Exhibit 10.1
2009 Incentive Compensation Plan
SWAV ENTERPRISES, LTD.
(the “Company”)
2009 INCENTIVE COMPENSATION PLAN
1.
PURPOSE
The purpose of this 2009 Incentive Compensation Plan of SWAV
ENTERPRISES, LTD., is to advance the interests of the Company (as
herein defined) by encouraging Eligible Employees (as herein
defined) to acquire shares of the Company, thereby increasing their
proprietary interest in the Company, encouraging them to remain
associated with the Company and furnishing them with additional
incentive to advance the interests of the Company in the conduct of
their affairs.
2.
DEFINITIONS
As used herein, the following definitions shall apply:
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(a)
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" Administrator " means
the Board or a Committee of the Board duly appointed by the Board
as the Administrator hereof.
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(b)
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" Affiliate " and "
Associate " shall have the respective meanings ascribed to
such terms in the Securities Act.
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(c)
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" Applicable Laws " means
the legal requirements relating to the administration of incentive
compensation plans, if any, under applicable provisions of federal
securities laws, state corporate and securities laws, the
Securities Act, the rules of any applicable stock exchange or
national market system, and the rules of any foreign jurisdiction
applicable to Awards granted to residents therein.
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(d)
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" Award " means the grant
of Performance Shares or other right or benefit under the
Plan.
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(e)
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" Award Agreemen t" means
the written agreement evidencing the grant of an Award executed by
the Company and the Grantee, including any amendments
thereto.
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(f)
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" Board " means the Board
of Directors of the Company.
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(g)
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" Cause " means, with
respect to the termination by the Company or a Related Entity of
the Grantee's Continuous Service, that such termination is for
`Cause' as such term is expressly defined in a then- effective
written agreement between the Grantee and the Company or such
Related Entity, or in the absence of such then-effective written
agreement and definition, is based on, in the determination of the
Administrator, the Grantee's:
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(i)
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refusal or failure to act in
accordance with any specific, lawful direction or order of the
Company or a Related Entity;
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(ii)
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unfitness or unavailability for
service or unsatisfactory performance (other than as a result of
Disability);
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(iii)
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performance of any act or failure
to perform any act in bad faith and to the detriment of the Company
or a Related Entity;
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(iv)
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dishonesty, intentional
misconduct or material breach of any agreement with the Company or
a Related Entity; or
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(v)
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commission of a crime involving
dishonesty, breach of trust, or physical or emotional harm to any
person.
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(h)
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" Change in Control "
means a change in ownership or control of the Company effected
through either of the following transactions:
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(i)
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the direct or indirect
acquisition by any person or related group of persons (other than
an acquisition 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 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
Continuing Directors who are not Affiliates or Associates of the
offeror do not recommend such shareholders accept, or
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(ii)
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a change in the composition of
the Board over a period of thirty-six (36) months or less such that
a majority of the Board members (rounded up to the next whole
number) ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who are Continuing
Directors.
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(i)
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" Committee " means any
committee appointed by the Board to administer the Plan.
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(j)
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" Common Stock " means the
common stock of the Company.
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(k)
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" Company " means SWAV
ENTERPRISES, LTD., a Nevada company.
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(l)
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" Consultan t" means any
person (other than an Employee or solely with respect to rendering
services in such person's capacity as a Director) who is engaged by
the Company or any Related Entity to render consulting or advisory
services to the Company or such Related Entity.
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(m)
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" Continuing Directors "
means members of the Board who either (i) have been Board members
continuously for a period of at least thirty-six (36) months or
(ii) have been Board members for less than thirty-six (36) months
and were elected or nominated for election as Board members by at
least a majority of the Board members described in clause 2.(h)(ii)
who were still in office at the time such election or nomination
was approved by the Board.
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(n)
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" Continuous Service "
means that the provision of services to the Company or a Related
Entity in any capacity of Employee or Consultant is not interrupted
or terminated. Continuous Service shall not be considered
interrupted in the case of (i) any approved leave of absence, (ii)
transfers between locations of the Company or among the Company,
any Related Entity, or any successor, in any capacity of Employee,
Director or Consultant, or (iii) any change in status as long as
the individual remains in the service of the Company or a Related
Entity in any capacity of Employee, Director or Consultant (except
as otherwise provided in the Award Agreement). An approved leave of
absence shall include sick leave, military leave, or any other
authorized personal leave. No such leave may exceed ninety (90)
days, unless reemployment upon expiration of such leave is
guaranteed by statute or contract.
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(o)
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" Corporate Transaction "
means any of the following transactions:
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(i)
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a merger or consolidation in
which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the
jurisdiction in which the Company is organized;
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(ii)
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the sale, transfer or other
disposition of all or substantially all of the assets of the
Company (including the capital stock of the Company's subsidiary
corporations) in connection with the complete liquidation or
dissolution of the Company; or
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(iii)
any reverse merger in which the
Company is the surviving entity but in which securities possessing
more than fifty percent (50%) of the total combined voting power of
the Company's outstanding securities are transferred to a person or
persons different from those who held such securities immediately
prior to such merger.
(p)
" Director " means a member
of the Board or the board of directors of any Related
Entity.
(q)
" Disability " means that a
Grantee is unable to carry out the responsibilities and functions
of the position held by the Grantee by reason of any medically
determinable physical or mental impairment. A Grantee will not be
considered to have incurred a Disability unless he or she furnishes
proof of such impairment sufficient to satisfy the Administrator in
its discretion.
(r)
" Eligible Employee " means
any person who is an Employee or a Consultant.
(s)
" Employee " means any
person, including an Officer or Director, who is a full-time or
part-time employee of the Company or any Related Entity.
(t)
" Fair Market Value " means,
as of any date, the value of Common Stock determined as
follows:
(i)
Where there exists a public market
for the Common Stock, the Fair Market Value shall be (A) the
average closing price for a Share for the last seven (7) market
trading days prior to the time of the determination (or, if no
closing price was reported on those days, on the last seven trading
days on which a closing price was reported) on the stock exchange
determined by the Administrator to be the primary market for the
Common Stock or the NASDAQ National Market, whichever is applicable
or (B) if the Common Stock is not traded on any such exchange or
national market system, the average of the closing bid and asked
prices of a Share on the NASDAQ Small Cap Market for the seven (7)
days prior to the time of the determination (or, if no such prices
were reported on those days, on the last seven days on which such
prices were reported), in each case, as reported in The Wall
Street Journal or such other source as the Administrator deems
reliable; or
(ii)
In the absence of an established
market for the Common Stock of the type described in 2.(t)(i),
above, the Fair Market Value thereof shall be determined by the
Administrator in good faith.
(u)
" Grantee " means an Eligible
Employee who receives an Award pursuant to an Award Agreement under
the Plan.
(v)
" Insider " means:
(i)
a Director or Senior Officer of the
Company;
(ii)
a Director or Senior Officer of a
person that is itself an Insider or Subsidiary of the
Company;
(iii)
a person that has:
A.
direct or indirect beneficial
ownership of,
B.
control or direction over,
or
C.
a combination of direct or indirect
beneficial ownership of and control or direction over securities of
the Company carrying more than 10% of the voting rights attached to
all the Company's outstanding voting securities, excluding,
for the purpose of the calculation of the percentage
held, any securities held by the person as underwriter in the
course of a distribution, or
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(iv)
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the Company itself, if it has
purchased, redeemed or otherwise acquired any securities of its own
issue, for so long as it continues to hold those
securities.
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(w)
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" Officer " means a person
who is an officer, including a Senior Officer, of the Company or a
Related Entity within the meaning prescribed to under the
Securities Act and the rules and regulations promulgated
thereunder.
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(x)
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" Option " means an option
to purchase Shares pursuant to an Award Agreement granted under the
Plan.
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(y)
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" Parent " means a "parent
corporation", whether now or hereafter existing, which holds a
majority of the voting shares of the Company.
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(z)
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" Performance Shares "
means Shares or an Award denominated in Shares which may be earned
in whole or in part upon attainment of performance criteria
established by the Administrator not to exceed an aggregate of
19,607,493 Shares.
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(aa)
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" Performance Units "
means an Award which may be earned in whole or in part upon
attainment of performance criteria established by the Administrator
and which may be settled for cash, Shares or other securities or a
combination of cash, Shares or other securities as established by
the Administrator.
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(bb)
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" Plan " means this 2009
Incentive Compensation Plan as approved by Board consent with
effect from September 29, 2009.
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(cc)
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" Related Entity " means
any Parent, Subsidiary and any business, corporation, partnership,
limited liability company or other entity in which the Company, a
Parent or a Subsidiary holds a substantial ownership interest,
directly or indirectly.
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(dd)
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" Restricted Stock " means
Shares issued under the Plan to the Grantee for such consideration,
if any, and
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