Unassociated Document


     

     

    HEALTHCARE
      ACQUISITION CORP.

     

      

     

    2007
      LONG-TERM INCENTIVE COMPENSATION PLAN 

     

    ARTICLE
      I

     

    PURPOSE
      

     

    Section
      1.1 Purpose.
      This
      2007 Long-Term Incentive Compensation Plan (the “Plan”) is established by
      Healthcare Acquisition Corp., a Delaware corporation (the “Company”), to create
      incentives which are designed to motivate Participants to put forth maximum
      effort toward the success and growth of the Company and to enable the Company
      to
      attract and retain experienced individuals who by their position, ability and
      diligence are able to make important contributions to the Company’s success.
      Toward these objectives, the Plan provides for the grant of Options, Restricted
      Stock Awards, Stock Appreciation Rights (“SARs”), Performance Units and
      Performance Bonuses to Eligible Employees and the grant of Nonqualified Stock
      Options, Restricted Stock Awards, SARs and Performance Units to Consultants
      and
      Eligible Directors, subject to the conditions set forth in the Plan.


     

    Section
      1.2 Establishment.
      The Plan
      is effective as of [___________], 2007 and for a period of ten years thereafter.
      The Plan shall continue in effect until all matters relating to the payment
      of
      Awards and administration of the Plan have been settled. The Plan is subject
      to
      approval by the Company’s stockholders in accordance with applicable law which
      approval must occur within the period ending twelve months after the date the
      Plan is adopted by the Board. Pending such approval by the stockholders, Awards
      under the Plan may be granted, but no such Awards may be exercised prior to
      receipt of stockholder approval. In the event stockholder approval is not
      obtained within a twelve-month period, all Awards granted shall be void.


     

    Section
      1.3 Shares Subject to the Plan.
      Subject
      to the limitations set forth in the Plan, Awards may be made under this Plan
      for
      a total of 3,500,000 shares of the Company’s common stock, par value $.0001 per
      share (the “Common Stock”). 

     

    ARTICLE
      II

     

    DEFINITIONS
      

     

    Section
      2.1 “Account”
means
      the recordkeeping account established by the Company to which will be credited
      an Award of Performance Units to a Participant. 

     

    Section
      2.2 “Affiliated Entity”
      means
      any corporation, partnership, limited liability company or other form of legal
      entity in which a majority of the partnership or other similar interest thereof
      is owned or controlled, directly or indirectly, by the Company or one or more
      of
      its Subsidiaries or Affiliated Entities or a combination thereof. For purposes
      hereof, the Company, a Subsidiary or an Affiliated Entity shall be deemed to
      have a majority ownership interest in a partnership or limited liability company
      if the Company, such Subsidiary or Affiliated Entity shall be allocated a
      majority of partnership or limited liability company gains or losses or shall
      be
      or control a managing director or a general partner of such partnership or
      limited liability company. 

     

    Section
      2.3 “Award”
      means,
      individually or collectively, any Option, Restricted Stock Award, SAR,
      Performance Unit or Performance Bonus granted under the Plan to an Eligible
      Employee by the Board or any Nonqualified Stock Option, Performance Unit SAR
      or
      Restricted Stock Award granted under the Plan to a Consultant or an Eligible
      Director by the Board pursuant to such terms, conditions, restrictions, and/or
      limitations, if any, as the Board may establish by the Award Agreement or
      otherwise. 

     

    Section
      2.4 “Award Agreement”
      means
      any written instrument that establishes the terms, conditions, restrictions,
      and/or limitations applicable to an Award in addition to those established
      by
      this Plan and by the Board’s exercise of its administrative powers.


     

    Section
      2.5 “Board”
      means
      the Board of Directors of the Company and, if the Board has appointed a
      Committee as provided in Section 3.1, the term “Board” shall include such
      Committee. 

     

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    Section
      2.6 “Change of Control Event” means
      each of the following: 

     

    (i)
      Any
      transaction in which shares of voting securities of the Company representing
      more than 50% of the total combined voting power of all outstanding voting
      securities of the Company are issued by the Company, or sold or transferred
      by
      the stockholders of the Company as a result of which those persons and entities
      who beneficially owned voting securities of the Company representing more than
      50% of the total combined voting power of all outstanding voting securities
      of
      the Company immediately prior to such transaction cease to beneficially own
      voting securities of the Company representing more than 50% of the total
      combined voting power of all outstanding voting securities of the Company
      immediately after such transaction; 

     

    (ii)
      The
      merger or consolidation of the Company with or into another entity as a result
      of which those persons and entities who beneficially owned voting securities
      of
      the Company representing more than 50% of the total combined voting power of
      all
      outstanding voting securities of the Company immediately prior to such merger
      or
      consolidation cease to beneficially own voting securities of the Company
      representing more than 50% of the total combined voting power of all outstanding
      voting securities of the surviving corporation or resulting entity immediately
      after such merger of consolidation; or 

     

    (iii)
      The
      sale of all or substantially all of the Company’s assets to an entity of which
      those persons and entities who beneficially owned voting securities of the
      Company representing more than 50% of the total combined voting power of all
      outstanding voting securities of the Company immediately prior to such asset
      sale do not beneficially own voting securities of the purchasing entity
      representing more than 50% of the total combined voting power of all outstanding
      voting securities of the purchasing entity immediately after such asset sale.
      

     

    Section
      2.7 “Code”
      means
      the Internal Revenue Code of 1986, as amended. References in the Plan to any
      section of the Code shall be deemed to include any amendments or successor
      provisions to such section and any regulations under such section. 

     

    Section
      2.8 “Committee”
      means
      the Committee appointed by the Board as provided in Section 3.1. 

     

    Section
      2.9 “Common Stock”
      means
      the common stock, par value $.0001 per share, of the Company, and after
      substitution, such other stock as shall be substituted therefore as provided
      in
      Article X. 

     

    Section
      2.10 “Consultant”
      means
      any person who is engaged by the Company, a Subsidiary or an Affiliated Entity
      to render consulting or advisory services. 

     

    Section
      2.11 “Date of Grant”
      means
      the date on which the grant of an Award is authorized by the Board or such
      later
      date as may be specified by the Board in such authorization. 

     

    Section
      2.12 “Disability”
      means
      the Participant is unable to continue employment by reason of any medically
      determinable physical or mental impairment which can be expected to result
      in
      death or can be expected to last for a continuous period of not less than 12
      months. For purposes of this Plan, the determination of Disability shall be
      made
      in the sole and absolute discretion of the Board. 

     

    Section
      2.13 “Eligible Employee”
      means
      any employee of the Company, a Subsidiary, or an Affiliated Entity as approved
      by the Board. 

     

    Section
      2.14 “Eligible Director”
      means
      any member of the Board who is not an employee of the Company, a Subsidiary
      or
      an Affiliated Entity. 

     

    Section
      2.15 “Exchange Act”
      means
      the Securities Exchange Act of 1934, as amended. 

     

    Section
      2.16 “Fair Market Value”
      means
      (A) during such time as the Common Stock is registered under Section 12 of
      the
      Exchange Act, the closing price of the Common Stock as reported by an
      established stock exchange or automated quotation system on the day for which
      such value is to be determined, or, if no sale of the Common Stock shall have
      been made on any such stock exchange or automated quotation system that day,
      on
      the next preceding day on which there was a sale of such Common Stock, or (B)
      during any such time as the Common Stock is not listed upon an established
      stock
      exchange or automated quotation system, the mean between dealer “bid” and “ask”
prices of the Common Stock in the over-the-counter market on the day for


     

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    which
      such value is to be determined, as reported by the National Association of
      Securities Dealers, Inc., or (C) during any such time as the Common Stock cannot
      be valued pursuant to (A) or (B) above, the fair market value shall be as
      determined by the Board considering all relevant information including, by
      example and not by limitation, the services of an independent appraiser.


     

    Section
      2.17 “Incentive Stock Option”
      means an
      Option within the meaning of Section 422 of the Code. 

     

    Section
      2.18 “Nonqualified Stock Option”
      means an
      Option which is not an Incentive Stock Option. 

     

    Section
      2.19 “Option”
      means an
      Award granted under Article V of the Plan and includes both Nonqualified Stock
      Options and Incentive Stock Options to purchase shares of Common Stock.


     

    Section
      2.20 “Participant”
      means an
      Eligible Employee, a Consultant or an Eligible Director to whom an Award has
      been granted by the Board under the Plan. 

     

    Section
      2.21 “Performance Bonus”
      means
      the cash bonus which may be granted to Eligible Employees under Article IX
      of
      the Plan. 

     

    Section
      2.22 “Performance Units”
      means
      those monetary units that may be granted to Eligible Employees, Consultants
      or
      Eligible Directors pursuant to Article VIII hereof. 

     

    Section
      2.23 “Plan”
      means
      this Healthcare Acquisition Corp. 2007 Long-Term Incentive Compensation Plan.
      

     

    Section
      2.24 “Restricted Stock Award”
      means an
      Award granted to an Eligible Employee, Consultant or Eligible Director under
      Article VI of the Plan. 

     

    Section
      2.25 “Retirement”
      means
      the termination of an Eligible Employee’s employment with the Company, a
      Subsidiary or an Affiliated Entity on or after attaining age __. 

     

    Section
      2.26 “SAR”
      means a
      stock appreciation right granted to an Eligible Employee, Consultant or Eligible
      Director under Article VII of the Plan. 

     

    Section
      2.27 “Subsidiary”
      shall
      have the same meaning set forth in Section 424 of the Code. 

     

    ARTICLE
      III

     

    ADMINISTRATION
      

     

    Section
      3.1 Administration of the Plan by the Board.
      The
      Board shall administer the Plan. The Board may, by resolution, appoint the
      Compensation Committee to administer the Plan and delegate its powers described
      under this Section 3.1 and otherwise under the Plan for purposes of Awards
      granted to Eligible Employees and Consultants. 

     

    Subject
      to the provisions of the Plan, the Board shall have exclusive power to:


     

    (a)
      Select Eligible Employees and Consultants to participate in the Plan.


     

    (b)
      Determine the time or times when Awards will be made to Eligible Employees
      or
      Consultants. 

     

    (c)
      Determine the form of an Award, whether an Incentive Stock Option, Nonqualified
      Stock Option, Restricted Stock Award, SAR, Performance Unit, or Performance
      Bonus, the number of shares of Common Stock or Performance Units subject to
      the
      Award, the amount and all the terms, conditions (including performance
      requirements), restrictions and/or limitations, if any, of an Award, including
      the time and conditions of exercise or vesting, and the terms of any Award
      Agreement, which may include the waiver or amendment of prior terms and
      conditions or acceleration or early vesting or payment of an Award under certain
      circumstances determined by the Board. 

     

    (d)
      Determine whether Awards will be granted singly or in combination. 

     

    (e)
      Accelerate the vesting, exercise or payment of an Award or the performance
      period of an Award. 

     

    (f)
      Determine whether and to what extent a Performance Bonus may be deferred, either
      automatically or at the election of the Participant or the Board. 

     

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    (g)
      Take
      any and all other action it deems necessary or advisable for the proper
      operation or administration of the Plan. 

     

    Section
      3.2 Administration of Grants to Eligible Directors.
      The
      Board shall have the exclusive power to select Eligible Directors to participate
      in the Plan and to determine the number of Nonqualified Stock Options,
      Performance Units, SARs or shares of Restricted Stock awarded to Eligible
      Directors selected for participation. If the Board appoints a committee to
      administer the Plan, it may delegate to the committee administration of all
      other aspects of the Awards made to Eligible Directors. 

     

    Section
      3.3 Board to Make Rules and Interpret Plan.
      The
      Board in its sole discretion shall have the authority, subject to the provisions
      of the Plan, to establish, adopt, or revise such rules and regulations and
      to
      make all such determinations relating to the Plan, as it may deem necessary
      or
      advisable for the administration of the Plan. The Board’s interpretation of the
      Plan or any Awards and all decisions and determinations by the Board with
      respect to the Plan shall be final, binding, and conclusive on all parties.
      

     

    Section
      3.4 Section 162(m) Provisions.
      The
      Company intends for the Plan and the Awards made there under to qualify for
      the
      exception from Section 162(m) of the Code for “qualified performance based
      compensation” if it is determined by the Board that such qualification is
      necessary for an Award. Accordingly, the Board shall make determinations as
      to
      performance targets and all other applicable provisions of the Plan as necessary
      in order for the Plan and Awards made there under to satisfy the requirements
      of
      Section 162(m) of the Code. 

     

    ARTICLE
      IV

     

    GRANT
      OF AWARDS 

     

    Section
      4.1 Grant of Awards.
      Awards
      granted under this Plan shall be subject to the following conditions:


     

    (a)
      Any
      shares of Common Stock related to Awards which terminate by expiration,
      forfeiture, cancellation or otherwise without the issuance of shares of Common
      Stock or are exchanged in the Board’s discretion for Awards not involving Common
      Stock, shall be available again for grant under the Plan and shall not be
      counted against the shares authorized under Section 1.3. 

     

    (b)
      Common Stock delivered by the Company in payment of an Award authorized under
      Articles V and VI of the Plan may be authorized and unissued Common Stock or
      Common Stock held in the treasury of the Company. 

     

    (c)
      The
      Board shall, in its sole discretion, determine the manner in which fractional
      shares arising under this Plan shall be treated. 

     

    (d)
      Separate certificates or a book-entry registration representing Common Stock
      shall be delivered to a Participant upon the exercise of any Option.


     

    (e)
      The
      Board shall be prohibited from canceling, reissuing or modifying Awards if
      such
      action will have the effect of repricing the Participant’s Award. 

     

    (f)
      Eligible Directors may only be granted Nonqualified Stock Options, Restricted
      Stock Awards, SARs or Performance Units under this Plan. 

     

    (g)
      The
      maximum term of any Award shall be ten years. 

     

    ARTICLE
      V

     

    STOCK
      OPTIONS 

     

    Section
      5.1 Grant of Options.
      The
      Board may, from time to time, subject to the provisions of the Plan and such
      other terms and conditions as it may determine, grant Options to Eligible
      Employees. These Options may be Incentive Stock Options or Nonqualified Stock
      Options, or a combination of both. The Board may, subject to the provisions
      of
      the Plan and such other terms and conditions as it may determine, grant
      Nonqualified Stock Options to Eligible Directors and Consultants. Each grant
      of
      an Option shall be evidenced by an Award Agreement executed by the Company
      and
      the Participant, and shall contain such terms and conditions and be in such
      form
      as the Board may from time to time approve, subject to the requirements of
      Section 5.2. 

     

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    Section
      5.2 Conditions of Options.
      Each
      Option so granted shall be subject to the following conditions: 

     

    (a)
      Exercise Price. As limited by Section 5.2(e) below, each Option shall state
      the
      exercise price which shall be set by the Board at the Date of Grant; provided,
      however, no Option shall be granted at an exercise price which is less than
      the
      Fair Market Value of the Common Stock on the Date of Grant. 

     

    (b)
      Form
      of Payment. The exercise price of an Option may be paid (i) in cash or by check,
      bank draft or money order payable to the order of the Company; (ii) by
      delivering shares of Common Stock having a Fair Market Value on the date of
      payment equal to the amount of the exercise price, but only to the extent such
      exercise of an Option would not result in an adverse accounting charge to the
      Company for financial accounting purposes with respect to the shares used to
      pay
      the exercise price unless otherwise determined by the Board; or (iii) a
      combination of the foregoing. In addition to the foregoing, the Board may permit
      an Option granted under the Plan to be exercised by a broker-dealer acting
      on
      behalf of a Participant through procedures approved by the Board. 

     

    (c)
      Exercise of Options. Options granted under the Plan shall be exercisable, in
      whole or in such installments and at such times, and shall expire at such time,
      as shall be provided by the Board in the Award Agreement. Exercise of an Option
      shall be by written notice to the Secretary of the Company at least two business
      days in advance of such exercise stating the election to exercise in the form
      and manner determined by the Board. Every share of Common Stock acquired through
      the exercise of an Option shall be deemed to be fully paid at the time of
      exercise and payment of the exercise price. 

     

    (d)
      Other
      Terms and Conditions. Among other conditions that may be imposed by the Board,
      if deemed appropriate, are those relating to (i) the period or periods and
      the
      conditions of exercisability of any Option; (ii) the minimum periods during
      which Participants must be employed by the Company, its Subsidiaries, or an
      Affiliated Entity, or must hold Options before they may be exercised; (iii)
      the
      minimum periods during which shares acquired upon exercise must be held before
      sale or transfer shall be permitted; (iv) conditions under which such Options
      or
      shares may be subject to forfeiture; (v) the frequency of exercise or the
      minimum or maximum number of shares that may be acquired at any one time; (vi)
      the achievement by the Company of specified performance criteria; and (vii)
      non-compete and protection of business matters. 

     

    (e)
      Special Restrictions Relating to Incentive Stock Options. Options issued in
      the
      form of Incentive Stock Options shall only be granted to Eligible Employees
      of
      the Company or a Subsidiary, and not to Eligible Employees of an Affiliated
      Entity unless such entity shall be considered as a “disregarded entity” under
      the Code and shall not be distinguished for federal tax purposes from the
      Company or the applicable Subsidiary. 

     

    (f)
      Application of Funds. The proceeds received by the Company from the sale of
      Common Stock pursuant to Options will be used for general corporate purposes.
      

     

    (g)
      Stockholder Rights. No Participant shall have a right as a stockholder with
      respect to any share of Common Stock subject to an Option prior to purchase
      of
      such shares of Common Stock by exercise of the Option. 

     

    ARTICLE
      VI

     

    RESTRICTED
      STOCK AWARDS 

     

    Section
      6.1 Grant of Restricted Stock Awards.
      The
      Board may, from time to time, subject to the provisions of the Plan and such
      other terms and conditions as it may determine, grant a Restricted Stock Award
      to Eligible Employees, Consultants or Eligible Directors. Restricted Stock
      Awards shall be awarded in such number and at such times during the term of
      the
      Plan as the Board shall determine. Each Restricted Stock Award shall be subject
      to an Award Agreement setting forth the terms of such Restricted Stock Award
      and
      may be evidenced in such manner as the Board deems appropriate, including,
      without limitation, a book-entry registration or issuance of a stock certificate
      or certificates. 

     

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    Section
      6.2 Conditions of Restricted Stock Awards.
      The
      grant of a Restricted Stock Award shall be subject to the following:


     

    (a)
      Restriction Period. Restricted Stock Awards granted to an Eligible Employee
      shall require the holder to remain in the employment of the Company, a
      Subsidiary, or an Affiliated Entity for a prescribed period. Restricted Stock
      Awards granted to Consultants or Eligible Directors shall require the holder
      to
      provide continued services to the Company for a period of time. These employment
      and service requirements are collectively referred to as a “Restriction Period”.
      The Board or the Committee, as the case may be, shall determine the Restriction
      Period or Periods which shall apply to the shares of Common Stock covered by
      each Restricted Stock Award or portion thereof. In addition to any time vesting
      conditions determined by the Board or the Committee, as the case may be,
      Restricted Stock Awards may be subject to the achievement by the Company of
      specified performance criteria based upon the Company’s achievement of all or
      any of the operational, financial or stock performance criteria set forth on
      Exhibit A annexed hereto, as may from time to time be established by the Board
      or the Committee, as the case may be. At the end of the Restriction Period,
      assuming the fulfillment of any other specified vesting conditions, the
      restrictions imposed by the Board or the Committee, as the case may be shall
      lapse with respect to the shares of Common Stock covered by the Restricted
      Stock
      Award or portion thereof. In addition to acceleration of vesting upon the
      occurrence of a Change of Control Event as provided in Section 11.5, the Board
      or the Committee, as the case may be, may, in its discretion, accelerate the
      vesting of a Restricted Stock Award in the case of the death, Disability or
      Retirement of the Participant who is an Eligible Employee or resignation of
      a
      Participant who is a Consultants or an Eligible Director. 

     

    (b)
      Restrictions. The holder of a Restricted Stock Award may not sell, transfer,
      pledge, exchange, hypothecate, or otherwise dispose of the shares of Common
      Stock represented by the Restricted Stock Award during the applicable
      Restriction Period. The Board shall impose such other restrictions and
      conditions on any shares of Common Stock covered by a Restricted Stock Award
      as
      it may deem advisable including, without limitation, restrictions under
      applicable Federal or state securities laws, and may legend the certificates
      representing Restricted Stock to give appropriate notice of such restrictions.
      

     

    (c)
      Rights as Stockholders. During any Restriction Period, the Board may, in its
      discretion, grant to the holder of a Restricted Stock Award all or any of the
      rights of a stockholder with respect to the shares, including, but not by way
      of
      limitation, the right to vote such shares and to receive dividends. If any
      dividends or other distributions are paid in shares of Common Stock, all such
      shares shall be subject to the same restrictions on transferability as the
      shares of Restricted Stock with respect to which they were paid. 

     

    ARTICLE
      VII

     

    STOCK
      APPRECIATION RIGHTS 

     

    Section
      7.1 Grant of SARs.
      The
      Board may from time to time, in its sole discretion, subject to the provisions
      of the Plan and subject to other terms and conditions as the Board may
      determine, grant a SAR to any Eligible Employee, Consultant or Eligible
      Director. SARs may be granted in tandem with an Option, in which event, the
      Participant has the right to elect to exercise either the SAR or the Option.
      Upon the Participant’s election to exercise one of these Awards, the other
      tandem Award is automatically terminated. SARs may also be granted as an
      independent Award separate from an Option. Each grant of a SAR shall be
      evidenced by an Award Agreement executed by the Company and the Participant
      and
      shall contain such terms and conditions and be in such form as the Board may
      from time to time approve, subject to the requirements of the Plan. The exercise
      price of the SAR shall not be less than the Fair Market Value of a share of
      Common Stock on the Date of Grant of the SAR. 

     

    Section
      7.2 Exercise and Payment.
      SARs
      granted under the Plan shall be exercisable in whole or in installments and
      at
      such times as shall be provided by the Board in the Award Agreement. Exercise
      of
      a SAR shall be by written notice to the Secretary of the Company at least two
      business days in advance of such exercise. The amount payable with respect
      to
      each SAR shall be equal in value to the excess, if any, of the Fair Market
      Value
      of a share of Common Stock on the exercise date over the exercise price of
      the
      SAR. Payment of amounts attributable to a SAR shall be made in shares of Common
      Stock. 

     

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    Section
      7.3 Restrictions.
      In the
      event a SAR is granted in tandem with an Incentive Stock Option, the Board
      shall
      subject the SAR to restrictions necessary to ensure satisfaction of the
      requirements under Section 422 of the Code. In the case of a SAR granted in
      tandem with an Incentive Stock Option to an Eligible Employee who owns more
      than
      10% of the combined voting power of the Company or its Subsidiaries on the
      date
      of such grant, the amount payable with respect to each SAR shall be equal in
      value to the applicable percentage of the excess, if any, of the Fair Market
      Value of a share of Common Stock on the Exercise date over the exercise price
      of
      the SAR, which exercise price shall not be less than 110% of the Fair Market
      Value of a share of Common Stock on the date the SAR is granted. 

     

    ARTICLE
      VIII

     

    PERFORMANCE
      UNITS 

     

    Section
      8.1 Grant of Awards.
      The
      Board may, from time to time, subject to the provisions of the Plan and such
      other terms and conditions as it may determine, grant Performance Units to
      Eligible Employees, Consultants and Eligible Directors. Each Award of
      Performance Units shall be evidenced by an Award Agreement executed by the
      Company and the Participant, and shall contain such terms and conditions and
      be
      in such form as the Board may from time to time approve, subject to the
      requirements of Section 8.2. 

     

    Section
      8.2 Conditions of Awards.
      Each
      Award of Performance Units shall be subject to the following conditions:


     

    (a)
      Establishment of Award Terms. Each Award shall state the target, maximum and
      minimum value of each Performance Unit payable upon the achievement of
      performance goals. 

     

    (b)
      Achievement of Performance Goals. The Board shall establish performance targets
      for each Award for a period of no less than a year based upon some or all of
      the
      operational, financial or performance criteria listed in Exhibit A attached.
      The
      Board shall also establish such other terms and conditions as it deems
      appropriate to such Award. The Award may be paid out in cash or Common Stock
      as
      determined in the sole discretion of the Board. 

     

    ARTICLE
      IX

     

    PERFORMANCE
      BONUS 

     

    Section
      9.1 Grant of Performance Bonus.
      The
      Board may from time to time, subject to the provisions of the Plan and such
      other terms and conditions as the Board may determine, grant a Performance
      Bonus
      to certain Eligible Employees selected for participation. The Board will
      determine the amount that may be earned as a Performance Bonus in any period
      of
      one year or more upon the achievement of a performance target established by
      the
      Board. The Board shall select the applicable performance target(s) for each
      period in which a Performance Bonus is awarded. The performance target shall
      be
      based upon all or some of the operational, financial or performance criteria
      more specifically listed in Exhibit A attached. 

     

    Section
      9.2 Payment of Performance Bonus.
      In order
      for any Participant to be entitled to payment of a Performance Bonus, the
      applicable performance target(s) established by the Board must first be obtained
      or exceeded. Payment of a Performance Bonus shall be made within 60 days of
      the
      Board’s certification that the performance target(s) has been achieved unless
      the Participant has previously elected to defer payment pursuant to a
      nonqualified deferred compensation plan adopted by the Company. Payment of
      a
      Performance Bonus may be made in either cash or Common Stock as determined
      in
      the sole discretion of the Board. 

     

    ARTICLE
      X

     

    STOCK
      ADJUSTMENTS 

     

    In
      the
      event that the shares of Common Stock, as constituted on the effective date
      of
      the Plan, shall be changed into or exchanged for a different number or kind
      of
      shares of stock or other securities of the Company or of another corporation
      (whether by reason of merger, consolidation, recapitalization, reclassification,
      stock split, spin-off, combination of shares or otherwise), or if the number
      of
      such shares of Common Stock shall be increased through the payment of a stock
      dividend, or a dividend on the shares of Common Stock, or if rights or warrants
      to purchase securities of the Company shall be issued to holders of all
      outstanding Common Stock, then there shall be substituted for or added to each
      share available under and subject to the Plan, and each share theretofore
      appropriated under the Plan, the number and kind of shares of stock or other
      

     

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    securities
      into which each outstanding share of Common Stock shall be so changed or for
      which each such share shall be exchanged or to which each such share shall
      be
      entitled, as the case may be, on a fair and equivalent basis in accordance
      with
      the applicable provisions of Section 424 of the Code; provided, however, with
      respect to Options, in no such event will such adjustment result in a
      modification of any Option as defined in Section 424(h) of the Code. In the
      event there shall be any other change in the number or kind of the outstanding
      shares of Common Stock, or any stock or other securities into which the Common
      Stock shall have been changed or for which it shall have been exchanged, then
      if
      the Board shall, in its sole discretion, determine that such change equitably
      requires an adjustment in the shares available under and subject to the Plan,
      or
      in any Award, theretofore granted, such adjustments shall be made in accordance
      with such determination, except that no adjustment of the number of shares
      of
      Common Stock available under the Plan or to which any Award relates that would
      otherwise be required shall be made unless and until such adjustment either
      by
      itself or with other adjustments not previously made would require an increase
      or decrease of at least 1% in the number of shares of Common Stock available
      under the Plan or to which any Award relates immediately prior to the making
      of
      such adjustment (the “Minimum Adjustment”). Any adjustment representing a change
      of less than such minimum amount shall be carried forward and made as soon
      as
      such adjustment together with other adjustments required by this Article X
      and
      not previously made would result in a Minimum Adjustment. Notwithstanding the
      foregoing, any adjustment required by this Article X which otherwise would
      not
      result in a Minimum Adjustment shall be made with respect to shares of Common
      Stock relating to any Award immediately prior to exercise, payment or settlement
      of such Award. No fractional shares of Common Stock or units of other securities
      shall be issued pursuant to any such adjustment, and any fractions resulting
      from any such adjustment shall be eliminated in each case by rounding downward
      to the nearest whole share. 

     

    ARTICLE
      XI

     

    GENERAL
      

     

    Section
      11.1 Amendment or Termination of Plan.
      The
      Board may alter, suspend or terminate the Plan at any time provided, however,
      that it may not, without stockholder approval, adopt any amendment which would
      (i) increase the aggregate number of shares of Common Stock available under
      the
      Plan (except by operation of Article X), (ii) materially modify the requirements
      as to eligibility for participation in the Plan, or (iii) materially increase
      the benefits to Participants provided by the Plan. 

     

    Section
      11.2 Termination of Employment; Termination of Service.
      If an
      Eligible Employee’s employment with the Company, a Subsidiary or an Affiliated
      Entity terminates as a result of death, Disability or Retirement, the Eligible
      Employee (or personal representative in the case of death) shall be entitled
      to
      purchase all or any part of the shares subject to any (i) vested Incentive
      Stock
      Option for a period of up to three months from such date of termination (one
      year in the case of death or Disability (as defined above) in lieu of the
      three-month period), and (ii) vested Nonqualified Stock Option during the
      remaining term of the Option. If an Eligible Employee’s employment terminates
      for any other reason, the Eligible Employee shall be entitled to purchase all
      or
      any part of the shares subject to any vested Option for a period of up to three
      months from such date of termination. In no event shall any Option be
      exercisable past the term of the Option. The Board may, in its sole discretion,
      accelerate the vesting of unvested Options in the event of termination of
      employment of any Participant. 

     

    In
      the
      event a Consultant ceases to provide services to the Company or an Eligible
      Director terminates service as a director of the Company, the unvested portion
      of any Award shall be forfeited unless otherwise accelerated pursuant to the
      terms of the Eligible Director’s Award Agreement or by the Board. The Consultant
      or Eligible Director shall have a period of three years following the date
      he
      ceases to provide consulting services or ceases to be a director, as applicable,
      to exercise any Nonqualified Stock Options which are otherwise exercisable
      on
      his date of termination of service. 

     

    Section
      11.3 Limited Transferability - Options.
      The
      Board may, in its discretion, authorize all or a portion of the Nonqualified
      Stock Options granted under this Plan to be on terms which permit transfer
      by
      the Participant to (i) the ex-spouse of the Participant pursuant to the terms
      of
      a domestic relations order, (ii) the spouse, children or grandchildren of the
      Participant (“Immediate Family Members”), (iii) a trust or trusts for the
      exclusive benefit of such Immediate Family Members, or (iv) a partnership or
      limited liability company in which such Immediate Family Members are the only
      partners or members. In addition, there may be no 

     

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    consideration
      for any such transfer. The Award Agreement pursuant to which such Nonqualified
      Stock Options are granted expressly provide for transferability in a manner
      consistent with this paragraph. Subsequent transfers of transferred Nonqualified
      Stock Options shall be prohibited except as set forth below in this Section
      11.3. Following transfer, any such Nonqualified Stock Options shall continue
      to
      be subject to the same terms and conditions as were applicable immediately
      prior
      to transfer, provided that for purposes of Section 11.2 hereof the term
“Participant” shall be deemed to refer to the transferee. The events of
      termination of employment of Section 11.2 hereof shall continue to be applied
      with respect to the original Participant, following which the Nonqualified
      Stock
      Options shall be exercisable by the transferee only to the extent, and for
      the
      periods specified in Section 11.2 hereof. No transfer pursuant to this Section
      11.3 shall be effective to bind the Company unless the Company shall have been
      furnished with written notice of such transfer together with such other
      documents regarding the transfer as the Board shall request. With the exception
      of a transfer in compliance with the foregoing provisions of this Section 11.3,
      all other types of Awards authorized under this Plan shall be transferable
      only
      by will or the laws of descent and distribution; however, no such transfer
      shall
      be effective to bind the Company unless the Board has been furnished with
      written notice of such transfer and an authenticated copy of the will and/or
      such other evidence as the Board may deem necessary to establish the validity
      of
      the transfer and the acceptance by the transferee of the terms and conditions
      of
      such Award. 

     

    Section
      11.4 Withholding Taxes.
      Unless
      otherwise paid by the Participant, the Company, its Subsidiaries or any of
      its
      Affiliated Entities shall be entitled to deduct from any payment under the
      Plan,
      regardless of the form of such payment, the amount of all applicable income
      and
      employment taxes required by law to be withheld with respect to such payment
      or
      may require the Participant to pay to it such tax prior to and as a condition
      of
      the making of such payment. In accordance with any applicable administrative
      guidelines it establishes, the Board may allow a Participant to pay the amount
      of taxes required by law to be withheld from an Award by (i) directing the
      Company to withhold from any payment of the Award a number of shares of Common
      Stock having a Fair Market Value on the date of payment equal to the amount
      of
      the required withholding taxes or (ii) delivering to the Company previously
      owned shares of Common Stock having a Fair Market Value on the date of payment
      equal to the amount of the required withholding taxes. However, any payment
      made
      by the Participant pursuant to either of the foregoing clauses (i) or (ii)
      shall
      not be permitted if it would result in an adverse accounting charge with respect
      to such shares used to pay such taxes unless otherwise approved by the Board.
      

     

    Section
      11.5 Change of Control.
      Notwithstanding any other provision in this Plan to the contrary, in the event
      of a Change of Control Event, the Board shall have the discretion to determine
      whether and to what extent to accelerate the vesting, exercise or payment of
      an
      Award.

     

    Section
      11.6 Amendments to Awards.
      Subject
      to the limitations of Article IV, such as the prohibition on repricing of
      Options, the Board may at any time unilaterally amend the terms of any Award
      Agreement, whether or not presently exercisable or vested, to the extent it
      deems appropriate. However, amendments which are adverse to the Participant
      shall require the Participant’s consent. 

     

    Section
      11.7 Registration; Regulatory Approval.
      Following approval of the Plan by the stockholders of the Company as provided
      in
      Section 1.2 of the Plan, the Board, in its sole discretion, may determine to
      file with the Securities and Exchange Commission and keep continuously
      effective, a Registration Statement on Form S-8 with respect to shares of Common
      Stock subject to Awards hereunder. Notwithstanding anything contained in this
      Plan to the contrary, the Company shall have no obligation to issue shares
      of
      Common Stock under this Plan prior to the obtaining of any approval from, or
      satisfaction of any waiting period or other condition imposed by, any
      governmental agency which the Board shall, in its sole discretion, determine
      to
      be necessary or advisable. 

     

    Section
      11.8 Right to Continued Employment.
      Participation in the Plan shall not give any Eligible Employee any right to
      remain in the employ of the Company, any Subsidiary, or any Affiliated Entity.
      The Company or, in the case of employment with a Subsidiary or an Affiliated
      Entity, the Subsidiary or Affiliated Entity reserves the right to terminate
      any
      Eligible Employee at any time. Further, the adoption of this Plan shall not
      be
      deemed to give any Eligible Employee or any other individual any right to be
      selected as a Participant or to be granted an Award. 

     

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    Section
      11.9 Reliance on Reports.
      Each
      member of the Board and each member of the Board shall be fully justified in
      relying or acting in good faith upon any report made by the independent public
      accountants of the Company and its Subsidiaries and upon any other information
      furnished in connection with the Plan by any person or persons other than
      himself or herself. In no event shall any person who is or shall have been
      a
      member of the Board be liable for any determination made or other action taken
      or any omission to act in reliance upon any such report or information or for
      any action taken, including the furnishing of information, or failure to act,
      if
      in good faith. 

     

    Section
      11.10 Construction.
      Masculine pronouns and other words of masculine gender shall refer to both
      men
      and women. The titles and headings of the sections in the Plan are for the
      convenience of reference only, and in the event of any conflict, the text of
      the
      Plan, rather than such titles or headings, shall control. 

     

    Section
      11.11 Governing Law.
      The Plan
      shall be governed by and construed in accordance with the laws of the State
      of
      Delaware except as superseded by applicable Federal law. 

     

    Section
      11.12 Other Laws.
      The
      Board may refuse to issue or transfer any shares of Common Stock or other
      consideration under an Award if, acting in its sole discretion, it determines
      that the issuance or transfer of such shares or such other consideration might
      violate any applicable law or regulation or entitle the Company to recover
      the
      same under Section 16(b) of the Exchange Act, and any payment tendered to the
      Company by a Participant, other holder or beneficiary in connection with the
      exercise of such Award shall be promptly refunded to the relevant Participant,
      holder or beneficiary. 

     

    Section
      11.13 No Trust or Fund Created.
      Neither
      the Plan nor an Award shall create or be construed to create a trust or separate
      fund of any kind or a fiduciary relationship between the Company and a
      Participant or any other person. To the extent that a Participant acquires
      the
      right to receive payments from the Company pursuant to an Award, such right
      shall be no greater than the right of any general unsecured creditor of the
      Company. 

     

    Section
      11.14 Conformance to Section 409A of the Code. To
      the
      extent that the Committee determines that any Award granted under the Plan
      is
      subject to Section 409A of the Code, the Award Agreement evidencing such Award
      shall incorporate the terms and conditions required by Section 409A of the
      Code.
      To the extent applicable, the Plan and Award Agreements shall be interpreted
      in
      accordance with Section 409A of the Code and Department of Treasury regulations
      and other interpretive guidance issued thereunder, including without limitation
      any such regulations or other guidance that may be issued after the Effective
      Date. Notwithstanding any provision of the Plan to the contrary, in the event
      that the Committee determines that any Award may be subject to Section 409A
      of
      the Code and related Department of Treasury guidance, the Committee may adopt
      such amendments to the Plan and the applicable Award Agreement or adopt other
      policies and procedures (including amendments, policies and procedures with
      retroactive effect), or take any other actions, that the Committee determines
      are necessary or appropriate to (i) exempt the Award from Section 409A of the
      Code or (ii) comply with the requirements of Section 409A of the Code and
      related Department of Treasury guidance.

     

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