2006 Equity Incentive Plan


    EXHIBIT
      10.136

     

    
 

    INTERLAND,
      INC. 

    2006
      EQUITY INCENTIVE PLAN 

     

    SECTION
      1


     

    GENERAL
      

     

    1.1 Purpose.
      The
      Interland, Inc. 2006 Equity Incentive Plan (the “Plan”) has been established by
      Interland, Inc. (the “Company”) to (i) attract and retain persons eligible to
      participate in the Plan; (ii) motivate Participants (as defined in Section
      1.2
      below), by means of appropriate incentives, to achieve long-range goals; (iii)
      provide incentive compensation opportunities that are competitive with those
      of
      other similar companies; and (iv) further identify Participants’ interests with
      those of the Company’s shareholders through compensation that is based on the
      Company’s common stock; and thereby promote the long-term financial interests of
      the Company and its Subsidiaries, as defined in Section 8(i), including the
      growth in value of the Company’s equity and enhancement of long-term shareholder
      return. Pursuant to the Plan, Participants may receive Options, SARs, or Other
      Stock Awards, each as defined herein (collectively referred to as “Awards”).


     

    1.2 Participation.
      Subject
      to the terms and conditions of the Plan, the Committee as defined in Section
      5
      shall determine and designate, from time to time, from among the Eligible
      Grantees, as defined in Section 8(f) (including transferees of Eligible Grantees
      to the extent the transfer is permitted by the Plan and the applicable Award
      Agreement), those persons who will be granted one or more Awards under the
      Plan,
      and thereby become “Participants” in the Plan. In the discretion of the
      Committee, a Participant may be granted any Award permitted under the provisions
      of the Plan (except that ISOs may only be granted to employees of the Company
      and its Subsidiaries), and more than one Award may be granted to a Participant.
      Awards may be granted as additions to, alternatives to or replacements of other
      Awards outstanding under the Plan, or any other plan or arrangement of the
      Company or a Subsidiary (including a plan or arrangement of a business or
      entity, all or a portion of which is acquired by the Company or a Subsidiary).
      

     

    1.3 Operation,
      Administration, and Definitions.
      The
      operation and administration of the Plan, including the Awards made under the
      Plan, shall be subject to the provisions of Section 4 (relating to
      operation and administration). Capitalized terms in the Plan shall be defined
      as
      set forth in the Plan (including the definition provisions of Section 8 of
      the
      Plan). 

     

    1.4 Compliance
      with Section 409A of the Code.
      Notwithstanding any provision of the Plan to the contrary, if any Award
      constitutes or provides for the deferral of compensation within the meaning
      of
      Section 409A of the Code, the Award shall comply and be administered in all
      respects, in such manner as the Committee shall determine to be necessary or
      appropriate, to conform with the applicable requirements of Section 409A of
      the
      Code (and the Treasury Regulations and other applicable guidance promulgated
      thereunder), the
      applicable Award Agreement shall include all provisions required for the Award
      to comply with the applicable requirements of Section 409A of the Code; and
      those provisions of the Award Agreement shall be deemed to constitute provisions
      of the Plan. If
      the
      Committee grants any Awards or takes any other action that would inadvertently
      result in the imposition of a penalty on a Participant under Section 409A of
      the
      Code, then the Company, in its discretion, may, to the maximum extent permitted
      by law, unilaterally rescind ab
      initio,
      sever,
      amend or otherwise modify the grant or action (or any provision of the Award)
      in
      such manner as may be necessary for the penalty to be inapplicable or
      reduced.

     

     

    
      
        
        

      

      
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    SECTION
      2


     

    OPTIONS
      AND SARS 

     

    2.1 Definitions. 

     

    (a) The
      grant
      of an “Option” entitles the Participant to purchase shares of Stock at an
      Exercise Price established by the Committee. Options granted under this Section
      2 may either be Incentive Stock Options (“ISOs”) or Non-Qualified Options
      (“NQOs”), as determined in the discretion of the Committee. An “ISO” is an
      Option that is intended to satisfy the requirements applicable to an “incentive
      stock option” described in Section 422(b) of the Internal Revenue Code of 1986,
      as amended (the “Code”). An “NQO” is an Option that is not intended to be an
“incentive stock option” as that term is described in Section 422(b) of the
      Code. 

     

    (b) A
      stock
      appreciation right (a “SAR”) entitles the Participant to receive, in cash or
      Stock (as determined in accordance with subsection 2.5), value equal to (or
      otherwise based on) the excess of: (a) the Fair Market Value (as defined in
      Section 8) of a specified number of shares of Stock at the time of exercise;
      over (b) an Exercise Price established by the Committee. 

     

    2.2 Exercise
      Price.
      The
      Exercise Price of each Option and SAR granted under this Section 2 shall be
      not
      less than 100% of the Fair Market Value of a share of Stock on the date of
      grant
      of the Award. Unless a higher price is established by the Committee or
      determined by a method established by the Committee at the time the Option
      or
      SAR is granted, the Exercise Price for each Option and SAR shall be equal to
      100% of the Fair Market Value on the date of grant of the Award. 

     

    2.3 Exercise.
      An
      Option and a SAR shall be exercisable in accordance with such terms and
      conditions and during such periods as may be established by the Committee,
      before or after grant. 

     

    2.4 Payment
      of Option Exercise Price.
      The
      payment of the Exercise Price of an Option granted under this Section 2 shall
      be
      subject to the following: 

     

    (a) Subject
      to the following provisions of this subsection 2.4, the full Exercise Price
      for
      shares of Stock purchased upon the exercise of any Option shall be paid at
      the
      time of such exercise (except that, in the case of an exercise arrangement
      approved by the Committee and described in paragraph 2.4(c), payment may be
      made
      as soon as practicable after the exercise). 

     

    (b) The
      Exercise Price shall be payable (i) in cash; (ii) by tendering (by actual
      delivery of shares) shares of Stock that are acceptable to the Committee, have
      been held by the participant for at least six months, and were valued at Fair
      Market Value as of the day the shares are tendered;) (iii) in any combination
      of
      cash or shares, as determined by the Committee; or (iv) by any other method
      approved or accepted by the Committee in its sole discretion subject to such
      rules and regulations as the Committee may establish. Where expressly approved
      for the Participant by the Committee and when permitted by law (including,
      without limitation, Section 402 of the Sarbanes-Oxley Act of 2002 and Section
      409A of the Code), the Exercise Price may also be paid by a personal note,
      waiver of compensation, or cancellation of indebtedness. 

    
      
        
        

      

      
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    (c) To
      the
      extent permitted by applicable law, a Participant may elect to pay the Exercise
      Price upon the exercise of an Option by irrevocably authorizing a third party
      to
      sell shares of Stock (or a sufficient portion of the shares) acquired upon
      exercise of the Option and remit to the Company a sufficient portion of the
      sale
      proceeds to pay the entire Exercise Price and any tax withholding resulting
      from
      such exercise. 

     

    2.5 Settlement
      of Award.
      Shares
      of Stock delivered pursuant to the exercise of an Option or a SAR shall be
      subject to such conditions, restrictions and contingencies as the Committee
      may
      establish in the applicable Award Agreement. Settlement of SARs may be made
      in
      shares of Stock (valued at their Fair Market Value at the time of exercise),
      in
      cash, or in a combination thereof, as determined in the discretion of the
      Committee. The Committee, in its discretion, may impose such conditions,
      restrictions and contingencies with respect to shares of Stock acquired pursuant
      to the exercise of an Option or a SAR as the Committee determines to be
      desirable. 

     

    SECTION
      3


     

    OTHER
      STOCK AWARDS 

     

    3.1 Definitions.
      The
      term "Other Stock Awards" means any of the following: 

     

    (a) A
“Stock
      Unit” Award is the grant of a right to receive shares of Stock in the future.


     

    (b) A
      “Performance Share” Award is a grant of a right to receive shares of Stock or
      Stock Units, which is contingent on the achievement of performance or other
      objectives during a specified period. 

     

    (c) A
      “Restricted Stock” Award is a grant of shares of Stock, and a “Restricted Stock
      Unit” Award is the grant of a right to receive shares of Stock in the future,
      with such shares of Stock or right to future delivery of such shares of Stock
      subject to a risk of forfeiture or other restrictions that will lapse upon
      the
      achievement of one or more goals relating to completion of service by the
      Participant, or achievement of performance or other objectives, as determined
      by
      the Committee. 

     

    3.2 Restrictions
      on Stock Awards.
      Each
      Stock Unit Award, Restricted Stock Award, Restricted Stock Unit Award and
      Performance Share Award shall be subject to the following: 

     

    (a) Any
      such
      Award shall be subject to such conditions, restrictions and contingencies as
      the
      Committee shall determine. 

     

    
      
        
        

      

      
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    (b) The
      Committee may designate whether any such Awards being granted to any Participant
      are intended to be “performance-based compensation” as that term is used in
      Section 162(m) of the Code. Any such Awards designated as intended to be
“performance-based compensation” shall be conditioned on the achievement of one
      or more “Performance Measures.” The Performance Measures that may be used by the
      Committee for such Awards shall be based on any one or more of the following,
      as
      selected by the Committee: return on capital or increase in pretax earnings
      of
      the Company and/or one or more divisions and/or subsidiaries, return on
      shareholders’ equity of the Company, increase in earnings per share of the
      Company, sales of the Company and/or one or more divisions and/or subsidiaries,
      pretax earnings of the Company and/or one or more divisions and/or subsidiaries,
      net earnings of the Company and/or one or more divisions and/or subsidiaries,
      control of operating and/or non-operating expenses of the Company and/or one
      or
      more divisions and/or subsidiaries, margins of the Company and/or one or more
      divisions and/or subsidiaries, market price of the Company’s securities, and,
      solely for an Award not intended to constitute “performance-based compensation”
under Section 162(m) of the Code, other factors directly tied to the performance
      of the Company and/or one or more divisions and/or subsidiaries or other
      performance criteria. For Awards intended to be “performance-based
      compensation,” the grant of the Awards and the establishment of the Performance
      Measures shall be made during the period required under Code Section 162(m)
      of
      the Code and Treasury Regulations Section 1.162-27. 

     

    SECTION
      4


     

    OPERATION
      AND ADMINISTRATION 

     

    4.1 Effective
      Date; Duration.
      The
      Plan shall be effective as of the date of its approval by the shareholders
      of
      the Company (the “Effective Date”). The Plan shall have a duration of ten years
      from the Effective Date; provided that in the event of Plan termination, the
      Plan shall remain in effect as long as any Awards under it are outstanding;
      provided further, however, that no Award may be granted under the Plan on a
      date
      that is more than ten years from the Effective Date. 

     

    4.2 Awards
      Subject to Plan.
      Awards
      granted under the Plan shall be subject to the following: 

     

    (a) Subject
      to the following provisions of this subsection 4.2, the maximum number of shares
      of Stock that may be delivered to Participants and their beneficiaries under
      the
      Plan shall be equal to 1.0 million shares. 

     

    (b) To
      the
      extent any shares of Stock covered by an Award are not delivered to a
      Participant or beneficiary because the Award is forfeited or canceled, or the
      shares of Stock are not delivered because the Award is settled in cash, such
      shares shall not be deemed to have been delivered for purposes of determining
      the maximum number of shares of Stock available for delivery under the Plan.
      Moreover, if the Exercise Price of any Option granted under the Plan or the
      tax
      withholding requirements with respect to any Award granted under the Plan are
      satisfied by tendering shares of Stock to the Company (by either actual delivery
      or by attestation) or by surrendering unexercised Options, or if a SAR is
      exercised, only the number of shares of Stock issued, net of shares of Stock
      tendered, will be deemed delivered for purposes of determining the maximum
      number of shares of Stock available for issuance under the Plan. The maximum
      number of shares of Stock available for delivery under the Plan shall not be
      reduced for shares subject to plans assumed by the Company in an acquisition
      of
      an interest in another company. 

     

    
      
        
        

      

      
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    (c) Subject
      to adjustment in accordance with paragraphs 4.2(d) and 4.2(e), the following
      additional maximums are imposed under the Plan: 

     

    (i) Subject
      to the overall maximum number of shares of Stock that may be issued in
      accordance with Section 4.2(a) of the Plan, the maximum number of shares of
      Stock that may be issued pursuant to Options intended to be ISOs shall be up
      to
      1.0 million shares; 

     

    (ii) The
      maximum number of shares of Stock that may be issued in conjunction with Other
      Stock Awards granted pursuant to Section 3 shall be up to 1.0 million shares;
      

     

    (iii) The
      maximum number of shares of Stock that may be covered by Awards granted to
      any
      one individual pursuant to Section 2 (relating to Options and SARs) shall
      be 400,000
      during any fiscal year; and 

     

    (iv) No
      more
      than 400,000 shares of Stock may be subject to Stock Unit Awards, Restricted
      Stock Awards, Restricted Stock Unit Awards and Performance Share Awards that
      are
      intended to be “performance-based compensation” (as that term is used for
      purposes of Code Section 162(m)) granted to any one individual during any one
      fiscal-year period (regardless of when such shares are deliverable).


     

    (d) If
      the
      outstanding shares of Stock are changed into or exchanged for a different number
      or kind of shares or other securities of the Company by reason of any
      recapitalization, reclassification, stock split, stock dividend, combination,
      subdivision or similar transaction, or if the Company makes an extraordinary
      dividend or distribution to its shareholders (including without limitation
      to
      implement a spinoff) (each, a “Corporate Transaction”) then, subject to any
      required action by the shareholders of the Company, the number and kind of
      shares of Company stock available under the Plan or subject to any limit or
      maximum hereunder shall automatically be proportionately adjusted, with no
      action required on the part of the Committee or otherwise. Subject to any
      required action by the shareholders, the number and kind of shares covered
      by
      each outstanding Award, and the price per share in each such Award, may, at
      the
      discretion of the Committee, be proportionately adjusted for any increase or
      decrease in the number of issued shares of the Company resulting from a
      Corporate Transaction or any other increase or decrease in the number of such
      shares, or any decrease in the value of such shares, effected without receipt
      of
      consideration by the Company. Notwithstanding the foregoing, no fractional
      shares shall be issued or made subject to an Option, SAR or Stock Award in
      making the foregoing adjustments. All adjustments made by the Committee under
      this Section shall be final, conclusive and binding upon the holders of Options,
      SARs and Stock Awards. 

     

    (e) If
      the
      Company merges or consolidates with another corporation, whether or not the
      Company is a surviving corporation, or if the Company is liquidated or sells
      or
      otherwise disposes of substantially all of its assets while unexercised Options
      or other Awards remain outstanding under this Plan, (A) subject to the
      provisions of clause (C) below, after the effective date of the merger,
      consolidation, liquidation, sale or other disposition, as the case may be,
      each
      holder of an outstanding Option or other Award shall be entitled, upon exercise
      of that Option or Award or in place of it, as the case may be, to receive,
      at
      the option of the Committee and in lieu of shares of Stock, (i) the number
      and
      class or classes of shares of Stock or other securities or property to which
      the
      holder would have been entitled if, immediately prior to the merger,
      consolidation, liquidation, sale or other disposition, the holder had been
      the
      holder of record of a number of shares of Stock equal to the number of shares
      of
      Stock as to which that Option may be exercised or are subject to the Award
      or
      (ii) shares of stock of the company that is the surviving corporation in such
      merger, consolidation, liquidation, sale or other disposition having a value,
      as
      of the date of payment under Subsection 4.2(e)(i) as determined by the Committee
      in its sole discretion, equal to the value of the shares of Stock or other
      securities or property otherwise payable under Subsection 4.2(e)(i); (B) if
      Options or other Awards have not already become exercisable under Section 5
      hereof, the Board of Directors may waive any limitations set forth in or imposed
      pursuant to this Plan so that all Options or other Awards, from and after a
      date
      prior to the effective date of that merger, consolidation, liquidation, sale
      or
      other disposition, as the case may be, specified by the Board of Directors,
      shall be exercisable in full; and (C) all outstanding Options or SARs may be
      cancelled by the Board of Directors as of the effective date of any merger,
      consolidation, liquidation, sale or other disposition provided that any optionee
      or SAR holder shall have the right immediately prior to such event to exercise
      his or her Option or SAR to the extent such optionee or holder is otherwise
      able
      to do so in accordance with this Plan (including Section 5 hereof) or his
      individual Option or SAR agreement; provided, further, that any such
      cancellation pursuant to this Section 4.2(e) shall be contingent upon the
      payment to the affected Participants of an amount equal to (i) in the case
      of
      any out-of-the-money Option or SAR, cash, property or a combination thereof
      having an aggregate value equal to the value of such Option or SAR, as
      determined by the Committee or the Board of Directors, as applicable, in its
      sole discretion, and (ii) in the case of an in-the-money Option or SAR, cash,
      property or a combination thereof having an aggregate value equal to the excess
      of the value of the per-share amount of consideration paid pursuant to the
      merger, consolidation, liquidation, sale or other disposition, as the case
      may
      be, giving rise to such cancellation, over the exercise price of such Option
      or
      SAR multiplied by the number of shares of Stock subject to the Option or SAR.
      

    
      
        
        

      

      
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    (f) In
      the
      event of a change in the shares of the Company as presently constituted, which
      is limited to a change of all of its authorized shares with par value into
      the
      same number of shares with a different par value or without par value, the
      shares resulting from any such change shall be deemed to be the shares within
      the meaning of this Plan. 

     

    (g) Any
      adjustments pursuant to Section 4.2(e) shall be made by the Board or Committee,
      as the case may be, whose determination in that respect shall be final, binding
      and conclusive, regardless of whether or not any such adjustment shall have
      the
      result of causing an ISO to cease to qualify as an ISO. 

     

    (h) Except
      as
      hereinbefore expressly provided in this Section 4, a Participant shall have
      no
      rights by reason of any subdivision or consolidation of shares of stock of
      any
      class or the payment of any stock dividend or any other increase or decrease
      in
      the number of shares of stock of any class or by reason of any dissolution,
      liquidation, merger, or consolidation or spin-off of assets or stock of another
      corporation, and any issue by the Company of shares of stock of any class,
      shall
      not affect, and no adjustment by reason thereof shall be made with respect
      to,
      the number or price of shares of Stock subject to an Award, unless the Committee
      shall otherwise determine. 

     

    
      
        
        

      

      
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    (i) The
      grant
      of any Award pursuant to this Plan shall not adversely affect in any way the
      right or power of the Company (A) to make adjustments, reclassifications,
      reorganizations or changes of its capital or business structure, (B) to merge
      or
      consolidate, (C) to dissolve, liquidate or sell, or transfer all or any part
      of
      its business or assets or (D) to issue any bonds, debentures, preferred or
      other
      preference stock ahead of or affecting the Stock. If any action described in
      the
      preceding sentence results in a fractional share for any Participant under
      any
      Award hereunder, such fraction shall be completely disregarded and the
      Participant shall be entitled only to the whole number of shares resulting
      from
      such adjustment. 

     

    4.3 General
      Restrictions.
      Delivery of shares of Stock or other amounts under the Plan shall be subject
      to
      the following: 

     

    (a) Notwithstanding
      any other provision of the Plan, the Company shall have no liability to deliver
      any shares of Stock under the Plan or make any other distribution of benefits
      under the Plan unless such delivery or distribution would comply with all
      applicable laws (including, without limitation, the requirements of the
      Securities Act of 1933), and the applicable requirements of any securities
      exchange or similar entity. 

     

    (b) To
      the
      extent that the Plan provides for issuance of stock certificates to reflect
      the
      issuance of shares of Stock, the issuance may be effected on a non-certificated
      basis, to the extent not prohibited by applicable law or the applicable rules
      of
      any stock exchange. 

     

    4.4 Tax
      Withholding.
      All
      distributions under the Plan are subject to withholding of all applicable taxes,
      and the Committee may condition the delivery of any shares or other benefits
      under the Plan on satisfaction of the applicable withholding obligations. The
      Committee, in its discretion, and subject to such requirements as the Committee
      may impose prior to the occurrence of such withholding, may permit such
      withholding obligations to be satisfied through cash payment by the Participant
      or by an election to have shares withheld, but only to the extent of the minimum
      amount required to be withheld under applicable law. 

     

    4.5 Use
      of
      Shares.
      Subject
      to the overall limitation on the number of shares of Stock that may be delivered
      under the Plan, the Committee may use available shares of Stock as the form
      of
      payment for compensation, grants or rights earned or due under any other
      compensation plans or arrangements of the Company or a Subsidiary, including
      the
      plans and arrangements of the Company or a Subsidiary assumed in business
      combinations. 

     

    4.6 Dividends
      and Dividend Equivalents.
      An
      Award may provide the Participant with the right to receive dividend payments
      or
      dividend equivalent payments with respect to Stock subject to the Award (both
      before and after the Stock subject to the Award is earned, vested, or acquired),
      which payments may be either made currently or credited to an account for the
      Participant, and may be settled in cash or Stock as determined by the Committee.
      Any such settlements, and any such crediting of dividends or dividend
      equivalents or reinvestment in shares of Stock, may be subject to such
      conditions, restrictions and contingencies as the Committee shall establish.
      Notwithstanding the foregoing, the right to receive dividend payments or
      dividend equivalent payments with respect to Stock subject to an Option or
      SAR
      Award may be granted only if such right is explicitly set forth in an
      arrangement that is separate from the underlying Award and that complies with
      the requirements of Section 409A of the Code and the Treasury Regulations and
      other guidance promulgated thereunder.

     

    
      
        
        

      

      
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    4.7 Payments.
      Awards
      may be settled through cash payments, the delivery of shares of Stock, the
      granting of replacement Awards, or any combination thereof as the Committee
      shall determine. Any Award settlement may be subject to such conditions,
      restrictions and contingencies as the Committee shall determine.

     

    4.8 Transferability.
      Except
      as otherwise provided by the Committee, Awards under the Plan are not
      transferable except as designated by the Participant by will or by the laws
      of
      descent and distribution. 

     

    4.9 Form
      and Time of Elections.
      Unless
      otherwise specified herein, each election required or permitted to be made
      by
      any Participant or other person entitled to benefits under the Plan, and any
      permitted modification, or revocation thereof, shall be in writing filed with
      the Committee at such times, in such form, and subject to such restrictions
      and
      limitations, not inconsistent with the terms of the Plan, as the Committee
      shall
      require. 

     

    4.10 Agreement
      With Company.
      An
      Award under the Plan shall be subject to such terms and conditions, not
      inconsistent with the Plan, as the Committee shall, in its sole discretion,
      prescribe. The terms and conditions of any Award to any Participant shall be
      reflected in such form of written document as is determined by the Committee.
      A
      copy of such document shall be provided to the Participant, and the Committee
      may, but need not, require that the Participant sign a copy of such document.
      Such document is referred to in the Plan as an “Award Agreement” regardless of
      whether any Participant signature is required. 

     

    4.11 Action
      by Company or Subsidiary.
      Any
      action required or permitted to be taken by the Company or any Subsidiary shall
      be by resolution of its Board of Directors, or by action of one or more members
      of the Board (including a committee of the Board) who are duly authorized to
      act
      for the Board, or (except to the extent prohibited by applicable law or
      applicable rules of any stock exchange) by a duly authorized officer of such
      company. 

     

    4.12 Gender
      and Number.
      Where
      the context admits, words in any gender shall include any other gender, words
      in
      the singular shall include the plural and the plural shall include the singular.
      

     

    4.13 Limitation
      of Implied Rights. 

     

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

     

    
      
        
        

      

      
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    (b) The
      Plan
      does not constitute a contract of employment, and selection as a Participant
      will not give any participating employee the right to be retained in the employ
      of the Company or any Subsidiary, nor shall it give any non-employee any rights
      to retain any relationship with the Company, nor shall any Participant have
      any
      right or claim to any benefit under the Plan, unless such right or claim has
      been granted and specifically accrued under the terms of the Plan. Except as
      otherwise provided in the Plan, no Award under the Plan shall confer upon the
      holder thereof any rights as a shareholder of the Company prior to the date
      on
      which the individual fulfills all conditions for receipt of such rights.


     

    4.14 Evidence.
      Evidence required of anyone under the Plan may be by certificate, affidavit,
      document or other information which the person acting on it considers pertinent
      and reliable, and shall be signed, made or presented by the proper party or
      parties. 

     

    SECTION
      5


     

    COMMITTEE
      

     

    5.1 Administration.
      The
      authority to control and manage the operation and administration of the Plan
      shall be vested in a committee (the “Committee”) in accordance with this Section
      5. The Committee shall be selected by the Board, and shall consist solely of
      two
      or more members of the Board who are non-employee Directors within the meaning
      of Rule 16b-3 under the Securities Exchange Act of 1934, as amended, are outside
      Directors within the meaning of Code Section 162(m) and found to be
“independent” by the Board of Directors, in accordance with applicable NASDAQ
      standards (currently defined in Rule 4200 of the NASD Manual). If the Committee
      does not exist, or for any other reason determined by the Board, the Board
      may
      take any action under the Plan that would otherwise be the responsibility of
      the
      Committee, bearing in mind any applicable NASDAQ Shareholder approval rule.
      Unless otherwise determined by the Board, the Company’s Compensation Committee
      shall be designated as the “Committee” hereunder. 

     

    5.2 Powers
      of Committee.
      The
      Committee’s administration of the Plan shall be subject to the following:


     

    (a) Subject
      to the provisions of the Plan, the Committee will have the authority and
      discretion to select from among the Eligible Grantees those persons who shall
      receive Awards, to determine the time or times of receipt, to determine the
      types of Awards and the number of shares or other consideration covered by
      the
      Awards, to establish the terms, conditions, performance criteria, restrictions,
      and other provisions of such Awards to determine whether an Award, will be
      jointly, singly, or in combination with other Awards, or as replacements or
      alternatives to other Awards, and subject to the restrictions imposed by Section
      6, to cancel or suspend Awards, to correct any defect, supply any omission,
      or
      reconcile any inconsistency, and to waive or otherwise modify any vesting or
      other restrictions contained in the Plan or any Awards. The Committee may also,
      without obtaining shareholder approval, amend any outstanding Award to provide
      the holder thereof with additional rights or benefits of the type otherwise
      permitted by the Plan, including without limitation, extending the term thereof;
      provided, however, that in no event may the term of any Option or SAR exceed
      ten
      years; further provided, that the Committee shall not amend any Award if or
      to
      the extent that such amendment would cause such Award to be subject to taxation
      under Section 409A of the Code. 

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    (b) To
      the
      extent that the Committee determines that the restrictions imposed by the Plan
      preclude the achievement of the material purposes of the Awards in jurisdictions
      outside the United States, the Committee will have the authority and discretion
      to modify those restrictions as the Committee determines to be necessary or
      appropriate to conform to applicable requirements or practices of jurisdictions
      outside the United States. 

     

    (c) The
      Committee will have the authority and discretion to interpret the Plan, to
      establish, amend, and rescind any rules and regulations relating to the Plan,
      to
      determine the terms and provisions of any Award Agreement made pursuant to
      the
      Plan, and to make all other determinations that may be necessary or advisable
      for the administration of the Plan. 

     

    (d) Any
      interpretation of the Plan by the Committee and any decision made by it under
      the Plan is final and binding on all persons. 

     

    (e) In
      controlling and managing the operation and administration of the Plan, the
      Committee shall take action in a manner that conforms to the certificate of
      incorporation and by-laws of the Company, and applicable state corporate law.
      

     

    5.3 Delegation
      by Committee.
      Except
      to the extent prohibited by applicable law or the applicable rules of a stock
      exchange, the Committee may allocate all or any portion of its responsibilities
      and powers to any one or more of its members and may delegate all or any part
      of
      its responsibilities and powers hereunder, including without limitation, the
      power to designate Participants hereunder and determine the amount, timing
      and
      terms of Awards hereunder, to any person or persons selected by it, including
      without limitation, any executive officer of the Company. Any such allocation
      or
      delegation may be revoked by the Committee at any time. 

     

    5.4 Information
      to be Furnished to Committee.
      The
      Company and Subsidiaries shall furnish the Committee with such data and
      information as it determines may be required for it to discharge its duties.
      The
      records of the Company and Subsidiaries as to an employee’s or Participant’s
      employment, termination of employment, leave of absence, reemployment and
      compensation shall be conclusive unless the Committee determines such records
      to
      be incorrect. Participants and other persons entitled to benefits under the
      Plan
      must furnish the Committee such evidence, data or information as the Committee
      considers desirable to carry out the terms of the Plan. 

     

    SECTION
      6


     

    AMENDMENT
      AND TERMINATION 

     

    (a) The
      Plan
      may be terminated or amended by the Board of Directors at any time, except
      that
      the following actions may not be taken without shareholder approval:


     

    (i) any
      increase in the number of shares that may be delivered under the Plan (except
      by
      certain adjustments provided for under the Plan); 

     

    (ii) any
      change in the class of persons eligible to receive Awards under the Plan;


     

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    (iii) any
      change in the requirements of Section 2.2 hereof regarding the Exercise Price;
      

     

    (iv) any
      other
      amendment to the Plan that would require approval of the Company’s shareholders
      under applicable law, regulation or rule. 

     

    Notwithstanding
      any of the foregoing, adjustments pursuant to paragraph 4.2(d) shall not be
      subject to the foregoing limitations of this Section 6. 

     

    (b) Awards
      may not be granted under the Plan after the date of termination of the Plan,
      but
      Awards granted prior to that date shall continue to be exercisable or vest
      according to their terms. 

     

    (c) The
      Committee may not, without first obtaining shareholder approval, “reprice”
outstanding Options or SARs as such term is used by the SEC or otherwise lower
      their exercise or base prices, or make any material amendment to the Plan in
      violation of NASDAQ requirements. 

     

    SECTION
      7


     

    CHANGE
      IN
      CONTROL 

     

    Subject
      to the provisions of paragraph 4.2(d) (relating to the adjustment of shares),
      and except as otherwise provided in the Plan or the Award Agreement reflecting
      the applicable Award, upon the occurrence of a Change in Control as defined
      in
      Section 8: 

     

    (a) All
      outstanding Options (regardless of whether in tandem with SARs) shall become
      fully exercisable. 

     

    (b) All
      outstanding SARs (regardless of whether in tandem with Options) shall become
      fully exercisable. 

     

    (c) All
      Stock
      Units, Restricted Stock, Restricted Stock Units, and Performance Shares shall
      become fully vested. 

     

    SECTION
      8


     

    DEFINED
      TERMS 

     

    In
      addition to the other definitions contained herein, the following definitions
      shall apply: 

     

    (a) Affiliated
      Company.
      The
      term “Affiliated Company” means any company controlled by, controlling or under
      common control with the Company. 

     

    (b) Award.
      The
      term “Award” shall mean any award or benefit granted under the Plan, including,
      without limitation, the grant of Options, SARs, Stock Unit Awards, Restricted
      Stock Awards, Restricted Stock Unit Awards and Performance Share Awards.


     

    (c) Board.
      The
      term “Board” shall mean the Board of Directors of the Company. 

     

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    (d) Change
      in Control.
      The
      term “Change in Control” means a change in the beneficial ownership of the
      Company’s voting stock or a change in the composition of the Board which occurs
      as follows: 

     

    (i) Any
      “person,” including a “syndication” or “group” as those terms are used in
      Section 13(d)(3) of the Securities Exchange Act of 1934, is or becomes the
      beneficial owner, directly or indirectly, of securities of the Company
      representing 40% or more of the combined voting power of the Company’s then
      outstanding “Voting Securities,” which is any security which ordinarily
      possesses the power to vote in the election of the Board of Directors of a
      corporation without the happening of any precondition or contingency;


     

    (ii) The
      Company is merged or consolidated with another corporation and immediately
      after
      giving effect to the merger or consolidation less than 80% of the outstanding
      Voting Securities of the surviving or resulting entity are then beneficially
      owned in the aggregate by (x) the shareholders of the Company in their
      capacities as such immediately prior to such merger or consolidation, or (y)
      if
      a record date has been set to determine the shareholders of the Company entitled
      to vote on such merger or consolidation, the shareholders of the Company as
      of
      such record date; 

    


    (iii) If
      at any
      time the following do not constitute a majority of the Board of Directors of
      the
      Company (or any successor entity referred to in clause (ii) above): Persons
      who,
      prior to their election as a Director of the Company (or successor entity if
      applicable) were nominated, recommended or endorsed by a formal resolution
      of
      the Board of Directors of the Company or the Nominating and Corporate Governance
      Committee thereof; or 

    


    (iv) The
      Company transfers substantially all of its assets to another corporation which
      is a less than 80% owned subsidiary of the Company.

     

    
      Notwithstanding
        the foregoing provisions of this Section 8(d), an event that would otherwise
        affect an Other Stock Award that is subject to the provisions of Section
        409A of
        the Code shall only constitute a Change in Control if such event constitutes
        a
        change in the ownership or effective control of the Company or a change in
        the
        ownership of a substantial portion of the assets of the Company within the
        meaning of Section 409A(a)(2)(A)(v) of the Code.

       

    

    (e) Code.
      The
      term “Code” means the Internal Revenue Code of 1986, as amended. A reference to
      any provision of the Code shall include reference to any successor provision
      of
      the Code. 

     

    (f) Eligible
      Grantee.
      With
      respect to ISOs, the term “Eligible Grantee” shall mean any employee of the
      Company or a Subsidiary. With respect to Awards other than ISOs, the term
“Eligible Grantee” shall mean any employee, officer of director of the Company
      or a Subsidiary, and consultants, independent contractors and advisors to the
      Company or any Subsidiary, provided that such consultants, contractors and
      advisors provide bona fide services none of which are in connection with the
      offer or sale of securities in a capital-raising transaction. An Award may
      be
      granted to an employee, in connection with hiring, retention or otherwise,
      prior
      to the date the employee first performs services for the Company or the
      Subsidiaries, provided that such Award shall not become vested prior to the
      date
      the employee first performs such services. 

    


    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

    (g) Fair
      Market Value.
      For
      purposes of determining the “Fair Market Value” of a share of Stock as of any
      date, shall be the value of a share of the Company Common Stock determined
      as
      follows:

    


    (i) if
      such
      Common Stock is then quoted on the Nasdaq National 

    Market,
      its closing price on the Nasdaq National Market on the date of determination
      as
      reported in The Wall Street Journal; 

    


    (ii) if
      such
      Common Stock is publicly traded and is then listed on a national securities
      exchange, its closing price on the date of determination on the principal
      national securities exchange on which the Common Stock is listed or admitted
      to
      trading as reported in The Wall Street Journal;

    


    (iii) if
      such
      Common Stock is publicly traded but is not quoted on the Nasdaq National Market
      nor listed or admitted to trading on a national securities exchange, the average
      of the closing bid and asked prices on the date of determination as reported
      by
      The Wall Street Journal (or, if not so reported, as otherwise reported by any
      newspaper or other source as the Board may determine); or 

    


    (iv) if
      none
      of the foregoing is applicable, by the Committee in good faith provided that
      such determination comports with Section 409A of the Code and the Treasury
      Regulations and other guidance promulgated thereunder.

     

    (h) Individual
      Agreement.
      “Individual Agreement” means a written employment or similar agreement between a
      Participant and the Company or one of its Subsidiaries or a written Award grant
      agreement under the Plan. 

     

    (i) Subsidiaries.
      With
      respect to ISOs, the term “Subsidiary” means any present or future subsidiary
      corporation of the Company within the meaning of Section 424(f) of the Code,
      and
      with respect to non-ISO Awards, the term “Subsidiary” means any present or
      future business venture designated by the Committee in which the Company has
      a
      significant interest, as determined in the discretion of the Committee, provided
      that such venture would be considered, for purposes of Section 409A of the
      Code
      and the Treasury Regulations and other guidance promulgated thereunder, a member
      of the “service recipient” group to which the Company belongs.

     

    (j) Stock.
      The
      term “Stock” shall mean shares of common stock of the Company. 

     

    SECTION
      9


     

    GOVERNING
      LAW 

     

    This
      Plan
      shall be governed by, and construed in accordance with, the laws of the State
      of
      Georgia, except to the extent that the Minnesota Business Corporation Act shall
      be applicable. 

     

    
      
        
        

      

      
        13