EX-10.11



 





CCS MEDICAL HOLDINGS, INC.



2007 STOCK INCENTIVE PLAN




          1. Purpose.




          The purpose of the Plan is to assist the Company in attracting, retaining, motivating and
rewarding certain key employees, officers, directors and consultants of the Company and its
Affiliates, and promoting the creation of long-term value for stockholders of the Company by
closely aligning the interests of such individuals with those of such stockholders. The Plan
authorizes the award of Stock-based incentives to Eligible Persons to encourage such persons to
expend their maximum efforts in the creation of stockholder value.




          2. Definitions.




          For purposes of the Plan, the following terms shall be defined as set forth below:




          (a) “Affiliate” means, with respect to any entity, any other entity that, directly or
indirectly through one or more intermediaries, controls, is controlled by or is under common
control with, such entity.




          (b) “Award” means any Option, Restricted Stock or other Stock-based award granted
under the Plan.




          (c) “Board” means the Board of Directors of the Company.




          (d) “Cause” means, in the absence of any employment agreement between a Participant
and the Employer otherwise defining Cause, (i) incompetence, fraud, personal dishonesty, or acts of
gross negligence or willful misconduct on the part of a Participant in the course of his or her
employment or services; (ii) a Participant’s engagement in conduct that is materially injurious to
the Company or its Affiliates; (iii) misappropriation by a Participant of the assets or business
opportunities of the Company or its Affiliates; (iv) embezzlement or other financial fraud
committed by a Participant, at his or her direction, or with his or her personal knowledge; (v) a
Participant’s conviction by a court of competent jurisdiction of, or pleading “guilty” or “no
contest” to, (x) a felony, or (y) any other criminal charge (other than minor traffic violations)
which could reasonably be expected to have a material adverse impact on the Company’s or an
Affiliate’s reputation or business; or (vi) failure by a Participant to follow the lawful
directions of a superior officer or the Board. In the event there is an employment agreement
between a Participant and the Employer defining Cause, “Cause” shall have the meaning provided in
such agreement.




          (e) “Change in Control” means:





          (i) a change in ownership or control of the Company effected through a transaction or
series of transactions (other than an offering of Stock to the general public through a
registration statement filed with the Securities and Exchange Commission) whereby any
“person” or related “group” of “persons” (as such terms are used in Sections 13(d) and
14(d)(2) of the Exchange Act), other than any Affiliate of the Company, or an employee
benefit plan maintained by the Company or any of its



 









 






Affiliates, directly or indirectly acquires “beneficial ownership” (within the meaning
of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than
fifty percent (50%) of the total combined voting power of the Company’s securities
outstanding immediately after such acquisition;




          (ii) the date upon which individuals who, as of the Effective Date, constitute the
Board (the “Incumbent Board”), cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by the Company’s stockholders,
was approved by a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or consents by
or on behalf of a person other than the Board; or




          (iii) the sale or disposition, in one or a series of related transactions, of all or
substantially all of the assets of the Company to any “person” or “group” (as such terms are
defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other than the Company’s
Affiliates.



          (f) “Code” means the Internal Revenue Code of 1986, as amended from time to time,
including regulations thereunder and successor provisions and regulations thereto.




          (g) “Committee” means the Board or such other committee appointed by the Board
consisting of two or more individuals.




          (h) “Company” means CCS Medical Holdings, Inc., a Delaware corporation.




          (i) “Disability” means, in the absence of any employment agreement between a
Participant and the Employer otherwise defining Disability, the permanent and total disability of a
person within the meaning of Section 22(e)(3) of the Code. In the event there is an employment
agreement between a Participant and the Employer defining Disability, “Disability” shall have the
meaning provided in such agreement.




          (j) “Disqualifying Disposition” means any disposition (including any sale) of Stock
acquired by exercise of an Incentive Stock Option made within the period which is either (i) two
years after the date the Participant was granted the Incentive Stock Option, or (ii) one year after
the date the Participant acquired Stock by exercising the Incentive Stock Option.




          (k) “Effective Date” shall mean August [___], 2007.




          (l) “Eligible Person” means (i) each employee of the Company or of any of its
Affiliates, including each such person who may also be a director of the Company and/or its
Affiliates; (ii) each non-employee director of the Company and/or its Affiliates; (iii) each other
person who provides substantial services to the Company and/or its Affiliates and who is designated
as eligible by the Committee; and (iv) any person who has been offered employment





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by the Company or its Affiliates; provided, that such prospective employee may not receive any
payment or exercise any right relating to an Award until such person has commenced employment with
the Company or its Affiliates. An employee on an approved leave of absence may be considered as
still in the employ of the Company or its Affiliates for purposes of eligibility for participation
in the Plan.




          (m) “Employer” means either the Company or an Affiliate of the Company that the
Participant (determined without regard to any transfer of an Award) is principally employed by or
provides services to, as applicable.




          (n) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, including rules thereunder and successor provisions and rules thereto.




          (o) “Expiration Date” means the date upon which the term of an Option expires, as
determined under Section 5(b) hereof.




          (p) “Fair Market Value” means, as of any date when the Stock is listed on one or more
national securities exchanges, the closing price reported on the principal national securities
exchange on which such Stock is listed and traded on the date of determination. If the Stock is
not listed on an exchange, or representative quotes are not otherwise available, the Fair Market
Value shall mean the amount determined by the Board in good faith to be the fair market value per
share of Stock.




          (q) “Incentive Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.




          (r) “Nonqualified Stock Option” means an Option not intended to qualify as an
Incentive Stock Option.




          (s) “Option” means a conditional right, granted to a Participant under Section 5
hereof, to purchase Stock at a specified price during specified time periods. Certain Options
granted under the Plan are intended to qualify as Incentive Stock Option.




          (t) “Option Agreement” means a written agreement between the Company and a Participant
evidencing the terms and conditions of an individual Option grant.




          (u) “Participant” means an Eligible Person who has been granted an Award under the
Plan, or if applicable, such other person or entity who holds an Award.




          (v) “Plan” means this CCS Medical Holdings, Inc. 2007 Stock Incentive
Plan.




          (w) “Qualified Member” means a member of the Committee who is a “Non-Employee
Director” within the meaning of Rule 16b-3 and an “outside director” within the meaning of
Regulation 1.162-27(c) under Code Section 162(m).





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          (x) “Restricted Stock” means Stock granted to a Participant under Section 6 hereof
that is subject to certain restrictions and to a risk of forfeiture.




          (y) “Restricted Stock Agreement” means a written agreement between the Company and a
Participant evidencing the terms and conditions of an individual Restricted Stock grant.




          (z) “Securities Act” means the Securities Act of 1933, as amended from time to time,
including rules thereunder and successor provisions and rules thereto.




          (aa)
“Stock” means the Company’s Common Stock, par value $0.01 per share, and such
other securities as may be substituted for such stock pursuant to Section 8 hereof.




          3. Administration.




          (a) Authority of the Committee. Except as otherwise provided below, the Plan shall be
administered by the Committee. The Committee shall have full and final authority, in each case
subject to and consistent with the provisions of the Plan, to (i) select Eligible Persons to become
Participants; (ii) grant Awards; (iii) determine the type, number of shares of Stock subject to,
and other terms and conditions of, and all other matters relating to, Awards; (iv) prescribe Award
agreements (which need not be identical for each Participant) and rules and regulations for the
administration of the Plan; (v) construe and interpret the Plan and Award agreements and correct
defects, supply omissions, or reconcile inconsistencies therein; (vi) suspend the right to exercise
Awards during any period that the Committee deems appropriate to comply with applicable securities
laws, and thereafter extend the exercise period of an Award by an equivalent period of time, and
(vii) make all other decisions and determinations as the Committee may deem necessary or advisable
for the administration of the Plan. The foregoing notwithstanding, the Board shall perform the
functions of the Committee for purposes of granting Awards under the Plan to non-employee
directors. In any case in which the Board is performing a function of the Committee under the
Plan, each reference to the Committee herein shall be deemed to refer to the Board, except where
the context otherwise requires. Any action of the Committee shall be final, conclusive and binding
on all persons, including, without limitation, the Company, its Affiliates, Eligible Persons,
Participants and beneficiaries of Participants.




          (b) Manner of Exercise of Committee Authority. At any time that a member of the
Committee is not a Qualified Member, (i) any action of the Committee relating to an Award intended
by the Committee to qualify as “performance-based compensation” within the meaning of Section
162(m) of the Code and regulations thereunder may be taken by a subcommittee, designated by the
Committee or the Board, composed solely of two or more Qualified Members (a “Qualifying
Committee”); and (ii) any action relating to an Award granted or to be granted to a Participant
who is then subject to Section 16 of the Exchange Act in respect of the Company may be taken either
by such a Qualifying Committee, or by the Committee but with each such member who is not a
Qualified Member abstaining or recusing himself or herself from such action; provided, that upon
such abstention or recusal, the Committee remains composed of two or more Qualified Members. Any
action authorized by such a Qualifying Committee or by the Committee upon the abstention or recusal
of such non-Qualified Member(s)





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shall be deemed to be the action of the Committee for purposes of the Plan. The express grant
of any specific power to the Committee, and the taking of any action by the Committee, shall not be
construed as limiting any power or authority of the Committee.




          (c) Delegation. To the extent permitted by applicable law, the Committee may delegate
to officers or employees of the Company or any of its Affiliates, or committees thereof, the
authority, subject to such terms as the Committee shall determine, to perform such functions,
including but not limited to administrative functions, as the Committee may determine appropriate.
The Committee may appoint agents to assist it in administering the Plan. Notwithstanding the
foregoing or any other provision of the Plan to the contrary, any Award granted under the Plan to
any person or entity who is not an employee of the Company or any of its Affiliates shall be
expressly approved by the Committee.




          (d) Section 409A. The Committee shall take into account compliance with Section 409A
of the Code in connection with any grant of an Award under the Plan, to the extent applicable.




     4. Shares Available Under the Plan.



          (a) Number of Shares Available for Delivery. Subject to adjustment as provided in
Section 8 hereof, the total number of shares of Stock reserved and available for delivery in
connection with Awards under the Plan shall be 500,000. Shares of Stock delivered under the
Plan shall consist of authorized and unissued shares or previously issued shares of Stock
reacquired by the Company on the open market or by private purchase.




          (b) Share Counting Rules. The Committee may adopt reasonable counting procedures to
ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or
substitute awards) and make adjustments if the number of shares of Stock actually delivered differs
from the number of shares previously counted in connection with an Award. To the extent that an
Award expires or is canceled, forfeited, settled in cash or otherwise terminated without a delivery
to the Participant of the full number of shares to which the Award related, the undelivered shares
will again be available for grant. Shares withheld in payment of the exercise price or taxes
relating to an Award and shares equal to the number surrendered in payment of any exercise price or
taxes relating to an Award shall be deemed to constitute shares not delivered to the Participant
and shall be deemed to again be available for Awards under the Plan; provided, however, that, where
shares are withheld or surrendered more than ten years after the date of the most recent
stockholder approval of the Plan or any other transaction occurs that would result in shares
becoming available under this Section 4(b), such shares shall not become available if and to the
extent that it would constitute a material revision of the Plan subject to stockholder approval
under then applicable rules of the national securities exchange on which the Stock is listed.




          (c) 162(m) Limitation. Notwithstanding anything to the contrary herein, during any
time that the Company is subject to Section 162(m) of the Code, the maximum number of shares of
Stock with respect to which Options and stock appreciation rights (to the extent granted as an
Award under the Plan) may be granted to any individual in any one year





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shall not exceed the maximum number of shares of Stock available for issue hereunder, as such
number may change from time to time.




          5. Options.




          (a) General. Options may be granted to Eligible Persons in such form and having such
terms and conditions as the Committee shall deem appropriate; provided, however, that Incentive
Stock Options may only be granted to Eligible Persons who are employed by the Employer. The
provisions of separate Options shall be set forth in an Option Agreement, which agreements need not
be identical.




          (b) Term. The term of each Option shall be set by the Committee at the time of grant;
provided, however, that no Option granted hereunder shall be exercisable after the expiration of
ten (10) years from the date it was granted.




          (c) Exercise Price. The exercise price per share of Stock for each Option shall be
set by the Committee at the time of grant; provided, however, that if an Option is intended (i) to
not be considered “nonqualified deferred compensation” within the meaning of Section 409A of the
Code, (ii) to qualify as “performance-based compensation” within the meaning of Section 162(m) of
the Code and regulations thereunder, or (iii) to be an Incentive Stock Option, in each case, the
applicable exercise price shall not be less than the Fair Market Value, subject to subsection (h)
below in the case of any Incentive Stock Option.




          (d) Payment for Stock. Payment for shares of Stock acquired pursuant to Options
granted hereunder shall be made in full, upon exercise of the Options: (i) in immediately available
funds in United States dollars, or by certified or bank cashier’s check; (ii) by delivery of a
notice of “net exercise” to the Company, pursuant to which the Participant shall receive the number
of shares of Stock underlying the Options so exercised reduced by the number of shares of Stock
equal to the aggregate exercise price of the Options divided by the Fair Market Value on the date
of exercise; (iii) by delivery of shares of Stock having a value equal to the exercise price, or
(iv) by any other means approved by the Committee. Anything herein to the contrary
notwithstanding, if the Committee determines that any form of payment available hereunder would be
in violation of Section 402 of the Sarbanes-Oxley Act of 2002, such form of payment shall not be
available.




          (e) Vesting. Options shall vest and become exercisable in such manner, on such date
or dates, or upon the achievement of performance or other conditions, in each case, as may be
determined by the Committee and set forth in the Option Agreement; provided, however, that
notwithstanding any such vesting dates, the Committee may in its sole discretion accelerate the
vesting of any Option, which acceleration shall not affect the terms and conditions of any such
Option other than with respect to vesting. Unless otherwise specifically determined by the
Committee, the vesting of an Option shall occur only while the Participant is employed or rendering
services to the Employer, and all vesting shall cease upon a Participant’s termination of
employment or services with the Employer for any reason. If an Option is exercisable in
installments, such installments or portions thereof which become exercisable shall remain
exercisable until the Option expires.





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          (f) Transferability of Options. An Option shall not be transferable except by will or
by the laws of descent and distribution and shall be exercisable during the lifetime of the
Participant only by the Participant. Notwithstanding the foregoing, Nonqualified Stock Options
shall be transferable to the extent provided in the Option Agreement or otherwise determined by the
Committee.




          (g) Termination of Employment or Service. Except as may otherwise be provided by the
Committee in the Option Agreement:





          (i) If prior to the Expiration Date, a Participant’s employment or service, as
applicable, with the Employer terminates for any reason other than (A) by the Employer for
Cause, or (B) by reason of the Participant’s death or Disability, (1) all vesting with
respect to the Options shall cease, (2) any unvested Options shall expire as of the date of
such termination, and (3) any vested Options shall remain exercisable until the earlier of
the Expiration Date or the date that is ninety (90) days after the date of such termination.




          (ii) If prior to the Expiration Date, a Participant’s employment or service, as
applicable, with the Employer terminates by reason of such Participant’s death or
Disability, (A) all vesting with respect to the Options shall cease, (B) any unvested
Options shall expire as of the date of such termination, and (C) any vested Options shall
expire on the earlier of the Expiration Date or the date that is twelve (12) months after
the date of such termination due to death or Disability of the Participant. In the event of
a Participant’s death, the Options shall remain exercisable by the person or persons to whom
a Participant’s rights under the Options pass by will or the applicable laws of descent and
distribution until its expiration, but only to the extent the Options were vested by such
Participant at the time of such termination due to death.




          (iii) If prior to the Expiration Date, a Participant’s employment or service, as
applicable, with the Employer is terminated by the Employer for Cause, all Options (whether
or not vested) shall immediately expire as of the date of such termination.



          (h) Special Provisions Applicable to Incentive Stock Options.





          (i) No Incentive Stock Option may be granted to any Participant who, at the time the
option is granted, owns directly, or indirectly within the meaning of Section 424(d) of the
Code, stock possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or of any parent or subsidiary thereof, unless such
Incentive Stock Option (A) has an exercise price of at least one hundred ten percent (110%)
of the Fair Market Value on the date of the grant of such Option, and (B) cannot be
exercised more than five (5) years after the date it is granted.




          (ii) To the extent the aggregate Fair Market Value (determined as of the date of grant)
of Stock for which Incentive Stock Options are exercisable for the first time by any
Participant during any calendar year (under all plans of the Company and its



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Affiliates) exceeds $100,000, such excess Incentive Stock Options shall be treated as
Nonqualified Stock Options.




          (iii) Each Participant who receives an Incentive Stock Option must agree to notify the
Company in writing immediately after the Participant makes a Disqualifying Disposition of
any Stock acquired pursuant to the exercise of an Incentive Stock Option.



          6. Restricted Stock.




          (a) General. Restricted Stock granted hereunder shall be in such form and shall
contain such terms and conditions as the Committee shall deem appropriate. The terms and
conditions of each Restricted Stock grant shall be evidenced by a Restricted Stock Agreement, which
agreements need not be identical. Subject to the restrictions set forth in Section 6(b), except
as otherwise set forth in the applicable Restricted Stock Agreement, the Participant shall
generally have the rights and privileges of a stockholder as to such Restricted Stock, including
the right to vote such Restricted Stock. Unless otherwise set forth in a Participant’s Restricted
Stock Agreement, cash dividends and stock dividends, if any, with respect to the Restricted Stock
shall be withheld by the Company for the Participant’s account, and shall be subject to forfeiture
to the same degree as the shares of Restricted Stock to which such dividends relate. Except as
otherwise determined by the Committee, no interest will accrue or be paid on the amount of any cash
dividends withheld.




          (b) Restrictions on Transfer. In addition to any other restrictions set forth in a
Participant’s Restricted Stock Agreement, until such time that the Restricted Stock has vested
pursuant to the terms of the Restricted Stock Agreement, which vesting the Committee may in its
sole discretion accelerate at any time, the Participant shall not be permitted to sell, transfer,
pledge, or otherwise encumber the Restricted Stock. Notwithstanding anything contained herein to
the contrary, the Committee shall have the authority to remove any or all of the restrictions on
the Restricted Stock whenever it may determine that, by reason of changes in applicable laws or
other changes in circumstances arising after the date of the Restricted Stock Award, such action is
appropriate.




          (c) Certificates. Restricted Stock granted under the Plan may be evidenced in such
manner as the Committee shall determine. If certificates representing Restricted Stock are
registered in the name of the Participant, the Committee may require that such certificates bear an
appropriate legend referring to the terms, conditions and restrictions applicable to such
Restricted Stock, that the Company retain physical possession of the certificates, and that the
Participant deliver a stock power to the Company, endorsed in blank, relating to the Restricted
Stock. Notwithstanding the foregoing, the Committee may determine, in its sole discretion, that
the Restricted Stock shall be held in book entry form rather than delivered to the Participant
pending the release of the applicable restrictions.




          (d) Termination of Employment or Service. Except as may otherwise be provided by the
Committee in the Restricted Stock Agreement, if, prior to the time that the Restricted Stock has
vested, a Participant’s employment or service, as applicable, terminates for any reason, (i) all
vesting with respect to the Restricted Stock shall cease, and (ii) as soon as





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practicable following such termination, the Company shall repurchase from the Participant, and
the Participant shall sell, any unvested shares of Restricted Stock at a purchase price equal to
the original purchase price paid for the Restricted Stock, or if the original purchase price is
equal to $0, such unvested shares of Restricted Stock shall be forfeited by the Participant to the
Company for no consideration as of the date of such termination.




          7. Other Stock-Based Awards.




          The Committee is authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Stock, as deemed by the Committee to be
consistent with the purposes of the Plan.




          8. Adjustment for Recapitalization, Merger, etc.




          (a) Capitalization Adjustments. The aggregate number of shares of Stock which may be
granted or purchased pursuant to Awards (as set forth in Section 4 hereof), the number of shares of
Stock covered by each outstanding Award, and the price per share thereof in each such Award shall
be equitably and proportionally adjusted or substituted, as determined by the Committee, as to the
number, price or kind of a share of Stock or other consideration subject to such Awards (i) in the
event of changes in the outstanding Stock or in the capital structure of the Company by reason of
stock dividends, stock splits, reverse stock splits, recapitalizations, reorganizations, mergers,
consolidations, combinations, exchanges, or other relevant changes in capitalization occurring
after the date of grant of any such Award (including any Corporate Event (as defined below)); (ii)
in connection with any extraordinary dividend declared and paid in respect of shares of Stock,
whether payable in the form of cash, stock or any other form of consideration; or (iii) in the
event of any change in applicable laws or any change in circumstances which results in or would
result in any substantial dilution or enlargement of the rights granted to, or available for,
Participants in the Plan.




          (b) Corporate Events. Notwithstanding the foregoing, except as may otherwise be
provided in an Award agreement, in connection with (i) a merger or consolidation involving the
Company in which the Company is not the surviving corporation; (ii) a merger or consolidation
involving the Company in which the Company is the surviving corporation but the holders of shares
of Stock receive securities of another corporation and/or other property, including cash; (iii) a
Change in Control; or (iv) the reorganization or liquidation of the Company (each, a “Corporate
Event”), the Committee may, in its discretion, provide for any one or more of the following:





          (1) require that such Awards be assumed in connection with such Corporate
Event, in which case, the Awards shall be subject to the adjustment set forth in
subsection (a) above;




          (2) accelerate the vesting of any Awards, subject to the consummation of such
Corporate Event;




          (3) cancel any or all vested and/or unvested Awards as of the consummation of
such Corporate Event, and provide that holders of vested



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Awards (including any Awards that would vest on the Corporate Event but for
cancellation) so cancelled will receive a payment in respect of cancellation of
their Awards based on the amount of the per share consideration being paid for the
Stock in connection with such Corporate Event, less, in the case of Options and
other Awards subject to exercise, the applicable exercise price; provided, however,
that holders of Options and other Awards subject to exercise shall only be entitled
to consideration in respect of cancellation of such Awards if the per share
consideration less the applicable exercise price is greater than zero (and to the
extent the per share consideration is greater than or equal to the applicable
exercise price, such Awards shall be cancelled for no consideration); or




          (4) replace Awards with a cash incentive program that preserves the value of
the Awards so replaced (determined as of the consummation of the Corporate Event),
with subsequent payment of cash incentives subject to the same vesting conditions as
applicable to the Awards so replaced, and payment to be made within thirty (30) days
of the applicable vesting date; provided, however, in the event that such
replacement would result in an “extension” of a “stock right” within the meaning of
Section 409A of the Code, this provision shall not be applicable to any such stock
right.


Payments to holders pursuant to clause (3) or (4) above shall be made in cash, or, in the sole
discretion of the Committee, in the form of such other consideration necessary for a holder of an
Award to receive property, cash or securities (or combination thereof) as such holder would have
been entitled to receive upon the occurrence of the transaction if the holder had been, immediately
prior to such transaction, the holder of the number of shares of Stock covered by the Award at such
time (less any applicable exercise price).




          (c) Fractional Shares. Any adjustment provided under this Section 8 may provide for
the elimination of any fractional share which might otherwise become subject to an Award.




          9. Use of Proceeds.




          The proceeds received from the sale of Stock pursuant to the Plan shall be used for general
corporate purposes.




          10. Rights and Privileges as a Stockholder.




          Except as otherwise specifically provided in the Plan, no person shall be entitled to the
rights and privileges of stock ownership in respect of shares of Stock which are subject to Awards
hereunder until such shares have been issued to that person.




          11. Employment or Service Rights.




          No individual shall have any claim or right to be granted an Award under the Plan or, having
been selected for the grant of an Award, to be selected for a grant of any other Award. Neither
the Plan nor any action taken hereunder shall be construed as giving any individual any right to be
retained in the employ or service of the Company or an Affiliate of the Company.





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          12. Compliance With Laws.




          The obligation of the Company to deliver Stock upon vesting and/or exercise of any Award shall
be subject to all applicable laws, rules, and regulations, and to such approvals by governmental
agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary,
the Company shall be under no obligation to offer to sell or to sell and shall be prohibited from
offering to sell or selling any shares of Stock pursuant to an Award unless such shares have been
properly registered for sale pursuant to the Securities Act with the Securities and Exchange
Commission or unless the Company has received an opinion of counsel, satisfactory to the Company,
that such shares may be offered or sold without such registration pursuant to an available
exemption therefrom and the terms and conditions of such exemption have been fully complied with.
The Company shall be under no obligation to register for sale or resale under the Securities Act
any of the shares of Stock to be offered or sold under the Plan or any shares of Stock issued upon
exercise or settlement of Awards. If the shares of Stock offered for sale or sold under the Plan
are offered or sold pursuant to an exemption from registration under the Securities Act, the
Company may restrict the transfer of such shares and may legend the Stock certificates representing
such shares in such manner as it deems advisable to ensure the availability of any such exemption.




          13. Withholding Obligations.




          As a condition to the vesting and/or exercise of any Award, the Committee may require that a
Participant satisfy, through deduction or withholding from any payment of any kind otherwise due to
the Participant, or through such other arrangements as are satisfactory to the Committee, the
minimum amount of all Federal, state and local income and other taxes of any kind required or
permitted to be withheld in connection with such vesting and/or exercise. The Committee, in its
discretion, may permit shares of Stock to be used to satisfy tax withholding requirements and such
shares shall be valued at their Fair Market Value as of the settlement date of the Award; provided,
however, that the aggregate Fair Market Value of the number of shares of Stock that may be used to
satisfy tax withholding requirements may not exceed the minimum statutorily required withholding
amount with respect to such Award.




          14. Amendment of the Plan or Awards.




          (a) Amendment of Plan. The Board at any time, and from time to time, may amend the
Plan; provided, however, that without stockholder approval, the Board shall not make any amendment
to the Plan which would violate the stockholder approval requirements of the national securities
exchange on which the Stock is principally listed.




          (b) Amendment of Awards. The Board or the Committee, at any time, and from time to
time, may amend the terms of any one or more Awards; provided, however, that the rights under any
Award shall not be impaired by any such amendment unless the Participant consents in writing.




          15. Termination or Suspension of the Plan.




          The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan
shall terminate on the day before the tenth (10th) anniversary of the date the





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Plan is adopted by the Board. No Awards may be granted under the Plan while the Plan is
suspended or after it is terminated.




          16. Effective Date of the Plan.




          The Plan is effective as of the Effective Date.




          17. Miscellaneous.




          (a) Participants Outside of the United States. The Committee may modify the terms of
any Award under the Plan made to or held by a Participant who is then a resident or primarily
employed outside of the United States in any manner deemed by the Committee to be necessary or
appropriate in order that such Award shall conform to laws, regulations and customs of the country
in which the Participant is then a resident or primarily employed, or so that the value and other
benefits of the Award to the Participant, as affected by foreign tax laws and other restrictions
applicable as a result of the Participant’s residence or employment abroad, shall be comparable to
the value of such Award to a Participant who is a resident or primarily employed in the United
States. An Award may be modified under this Section 17(a) in a manner that is inconsistent with
the express terms of the Plan, so long as such modifications will not contravene any applicable law
or regulation or result in actual liability under Section 16(b) of the Exchange Act for the
Participant whose Award is modified.




          (b) No Liability of Committee Members. No member of the Committee shall be personally
liable by reason of any contract or other instrument executed by such member or on his or her
behalf in his or her capacity as a member of the Committee nor for any mistake of judgment made in
good faith, and the Company shall indemnify and hold harmless each member of the Committee and each
other employee, officer or director of the Company to whom any duty or power relating to the
administration or interpretation of the Plan may be allocated or delegated, against any cost or
expense (including counsel fees) or liability (including any sum paid in settlement of a claim)
arising out of any act or omission to act in connection with the Plan unless arising out of such
person’s own fraud or willful bad faith; provided, however, that approval of the Board shall be
required for the payment of any amount in settlement of a claim against any such person. The
foregoing right of indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Company’s certificate or articles of incorporation or
by-laws, each as may be amended from time to time, as a matter of law, or otherwise, or any power
that the Company may have to indemnify them or hold them harmless.




          (c) Payments Following Accidents or Illness. If the Committee shall find that any
person to whom any amount is payable under the Plan is unable to care for his or her affairs
because of illness or accident, or is a minor, or has died, then any payment due to such person or
his or her estate (unless a prior claim therefor has been made by a duly appointed legal
representative) may, if the Committee so directs the Company, be paid to his or her spouse, child,
relative, an institution maintaining or having custody of such person, or any other person deemed
by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment.
Any such payment shall be a complete discharge of the liability of the Committee and the Company
therefor.





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          (d) Governing Law. The Plan shall be governed by and construed in accordance with the
internal laws of the State of Delaware without reference to the principles of conflicts of laws
thereof.




          (e) Funding. No provision of the Plan shall require the Company, for the purpose of
satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or
other entity to which contributions are made or otherwise to segregate any assets, nor shall the
Company maintain separate bank accounts, books, records or other evidence of the existence of a
segregated or separately maintained or administered fund for such purposes. Participants shall
have no rights under the Plan other than as unsecured general creditors of the Company, except that
insofar as they may have become entitled to payment of additional compensation by performance of
services, they shall have the same rights as other employees under general law.




          (f) Reliance on Reports. Each member of the Committee and each member of the Board
shall be fully justified in relying, acting or failing to act, and shall not be liable for having
so relied, acted or failed to act in good faith, upon any report made by the independent public
accountant of the Company and its Affiliates and upon any other information furnished in connection
with the Plan by any person or persons other than such member.




          (g) Titles and Headings. 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.





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