Exhibit 10.1






EXHIBIT 10.1




AMENDED AND RESTATED

2006 STOCK INCENTIVE PLAN




OF




SANUWAVE HEALTH, INC.




Effective as of January 1, 2010




 


 









 







AMENDED AND RESTATED

2006 STOCK INCENTIVE PLAN

OF

SANUWAVE HEALTH, INC.




1. Purpose




This purpose of this amendment and restatement of the 2006 Stock Incentive Plan of SANUWAVE
Health, Inc. (formerly Rub Music Enterprises, Inc.) is to reflect the provisions of that certain
Agreement and Plan of Merger by and among Rub Music Enterprises, Inc., RME Delaware Merger Sub,
Inc., and SANUWAVE, Inc. dated as of September 25, 2009 (hereinafter, the “Merger Agreement”) to
provide for the issuance of stock options and Common Stock of SANUWAVE Health, Inc. under this Plan
and to provide that SANUWAVE, Inc. shall no longer issue any stock options or common stock under
this Plan. This Plan is amended and restated as of January 1, 2010. The purpose of the Amended and
Restated 2006 Stock Incentive Plan of SANUWAVE Health, Inc. is to encourage and enable selected
employees, directors and independent contractors of SANUWAVE Health, Inc. and its related
businesses to acquire or to increase their holdings of Common Stock and other proprietary interests
in the Company in order to promote a closer identification of their interests with those of the
Company and its shareholders, thereby further stimulating their efforts to enhance the efficiency,
soundness, profitability, growth and stockholder value of the Company. This purpose will be carried
out through the granting of Nonstatutory Options and the direct issuance of shares of Common Stock
to selected employees, independent contractors and directors.



2. Definitions





For the purposes of this Agreement, the following terms shall have the following meanings:




(a) “Administrator” shall have the meaning provided in Section 3(a).



(b) “Affiliates” as applied to any Person, shall mean any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities (the ownership of more than 50% of the
voting securities of an entity shall for purposes of this definition be deemed to be “control”), by
contract or otherwise.




(c) “Agreement” shall have the meaning provided in Section 3(b).



(d) “Award” shall mean the grant of an Option or direct issuance of shares of Common Stock
made pursuant to this Plan.




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



(f) “Cause” means that termination of a Participant’s service with the Company results from
the Participant’s (i) termination for “cause” under the terms of the Participant’s employment
agreement with the Company, if any; (ii) dishonesty or conviction of a crime; (iii) failure to
perform his or her duties to the satisfaction of the Company; or (iv) engaging in conduct that
could be materially damaging to the Company without a reasonable good faith belief that such
conduct was in the best interest of the Company. The determination of “Cause” shall be made in a
manner consistent with the Participant’s employment agreement, if any, or in the absence of an
employment agreement it shall be made by the Administrator, which determination shall be final and
conclusive.


 


2









 





(g) “Change of Control” shall mean the occurrence of any of the following events: (1) the
sale, exchange, lease or other disposition of all or substantially all of the assets of the Company
to a person or group of
related persons, as such terms are defined or described in Sections 3(a)(9) and 13(d)(3) of
the Exchange Act (other than Prides Capital Partners, LLC and its Affiliates, NightWatch Capital
LLC and is Affiliates, or any group controlled by any of the foregoing Persons), that will continue
the business of the Company in the future; (2) a merger or consolidation involving the Company in
which the voting securities of the Company owned by the shareholders of the Company immediately
prior to such merger or consolidation do not represent, after conversion if applicable, more than
fifty percent (50%) of the total voting power of the surviving controlling entity outstanding
immediately after such merger or consolidation; provided that any person who (A) was a beneficial
owner (within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act (“Beneficial
Owner”)) of the voting securities of the Company immediately prior to such merger or consolidation,
and (B) is a Beneficial Owner of more than 20% of the securities of the Company immediately after
such merger or consolidation, shall be excluded from the list of “shareholders of the Company
immediately prior to such merger or consolidation” for purposes of the preceding calculation; or
(3) any person or group (other than Prides Capital Partners, LLC and its Affiliates, NightWatch
Capital LLC and its Affiliates, or any group controlled by any of the foregoing Persons) is or
becomes the Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of
the voting stock of the Company (including by way of merger, consolidation or otherwise) and the
representatives of Prides Capital Partners, LLC and its Affiliates, NightWatch Capital LLC and its
Affiliates, or any group in which any of the foregoing Persons is a member, individually or in the
aggregate, cease to have the ability to elect a majority of the Board (for the purposes of this
clause (3), a member of a group will not be considered to be the Beneficial Owner of the securities
owned by other members of the group).



(h) “Code” means the Internal Revenue Code of 1986, as amended, and any regulations issued
thereunder from time to time.




(i) “Committee” shall have the meaning provided in Section 3(a).




(j) “Common Stock” means the common stock, par value $0.001, of the Company.



(k) “Common Stockholders Agreement” means the Common Stockholders Agreement among SANUWAVE,
Inc. and certain holders of the Company’s Common Stock, effective October 24, 2006, as amended from
time to time; or such other shareholders’ agreement as is designated by the Company in the
applicable Agreement at the time of grant.




(l) “Company” means SANUWAVE Health, Inc.




(m) “Effective Date” shall have the meaning provided in Section 4.




(n) “Exchange Act” means the Securities Exchange Act of 1934, as amended.




(o) “Exercise Price” shall have the meaning provided in Section 7.




(p) “Expiration Date” shall have the meaning provided in Section 7.



(q) “Fair Market Value” means Fair Market Value of the shares as determined in good faith by
the Administrator. Except as may otherwise be determined by the Administrator in good faith, Fair
Market Value shall be determined in accordance with the following provisions: (1) if the shares of
Common Stock are listed or quoted on a national securities exchange, or any regulated quotation
service, such as the Over-the-Counter (OTC) Bulletin Board, the Fair Market Value shall be the
closing price of the shares on such national securities exchange or regulated quotation service on
the date the Award is granted, or if there is no transaction on such date, then on the trading date
nearest following the date of the Award is granted for which closing price information is
available, or (2) if the shares of Common Stock are not listed or quoted on a national securities
or other regulated quotation service, then the Fair Market Value shall be determined by the
Administrator, acting in good faith, by the reasonable application of a reasonable valuation method
which is consistently applied for all equity compensation arrangements of the Company and is in
compliance with applicable law, including Code Section 409A.



(r) “Options” shall mean nonstatutory options that do not qualify as incentive stock
options under Code Section 422(b), as described in Section 7.


 


3









 






(s) “Participant” shall have the meaning provided in Section 6(b).



(t) “Person” means an individual, partnership, corporation, business trust, joint stock
company, limited liability company, unincorporated association, joint venture or other entity of
whatever nature.



(u) “Plan” means the 2006 Stock Incentive Plan of SANUWAVE Health, Inc., as it may be amended
from time to time.




(v) “Securities Act” means the Securities Act of 1933, as amended.



3. Administration of the Plan




(a) The Plan shall be administered by the Board. The Board may, in its sole discretion,
delegate all or part of its administrative authority with respect to the Plan to a committee of the
Board (the “Committee”). For purposes herein, the Board, and, upon its delegation of any
administrative responsibilities for the Plan to the Committee, the Committee, shall be referred to
as the “Administrator.” In the event that the Company shall become subject to the reporting
requirements of the Exchange Act, the Committee shall be comprised solely of two or more
“non-employee directors,” as said term is defined in Rule 16b-3 under the Exchange Act, unless the
Board determines that such Committee composition is not necessary or advisable.



Any action of the Administrator with respect to the Plan may be taken by a written instrument
signed by all of the members of the Administrator and any such action so taken by written consent
shall be as fully effective as if it had been taken by a majority of the members at a meeting duly
held and called. Subject to the provisions of the Plan and compliance with Code Section 409A, the
Administrator shall have full and sole authority in its discretion to take any action with respect
to the Plan including, without limitation, the authority (i) to determine all matters relating to
Awards, including selection of individuals to be granted Awards, the number of shares of the Common
Stock, if any, subject to an Awards, and all terms, conditions, restrictions and limitations of an
Award, (ii) to prescribe the form or forms of the agreements evidencing any Awards granted under
the Plan (“Agreement”); (iii) to establish, amend and rescind rules and regulations for the
administration of the Plan; and (iv) to construe and interpret the Plan and Agreements, to
establish and interpret rules and regulations for administering the Plan and to make all other
determinations deemed necessary or advisable for administering the Plan. The Administrator shall
also have authority, in its sole discretion, to accelerate the date that any Award which was not
otherwise vested shall become vested in whole or in part without any obligation to accelerate such
date with respect to any other Award granted to any Participant. In addition, the Administrator
shall have the authority and discretion to establish terms and conditions of Awards as the
Administrator determines to be necessary or appropriate to conform to the applicable requirements
or practices of jurisdictions outside of the United States.



4. Effective Date




The effective date of this amendment and restatement shall be January 1, 2010 (the “Effective
Date”) The Plan’s original effective date was October 24, 2006. Awards may be granted under the
amended and restated Plan on and after the Effective Date.



5. Shares of Stock Subject to the Plan; Award Limitations




(a) The number of shares of Common Stock that may be issued pursuant to Awards shall be
5,000,000 shares. Such shares shall be authorized but unissued shares or treasury shares of the
Company, or shares purchased on the open market or by private purchase.



(b) The Company hereby reserves sufficient authorized shares of Common Stock to meet the grant
of Awards hereunder. Any shares subject to an Award which is subsequently forfeited, expires or is
terminated may again be the subject of an Award granted under the Plan. To the extent that any
shares of Common Stock subject to an Award are not issued to a Participant (or his or her
beneficiary) because the Award is forfeited, canceled, settled in cash, or used to satisfy
applicable tax withholding obligations, such shares shall not be deemed to have been issued
for purposes of determining the maximum number of shares of Common Stock available for
issuance under the Plan. If the purchase price of an Award granted under the Plan is satisfied by
tendering shares of Common Stock, only the number of shares issued net of the shares of Common
Stock tendered shall be deemed issued for purposes of determining the maximum number of shares of
Common Stock available for issuance under the Plan.


 


4









 





(c) If there is any change in the shares of Common Stock because of a merger, consolidation or
reorganization involving the Company or an Affiliate of the Company, or if the Board declares a
stock dividend or stock split distributable in shares of Common Stock, or if there is a change in
the equity capital structure of the Company or its Affiliate affecting the Common Stock, the number
of shares of Common Stock reserved for issuance under the Plan shall be correspondingly adjusted,
and the Administrator shall make such adjustments to Awards or to any provisions of this Plan as
provided in Section 9 hereof.



6. Eligibility




An Award may be granted only to an individual who satisfies the following eligibility
requirements on the date the Award is granted:



(a) The individual is either (i) an employee of the Company or an Affiliate, (ii) a director
of the Company or an Affiliate, or (iii) an independent contractor, consultant or advisor
(collectively, “independent contractors”) providing bona fide services to the Company or an
Affiliate. For this purpose, an individual shall be considered to be an “employee” only if there
exists between the individual and the Company or an Affiliate the legal and bona fide relationship
of employer and employee.



(b) The individual, being otherwise eligible under this Section, is selected by the
Administrator as an individual to whom an Award shall be granted (a “Participant”).



7. Options




(a) Grant of Options: Subject to the limitations of the Plan, the Administrator may in its
sole and absolute discretion grant Options to such eligible individuals (determined pursuant to
Section 6 hereof), in such numbers, upon such terms and at such times as the Administrator shall
determine. Each Option grant shall be evidenced by an Agreement specifying all terms and conditions
required by this Plan in the form set forth as Exhibit II attached hereto.



(b) Term: The term of an Option shall commence on the date the Option is granted, determined
as provided in subsection 7(c)(i) below (the “Grant Date”), and shall expire as set forth in the
Option Agreement (or, where no such date is provided in the individual Agreement, on the tenth
(10th) anniversary of the Grant Date (the “Expiration Date”)), unless terminated earlier
on the first to occur of the following:




(i) The date on which the Participant’s service with the Company is terminated by the
Company for Cause;




(ii) Sixty (60) days after the Participant’s death; or




(iii) Sixty (60) days after the termination of the Participant’s service with the
Company for any reason other than Cause or the Participant’s death, provided that if during
any part of such sixty (60) day period the Option is not exercisable solely because of the
restrictions set forth in Section 13 relating to “Securities Law Compliance,” the Option
shall not expire until the earlier of the Expiration Date or until it shall have been
exercisable for an aggregate period of sixty (60) days after the termination of the
Participant’s service with the Company.



Upon the Expiration Date, any portion of an Option which has not yet vested and been exercised
shall be immediately forfeited.


 


5









 





(c) Exercise Price: The price per share at which an Option may be exercised (the “Exercise
Price”) shall be established by the Administrator at the time the Option is granted and shall be
set forth in the terms of the Agreement evidencing the grant of the Option; provided that the
Exercise Price shall in no event be less than the Fair Market Value per share of the Common Stock
on the date the Option is granted. In addition, the following rules shall apply




(i) Options shall be considered to be granted on the date the Administrator acts to
grant the Option or any other date permitted by applicable law and specified by the
Administrator as the date of grant of the Option.




(ii) The Exercise Price shall be adjusted from time to time, as applicable, with
respect to various adjustments in the Company’s equity capital structure, as provided in
Section 9 hereof.




(d) Exercise.




	 	(i)	 	Subject to any limitations set forth in this Plan, a
Participant may exercise the vested portion of his or her Option (determined in
accordance with Section 8) during its term by delivering a Notice of Exercise
(in the form attached hereto as Exhibit I) together with the Exercise
Price to the Company’s Chief Financial Officer, or to such other Person as the
Administrator may designate, during regular business hours, together with such
additional documents as the Company may then reasonably require.







	 	(ii)	 	As a condition of any exercise of an Option, a Participant may
be required to execute and become a party to the Common Stockholders Agreement.







	 	(iii)	 	An Option may be exercised only in exchange for whole shares
of stock. To the extent that a Participant exercises any Option for a
fractional share of stock, he or she will receive an immediate cash payment in
an amount equal to the Fair Market Value of such fractional share.






(e) Method of Payment. Payment of the Exercise Price with respect to the number of shares
being exercised is due in full upon exercise of all or the applicable part of an Option. A
Participant may elect to make payment of the Exercise Price (i) in cash or by check, or (ii) at the
discretion of the Administrator (which determination by the Administrator is to be given prior to
the time of exercise), by delivery to the Company of other Common Stock. The purchase price of
Common Stock acquired pursuant to an Option that is paid by delivery to the Company of other Common
Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common
Stock of the Company that have been held by the Participant for more than six (6) months (or such
longer or shorter period of time required to avoid a charge to earnings for financial accounting
purposes). A Participant may, subject to procedures satisfactory to the Administrator, satisfy
such delivery requirement by presenting proof of beneficial ownership of such Common Stock, in
which case the Company shall treat the Option as exercised without further payment and shall
withhold such number of shares of Common Stock from the Common Stock acquired by the exercise of
the Option. For purposes of the payment of the Exercise Price of the Option by delivery of shares
of Common Stock (or proof of beneficial ownership thereof), such shares of Common Stock shall have
the value per share as of the applicable exercise date as determined in good faith by the
Administrator, which value shall be applicable both for purposes of payment of the Option exercise
price and the calculation of any taxable income incurred by the Participant as the result of the
Option exercise.



(f) Nontransferability of Options: Options shall not be transferable other than by will or the
laws of interstate succession, except as may be permitted by the Administrator in a manner
consistent with the registration provisions of the Securities Act of 1933, as amended (the
“Securities Act”). Except as may be permitted by the preceding sentence, an Option shall be
exercisable during the Participant’s lifetime only by him or her or by his or her guardian or legal
representative. The designation of a beneficiary does not constitute a transfer.



 


6









 





(g) Vesting: Options shall vest and become exercisable as provided in the relevant Agreement.
Notwithstanding the immediately preceding sentence, unless an individual Agreement provides
otherwise:




(i) An Option shall not be affected by any change in the terms, conditions or status of
the Participant’s service, provided that the Participant continues to provide services to
the Company or its Affiliates.




(ii) The employment relationship of a Participant shall be treated as continuing intact
for any period that the Participant is on military or sick leave or other bona fide leave of
absence, provided that the period of such leave does not exceed ninety (90) days, or, if
longer, as long as the Participant’s right to re-employment is guaranteed either by statute
or by contract. The employment relationship of a Participant shall also be treated as
continuing intact while the Participant is not in active service because of disability. The
Administrator shall determine whether a Participant is disabled within the meaning of this
paragraph, and, if applicable, the date of a Participant’s termination of employment or
service for any reason.




(iii) Unless an individual Agreement provides otherwise, if the service of a
Participant is terminated for any reason other than Cause, the Participant shall be entitled
to the portion of the Option that was vested on the date of the Participant’s termination,
and any remaining portion of the Option shall be forfeited immediately. In the event of the
Participant’s death, the person or persons as shall have acquired the right to the Option by
will or by the laws of intestate succession shall have the same rights the Participant would
have had hereunder.




(iv) Unless an individual Agreement provides otherwise, if the service of the
Participant is terminated for Cause, his or her entire Option (whether or not vested) shall
be immediately forfeited as of the effective time of his or her termination, as determined
by the Administrator.




(v) Notwithstanding the foregoing and subject to compliance with Code Section 409A and
applicable law, the Administrator shall have authority, in its discretion, to extend the
term of an Option or modify the other terms and conditions of exercise, including but not
limited to accelerating the vesting of all or any part of the Option.



8. Issuance of Stock




Shares of Common Stock may be issued under the Plan through direct and immediate issuances
without any intervening Option grants. Each such stock issuance shall be evidenced by an Agreement
which complies with the terms specified below. Shares of Common Stock may also be issued under the
Plan pursuant to share right awards which entitle the Participants to receive those shares
immediately upon the attainment of designated performance goals.



(a) Purchase Price: The purchase price per share shall be fixed by the Administrator, but
shall not be less than one hundred percent (100%) of the Fair Market Value per share of Common
Stock on the issuance date. Shares of Common Stock may be granted under the Plan, to the extent
permitted by applicable statutes and regulations, for any of the following items of consideration
which the Administrator may deem appropriate in each individual instance: (i) cash or check made
payable to the Company; (ii) past services rendered to the Company (or any Affiliate); or (iii)
contracts for future services to be rendered to the Company (or any Affiliate).




(b) Vesting Provisions:




(i) Shares of Common Stock issued under the Plan may, in the discretion of the
Administrator, be fully and immediately vested upon issuance or may vest in one or more
installments over the Participant’s period of service or upon attainment of designated
performance goals. The elements of the vesting schedule applicable to any unvested shares of
Common Stock issued under the Plan shall be determined by the Administrator and incorporated
into the Agreement. Shares of Common Stock may also be issued under the Plan pursuant to
share right awards which entitle the Participants to receive those shares immediately upon
the attainment of designated performance goals. In no event shall shares be issued to a
Participant later than two and one-half months after the close of the calendar year in which
the designated performance goals and any other vesting conditions which apply to such shares
are satisfied, or in the case of unforeseeable events as defined in the regulations under Code Section 409A as soon
as administratively practicable thereafter.


 


7









 






(ii) Any new, substituted or additional securities or other property (including money
paid other than as a regular cash dividend) which the Participant may have the right to
receive with respect to the Participant’s unvested shares of Common Stock by reason of any
stock dividend, stock split, recapitalization, combination of shares, exchange of shares or
other change affecting the outstanding Common Stock as a class without the Company’s receipt
of consideration shall be issued subject to the same vesting requirements applicable to the
Participant’s unvested shares of Common Stock and such escrow arrangements as the
Administrator shall deem appropriate.




(iii) The Participant shall have full stockholder rights with respect to any shares of
Common Stock received by the Participant under this Section 8, whether or not the
Participant’s interest in those shares is vested. Accordingly, the Participant shall have
the right to vote such shares and to receive any regular cash dividends paid on such shares.




(iv) Should the Participant separate from service while holding one or more unvested
 shares of Common Stock issued under this Section 8 or should the performance objectives not
be attained with respect to one or more such unvested shares of Common Stock, then those
 shares shall be immediately surrendered to the Company for cancellation, and the Participant
shall have no further stockholder rights with respect to those shares. To the extent the
surrendered shares were previously issued to the Participant for consideration paid in cash,
the Company shall repay to the Participant the cash consideration paid for the surrendered
 shares.




(v) The Administrator may in its discretion waive the surrender and cancellation of one
or more unvested shares of Common Stock which would otherwise occur upon the Participant’s
separation from service or the non-attainment of the performance objectives applicable to
those shares. Such waiver shall result in the immediate vesting of the Participant’s
interest in the shares of Common Stock as to which the waiver applies. Such waiver may be
effected at any time, whether before or after the Participant’s separation from service or
the attainment or non-attainment of the applicable performance goals.




(vi) Outstanding share right awards under this Section 8 shall automatically terminate,
and no shares of Common Stock shall actually be issued in satisfaction of those Awards, if
the performance goals established for such Awards are not attained.



9. Adjustment




(a) In the event of any change in the Common Stock underlying an Award, by reason of any stock
dividend, forward stock split or reverse stock split, then (i) the number of shares subject to such
Award and (ii) the Exercise Price or purchase price applicable to any Award, shall be
proportionately adjusted, subject to any required action by the Board or the stockholders of the
Company and compliance with applicable law, which in each case the Company agrees to use its best
efforts to effect.



(b) In the event of any change in the Common Stock underlying an Award, by reason of any
reorganization, recapitalization, merger, consolidation, spin-off, combination, exchange of shares
of Common Stock or other corporate exchange, any distribution to stockholders of Common Stock, or
any transaction similar to the foregoing (but not including either a stock dividend or a stock
split, which shall be addressed under Section 9(a) above), the Board shall make such substitution
or adjustment, if any, as it deems (in its good faith, reasonable judgment) to be equitable to (i)
the class and number of shares underlying such Award, (ii) the Exercise Price or purchase price
applicable to such Award, or (iii) any other affected terms of such Award.



(c) Any determination, substitution or adjustment made by the Board under this Section in the
exercise of its good faith business judgment shall be final, binding and conclusive on all persons.
The conversion of any debt instruments that may be converted into the securities of the Company
shall not be treated as a transaction that will cause the Board to make any determination,
substitution or adjustment under this Section.


 


8









 





10. Change of Control




Notwithstanding any other provision of the Plan to the contrary, in the event of a Change of
Control, unless specifically modified by an individual’s Agreement:




(a) All Awards outstanding as of the date of such Change of Control shall become fully vested.



(b) Notwithstanding the foregoing, in the event of a merger, share exchange, sale or disposal
of substantially all of the assets of the Company, reorganization or other business combination
affecting the Company or its Affiliate, the Administrator may, in its sole and absolute discretion,
determine that any or all Awards granted pursuant to the Plan shall not vest on an accelerated
basis, if the Board, the surviving corporation or the acquiring corporation, as the case may be,
shall have taken such action, including but not limited to the assumption of Awards or the grant of
substitute awards (in either case, with substantially similar or equivalent terms as Awards), as in
the opinion of the Administrator is equitable or appropriate to protect the rights and interests of
Participants under the Plan. For the purposes herein, if the Committee is acting as the
Administrator, the Committee authorized to make the determinations provided for in this Section
shall be appointed by the Board, two-thirds of the members of which shall have been directors of
the Company prior to the sale, merger, share exchange, reorganization or other business
combinations affecting the Company or its Affiliate.



11. Withholding




The Company shall withhold all required local, state and federal taxes from any amount payable
in cash with respect to an Award. The Company shall require any recipient of an Award payable in
shares of the Common Stock to pay to the Company in cash the amount of any tax or other amount
required by any governmental authority, to be withheld and paid over by the Company to such
authority for the account of such Participant. Notwithstanding the foregoing, the Participant may
satisfy such obligation in whole or in part, and any other local, state or federal income tax
obligations relating to such an Award by electing (the “Election”) to have the Company withhold
shares of Common Stock from the shares to which the Participant is entitled. The number of shares
to be withheld shall have a Fair Market Value as of the date that the amount of tax to be withheld
is determined (the “Tax Date”) as nearly equal as possible to (but not exceeding) the amount of
such obligations being satisfied. Each Election must be made in writing to the Administrator in
accordance with election procedures established by the Administrator.



12. Performance-Based Compensation




To the extent that Code Section 162(m) is applicable, the Administrator shall determine the
extent, if any, that Awards conferred under the Plan to Covered Employees, as such term is defined
in Code Section 162(m), comply with the qualified performance-based compensation exception to
employer compensation deductions set forth in Code Section 162(m).



13. Securities Law Compliance




(a) Notwithstanding anything to the contrary contained herein, a Participant may not exercise
his or her Option or be granted shares of Common Stock unless the shares of Common Stock issuable
upon such exercise or grant are then registered under the Securities Act or, if such shares of
Common Stock are not then so registered, the Company has determined that such exercise and for
issuance would be exempt from the registration requirements of the Securities Act or the
Participant has provided to the Company an opinion of counsel (in the form and substance
satisfactory to the Company and its counsel) that registration is not required. The exercise of a
Participant’s Option or grant of shares must also comply with other applicable laws and regulations
governing his or her Award, and a Participant may not exercise his or her Option or be granted
shares if the Company determines that such exercise or grant would not be in material compliance
with such laws and regulations unless the Participant provides to the Company an opinion of counsel
(in the form and substance satisfactory to the Company and its counsel) that such exercise would be
in material compliance with such laws and regulations.


 


9









 





(b) By exercising his or her Award, a Participant agrees that the Company (or a representative
of the underwriter(s)) may, in connection with the first underwritten registration of the offering
of any equity securities of the Company under the Securities Act (or any underwritten registration
of any securities of the Company prior to that time), require that the Participant not sell,
dispose of, transfer, make any short sale of, grant any option for the purchase of, or enter into
any hedging or similar transaction with the same economic effect as a sale, any shares of Common
Stock or other securities of the Company held by him or her, for a period of time specified by the
underwriter(s) (not to exceed one hundred eighty (180) days) following the effective date of the
registration statement of the Company filed under the Securities Act; provided that similar
restrictions are also imposed on the other holders of the Common Stock of the Company in connection
with such registration. Each Participant further agrees to execute and deliver such other
agreements as may be reasonably requested by the Company and/or the underwriter(s) that are
consistent with the foregoing or that are necessary to give further effect thereto. In order to
enforce the foregoing covenant, the Company may impose stop transfer instructions with respect to a
Participant’s shares of Common Stock until the end of such period. The underwriters of the
Company’s stock are intended third party beneficiaries of this Section and shall have the right,
power and authority to enforce the provisions hereof as though they were a party hereto.



(c) It is the general intent of the Company that transactions under the Plan which are subject
to Section 16 of the Exchange Act shall comply with Rule 16b-3 under the Exchange Act.
Notwithstanding anything in the Plan to the contrary, the Administrator, in its sole and absolute
discretion, may bifurcate the Plan so as to restrict, limit or condition the use of any provision
of the Plan to Participants who are officers or directors subject to Section 16 of the Exchange Act
without so restricting, limiting or conditioning the Plan with respect to other Participants.



(d) If the Participant is subject to Section 16 of the Exchange Act, shares of Common Stock
directly granted hereunder or acquired upon exercise of an Option may not, without the consent of
the Committee, be disposed of by the Participant until the expiration of six months after the date
the Award was granted.



14. No Right or Obligation of Continued Employment




Nothing contained in the Plan shall confer upon a Participant the right to continue in the
employment or service of the Company or an Affiliate as an employee, director or independent
contractor or interfere in any way with the right of the Company or an Affiliate to terminate the
Participant’s employment or service at any time. Except as otherwise provided in the Plan or a
related agreement, or required by applicable law, Awards granted under the Plan to employees of the
Company or an Affiliate shall not be affected by any change in the duties or position of the
Participant, as long as such individual remains an employee of the Company or an Affiliate.



15. Unfunded Plan; Not a Retirement Plan




(a) Neither a Participant nor any other person shall, by reason of the Plan, acquire any right
in or title to any assets, funds or property of the Company or any Affiliate including, without
limitation, any specific funds, assets or other property which the Company or any Affiliate, in
their discretion, may set aside in anticipation of a liability under the Plan. A Participant shall
have only a contractual right to the Common Stock or amounts, if any, payable under the Plan,
unsecured by any assets of the Company or any Affiliate. Nothing contained in the Plan shall
constitute a guarantee that the assets of such corporations shall be sufficient to pay any benefits
to any person.



(b) In no event shall any amounts accrued, distributable or payable under the Plan be treated
as compensation for the purpose of determining the amount of contributions or benefits to which any
Person shall be entitled under any retirement plan sponsored by the Company or an Affiliate that is
intended to be a qualified plan within the meaning of Code Section 401(a).



16. Amendment and Termination of the Plan




Except as may be otherwise provided in the Plan, the Plan and any Award granted pursuant to
the Plan, may be amended or terminated at any time by the Board; provided, that (a) amendment or
termination of an Award shall not, without the consent of the recipient of an Award (except to the
extent necessary to comply with Code Section 409A), adversely affect the rights of the recipient
with respect to an outstanding Award; and (b) approval
of an amendment to the Plan by the shareholders of the Company shall only be required in the
event such stockholder approval of any such amendment is required by applicable law, rule or
regulation.


 


10









 





17. Restrictions on Shares




The Administrator may impose such restrictions on any shares representing Awards hereunder as
it may deem advisable, including without limitation restrictions under the Securities Act, under
the requirements of any national securities exchange or similar organization and under any blue sky
or state securities laws applicable to such shares and restrictions relating to the qualification
of the Company to be taxed under Subchapter S of the Code. The Company may cause a restrictive
legend to be placed on any certificate issued pursuant to an Award hereunder in such form as may be
prescribed from time to time by applicable laws and regulations or as may be advised by legal
counsel. Shares of Common Stock acquired under this Plan are subject to the terms and conditions of
the Company’s bylaws, and the Company’s certificate of incorporation, and may also be subject to
the Common Stockholders Agreement, if required by the terms of the Award. In addition, as a
condition to the issuance and delivery of Common Stock hereunder, or the grant of any benefit
pursuant to the terms of the Plan, the Company may require a Participant or other person to become
a party to any other shareholders’ agreement, buy-sell agreement, redemption agreement, repurchase
agreement, restriction agreement or similar agreement between the Company and shareholders of the
Company or among shareholders of the Company restricting the transfer of the Common Stock.



18. No Rights as Stockholder




A Participant or his or her legal representative, legatees or distributees shall not be deemed
to be the holder of any shares subject to an Award and shall not have any rights as a stockholder
unless and until certificates for such shares are issued to him, her or them under the Plan.



19. Delay in Payment





A payment hereunder shall be delayed only as follows:



(a) if the Company reasonably anticipates that its deduction with respect to such payment
would be limited or eliminated by application of Code Section 162(m), the payment will be made
either at the earliest date at which the Company reasonably anticipates that the deduction of the
payment will not be limited or eliminated by application of Code Section 162(m) or the calendar
year in which the Participant separates from service (within the meaning of Code Section 409A);



(b) if the Company reasonably anticipates that such payment would violate a term of a loan
agreement to which the Company is a party (or other similar contract to which the Company is a
party) such that the Company would be materially harmed, and the loan agreement or other similar
contract constitutes a bona fide agreement pursuant to Code Section 409A, the payment will be
delayed to the earliest date at which the Company reasonably anticipates that a payment of such
amount would not cause such violation or that such violation would not cause material harm to the
Company;



(c) if the Company reasonably anticipates that such payment will violate applicable law,
including Federal securities laws, the payment will be delayed until the earliest date at which the
Company reasonably anticipates that the payment will not cause such violation;



(d) if calculation of such payment is not administratively practicable due to events beyond
the control of the Participant or because the funds of the Company are not sufficient to make the
payment at such time without jeopardizing the solvency of the Company, the payment will be delayed
to the first calendar year in which the payment is administratively practicable or the funds of the
Company are sufficient to make the payment without jeopardizing the solvency of the Company;



(e) if there is a good faith dispute as to such payment, or any portion thereof, the disputed
amount will be delayed, to the extent permitted by Code Section 409A, until the first calendar year
in which occurs the earliest of the Company entering into a legally binding settlement of such
dispute with the Participant, conceding the amount is payable, or being required to make such
payment pursuant to a final and nonappealable judgment or other binding decision; or


 


11









 





(f) upon such other events and conditions as the Commissioner of the Internal Revenue Service
may prescribe in generally applicable guidance.



Notwithstanding the above, paragraphs (a) and (b) shall not apply until the later of one year
from the effective date of this Plan or the Board’s approval of this Plan.



20. Applicable Law




The Plan shall be governed by and construed in accordance with the laws of the State of
Georgia, without regard to the conflict of laws provisions of any state. The Plan and all Awards
granted hereunder shall comply at all times with all laws and regulations of any governmental
authority which may be applicable thereto (including Code Section 409A). Any provision of the Plan
or any Agreement notwithstanding, the Participant shall not be entitled to receive the benefits of
Awards and the Company shall not be obligated to pay any benefits to a Participant if such
exercise, delivery, receipt or payment of benefits would constitute a violation by such individual
or the Company of any provision of any such law or regulation. Any reference herein to “compliance
with Code Section 409A” or words of similar import shall be interpreted to mean application of the
terms of the Plan or any Award, or administration of the Plan or any Award, as the case may be, in
such a manner that no additional income tax is imposed on a Participant pursuant to Code Section
409A(1)(a). If additional guidance is issued under or modifications are made to Code Section 409A
or any other law affecting the Awards issued hereunder, the Administrator shall take such actions
(including amending the Plan or any Agreement without the necessity of obtaining any Participant’s
consent as otherwise required by the Plan) as it deems necessary, in its sole discretion, to ensure
continued compliance with such law.



21. Board Approval




The Plan is subject to approval by the Board. Awards granted prior to such Board approval
shall be effective only upon approval of the Plan by the Board. This will certify that the Plan was
adopted by vote of the Board of the Company to be effective as of January 1, 2010.



	 	 	 	 	 
	 	/s/ Christopher M. Cashman
 	 
	 	Christopher M. Cashman 	 
	 	President and Chief Executive Officer 	 




 


12