EX-10.1.2
EXHIBIT 10.1.2
MAKEMYTRIP
2010 SHARE INCENTIVE PLAN
ARTICLE 1.
PURPOSE
The purpose of the MakeMyTrip 2010 Share Incentive Plan (the “Plan”) is to promote the
success and enhance the value of MakeMyTrip Limited (the “Company”) by linking the personal
interests of the members of the Board, Employees, and Consultants to those of Company shareholders
and by providing such individuals with an incentive for outstanding performance to generate
superior returns to Company shareholders. The Plan is further intended to provide flexibility to
the Company in its ability to motivate, attract, and retain the services of members of the Board,
Employees, and Consultants upon whose judgment, interest, and special effort the successful conduct
of the Company’s operation is largely dependent. Under the Plan, it is intended that the Awards and
Shares be offered to the Eligible Individuals globally on a uniform basis, subject to Applicable
Laws.
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
Wherever the following terms are used in the Plan they shall have the meanings specified
below, unless the context clearly indicates otherwise. The singular pronoun shall include the
plural where the context so indicates.
2.1 “Applicable Accounting Standards” means International Financial Reporting
Standards, Generally Accepted Accounting Principles in the United States, or such other accounting
principles or standards as may apply to the Company’s financial statements under Applicable Laws.
2.2 “Applicable Laws” means (i) the laws of Mauritius as they relate to the Company
and its Shares; (ii) the legal requirements relating to the Plan and the Awards under applicable
provisions of the corporate, securities, foreign exchange, tax and other laws, rules, regulations
and government orders and approvals of any jurisdiction applicable to Awards granted to residents
(including without limitation India, Mauritius and the United States of America); and (iii) the
rules of any applicable securities exchange, national market system or automated quotation system
on which the Shares are listed, quoted or traded.
2.3 “Article” means an article of this Plan.
2.4 “Award” means an Option, a Restricted Share award, a Restricted Share Unit award,
a Dividend Equivalents award, a Deferred Share award, a Share Payment award or a Share
Appreciation Right, which may be awarded or granted under the Plan.
2.5 “Award Agreement” means any written notice, agreement, terms and conditions,
contract or other instrument or document evidencing an Award, including through electronic medium,
which shall contain such terms and conditions with respect to an Award as the Board shall
determine consistent with the Plan.
2.6 “Board” means the Board of Directors of the Company.
2.7 “Code” means the United States Internal Revenue Code of 1986, as amended from
time to time.
2.8 “Company” means MakeMyTrip Limited, a corporation incorporated under the laws of
Mauritius.
2.9 “Consultant” means any consultant or adviser if: (a) the consultant or adviser
renders bona fide services to a Service Recipient; (b) the services rendered by the consultant or
adviser are not in connection with the offer or sale of securities in a capital-raising
transaction and do not directly or indirectly promote or maintain a market for the Company’s
securities; and (c) the consultant or adviser is a natural person who has contracted directly with
the Service Recipient to render such services.
2.10 “Corporate Transaction” means any of the following transactions, provided,
however, that the Board shall determine under (f) and (g) whether multiple transactions are
related, and its determination shall be final, binding and conclusive:
(a) an amalgamation, arrangement, consolidation or scheme of arrangement in which the Company
is not the surviving entity, except for a transaction the principal purpose of which is to change
the jurisdiction in which the Company is incorporated or which following such transaction the
holders of the Company’s voting securities immediately prior to such transaction own fifty percent
(50%) or more of the surviving entity;
(b) the direct or indirect acquisition by any person or related group of persons (other than
an acquisition from or by the Company or by a Company-sponsored employee benefit plan or by a
person that directly or indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of
securities possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities pursuant to a tender or exchange offer made directly to the
Company’s shareholders which a majority of the Incumbent Board (as defined below) who are not
affiliates or associates of the offeror under Rule 12b-2 promulgated under the Exchange Act do not
recommend such shareholders accept, or
(c) the individuals who, as of the Effective Date, are members of the Board (the “Incumbent
Board”), cease for any reason to constitute at least fifty percent (50%) of the Board; provided
that if the election, or nomination for election by the Company’s shareholders, of any new member
of the Board is approved by a vote of at least fifty percent (50%) of the Incumbent Board, such new
member of the Board shall be considered as a member of the Incumbent Board.
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(d) the sale, transfer or other disposition of all or substantially all of the assets of the
Company (other than to a Parent, Subsidiary or Related Entity);
(e) the completion of a voluntary or insolvent liquidation or dissolution of the Company;
(f) any reverse takeover, scheme of arrangement, or series of related transactions culminating
in a reverse takeover or scheme of arrangement (including, but not limited to, a tender offer
followed by a reverse takeover) in which the Company survives but (A) the Shares of the Company
outstanding immediately prior to such transaction are converted or exchanged by virtue of the
transaction into other property, whether in the form of securities, cash or otherwise, or (B) in
which securities possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities are transferred to a person or persons different from those who
held such securities immediately prior to such transaction culminating in such takeover or scheme
of arrangement, but excluding any such transaction or series of related transactions that the Board
determines shall not be a Corporate Transaction; or
(g) acquisition in a single or series of related transactions by any person or related group
of persons (other than the Company or by a Company-sponsored employee benefit plan) of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities
but excluding any such transaction or series of related transactions that the Board determines
shall not be a Corporate Transaction.
2.11 “Deferred Share” means a right to receive Shares awarded under Section 7.3.
2.12 “Director” means a member of the Board, as constituted from time to time.
2.13 “Dividend Equivalent” means a right to receive the equivalent value (in cash or
Shares) of dividends paid on Shares, awarded under Section 7.1.
2.14 “Effective Date” has the meaning set forth in Section 11.1.
2.15 “Eligible Individual” means any person who is an Employee, a Consultant or a
Non-Employee Director as determined by the Board; provided, however, that Awards shall not be
granted to Consultants or Non-Employee Directors who are resident of any country in the European
Union, and any other country which pursuant to Applicable Laws does not allow grants to any
non-employees or consultants.
2.16 “Employee” means any person who is in the employ of a Service Recipient, subject
to the control and direction of the Service Recipient as to both the work to be performed and the
manner and method of performance. The payment of a director’s sitting fee for participating in
Board or committee meetings by a Service Recipient shall not be sufficient to constitute
“employment” by the Service Recipient. For the avoidance of doubt, an Executive Director of the
Company while in the employment of the Company shall be an “Employee” and thus an “Eligible
Individual”.
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2.17 “Exchange Act” means the United States Securities Exchange Act of 1934, as
amended from time to time.
2.18 “Fair Market Value” means, as of any date, the value of Shares determined as
follows:
(a) If the Shares are listed on one or more established and regulated securities exchanges,
national market systems or automated quotation system on which Shares are listed, quoted or traded,
its Fair Market Value shall be the average closing sales price for such shares (or the closing bid,
if no sales were reported) as quoted on the principal exchange or system on which the Shares are
listed (as determined by the Board) for the thirty consecutive Trading Days prior to the date of
determination, as reported in such source as the Board deems reliable;
(b) If the Shares are not listed on an established securities exchange, notational market
system or automated quotation system, but are regularly quoted by a recognized securities dealer,
its Fair Market Value shall be the closing sales price for such shares as quoted by such securities
dealer for the thirty consecutive Trading Days prior to the date of determination, but if selling
prices are not reported, the Fair Market Value of a Share shall be the mean between the high bid
and low asked prices for the Shares, as reported in such source as the Board deems reliable; or
(c) In the absence of an established market for the Shares of the type described in (a) and
(b), above, the Fair Market Value thereof shall be determined by the Board in good faith and in its
discretion by reference to (i) the placing price of the latest private placement of the Shares and
the development of the Company’s business operations and the general economic and market conditions
since such latest private placement, (ii) other third party transactions involving the Shares and
the development of the Company’s business operation and the general economic and market conditions
since such sale, (iii) an independent valuation of the Shares, or (iv) such other methodologies or
information as the Board determines to be indicative of Fair Market Value, relevant.
2.19 “Holder” means an Eligible Individual who has been granted an Award.
2.20 “Non-Employee Director” means a Director of the Company who is not an Employee.
2.21 “Option” means a right to purchase Shares at a specified exercise price, granted
under Article 5.
2.22 “Parent” means any entity whether domestic or foreign, in an unbroken chain of
entities ending with the Company, if each of the entities other than the first entity in the
unbroken chain beneficially owns, at the time of the determination, securities or interests
representing more than fifty percent (50%) of the total combined voting power of all classes of
securities or interests in one of the other entities in such chain.
2.23 “Plan” means this MakeMyTrip 2010 Share Incentive Plan, as it may be amended or
restated from time to time.
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2.24 “Related Entity” means any business, corporation, partnership, limited liability
company or other entity in which the Company, a Parent or Subsidiary of the Company holds a
substantial economic interest, directly or indirectly, through ownership or contractual
arrangements but which is not a Subsidiary and which the Board designates as a Related Entity for
purposes of the Plan.
2.25 “Restricted Share” means a Share awarded under Article 6 that is subject to
certain restrictions and may be subject to risk of forfeiture or repurchase.
2.26 “Restricted Share Units” means the right to receive Shares awarded under Section
7.4.
2.27 “Section” means a section of this Plan
2.28 “Securities Act” means the United States Securities Act of 1933, as amended.
2.29 “Service Recipient” means the Company, any Parent or Subsidiary of the Company
and any Related Entity to which an Eligible Individual provides services as an Employee,
Consultant or as a Director.
2.30 “Share” means an ordinary share of the Company and such other securities of the
Company that may be substituted for Shares pursuant to Article 12.
2.31 “Share Appreciation Right” means a share appreciation right granted under
Article 8.
2.32 “Share Payment” means (a) a payment in the form of Shares, or (b) an option or
other right to purchase Shares, as part of a bonus, deferred compensation or other arrangement,
awarded under Section 7.2.
2.33 “Subsidiary” means any entity (other than the Company), whether domestic or
foreign, in an unbroken chain of entities beginning with the Company if each of the entities other
than the last entity in the unbroken chain beneficially owns, at the time of the determination,
securities or interests representing more than fifty percent (50%) of the total combined voting
power of all classes of securities or interests in one of the other entities in such chain.
2.34 “Substitute Award” means an Award granted under the Plan upon the assumption of,
or in substitution for, outstanding equity awards previously granted by a company or other entity
in connection with a Corporate Transaction; provided, however, that in no event
shall the term “Substitute Award” be construed to refer to an award made in connection with the
cancellation and repricing of an Option or Share Appreciation Right.
2.35 “Termination of Service” means,
(a) As to a Consultant, the time when the engagement of a Holder as a Consultant to a
Service Recipient is terminated for any reason, with or without cause, including, without
limitation, by resignation, discharge, death or retirement, but excluding terminations where the
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Consultant simultaneously commences or remains in employment or service with the Company, any
Subsidiary or any Related Entity.
(b) As to a Non-Employee Director, the time when a Holder who is a Non-Employee Director
ceases to be a Director for any reason, including, without limitation, a termination by
resignation, failure to be elected, death or retirement, but excluding terminations where the
Holder simultaneously commences or remains in employment or service with the Company, any
Subsidiary or any Related Entity.
(c) As to an Employee, the time when the employee-employer relationship between a Holder and
the Service Recipient is terminated for any reason, including, without limitation, a termination by
resignation, discharge, death, disability or retirement; but excluding terminations where the
Holder simultaneously commences or remains in employment or service with the Company, any
Subsidiary or any Related Entity.
The Board, in its sole discretion, shall determine the effect of all matters and questions
relating to Terminations of Service, including, without limitation, the question of whether a
Termination of Service resulted from a discharge for cause and all questions of whether particular
leaves of absence constitute a Termination of Service. For purposes of the Plan, a Holder’s
employee-employer relationship or consultancy relations shall be deemed to be terminated in the
event that the Subsidiary or Related Entity employing or contracting with such Holder ceases to
remain a Subsidiary or Related Entity following any merger, sale of securities or other corporate
transaction or event (including, without limitation, a spin-off).
2.36 “Trading Day” means each day that the Shares are publicly traded on one or more
established stock exchanges or national market systems.
ARTICLE 3.
SHARES SUBJECT TO THE PLAN
3.1 Number of Shares.
(a) Subject to Section 12.2 and Section 3.1(b) the aggregate number of Shares which may be
issued or transferred pursuant to Awards under the Plan is equal to (i) ten percent (10%) of the
Shares outstanding on the Effective Date plus (ii) an increase on the date the Company consummates
an initial public offering of the Shares, by such amount such that the number of Shares which may
be issued or transferred pursuant to Awards under the Plan will equal ten percent (10%) of the
Shares outstanding (on an as converted basis) on such date, plus (iii) an annual increase on the
first day of each year beginning January 1, 2011 and ending January 1, 2019 by such amount that the
number of Shares which may be issued or transferred pursuant to Awards under the Plan will equal
ten percent (10%) of the Shares outstanding (on an as converted basis) on the last day of the
immediately preceding fiscal year, or (iv) such smaller number of Shares as determined by the
Board.
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(b) To the extent that an Award terminates, expires, or lapses for any reason, or is settled
in cash and not Shares, then any Shares subject to the Award shall again be available for the grant
of an Award pursuant to the Plan. Shares delivered by the Holder or withheld by the Company upon
the exercise of any Award under the Plan, in payment of the exercise price thereof or tax
withholding thereon, may again be optioned, granted or awarded hereunder, subject to the
limitations of Section 3.1(a). If any Shares forfeited by the Holder or repurchased by the Company
at the same or lesser price than paid by the Holder so that the Shares are again returned to the
Company, may again be optioned, granted or awarded hereunder, subject to the limitations of Section
3.1(a). To the extent permitted by Applicable Laws, Shares issued in assumption of, or in
substitution for, any outstanding awards of any entity acquired in any form of combination by the
Company, any Parent, any Subsidiary or Related Entity shall not be counted against Shares available
for grant pursuant to the Plan. The payment of Dividend Equivalents in cash in conjunction with
any outstanding Awards shall not be counted against the Shares available for issuance under the
Plan.
3.2 Share Distributed. Any Shares distributed pursuant to an Award may consist, in
whole or in part, of newly issued Shares, treasury Shares (subject to Applicable Laws) or Shares
purchased on the open market. Additionally, in the discretion of the Board, American Depository
Shares in an amount equal to the number of Shares which otherwise would be distributed pursuant to
an Award may be distributed in lieu of Shares in settlement of any Award. If the number of Shares
represented by an American Depository Share is other than on a one-to-one basis, the limitations
of Section 3.1 shall be adjusted to reflect the distribution of American Depository Shares in lieu
of Shares.
ARTICLE 4.
GRANTING OF AWARDS
4.1 Participation. The Board may, from time to time, select from among all Eligible
Individuals, those to whom an Award shall be granted and shall determine the nature and amount of
each Award, which shall not be inconsistent with the requirements of the Plan. No Eligible
Individual shall have any right to be granted an Award pursuant to the Plan.
4.2 Award Agreement. Each Award shall be evidenced by an Award Agreement.
4.3 Jurisdictions. Notwithstanding any provision of the Plan to the contrary, in
order to comply with the laws in the jurisdictions in which the Service Recipients operate or have
Eligible Individuals, or in order to comply with the requirements of any securities exchange, the
Board, in its sole discretion, shall have the power and authority to: (a) determine which
Subsidiaries and Related Entities shall be covered by the Plan; (b) determine which Eligible
Individuals are eligible to participate in the Plan; (c) modify the terms and conditions of any
Award granted to Eligible Individuals to comply with Applicable Laws; (d) establish subplans and
modify exercise procedures and other terms and procedures, to the extent such actions may be
necessary or advisable (any such subplans and/or modifications shall be attached to the Plan as
appendices); provided, however, that no such subplans and/or modifications shall
increase the share limitations contained in Section 3.1; and (e) take any action, before or after
an Award is made, that it deems advisable to obtain approval or comply
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with any Applicable Laws including necessary local governmental regulatory exemptions or
approvals or listing requirements of any such securities exchange. Notwithstanding the foregoing,
the Board may not take any actions hereunder, and no Awards shall be granted, that would violate
any Applicable Laws.
4.4 Stand-Alone and Tandem Awards. Awards granted pursuant to the Plan may, in the
sole discretion of the Board, be granted either alone, in addition to, or in tandem with, any
other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other
Awards may be granted either at the same time as or at a different time from the grant of such
other Awards.
ARTICLE 5.
OPTIONS
5.1 General. The Board is authorized to grant Options to Eligible Individuals on the
following terms and conditions:
(a) Exercise Price. The exercise price per Share subject to an Option shall be
determined by the Board and set forth in the Award Agreement, which may be a fixed or variable
price related to the Fair Market Value of the Shares; provided, however, that no Option may be
granted to an individual subject to taxation in the United States at less than the Fair Market
Value on the date of grant, without compliance with Section 409A of the Code, or the Holder’s
consent. The exercise price per Share subject to an Option may be amended or adjusted in the
absolute discretion of the Board, the determination of which shall be final, binding and
conclusive. For the avoidance of doubt, to the extent not prohibited by Applicable Laws (including
any applicable exchange rule), a downward adjustment of the exercise prices of Options mentioned in
the preceding sentence shall be effective without the approval of the Company’s shareholders or the
approval of the affected Holders.
(b) Vesting. The period during which the right to exercise, in whole or in part, an
Option vests in the Holder shall be set by the Board and the Board may determine that an Option may
not be exercised in whole or in part for a specified period after it is granted. Such vesting may
be based on service with the Service Recipient or any other criteria selected by the Board. At any
time after grant of an Option, the Board may, in its sole discretion and subject to whatever terms
and conditions it selects, accelerate the period during which an Option vests. No portion of an
Option which is unexercisable at a Holder’s Termination of Service shall thereafter become
exercisable, except as may be otherwise provided by the Board either in the Award Agreement or by
action of the Board following the grant of the Option.
(c) Time and Conditions of Exercise. Subject to Applicable Laws, the Board shall
determine the time or times at which an Option may be exercised in whole or in part, including
exercise prior to vesting and that a partial exercise must be with respect to a minimum number of
shares. The Board shall also determine any conditions, if any, that must be satisfied before all
or part of an Option may be exercised.
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(d) Partial Exercise. An exercisable Option may be exercised in whole or in part;
provided, however, that an Option shall not be exercisable with respect to fractional shares and
the Board may require that, by the terms of the Option, a partial exercise must be with respect to
a minimum number of shares.
(e) Manner of Exercise. The manner of exercise of the Option under this Section 5.1
shall be subject to all Applicable Laws, including any limitations on exercise by persons other
than the Holder. All or a portion of an exercisable Option shall be deemed exercised upon delivery
by the Holder of all of the following to the Secretary of the Company, or such other person or
entity designated by the Board, or his, her or its office, as applicable:
(i) A written or electronic notice complying with the applicable rules established by the
Board stating that the Option, or a portion thereof, is exercised. The notice shall be signed by
the Holder or other person then entitled to exercise the Option or such portion of the Option;
(ii) Such representations, agreements and documents as the Board, in its sole discretion,
deems necessary or advisable to effect compliance with all Applicable Laws or regulations, and the
rules of any securities exchange or automated quotation system on which the Shares are listed,
quoted or traded, including, without limitation, that (A) the Holder shall authorize the Company
and/or its subsidiaries, branches and other offices or entities to do all such acts, execute all
such documents and make all such filings as may be required in connection with the Plan, the
exercise of the Option or any Shares issued pursuant to the exercise of the Option, including any
filings with any applicable regulatory or administrative authority (including the Reserve Bank of
India and/or any applicable registrar of companies in India and/or Mauritius); and (B) for the
purpose of implementing, administering and managing the Plan and any Award Agreement, including the
exercise of the Option, the Holder consents to the collection, receipt, use, retention and
transfer, in electronic or other form of the Holder’s personal data, including such Holder’s name,
address, telephone number and details of the Option granted, vested, exercised or cancelled. The
Board may, in its sole discretion, also take whatever additional actions it deems appropriate to
effect such compliance including, without limitation, placing legends on share certificates and
issuing stop-transfer notices to agents and registrars;
(iii) In the event that the Option shall be exercised pursuant to Section 9.3 by any person or
persons other than the Holder, appropriate proof of the right of such person or persons to exercise
the Option, as determined in the sole discretion of the Board; and
(iv) Full payment of the exercise price and applicable withholding taxes to share Board of the
Company for the Shares with respect to which the Option, or portion thereof, is exercised, in a
manner permitted by Section 9.1 and 9.2.
(f) Term. The term of any Option granted under the Plan shall not exceed ten years.
Except as limited by the requirements of Section 409A of the Code and regulations and rulings
thereunder, the Board may extend the term of any outstanding Option, and may extend the time period
during which vested Options may be exercised, in connection with any
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Termination of Service of the Holder, and may amend any other term or condition of such Option
relating to such a Termination of Service.
(g) Evidence of Grant. All Options shall be evidenced by an Award Agreement between
the Company and the Holder. The Award Agreement shall include such additional provisions as may be
specified by the Board.
5.2 Substitute Awards. Notwithstanding the foregoing provisions of this Article 5 to
the contrary, in the case of an Option that is a Substitute Award, the price per share of the
shares subject to such Option may be less than the Fair Market Value per share on the date of
grant, provided, that the excess of: (a) the aggregate Fair Market Value (as of the date
such Substitute Award is granted) of the shares subject to the Substitute Award, over (b) the
aggregate exercise price thereof does not exceed the excess of: (x) the aggregate fair market
value (as of the time immediately preceding the transaction giving rise to the Substitute Award,
such fair market value to be determined by the Board) of the shares of the predecessor entity that
were subject to the grant assumed or substituted for by the Company, over (y) the aggregate
exercise price of such shares.
5.3 Substitution of Share Appreciation Rights. The Board may provide in the Award
Agreement evidencing the grant of an Option that the Board, in its sole discretion, shall have the
right to substitute a Share Appreciation Right for such Option at any time prior to or upon
exercise of such Option; provided, that such Share Appreciation Right shall be exercisable
with respect to the same number of Shares for which such substituted Option would have been
exercisable.
ARTICLE 6.
AWARD OF RESTRICTED SHARES
6.1 Award of Restricted Shares.
(a) The Board is authorized to grant Restricted Shares to Eligible Individuals, and shall
determine the amount of, and the terms and conditions, including the restrictions applicable to
each award of Restricted Shares, which terms and conditions shall not be inconsistent with the
Plan, and may impose such conditions on the issuance of such Restricted Shares as it deems
appropriate.
(b) The Board shall establish the purchase price, if any, and form of payment for Restricted
Shares, including payment with services; provided, however, that such purchase
price shall be no less than the par value of the Shares to be purchased and be fair and reasonable
to the Company and existing shareholders, unless otherwise permitted by Applicable Laws. In all
cases, legal consideration shall be required for each issuance of Restricted Shares.
6.2 Rights as Shareholders. Subject to Section 6.4, upon issuance of Restricted
Shares, the Holder shall have, unless otherwise provided by the Board, all the rights of a
shareholder with respect to said shares, subject to the restrictions in his or her Award
Agreement, including the right to receive all dividends and other distributions paid or made with
respect to the shares; provided, however, that, in the sole discretion of the
Board, any
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dividends paid with respect to Restricted Shares shall be held by the Company and subject to
the same restrictions as set forth in Section 6.3, as the Restricted Shares on which such
dividends were paid.
6.3 Restrictions. All Restricted Shares (including any shares received by Holders
thereof with respect to Restricted Shares as a result of share dividends, share splits or any
other form of recapitalization) shall, in the terms of each individual Award Agreement, be subject
to such restrictions and vesting requirements as the Board shall provide. Such restrictions may
include, without limitation, restrictions concerning transferability and such restrictions may
lapse separately or in combination at such times and pursuant to such circumstances or based on
such criteria as selected by the Board, including, without limitation, criteria based on the
Holder’s duration of employment, directorship or consultancy with the Service Recipient, or other
criteria selected by the Board. By action taken after the Restricted Shares are issued, the Board
may, on such terms and conditions as it may determine to be appropriate, accelerate the vesting of
such Restricted Shares by removing any or all of the restrictions imposed by the terms of the
Award Agreement. Restricted Shares may not be sold or encumbered until all restrictions are
terminated or expire.
6.4 Repurchase or Forfeiture of Restricted Shares. If no price was paid by the
Holder for the Restricted Shares, upon a Termination of Service the Holder’s rights in unvested
Restricted Shares then subject to restrictions shall lapse, and such Restricted Shares shall be
surrendered to the Company and cancelled without consideration. If a purchase price was paid by
the Holder for the Restricted Shares, upon a Termination of Service the Company shall have the
right to repurchase from the Holder the unvested Restricted Shares then subject to restrictions at
a cash price per share equal to the price paid by the Holder for such Restricted Shares or such
other amount as may be specified in the Award Agreement. The Board in its sole discretion may
provide that in the event of certain events the Holder’s rights in unvested Restricted Shares
shall not lapse, such Restricted Shares shall vest and shall be non-forfeitable, and if
applicable, the Company shall not have a right of repurchase.
6.5 Certificates for Restricted Share. Restricted Shares granted pursuant to the
Plan may be evidenced in such manner as the Board shall determine. The Company’s share register
must include an appropriate notation referring to the terms, conditions, and restrictions
applicable to such Restricted Shares, and the Company may, in it sole discretion, retain physical
possession of any share certificate until such time as all applicable restrictions lapse.
ARTICLE 7.
AWARD OF DIVIDEND EQUIVALENTS, DEFERRED SHARES, SHARE PAYMENTS, RESTRICTED SHARE UNITS
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7.1 Dividend Equivalents. Subject to compliance with Applicable Laws, Dividend
Equivalents may be granted by the Board based on dividends declared on the Shares, to be credited
as of dividend payment dates during the period between the date an Award is granted to a Holder
and the date such Award vests, is exercised, is distributed or expires, as determined by the
Board. Such Dividend Equivalents shall be converted to cash by such formula and at such time and
subject to such limitations as may be determined by the Board.
7.2 Share Payments. The Board is authorized to make Share Payments to any Eligible
Individual. The number or value of shares of any Share Payment shall be determined by the Board
and may be based upon any other criteria, including service to the Service Recipients, determined
by the Board. Share Payments may, but are not required to be made in lieu of base salary, bonus,
fees or other cash compensation otherwise payable to such Eligible Individual.
7.3 Deferred Shares. The Board is authorized to grant Deferred Shares to any
Eligible Individual. The number of shares of Deferred Shares shall be determined by the Board and
may be based on any specific criteria, including service to the Service Recipients, as the Board
determines, in each case on a specified date or dates or over any period or periods determined by
the Board. Shares underlying a Deferred Share award will not be issued until the Deferred Share
award has vested, pursuant to a vesting schedule or other conditions or criteria set by the Board.
Unless otherwise provided by the Board, a Holder of Deferred Share shall have no rights as a
Company shareholder with respect to such Deferred Shares until such time as the Award has vested
and the Shares underlying the Award have been issued to the Holder.
7.4 Restricted Share Units. The Board is authorized to grant Restricted Share Units
to any Eligible Individual. The number and terms and conditions of Restricted Share Units shall
be determined by the Board. The Board shall specify the date or dates on which the Restricted
Share Units shall become fully vested and nonforfeitable, and may specify such conditions to
vesting as it deems appropriate, including service to the Service Recipients, in each case on a
specified date or dates or over any period or periods, as the Board determines,. The Board shall
specify, or permit the Holder to elect, the conditions and dates upon which the Shares underlying
the Restricted Share Units which shall be issued, which dates shall not be earlier than the date
as of which the Restricted Share Units vest and become nonforfeitable and which conditions and
dates shall be subject to compliance with Section 409A of the Code, to the extent applicable to
the Holder. Restricted Share Units may be paid in cash, Shares or both, as determined by the
Board. On the distribution dates, subject to Applicable Laws the Company shall issue to the
Holder one unrestricted, fully transferable Share (or the Fair Market Value of one such Share) in
cash for each vested and nonforfeitable Restricted Share Unit.
7.5 Term. The term of a Dividend Equivalent award, Deferred Share award, Share
Payment award and/or Restricted Share Unit award shall be set by the Board in its sole discretion.
7.6 Exercise or Purchase Price. The Board may establish the exercise or purchase
price for Deferred Shares, shares distributed as a Share Payment award or shares distributed
pursuant to a Restricted Share Unit award; provided, however, that value of the
consideration,
12
including services, shall not be less than the par value of a share of Shares, unless
otherwise permitted by Applicable Laws.
7.7 Exercise upon Termination of Service. A Dividend Equivalent award, Deferred
Share award, Share Payment award and/or Restricted Share Unit award is exercisable or
distributable only while the Holder is an Employee, Director or Consultant, as applicable. The
Board, however, in its sole discretion may provide that the Dividend Equivalent award, Deferred
Share award, Share Payment award and/or Restricted Share Unit award may be exercised or
distributed subsequent to a Termination of Service in certain events.
ARTICLE 8.
AWARD OF SHARE APPRECIATION RIGHTS
8.1 Grant of Share Appreciation Rights.
(a) The Board is authorized to grant Share Appreciation Rights to Eligible Individuals from
time to time, in its sole discretion, on such terms and conditions as it may determine consistent
with the Plan. The term of any Share Appreciation Right granted under the Plan shall not exceed
ten years. Except as limited by the requirements of Section 409A of the Code and regulations and
rulings thereunder, the Board may extend the term of any outstanding Share Appreciation Right, and
may extend the time period during which vested Share Appreciation Rights may be exercised, in
connection with any Termination of Service of the Holder, and may amend any other term or condition
of such Share Appreciation Right relating to such a Termination of Service.
(b) A Share Appreciation Right shall entitle the Holder (or other person entitled to exercise
the Share Appreciation Right pursuant to the Plan) to exercise all or a specified portion of the
Share Appreciation Right (to the extent then exercisable pursuant to its terms) and to receive from
the Company an amount determined by multiplying the difference obtained by subtracting the exercise
price per share of the Share Appreciation Right from the Share Value on the date of exercise of the
Share Appreciation Right by the number of shares of Shares with respect to which the Share
Appreciation Right shall have been exercised, subject to any limitations the Board may impose.
(c) The exercise price per Share subject to an Share Appreciation Right shall be determined by
the Board and set forth in the Award Agreement which may be a fixed or variable price related to
the Fair Market Value of the Shares; provided, however, that no Share Appreciation Right may be
granted to an individual subject to taxation in the United States at less than the Fair Market
Value on the date of grant, without compliance with Section 409A of the Code, or the Holder’s
consent. The exercise price per Share subject to a Share Appreciation Right may be amended or
adjusted in the absolute discretion of the Board, the determination of which shall be final,
binding and conclusive, provided, however, that such price is fair and reasonable to the Company.
For the avoidance of doubt, to the extent not prohibited by Applicable Laws (including any
applicable securities exchange rule), a downward adjustment of the exercise prices of Share
Appreciation Rights mentioned in the preceding sentence shall be
13
effective without the approval of the Company’s shareholders or the approval of the affected
Holders.
(d) In the case of a Share Appreciation Right that is a Substitute Award, the price per share
of the shares subject to such Share Appreciation Right may be less than the Fair Market Value per
share on the date of grant, provided, that the excess of: (a) the aggregate Fair Market
Value (as of the date such Substitute Award is granted) of the shares subject to the Substitute
Award, over (b) the aggregate exercise price thereof does not exceed the excess of: (x) the
aggregate fair market value (as of the time immediately preceding the transaction giving rise to
the Substitute Award, such fair market value to be determined by the Board) of the shares of the
predecessor entity that were subject to the grant assumed or substituted for by the Company, over
(y) the aggregate exercise price of such shares and that such price is fair and reasonable to the
Company.
8.2 Share Appreciation Right Vesting.
(a) The period during which the right to exercise, in whole or in part, a Share Appreciation
Right vests in the Holder shall be set by the Board and the Board may determine that a Share
Appreciation Right may not be exercised in whole or in part for a specified period after it is
granted. Such vesting may be based on service with the Service Recipients, or any other criteria
selected by the Board. At any time after grant of a Share Appreciation Right, the Board may, in
its sole discretion and subject to whatever terms and conditions it selects, accelerate the period
during which a Share Appreciation Right vests.
(b) No portion of a Share Appreciation Right which is unexercisable at Termination of Service
shall thereafter become exercisable, except as may be otherwise provided by the Board either in the
Award Agreement or by action of the Board following the grant of the Share Appreciation Right.
8.3 Manner of Exercise. All or a portion of an exercisable Share Appreciation Right
shall be deemed exercised upon delivery of all of the following to the Board of the Company, or
such other person or entity designated by the Board, or his, her or its office, as applicable:
(a) A written or electronic notice complying with the applicable rules established by the
Board stating that the Share Appreciation Right, or a portion thereof, is exercised. The notice
shall be signed by the Holder or other person then entitled to exercise the Share Appreciation
Right or such portion of the Share Appreciation Right;
(b) Such representations and documents as the Board, in its sole discretion, deems necessary
or advisable to effect compliance with all applicable provisions of the Securities Act and any
other federal, state or foreign securities laws or regulations. The Board may, in its sole
discretion, also take whatever additional actions it deems appropriate to effect such compliance;
and
(c) In the event that the Share Appreciation Right shall be exercised pursuant to this Section
8.3 by any person or persons other than the Holder, appropriate proof of the right
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of such person or persons to exercise the Share Appreciation Right, in the sole discretion of
the Board.
8.4 Payment. Amounts payable upon exercise of a Share Appreciation Right shall be in
cash, Shares (based on its Fair Market Value as of the date the Share Appreciation Right is
exercised), or a combination of both, as determined by the Board.
ARTICLE 9.
ADDITIONAL TERMS OF AWARDS
9.1 Payment. The Board shall determine the methods by which payments by any Holder
with respect to any Awards granted under the Plan shall be made, including, without limitation:
(a) cash or check, (b) Shares (including, in the case of payment of the exercise price of an
Award, Shares issuable pursuant to the exercise of the Award) or Shares held for such period of
time as may be required by the Board in order to avoid adverse accounting consequences under
Applicable Accounting Standards, in each case, having a Fair Market Value on the date of delivery
equal to the aggregate payments required, (c) if the Shares are traded on one or more established
stock exchanges or national market systems by delivery of a notice that the Holder has placed a
market sell order with a broker with respect to Shares then issuable upon exercise or vesting of
an Award, and that the broker has been directed to pay a sufficient portion of the net proceeds of
the sale to the Company in satisfaction of the aggregate payments required, provided, that payment
of such proceeds is then made to the Company upon settlement of such sale, or (d) other form of
legal consideration acceptable to the Board. The Board shall also determine the methods by which
Shares shall be delivered or deemed to be delivered to Holders. Notwithstanding any other
provision of the Plan to the contrary, the payment of the exercise price by any Holder that is a
person resident in India (as defined under applicable foreign exchange laws and regulations in
India) shall be subject to and in accordance with applicable Indian laws and regulations,
including, without limitation, any foreign exchange laws and regulations which currently require
the remittance to the Company of such payment outside India through an authorized dealer.
9.2 Tax Withholding. No Shares shall be delivered under the Plan to any Holder until
such Holder has made arrangements acceptable to the Board for the satisfaction of any income,
employment, social welfare or other tax withholding obligations under Applicable Laws. Each
Service Recipient shall have the authority and the right to deduct, pay or withhold, or require a
Holder to remit to the applicable Service Recipient, an amount sufficient to satisfy federal,
state, local and foreign taxes (including the Holder’s employment, social welfare, fringe benefit
or other tax obligations) required by Applicable Laws to be withheld or paid with respect to any
taxable event concerning a Holder arising as a result of the Plan, and payment of any such taxes
due in respect of such Holder shall be the responsibility of such Holder. The Board may in its
sole discretion and in satisfaction of the foregoing requirement allow a Holder to elect to have
the Company withhold Shares otherwise issuable under an Award (or allow the surrender of Shares).
The number of Shares which may be so withheld or surrendered shall be limited to the number of
Shares which have a Fair Market Value on the date of withholding or repurchase equal to the
aggregate amount of such liabilities based on the minimum statutory withholding rates for tax
purposes that are applicable to such taxable income. The Board shall
15
determine the Fair Market Value of the Shares, consistent with Applicable Laws, for tax
withholding obligations due in connection with a broker-assisted cashless Option or Share
Appreciation Right exercise involving the sale of shares to pay the Option or Share Appreciation
Right exercise price or any tax withholding obligation.
9.3 Transferability of Awards.
(a) Except as otherwise provided in Section 9.3(b):
(i) No Award under the Plan may be sold, pledged, assigned or transferred in any manner other
than by will or the laws of descent and distribution or, subject to the consent of the Board, as
required under applicable domestic relations laws, unless and until such Award has been exercised,
or the shares underlying such Award have been issued, and all restrictions applicable to such
shares have lapsed;
(ii) No Award or interest or right therein shall be liable for the debts, contracts or
engagements of the Holder or his successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect, except to the extent
that such disposition is permitted by the preceding sentence; and
(iii) During the lifetime of the Holder, only the Holder can exercise an Award (or any portion
thereof) granted to him under the Plan, unless it has been disposed of pursuant to applicable
domestic relations law; after the death of the Holder, any exercisable portion of an Award may,
prior to the time when such portion becomes unexercisable under the Plan or the applicable Award
Agreement, be exercised by his personal representative or by any person empowered to do so under
the deceased Holder’s will or under the then Applicable Laws of descent and distribution.
(b) Notwithstanding Section 9.3(a), the Board, in its sole discretion, may determine to permit
a Holder (other than a deceased Holder) to transfer an Award to certain persons or entities related
to the Holder, including but not limited to members of the Holder’s family, charitable
institutions, or trusts or other entities whose beneficiaries or beneficial owners are members of
the Holder’s family and/or charitable institutions, or to such other persons or entities as may be
expressly approved by the Board, pursuant to such conditions and procedures as the Board may
establish, including the following conditions: (i) an Award transferred shall not be assignable or
transferable other than by will or the laws of descent and distribution; (ii) an Award transferred
shall continue to be subject to all the terms and conditions of the Award as applicable to the
original Holder (other than the ability to further transfer the Award); and (iii) the Holder and
the permitted transferee shall execute any and all documents requested by the Board, including,
without limitation documents to (A) confirm the status of the transferee as a permitted transferee,
(B) satisfy any requirements for an exemption for the transfer under Applicable Laws and (C)
evidence the transfer.
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(c) A legal guardian, legal representative, or other person claiming any rights pursuant to
the Plan is subject to all terms and conditions of the Plan and any Award Agreement applicable to
the Holder, except to the extent the Plan and Award Agreement otherwise provide, and to any
additional restrictions deemed necessary or appropriate by the Board. If the Holder is married and
resides in a community property jurisdiction, a designation of a person other than the Holder’s
spouse as his or her legal representative with respect to more than 50% of the Holder’s interest in
the Award shall not be effective without the prior written or electronic consent of the Holder’s
spouse. If no beneficiary has been designated or survives the Holder, payment shall be made to the
person entitled thereto pursuant to the Holder’s will or the laws of descent and distribution.
Subject to the foregoing, a beneficiary designation may be changed or revoked by a Holder at any
time provided the change or revocation is filed with the Board prior to the Holder’s death.
(d) Any transfer of shares or Awards by any Holder that is a person resident in India to any
person, including, without limitation, any person resident outside India, shall be subject to
applicable Indian laws and regulations, including, without limitation, foreign exchange laws and
regulations.
9.4 Conditions to Issuance of Shares.
(a) Notwithstanding anything herein to the contrary, the Company shall not be required to
issue or deliver any certificates or register on its share register Shares pursuant to the exercise
of any Award, unless and until the Board has determined, with advice of counsel, that the issuance
and registration of such Shares is in compliance with all Applicable Laws, and the Shares are
covered by an effective registration statement or applicable exemption from registration. In
addition to the terms and conditions provided herein, the Board may require that a Holder make such
reasonable covenants, agreements, and representations as the Board, in its discretion, deems
advisable in order to comply with any such laws, regulations, or requirements.
(b) All Share certificates delivered pursuant to the Plan and all shares registered on the
Company’s share register are subject to any stop-transfer orders and other restrictions as the
Board deems necessary or advisable to comply with all Applicable Laws, rules and regulations. The
Board shall place legends on any Share certificate or the Company’s share register to reference
restrictions applicable to the Shares.
(c) The Board shall have the right to require any Holder to comply with any timing or other
restrictions with respect to the settlement, distribution or exercise of any Award, including a
window-period limitation, as may be imposed in the sole discretion of the Board.
(d) No fractional Shares shall be issued and the Board shall determine, in its sole
discretion, whether cash shall be given in lieu of fractional shares or whether such fractional
shares shall be eliminated by rounding down.
(e) Notwithstanding any other provision of the Plan, unless otherwise determined by the Board
or required by any Applicable Laws, the Company shall not deliver to any Holder certificates
evidencing Shares issued in connection with any Award and instead such
17
Shares shall be registered solely on the Company’s share register (or, as applicable, its
transfer agent or share plan administrator).
9.5 Forfeiture Provisions. Pursuant to its general authority to determine the terms
and conditions applicable to Awards under the Plan, the Board shall have the right to provide, in
the terms of Awards made under the Plan, or to require a Holder to agree by separate written
instrument, that: (a)(i) any proceeds, gains or other economic benefit actually or constructively
received by the Holder upon any receipt or exercise of the Award, or upon the receipt or resale of
any Shares underlying the Award, must be paid to the Company, and (ii) the Award shall terminate
and any unexercised portion of the Award (whether or not vested) shall be forfeited, if (b)(i) a
Termination of Service occurs prior to a specified date, or within a specified time period
following receipt or exercise of the Award, or (ii) the Holder at any time, or during a specified
time period, engages in any activity in competition with the Company, or which is inimical,
contrary or harmful to the interests of the Company, as further defined by the Board or (iii) the
Holder incurs a Termination of Service for “cause” (as such term is defined in the sole discretion
of the Board, or as set forth in a written agreement relating to such Award between the Company
and the Holder).
9.6 Applicable Currency. Unless otherwise required by Applicable Laws, or as
determined in the discretion of the Board, all Awards shall be designated in U.S. dollars. A
Holder may be required to provide evidence that any currency used to pay the exercise price of any
Award were acquired and taken out of the jurisdiction in which the Holder resides in accordance
with Applicable Laws, including foreign exchange control laws and regulations. In the event the
exercise price for an Award is paid in another foreign currency, as permitted by the Board, the
amount payable will be determined by conversion from U.S. dollars at the exchange rate as selected
by the Board on the date of exercise.
ARTICLE 10.
ADMINISTRATION
10.1 Administrator. The Board shall administer the Plan (except as otherwise
permitted herein). Notwithstanding the foregoing, the Board may delegate its authority hereunder
to the extent permitted by Section 10.6.
10.2 Duties and Powers of Board. It shall be the duty of the Board to conduct the
general administration of the Plan in accordance with its provisions. The Board shall have the
power to interpret the Plan and the Award Agreement, and to adopt such rules for the
administration, interpretation and application of the Plan as are not inconsistent therewith, to
interpret, amend or revoke any such rules and to amend any Award Agreement provided that the
rights or obligations of the Holder of the Award that is the subject of any such Award Agreement
are not affected adversely by such amendment, unless the consent of the Holder is obtained or such
amendment is otherwise permitted under Section 11.10. Any such grant or award under the Plan need
not be the same with respect to each holder.
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10.3 Action by the Board. Board action shall be taken in accordance with the
Constitution of the Company as in effect from time to time. Each member of the Board is entitled
to, in good faith, rely or act upon any report or other information furnished to that member by
any officer or other employee of a Service Recipient, the Company’s independent certified public
accountants, or any executive compensation consultant or other professional retained by the
Company to assist in the administration of the Plan.
10.4 Authority of Board. Subject to any specific designation in the Plan, the Board
has the exclusive power, authority and sole discretion to:
(a) Designate Eligible Individuals to receive Awards;
(b) Determine the type or types of Awards to be granted to each Eligible Individual;
(c) Determine the number of Awards to be granted and the number of Shares to which an Award
will relate;
(d) Determine the terms and conditions of any Award granted pursuant to the Plan,
including, but not limited to, the exercise price or purchase price, as the case may be, any
reload provision, any restrictions or limitations on the Award, any schedule for vesting, lapse
of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations
or waivers thereof, and any provisions related to non-competition and recapture of gain on an
Award, based in each case on such considerations as the Board in its sole discretion determines;
(e) Determine whether, to what extent, and pursuant to what circumstances an Award may be
settled in, or the exercise price of an Award may be paid in cash, Shares, other Awards, or
other property, or an Award may be canceled, forfeited, or surrendered;
(f) Prescribe the form of each Award Agreement, which need not be identical for each
Holder;
(g) Decide all other matters that must be determined in connection with an Award;
(h) Establish, adopt, or revise any rules and regulations as it may deem necessary or
advisable to administer the Plan;
(i) Interpret the terms of, and any matter arising pursuant to, the Plan or any Award
Agreement; and
(j) Make all other decisions and determinations that may be required pursuant to the Plan
or as the Board deems necessary or advisable to administer the Plan.
19
10.5 Decisions Binding. The Board’s interpretation of the Plan, any Awards granted
pursuant to the Plan, any Award Agreement and all decisions and determinations by the Board with
respect to the Plan are final, binding, and conclusive on all parties.
10.6 Delegation of Authority. To the extent permitted by Applicable Laws, the Board
may from time to time delegate to one or more members of the Board or one or more officers of the
Company the authority to take other administrative actions pursuant to this Article, other than
any action of the Board which relate to the (a) issuance of Shares, (b) determination as to the
consideration for which the Shares are to be issued, (c) authorize dividends or distributions on
Shares, (d) issue Shares in lieu of dividends, (e) offer shareholder discounts, (f) acquisition of
Shares by the Company, (g) redemption of Shares by the Company, or (h) provision of financial
assistance for the purposes of or in connection with the acquisition of Shares. Any delegation
hereunder shall be subject to the restrictions and limits that the Board or Board specifies at the
time of such delegation, and the Board may at any time rescind the authority so delegated or
appoint a new delegatee. At all times, the delegatee appointed under this Section 10.6 shall
serve in such capacity at the pleasure of the Board.
ARTICLE 11.
MISCELLANEOUS PROVISIONS
11.1 Effective Date. The Plan has been adopted and approved by the Board, subject to
shareholder approval. The Plan will be effective as of the date it is approved by the Company’s
shareholders (the “Effective Date”). The Plan will be deemed to be approved by the
shareholders if it receives the affirmative vote of a majority (in excess of 50%) of the votes of
the Shares entitled to vote and present at a meeting duly held in accordance with the applicable
provisions of the Company’s Constitution. Awards may be granted or awarded prior to such
shareholder approval, provided that such Awards shall not be exercisable, shall not vest and the
restrictions thereon shall not lapse and no Shares shall be issued pursuant thereto prior to the
Effective Date, and provided further that if such approval has not been obtained within twelve
(12) months after adoption of the Plan by the Board, all Awards previously granted or awarded
under the Plan shall thereupon be canceled and become null and void.
11.2 Expiration Date. The Plan will expire on, and no Award may be granted pursuant
to the Plan after, the tenth anniversary of the Effective Date. Any Awards that are outstanding
on the tenth anniversary of the Effective Date shall remain in force according to the terms of the
Plan and the applicable Award Agreement.
11.3 Amendment, Suspension or Termination of the Plan. Except as otherwise provided
in this Section 11.3, at any time and from time to time, the Board may terminate, amend or modify
the Plan; provided, however, that (a) to the extent necessary and desirable to comply with
Applicable Laws the Company shall obtain shareholder approval of any Plan amendment in such a
manner and to such a degree as required, and (b) shareholder approval is required for any
amendment to the Plan that results in an increase in benefits under the Plan that would not apply
equally to all shareholders of the Shares, or a change in Eligible Individuals. Except as
provided in the Plan or any Award Agreement, no amendment,
20
suspension or termination of the Plan shall, without the consent of the Holder, impair any
rights or obligations under any Award theretofore granted or awarded.
11.4 No Shareholders Rights. Except as otherwise provided herein, a Holder shall
have none of the rights of a shareholder with respect to Shares covered by any Award until the
Holder’s name has been entered in the share registry of the Company with respect to those Shares.
11.5 Paperless Administration. In the event that the Company establishes, for itself
or using the services of a third party, an automated system for the documentation, granting or
exercise of Awards, such as a system using an internet website or interactive voice response, then
the paperless documentation, granting or exercise of Awards by a Holder may be permitted through
the use of such an automated system.
11.6 Effect of Plan upon Other Compensation Plans. The adoption of the Plan shall
not affect any other compensation or incentive plans in effect for a Service Recipient. Nothing
in the Plan shall be construed to limit the right of a Service Recipient; (a) to establish any
other forms of incentives or compensation for Eligible Individuals, or (b) to grant or assume
options or other rights or awards otherwise than under the Plan in connection with any proper
corporate purpose including, without limitation, the grant or assumption of options in connection
with the acquisition by purchase, lease, merger, consolidation or otherwise, of the business,
securities or assets of any corporation, partnership, limited liability company, firm or
association.
11.7 Compliance with Laws. The Plan, the granting and vesting of Awards under the
Plan and the issuance and delivery of Shares and the payment of money under the Plan or under
Awards granted or awarded hereunder are subject to compliance with all Applicable Laws, rules and
regulations (including but not limited to securities law, margin requirements, foreign exchange,
taxation and private placement laws, rules, regulations and approvals), and to such approvals by
any listing, regulatory or governmental authority as may, in the opinion of counsel for the
Company, be necessary or advisable in connection therewith. Any securities delivered under the
Plan shall be subject to such restrictions, and the person acquiring such securities shall, if
requested by the Company, provide such assurances and representations to the Company as the
Company may deem necessary or desirable to assure compliance with all applicable legal
requirements. To the extent permitted by Applicable Law, the Plan and Awards granted or awarded
hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and
regulations.
11.8 Titles and Headings, References to Sections of the Code or Exchange Act. The
titles and headings of the Sections in the Plan are for convenience of reference only and, in the
event of any conflict, the text of the Plan, rather than such titles or headings, shall control.
References to sections of the Code or the Exchange Act shall include any amendment or successor
thereto.
11.9 Governing Law. The Plan and any agreements hereunder shall be administered,
interpreted and enforced under the internal laws of Mauritius without regard to conflicts of laws
thereof.
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11.10 Section 409A. To the extent that the Board determines that any Award granted
under the Plan is subject to Section 409A of the Code, the Award Agreement evidencing such Award
shall incorporate the terms and conditions required by Section 409A of the Code. To the extent
applicable, the Plan and Award Agreements shall be interpreted in accordance with Section 409A of
the Code and Department of Treasury regulations and other interpretive guidance issued thereunder,
including, without limitation, any such regulations or other guidance that may be issued after the
Effective Date. Notwithstanding any provision of the Plan to the contrary, in the event that
following the Effective Date the Board determines that any Award may be subject to Section 409A of
the Code and related Department of Treasury guidance (including such Department of Treasury
guidance as may be issued after the Effective Date), the Board may adopt such amendments to the
Plan and the applicable Award Agreement or adopt other policies and procedures (including
amendments, policies and procedures with retroactive effect), or take any other actions, that the
Board determines are necessary or appropriate to (a) exempt the Award from Section 409A of the
Code and/or preserve the intended tax treatment of the benefits provided with respect to the
Award, or (b) comply with the requirements of Section 409A of the Code and related Department of
Treasury guidance and thereby avoid the application of any penalty taxes under such Section.
11.11 No Rights to Awards. No Eligible Individual or other person shall have any
claim to be granted any Award pursuant to the Plan, and subject to Applicable Laws, the Company
and the Board may treat Eligible Individuals, Holders or any other persons as they deem
appropriate under the Plan.
11.12 No Right to Employment or Services. Nothing in the Plan or any Award Agreement
shall interfere with or limit in any way the right of the Service Recipient to terminate any
Holder’s employment or services at any time, nor confer upon any Holder any right to continue in
the employ or service of any Service Recipient.
11.13 Unfunded Status of Awards. The Plan is intended to be an “unfunded” plan for
incentive compensation. With respect to any payments not yet made to a Holder pursuant to an
Award, nothing contained in the Plan or any Award Agreement shall give the Holder any rights that
are greater than those of a general creditor of the Company, any Subsidiary or any Related Entity.
11.14 Indemnification. To the extent allowable pursuant to Applicable Laws, each
member of the Board or of the Board shall be indemnified and held harmless by the Company from any
loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member
in connection with or resulting from any claim, action, suit, or proceeding to which he or she may
be a party or in which he or she may be involved by reason of any action or failure to act
pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction
of judgment in such action, suit, or proceeding against him or her; provided he or she gives the
Company an opportunity, at its own expense, to handle and defend the same before he or she
undertakes to handle and defend it on his or her own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to which such
persons may be entitled pursuant to the Company’s Constitution, as a matter of law, or otherwise,
or any power that the Company may have to indemnify them or hold them harmless.
22
11.15 Relationship to other Benefits. No payment pursuant to the Plan shall be taken
into account in determining any benefits under any pension, retirement, savings, profit sharing,
group insurance, welfare or other benefit plan of any Service Recipient except to the extent
otherwise expressly provided in writing in such other plan or an agreement thereunder.
11.16 Expenses. The expenses of administering the Plan shall be borne by the Service
Recipients.
ARTICLE 12.
CHANGES IN CAPITAL STRUCTURE
12.1 Adjustments. In the event of any distribution, share split, combination or
exchange of Shares, amalgamation, arrangement or consolidation, reorganization of the Company,
including the Company becoming a subsidiary in a transaction not involving a Corporate
Transaction, spin-off, recapitalization or other distribution (other than normal cash dividends)
of Company assets to its shareholders, or any other change affecting the Shares or the share price
of a Share, the Board shall make such proportionate and equitable adjustments, if any, to reflect
such change with respect to (a) the aggregate number and type of shares that may be issued under
the Plan (including, but not limited to, adjustments of the limitations in Section 3.1 and
substitutions of shares in a parent or surviving company); (b) the terms and conditions of any
outstanding Awards (including, without limitation, any applicable performance targets or criteria
with respect thereto); and (c) the grant or exercise price per share for any outstanding Awards
under the Plan. The form and manner of any such adjustments shall be determined by the Board in
its sole discretion.
12.2 Corporate Transactions. Except as may otherwise be provided in any Award
Agreement or any other written agreement entered into by and between the Company and a Holder, if
a Corporate Transaction occurs and a Holder’s Awards are not converted, assumed, or replaced by a
successor as provided in Section 12.3, such Awards shall become fully exercisable and all
forfeiture restrictions on such Awards shall lapse. Upon, or in anticipation of, a Corporate
Transaction, the Board may in its sole discretion provide for (a) any and all Awards outstanding
hereunder to terminate at a specific time in the future and shall give each Holder the right to
exercise such Awards during a period of time as the Board shall determine, (b) either the purchase
of any Award for an amount of cash equal to the amount that could have been attained upon the
exercise of such Award or realization of the Holder’s rights had such Award been currently
exercisable or payable or fully vested (and, for the avoidance of doubt, if as of such date the
Board determines in good faith that no amount would have been attained upon the exercise of such
Award or realization of the Holder’s rights, then such Award may be terminated by the Company
without payment), or (c) the replacement of such Award with other rights or property selected by
the Board in its sole discretion or the assumption of or substitution of such Award by the
successor or surviving corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of Shares and prices.
12.3 Assumption of Awards – Corporate Transactions. In the event of a Corporate
Transaction, each Award may be assumed by the successor entity or Parent thereof in connection
with the Corporate Transaction. Except as provided otherwise in an individual
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Award Agreement, an Award will be considered assumed if the Award either is (a) assumed by
the successor entity or Parent thereof or replaced with a comparable Award (as determined by the
Board) with respect to capital shares (or equivalent) of the successor entity or Parent thereof or
(b) replaced with a cash incentive program of the successor entity which preserves the
compensation element of such Award existing at the time of the Corporate Transaction and provides
for subsequent payout in accordance with the same vesting schedule applicable to such Award. If
an Award is assumed in a Corporate Transaction, then such Award, the replacement Award or the cash
incentive program automatically shall become fully vested, exercisable and payable and be released
from any restrictions on transfer (other than transfer restrictions applicable to Options) and
repurchase or forfeiture rights, immediately upon termination of the Holder’s employment or
service with all Service Recipients within twelve (12) months of the Corporate Transaction without
cause.
12.4 Outstanding Awards – Other Changes. In the event of any other change in the
capitalization of the Company or corporate change other than those specifically referred to in
this Article 12, the Board may, in its absolute discretion, make such adjustments in the number
and class of shares subject to Awards outstanding on the date on which such change occurs and in
the per share grant or exercise price of each Award as the Board may consider appropriate to
prevent dilution or enlargement of rights.
12.5 No Other Rights. Except as expressly provided in the Plan, no Holder shall have
any rights by reason of (i) any subdivision or consolidation of shares of any class, (ii) the
payment of any dividend, (iii) any increase or decrease in the number of shares of any class or
(iv) any dissolution, liquidation, merger, or consolidation of the Company or any other
corporation. Except as expressly provided in the Plan or pursuant to action of the Board under
the Plan, no issuance by the Company of shares of any class, or securities convertible into shares
of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares subject to an Award or the grant or exercise price of any Award.
* * * * *
I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of MakeMyTrip
Limited on May 25, 2010.
* * * * *
I
hereby certify that the foregoing Plan was approved by the shareholders of MakeMyTrip Limited on May 25, 2010.
Executed
on this 25 day of
May, 2010.
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/s/
Mohammad Akhtar Janally
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Corporate Secretary |
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