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  Staff Interpretation Letter 2008-32
Identification Number 776
This is in response to your correspondence regarding whether a proposed amendment (the “Amendment”) to the Plan would require shareholder approval pursuant to Marketplace Listing Rule 4350(i)(1)(A) and IM-4350-5 (collectively, the “Rule”).
According to the information you provided, the Plan currently provides for awards of various types including Restricted Stock awards (“Restricted Stock Awards”), which are awards of common stock subject to forfeiture by the recipient.  Pursuant to the provisions of the Plan, the Plan’s administrator has the sole discretion: (i) to determine the conditions under which Restricted Stock Awards are required to be forfeited;  and (ii) to establish the restricted period (the “Restricted Period”), which is the period of time that Restricted Stock Awards are subject to forfeiture.  The Plan does not require that the Restricted Period have a minimum length.  In addition, the Plan authorizes the administrator to waive, at its discretion, any forfeiture provisions in outstanding awards.
Pursuant to the Amendment, the Plan would provide for awards of Common Stock that are not subject to forfeiture (“Stock Awards”).
Following our review of the information you provided, we have determined that the Amendment is not a material amendment under the Rule.  In that regard, we note that the Amendment would not result in a material increase in benefits to participants, or in an expansion of the types of awards available, because the administrator currently has the authority to make awards that are substantially the equivalent of the Stock Awards.  Specifically, the administrator has the authority to grant Restricted Stock Awards with a nominal Restricted Period and to waive any forfeiture provisions, thereby permitting the administrator to grant what are effectively Stock Awards.  We also note that the Amendment would not result in an increase in the number of shares to be issued under the Plan or in an expansion of the class of eligible participants.
Publication Date*: 7/31/2012 Mailto Link Identification Number: 776
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