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  Staff Interpretation Letter 2007-16
Identification Number 792
This is in response to your correspondence regarding whether recently adopted amendments (the “Amendments”) to the Plans 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, pursuant to the Amendments, any unvested options granted under the Plans to non-employee members of the company’s board of directors will become fully vested and exercisable in the event of a change in control, as such term is defined in the Plans.  No other changes will be made to the Plans pursuant to the Amendments.  You stated that the company was not in discussions with any party at the time it amended the Plans, nor is it currently in discussions with any party, to consummate the type of transaction that would constitute a change of control that would trigger this acceleration of vesting.
Following our review of the information you provided, we have determined that the Amendments are not material under the Rule.  In that regard, we note that the Amendments will not result in any material increase in the number of shares to be issued under the Plan; any material increase in the benefits to participants; any material expansion to the class of participants; or any expansion in the types of options or awards available.  Accordingly, the Rule does not require shareholder approval for the Amendments.
Publication Date*: 7/31/2012 Mailto Link Identification Number: 792
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