ex10_5.htm


    Exhibit
      10.5

     

     

    CYTOGEN
      CORPORATION

     

    2004
      NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN

     

    1.           Purpose

     

    The
      purpose of this 2004 Non-Employee Director Stock Incentive Plan (the “Plan”) of
      Cytogen Corporation, a Delaware corporation (the
“Company”), is to advance the interests of the Company’s stockholders by
      enhancing the Company’s ability to attract, retain and motivate persons who act
      as Non-Employee Directors of the Company (as such term is defined in the
      Securities Exchange Act of 1934, as amended), by providing such persons with
      equity ownership opportunities and performance-based incentives and thereby
      better aligning the interests of such persons with those of the Company’s
      stockholders.  Except where the context otherwise requires, the term
“Company” shall include any of the Company’s present or future parent or
      subsidiary corporations as defined in Sections 424(e) or (f) of the
      Internal Revenue Code of 1986, as amended, and any regulations promulgated
      thereunder (the “Code”) and any other business venture (including, without
      limitation, joint venture or limited liability company) in which the Company
      has
      a controlling interest, as determined by the Board of Directors of the Company
      (the “Board”).

     

    2.           Eligibility

     

    All
      of
      the Company’s Non-Employee Directors are eligible to be granted options (each,
      an “Option”) and Compensation Shares, as defined in Section 5(a)(5) hereof,
      under the Plan.  Each person who has been granted an Option or
      Compensation Shares under the Plan shall be deemed a “Participant.”

     

    3.           Administration
      and Delegation

     

    (a)           Administration
      by Board.  The Plan will be administered by the
      Board.  The Board shall have authority to adopt, amend and repeal such
      administrative rules, guidelines and practices relating to the Plan as it shall
      deem advisable.  The Board may correct any defect, supply any omission
      or reconcile any inconsistency in the Plan or any award of options or issuance
      of Compensation Shares in the manner and to the extent it shall deem expedient
      to carry the Plan into effect and it shall be the sole and final judge of such
      expediency.  All decisions by the Board shall be made in the Board’s
      sole discretion and shall be final and binding on all persons having or claiming
      any interest in the Plan or in any Option or Compensation Shares.  No
      Director or person acting pursuant to the authority delegated by the Board
      shall
      be liable for any action or determination relating to or under the Plan made
      in
      good faith.

     

    (b)           Appointment
      of Committees.  To the extent permitted by applicable
      law, the Board may delegate any or all of its powers under the Plan to one
      or
      more committees or subcommittees of the Board (a “Committee”).  All
      references in the Plan to the “Board” shall mean the Board or a Committee of the
      Board to the extent that the Board’s powers or authority under the Plan have
      been delegated to such Committee.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4.           Stock
      Available Under the Plan

     

    Subject
      to adjustment under Section 6, Options and Compensation Shares may be made
      under
      the Plan for up to seven hundred fifty thousand (750,000) shares of common
      stock, $0.01 par value per share, of the Company (the “Common
      Stock”).  If any Option expires or is terminated, surrendered or
      canceled without having been fully exercised or is forfeited in whole or in
      part
      (including as the result of shares of Common Stock subject to such Option being
      repurchased by the Company at the original issuance price pursuant to a
      contractual repurchase right) or results in any Common Stock not being issued,
      the unused Common Stock covered by such Option shall again be available for
      the
      grant of Options under the Plan.  Shares issued under the Plan may
      consist in whole or in part of authorized but unissued shares or treasury
      shares.

     

    5.           Stock
      Options

     

    (a)           Option
      Grants.

     

    (1)           Each
      person who is newly-elected a Director of the Company at an annual meeting
      of
      the stockholders of the Company, such person not having previously served as
      a
      Director of the Company and such person not being an employee of the Company,
      shall, as of the date of such annual meeting, be granted an Option to purchase
      ten thousand (10,000) shares of Common Stock; provided, however, that the Board
      may, from time to time, by resolution of the Board, increase or decrease the
      number of shares granted to such newly elected Directors.

     

    (2)           Each
      person who is appointed a Director of the Company after the date of the most
      recent annual meeting of the stockholders of the Company, and who is not an
      employee of the Company as of such date of appointment, shall be granted on
      such
      date an Option to purchase a pro rata portion of ten thousand (10,000) shares
      of
      Common Stock, based upon the number of full calendar months remaining after
      the
      date of appointment until but not including the one year anniversary month
      of
      such preceding annual meeting; provided, however, the Board may, from time
      to
      time, by resolution of the Board, increase or decrease such number of shares
      of
      Common Stock.

     

    (3)           Effective
      upon approval of the Plan by the stockholders, each person who, upon the
      conclusion of such meeting of stockholders, is a Director and not an employee
      of
      the Company (an “Eligible Director”), shall be granted an option to purchase ten
      thousand (10,000) shares of Common Stock.

     

    (4)           On
      the day following each annual meeting of the stockholders of the Company,
      commencing with the 2004 annual meeting, each person who is on that date an
      Eligible Director and who was re-elected at that meeting shall be granted an
      Option to purchase ten thousand (10,000) shares of Common Stock; provided,
      however, that the Board may, from time to time, by resolution of the Board,
      increase or decrease the number of shares granted to such re-elected
      Directors.  In addition, on each such date, the then Chairman of the
      Board shall receive an Option to purchase an additional seven thousand five
      hundred (7,500) shares of Common Stock; provided, however, that the Board may,
      from time to time, by resolution of the Board, increase or decrease the number
      of shares so granted to the Chairman of the Board.

     

     

    
      
        
        

      

      
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    (5)           Eligible
      Directors shall receive, at the sole discretion of and after formal action
      by
      the Board, Compensation Shares, as defined below, in such number of shares
      of
      Common Stock that is equal to each respective Eligible Director’s Cash
      Component, as defined below, compensation divided by the Fair Market Value
      of
      the Company’s Common Stock as of the date of issuance of such Compensation
      Shares, which shall be no earlier than the date on which the applicable Cash
      Component compensation becomes due and payable by the Company, subject to the
      terms and conditions set forth herein.  Compensation Shares shall not
      be issued for services not yet rendered by an Eligible Director to the
      Company.  As used herein:  (i) Compensation Shares means any
      shares of Common Stock issued to Eligible Directors hereunder in payment of
      such
      Eligible Director’s Cash Component of compensation; and (ii) Cash Component
      means Director cash compensation, including but not limited to annual services
      fees, fees payable for board and committee meetings attended and fees for
      committees chaired.

     

    (6)           Subject
      to Section 5(a)(5) hereof, and subject to adjustment under Section 6, Eligible
      Directors shall receive Compensation Shares in lieu of the Cash Component of
      such Eligible Director’s compensation until at least such time
      as:  (i) such Eligible Director owns two thousand (2,000) shares of
      the Company’s Common Stock, excluding options or other rights to acquire shares
      of the Company’s Common Stock, whether exercisable or unexercisable; or (ii) if
      fewer than 2,000 shares are so owned, such smaller number of shares having
      a
      Fair Market Value, as defined below, of in excess of one hundred thousand
      dollars ($100,000), excluding the value, if any, of options to purchase Common
      Stock, whether exercisable or unexercisable, or other rights to acquire Common
      Stock of the Company.

     

    (7)           Upon
      achieving either of the milestones (i) or (ii) set forth in Section 5(a)(6)
      hereof, each such Eligible Director may, at his or her option, elect to cease
      receiving his or her Cash Component to which he or she is entitled in shares
      of
      Common Stock under the Plan; provided, however, that such Eligible
      Director must make such election by providing notice of such election to the
      Company.  Additionally, any Director who has reached either of the
      milestones (i) or (ii) set forth in Section 5(a)(6) hereof may thereafter choose
      to receive subsequent compensation in cash or Compensation Shares upon written
      election made from time to time and to the Company in advance of the provision
      of all services provided therefor.

     

    (8)           Each
      Option and Compensation Shares provided for in this Section 5 shall be granted
      automatically and without further action by the Board or the Company’s
      stockholders.  Promptly after the date of grant of each Option
      provided for in this Section 5, the Company shall cause an Option Agreement
      to
      be executed and delivered to the holder of the Option.  No other
      Options may be granted at any time under this Plan.  All Compensation
      Shares required to be issued pursuant to the terms of this Section 5 shall
      be
      valued at, and issued on, the next business day immediately following the date
      upon which the Cash Component becomes due and payable to such Eligible
      Director.

     

    (b)           Exercise
      Price.  The exercise price of each Option will be 100% of the Fair
      Market Value of the Common Stock on the date of grant of the Option (the
“Exercise Price”).  Fair Market value shall mean: (i) if the Common
      Stock is traded in a market in which actual transactions are reported, the
      average of the high and low prices at which the Common Stock is reported to
      have
      traded on the relevant date in all markets on which trading in the Common Stock
      is reported, or if there is no reported sale of the Common Stock on the relevant
      date, the

     

     

    
      
        
        

      

      
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    mean
      of
      the highest reported bid price and lowest reported asked price for the Common
      Stock on the relevant date, (ii) if the Common Stock is publicly traded but
      only
      in markets in which there is no reporting of actual transactions, the mean
      of
      the highest reported bid price and the lowest reported asked price for the
      Common Stock on the relevant date, or (iii) if the Common Stock is not publicly
      traded, the value of a share of Common Stock as determined by the
      Board.

     

    (c)           Duration
      of Options.

     

    (1)           No
      Option granted under this Plan may be exercised more than 10 years after the
      date of grant of the option.

     

    (2)           Except
      as provided in Sections 5(f) and 5(g), Options shall become exercisable in
      full
      on the first anniversary of the date of grant.

     

    (d)           Exercise
      of Option.  Options may be exercised, in whole or in part, at any
      time, by delivery to the Company of a written notice of exercise signed by
      the
      proper person or by any other form of notice (including electronic notice)
      approved by the Board together with payment in full as specified in Section
      5(e)
      for the number of shares for which the Option is exercised.

     

    (e)           Payment
      Upon Exercise.  Common Stock purchased upon the exercise of an
      Option granted under the Plan shall be paid for in cash, which may be satisfied
      by a check, in an amount equal to Exercise Price of the Option.

     

    (f)           Termination
      of Service of Director Holding an Option Other Than Because of Death, Disability
      Retirement or Certain Voluntary Resignations.  Subject to the
      provisions of Section 5(c), if there is a termination of service of a Director
      to whom an Option has been granted, other than by reason of the Director’s death
      or disability or retirement or voluntary resignation, after three years’ service
      as an Eligible Director, upon or after turning age 55, each Option held by
      the
      Director may be exercised until the earlier of (x) the end of the three-month
      period immediately following the date of termination of service, or (y) the
      expiration of the term of the option.

     

    (g)           Death
      or Disability of Director Holding an Option.  Notwithstanding the
      provisions of Section 5(c), if there is a termination of service of a Director
      to whom an option has been granted by reason of the Director’s death or
      disability, or a former Director dies within three months following the date
      of
      his or her termination of service, each option held by the Director on the
      date
      of the Director’s termination of service may be exercised in full (i.e., in
      respect of up to 100% of the Option shares, regardless of the time elapsed
      since
      the date of grant) until the earlier of (x) the end of the one-year period
      immediately following the date of termination of service or (y) the expiration
      of the term of the Option.  In the event of an Eligible Director’s
      death, all of such person’s outstanding Options will transfer to the maximum
      extent permitted by law to such person’s designated beneficiary.  Each
      Eligible Director may name, from time to time, any beneficiary or beneficiaries
      (which may be named contingently or successively) as his or her beneficiary
      for
      purposes of this Plan.  Each designation shall be on a form prescribed
      by the Company, will be effective only when delivered to the Company, when
      effective will revoke all prior designations by the Eligible Director and will
      be allowed only to the extent permitted by applicable law.  If an
      Eligible Director dies with no such beneficiary designation in effect,
      such

     

     

    
      
        
        

      

      
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    person’s
      Options will be transferable by will or pursuant to the laws of descent and
      distribution applicable to such person.

     

    (h)           Retirement
      or Certain Voluntary Resignations.  If there is a termination of
      service of a Director by reason of the Director’s retirement or voluntary
      resignation at any time after the Director has reached age 55 and, in each
      such
      case, such Director has provided a minimum of three years’ service as an
      Eligible Director, each Option held by the Director on the date of the
      Director's termination of service may be exercised in full (i.e., in respect
      of
      up to 100% of the option shares, regardless of the time elapsed since the date
      of grant) until the earlier of (x) the end of the five year period immediately
      following the date of termination of service or (y) the expiration of the term
      of the option.

     

    6.           Adjustments
      for Changes in Common Stock and Certain Other Events.

     

    (a)           Changes
      in Capitalization.  In the event of any stock split, reverse stock
      split, stock dividend, recapitalization, combination of shares, reclassification
      of shares, spin-off or other similar change in capitalization or event, or
      any
      distribution to holders of Common Stock other than an ordinary cash dividend,
      (i) the number and class of securities available under this Plan, (ii) the
      number of shares received under Section 5(a)(6) and (iii) the number and class
      of securities and exercise price per share subject to each outstanding Option
      shall be appropriately adjusted by the Company (or substituted Options may
      be
      made, if applicable).  If this Section 6(a) applies and Section 6(d)
      also applies to any event, Section 6(d) shall be applicable to such event,
      and
      this Section 6(a) shall not be applicable.

     

    (b)           Company
      Discretion.  The existence of outstanding Options or Compensation
      Shares shall not affect in any way the right or power of the Company or its
      stockholders to make or authorize any or all adjustments, recapitalizations,
      reorganizations or other changes in the Company's capital structure or its
      business, or any merger or consolidation of the Company, or any issue of bonds,
      debentures, preferred or prior preference stock ahead of or affecting the Common
      Stock or the rights thereof, or the dissolution or liquidation of the Company,
      or any sale or transfer of all or any part of its assets or business or any
      other corporate act or proceeding, whether of a similar character or
      otherwise.  Except as expressly provided herein, the issuance by the
      Company of shares of stock of any class, or securities convertible into shares
      of stock of any class, for cash or property, or for labor or services either
      upon direct sale or upon the exercise of rights or warrants to subscribe
      therefor, or on conversion of shares or obligations of the Company convertible
      into such shares or other securities, shall not affect, and no adjustment by
      reason thereof shall be made with respect to, the number, class or price of
      shares of Common Stock then subject to outstanding options.

     

    (c)           Liquidation
      or Dissolution.  In the event of a proposed liquidation or
      dissolution of the Company, the Board shall upon written notice to the
      Participants provide that all then unexercised Options will (i) become
      exercisable in full as of a specified time at least 10 business days prior
      to
      the effective date of such liquidation or dissolution and (ii) terminate
      effective upon such liquidation or dissolution, except to the extent exercised
      before the effective date.

     

     

    
      
        
        

      

      
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    (d)           Corporate
      Transactions; Major Events.

     

    (1)           If
      as a result of any (i) reorganization, (ii) merger or consolidation of the
      Company with or into another entity as a result of which all of the Common
      Stock
      of the Company is converted into or exchanged for the right to receive cash,
      securities or other property, or (iii) any exchange of all of the Common Stock
      of the Company for cash, securities or other property pursuant to a share
      exchange transaction (each of (i), (ii) and (iii) being a “Corporate
      Transaction”) while an Option is outstanding, or the execution by the Company of
      any agreement with respect to a Corporate Transaction, then (regardless of
      whether the transaction will also constitute a Major Event (as defined below))
      the Board shall provide that all outstanding Options shall be assumed, or
      equivalent options shall be substituted, by the acquiring or succeeding
      corporation (or an affiliate thereof).  For purposes hereof, an Option
      shall be considered to be assumed if, following consummation of the Corporate
      Transaction, the Option confers the right to purchase, for each share of Common
      Stock subject to the Option immediately prior to the consummation of the
      Corporate Transaction, the consideration (whether cash, securities or other
      property) received as a result of the Corporate Transaction by holders of Common
      Stock for each share of Common Stock held immediately prior to the consummation
      of the Corporate Transaction (and if holders were offered a choice of
      consideration, the type of consideration chosen by the holders of a majority
      of
      the outstanding shares of Common Stock); provided, however, that if the
      consideration received as a result of the Corporate Transaction is not solely
      common stock of the acquiring or succeeding corporation (or an affiliate
      thereof), the Company may, with the consent of the acquiring or succeeding
      corporation, provide for the consideration to be received upon the exercise
      of
      Options to consist solely of common stock of the acquiring or succeeding
      corporation (or an affiliate thereof) equivalent in fair market value to the
      per
      share consideration received by holders of outstanding shares of Common Stock
      as
      a result of the Corporate Transaction.

     

    Notwithstanding
      the foregoing, if the
      acquiring or succeeding corporation (or an affiliate thereof) does not agree
      to
      assume, or substitute for, such Options, or in the event of a liquidation or
      dissolution of the Company, the Board shall, upon written notice to the
      Participants, provide that all then unexercised Options will become exercisable
      in full as of a specified time prior to the Corporate Transaction and will
      terminate immediately prior to the consummation of such Corporate Transaction,
      except to the extent exercised by the Participants before the consummation
      of
      such Corporate Transaction; provided, however, that in the event of a Corporate
      Transaction under the terms of which holders of Common Stock will receive upon
      consummation thereof a cash payment for each share of Common Stock surrendered
      pursuant to such Corporate Transaction (the “Acquisition Price”), then the Board
      may instead provide that all outstanding Options shall terminate upon
      consummation of such Corporate Transaction and that each Participant shall
      receive, in exchange therefor, a cash payment equal to the amount (if any)
      by
      which (A) the Acquisition Price multiplied by the number of shares of Common
      Stock subject to such outstanding Options (whether or not then exercisable)
      exceeds (B) the aggregate exercise price of such Options.

     

    In
      the event of a Corporate
      Transaction, Compensation Shares shall be adjusted in the same manner as the
      Company’s Common Stock.

     

    
      
        
        

      

      
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    (2)           Upon
      the occurrence of a Major Event (regardless of whether such event also
      constitutes a Corporate Transaction), all of the Option Shares covered by an
      Option shall become immediately available for purchase upon exercise of the
      option, without regard to the vesting provisions of Section
      5(c)(2).  “Major Event” shall mean when (i) the Company enters into
      one or more definitive agreements to merge or consolidate the Company with
      or
      into another corporation, or to sell or otherwise dispose of all or
      substantially all of the Company’s assets, or to effect any other transaction,
      share exchange consolidation or reorganization having similar results or effect;
      (ii) any person other than the Company makes a tender or exchange offer for
      more
      than 50% of Common Stock pursuant to which purchases of any amount of Common
      Stock are made; (iii) stock representing more than 50% of the voting power
      of
      the Company is acquired by any person other than the Company in any one or
      more
      transactions occurring in any 24 month period.

     

    7.           General
      Provisions Applicable to Options and Compensation Shares.

     

    (a)           (i)           Transferability
      of Options.  Except as the Board may otherwise determine or
      provide in an Option, Options shall not be sold, assigned, transferred, pledged
      or otherwise encumbered by the person to whom they are granted, either
      voluntarily or by operation of law, except by will or the laws of descent and
      distribution, and, during the life of the Participant, shall be exercisable
      only
      by the Participant.  References to a Participant, to the extent
      relevant in the context, shall include references to authorized
      transferees.

     

          
      (ii)          Transferability
      of Compensation Shares.  For one year after the date of issuance
      of Compensation Shares to any Eligible Director, such Compensation Shares shall
      not be transferable by such Eligible Director.  During this one year
      period, Compensation Shares may not be assigned, pledged or hypothecated in
      any
      way, and will not be transferable otherwise than by will or the laws of descent
      and distribution.  The Company will not recognize any attempt to
      assign, transfer, pledge, hypothecate or otherwise dispose of Compensation
      Shares contrary to the provisions of this Plan, or any levy of any attachment
      or
      similar process upon any Compensation Shares, and, except as expressly stated
      in
      this Plan, the Company will not be required to, and will not, remove any related
      restrictive legend from the Compensation Shares until such one year period
      has
      expired.  The Compensation Shares shall bear a restrictive legend
      evidencing such lock-up (the “Lock-up Legend”).  Upon the expiration
      of such one year lock-up period, Compensation Shares shall become fully
      transferable by the holder, subject to the terms of the Securities Act of 1933,
      as amended and state securities laws.  The Company shall take
      reasonable steps to remove the Lock-up Legend from the Compensation Shares
      within a reasonable time after the expiration of such period upon the request
      of
      an Eligible Director.  Notwithstanding such lock-up provision, upon
      the occurrence of a Corporate Transaction, all of the Compensation Shares issued
      hereunder to Eligible Directors shall be treated in a like manner as are the
      outstanding shares of the Company’s Common Stock upon the occurrence of such
      Corporate Transaction.

     

    (b)           Documentation.  Each
      Option shall be evidenced in such form (written, electronic or otherwise) as
      the
      Board shall determine.  Each Option may contain terms and conditions
      in addition to those set forth in the Plan.

     

     

    
      
        
        

      

      
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    (c)           Amendment
      of Option.  Subject to the provisions of the Company’s Bylaws, the
      Board may amend, modify or terminate any outstanding Option, including but
      not
      limited to, substituting therefor another Option of the same or a different
      type, provided that the Participant’s consent to such action shall be required
      unless the Board determines that the action, taking into account any related
      action, would not materially and adversely affect the Participant.

     

    (d)           Conditions
      on Delivery of Stock.  The Company will not be obligated to
      deliver any shares of Common Stock pursuant to the Plan or to remove
      restrictions from shares previously delivered under the Plan until (i) all
      conditions of the Option have been met or removed to the satisfaction of the
      Company, (ii) in the opinion of the Company’s counsel, all other legal
      matters in connection with the issuance and delivery of such shares have been
      satisfied, including any applicable securities laws and any applicable stock
      exchange or stock market rules and regulations, and (iii) the Participant has
      executed and delivered to the Company such representations or agreements as
      the
      Company may consider appropriate to satisfy the requirements of any applicable
      laws, rules or regulations.

     

    (e)           Deferred
      Delivery of Shares Issuable Pursuant to an Option.  The Board may,
      at the time any Option is granted, provide that, at the time Common Stock would
      otherwise be delivered pursuant to the Option, the Participant shall instead
      receive an instrument evidencing the right to future delivery of Common Stock
      at
      such time or times, and on such conditions, as the Board shall
      specify.  The Board may at any time accelerate the time at which
      delivery of all or any part of the Common Stock shall take place.

     

    (f)           Acceleration.  The
      Board may at any time provide that any Award shall become immediately
      exercisable in full or in part, free of some or all restrictions or conditions,
      or otherwise realizable in full or in part, as the case may be.

     

    8.           Miscellaneous

     

    (a)           No
      Rights As Stockholder.  Subject to the provisions of the
      applicable Option, no Participant or designated beneficiary shall have any
      rights as a stockholder with respect to any shares of Common Stock to be
      distributed with respect to an Option until becoming the record holder of such
      shares.  Notwithstanding the foregoing, in the event the Company
      effects a split of the Common Stock by means of a stock dividend and the
      exercise price of and the number of shares subject to such Option are adjusted
      as of the date of the distribution of the dividend (rather than as of the record
      date for such dividend), then an optionee who exercises an Option between the
      record date and the distribution date for such stock dividend shall be entitled
      to receive, on the distribution date, the stock dividend with respect to the
      shares of Common Stock acquired upon such Option exercise, notwithstanding
      the
      fact that such shares were not outstanding as of the close of business on the
      record date for such stock dividend.

     

    (b)           Effective
      Date and Term of Plan.  The Plan shall become effective on the
      date on which it is adopted by the Board, but no Option granted to a Participant
      that is intended to comply with Section 162(m) shall become exercisable, vested
      or realizable, as applicable to such Option, unless and until the Plan has
      been
      approved by the Company’s stockholders to the extent stockholder approval is
      required by Section 162(m) in the manner required under Section 162(m)
      (including the vote required under Section 162(m)).  No Options shall
      be granted under the Plan

     

     

    
      
        
        

      

      
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    after
      the
      completion of ten years from the earlier of (i) the date on which the Plan
      was
      adopted by the Board or (ii) the date the Plan was approved by the Company’s
      stockholders, but Options previously granted may extend beyond that
      date.

     

    (c)           Amendment
      of Plan.  Subject to the provisions of the Company’s Bylaws, the
      Board may amend, suspend or terminate the Plan or any portion thereof at any
      time, provided that to the extent required by Section 162(m), no Option granted
      to a Participant that is intended to comply with Section 162(m) after the date
      of such amendment shall become exercisable, realizable or vested, as applicable
      to such Option, unless and until such amendment shall have been approved by
      the
      Company’s stockholders if required by Section 162(m) (including the vote
      required under Section 162(m)).

     

    (d)           Governing
      Law.  The provisions of the Plan and all Options made hereunder
      shall be governed by and interpreted in accordance with the laws of the State
      of
      Delaware, without regard to any applicable conflicts of law.

     

    
       

       

      
        
          
          

        

        
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