Exhibit 10.44
FIRST AMENDMENT
TO OURPET’S
COMPANY
2008 STOCK OPTION
PLAN
OURPET’S COMPANY
(the “Company”), having
adopted the OurPet’s Company 2008 Stock Option Plan (the
“Original Plan”) effective as of May 2, 2008,
hereby amends the Original Plan in accordance with this First
Amendment to OurPet’s Company 2008 Stock Option Plan,
effective as of December 31, 2008 (the
“Amendment,” and together with the Original Plan, the
“Amended Plan”), as follows:
1. Changes to Section 1
of the Original Plan . The Company hereby amends Section 1 of the
Original Plan as follows:
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(a)
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The following
is added in its entirety as the fourth sentence of Section 1
in the Amended Plan:
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This Plan and any Awards granted
hereunder are intended to be exempt from the requirements of
Section 409A, and shall be interpreted and administered in a
manner consistent with those intentions.
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(b)
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The following
is added in its entirety as a defined term in Section 1 of the
Amended Agreement (which definition shall be added in
Section 1 following the definition of the term “Fair
Market Value”):
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“Grant Date” means, with
respect to an Award, the date such Award is granted to a
Participant. The Grant Date of an Award shall not be earlier than
the date the Award is approved by the Committee.
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(c)
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The following
is added in its entirety as a defined term in Section 1 of the
Amended Agreement (which definition shall be added in
Section 1 following the definition of the term
“Restricted Stock Award”):
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“Section 409A” means
Section 409A of the Code and the U.S. Department of Treasury
regulations and other interpretive guidance issued
thereunder.
2. Changes to Section 2
of the Original Plan . The Company hereby amends Section 2 of the
Original Plan as follows:
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(a)
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The first
sentence of Section 2(b) (exclusive of subparagraphs
(i) through (viii) of such sentence) is deleted from the
Original Plan in its entirety and is replaced in the Amended Plan
(immediately before subparagraphs (i) through (viii) of
the first sentence) by the following:
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The Administrator shall have the
power and authority, subject to and within the limitations of the
express provisions of the Plan and Section 409A, to grant Awards
consistent with the terms of the Plan, including the power and
authority:
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(b)
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The following
is added in its entirety as Section 2(c) of the Amended
Plan:
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(c) Section 409A.
Notwithstanding the foregoing, to ensure compliance with
Section 409A each of the following limitations shall apply to
the power and authority of the Administrator under
Section 2(b) above:
(i) No modification shall be made
under Section 2(b)(iv) above which will result in an Award
becoming subject to the terms and conditions of Section 409A
or otherwise constitute an impermissible acceleration, unless
agreed upon by the Administrator and the participant.
(ii) Any acceleration of the
exercisability or vesting of all or any portion of any Award is
subject to the limitations of Section 409A and, unless
otherwise determined by the Administrator, any acceleration of the
exercisability or vesting of the Award under Section 2(b)(v)
above shall comply with Section 409A.
(iii) With respect to extensions
that were not included in the original terms of an Option but were
provided by the Administrator after the date of grant, if at the
time of any such extension, the exercise price per Share of the
Option is less than the Fair Market Value of a Share, the extension
shall, unless otherwise determined by the Administrator, be limited
to the earlier of (A) the maximum term of the Option as set by
its original terms or (B) ten (10) years from the Grant
Date. Unless otherwise determined by the Administrator, any
extension of the term of an Option under Section 2(b)(vi)
above shall comply with Section 409A to the extent
applicable.
(iv) No Share or other amount
payable with respect to an Award granted to a participant shall be
deferred if such deferral constitutes a “deferral of
compensation” within the meaning of Section 409A or
otherwise causes the Share or other amount payable with respect to
an Award to be subject to the requirements of
Section 409A.
