a Termination Without Cause) and such Termination Without Cause is not
an Accelerated Vesting Event, effective as of the date which is six months
after the Termination Without Cause and notwithstanding any other severance
entitlements or entitlement to notice or compensation in lieu thereof, all
unvested Restricted Share Units held by such Grantee shall be terminated and
all rights to receive any payment thereunder shall be forfeited by the Grantee,
and the Grantee shall not be entitled to receive any compensation in lieu
thereof after the expiry of the six-month period. |
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(iii) | Retirement If a Grantee voluntarily ceases to be a
Service Provider as a result of Retirement, all unvested Restricted Share Units
held by such Grantee shall remain unaffected by the Retirement and shall
continue to vest in accordance with Section 5(b) and the applicable Unit Award
Agreement. |
(iv) | Disability If a Grantee ceases to be a Service
Provider as a result of the Grantees Disability, all unvested Restricted Share
Units held by such Grantee shall remain unaffected by the Disability and shall
continue to vest in accordance with Section 5(b) and the applicable Unit Award
Agreement. |
(v) | Death If a Grantee ceases to be a Service Provider
as a result of such Grantees death, the Vesting Date for all Restricted Share
Units held by such Grantee shall be the date of death of the Grantee. |
(vi) | Ceasing to be a Service Provider to an Affiliate If
a Grantee ceases to be a Service Provider as a result of the Affiliate in whose
service such Grantee may be ceasing to be an Affiliate of the Company,
effective as of the date which is six months after the date upon which the
Affiliate ceases to be an Affiliate of the Company, all unvested Restricted
Share Units held by such Grantee shall be terminated and all rights to receive
any payment thereunder shall be forfeited by the Grantee, and the Grantee shall
not be entitled to receive any compensation in lieu thereof after the expiry of
the six-month period. |
(vii) | Voluntary Termination If a Grantee ceases to be a
Service Provider for any other reason, effective as of the last day of any
notice period applicable in respect of such voluntary resignation, all unvested
Restricted Share Units held by such Grantee shall be terminated and all rights
to receive any payment thereunder shall be forfeited by the Grantee; provided,
however, that notwithstanding the foregoing, unvested Restricted Share Units
held by such Grantee shall not be affected by a change of employment or term of
office or appointment within or among the Company or an Affiliate so long as
the Grantee continues to be a Service Provider. |
(e) | Rights as a Shareholder Under no circumstances shall Restricted
Share Units be considered Shares of the Company, nor shall they entitle any Grantee to
exercise voting rights or any other rights attaching to the ownership of Shares of the
Company, nor shall any Grantee be considered the owner of Shares by virtue of the fact
that Shares will be acquired by, or provided from, the Trust Fund in satisfaction of
Restricted Share Units. |
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(f) | Effect of Certain Changes In the event: |
(i) | of any change in the Shares through subdivision, consolidation,
reclassification, amalgamation, merger or otherwise; |
(ii) | that any rights are granted to Shareholders to purchase Shares
at prices substantially below fair market value; or |
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(iii) | that, as a result of any reorganization, recapitalization,
merger, consolidation or other transaction that is not a Change of Control, the
Shares are converted into or exchangeable for any other securities; |
then, in any such case, the Committee may make such adjustments to the Plan and to
any Unit Awards outstanding under the Plan as the Committee may, in its sole
discretion, consider appropriate in the circumstances to prevent substantial
dilution or enlargement of the rights granted to Grantees hereunder.
(g) | Dividends In the event the Company pays a dividend on the Shares
subsequent to the granting of a Unit Award, the number of Restricted Share Units
relating to such Unit Award (the Original RSUs) shall be increased by an amount equal
to: (a) the product of the aggregate number of Original RSUs held by the Grantee on the
record date for such dividend multiplied by the per Share amount of such dividend (or,
in the case of any dividend payable in property other than cash, the per Share fair
market value of such property, as determined by the Board), divided by (b) the Fair
Market Value of a Share calculated as of the date on which the dividend is paid. In
the event that the Company pays any dividends on the Shares in additional Shares, the
number of Original RSUs shall be increased by a number equal to the product of (x) the
aggregate number of Original RSUs held by the Grantee on the record date of such
dividend, multiplied by (y) the number of Shares (including any fraction thereof)
payable as a dividend on one Share. |
(h) | Fractions Notwithstanding any other provision of this Plan, where the
determination of the number of Restricted Share Units which have vested on any
particular Vesting Date would result in a fractional Restricted Share Unit, the number
of Restricted Share Units credited to the Grantee shall be rounded down to the next
whole number of Restricted Share Units. No fractional Shares shall be delivered
pursuant to this Plan nor shall cash be paid at any time in lieu of any such fractional
Share. |
(i) | Black-Out Periods In the event the Vesting Date determined in
accordance with the terms of this Plan occurs within a period of time imposed by the
Company, pursuant to the Companys policies, upon certain designated persons during
which those persons may not trade in any securities of the Company (a Black-Out
Period) or which vest within five business days after a Black-Out Period (not
including a Black-Out Period imposed due to a cease trade order), the Vesting Date of
the Restricted Share Units shall be ten business days from the date any Black-Out
Period ends. |
6. | Funding of Restricted Share Unit Awards |
The Company may from time to time, on its own behalf and on behalf of such of its Affiliates
that employ Service Providers, make contributions to the Trust Fund in such amounts and at such
times as may be specified by the Committee for the purpose of funding, in whole or in part, awards
of Restricted Share Units which become payable to Service Providers pursuant to the Plan. Any
purchases of Shares by the Plan Trustee or otherwise pursuant to the Plan shall be made on the open
market by a broker designated by the Plan Trustee who is independent of the Company in accordance
with the by-laws, regulations and policies of the Exchange.
7. | Withholding |
When a Grantee or other person becomes entitled to receive cash or Shares under a Unit Award,
the Company shall have the right to withhold or to require the Grantee or such other person to
remit to the Company an amount sufficient to satisfy any withholding requirements relating thereto,
provided that the Company may permit the Affiliate in whose service such Grantee may be to withhold
or require the Grantee or such other person to remit to the Affiliate an amount sufficient to
satisfy any such withholding requirements. Unless the Committee otherwise determines, the
withholding shall be satisfied by the
Company or, where permitted by the Company, the Affiliate in whose service such Grantee may
be, withholding from the cash or Shares otherwise deliverable to the Grantee of such amount of cash
or number of Shares having a value, determined as of the date that the withholding tax obligation
arises, equal to the amount of the total withholding tax obligation.
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8. | Non-Transferability |
Shares or cash deliverable upon vesting of a Restricted Share Unit shall only be delivered to
or to the order of, a Grantee by the Company or the Plan Trustee, as applicable, except that if a
Grantee dies, Shares or cash may be delivered to the Grantees legal representative or designated
beneficiary to whom the Restricted Share Units transfer by will or by the laws of descent and
distribution. Except for the foregoing and as otherwise provided in this Plan, no assignment,
sale, transfer, pledge or charge of a Restricted Share Unit, whether voluntary, involuntary, by
operation of law or otherwise, vests any interest or right in such Restricted Share Unit whatsoever
in any assignee or transferee and, immediately upon any assignment, sale, transfer, pledge or
charge or attempt to assign, sell, transfer, pledge or charge, such Restricted Share Unit shall
terminate and be of no further force or effect.
9. | Amendment and Termination of the Plan |
The Company retains the right to amend from time to time or to suspend, terminate or
discontinue the terms and conditions of the Plan and the Restricted Share Units granted hereunder
by resolution of the Board provided that no such amendment to the Plan shall cause the Plan to
cease to be subject to paragraph (k) of the definition of salary deferral arrangement as
contained in the Income Tax Act (Canada). Any amendments shall be subject to the prior consent of
any applicable regulatory bodies, including the Exchange, as may be required. Any amendment to the
Plan shall take effect only with respect to Unit Awards granted after the effective date of such
amendment, provided that it may apply to any outstanding Unit Awards with the mutual consent of the
Company and the Service Providers to whom such Unit Awards have been granted.
10. | Foreign Grantees |
(a) | The Company may, without amending the Plan, modify the terms of Restricted
Share Units granted to participants who provide services to the Company or an Affiliate
from outside of Canada in order to comply with the applicable laws of such foreign
jurisdictions. Any such modification to the Plan with respect to a particular
participant shall be reflected in the Unit Award Agreement for such Grantee. |
(b) | The terms of the Plan and Restricted Share Units granted hereunder to
participants subject to taxation on employment income under the United States Internal
Revenue Code of 1986, as amended, shall be determined by taking into consideration the
provisions applicable to such persons as set forth in Schedule A hereto. |
11. | Miscellaneous |
(a) | Effect of Headings The section and subsection heading contained
herein are for convenience only and shall not affect the construction hereof. |
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(b) | Compliance with Legal Requirements Neither the Company nor the Plan
Trustee shall be obliged to deliver any Shares if such delivery would violate any law
or regulation or any rule of any government authority or stock exchange. The Company or
the Plan Trustee may postpone the delivery of Shares under any Unit Award as the Board
may
consider appropriate, and may require any Grantee to make such representations and
furnish such information as it may consider appropriate in connection with the
delivery of Shares in compliance with applicable laws, rules and regulations. The
Company shall not be required to qualify for resale pursuant to a prospectus or
similar document any Shares delivered under the Plan, provided that, if required,
the Company shall notify any stock exchange and any other appropriate regulatory
bodies of the existence of the Plan and the granting of Unit Awards hereunder in
accordance with any such requirements. |
(c) | No Right to Continued Employment Nothing in the Plan or in any Unit
Award Agreement entered into pursuant hereto shall confer upon any Grantee the right to
continue in the employ or service of the Company or an Affiliate, to be entitled to any
remuneration or benefits not set forth in the Plan or a Unit Award Agreement or to
interfere with or limit in any way the right of the Company or an Affiliate to
terminate any Grantees employment or service. |
(d) | Ceasing to be an Affiliate Except as otherwise provided in this
Plan, Unit Awards granted under this Plan shall not be affected by any change in the
relationship between or ownership of the Company and an Affiliate. For greater
certainty, all outstanding Restricted Share Units shall remain valid in accordance with
the terms and conditions of this Plan and are not affected by reason only that, at any
time, any corporation, partnership or trust ceases to be an Affiliate. |
(e) | Expenses All expenses in connection with the Plan shall be borne by
the Company. |
12. | Effective Date |
The Plan shall take effect on , 2011, the date of its adoption by the Board.
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Schedule A
Special Provisions Applicable to Grantees Subject to Section 409A of the United States
Internal Revenue Code
Special Provisions Applicable to Grantees Subject to Section 409A of the United States
Internal Revenue Code
This schedule sets forth special provisions of the Plan that apply to participants subject to
section 409A of the United States Internal Revenue Code of 1986, as amended. Terms defined in the
Plan and used herein shall have the meanings set forth in the Plan document, as amended from time
to time.
1. Definitions
For purposes of this schedule:
Code means the United States Internal Revenue Code of 1986, as amended, and any
applicable United States Treasury Regulations and other binding regulatory guidance thereunder.
Section 409A means section 409A of the Code.
Separation From Service shall mean that employment with the Company and any entity that
is to be treated as a single employer with the Company for purposes of United States Treasury
Regulation Section 1.409A-1(h) terminates such that it is reasonably anticipated that no further
services will be performed.
Specified Employee means a US Taxpayer who meets the definition of specified employee,
as defined in Section 409A(a)(2)(B)(i) of the Code.
US Taxpayer means a Grantee whose compensation from the Company is subject to Section
409A.
2. Compliance with Section 409A
In General. Notwithstanding any provision of the Plan to the contrary, it is intended that
any payments under the Plan either be exempt from or comply with Section 409A, and all provisions
of the Plan shall be construed and interpreted in a manner consistent with the requirements for
avoiding taxes or penalties under Section 409A. Each payment made in respect of Restricted Share
Units shall be deemed to be a separate payment for purposes of Section 409A. Each US Taxpayer is
solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed
on or for the account of such US Taxpayer in connection with the Plan (including any taxes and
penalties under Section 409A), and neither the Company nor any of its subsidiaries shall have any
obligation to indemnify or otherwise hold such US Taxpayer (or any beneficiary) harmless from any
or all of such taxes or penalties.
Distributions to US Taxpayers. Notwithstanding the provisions of Section 5 of the Plan to
the contrary, a lump sum payment in respect of any vested units credited to a US Taxpayers unit
account shall be made 30 days following the US Taxpayers Vesting Date with respect to such vested
units (or if later, the date on which the US Taxpayer returns to work following a leave of absence
during which a Vesting Date occurred), provided in all events that no distribution shall be made
hereunder later than the later of (A) the 15th day of the third month following the end
of the US Taxpayers taxable year in which the US Taxpayers right to the payment in respect of the
Restricted Share Units is no longer subject to a substantial risk of forfeiture or (B) the
15th day of the third month following the end of the Companys first taxable year in
which the right to the payment is no longer subject to a substantial risk of forfeiture.
Distributions to Specified Employees. Solely to the extent required by Section 409A, any
payment in respect of vested units which is subject to Section 409A and which has become payable on
or following Separation From Service to any employee who is determined to be a Specified Employee
shall not be paid
before the date which is six months after such Specified Employees Separation From Service (or, if
earlier, the date of death of such Specified Employee). Following any applicable six month delay
of payment, all such delayed payments shall be made to the Specified Employee in a lump sum on the
earliest possible payment date.
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Tax Withholding. A US Taxpayer shall be required to pay to the Company, and the Company
shall have the right and is hereby authorized to withhold, from any cash or other compensation
payable under the Plan, or from any other compensation or amounts owing to the US Taxpayer, the
amount of any required withholding taxes in respect of amounts paid under the Plan and to take such
other action as may be necessary in the opinion of the Company to satisfy all obligations for the
payment of such withholding and taxes.
Funding of Units. If and to the extent use of the assets contributed to or held in the
Trust Fund to pay distributions in respect of vested units to a US Taxpayer could result in
accelerated or additional tax to the US Taxpayer under Section 409A (including without limitation
Section 409A(b)) of the Code, payment in respect of vested units to a US Taxpayer shall only be
made with assets that have not been held in the Trust Fund, and the US Taxpayer shall have no right
to or any interest in any of the assets of the Trust Fund.
3. Amendment of Schedule
Notwithstanding Section 9 of the Plan, the Board shall retain the power and authority to amend or
modify this schedule to the extent the Board in its sole discretion deems necessary or advisable to
comply with any guidance issued under Section 409A. Such amendments may be made without the
approval of any US Taxpayer.
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