**Exhibit 10.39**

**IMCLONE SYSTEMS INCORPORATED**

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**2006 STOCK INCENTIVE PLAN**

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**ARTICLE IPURPOSE**

The purpose of this ImClone Systems Incorporated 2006Stock Incentive Plan is to enhance the profitability and value of the Companyfor the benefit of its stockholders by enabling the Company to offer EligibleEmployees, Consultants and Non-Employee Directors stock-based incentives(thereby creating a means to raise the level of equity ownership by suchindividuals) and provide other incentives in order to attract, retain andreward such individuals and strengthen the mutuality of interests between suchindividuals and the Company’s stockholders.

**ARTICLE IIDEFINITIONS**

For purposes of the Plan, the following terms shallhave the following meanings:

**2.1   “*Acquisition Event*”**hasthe meaning set forth in Section 4.2(d).

**2.2   “*Affiliate*”**  means each of the following: (a) any Subsidiary or Parent; (b) anycorporation, trade or business (including, without limitation, a partnership orlimited liability company) that is directly or indirectly controlled 50% ormore (whether by ownership of stock, assets or an equivalent ownership interestor voting interest) by the Company or one of its Affiliates; and (c) anyother entity in which the Company or any of its Affiliates has a materialequity interest and that is designated as an “Affiliate” by resolution of theCommittee.

**2.3   “*Award*”**means any awardunder the Plan of any Option, Stock Appreciation Right, Restricted Stock Award,RSU Award, Performance Award or Other Stock-Based Award.

**2.4   “*Board*”**means the Boardof Directors of the Company.

**2.5   “*Cause*”**means withrespect to a Participant’s Termination of Employment or Termination ofConsultancy, the following: (a) in the case where there is an employmentagreement, consulting agreement, change in control agreement or similaragreement in effect between the Company or an Affiliate and the Participant atthe time of the grant of the Award that defines “cause” (or words or a conceptof like import), “cause” as defined under such agreement; provided, however,that with regard to any agreement under which the definition of “cause” appliesonly on occurrence of a change in control, such definition of “cause” shall notapply until a change in control actually takes place and then only with regardto a termination in the period covered thereby; or (b) if such anagreement does not exist or “cause” is not defined in any such agreement,termination due to a Participant’s insubordination, dishonesty, fraud,incompetence, moral turpitude, willful misconduct, refusal to perform his orher duties or responsibilities for any reason other than illness or incapacityor materially unsatisfactory performance of his or her duties for the Companyor an Affiliate, as determined by the Committee in its sole discretion. Withrespect to a Participant’s Termination of Directorship, “cause” means an act orfailure to act that constitutes cause for removal of a director underapplicable Delaware law.

**2.6   “*Change in Control*”**hasthe meaning set forth in Article XI.

**2.7   “*Change in Control Price*”**hasthe meaning set forth in Section 11.1.

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**2.8   “*Code*”**means the InternalRevenue Code of 1986, as amended. Any reference to any section of the Codeshall also be a reference to any successor provision and any TreasuryRegulation promulgated thereunder.

**2.9   “*Committee*”**

(a)   with respect to the application of thePlan to Eligible Employees and Consultants, the “Committee” means theCompensation Committee of the Board appointed from time to time by the Board (oranother committee or committees of the Board appointed for the purposes ofadministering the Plan). In the event that more than one Committee is appointedby the Board, the Board shall specify with respect to each Committee the groupof Persons with respect to which such Committee shall have the power to grantAwards. In the event that more than one Committee is appointed by the Board,then each reference in the Plan to “the Committee” shall be deemed a referenceto each such Committee (subject to the last sentence of this paragraph);provided, however, that each such Committee may exercise only the power andauthority granted to “the Committee” by the Plan with respect to those Personsto which it has the power to grant Awards as specified in the resolution of theBoard appointing such Committee. Each Committee shall be comprised of two ormore Directors. Each Committee shall consist of two or more non-employeedirectors, each of whom is intended to be a “non-employee director” as definedin Rule 16b-3 promulgated under Section 16(b) of the ExchangeAct, an “outside director” as defined under Section 162(m) of theCode and, to the extent required by the rules and regulations of theNasdaq Stock Market, an “independent director” as defined under suchrules and regulations; provided, however, that the foregoing shall notapply to any Committee that does not have the power to grant Awards toexecutive officers or Directors of the Company or otherwise make any decisionswith respect to the timing or the pricing of any Awards granted to suchexecutive officers and Directors. If for any reason such Committee does notmeet the requirements of Rule 16b-3 or Section 162(m) of theCode, such noncompliance with the requirements of Rule 16b-3 or Section 162(m) ofthe Code, as applicable, shall not affect the validity of Awards, grants,interpretations or other actions of the Committee.

(b)   With respect to the application of thePlan to Non-Employee Directors, the “Committee” means the Board.

**2.10   “*Common Stock*”**means theCommon Stock, $0.001****par value pershare, of the Company.

**2.11   “*Company*”**means ImCloneSystems Incorporated, a Delaware corporation, and its successors by operationof law.

**2.12   “*Consultant*”**means anyindividual who (either directly or through his or her employer) is an advisoror consultant to, or subject to Section 5.3, a prospective advisor orconsultant to, the Company or an Affiliate.

**2.13   “*Director*”**means a memberof the Board of Directors of the Company (or any successor to the Company).

**2.14   “*Disability*”**means, withrespect to a Participant’s Termination, the following:  (a) in thecase where there is an employment agreement, consulting agreement, change incontrol agreement or similar agreement in effect between the Company or anAffiliate and the Participant at the time of the grant of the Award thatdefines “disability” (or words or a concept of like import), “disability” asdefined under such agreement; provided, however, that with regard to anyagreement under which the definition of “disability” applies only on occurrenceof a change in control, such definition of “cause” shall not apply until achange in control actually takes place and then only with regard to atermination in the period covered thereby; or (b) if such an agreement doesnot exist or if “disability” is not defined in any such agreement, a permanentand total disability as defined in Section 22(e)(3) of the Code. ADisability shall be deemed to occur only at the time of the determination bythe Committee of the Disability.

**2.15   “*Effective Date*”**meansthe effective date of the Plan as defined in Article XV.

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**2.16   “*Eligible Employee*”**meanseach employee of, or subject to Section 5.3, each prospective employee of,the Company or an Affiliate.

**2.17   “*Exchange Act*”**means theSecurities Exchange Act of 1934, as amended. Any references to any section ofthe Exchange Act shall also be a reference to any successor provision.

**2.18   “*Fair Market Value*”**means,for purposes of the Plan, unless otherwise required by any applicable provisionof the Code or any regulations issued thereunder, as of any date and except asprovided below, the closing sales price reported for the Common Stock on theapplicable date: (a) as reported on the principal national securitiesexchange in the United States on which it is then traded; or (b) if nottraded on any such national securities exchange, as quoted on an automatedquotation system sponsored by the National Association of SecuritiesDealers, Inc. For purposes of the grant of any Award, the applicable dateshall be the date on which the Award is granted, or if the Common Stock shallnot have been reported or quoted on such date, on the first day prior theretoon which the Common Stock was reported or quoted. For purposes of the exerciseof any Award, the applicable date shall be the date a notice of exercise isreceived by the Committee or, if not a day on which the applicable market isopen, the next day that it is open.

**2.19   “*Family Member*”**means “familymember” as defined in Section A.1.(a)(5) of the general instructionsof Form S-8.

**2.20   “*Good Reason*”**means, withrespect to a Participant’s Termination of Employment, the following:(a) in the case where there is an employment agreement, change in controlagreement or similar agreement in effect between the Company or an Affiliateand the Participant at the time of the grant of the Award that defines “goodreason” (or words or a concept of like import), a termination due to goodreason (or words or a concept of like import), as defined in such agreement atthe time of the grant of the Award; provided, however, that with regard to anyagreement under which the definition of “good reason” applies only onoccurrence of a change in control, such definition of “good reason” shall notapply until a change in control actually takes place and then only with regardto a termination in the period covered thereby; or (b) if such anagreement does not exist or if “good reason” is not defined in any suchagreement, as defined in the Award agreement, if at all.

**2.21   “*Incentive Stock Option*”**meansany Option awarded to an Eligible Employee under this Plan intended to be anddesignated as an “Incentive Stock Option” within the meaning ofSection 422 of the Code.

**2.22   “*Non-Employee Director*”**meansa Director of the Company who is not an active employee of the Company or anAffiliate.

**2.23   “*Non-Qualified Stock Option*”**meansany Option awarded under this Plan that is not an Incentive Stock Option.

**2.24   “*Non-Tandem Stock Appreciation Right*”**shall mean the right to receive an amount in cash and/or stock equal to thedifference between (a) the Fair Market Value of a share of Common Stock onthe date such right is exercised, and (b) the aggregate exercise price ofsuch right, otherwise than on surrender of an Option.

**2.25   “*Option*”**means any optionto purchase shares of Common Stock granted to Eligible Employees, Non-EmployeeDirectors or Consultants pursuant to Article VI.

**2.26   “*Other Stock-Based Award*”**meansan Award under Article X of the Plan that is valued in whole or in part byreference to, or is payable in or otherwise based on, Common Stock.

**2.27   “*Parent*”**means any parentcorporation of the Company within the meaning of Section 424(e) ofthe Code.

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**2.28   “*Participant*”**means anEligible Employee, Non-Employee Director or Consultant to whom an Award hasbeen granted pursuant to the Plan.

**2.29   “*Performance Award*”**meansan Award made pursuant to Article IX of the Plan, which may be stated withreference to shares of Common Stock or to cash.

**2.30   “*Performance Period*”**hasthe meaning set forth in Section 9.1.

**2.31   “*Person*”**means anyindividual, corporation, partnership, limited liability company, firm, jointventure, association, joint-stock company, trust, incorporated organization,governmental or regulatory or other entity.

**2.32   “*Plan*”**means this ImCloneSystems Incorporated 2006 Stock Incentive Plan, as amended from time to time.

**2.33   “*Prior Plan*”**means theImClone Systems Incorporated 2002 Stock Option Plan, as amended from time totime.

**2.34   “*Reference Stock Option*”**hasthe meaning set forth in Section 7.1.

**2.35   “*Restricted Stock Award*”**meansan Award of shares of Common Stock, or the right to receive shares of CommonStock in the future, subject to the restrictions under Article VIII.

**2.36   “*RSU*”**means a restrictedstock unit, which is an Award the value of which is calculated by reference tothe value of shares of Common Stock, subject to the restrictions underArticle VIII.

**2.37   “*Restriction Period*”**hasthe meaning set forth in Subsection 8.3(a) with respect to RestrictedStock Awards.

**2.38   “*Retirement*”**means,unless otherwise provided by the Committee at grant, a Termination ofEmployment without Cause or Termination of Consultancy without Cause (otherthan, in any such case, after the occurrence of an event that would provide abasis for a Cause termination) at or after age 60 (provided the Participant hasat least ten years of service to the Company or its Affiliates) or after age 65(provided the Participant has at least five years of service to the Company orits Affiliates). With respect to a Termination of Directorship, Retirementmeans the failure to stand for reelection or the failure to be reelected on orafter the Participant has attained age 60 (provided the Participant has atleast ten years of service to the Company or its Affiliates) or after age 65(provided the Participant has at least five years of service to the Company orits Affiliates). Determinations of length of service shall be made by theCommittee in its sole discretion.

**2.39   “*Rule 16b-3*”**meansRule 16b-3 under Section 16(b) of the Exchange Act as then ineffect or any successor provision.

**2.40   “*Section 162(m) of the Code*”**meansthe exception for performance-based compensation underSection 162(m) of the Code and any Treasury regulations thereunder.

**2.41   “*Securities Act*”**meansthe Securities Act of 1933, as amended and all rules and regulationspromulgated thereunder. Any reference to any section of the Securities Actshall also be a reference to any successor provision.

**2.42   “*Stock Appreciation Right*”**shallmean the right pursuant to an Award granted under Article VII.

**2.43   “*Stock Option*”**or **“*Option*”**means any option to purchase shares of Common Stock granted to EligibleEmployees, Non-Employee Directors or Consultants granted pursuant toArticle VI.

**2.44   “*Subsidiary*”**means anysubsidiary corporation of the Company within the meaning ofSection 424(f) of the Code.

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**2.45   “*Substitute Awards*”**meanAwards granted or shares of Common Stock issued by the Company in assumptionof, or in substitution or exchange for, awards previously granted, by a companyacquired by the Company or an Affiliate or with which the Company or anAffiliate combines.

**2.46   “*Tandem Stock Appreciation Right*”**means the right to surrender to the Company all (or a portion) of an Option inexchange for an amount in cash and/or stock equal to the difference between(a) the Fair Market Value, on the date such Option (or such portionthereof) is surrendered, of the Common Stock covered by such Option (or suchportion thereof), and (b) the aggregate exercise price of such Option (orsuch portion thereof), or, if such Tandem Stock Appreciation Right is grantedafter the date of the Reference Stock Option, the aggregate exercise price ofsuch appreciation right (or portion thereof).

**2.47   “*Ten Percent Stockholder*”**meansa person owning stock possessing more than 10% of the total combined votingpower of all classes of stock of the Company, its Subsidiaries or its Parent.

**2.48   “*Termination*”**means aTermination of Consultancy, Termination of Directorship or Termination ofEmployment, as applicable.

**2.49   “*Termination of Consultancy*”**means:(a) that the Consultant is no longer acting as a consultant to the Companyor an Affiliate; or (b) when an entity retaining a Participant as aConsultant ceases to be an Affiliate unless the Participant otherwise is, orthereupon becomes, a Consultant to the Company or another Affiliate at the timethe entity ceases to be an Affiliate. In the event that a Consultant becomes anEligible Employee or a Non-Employee Director upon the termination of his or herconsultancy, unless otherwise determined by the Committee, in its solediscretion, no Termination of Consultancy shall be deemed to occur until suchtime as such Consultant is no longer any of a Consultant, an Eligible Employeeor a Non-Employee Director. Notwithstanding the foregoing, the Committee mayotherwise define Termination of Consultancy in the Award agreement or, if norights of a Participant are reduced, may otherwise define Termination ofConsultancy thereafter.

**2.50   “*Termination of Directorship*”**meansthat the Non-Employee Director has ceased to be a Director of the Company;except that if a Non-Employee Director becomes an Eligible Employee or aConsultant upon the termination of his or her directorship, his or her ceasingto be a Director of the Company shall not be treated as a Termination ofDirectorship unless and until the Participant has a Termination of Employmentor Termination of Consultancy, as the case may be. Notwithstanding theforegoing, the Committee may otherwise define Termination of Directorship inthe Award agreement or, if no rights of a Participant are reduced, mayotherwise define Termination of Directorship thereafter.

**2.51   “*Termination of Employment*”**means:(a) a termination of employment (for reasons other than a military orpersonal leave of absence granted by the Company) of a Participant from theCompany and its Affiliates; or (b) when an entity employing a Participantceases to be an Affiliate, unless the Participant otherwise is, or thereuponbecomes, employed by the Company or another Affiliate at the time the entityceases to be an Affiliate. In the event that an Eligible Employee becomes aConsultant or a Non-Employee Director upon the termination of his or heremployment, unless otherwise determined by the Committee, in its solediscretion, no Termination of Employment shall be deemed to occur until suchtime as such Eligible Employee is no longer any of an Eligible Employee, aConsultant or a Non-Employee Director. Notwithstanding the foregoing, theCommittee may otherwise define Termination of Employment in the Award agreementor, if no rights of a Participant are reduced, may otherwise define Terminationof Employment thereafter.

**2.52   “*Transfer*”**means:(a) when used as a noun, any direct or indirect transfer, sale,assignment, pledge, hypothecation, encumbrance or other disposition (includingthe issuance of equity in a Person), whether for value or no value and whethervoluntary or involuntary (including by operation of law), and (b) whenused as a verb, to directly or indirectly transfer, sell, assign, pledge,encumber, charge, hypothecate or otherwise dispose of (including by theissuance of equity in a Person) whether for value or

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for novalue and whether voluntarily or involuntarily (including by operation of law).“Transferred” and “Transferable” shall have a correlative meaning.

**ARTICLE IIIADMINISTRATION**

**3.1   *The Committee*.  **ThePlan shall be administered and interpreted by the Committee. Notwithstandinganything herein to the contrary, the Board shall have authority foradministration and interpretation of the Plan with respect to Non-EmployeeDirectors and all references herein to the authority of the Committee asapplied to Non-Employee Directors shall be deemed to refer to the Board.

**3.2   *Grants of Awards*.**  The Committee shall have full authority to grant, pursuant to the terms of thePlan, to Eligible Employees, Consultants and Non-Employee Directors:(i) Options, (ii) Stock Appreciation Rights, (iii) RestrictedStock Awards, (iv) RSU Awards, (v) Performance Awards, and(vi) Other Stock-Based Awards. Without limiting the generality of theforegoing, the Committee shall have the authority:

(a)    to select the EligibleEmployees, Consultants and Non-Employee Directors to whom Awards may from timeto time be granted hereunder;

(b)   to determine whether and to whatextent Awards, or any combination thereof, are to be granted hereunder to one ormore Eligible Employees, Consultants or Non-Employee Directors;

(c)    to determine the number ofshares of Common Stock (if any) to be covered by an Award granted hereunder;

(d)   to determine the terms and conditions,not inconsistent with the terms of the Plan, of any Award granted hereunder(including, but not limited to, the exercise or purchase price (if any), anyrestriction or limitation, any vesting schedule or acceleration thereof, or anyforfeiture restrictions or waiver thereof, regarding any Award and the sharesof Common Stock relating thereto, based on such factors, if any, as theCommittee shall determine, in its sole discretion);

(e)    to determine whether, to whatextent and under what circumstances grants of Options and other Awards underthe Plan are to operate on a tandem basis and/or in conjunction with or apartfrom other awards made by the Company outside of the Plan;

(f)    to determine whether and underwhat circumstances an Option may be settled in cash, Common Stock and/or restrictedstock;

(g)    to determine whether, to whatextent and under what circumstances Common Stock and other amounts payable withrespect to an Award under the Plan shall be deferred either automatically or atthe election of the Participant;

(h)   to determine whether an Option is anIncentive Stock Option or Non-Qualified Stock Option;

(i)    to determine whether to requirea Participant, as a condition of the granting of any Award, to not sell orotherwise dispose of shares acquired pursuant to the exercise of an Award for aperiod of time as determined by the Committee, in its sole discretion,following the date of the acquisition of such Award;

(j)     to modify, extend or renewan Award, subject to Article XII herein, provided, however, that if an Awardis modified, extended or renewed and thereby deemed to be the issuance of a newAward under the Code or the applicable accounting rules, the exercise price ofan Option may continue to be the original exercise price even if less than theFair Market Value of the Common Stock at the time of such modification,extension or renewal;

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(k)         todetermine at grant that an Option shall cease to be exercisable or an Awardshall be forfeited, or that proceeds or profits applicable to an Award shall bereturned to the Company, in the event the Participant engages in detrimentalactivity with respect to the Company or its Affiliates (as such term is definedby the Committee in the Award agreement) and, to interpret such definition andto approve waivers with regard thereto; and

(l)         to determine whether or not an Award is intended to comply withSection 162(m) of the Code.

**3.3   *Guidelines*.**

(a)   Subject to Article XII hereof,the Committee shall have the authority to adopt, alter and repeal such administrativerules, guidelines and practices governing the Plan and perform all acts,including the delegation of its responsibilities (to the extent permitted byapplicable law and applicable stock exchange rules), as it shall, from time totime, deem advisable; to construe and interpret the terms and provisions of thePlan and any Award issued under the Plan (and any agreements relating thereto);and to otherwise supervise the administration of the Plan. The Committee maycorrect any defect, supply any omission or reconcile any inconsistency in thePlan or in any agreement relating thereto in the manner and to the extent itshall deem necessary to effectuate the purpose and intent of the Plan.Notwithstanding the foregoing, no action of the Committee under thisSection 3.3 shall reduce the rights of any Participant without theParticipant’s consent. To the extent applicable, the Plan is intended to complywith the applicable requirements of Rule 16b-3 andSection 162(m) of the Code, and the Plan shall be limited, construedand interpreted in a manner so as to comply therewith.

(b)   Without limiting the generality of theforegoing, the Committee may adopt special guidelines and provisions forpersons who are residing in or employed in, or subject to, the taxes of, anydomestic or foreign jurisdictions, to comply with applicable laws, regulations,or accounting, listing or other rules with respect to such domestic orforeign jurisdictions.

**3.4   *Decisions Final*.**  Any decision, interpretation or other action made or taken in good faith by orat the direction of the Company, the Board or the Committee (or any of itsmembers) arising out of or in connection with the Plan shall be within theabsolute discretion of all and each of them, as the case may be, and shall befinal, binding and conclusive on the Company and all employees and Participantsand their respective heirs, executors, administrators, successors and assigns.

**3.5   *Procedures*.**  The Board shall designate one of the members of the Committee as chairman andthe Committee shall hold meetings, subject to the By-Laws of the Company, atsuch times and places as it shall deem advisable, including, withoutlimitation, by telephone conference or by written consent to the extentpermitted by applicable law. A majority of the Committee members shallconstitute a quorum. All determinations of the Committee shall be made by amajority of its members. Any decision or determination reduced to writing andsigned by all the Committee members in accordance with the By-Laws of theCompany, shall be fully effective as if it had been made by a vote at a meetingduly called and held. The Committee shall make such rules and regulationsfor the conduct of its business as it shall deem advisable.

**3.6   *Designation of Consultants/Liability.***

(a)   The Committee may designate employeesof the Company and professional advisors to assist the Committee in theadministration of the Plan and (to the extent permitted by applicable law andapplicable exchange rules) may grant authority to officers or other employeesto execute agreements or other documents on behalf of the Committee.

(b)   The Committee may employ such legalcounsel, consultants and agents as it may deem desirable for the administrationof the Plan and may rely upon any opinion received from any such counsel orconsultant and any computation received from any such consultant or agent.Expenses incurred by the

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Committeeor the Board in the engagement of any such counsel, consultant or agent shallbe paid by the Company. The Committee, its members and any person designatedpursuant to sub-section (a) above shall not be liable for any action ordetermination made in good faith with respect to the Plan. To the maximumextent permitted by applicable law, no officer of the Company or member orformer member of the Committee or of the Board shall be liable for any actionor determination made in good faith with respect to the Plan or any Awardgranted under it.

**3.7   *Indemnification*.**  To the maximum extent permitted by applicable law and the Certificate ofIncorporation and By-Laws of the Company and to the extent not covered byinsurance directly insuring such person, each officer and member or formermember of the Committee or the Board shall be indemnified and held harmless bythe Company against any cost or expense (including reasonable fees of counselreasonably acceptable to the Committee) or liability (including any sum paid insettlement of a claim with the approval of the Committee), and advanced amountsnecessary to pay the foregoing at the earliest time and to the fullest extentpermitted, arising out of any act or omission to act in connection with theadministration of the Plan, except to the extent arising out of such officer’s,member’s or former member’s own fraud or bad faith. Such indemnification shallbe in addition to any rights of indemnification the employees, officers,Directors or members or former officers, Directors or members may have underapplicable law or under the Certificate of Incorporation or By-Laws of theCompany or any Affiliate or any agreement of indemnification. Notwithstandinganything else herein, this indemnification will not apply to the actions ordeterminations made by an individual with regard to Awards granted to him orher under the Plan.

**3.8   *Delegation*.**  The Committee may delegate, to the extent permitted by law, to one or moreDirectors or one or more officers or a committee of Directors or officers theright to grant Awards to Eligible Employees who are not Directors or officersof the Company and to cancel or suspend Awards to Eligible Employees who arenot Directors or officers of the Company.

**ARTICLE IVSHARE LIMITATION**

**4.1   *Shares*.**

(a)**   *Aggregate Limitation****.*   The following provisionsapply in determining the aggregate number of shares of Common Stock availableunder the Plan.

(i)    Theaggregate number of shares of Common Stock that may be granted or used forreference purposes under the Plan shall not exceed 5,500,000 shares plus(x) any Common Stock available for grant under the Prior Plan as of thedate stockholder approval of the Plan is obtained, and (y) any othershares under the Prior Plan that again become available underSection 4.1(a)(ii) (subject to any increase or decrease pursuant toSection 4.2), which may be either authorized and unissued Common Stock orCommon Stock held in or acquired for the treasury of the Company or both. Withrespect to Stock Appreciation Rights settled in Common Stock, the number ofshares of Common Stock underlying the Award at the time of grant (and not thenet number of shares of Common Stock issued to the Participant upon exerciseand settlement) shall count against the aggregate and individual sharelimitations set forth under Sections 4.1(a) and (b). Any shares of CommonStock that are subject to Awards of Options or Stock Appreciation Rights shallbe counted against this limit as one share for every share granted. Any sharesof Common Stock that are subject to Awards other than Options or StockAppreciation Rights shall be counted against this limit as 2.0 shares for everyshare granted. In no event shall the aggregate number of shares of Common Stockgranted pursuant to Incentive Stock Options exceed 5,500,000 shares.

(ii)   If any shares of Common Stock subject to anAward (or an award under the Prior Plan) are forfeited, expire or otherwiseterminate without issuance of such shares, or any Award or

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PriorPlan award is settled for cash, the shares shall, to the extent of suchforfeiture, expiration, termination or cash settlement, again be available forAwards under the Plan. If a Stock Appreciation Right is granted in tandem withan Option, such grant shall apply only once against the maximum number ofshares of Common Stock that may be issued under the Plan. Shares of CommonStock underlying Awards (or Prior Plan stock options) settled in cash shallagain be available for issuance under the Plan.

(iii)  Any shares of Common Stock that again becomeavailable for grant pursuant to this Section 4.1(a) shall be addedback as one share if such share were subject to an award under the Prior Planor is subject to an Option or Stock Appreciation Right granted under the Plan,and as 2.0 shares if such shares were subject to an Award other than an Optionor a Stock Appreciation Right granted under the Plan.

(b)   *IndividualParticipant Limitations*.   The following provisions applyin determining the Awards that may be granted to an individual during a fiscalyear of the Company.

(i)    Themaximum number of shares of Common Stock subject to any Option or StockAppreciation Right which may be granted under the Plan during any 36-monthperiod to each Eligible Employee shall be 1,000,000 shares for each type ofAward (subject to any increase or decrease pursuant to Section 4.2). Themaximum number of shares of Common Stock subject to any Restricted Stock Award,RSU Award, Performance Award or Other Stock-Based Award that is subject to theattainment of specified performance goals which may be granted under the Planduring any 36-month period to each Eligible Employee shall be 250,000 sharesfor each type of Award (subject to any increase or decrease pursuant toSection 4.2). If a Stock Appreciation Right is granted in tandem with anOption it shall apply against the Eligible Employee’s individual share limitationsfor both Stock Appreciation Rights and Options.

(ii)   The maximum payment under any Performance Awarddenominated in dollars under the Plan to each Eligible Employee for any fiscalyear shall be $5,000,000.

(c)   *SubstituteAwards*.   Substitute Awards shall not reduce the shares ofCommon Stock authorized for grant under the Plan pursuant toSection 4.1(a) or authorized for grant to an Eligible Employee duringany period pursuant to Section 4.1(b).

**4.2   *Changes*.**

(a)   The existence of the Plan and theAwards granted hereunder shall not affect in any way the right or power of theBoard or the stockholders of the Company to make or authorize (i) anyadjustment, recapitalization, reorganization or other change in the Company’scapital structure or its business, (ii) any merger or consolidation of theCompany or any Affiliate, (iii) any issuance of bonds, debentures,preferred or prior preference stock ahead of or affecting the Common Stock,(iv) the dissolution or liquidation of the Company or any Affiliate,(v) any sale or transfer of all or part of the assets or business of theCompany or any Affiliate or (vi) any other corporate act or proceeding.

(b)   Subject to the provisions ofSection 4.2(d), in the event of any such change in the capital structureor business of the Company by reason of any stock split, reverse stock split,stock dividend, combination or reclassification of shares, recapitalization,merger, consolidation, spin-off, reorganization, partial or completeliquidation, issuance of rights or warrants to purchase any Common Stock orsecurities convertible into Common Stock, any sale or transfer of all or partof the Company’s assets or business, any special cash dividend or any othercorporate transaction or event having an effect similar to any of the foregoingand effected without receipt of consideration by the Company, then theaggregate number and kind of shares that thereafter may be issued under thePlan, the number and kind of shares or other property (including cash) to be issuedupon exercise of an outstanding Award or under other Awards granted under thePlan and the purchase price thereof shall be appropriately adjusted consistentwith such

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changein such manner as the Committee shall deem equitable to prevent substantialdilution or enlargement of the rights granted to, or available for,Participants under the Plan, and any such adjustment determined by theCommittee in good faith shall be final, binding and conclusive on the Companyand all Participants and employees and their respective heirs, executors,administrators, successors and assigns. In connection with any event describedin this paragraph, the Committee may provide, in its sole discretion, for thecancellation of any outstanding Awards and payment in cash or other property inexchange therefor. Except as provided in this Section 4.2 or in theapplicable Award agreement, a Participant shall have no rights by reason of anyissuance by the Company of any class or securities convertible into stock ofany class, any subdivision or consolidation of shares of stock of any class,the payment of any stock dividend, any other increase or decrease in the numberof shares of stock of any class, any sale or transfer of all or part of theCompany’s assets or business or any other change affecting the Company’scapital structure or business.

(c)   Except as otherwise determined by theCommittee, fractional shares of Common Stock resulting from any adjustment inAwards pursuant to Section 4.2(a) or (b) shall be aggregateduntil, and eliminated at, the time of exercise by rounding-down and anyremaining fractional shares of Common Stock shall be settled in cash. Notice ofany adjustment shall be given by the Committee to each Participant whose Awardhas been adjusted and such adjustment (whether or not such notice is given)shall be effective and binding for all purposes of the Plan.

(d)   In the event of (x) a merger orconsolidation in which the Company is not the surviving entity, (y) anytransaction that results in the acquisition of substantially all of the Company’soutstanding Common Stock by a single person or entity or by a group of personsand/or entities acting in concert, or (z) the sale or transfer of all orsubstantially all of the Company’s assets (all of the foregoing being referredto as an “*Acquisition Event*”),then the Committee, in its sole discretion, may terminate all vested andunvested Awards that are outstanding as of the date of Acquisition Event bydelivering notice of termination to each Participant at least 20 days prior tothe date of the Acquisition Event, in which case, during the period from thedate on which such notice of termination is delivered to the date of theAcquisition Event, each such Participant shall have the right to exercise infull all of his or her vested and unvested Awards that are then outstanding(without regard to any limitations on vesting or exercisability otherwisecontained in the Award agreements), but any such exercise shall be contingenton the consummation of the Acquisition Event, and, provided that, if theAcquisition Event does not occur within a specified period after giving suchnotice for any reason whatsoever, the notice and exercise pursuant theretoshall be null and void. If an Acquisition Event occurs but the Committee doesnot terminate the outstanding Awards pursuant to this Section 4.2(d), thenthe provisions of Section 4.2(b) and Article XI shall apply.

**4.3   *Minimum Purchase Price*.**  Notwithstanding any provision of the Plan to the contrary, if authorized but previouslyunissued shares of Common Stock are issued under the Plan, such shares shallnot be issued for a consideration that is less than as permitted underapplicable law.

**ARTICLE VELIGIBILITY**

**5.1   *General Eligibility*.**  All Eligible Employees, Consultants and Non-Employee Directors are eligible tobe granted Awards. Eligibility for the grant of Awards and actual participationin the Plan shall be determined by the Committee in its sole discretion.

**5.2   *Incentive Stock Options*.**  Notwithstanding the foregoing, only Eligible Employees of the Company, itsSubsidiaries and its Parent (if any) are eligible to be granted Incentive StockOptions under this Plan. Eligibility for the grant of an Incentive Stock Optionand actual participation in this Plan shall be determined by the Committee inits sole discretion.

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**5.3   *General Requirement*.**  The vesting and exercise of Awards granted to a prospective employee orconsultant shall be conditioned upon such individual actually becoming anemployee of or consultant to the Company or an Affiliate within a reasonabletime thereafter, as determined by the Committee.

**5.4   *Awards to Non-Employee Directors*.**  Awards made to Non-Employee Directors shall in all cases be granted only inaccordance with the compensation policy established by the Company for membersof the Board from time to time, which policy may provide for formulaic Awardsto Non-Employee Directors with additional Awards to the chairman andvice-chairman of the Board and committee chairs for services they provide insuch roles, as well as additional grants to Non-Employee Directors upon joiningthe Board.

**ARTICLE VISTOCK OPTIONS**

**6.1   *Options*.**  Options may be granted alone or in addition to other Awards granted under thePlan. The Committee shall have the authority to grant any Eligible Employee,Consultant or Non-Employee Director one or more Options. Each Option grantedunder the Plan shall be either: (a) an Incentive Stock Option or(b) a Non-Qualified Stock Option.

**6.2   *Grants*.**   TheCommittee shall have the authority to grant to any Eligible Employee one ormore Incentive Stock Options, Non-Qualified Stock Options, or both types ofStock Options. The Committee shall have the authority to grant any Consultantor Non-Employee Director one or more Non-Qualified Stock Options. To the extentthat any Stock Option does not qualify as an Incentive Stock Option (whetherbecause of its provisions or the time or manner of its exercise or otherwise),such Stock Option or the portion thereof that does not so qualify shallconstitute a separate Non-Qualified Stock Option.

**6.3   *Terms of Options*.**  Options granted under the Plan shall be subject to the following terms andconditions and shall be in such form and contain such additional terms andconditions, not inconsistent with the terms of the Plan, as the Committee shalldeem desirable:

(a)   *ExercisePrice*.   Other than in connection with Substitute Awards,the exercise price per share of Common Stock subject to an Option shall bedetermined by the Committee at the time of grant, provided that the per-shareexercise price of any Option shall not be less than 100% (or, in the case of anIncentive Stock Option granted to a Ten Percent Stockholder, 110%) of the FairMarket Value of the Common Stock at the time of grant (unless adjusted inaccordance with Section 4.2(b) pursuant to a merger, acquisition, orsimilar corporate transaction). Other than pursuant to Section 4.2(b), inthe absence of shareholder approval, the Committee shall not be permitted to(a) lower the option price per share of an Option after it is granted,(b) cancel an Option in exchange for another Award or cash, and(c) take any other action with respect to an Option that may be treated asa repricing under the rules and regulations of the Nasdaq Stock Market.

(b)   *OptionTerm*.   The term of each Option shall be fixed by theCommittee, provided that no Option shall be exercisable more than ten(10) years after the date the Option is granted, and provided, further,that the term of an Incentive Stock Option granted to a Ten Percent Stockholdershall not exceed five years.

(c)   *Exercisability*.  Options shall be exercisable at such time or times and subject to such termsand conditions as shall be determined by the Committee at grant, provided,however, that in no event (except as provided in the next sentence) shallOptions be fully exercisable earlier than one year after grant (except withrespect to Options granted to Non-Employee Directors). Notwithstanding theforegoing, in connection with an employment termination or Change in Control,the Committee may waive any limitations on exercisability at any time at orafter grant in whole or in part (including, without limitation, waiver of theinstallment exercise provisions or acceleration of the time at which suchOption may be exercised).

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(d)   *Methodof Exercise*.   Subject to whatever installment exerciseand waiting period provisions apply under subsection (c) above, to theextent vested, Options may be exercised in whole or in part at any time duringthe Option term, by giving written notice of exercise to the Company specifyingthe number of shares of Common Stock to be purchased. Such notice shall beaccompanied by payment in full of the purchase price (or arrangementssatisfactory to the Committee made for such payment) as follows: (i) incash or by check, bank draft or money order payable to the order of theCompany; or (ii) on such other terms and conditions as may be acceptableto the Committee, including tendering (either actually or through attestation)or withholding shares of Common Stock. No shares of Common Stock shall beissued until payment therefor, as provided herein, has been made or providedfor.

(e)   *Non-Transferabilityof Options*.   No Option shall be Transferable by theParticipant otherwise than by will or by the laws of descent and distribution,and all Options shall be exercisable, during the Participant’s lifetime, onlyby the Participant. Notwithstanding the foregoing, the Committee may determine,in its sole discretion, at the time of grant or thereafter that a Non-QualifiedStock Option that is otherwise not Transferable pursuant to thisSection is Transferable to a Family Member in whole or in part and in suchcircumstances, and under such conditions, as specified by the Committee. ANon-Qualified Stock Option that is Transferred to a Family Member pursuant tothe preceding sentence (i) may not be subsequently Transferred otherwisethan by will or by the laws of descent and distribution and (ii) remainssubject to the terms of the Plan and the applicable Award agreement. Any sharesof Common Stock acquired upon the exercise of a Non-Qualified Stock Option by apermissible transferee of a Non-Qualified Stock Option or a permissibletransferee pursuant to a Transfer after the exercise of the Non-Qualified StockOption shall be subject to the terms of the Plan and the applicable Awardagreement.

(f)    *Terminationby Death, Disability or Retirement*.   Except as otherwise(x) provided in a written agreement between the Company and theParticipant or (y) determined by the Committee at grant or (if no rightsof the Participant are reduced) thereafter, if a Participant’s Termination isby reason of death, Disability or Retirement, all Options that are held by suchParticipant that are vested and exercisable at the time of the Participant’sTermination may be exercised by the Participant (or, in the case of death, bythe legal representative of the Participant’s estate) at any time within aperiod of one year from the date of such Termination, but in no event beyondthe expiration of the stated term of such Options if the Options are IncentiveStock Options or if such Termination is by reason of Retirement; provided,however, that in the case of Retirement or Disability, if the Participant dieswithin such exercise period, all unexercised Options held by such Participantshall thereafter be exercisable, to the extent to which they were exercisableat the time of death, for a minimum period of one year from the date of suchdeath, but in no event beyond the expiration of the stated term of such Optionsif the Options are Incentive Stock Options.

(g)   *Terminationfor Cause*.   Except as otherwise (x) provided in awritten agreement between the Company and the Participant or(y) determined by the Committee at grant or (if no rights of the Participantare reduced) thereafter, if a Participant’s Termination (i) is for Causeor (ii) is a voluntary Termination after the occurrence of an event thatwould be grounds for a Termination for Cause, all Options held by suchParticipant, whether or not vested,  shall thereupon terminate and expireas of the date of such Termination or, if earlier, the date of the Cause event.

(h)   *Terminationfor Any Other Reason*.   Except as otherwise(x) provided in a written agreement between the Company and the Participantor (y) determined by the Committee at grant, or (if no rights of theParticipant are reduced) thereafter, if a Participant’s Termination is for anyreason not set forth in Section 6.3(f) or (g), all Options that areheld by such Participant that are vested and exercisable at the time of theParticipant’s Termination may be exercised by the Participant at any timewithin a period of 90 days from the date of such Termination, but in no eventbeyond the expiration of the stated term of such Options.

(i)    *UnvestedOptions*.   Except as otherwise (x) provided in awritten agreement between the Company and the Participant or(y) determined by the Committee at grant or (if no rights of the

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Participantare reduced) thereafter, Options that are not vested as of the date of aParticipant’s Termination for any reason shall terminate and expire as of thedate of such Termination.

(j)    *IncentiveStock Option Limitations*.   To the extent that theaggregate Fair Market Value (determined as of the time of grant) of the CommonStock with respect to which Incentive Stock Options are exercisable for thefirst time by an Eligible Employee during any calendar year under this Planand/or any other stock option plan of the Company, any Subsidiary or any Parentexceeds $100,000, such Options shall be treated as Non-Qualified Stock Options.Should any provision of this Plan not be necessary in order for the StockOptions to qualify as Incentive Stock Options, or should any additionalprovisions be required, the Committee may amend this Plan accordingly, withoutthe necessity of obtaining the approval of the stockholders of the Company.

(k)   *Form,Modification, Extension and Renewal of Options*.   Subjectto the terms and conditions and within the limitations of the Plan, Options shallbe evidenced by such form of agreement or grant as is approved by theCommittee, and the Committee may modify, extend or renew outstanding Optionsgranted under the Plan (provided that the rights of a Participant are notreduced without his or her consent).

(l)    *EarlyExercise*.   The Committee may provide that an Optioninclude a provision whereby the Participant may elect at any time before theParticipant’s Termination to exercise the Option as to any part or all of theshares of Common Stock subject to the Option prior to the full vesting of theOption and such shares shall be subject to the provisions of Article VIIIand treated as restricted stock. Any unvested shares of Common Stock sopurchased may be subject to a repurchase option in favor of the Company or toany other restriction the Committee determines to be appropriate.

(m)  *OtherTerms and Conditions*.   Options may contain such otherprovisions, which shall not be inconsistent with any of the terms of the Plan,as the Committee shall deem appropriate.

**ARTICLE VIISTOCK APPRECIATION RIGHTS**

**7.1    *Tandem Stock Appreciation Rights*.**  Tandem Stock Appreciation Rights, by their nature, may be granted only inconjunction with all or part of any Option (a “*ReferenceStock Option*”) granted under the Plan. In the case of aNon-Qualified Stock Option, such rights may be granted either at or after thetime of the grant of such Reference Stock Option. In the case of an IncentiveStock Option, such rights may be granted only at the time of the grant of suchReference Stock Option.

**7.2    *Terms and Conditions of Tandem Stock AppreciationRights*.**   Tandem Stock AppreciationRights granted hereunder shall be subject to such terms and conditions, notinconsistent with the provisions of the Plan, as shall be determined from timeto time by the Committee, and the following:

(a)   *Term*.  A Tandem Stock Appreciation Right or applicable portion thereof granted withrespect to a Reference Stock Option shall terminate and no longer beexercisable upon the termination or exercise of the Reference Stock Option,except that, unless otherwise determined by the Committee, in its solediscretion, at the time of grant, a Tandem Stock Appreciation Right grantedwith respect to less than the full number of shares covered by the ReferenceStock Option shall not be reduced until and then only to the extent theexercise or termination of the Reference Stock Option causes the number ofshares covered by the Tandem Stock Appreciation Right to exceed the number ofshares remaining available and unexercised under the Reference Stock Option.

(b)   *Exercisability*.  Tandem Stock Appreciation Rights shall be exercisable only at such time ortimes and to the extent that the Reference Stock Options to which they relateshall be exercisable in accordance with the provisions of Article VI, andshall be subject to the provisions of Section 6.3(c).

(c)   *Methodof Exercise*.   A Tandem Stock Appreciation Right may beexercised by the Participant by surrendering the applicable portion of the ReferenceStock Option. Upon such exercise and surrender, the

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Participantshall be entitled to receive an amount determined in the manner prescribed inthis Section 7.2. Options that have been so surrendered, in whole or inpart, shall no longer be exercisable to the extent the related Tandem StockAppreciation Rights have been exercised.

(d)   *Payment*.  Upon the exercise of a Tandem Stock Appreciation Right, a Participant shall beentitled to receive up to, but no more than, an amount in cash and/or CommonStock (as determined by the Committee in its sole discretion at the time ofgrant or, if permitted by the grant, at the time of exercise) equal in value tothe excess of the Fair Market Value of one share of Common Stock over theOption exercise price per share specified in the Reference Stock Optionagreement (or, in the case of a Tandem Stock Appreciation Right granted afterthe time of the grant of such Reference Stock Option, the exercise pricedetermined as set forth below) multiplied by the number of shares in respect ofwhich the Tandem Stock Appreciation Right shall have been exercised. Theexercise price of a Tandem Stock Appreciation Right shall be required to be inaccordance with Section 6.3(a) on the date of grant except (i) ifsuch Tandem Stock Appreciation Right is added to an Option after the date ofgrant of the Option, in which case the exercise price of may not be less than100% of the Fair Market Value of one share of Common Stock on the date theright was granted to the Participant (except in the case of Substitute Awardsas provided in Clause (ii), or (ii) in the case of Substitute Awards, inconnection with an adjustment pursuant to Section 4.2(b)..

(e)   *DeemedExercise of Reference Stock Option*.   Upon the exercise ofa Tandem Stock Appreciation Right for Common Stock, the Reference Stock Option(or part thereof, based on the value of the Common Stock issued on exercise) towhich such Stock Appreciation Right is related shall be deemed to have beenexercised for purposes of the limitation set forth in Article IV of thePlan on the number of shares of Common Stock to be issued under the Plan.

**7.3    *Non-Tandem Stock Appreciation Rights*.**  Non-Tandem Stock Appreciation Rights may also be granted without reference toany Options granted under the Plan.

**7.4    *Terms and Conditions of Non-Tandem Stock AppreciationRights*.**   Non-Tandem Stock AppreciationRights granted hereunder shall be subject to such terms and conditions, notinconsistent with the provisions of the Plan, as shall be determined from timeto time by the Committee, and the following:

(a)   *Term*.  The term of each Non-Tandem Stock Appreciation Right shall be fixed by theCommittee, but shall not exceed ten (10) years after the date the right isgranted.

(b)   *Exercisability*.  Non-Tandem Stock Appreciation Rights shall be exercisable at such time or timesand subject to such terms and conditions as shall be determined by theCommittee at grant, provided, however, that in no event (except as provided inthe next sentence) shall Non-Tandem Stock Appreciation Rights be fullyexercisable earlier than one year after grant (except with respect toNon-Tandem Stock Appreciation Rights granted to Non-Employee Directors).Notwithstanding the foregoing, in connection with an employment termination orChange in Control, the Committee may waive any limitations on exercisability atany time at or after grant in whole or in part (including, without limitation,waiver of the installment exercise provisions or acceleration of the time atwhich such right may be exercised).

(c)   *Methodof Exercise*.   Subject to the installment, exercise andwaiting period provisions that apply under subsection (b) above,Non-Tandem Stock Appreciation Rights may be exercised in whole or in part atany time in accordance with the applicable Award agreement, by giving writtennotice of exercise to the Company specifying the number of Non-Tandem StockAppreciation Rights to be exercised.

(d)   *Payment*.  Upon the exercise of a Non-Tandem Stock Appreciation Right, a Participant shallbe entitled to receive, for each right exercised, an amount in cash and/orCommon Stock (as determined by the Committee in its sole discretion at the timeof grant or, if permitted by the grant, at the time of exercise) no greaterthan the excess of the Fair Market Value of one share of Common Stock on thedate the right is exercised over the Fair Market Value of one share of CommonStock on the date the right was awarded to the Participant. The exercise priceof a Non-Tandem Stock Appreciation Right may not be less

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than100% of Fair Market Value of a share of Common Stock on the date of grantexcept in the case of Substitute Awards, in connection with an adjustmentpursuant to Section 4.2(b). Other than pursuant to Section 4.2(b), inthe absence of shareholder approval, the Committee shall not be permitted to(a) lower the Fair Market Value per share of a Non-Tandem StockAppreciation Right after it is granted, (b) cancel a Non-Tandem StockAppreciation Right in exchange for another Award or cash, and (c) take anyother action with respect to a Non-Tandem Stock Appreciation Right that may betreated as a repricing under the rules and regulations of the Nasdaq StockMarket.

**7.5    *Non-Transferability of Stock AppreciationRights*.**   No Stock Appreciation Right (whethera Tandem Stock Appreciation Right or a Non-Tandem Stock Appreciation Right)shall be Transferable by the Participant otherwise than by will or by the lawsof descent and distribution, and all Stock Appreciation Rights shall be exercisable,during the Participant’s lifetime, only by the Participant. Notwithstanding the foregoing, the Committee may determine, in its solediscretion, at the time of grant or thereafter that a Stock Appreciation Rightthat is otherwise not Transferable pursuant to this Section is Transferable toa Family Member in whole or in part and in such circumstances, and under suchconditions, as specified by the Committee.  A Stock Appreciation Rightthat is Transferred to a Family Member pursuant to the preceding sentence (i)may not be subsequently Transferred otherwise than by will or by the laws ofdescent and distribution and (ii) remains subject to the terms of the Plan andthe applicable Award agreement.  Any shares of Common Stock acquired uponthe exercise of a Stock Appreciation Right by a permissible transferee of aStock Appreciation Right or a permissible transferee pursuant to a Transferafter the exercise of the Stock Appreciation Right shall be subject to theterms of the Plan and the applicable Award agreement.

**ARTICLE VIIIRESTRICTED STOCK AWARDS AND RESTRICTED STOCK UNITS**

**8.1    *Restricted Stock Awards and RSU Awards*.**  Restricted Stock Awards and RSU Awards may be issued either alone or inaddition to other Awards granted under the Plan. The Committee shall determinethe Eligible Employees, Consultants and Non-Employee Directors, to whom, andthe time or times at which, grants of Restricted Stock Awards and RSU Awardsshall be made, the number of shares to be awarded, the price (if any) to be paidby the Participant (subject to Section 8.2), the time or times withinwhich such Awards may be subject to forfeiture, the vesting schedule and rightsto acceleration thereof, and all other terms and conditions of the Awards. RSUAwards may be settled in shares of Common Stock and/or in cash or anycombination as determined by the Committee in its sole discretion at or afterthe time of grant.

**8.2   *Awards and Certificates.***  Eligible Employees, Consultants and Non-Employee Directors selected to receivea Restricted Stock Award or RSU Award shall not have any rights with respect tosuch Award, unless and until such Participant has delivered a fully executedcopy of the agreement evidencing the Award to the Company and has otherwisecomplied with the applicable terms and conditions of such Award. Further, suchAward shall be subject to the following conditions:

(a)    *PurchasePrice*. Unless (x) otherwise provided by the Committee or(y) prohibited by applicable law, the purchase price of a Restricted StockAward or RSU Award shall be zero. If required by law or the Committee otherwisedetermines that a Restricted Stock Award or RSU Award shall have a purchaseprice, such purchase price shall not be less than par value.

(b)   *Acceptance*.Restricted Stock Awards must be accepted within a period of 60 days (or suchshorter period as the Committee may specify at grant) after the grant date, byexecuting an Award agreement and by paying the price (if any) the Committee hasdesignated thereunder (such acceptance may be in any manner that the Committeemay establish, including deemed acceptance).

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**8.3   *Restrictions and Conditions.***  Restricted Stock Awards and RSU Awards awarded pursuant to the Plan shall besubject to the following restrictions and conditions:

(a)    *RestrictionPeriod.*

(i)    The Participant shall not be permitted to Transfer a Restricted StockAward or RSU Award awarded under the Plan during the period or periods set bythe Committee (the “*Restriction Period*”)commencing on the date of such Award, as set forth in the Award agreement andsuch agreement shall set forth a vesting schedule and any events that wouldaccelerate vesting of the Restricted Stock Award or RSU Award during suchRestriction Period. Except as provided herein, and except for Restricted StockAwards or RSU Awards to Non-Employee Directors, the minimum Restriction Periodfor a Restricted Stock Award or RSU Award shall be three years (but withpro-rata or other graded vesting permitted over such three-year period, but notprior to one year after grant, and in no event more than one-third of the Awardvesting in respect of any year); provided, that if the Award is aperformance-based Award the minimum Restriction Period for full vesting andtransfer shall be one year rather than three years. The limitations in thepreceding sentence shall not apply on up to five percent of the aggregateshares of Common Stock available under the Plan set forth in Section 4.1,as adjusted, when combined with the aggregate grants made under the limits setforth in Section 10.2. Within these limits, based on service, attainmentof performance goals pursuant to Section 8.3(a)(ii) below and/or suchother factors or criteria as the Committee may determine in its solediscretion, the Committee may place conditions on the grant. In addition,(x) upon a Change in Control, (y) upon a Participant’s without Causeor Good Reason termination or termination by reason of death, Disability orRetirement, or (z) if required pursuant to an agreement in existence priorto the date of grant to which the Participant is a party, the Committee in itssole discretion may (A) provide for the lapse of restrictions in whole orin part, (B) accelerate the vesting of all or any part of any RestrictedStock Award or RSU Award and/or (C) waive the deferral limitations for allor any part of any such Award.

(ii)    *ObjectivePerformance Goals, Formulas or Standards*. If the grant of aRestricted Stock Award or RSU Award or the lapse of restrictions is based onthe attainment of performance goals, the Committee shall establish theobjective performance goals, including, to the extent the Committee sodetermines, from among those set forth in Exhibit A hereto, and theapplicable vesting percentage of the Restricted Stock Award or RSU Award applicableto each Participant or class of Participants in writing prior to the beginningof the applicable fiscal year or at such later date as otherwise determined bythe Committee and while the outcome of the performance goals are substantiallyuncertain.

(b)   *Rightsas a Stockholder; Dividends*. Beginning on the date of grant of aRestricted Stock Award and subject to acceptance of the associated Awardagreement, the Participant shall become a shareholder of the Company withrespect to all shares of Common Stock subject to the Restricted Stock Award andshall have all of the rights of a shareholder, including the right to vote suchshares and the right to receive distributions made with respect to such shares;provided, however, that, in the absence of Committee action to the contrary,any shares of Common Stock or any other property (other than regular cashdistributions) distributed as a dividend or otherwise with respect to anyRestricted Stock Award as to which the restrictions have not yet lapsed shallbe subject to the same restrictions as the shares covered by such Award.

(c)    *Termination*.Except as otherwise (x) provided in a written agreement between theCompany and the Participant or (y) determined by the Committee at grant or(if no rights of the Participant are reduced) thereafter, subject to theapplicable provisions of the Award agreement and the Plan, upon a

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Participant’sTermination for any reason during the relevant Restriction Period, allRestricted Stock Awards and RSU Awards still subject to restriction will vestor be forfeited in accordance with the terms and conditions established by theCommittee at grant or thereafter. In the absence of such provisions in theAward agreement, in the event of:  (i) death, Disability or Retirement,restrictions shall lapse on the Participant’s Restricted Stock Awards and RSUAwards on a pro rata monthly basis through the date of Termination, withperformance awards paid at the end of the performance period based on actualresults; and (ii) any other Termination, any unvested Restricted StockAwards or RSUs shall immediately be cancelled.

(d)   *Lapseof Restrictions*. If and when the Restriction Period expires withouta prior forfeiture of the Restricted Stock Award or RSU Award, certificates forshares attributable to such Award shall be delivered to the Participant (or, ifcertificates were previously issued, replacement certificates shall bedelivered upon return of the previously issued certificates). All legends shallbe removed from said certificates at the time of delivery to the Participant,except as otherwise required by applicable law or other limitations imposed bythe Committee. Notwithstanding the foregoing, actual certificates shall not beissued to the extent that book entry recordkeeping is used.

**ARTICLE IXPERFORMANCE AWARDS**

**9.1   *Performance Awards.***  Performance Awards may be awarded either alone or in addition to other Awardsgranted under the Plan. The Committee shall determine the Eligible Employees,Consultants and Non-Employee Directors, to whom, and the time or times atwhich, Performance Awards shall be awarded, the number of Performance Awards tobe awarded to any person, the duration of the period (the “*Performance Period*”) during which, and theconditions under which, a Participant’s right to Performance Awards will bevested, the ability of Participants to defer receipt of Performance Awards, andthe other terms and conditions of the Award in addition to those set forth inSection 9.2. The minimum Performance Period shall be one year.

The Committee shall condition the right to payment orvesting of any Performance Award upon the attainment of objective performancegoals established pursuant to Section 9.2(b) below.

**9.2   *Terms and Conditions.***  Performance Awards awarded pursuant to this Article IX shall be subject tothe following terms and conditions:

(a)    *Earningor Vesting of Performance Award*. At the expiration of the applicablePerformance Period, the Committee shall determine the extent to which theperformance goals established pursuant to Section 9.2(b) are achievedand the percentage of each Performance Award that has been earned or vested.

(b)   *ObjectivePerformance Goals, Formulas or Standards*. The Committee shallestablish the objective performance goals, including, to the extent theCommittee so determines, from among those set forth in Exhibit A hereto,for the earning of Performance Awards based on a Performance Period applicableto each Participant or class of Participants in writing prior to the beginningof the applicable Performance Period or, to the extent such Award is intendedto comply with Section 162(m) of the Code, at such later date aspermitted thereunder and while the outcome of the performance goals issubstantially uncertain.

(c)    *Payment*.Following the Committee’s determination, shares of Common Stock and/or cash, asdetermined by the Committee in its sole discretion at the time of grant or, ifpermitted by the grant, thereafter, shall be delivered to the EligibleEmployee, Consultant or Non-Employee Director, or his legal representative, inan amount equal to such individual’s earned or vested Performance Award.Notwithstanding the foregoing, the Committee may, in its sole discretion and,to the extent

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Section 162(m) ofthe Code is applicable, in accordance therewith, (i) award a number ofshares of Common Stock or an amount of cash less than the earned PerformanceAward and/or (ii) subject the payment of all or part of any PerformanceAward to additional vesting, forfeiture and deferral conditions.

(d)   *Termination*.Subject to the applicable provisions of the Award agreement and the Plan, upona Participant’s Termination for any reason during the Performance Period for aPerformance Award, such Performance Award will vest or be forfeited in accordancewith the terms and conditions established by the Committee at grant or, if norights of the Participant are reduced, thereafter.

(e)    *AcceleratedVesting*. Upon (x) a Change in Control, (y) a Participant’swithout Cause or Good Reason termination or termination by reason of death,Disability or Retirement, or (z) if required pursuant to an agreement inexistence prior to the date of grant to which the Participant is a party, theCommittee, in its sole discretion, may accelerate the vesting of all or anypart of any Performance Award or waive the deferral limitations for all or anypart of such Award.

**ARTICLE XOTHER STOCK-BASED AWARDS**

**10.1   *Other Awards.***

(a)    Subject to the limitations setforth in Section 4.1(a), the Committee is authorized to grant to EligibleEmployees, Consultants and Non-Employee Directors Other Stock-Based Awards thatare payable in, valued in whole or in part by reference to, or otherwise basedon or related to, shares of Common Stock, including, but not limited to, (a) sharesof Common Stock awarded as a bonus, (b) shares of Common Stock in paymentof the amounts due under an incentive or performance plan sponsored ormaintained by the Company or an Affiliate, (c) stock equivalent units, and(d) Awards valued by reference to book value of shares of Common Stock.Other Stock-Based Awards may be granted either alone or in addition to or intandem with other Awards granted under the Plan.

(b)   Subject to the provisions of the Plan,the Committee shall have authority to determine the Eligible Employees,Consultants and Non-Employee Directors, to whom, and the time or times atwhich, such Awards shall be made, the number of shares of Common Stock to beawarded pursuant to such Awards, and all other conditions of the Awards.

(c)    The Committee may condition thegrant or vesting of Other Stock-Based Awards upon the attainment of specifiedperformance goals, including, to the extent the Committee so determines, fromamong those set forth on Exhibit A hereto, as the Committee may determine,in its sole discretion.

**10.2   *Terms and Conditions.***  Other Stock-Based Awards made pursuant to this Article X shall be subjectto the following terms and conditions:

(a)    *Vesting*.Any Award under this Article X and any Common Stock covered by any suchAward shall vest or be forfeited to the extent so provided in the Awardagreement, as determined by the Committee, in its sole discretion; provided,that, except for Awards under this Article X to Non-Employee Directors,the minimum vesting period for any such Award and any Common Stock covered bysuch Award shall be three years (but with pro-rata or other graded vestingpermitted over such three-year period, but not prior to one year after grant,and in no event more than one-third of the Award vesting in respect of anyyear); provided, further, that if the Award is a performance-based Award theminimum vesting period for full vesting shall be one year rather than threeyears. The minimum vesting period limitations in the preceding sentence shall notapply on up to five percent of the aggregate shares of Common Stock availableunder the Plan set forth in Section 4.1, as adjusted,

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whencombined with the aggregate grants made under the limits set forth inSection 8.3. Within these limits, based on service, attainment ofperformance goals, and/or such other factors or criteria as the Committee maydetermine in its sole discretion, the Committee may place conditions on thegrant. In addition, (x) upon a Change in Control, (y) upon a Participant’swithout Cause or Good Reason termination or termination by reason of death,Disability or Retirement, or (z) if required pursuant to an agreement inexistence prior to the date of grant to which the Participant is a party, theCommittee in its sole discretion may (A) accelerate the vesting of all orany part of any Other Stock Based Award, and/or (B) waive the deferrallimitations for all or any part of any such Award.

(b)   *Price*.Common Stock issued on a bonus basis under this Article X may be issuedfor no cash consideration to the extent permitted by law.

**ARTICLE XICHANGE IN CONTROL PROVISIONS**

**11.1   *Benefits.***   Inthe event of a Change in Control of the Company (as defined below), and exceptas otherwise provided by the Committee in an Award agreement or, if no rightsof the Participants are reduced, thereafter, a Participant’s Award shall betreated as follows:

(a)    Unless the Committee providesotherwise in an Award agreement or if no rights of the Participant are reduced,thereafter, no acceleration of vesting or lapsing of restrictions shall occurwith respect to an Award if the Committee reasonably determines in good faith,prior to the occurrence of the Change in Control, that the Award shall becontinued, assumed, have new rights substituted therefor or be treated inaccordance with Section 4.2(d) hereof, but, unless the Committeedetermines otherwise, any such Award shall automatically vest in full upon theParticipant’s Termination without Cause or for Good Reason within 18 monthsafter the Change in Control.

(b)   In the event that subsection(a) above does not apply, all outstanding Options and Non-Tandem StockAppreciation Rights granted to a Participant prior to the Change in Controlshall be fully vested and immediately exercisable in their entirety. TheCommittee, in its sole discretion, may provide at the time of grant for thepurchase of any Awards by the Company or an Affiliate for an amount of cashequal to the excess of the Change in Control Price (as defined below) of theshares of Common Stock covered by such Awards, over the aggregate exerciseprice of such Awards. For purposes of this Section 11.1, “*Change in Control Price*” shall mean theaverage Fair Market Value of a share of Common Stock during the 20 trading daysimmediately prior to a Change in Control of the Company or as otherwisedetermined by the Committee. Notwithstanding anything to the contrary containedherein, for purposes of Incentive Stock Options, any assumed or substitutedOption shall comply with the requirements of Treasury Regulation § 1.425-1 (andany amendments thereto).

(c)    In the event that subsection(a) above does not apply and unless the Committee otherwise determines,all Performance Awards granted to a Participant prior to the Change in Controlshall vest on the following schedule:  (i) if at least 50% of aPerformance Award’s Performance Period has been completed, the Award shall vestin full and be paid out as if the relevant Performance Period had ended uponsuch Change in Control and the determination of the extent to which anyspecified performance goals or targets had been achieved had been made at suchtime, and (ii) if less than 50% of the Performance Award’s PerformancePeriod has been completed, the Award shall vest in full and shall be paid outat 50% of Award target without consideration of performance to date.

(d)   In the event that subsection(a) above does not apply, the restrictions to which any Restricted StockAwards or RSU Awards granted to a Participant prior to the Change in Controlare subject shall lapse as if the applicable Restriction Period had ended uponsuch Change in Control.

 

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**11.2   *Change in Control*.**   “*Change in Control*” shall mean theoccurrence of one of the following events:

(a)   individuals who, on the Effective Date,constitute the Board (the “*IncumbentDirectors*”) cease for any reason to constitute at least a majorityof the Board, provided that any person becoming a director subsequent to theEffective Date whose election or nomination for election was approved by a voteof at least two-thirds of the Incumbent Directors then on the Board (either bya specific vote or by approval of the proxy statement of the Company in whichsuch person is named as a nominee for director, without objection to suchnomination) shall be an Incumbent Director;

(b)   any “person”(as such term is defined in Section 3(a)(9) of the Exchange Act andas used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is orbecomes, after the Effective Date, a “beneficial owner” (as defined inRule 13d-3 under the Exchange Act), directly or indirectly, of securitiesof the Company representing 40% or more of the combined voting power of theCompany’s then outstanding securities eligible to vote for the election of theBoard (the “*Company Voting Securities*”);provided, however, that an event described in this subsection (b) shallnot be deemed to be a Change in Control if any of following becomes such abeneficial owner:

(i)                the Company or anymajority-owned subsidiary (provided, that this exclusion applies solely to theownership levels of the Company or the majority-owned subsidiary),

(ii)             any tax-qualified,broad-based employee benefit plan sponsored or maintained by the Company or anymajority-owned subsidiary,

(iii)          any underwritertemporarily holding securities pursuant to an offering of such securities, or

(iv)         any person pursuant to aNon-Qualifying Transaction (as defined below);

(c)   the consummation of a merger, consolidation,statutory share exchange or similar form of corporate transaction involving theCompany or any of its Subsidiaries that requires the approval of the Company’sstockholders, whether for such transaction or the issuance of securities in thetransaction (a “*Business Combination*”),unless immediately following such Business Combination:

(i)                50% or more of thetotal voting power of:

(x)             the corporationresulting from such Business Combination (the “*SurvivingCorporation*”), or

(y)           if applicable, theultimate parent corporation that directly or indirectly has beneficialownership of 100% of the voting securities eligible to elect directors of theSurviving Corporation (the “*Parent Corporation*”),

isrepresented by Company Voting Securities that were outstanding immediatelyprior to such Business Combination (or, if applicable, is represented by sharesinto which such Company Voting Securities were converted pursuant to suchBusiness Combination), and such voting power among the holders thereof is insubstantially the same proportion as the voting power of such Company VotingSecurities among the holders thereof immediately prior to the BusinessCombination;

(ii)             no person (other thanany employee benefit plan (or related trust) sponsored or maintained by theSurviving Corporation or the Parent Corporation), is or becomes the beneficialowner, directly or indirectly, of 40% or more of the total voting power of theoutstanding voting securities eligible to elect directors of the ParentCorporation (or, if there is no Parent Corporation, the Surviving Corporation);and

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(iii)          at least a majority ofthe members of the board of directors of the Parent Corporation (or if there isno Parent Corporation, the Surviving Corporation) following the consummation ofthe Business Combination were Incumbent Directors at the time of the Board’sapproval of the execution of the initial agreement providing for such BusinessCombination

(anyBusiness Combination which satisfies all of the criteria specified in (i),(ii) and (iii) above shall be deemed to be a “*Non-Qualifying Transaction*”); or

(d)   stockholder approval of a liquidation ordissolution of the Company, unless the voting common equity interests of anongoing entity (other than a liquidating trust) are beneficially owned,directly or indirectly, by the Company’s shareholders in substantially the sameproportions as such shareholders owned the Company’s outstanding voting commonequity interests immediately prior to such liquidation and such ongoing entityassumes all existing obligations of the Company under this Plan.

Notwithstanding the foregoing, a Change in Control ofthe Company shall not be deemed to occur solely because any person acquiresbeneficial ownership of more than 40% of the Company Voting Securities as aresult of the acquisition of Company Voting Securities by the Company whichreduces the number of Company Voting Securities outstanding; provided, that, ifafter such acquisition by the Company such person becomes the beneficial ownerof Company Voting Securities that increases the percentage of outstandingCompany Voting Securities beneficially owned by such person, a Change inControl of the Company shall then occur.

**ARTICLE XIITERMINATION OR AMENDMENT OF PLAN/NON-TRANSFERABILITY OF AWARDS**

**12.1  *Termination or Amendment.***   Notwithstandingany other provision of the Plan, the Board (or a duly authorized Committeethereof) may at any time, and from time to time, amend, in whole or in part,any or all of the provisions of the Plan (including any amendment deemednecessary to ensure that the Company may comply with any regulatory requirementreferred to in Article XIV), or suspend or terminate it entirely,retroactively or otherwise; provided, however, that, except (x) to correctobvious drafting errors or as otherwise required by law or (y) asspecifically provided herein, the rights of a Participant with respect toAwards granted prior to such amendment, suspension or termination, may not bereduced without the consent of such Participant and, provided further, withoutthe approval of the holders of the Company’s Common Stock entitled to vote inaccordance with applicable law, no amendment may be made that would(i) increase the aggregate number of shares of Common Stock that may beissued under the Plan under Section 4.1(a) (except by operation ofSection 4.2); (ii) increase the maximum individual limitations underSection 4.1(b) (except by operation of Section 4.2);(iii) change the classification of individuals eligible to receive Awardsunder the Plan; (iv) extend the maximum option period underSection 6.3; (v) materially alter the performance goals as set forthin Exhibit A; (vi) take any actions prohibited by the last sentenceof Section 6.3(a) or Section 7.4(d); or (vii) require stockholderapproval in order for the Plan to continue to comply with the applicableprovisions of Section 162(m) of the Code or, to the extent applicableto Incentive Stock Options, Section 422 of the Code. In no event may thePlan be amended without the approval of the stockholders of the Company inaccordance with the applicable laws of the State of Delaware to increase theaggregate number of shares of Common Stock that may be issued under the Plan,decrease the minimum exercise price of any Award, or to make any otheramendment that would require stockholder approval under the rules of anyexchange or system on which the Company’s securities are listed or traded atthe request of the Company. The Committee may amend the terms of any Awardtheretofore granted, prospectively or retroactively, but, subject toArticle IV above, except (x) to correct obvious drafting errors or asotherwise required by law or applicable

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accountingrules, or (y) as specifically provided herein, no such amendment or otheraction by the Committee shall reduce the rights of any holder without theholder’s consent.

**12.2   *Non-Transferability of Awards*.****  **Subject to Sections 6.3(e) and7.5, no Award shall be Transferable by the Participant (including, withoutlimitation to, a Family Member) otherwise than by will or by the laws ofdescent and distribution, and all Awards shall be exercisable, during theParticipant’s lifetime, only by the Participant. Any attempt to Transfer anyAward or benefit except as expressly permitted herein shall be void, and anysuch benefit shall not in any manner be liable for or subject to the debts,contracts, liabilities, engagements or torts of any person who shall beentitled to such benefit, nor shall it be subject to attachment or legalprocess for or against such person. An Award that is Transferred pursuant tothe first sentence of this Section 12.2 (i) may not be subsequentlyTransferred otherwise than by will or by the laws of descent and distributionand (ii) remains subject to the terms of the Plan and the applicable Awardagreement. Notwithstanding anything to the contrary contained in thisSection 12.2 (or 6.3(e) and 7.5), if and to the extent approved by theCommittee in its sole discretion, an employee or Non-Employee Director maytransfer an Award (but not Awards constituting in excess of one percent of theCommon Stock outstanding in any single Transfer) to a charitable organization.Any shares of Common Stock acquired by a permissible transferee shall continueto be subject to the terms of the Plan and the applicable Award agreement.

**ARTICLE XIIIUNFUNDED PLAN**

**13.1   *Unfunded Status of Plan*.**   ThePlan is intended to constitute an “unfunded” plan for incentive and deferredcompensation. With respect to any payments as to which a Participant has afixed and vested interest but that are not yet made to a Participant by theCompany, nothing contained herein shall give any such Participant any rightsthat are greater than those of a general unsecured creditor of the Company.

**ARTICLE XIVGENERAL PROVISIONS**

**14.1   *Legend and Custody*.**

(a)   The Committee may require each personreceiving shares of Common Stock pursuant to an Option or other Award under thePlan to represent to and agree with the Company in writing that the Participantis acquiring the shares without a view to distribution thereof. In addition toany legend required by the Plan, the certificates for such shares may includeany legend that the Committee deems appropriate to reflect any restrictions onTransfer.

(b)   All certificates for shares of Common Stockdelivered under the Plan shall be subject to such stop transfer orders andother restrictions as the Committee may deem advisable under (a) therules, regulations and other requirements of the Securities and ExchangeCommission, (b) any stock exchange upon which the Common Stock is thenlisted or any national securities exchange system upon whose system the CommonStock is then quoted, or (c) applicable law, and the Committee may cause alegend or legends to be put on any such certificates to make appropriatereference to such restrictions.

(c)   If stock certificates are issued in respectof an Award, the Committee may require that any stock certificates evidencingsuch Award be held in custody by the Company until the Award has vested or therestrictions thereon have lapsed, and that, as a condition of any grant of suchan Award, the Participant shall have delivered a duly signed stock power,endorsed in blank, relating to the Common Stock covered by such Award.

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**14.2   *Other Plans*.**   Nothingcontained in the Plan shall prevent the Board from adopting other or additionalcompensation arrangements, subject to stockholder approval if such approval isrequired; and such arrangements may be either generally applicable orapplicable only in specific cases.

**14.3   *Deferral; Dividends and Dividend Equivalents*.**   TheCommittee may, in its sole discretion, establish terms and conditions pursuantto which the cash payment or delivery of Common Stock pursuant to an Award maybe deferred. Subject to the provisions of the Plan, the terms of any Award(including a deferred Award) may provide, if so determined by the Committee inits sole discretion, for the payment of cash, Common Stock or other propertydividends, or cash payments in amounts equivalent to cash, Common Stock orother property dividends (“*Dividend Equivalents*”),on either a current or a deferred basis, with respect to the number of sharesof Common Stock subject to such Award. The Committee may also provide that anysuch dividends or dividend equivalents shall be subject to the samerestrictions and risk of forfeiture as the underlying Award or be deemed tohave been reinvested in additional Awards or otherwise reinvested.

**14.4   *No Right to Employment/Directorship/Consultancy*.**   Neitherthe Plan nor the grant of any Option or other Award hereunder shall give anyParticipant or other employee, Consultant or Non-Employee Director any rightwith respect to continuance of employment, consultancy or directorship by theCompany or any Affiliate, nor shall they be a limitation in any way on theright of the Company or any Affiliate by which an employee is employed or aConsultant or Non-Employee Director is retained to terminate his or heremployment, consultancy or directorship at any time.

**14.5   *Withholding of Taxes.***   TheCompany shall have the right to deduct from any payment to be made pursuant tothe Plan, or to otherwise require, prior to the issuance or delivery of anyshares of Common Stock or the payment of any cash hereunder, payment by theParticipant of, any federal, state or local taxes required by law to bewithheld. Upon the vesting of a Restricted Stock Award or RSU Award (or otherAward that is taxable upon vesting), or upon making an election underSection 83(b) of the Code, a Participant shall pay all requiredwithholding to the Company. If permitted by the Committee, the minimumstatutorily required withholding obligation with regard to any Participant maybe satisfied by (i) reducing the number of shares of Common Stock otherwisedeliverable or by delivering shares of Common Stock already owned, or(ii) the Participant’s tendering to the Company of shares of Common Stockowned by such Participant. Any fraction of a share of Common Stock required tosatisfy such tax obligations shall be disregarded and the amount due shall bepaid instead in cash by the Participant.

**14.6   *Listing and Other Conditions.***

(a)   Except as otherwise determined by theCommittee, as long as the Common Stock is listed on a national securitiesexchange or system sponsored by a national securities association, the issuanceof any shares of Common Stock pursuant to an Award shall be conditioned uponsuch shares being listed on such exchange or system. The Company shall have noobligation to issue such shares unless and until such shares are so listed, andthe right to exercise any Option or other Award with respect to such sharesshall be suspended until such listing has been effected.

(b)   If at any time counsel to the Company shallbe of the opinion that any sale or delivery of shares of Common Stock pursuantto an Option or other Award is or may be unlawful or result in the impositionof excise taxes on the Company under the statutes, rules or regulations ofany applicable jurisdiction, the Company shall have no obligation to make suchsale or delivery, or to make any application or to effect or to maintain anyqualification or registration under the Securities Act or otherwise, with respectto shares of Common Stock or Awards, and the right to exercise any Option orother Award shall be suspended until, in the opinion of said counsel, such saleor delivery shall be lawful or will not result in the imposition of excisetaxes on the Company.

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(c)   Upon termination of any period of suspensionunder this Section 14.6, any Award affected by such suspension that shallnot then have expired or terminated shall be reinstated as to all sharesavailable before such suspension and as to shares that would otherwise havebecome available during the period of such suspension, but no such suspensionshall extend the term of any Award.

(d)   A Participant shall be required to supplythe Company with any certificates, representations and information that the Companyrequests, and otherwise to cooperate with the Company in obtaining any listing,registration, qualification, exemption, consent or approval as the Companydeems necessary or appropriate.

**14.7   *Governing Law*.**   The Plan andactions taken in connection herewith shall be governed and construed inaccordance with the laws of the State of Delaware (regardless of the law thatmight otherwise govern under applicable Delaware principles of conflict oflaws).

**14.8   *Construction*.**   Wherever anywords are used in the Plan in the masculine gender they shall be construed asthough they were also used in the feminine gender in all cases where they wouldso apply, and wherever any words are used herein in the singular form theyshall be construed as though they were also used in the plural form in allcases where they would so apply.

**14.9   *Other Benefits*.**   No Awardgranted or paid out under the Plan shall be deemed compensation for purposes ofcomputing benefits under any retirement plan of the Company or its Affiliatesnor affect any benefits under any other benefit plan now or subsequently ineffect under which the availability or amount of benefits is related to thelevel of compensation.

**14.10   *Costs*.**   The Company shall bearall expenses associated with administering the Plan, including expenses ofissuing Common Stock pursuant to any Awards hereunder.

**14.11   *No Right to Same Benefits*.**   Theprovisions of Awards need not be the same with respect to each Participant, andsuch Awards to individual Participants need not be the same in subsequentyears.

**14.12   *Death/Disability*.****  **The Committee may, in its solediscretion, require the transferee of a Participant to supply it with writtennotice of the Participant’s death or Disability and to supply it with a copy ofthe will (in the case of the Participant’s death) and/or such other evidence asthe Committee deems necessary to establish the validity of the transfer of anAward. The Committee may also require that the agreement of the transferee tobe bound by all of the terms and conditions of the Plan.

**14.13   *Section 16(b) of the Exchange Act*.**   Allelections and transactions under the Plan by persons subject to Section 16of the Exchange Act involving shares of Common Stock are intended to complywith any applicable exemptive condition under Rule 16b-3. The Committeemay establish and adopt written administrative guidelines, designed tofacilitate compliance with Section 16(b) of the Exchange Act, as itmay deem necessary or proper for the administration and operation of the Planand the transaction of business thereunder.

**14.14   *Section 409A of the Code*.****  **The Board may amend the Plan asnecessary to comply with Section 409A of the Code without shareholderconsent.

**14.15   *Successor and Assigns*.**   ThePlan shall be binding on all successors and permitted assigns of a Participant,including, without limitation, the estate of such Participant and the executor,administrator or trustee of such estate.

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**14.16   *Severability of Provisions*.**   Ifany provision of the Plan shall be held invalid or unenforceable, suchinvalidity or unenforceability shall not affect any other provisions hereof,and the Plan shall be construed and enforced as if such provisions had not beenincluded.

**14.17   *Payments to Minors, Etc*.****  **Any benefit payable to or for thebenefit of a minor, an incompetent person or other person incapable of receiptthereof shall be deemed paid when paid to such person’s guardian or to theparty providing or reasonably appearing to provide for the care of such person,and such payment shall fully discharge the Committee, the Board, the Company,its Affiliates and their employees, agents and representatives with respectthereto.

**14.18   *Headings and Captions*.**   Theheadings and captions herein are provided for reference and convenience only,shall not be considered part of the Plan, and shall not be employed in theconstruction of the Plan.

**ARTICLE XVEFFECTIVE DATE OF PLAN**

The Plan shall become effective upon the datespecified by the Board in its resolution adopting the Plan, subject to theapproval of the Plan by the stockholders of the Company within 12 months beforeor after such date of adoption, in accordance with the requirements of the lawsof the State of Delaware.

**ARTICLE XVITERM OF PLAN**

No Award shall be granted pursuant to the Plan on orafter the tenth anniversary of the earlier of the date the Plan is adopted orthe date of stockholder approval, but Awards granted prior to such tenthanniversary may extend beyond that date.

**ARTICLE XVIINAME OF PLAN**

The Plan shall be known as “ImClone SystemsIncorporated 2006 Stock Incentive Plan.”

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**EXHIBIT APERFORMANCE GOALS**

Performance goals established for purposes of thevesting of performance-based Restricted Stock Awards, RSU Awards, PerformanceAwards and/or Other Stock-Based Awards shall be based on one or more of thefollowing performance goals (“***Performance Goals***”), which may be set in terms of theperformance of the Company or any subsidiary, division, other operational unitor business segment of the Company:  (i) the attainment of certaintarget levels of, or a specified increase in, enterprise value or valuecreation targets; (ii) the attainment of certain target levels of, or aspecified increase in, after-tax or pre-tax profits, including withoutlimitation as attributable to continuing and/or other operations of theCompany; (iii) the attainment of certain target levels of, or a specifiedincrease in, operational cash flow or economic value added; (iv) theattainment of a certain level of reduction of, or other specified objectiveswith regard to limiting the level of increase in all or a portion of, theCompany’s bank debt or other long-term or short-term public or private debt orother similar financial obligations of the Company, which may be calculated netof cash balances and/or other offsets and adjustments as may be established bythe Committee; (v) the attainment of certain target levels of, or aspecified increase in, earnings per share or earnings per share from continuingoperations; (vi) the attainment of certain target levels of, or aspecified increase in, net sales, revenues, net income or earnings beforeincome tax or other exclusions; (vii) the attainment of certain targetlevels of, or a specified increase in, return on capital employed or return oninvested capital; (viii) the attainment of certain target levels of, or aspecified increase in, after-tax or pre-tax return on stockholder equity;(ix) the attainment of certain target levels of, or a specified increasein, the fair market value of the shares of the Company’s Common Stock;(x) the growth in the value of an investment in the Company’s Common Stockassuming the reinvestment of dividends; (xi) a transaction that results in thesale of stock or assets of the Company; (xii) the attainment of certain targetlevels of, or a specified reduction in, expenses; or (xiii) implementation,completion or attainment of interim measurable goals with regard to research,development, products or projects. The Committee may also exclude the impact ofan event or occurrence which the Committee determines should be appropriatelyexcluded, including (i) restructurings, discontinued operations,extraordinary items, and other unusual or non-recurring charges, (ii) anevent either not directly related to the operations of the Company or notwithin the reasonable control of the Company’s management, or (iii) achange in tax law or accounting standards required by generally acceptedaccounting principles.

In addition, such Performance Goals may be based uponthe attainment of specified levels of Company (or subsidiary, division or otheroperational unit or business segment of the Company) performance under one ormore of the measures described above relative to the performance of othercorporations. The Committee may: (i) designate additional businesscriteria on which the performance goals may be based or (ii) adjust,modify or amend the aforementioned business criteria.

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