Exhibit 10.1


 


HERTZ GLOBAL HOLDINGS, INC.

STOCK INCENTIVE PLAN


 


Article I

Purpose


 


Hertz Global Holdings, Inc.
has established this stock incentive plan to foster and promote its long-term
financial success. Capitalized terms have the meaning given in Article XI.


 


Article II

Powers of the Board


 


Section 2.1                                      Power to Grant Awards. The Board shall select Employees to participate in
the Plan. The Board shall also determine from time to time whether, and the
terms under which, Eligible Directors (or classes or categories of Eligible
Directors) may receive Director Share Awards. The Board shall determine
the terms of each Award, consistent with the Plan. Notwithstanding the
foregoing, the Compensation Committee of the Board may determine the
specific number of Common Shares to be offered and/or Options to be granted to
an individual Employee or Eligible Director, in each case otherwise consistent
with the terms of the Plan.


 


Section 2.2                                      Administration. The Board shall be responsible for the administration of the Plan. The
Board may prescribe, amend and rescind rules and regulations relating
to the administration of the Plan, provide for conditions and assurances it
deems necessary or advisable to protect the interests of the Company and make
all other determinations necessary or advisable for the administration and
interpretation of the Plan. Any authority exercised by the Board under the Plan
shall be exercised by the Board in its sole discretion. Determinations,
interpretations or other actions made or taken by the Board under the Plan
shall be final, binding and conclusive for all purposes and upon all persons.


 


Section 2.3                                      Delegation by the Board. All of the powers, duties and responsibilities of
the Board specified in this Plan may be exercised and performed by any
duly constituted committee thereof to the extent authorized by the Board to
exercise and perform such powers, duties and responsibilities, and any
determination, interpretation or other action taken by such committee shall
have the same effect hereunder as if made or taken by the Board.


 

















 


Article III

Shares Subject to Plan


 


Section 3.1                                      Number. The maximum number of shares of Common Shares that may be
issued under the Plan or be subject to Awards may not exceed 25,000,000
shares. The shares of Common Shares to be delivered under the Plan may consist,
in whole or in part, of authorized but unissued Common Shares that are not
reserved for any other purpose.


 


Section 3.2                                      Canceled, Terminated or Forfeited Awards. If any Award or portion thereof is for any reason
forfeited, canceled or otherwise terminated without exercise, the Common Shares
subject to such Award or portion thereof shall again be available for grant
under the Plan.


 


Section 3.3                                      Adjustment in Capitalization. The number of Common Shares available for issuance
under the Plan and the number, class, exercise price or other terms of any
outstanding Award may be adjusted by the Board if it shall deem such an
adjustment necessary or appropriate to reflect any Common Shares dividend,
stock split or share combination or any recapitalization, merger,
consolidation, exchange of shares, liquidation or dissolution of the Company or
other similar transaction affecting the Common Shares.


 


Article IV

Stock Purchase


 


Section 4.1                                      Awards and Administration. The Board may offer and sell Common Shares to
Participants at such time or times as it shall determine, the terms of which
shall be set forth in a Subscription Agreement.


 


Section 4.2                                      Minimum Purchase Price. Unless otherwise determined by the Board, the
purchase price for any Common Shares to be offered and sold pursuant to this Article IV
shall not be less than the Fair Market Value on the Grant Date.


 


Section 4.3                                      Payment.
Unless otherwise determined by the Board, the purchase price with respect to
any Common Shares offered and sold pursuant to this Article IV shall be
paid in cash or other readily available funds simultaneously with the closing
of the purchase of such Common Shares.


 


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Article V

Terms of Options


 


Section 5.1                                      Grant of Options. The Board may grant Options to Participants at such time or times
as it shall determine. Options granted pursuant to the Plan will not be “incentive
stock options” as defined in the Code unless otherwise determined by the Board.
Each Option granted to a Participant shall be evidenced by an Option Agreement
that shall specify the number of Common Shares that may be purchased
pursuant to such Option, the exercise price at which a Common Share may be
purchased pursuant to such Option, the duration of such Option (not to exceed
the tenth anniversary of the Grant Date), and such other terms as the Board
shall determine.


 


Section 5.2                                      Exercise Price. The exercise price per Common Share to be purchased upon exercise of an
Option shall not be less than the Fair Market Value on the Grant Date.


 


Section 5.3                                      Vesting and Exercise of Options. Options shall become vested or exercisable in
accordance with the vesting schedule or upon the attainment of such
performance criteria as shall be specified by the Board on or before the Grant
Date. Unless otherwise determined by the Board or the Compensation Committee on
or before the Grant Date, one fifth of the Options shall vest and become
exercisable on each of the first, second, third, fourth and fifth anniversaries
of the Grant Date. The Board or the Compensation Committee may accelerate
the vesting or exercisability of any Option, all Options or any class of
Options at any time and from time to time.


 


Section 5.4                                      Payment.
The Board shall establish procedures governing the exercise of Options, which
procedures shall generally require that prior written notice of exercise be
given and that the exercise price (together with any required withholding taxes
or other similar taxes, charges or fees) be paid in full in cash, cash
equivalents or other readily-available funds at the time of exercise. Notwithstanding
the foregoing, on such terms as the Board may establish from time to time
following a Public Offering (i) the Board may permit a Participant to
tender any Common Shares such Participant has owned for at least six months and
one day for all or a portion of the applicable exercise price or minimum
required withholding taxes and (ii) the Board may authorize the
Company to establish a broker-assisted exercise program. In connection with any
Option exercise, the Company may require the Participant to furnish or
execute such other documents as it shall reasonably deem necessary to (a) evidence
such exercise, (b) determine whether registration is then required under
the U.S. federal securities laws or similar non-U.S. laws or (c) comply
with or satisfy the requirements of the U.S.


 


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federal securities laws, applicable
state or non-U.S. securities laws or any other law. As a condition to the
exercise of any Option before a Public Offering, a Participant shall enter into
a Subscription Agreement.


 


Article VI

Termination of Employment


 


Section 6.1                                      Expiration of Options Following Termination of
Employment. Unless otherwise
determined by the Board on or before the Grant Date, if a Participant’s
employment with the Company and its Subsidiaries terminates, such Participant’s
Options shall be treated as follows:


 


(a)                                  any unvested Options shall terminate effective as of
such termination of employment; provided that if the Employee’s
employment with the Company is terminated in a Special Termination (i.e., by
reason of the Employee’s death or Disability), any unvested Options held by the
Employee shall immediately vest as of the effective date of such Special
Termination;


 


(b)                                 except in the case of a termination for Cause,
vested Options shall remain exercisable through the earliest of (i) the
normal expiration date, (ii) 60 days after the Participant’s termination
of employment (180 days in the case of a Special Termination or a retirement at
normal retirement age or later) and (iii) any cancellation pursuant to Section 7.1;
and


 


(c)                                  in the case of a termination for Cause, any and all
Options held by such Participant (whether or not then vested or exercisable)
shall terminate immediately upon such termination of employment.


 


Section 6.2                                      Certain Rights upon Termination of Employment Prior
to a Public Offering. Each
Subscription Agreement shall provide that the Company and the Initial Investors
shall have successive rights prior to a Public Offering to purchase all or any
portion of a Participant’s Common Shares upon any termination of employment, at
such time and at a purchase price per share equal to the Fair Market Value as
of the date specified in the Subscription Agreement (or, if the Participant’s
employment termination qualifies as a termination for Cause, for a purchase
price per share equal to the lesser of (i) the Fair Market Value as of the
date specified in the Subscription Agreement and (ii) such Participant’s
per share purchase price), minus any applicable exercise price. The
Board may provide in a Subscription Agreement that following a Participant’s
Special


 


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Termination, retirement at or after
normal retirement age or termination of employment by the Company or its
Subsidiaries without Cause in each case prior to a Public Offering, such
Participant may require the Company to repurchase all (but not less than
all) of such Participant’s Common Shares (but excluding any shares acquired on
exercise of an Option), at such time and at a purchase price per share equal to
the Fair Market Value as of the date specified in the Subscription Agreement,
subject to the Company having the ability to do so under the terms of its
financing agreements.


 


Article VII

Change in Control


 


Section 7.1                                      Accelerated Vesting and Payment. Except as otherwise provided in this Article VII,
and unless otherwise provided in the Award Agreement, upon a Change in Control
each Option, whether vested or unvested, shall be canceled in exchange for a
payment in an amount or with a value equal to the excess, if any, of the Change
in Control Price over the exercise price for such Option.


 


Section 7.2                                      Alternative Options. No cancellation, acceleration or other payment
shall occur with respect to any Option if the Board reasonably determines in
good faith, prior to the occurrence of a Change in Control, that such Option
shall be honored or assumed, or new rights substituted therefor following the
Change in Control (such honored, assumed or substituted award, an “Alternative
Award”), provided that any Alternative Award must:


 


(a)                                  give the Participant who held such Option rights and
entitlements substantially equivalent to or better than the rights and terms
applicable under such Option, including, but not limited to, an identical or
better exercise and vesting schedule, identical or better timing and methods of
payment and, if the Alternative Award or the securities underlying it are not
publicly-traded, identical or better rights following a termination of
employment to require the Company or the acquiror in such Change in Control to
repurchase the Alternative Award or securities underlying such Alternative Award;
and


 


(b)                                 have terms such that if, within two years following
a Change in Control, a Participant’s employment is involuntarily or
constructively terminated (other than for Cause), such Alternative Award shall
immediately vest in full and such Participant shall receive a cash payment
equal to the excess (if any) of the fair market value of the stock subject to


 


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the
Alternative Award on the date of surrender over the price that such Participant
would be required to pay to exercise such Alternative Award or shall have an
immediate right to exercise such Alternative Award and receive shares that are
then publicly-traded.


 


Section 7.3                                      Limitation of Benefits. If, whether as a result of accelerated vesting,
the grant of an Alternative Award or otherwise, a Participant would receive any
payment, deemed payment or other benefit as a result of the operation of Section 7.1
or Section 7.2 that, together with any other payment, deemed payment or
other benefit a Participant may receive under any other plan, program,
policy or arrangement, would constitute an “excess parachute payment” under section 280G
of the Code, then, notwithstanding anything in this Plan to the contrary, the
payments, deemed payments or other benefits such Participant would otherwise
receive under Section 7.1 or Section 7.2 shall be reduced to the
extent necessary to eliminate any such excess parachute payment and such
Participant shall have no further rights or claims with respect thereto. If the
preceding sentence would result in a reduction of the payments, deemed payments
or other benefits a Participant would otherwise receive in more than an
immaterial amount, the Company will use its commercially reasonable best
efforts to seek the approval of the Company’s shareholders in the manner
provided for in section 280G(b)(5) of the Code and the regulations
thereunder with respect to such reduced payments or other benefits (if the
Company is eligible to do so), so that such payments would not be treated as “parachute
payments” for these purposes (and therefore would cease to be subject to
reduction pursuant to this Section 7.3).


 


Article VIII

Director Share Awards


 


The Board may provide for the
grant of Director Share Awards to Eligible Directors (or categories or classes
of Eligible Directors) on such terms as the Board shall determine from time to
time, including as part of the retainer or other fees payable to an
Eligible Director, or as part of an arrangement that permits the deferral
of payment of such fees, on a mandatory or elective basis, into the right to
receive Common Shares and distributions thereon in the future or a cash payment
measured by reference to the value therof.


 


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Article IX

Authority to Vary Terms or Establish Local Jurisdiction Plans


 


The Board may vary the terms
of Awards under the Plan, or establish sub-plans under this Plan to authorize
the grant of awards that have additional or different terms or features from
those otherwise provided for in the Plan, if and to the extent the Board
determines necessary or appropriate to permit the grant of awards that are best
suited to further the purposes of the Plan and to comply with applicable
securities laws in a particular jurisdiction or provide terms appropriately
suited for Employees in such jurisdiction in light of the tax laws of such
jurisdiction while being as consistent as otherwise possible with the terms of
Awards under the Plan; provided that this Article IX shall not be
deemed to authorize any increase in the number of Common Shares available for
issuance under the Plan set forth in Section 3.1.


 


Article X

Amendment, Modification, and Termination of the Plan


 


The Board may terminate or
suspend the Plan at any time, and may amend or modify the Plan from time
to time. No amendment, modification, termination or suspension of the Plan
shall in any manner adversely affect any Award theretofore granted under the
Plan without the consent of the Participant holding such Award or the consent
of a majority of Participants holding similar Awards (such majority to be
determined based on the number of shares covered by such Awards). Shareholder
approval of any such amendment, modification, termination or suspension shall
be obtained to the extent mandated by applicable law, or if otherwise deemed
appropriate by the Board.


 


Article XI

Definitions


 


Section 11.1                                Definitions. Whenever used herein, the following terms shall have the respective
meanings set forth below:


 


“Affiliate” shall mean, with respect to any
Person, any other Person directly or indirectly controlling, controlled by or
under common control with such first Person; provided that a director,
member of management or other Employee of the Company or any of its
Subsidiaries shall not be deemed to be an Affiliate of the Investors. For these
purposes, “control” (including the terms “controlled by” and “under common
control with”)


 


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means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
policies of a Person by reason of ownership of voting securities, by contract
or otherwise.


 


“Alternative Award” has the meaning given in Section 7.2.


 


“Award” shall mean an Option, Director Share
Award or an offer and sale of Common Shares pursuant to Article IV, in
each case granted pursuant to the terms of the Plan.


 


“Award Agreement” means a Subscription
Agreement, an Option Agreement or any other agreement evidencing an Award.


 


“Board” means the Board of Directors of the
Company.


 


“Carlyle Investors” means, collectively, (i) Carlyle
Partners IV, L.P., (ii) CEP II Participations S.àr.l., (iii) CP IV
Co-investment, L.P., and (iv) CEP II U.S. Investments, L.P.


 


“Cause”
means, unless otherwise provided in the Award Agreement, any of the
following:  (i) the Participant’s
commission of a crime involving fraud, theft, false statements or other similar
acts or commission of any crime that is a felony (or a comparable
classification in a jurisdiction that does not use these terms); (ii) the
Participant’s engaging in any conduct that constitutes an employment
disqualification under applicable law; (iii) the Participant’s willful or
grossly negligent failure to perform his or her employment-related duties
for the Company and its Subsidiaries; (iv) the Participant’s material
violation of any Company policy as in effect from time to time; (v) the
Participant’s engaging in any act or making any statement that impairs,
impugns, denigrates, disparages or negatively reflects upon the name,
reputation or business interests of the Company or its Subsidiaries; (vi) the
Participant’s material breach of any Award Agreement, employment agreement, or
noncompetition, nondisclosure or nonsolicitation agreement to which the
Participant is a party or by which the Participant is bound or (vii) the
Participant’s engaging in any conduct injurious or detrimental to the Company
or its any of its Subsidiaries. The determination as to whether “Cause” has
occurred shall be made by the Board, which shall have the authority to waive
the consequences under the Plan of the existence or occurrence of any of the
events, acts or omissions constituting “Cause.” 
A termination for Cause shall be deemed to include a determination
following a Participant’s termination of employment for any reason that the
circumstances existing prior to such termination for the


 


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Company or one of its
Subsidiaries to have terminated such Participants employment for Cause.


 


“CDR Investors” means,
collectively, (i) Clayton, Dubilier & Rice Fund VII, L.P., (ii) CDR
CCMG Co-Investor L.P., and (iii) CD&R Parallel Fund VII, L.P.


 


“Change in Control” means the first to occur
of the following events after the Effective Date:


 


(i)  the acquisition by any person, entity or “group”
(as defined in Section 13(d) of the Securities Exchange Act of 1934,
as amended) of 50% or more of the combined voting power of the Company’s then
outstanding voting securities, other than any such acquisition by the Company,
any of its Subsidiaries, any employee benefit plan of the Company or any of its
Subsidiaries, or by the Investors, or any Affiliates of any of the foregoing;


 


(ii)  the merger, consolidation or other similar
transaction involving the Company, as a result of which persons who were
stockholders of the Company immediately prior to such merger, consolidation, or
other similar transaction do not, immediately thereafter, own, directly or
indirectly, more than 50% of the combined voting power entitled to vote
generally in the election of directors of the merged or consolidated company;


 


(iii)  within any 24-month period, the persons who were
directors of the Company at the beginning of such period (the “Incumbent
Directors”) shall cease to constitute at least a majority of the Board, provided
that any director elected or nominated for election  to the Board 
by a majority of the Incumbent Directors then still in office shall be
deemed to be an Incumbent Director for purposes of this clause (iii); or


 


(iv)  the sale, transfer or other disposition of all or
substantially all of the assets of the Company to one or more persons or
entities that are not, immediately


 


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prior to such sale, transfer or other disposition,
Affiliates of  the Company.


 


Notwithstanding the foregoing, a Public Offering shall not
constitute a Change in Control.


 


“Change in Control Price” means the price per
Common Share offered in conjunction with any transaction resulting in a Change
in Control. If any part of the offered price is payable other than in
cash, the Change in Control price shall be determined in good faith by the
Board as constituted immediately prior to the Change in Control.


 


“Code” means the United States Internal Revenue
Code of 1986, as amended, and any successor thereto.


 


“Common Shares” means the Common Stock, par
value U.S. $.01 per share, of the Company.


 


“Company” means Hertz Global Holdings, Inc.,
a Delaware corporation, and any successor thereto.


 


“Compensation Committee” means the
Compensation Committee of the Board of Directors of the Company.


 


“Director Share Award” means an award
pursuant to Article VIII to an Eligible Director of Common Shares, a right
to receive Common Shares or a payment measured by reference thereto and
distributions thereon.


 


“Disability” means, unless otherwise provided
in an Award Agreement, a Participant’s long-term disability within the meaning
of the long-term disability insurance plan or program of the Company or any
Subsidiary then covering the Participant, or in the absence of such a plan or
program, as determined by the Board. The Board’s reasoned and good faith
judgment of Disability shall be final and shall be based on such competent
medical evidence as shall be presented to it by the Participant or by any
physician or group of physicians or other competent medical expert employed by
the Participant or the Company to advise the Board.


 


“Effective Date” has the meaning given in Section 12.12.


 


“Eligible Director” means a member of the
Board other than an employee or officer of the Company or any of its
Subsidiaries.


 


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“Employee” means any executive, officer or
other employee of the Company or any Subsidiary.


 


“Fair Market Value” means, as of any date of
determination prior to a Public Offering, the per share fair market value on
such date of a share of Common Shares as determined in good faith by the Board.
In making a determination of Fair Market Value, the Board shall give due consideration
to such factors as it deems appropriate, including, but not limited to, the
earnings and other financial and operating information of the Company in recent
periods, the potential value of the Company as a whole, the future prospects of
the Company and the industries in which it competes, the history and management
of the Company, the general condition of the securities markets, the fair
market value of securities of companies engaged in businesses similar to those
of the Company, and any recent valuation of the Common Shares that shall have
been performed by an independent valuation firm (although nothing herein shall
obligate the Board to obtain any such independent valuation). The determination
of Fair Market Value will not give effect to any restrictions on transfer of
the Common Shares or take into account any control premium, but shall be
determined taking into account the fact that such shares would represent a
minority interest in the Company and are illiquid. Following a Public Offering,
“Fair Market Value” shall mean, as of any date of determination, the mid-point
between the high and the low trading prices for such date per share of Common
Shares as reported on the principal stock exchange on which the shares of
Common Shares are then listed.


 


“Grant Date” means, with respect to any
Award, the date as of which such Award is granted pursuant to the Plan.


 


“Initial Investors” means, collectively, the
Carlyle Investors, the CDR Investors and the Merrill Lynch Investors.


 


“Investors” means collectively (i) Initial
Investors (ii) TC Group L.L.C. (which operates under the trade name The
Carlyle Group), (iii) Clayton, Dubilier & Rice, Inc., (iv) Merrill
Lynch Global Partners, Inc., (v) any Affiliate of any thereof,
including any investment fund or vehicle managed, sponsored or advised by any
thereof, (vi) any successor in interest to any thereof.


 


“Key Employee” means a “key employee” as
defined in Section 416(i) of the Code, without regard to paragraph (5) thereof.


 


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“Merrill Lynch Investors” means,
collectively, (i) ML Global Private Equity Fund, L.P., (ii) Merrill
Lynch Ventures L.P. 2001, (iii) CMC-Hertz Partners, L.P., and (iv) ML
Hertz Co-Investor, L.P.


 


“Option” means the right granted pursuant to
the Plan to purchase one Common Share.


 


“Option Agreement” means an agreement between
the Company and a Participant embodying the terms of any Options granted
pursuant to the Plan and in the form approved by the Board from time to
time for such purpose.


 


“Participant” means any Employee or Eligible Director who is granted
an Award.


 


“Person” means any natural person, firm,
partnership, limited liability company, association, corporation, company,
trust, business trust, governmental authority or other entity.


 


“Plan” means this Hertz Global Holdings, Inc.
Stock Incentive Plan.


 


“Public Offering” means the first day as of
which (i) sales of Common Shares are made to the public in the United
States pursuant to an underwritten public offering of the Common Shares led by
one or more underwriters at least one of which is an underwriter of nationally
recognized standing or (ii) the Board has determined that shares of the
Common Shares otherwise have become publicly-traded for this purpose.


 


“Special Termination” means a termination by
reason of the Participant’s death or Disability.


 


“Subscription Agreement” means a stock
subscription agreement between the Company and a Participant embodying the
terms of any stock purchase made pursuant to the Plan and in the form approved
by the Board from time to time for such purpose.


 


“Subsidiary” means any corporation, limited
liability company or other entity, a majority of whose outstanding voting
securities is owned, directly or indirectly, by the Company.


 


Section 11.2                                Gender and Number. Except when otherwise indicated by the context, words in the masculine
gender used in the Plan shall include the feminine


 


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gender, the singular shall include
the plural, and the plural shall include the singular.


 


Article XII

Miscellaneous Provisions


 


Section 12.1                                Nontransferability of Awards. Except as otherwise provided herein or as the
Board may permit on such terms as it shall determine, no Awards granted
under the Plan may be sold, transferred, pledged, assigned, hedged,
encumbered or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution. All rights with respect to Awards granted to
a Participant under the Plan shall be exercisable during the Participant’s
life-time by such Participant only (or, in the event of the Participant’s
Disability, such Participant’s legal representative). Following a Participant’s
death, all rights with respect to Awards that were outstanding at the time of
such Participant’s death and have not terminated shall be exercised by his
designated beneficiary or by his estate in the absence of a designated
beneficiary.


 


Section 12.2                                Tax Withholding. The Company or the Subsidiary employing a Participant shall have the power
to withhold up to the minimum statutory requirement, or to require such
Participant to remit to the Company or such Subsidiary, an amount sufficient to
satisfy all U.S. federal, state, local and any non-U.S. withholding tax or
other governmental tax, charge or fee requirements in respect of any Award
granted under the Plan.


 


Section 12.3                                Beneficiary Designation. Pursuant to such rules and procedures as the
Board may from time to time establish, a Participant may name a
beneficiary or beneficiaries (who may be named contingently or
successively) by whom any right under the Plan is to be exercised in case of
such Participant’s death. Each designation will revoke all prior designations
by the same Participant, shall be in a form reasonably prescribed by the
Board, and will be effective only when filed by the Participant in writing with
the Board during his lifetime.


 


Section 12.4                                Delivery of Financial Statements to Participants. Each year the Company will provide the Company’s
annual financial statements to the Participants.


 


Section 12.5                                Limitation on Number of Outstanding Options. At no time shall the total number of shares of
Common Shares issuable upon exercise of all outstanding Options and the total
number of shares of Common Shares provided for under any bonus or similar plan
or agreement of the Company exceed 30%, as


 


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calculated in accordance with the
conditions and exclusions of California Code of Regulations, Title 10, Ch. 3, Section 260.140.45,
of the securities outstanding at the time the calculation is made.


 


Section 12.6                                No Guarantee of Employment or Participation. Nothing in the Plan or in any agreement granted
hereunder shall interfere with or limit in any way the right of the Company or
any Subsidiary to terminate any Participant’s employment or retention at any
time, or confer upon any Participant any right to continue in the employ or
retention of the Company or any Subsidiary. No Employee or Eligible Director
shall have a right to be selected as a Participant or, having been so selected,
to receive any Awards.


 


Section 12.7                                No Limitation on Compensation; No Impact on Benefits. Nothing in the Plan shall be construed to limit
the right of the Company or any Subsidiary to establish other plans or to pay
compensation to its Employees or Eligible Directors, in cash or property, in a
manner that is not expressly authorized under the Plan. Except as may otherwise
be specifically and unequivocally stated under any employee benefit plan,
policy or program, no amount payable in respect of any Award shall be treated
as compensation for purposes of calculating a Participant’s rights under any
such plan, policy or program. The selection of an Employee as a Participant
shall neither entitle such Employee to, nor disqualify such Employee from,
participation in any other award or incentive plan.


 


Section 12.8                                No Voting Rights. Except as otherwise required by law, no Participant holding any Awards
granted under the Plan shall have any right in respect of such Awards to vote
on any matter submitted to the Company’s stockholders until such time as the
shares of Common Shares underlying such Awards have been issued, and then,
subject to the voting restrictions contained in the Subscription Agreement.


 


Section 12.9                                Requirements of Law. The granting of Awards and the issuance of shares
of Common Shares pursuant to the Plan shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required. No Awards shall be granted under
the Plan, and no Common Shares shall be issued under the Plan, if such grant or
issuance would result in a violation of applicable law, including U.S. federal
securities laws and any applicable state or non-U.S. securities laws.


 


Section 12.10                          Freedom of Action. Nothing in the Plan or any Award Agreement evidencing an Award shall be
construed as limiting or preventing the Company or any Subsidiary from taking
any action that it deems appropriate or in its best interest (as determined in
its sole and absolute discretion) and no


 


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Participant (or person claiming by
or through a Participant) shall have any right relating to the diminishment in
the value of any Award as a result of any such action.


 


Section 12.11                          Unfunded Plan; Plan Not Subject to ERISA. The plan is an unfunded plan and Participants
shall have the status of unsecured creditors of the Company. The Plan is not
intended to be subject to the Employee Retirement Income and Security Act of
1974, as amended.


 


Section 12.12                          Term of Plan. The Plan shall be effective as of February 15, 2006 (the “Effective
Date”) and shall continue in effect, unless sooner terminated pursuant to Article X,
until the tenth anniversary of such date. The provisions of the Plan shall
continue thereafter to govern all outstanding Awards.


 


Section 12.13                          Governing Law. The Plan, and all agreements hereunder, shall be governed by and
construed in accordance with the law of the State of Delaware regardless of the
application of rules of conflict of law that would apply the laws of any
other jurisdiction.


 


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