Blueprint





 



Exhibit 10.1







PALATIN TECHNOLOGIES, INC.

 



2011 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED

 



As Approved by the Company’s Stockholders on
June 8, 2017

 

1.
Establishment, Purpose,
Duration.

 

a. Establishment.
Palatin Technologies, Inc. (the “Company”) established
an equity compensation plan known as the Palatin Technologies, Inc.
2011 Stock Incentive Plan (the “Plan”) effective as of
March 11, 2011 (the “Effective Date”). The
Company’s stockholders originally approved the Plan on May
11, 2011 (the “Approval Date”). The Plan was amended
and restated as of March 3, 2015 and amended as of April 1, 2016
and re-approved by the Company’s stockholders on June 9,
2016. On March 30, 2017, the Board approved the amendment and
restated of the Plan as set forth herein, subject to approval by
the Company’s stockholders. Definitions of capitalized terms
used in the Plan are contained in Section 2 of the
Plan.

 

b. Purpose. The purpose of the
Plan is to attract and retain Directors, Consultants, officers and
other key employees of the Company and its Subsidiaries and to
provide to such persons incentives and rewards for superior
performance.

 

c. Duration. No Award may be
granted under the Plan after March 10, 2025, or such earlier date
as the Board shall determine. The Plan will remain in effect with
respect to outstanding Awards until no Awards remain
outstanding.

 

d. Prior Plans. The Palatin
Technologies, Inc. 2005 Stock Plan, as amended (the “Prior
Plan”) terminated in its entirety effective on the Approval
Date; provided that all outstanding awards under the Prior Plan as
of the Approval Date remain outstanding and shall be administered
and settled in accordance with the provisions of the Prior
Plan.

 

2.
Definitions. As
used in the Plan, the following definitions shall
apply.

 


“Applicable
Laws” means the applicable requirements relating to the
administration of equity-based compensation plans under U.S. state
corporate laws, U.S. federal and state securities laws, the Code,
the rules of any stock exchange or quotation system on which the
Shares are listed or quoted and the applicable laws of any other
country or jurisdiction where Awards are granted under the
Plan.

 


“Approval
Date” has the meaning given such term in Section
1(a).

 


“Award”
means a Nonqualified Stock Option, Incentive Stock Option, Stock
Appreciation Right, Restricted Shares Award, Restricted Share Unit,
Other Share-Based Award, or Cash-Based Award granted pursuant to
the terms and conditions of the Plan.

 


“Award
Agreement” means either: (i) an agreement, either in written
or electronic format, entered into by the Company and a Participant
setting forth the terms and provisions applicable to an Award
granted under the Plan; or (ii) a statement, either in written or
electronic format, issued by the Company to a Participant
describing the terms and provisions of such Award, which need not
be signed by the Participant.

 




 








 






 


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

 


“Cash-Based
Award” shall mean a cash Award granted pursuant to Section 12
of the Plan.

 


“Cause”
as a reason for a termination of a Participant’s employment
shall have the meaning assigned such term, if any, in the
employment agreement, if any, between the Participant and the
Company or a Subsidiary, or if none, under a severance plan or
arrangement maintained by the Company or a Subsidiary that applies
to the Participant on the date of termination. If the Participant
is not a party to an employment agreement with the Company or a
Subsidiary in which such term is defined or if during the
applicable severance protection period, the Participant is not a
participant in any severance plan or arrangement maintained by the
Company or a Subsidiary, then unless otherwise defined in the
applicable Award Agreement, then the term “Cause” shall
mean: (a) (i) the Participant’s material breach of, or
habitual neglect or failure to perform the material aspects of his
or her duties; (ii) the Participant’s material failure to
follow the reasonable directives or policies established by or at
the direction of the board; or (iii) the Participant’s
engaging in conduct that is materially detrimental to the interests
of the Company such that the Company sustains a material loss or
injury as a result thereof, provided that the breach or failure of
performance by the Participant under subparagraphs (i) through
(iii) hereof is not cured, to the extent cure is possible, within
ten (10) days of the delivery to the Participant of written notice
thereof; (b) the willful breach by the Participant of any provision
of any confidentiality, invention and non-disclosure,
non-competition or similar agreement between the Participant and
the Company; or (c) the conviction of the Participant of, or the
entry of a pleading of guilty or nolo contendere by the Participant
to, any crime involving moral turpitude or any felony.

 


“Change
in Control” means the occurrence of any of the following
events: (a) Any “Person,” as such term is used in
Sections 13(d) and 14(d) of the Exchange Act (other than the
Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportion as their ownership of stock of
the Company) becoming the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than 50%
of the combined voting power of the Company’s then
outstanding securities; (b) the date the individuals who, during
any twelve month period, constitute the board (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director
during the twelve month period whose election, or nomination for
election by the Company’s stockholders, was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election
of the directors of the Company, as such terms are used in Rule
14a-11 of Regulation 14A under the Exchange Act) shall be, for
purposes of this Agreement, considered as though such person were a
member of the Incumbent Board; (c) the consummation of a merger or
consolidation of the Company approved by the stockholders of the
Company with any other corporation, other than (i) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) 50% or more of the
combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no Person acquires more than 50% of the
combined voting power of the Company’s then outstanding
securities; or (d) a sale of all or substantially all of the assets
of the Company.

 




 

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“Code”
means the Internal Revenue Code of 1986, as amended.

 


“Committee”
means the Compensation Committee of the Board or such other
committee or subcommittee of the Board as may be duly appointed to
administer the Plan and having such powers in each instance as
shall be specified by the Board. To the extent required by
Applicable Laws, the Committee shall consist of two or more members
of the Board, each of whom is a “non-employee director”
within the meaning of Rule 16b-3 promulgated under the Exchange
Act, an “outside director” within the meaning of
regulations promulgated under Section 162(m) of the Code, and an
“independent director” within the meaning of applicable
rules of any securities exchange upon which Shares are
listed.

 


“Company”
has the meaning given such term in Section 1(a) and any successor
thereto.

 


“Consultant”
means an independent contractor that (a) performs services for the
Company or a Subsidiary in a capacity other than as an Employee or
Director and (b) qualifies as a consultant under the applicable
rules of the SEC for registration of shares on a Form S-8
Registration Statement.

 


“Date
of Grant” means the date as of which an Award is determined
to be effective and designated in a resolution by the Committee and
is granted pursuant to the Plan. The Date of Grant shall not be
earlier than the date of the resolution and action therein by the
Committee. In no event shall the Date of Grant be earlier than the
Effective Date.

 


“Detrimental
Activity” except as may be otherwise specified in a
Participant’s Award Agreement, means: (a) Engaging in any
activity of competition, as specified in any covenant not to
compete set forth in any agreement between a Participant and the
Company or a Subsidiary, including, but not limited to, the
Participant’s Award Agreement or any severance plan
maintained by the Company or a Subsidiary that covers the
Participant, during the period of restriction specified in the
agreement or plan prohibiting the Participant from engaging in such
activity; (b) Engaging in any activity of solicitation, as
specified in any covenant not to solicit set forth in any agreement
between a Participant and the Company or a Subsidiary, including,
but not limited to, the Participant’s Award Agreement or any
severance plan maintained by the Company or a Subsidiary that
covers the Participant, during the period of restriction specified
in the agreement or plan prohibiting the Participant from engaging
in such activity; (c) The disclosure of confidential information to
anyone outside the Company or a Subsidiary, or the use in other
than the Company’s or a Subsidiary’s business in
violation of any covenant not to disclose set forth in any
agreement between a Participant and the Company or a Subsidiary,
including, but not limited to, the Participant’s Award
Agreement or any severance plan maintained by the Company or a
Subsidiary that covers the Participant, during the period of
restriction specified in the agreement or plan prohibiting the
Participant from engaging in such activity; (d) The violation of
any development and inventions, ownership of works, or similar
provision set forth in any agreement between a Participant and the
Company or a Subsidiary, including, but not limited to, the
Participant’s Award Agreement or any severance plan
maintained by the Company or a Subsidiary that covers the
Participant; (e) Participant’s commission of any act of
fraud, misappropriation or embezzlement against or in connection
with the Company or any of its Subsidiaries or their respective
businesses or operations; or (f) a conviction, guilty plea or plea
of nolo contendere of Participant for any crime involving
dishonesty or for any felony.

 




 

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“Director”
means any individual who is a member of the Board who is not an
Employee.

 


“Effective
Date” has the meaning given such term in Section
1(a).

 


“Employee”
means any employee of the Company or a Subsidiary; provided,
however, that for purposes of determining whether any person may be
a Participant for purposes of any grant of Incentive Stock Options,
the term “Employee” has the meaning given to such term
in Section 3401(c) of the Code, as interpreted by the regulations
thereunder and Applicable Law.

 


“Exchange
Act” means the Securities Exchange Act of 1934 and the rules
and regulations thereunder, as such law, rules and regulations may
be amended from time to time.

 


“Fair
Market Value” means the value of one Share on any relevant
date, determined under the following rules: (a) the closing sale
price per Share on that date as reported on the principal exchange
or national market system on which Shares are then trading, or if
there are no sales on that date, on the next preceding trading day
during which a sale occurred; (b) if the Shares are not reported on
a principal exchange or national market system, the average of the
closing bid and asked prices last quoted on that date by an
established quotation service for over-the-counter securities; or
(c) if neither (a) nor (b) applies, (i) with respect to Stock
Options, Stock Appreciation Rights and any Award of stock rights
that is subject to Section 409A of the Code, the value as
determined by the Committee through the reasonable application of a
reasonable valuation method, taking into account all information
material to the value of the Company, within the meaning of Section
409A of the Code, and (ii) with respect to all other Awards, the
fair market value as determined by the Committee in good
faith.

 


“Incentive
Stock Option” or “ISO” means a Stock Option that
is designated as an Incentive Stock Option and that is intended to
meet the requirements of Section 422 of the Code.

 


“Nonqualified
Stock Option” means a Stock Option that is not intended to
meet the requirements of Section 422 of the Code or otherwise does
not meet such requirements.

 


“Other
Share-Based Award” means an equity-based or equity-related
Award not otherwise described by the terms of the Plan, granted in
accordance with the terms and conditions set forth in Section
10.

 


“Participant”
means any eligible individual as set forth in Section 5 who holds
one or more outstanding Awards.

 


“Performance-Based
Exception” means the performance-based exception from the tax
deductibility limitations of Section 162(m) of the
Code.

 


“Performance
Objectives” means the measurable performance objective or
objectives established by the Committee pursuant to the Plan. Any
Performance Objectives may relate to the performance of the Company
or one or more of its Subsidiaries, divisions, departments, units,
functions, partnerships, joint ventures or minority investments,
product lines or products, or the performance of the individual
Participant, and may include, without limitation, the Performance
Objectives set forth in Section 14(b). The Performance Objectives
may be made relative to the performance of a group of comparable
companies, or published or special index that the Committee, in its
sole discretion, deems appropriate, or the Company may select
Performance Objectives as compared to various stock market indices.
Performance Objectives may be stated as a combination of the listed
factors.

 




 

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“Plan”
means this Palatin Technologies, Inc. 2011 Stock Incentive Plan, as
amended from time to time.

 


“Prior
Plan” has the meaning given such term in Section
1(d).

 


“Restricted
Shares” means Shares granted or sold pursuant to Section 8 as
to which neither the substantial risk of forfeiture nor the
prohibition on transfers referred to in such Section 8 has
expired.

 


“Restricted
Share Unit” means a grant or sale of the right to receive
Shares or cash at the end of a specified restricted period made
pursuant to Section 9.

 


“SEC”
means the United States Securities and Exchange
Commission.

 


“Share”
means a share of common stock, par value $.01, of the Company, or
any security into which such Share may be changed by reason of any
transaction or event of the type referred to in Section
16.

 


“Stock
Appreciation Right” means a right granted pursuant to Section
7.

 


“Stock
Option” means a right to purchase a Share granted to a
Participant under the Plan in accordance with the terms and
conditions set forth in Section 6. Stock Options may be either
Incentive Stock Options or Nonqualified Stock Options.

 


“Subsidiary”
means: (a) with respect to an Incentive Stock Option, a
“subsidiary corporation” as defined under Section
424(f) of the Code; and (b) for all other purposes under the Plan,
any corporation or other entity in which the Company owns, directly
or indirectly, a proprietary interest of more than fifty percent
(50%) by reason of stock ownership or otherwise.

 


“Ten
Percent Stockholder” shall mean any Participant who owns more
than 10% of the combined voting power of all classes of stock of
the Company, within the meaning of Section 422 of the
Code.

 

3.
Shares Available Under the
Plan.

 

a. Shares
Available for Awards. The maximum number of Shares that may
be issued or delivered pursuant to Awards under the Plan shall be
22,500,000, plus the number of Shares that, on the Approval Date,
were available to be granted under the Prior Plan but which were
not then subject to outstanding awards under the Prior Plan, all of
which may be granted with respect to Incentive Stock Options.
Shares issued or delivered pursuant to an Award may be authorized
but unissued Shares, treasury Shares, including Shares purchased in
the open market, or a combination of the foregoing. The aggregate
number of Shares available for issuance or delivery under the Plan
shall be subject to adjustment as provided in Section
16.

 




 

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b. Share Usage. In addition to the
number of Shares provided for in Section 3(a), the following Shares
shall be available for Awards under the Plan: (i) Shares covered by
an Award that expires or is forfeited, canceled, surrendered or
otherwise terminated without the issuance of such Shares; (ii)
Shares covered by an Award that is settled only in cash; (iii)
Shares granted through the assumption of, or in substitution for,
outstanding awards granted by a company to individuals who become
Employees, Consultants or Directors as the result of a merger,
consolidation, acquisition or other corporate transaction involving
such company and the Company or any of its Affiliates (except as
may be required by reason of Section 422 of the Code or the rules
and regulations of any stock exchange or other trading market on
which the Shares are listed); (iv) any Shares subject to
outstanding awards under the Prior Plans as of the Approval Date
that on or after the Approval Date are forfeited, canceled,
surrendered or otherwise terminated without the issuance of such
Shares; and (v) any Shares from awards exercised for or settled in
vested and nonforfeitable Shares that are later returned to the
Company pursuant to any compensation recoupment policy, provision
or agreement. Notwithstanding the foregoing, the following Shares
issued or delivered under this Plan shall not again be available
for grant as described above: Shares tendered in payment of the
exercise price of a Stock Option, Shares withheld by the Company or
any Subsidiary to satisfy a tax withholding obligation, and Shares
that are repurchased by the Company with Stock Option proceeds.
Without limiting the foregoing, with respect to any Stock
Appreciation Right that is settled in Shares, the full number of
Shares subject to the Award shall count against the number of
Shares available for Awards under the Plan regardless of the number
of Shares used to settle the Stock Appreciation Right upon
exercise.

 

c. Per Participant
Limits.

 

(i) Subject to
adjustment as provided in Section 16 of the Plan, the following
limits shall apply with respect to Awards that are intended to
qualify for the Performance-Based Exception: (A) the maximum
aggregate number of Shares that may be subject to Stock Options or
Stock Appreciation Rights granted in any calendar year to any one
Participant shall be 750,000 Shares; (B) the maximum aggregate
number of Restricted Shares and Shares issuable or deliverable
under Restricted Share Units granted in any calendar year to any
one Participant shall be 750,000 Shares; (C) the maximum aggregate
compensation that can be paid pursuant to Cash-Based Awards or
Other Share-Based Awards granted in any calendar year to any one
Participant shall be $750,000 or a number of Shares having an
aggregate Fair Market Value not in excess of such amount; and (D)
the maximum dividend equivalents that may be paid in any calendar
year to any one Participant shall be $100,000 or a number of Shares
having an aggregate Fair Market Value not in excess of such
amount.

 

(ii) Notwithstanding
any other provision of the Plan to the contrary, the aggregate
grant date fair value (determined as of the applicable Date(s) of
Grant in accordance with applicable financial accounting rules) of
all Awards granted to any Director during any single calendar year,
taken together with any cash fees paid to such person during such
calendar year, shall not exceed $350,000.

 




 

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4.
Administration of the
Plan.

 

a. In
General. The Plan shall be administered by the Committee.
Except as otherwise provided by the Board, the Committee shall have
full and final authority in its discretion to take all actions
determined by the Committee to be necessary in the administration
of the Plan, including, without limitation, discretion to: select
Award recipients; determine the sizes and types of Awards;
determine the terms and conditions of Awards in a manner consistent
with the Plan; grant waivers of terms, conditions, restrictions and
limitations applicable to any Award, or accelerate the vesting or
exercisability of any Award, in a manner consistent with the Plan;
construe and interpret the Plan and any Award Agreement or other
agreement or instrument entered into under the Plan; establish,
amend, or waive rules and regulations for the Plan’s
administration; and take such other action, not inconsistent with
the terms of the Plan, as the Committee deems appropriate. To the
extent permitted by Applicable Laws, the Committee may, in its
discretion, delegate to one or more Directors or Employees any of
the Committee’s authority under the Plan. The acts of any
such delegates shall be treated hereunder as acts of the Committee
with respect to any matters so delegated.

 

b. Determinations. The Committee
shall have no obligation to treat Participants or eligible
Participants uniformly, and the Committee may make determinations
under the Plan selectively among Participants who receive, or
Employees, Consultants or Directors who are eligible to receive,
Awards (whether or not such Participants or eligible Employees,
Consultants or Directors are similarly situated). All
determinations and decisions made by the Committee pursuant to the
provisions of the Plan and all related orders and resolutions of
the Committee shall be final, conclusive and binding on all
persons, including the Company, its Subsidiaries, its stockholders,
Directors, Consultants, Employees, Participants and their estates
and beneficiaries.

 

c. Authority of the Board. The
Board may reserve to itself any or all of the authority or
responsibility of the Committee under the Plan or may act as the
administrator of the Plan for any and all purposes. To the extent
the Board has reserved any such authority or responsibility or
during any time that the Board is acting as administrator of the
Plan, it shall have all the powers of the Committee hereunder, and
any reference herein to the Committee (other than in this Section
4(c)) shall include the Board. To the extent that any action of the
Board under the Plan conflicts with any action taken by the
Committee, the action of the Board shall control.

 

5. Eligibility and
Participation. Each
Employee, Consultant and Director is eligible to participate in the
Plan. Subject to the provisions of the Plan, the Committee may,
from time to time, select from all eligible Employees, Consultants
and Directors those to whom Awards shall be granted and shall
determine, in its sole discretion, the nature of any and all terms
permissible by Applicable Law and the amount of each
Award.

 

6. Stock
Options. Subject to
the terms and conditions of the Plan, Stock Options may be granted
to Participants in such number, and upon such terms and conditions,
as shall be determined by the Committee in its sole
discretion.

 




 

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a. Award Agreement. Each Stock
Option shall be evidenced by an Award Agreement that shall specify
the exercise price, the term of the Stock Option, the number of
Shares covered by the Stock Option, the conditions upon which the
Stock Option shall become vested and exercisable and such other
terms and conditions as the Committee shall determine and which are
not inconsistent with the terms and conditions of the Plan. The
Award Agreement also shall specify whether the Stock Option is
intended to be an Incentive Stock Option or a Nonqualified Stock
Option.

 

b. Exercise Price. The exercise
price per Share of an Option shall be determined by the Committee
at the time the Stock Option is granted and shall be specified in
the related Award Agreement; provided, however, that in no event
shall the exercise price per Share of any Option be less than one
hundred percent (100%) of the Fair Market Value of a Share on the
Date of Grant.

 

c. Term. The term of an Option
shall be determined by the Committee and set forth in the related
Award Agreement; provided, however, that in no event shall the term
of any Option exceed ten (10) years from its Date of
Grant.

 

d. Exercisability. Stock Options
shall become exercisable at such times and upon such terms and
conditions as shall be determined by the Committee and set forth in
the related Award Agreement. Such terms and conditions may include,
without limitation, the satisfaction of (a) performance goals based
on one or more Performance Objectives, and (b) time-based vesting
requirements.

 

e. Exercise of Options. Except as
otherwise provided in the Plan or in a related Award Agreement, a
Stock Option may be exercised for all or any portion of the Shares
for which it is then exercisable. A Stock Option shall be exercised
by the delivery of a notice of exercise to the Company or its
designee in a form specified by the Company which sets forth the
number of Shares with respect to which the Stock Option is to be
exercised and full payment of the exercise price for such Shares.
The exercise price of a Stock Option may be paid: (i) in cash or
its equivalent; (ii) by tendering (either by actual delivery or
attestation) previously acquired Shares having an aggregate Fair
Market Value at the time of exercise equal to the aggregate
exercise price; (iii) by a cashless exercise (including by
withholding Shares deliverable upon exercise and through a
broker-assisted arrangement to the extent permitted by Applicable
Law); (iv) by a combination of the methods described in clauses
(i), (ii) and/or (iii); or (v) though any other method approved by
the Committee in its sole discretion. As soon as practicable after
receipt of the notification of exercise and full payment of the
exercise price, the Company shall cause the appropriate number of
Shares to be issued to the Participant.

 

f. Special Rules Applicable to Incentive
Stock Options. Notwithstanding any other provision in the
Plan to the contrary:

 

(i) Incentive Stock
Options may be granted only to Employees of the Company and its
Subsidiaries. The terms and conditions of Incentive Stock Options
shall be subject to and comply with the requirements of Section 422
of the Code.

 




 

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(ii) To
the extent that the aggregate Fair Market Value of the Shares
(determined as of the Date of Grant) with respect to which an
Incentive Stock Option is exercisable for the first time by any
Participant during any calendar year (under all plans of the
Company and its Subsidiaries) is greater than $100,000 (or such
other amount specified in Section 422 of the Code), as calculated
under Section 422 of the Code, then the Stock Option shall be
treated as a Nonqualified Stock Option.

 

(iii) No
Incentive Stock Option shall be granted to any Participant who, on
the Date of Grant, is a Ten Percent Stockholder, unless (x) the
exercise price per Share of such Incentive Stock Option is at least
one hundred and ten percent (110%) of the Fair Market Value of a
Share on the Date of Grant, and (y) the term of such Incentive
Stock Option shall not exceed five (5) years from the Date of
Grant.

 

7. Stock Appreciation
Rights. Subject to
the terms and conditions of the Plan, Stock Appreciation Rights may
be granted to Participants in such number, and upon such terms and
conditions, as shall be determined by the Committee in its sole
discretion.

 

a. Award
Agreement. Each Stock Appreciation Right shall be evidenced
by an Award Agreement that shall specify the exercise price, the
term of the Stock Appreciation Right, the number of Shares covered
by the Stock Appreciation Right, the conditions upon which the
Stock Appreciation Right shall become vested and exercisable and
such other terms and conditions as the Committee shall determine
and which are not inconsistent with the terms and conditions of the
Plan.

 

b. Exercise Price. The exercise
price per Share of a Stock Appreciation Right shall be determined
by the Committee at the time the Stock Appreciation Right is
granted and shall be specified in the related Award Agreement;
provided, however, that in no event shall the exercise price per
Share of any Stock Appreciation Right be less than one hundred
percent (100%) of the Fair Market Value of a Share on the Date of
Grant.

 

c. Term. The term of a Stock
Appreciation Right shall be determined by the Committee and set
forth in the related Award Agreement; provided however, that in no
event shall the term of any Stock Appreciation Right exceed ten
(10) years from its Date of Grant.

 

d. Exercisability of Stock Appreciation
Rights. A Stock Appreciation Right shall become exercisable
at such times and upon such terms and conditions as may be
determined by the Committee and set forth in the related Award
Agreement. Such terms and conditions may include, without
limitation, the satisfaction of (i) performance goals based on one
or more Performance Objectives, and (ii) time-based vesting
requirements.

 

e. Exercise of Stock Appreciation
Rights. Except as otherwise provided in the Plan or in a
related Award Agreement, a Stock Appreciation Right may be
exercised for all or any portion of the Shares for which it is then
exercisable. A Stock Appreciation Right shall be exercised by the
delivery of a notice of exercise to the Company or its designee in
a form specified by the Company which sets forth the number of
Shares with respect to which the Stock Appreciation Right is to be
exercised. Upon exercise, a Stock Appreciation Right shall entitle
a Participant to an amount equal to (a) the excess of (i) the Fair
Market Value of a Share on the exercise date over (ii) the exercise
price per Share, multiplied by (b) the number of Shares with
respect to which the Stock Appreciation Right is exercised. A Stock
Appreciation Right may be settled in whole Shares, cash or a
combination thereof, as specified by the Committee in the related
Award Agreement.

 




 

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8. Restricted
Shares. Subject to
the terms and conditions of the Plan, Restricted Shares may be
granted or sold to Participants in such number, and upon such terms
and conditions, as shall be determined by the Committee in its sole
discretion.

 

a. Award
Agreement. Each Restricted Shares Award shall be evidenced
by an Award Agreement that shall specify the number of Restricted
Shares, the restricted period(s) applicable to the Restricted
Shares, the conditions upon which the restrictions on the
Restricted Shares will lapse and such other terms and conditions as
the Committee shall determine and which are not inconsistent with
the terms and conditions of the Plan.

 

b. Terms, Conditions and
Restrictions. The Committee shall impose such other terms,
conditions and/or restrictions on any Restricted Shares as it may
deem advisable, including, without limitation, a requirement that
the Participant pay a purchase price for each Restricted Share,
restrictions based on the achievement of specific Performance
Objectives, time-based restrictions or holding requirements or sale
restrictions placed on the Shares by the Company upon vesting of
such Restricted Shares. Unless otherwise provided in the related
Award Agreement or required by Applicable Law, the restrictions
imposed on Restricted Shares shall lapse upon the expiration or
termination of the applicable restricted period and the
satisfaction of any other applicable terms and
conditions.

 

c. Custody of Certificates. To the
extent deemed appropriate by the Committee, the Company may retain
the certificates representing Restricted Shares in the
Company’s possession until such time as all terms, conditions
and/or restrictions applicable to such Shares have been satisfied
or lapse.

 

d. Rights Associated with Restricted
Shares during Restricted Period. During any restricted
period applicable to Restricted Shares: (i) the Restricted Shares
may not be sold, transferred, pledged, assigned or otherwise
alienated or hypothecated; (ii) unless otherwise provided in the
related Award Agreement, the Participant shall be entitled to
exercise full voting rights associated with such Restricted Shares;
and (iii) the Participant shall be entitled to all dividends and
other distributions paid with respect to such Restricted Shares
during the restricted period; provided, however, that any dividends
or other distributions with respect to unvested Restricted Shares
shall be accumulated or deemed reinvested in additional Restricted
Shares until such Award is earned and vested, and shall be subject
to the same terms and conditions as the original Award (including
the satisfaction of service-based vesting conditions and the
achievement of any Performance Objectives).

 

9. Restricted Share
Units. Subject to the
terms and conditions of the Plan, Restricted Share Units may be
granted or sold to Participants in such number, and upon such terms
and conditions, as shall be determined by the Committee in its sole
discretion.

 

a. Award
Agreement. Each Restricted Share Unit shall be evidenced by
an Award Agreement that shall specify the number of units, the
restricted period(s) applicable to the Restricted Share Units, the
conditions upon which the restrictions on the Restricted Share
Units will lapse, the time and method of payment of the Restricted
Share Units, and such other terms and conditions as the Committee
shall determine and which are not inconsistent with the terms and
conditions of the Plan.

 




 

10








 






 

b. Terms, Conditions and
Restrictions. The Committee shall impose such other terms,
conditions and/or restrictions on any Restricted Share Units as it
may deem advisable, including, without limitation, a requirement
that the Participant pay a purchase price for each Restricted Share
Unit, restrictions based on the achievement of specific Performance
Objectives or time-based restrictions or holding
requirements.

 

c. Form of Settlement. Restricted
Share Units may be settled in whole Shares, Restricted Shares, cash
or a combination thereof, as specified by the Committee in the
related Award Agreement.

 

10. Other Share-Based
Awards. Subject to
the terms and conditions of the Plan, Other Share-Based Awards may
be granted to Participants in such number, and upon such terms and
conditions, as shall be determined by the Committee in its sole
discretion. Other Share-Based Awards are Awards that are valued in
whole or in part by reference to, or otherwise based on the Fair
Market Value of, Shares, and shall be in such form as the Committee
shall determine, including without limitation, unrestricted Shares
or time-based or performance-based units that are settled in Shares
and/or cash.

 

a. Award
Agreement. Each Other Share-Based Award shall be evidenced
by an Award Agreement that shall specify the terms and conditions
upon which the Other Share-Based Award shall become vested, if
applicable, the time and method of settlement, the form of
settlement and such other terms and conditions as the Committee
shall determine and which are not inconsistent with the terms and
conditions of the Plan.

 

b. Form of Settlement. An Other
Share-Based Award may be settled in whole Shares, Restricted
Shares, cash or a combination thereof, as specified by the
Committee in the related Award Agreement.

 

11. Dividend
Equivalents. At the
discretion of the Committee, Awards granted pursuant to the Plan,
other than awards of Stock Options or Stock Appreciation Rights,
may provide Participants with the right to receive dividend
equivalents, which may be credited to an account for the
Participants, and may be settled in cash and/or Shares, as
determined by the Committee in its sole discretion; provided,
however, that any such dividend equivalents with respect to any
unvested Award shall be accumulated or deemed reinvested until such
Award is earned and vested, and shall be subject to the same terms
and conditions as the original Award (including the satisfaction of
service-based vesting conditions and the achievement of any
Performance Objectives). No dividend equivalents shall be granted
with respect to Shares underlying a Stock Option or Stock
Appreciation Right.

 

12. Cash-Based
Awards. Subject to
the terms and conditions of the Plan, Cash-Based Awards may be
granted to Participants in such amounts and upon such other terms
and conditions as shall be determined by the Committee in its sole
discretion. Each Cash-Based Award shall be evidenced by an Award
Agreement that shall specify the payment amount or payment range,
the time and method of settlement and the other terms and
conditions, as applicable, of such Award which may include, without
limitation, restrictions based on the achievement of specific
Performance Objectives.

 


 




 

11








 






 

 

13. Compliance with
Section 409A. Awards
granted under the Plan shall be designed and administered in such a
manner that they are either exempt from the application of, or
comply with, the requirements of Section 409A of the Code. To the
extent that the Committee determines that any award granted under
the Plan is subject to Section 409A of the Code, the Award
Agreement shall incorporate the terms and conditions necessary to
avoid the imposition of an additional tax under Section 409A of the
Code upon a Participant. Notwithstanding any other provision of the
Plan or any Award Agreement (unless the Award Agreement provides
otherwise with specific reference to this Section 13): (a) an Award
shall not be granted, deferred, accelerated, extended, paid out,
settled, substituted or modified under the Plan in a manner that
would result in the imposition of an additional tax under Section
409A of the Code upon a Participant; and (b) if an Award is subject
to Section 409A of the Code, and if the Participant holding the
award is a “specified employee” (as defined in Section
409A of the Code, with such classification to be determined in
accordance with the methodology established by the Company), then,
to the extent required to avoid the imposition of an additional tax
under Section 409A of the Code upon a Participant, no distribution
or payment of any amount shall be made before the date that is six
(6) months following the date of such Participant’s
“separation from service” (as defined in Section 409A
of the Code) or, if earlier, the date of the Participant’s
death. Although the Company intends to administer the Plan so that
Awards will be exempt from, or will comply with, the requirements
of Section 409A of the Code, the Company does not warrant that any
Award under the Plan will qualify for favorable tax treatment under
Section 409A of the Code or any other provision of federal, state,
local, or non-United States law. The Company shall not be liable to
any Participant for any tax, interest, or penalties the Participant
might owe as a result of the grant, holding, vesting, exercise, or
payment of any Award under the Plan.

 

14.
Compliance with Section
162(m).

 

a. In
General. Notwithstanding anything in the Plan to the
contrary, Restricted Shares, Restricted Share Units, Other
Share-Based Awards and Cash-Based Awards may be granted in a manner
that is intended to qualify the Award for the Performance-Based
Exception. As determined by the Committee in its sole discretion,
the grant, vesting, exercisability and/or settlement of any Awards
intended to qualify the Award for the Performance-Based Exception
shall be conditioned on the attainment of one or more Performance
Objectives during a performance period established by the
Committee. Any such Award must meet the requirements of this
Section 14.

 

b. Performance Objectives. If an
Award is intended to qualify for the Performance-Based Exception,
then the Performance Objectives shall be based on specified levels
of, or growth in, one or more of the following criteria: revenues,
earnings from operations, operating income, earnings before or
after interest and taxes, operating income before or after interest
and taxes, net income, cash flow, earnings per share, return on
total capital, return on invested capital, return on equity, return
on assets, total return to stockholders, earnings before or after
interest, or extraordinary or special items, operating income
before or after interest, taxes, depreciation, amortization or
extraordinary or special items, return on investment, free cash
flow, cash flow return on investment (discounted or otherwise), net
cash provided by operations, cash flow in excess of cost of
capital, operating margin, profit margin, contribution margin,
stock price and/or strategic business criteria consisting of one or
more objectives based on meeting specified product development,
strategic partnering, research and development milestones, clinical
trial status, product approvals in geographic regions, market
penetration, geographic business expansion goals, cost targets,
customer satisfaction, management of employment practices and
employee benefits, supervision of litigation and information
technology, and goals relating to acquisitions or divestitures of
subsidiaries, affiliates and joint ventures. To the extent
consistent with the Performance-Based Exception, the Performance
Objectives may be calculated without regard to extraordinary items
or adjusted, as the Committee deems equitable, in recognition of
unusual or non-recurring events affecting the Company or its
Subsidiaries or changes in applicable tax laws or accounting
principles.

 


 




 

12








 






 

c. Establishment of Performance
Goals. With respect to Awards intended to qualify for the
Performance-Based Exception, the Committee shall establish: (i) the
applicable Performance Objectives and performance period, and (ii)
the formula for computing the payout. Such terms and conditions
shall be established in writing while the outcome of the applicable
performance period is substantially uncertain, but in no event
later than the earlier of: (x) ninety days after the beginning of
the applicable performance period; or (y) the expiration of
twenty-five percent (25%) of the applicable performance
period.

 

d. Certification of Performance.
With respect to any Award intended to qualify for the
Performance-Based Exception, the Committee shall certify in writing
whether the applicable Performance Objectives and other material
terms imposed on such Award have been satisfied, and, if they have,
ascertain the amount of the payout or vesting of the Award.
Notwithstanding any other provision of the Plan, payment or vesting
of any such Award shall not be made until the Committee certifies
in writing that the applicable Performance Objectives and any other
material terms of such Award were in fact satisfied in a manner
conforming to applicable regulations under Section 162(m) of the
Code.

 

e. Negative Discretion. With
respect to any Award intended to qualify for the Performance-Based
Exception, the Committee shall not have discretion to increase the
amount of compensation that is payable upon achievement of the
designated Performance Objectives. However, the Committee may, in
its sole discretion, reduce the amount of compensation that is
payable upon achievement of the designated Performance
Objectives.

 

15. Transferability.
Except as otherwise determined by the Committee, no Award or
dividend equivalents paid with respect to any Award shall be
transferable by the Participant except by will or the laws of
descent and distribution; provided, that if so determined by the
Committee, each Participant may, in a manner established by the
Board or the Committee, designate a beneficiary to exercise the
rights of the Participant with respect to any Award upon the death
of the Participant and to receive Shares or other property issued
or delivered under such Award. Except as otherwise determined by
the Committee, Stock Options and Stock Appreciation Rights will be
exercisable during a Participant’s lifetime only by the
Participant or, in the event of the Participant’s legal
incapacity to do so, by the Participant’s guardian or legal
representative acting on behalf of the Participant in a fiduciary
capacity under state law and/or court supervision.

 

16. Adjustments.
In the event of any equity restructuring (within the meaning of
Financial Accounting Standards Board Accounting Standards
Codification Topic 718, Compensation — Stock Compensation),
such as a stock dividend, stock split, reverse stock split,
spinoff, rights offering, or recapitalization through a large,
nonrecurring cash dividend, the Committee shall cause there to be
an equitable adjustment in the numbers of Shares specified in
Section 3 of the Plan and, with respect to outstanding Awards, in
the number and kind of Shares subject to outstanding Awards, the
exercise price or other price of Shares subject to outstanding
Awards, in each case to prevent dilution or enlargement of the
rights of Participants. In the event of any other change in
corporate capitalization, or in the event of a merger,
consolidation, liquidation, or similar transaction, the Committee
may, in its sole discretion, cause there to be an equitable
adjustment as described in the foregoing sentence, to prevent
dilution or enlargement of rights; provided, however, that, unless
otherwise determined by the Committee, the number of Shares subject
to any Award shall always be rounded down to a whole number.
Notwithstanding the foregoing, the Committee shall not make any
adjustment pursuant to this Section 16 that would (i) cause any
Stock Option intended to qualify as an ISO to fail to so qualify,
(ii) cause an Award that is otherwise exempt from Section 409A of
the Code to become subject to Section 409A of the Code, or (iii)
cause an Award that is subject to Section 409A of the Code to fail
to satisfy the requirements of Section 409A of the Code. The
determination of the Committee as to the foregoing adjustments, if
any, shall be conclusive and binding on all Participants and any
other persons claiming under or through any
Participant.

 


 




 

13








 






 

17. Fractional
Shares. The Company
shall not be required to issue or deliver any fractional Shares
pursuant to the Plan and, unless otherwise provided by the
Committee, fractional shares shall be settled in cash.

 

18. Withholding
Taxes. To the extent
required by Applicable Law, a Participant shall be required to
satisfy, in a manner satisfactory to the Company or Subsidiary, as
applicable, any withholding tax obligations that arise by reason of
a Stock Option or Stock Appreciation Right exercise, the vesting of
or settlement of Shares under an Award, an election pursuant to
Section 83(b) of the Code or otherwise with respect to an Award.
The Company and its Subsidiaries shall not be required to issue or
deliver Shares, make any payment or to recognize the transfer or
disposition of Shares until such obligations are satisfied. The
Committee may permit or require these obligations to be satisfied
by having the Company withhold a portion of the Shares that
otherwise would be issued or delivered to a Participant upon
exercise of a Stock Option or Stock Appreciation Right or upon the
vesting or settlement of an Award, or by tendering Shares
previously acquired, in each case having a Fair Market Value equal
to the amount required to be withheld. In no event will the Fair
Market Value of the Shares to be withheld or tendered pursuant to
this Section 18 to satisfy applicable withholding taxes exceed the
amount of taxes required to be withheld based on the maximum
statutory tax rates in the applicable taxing jurisdictions. Any
elections pursuant to this Section 18 subject to such conditions or
procedures as may be established by the Committee and may be
subject to disapproval by the Committee.

 

19. Foreign
Employees. Without
amending the Plan, the Committee may grant Awards to Participants
who are foreign nationals on such terms and conditions different
from those specified in the Plan as may in the judgment of the
Committee be necessary or desirable to foster and promote
achievement of the purposes of the Plan, and, in furtherance of
such purposes, the Committee may make such modifications,
amendments, procedures, and the like as may be necessary or
advisable to comply with provisions of Applicable Laws of other
countries in which the Company or its Subsidiaries operate or have
employees.

 

20.
Detrimental Activity;
Forfeiture of Awards.

 

a. Detrimental
Activity. If a Participant has engaged in any Detrimental
Activity, as determined by the Committee in its sole discretion,
either during service with the Company or a Subsidiary or after
termination of such service, then, promptly upon receiving notice
of the Committee’s determination, the Participant shall: (i)
forfeit all Awards granted under the Plan to the extent then held
by the Participant; (ii) return to the Company or the Subsidiary
all Shares that the Participant has not disposed of that had been
acquired, pursuant to Awards granted under the Plan, within two (2)
years prior to the date of the Participant’s initial
commencement of the Detrimental Activity, in exchange for payment
by the Company or the Subsidiary of any amount actually paid
therefor by the Participant; and (iii) with respect to any Shares
acquired, within two (2) years prior to the date of the
Participant’s initial commencement of the Detrimental
Activity, pursuant to an Award granted under the Plan that were
disposed of, pay to the Company or the Subsidiary, in cash, the
excess, if any, of: (A) the Fair Market Value of the Shares on the
date acquired, over (B) any amount actually paid by the Participant
for the Shares.

 


 




 

14








 






 

 

b. Compensation Recovery Policy.
Any Award granted to a Participant shall be subject to forfeiture
or repayment pursuant to the terms of any applicable compensation
recovery policy adopted by the Company, including any such policy
that may be adopted to comply with the Dodd-Frank Wall Street
Reform and Consumer Protection Act or any rules or regulations
issued by the Securities and Exchange Commission rule or applicable
securities exchange.

 

c. Set-Off and Other Remedies. To
the extent that amounts are not immediately returned or paid to the
Company as provided in this Section 20, the Company may, to the
extent permitted by Applicable Laws, seek other remedies, including
a set off of the amounts so payable to it against any amounts that
may be owing from time to time by the Company or a Subsidiary to
the Participant for any reason, including, without limitation,
wages, or vacation pay or other benefits; provided, however, that,
except to the extent permitted by Treasury Regulation Section
1.409A-3(j)(4), such offset shall not apply to amounts that are
“deferred compensation” within the meaning of Section
409A of the Code.

 

21. Change in
Control. In the event
of a Change in Control, the Committee may, in its sole discretion
and without providing prior notice or receiving the consent of the
Participant, take such actions, if any, as it deems necessary or
desirable with respect to any Award that is outstanding as of the
date of the consummation of the Change in Control. Such actions may
include, without limitation: (i) the acceleration of the vesting,
settlement and/or exercisability of an Award; (ii) the payment of a
cash amount in exchange for the cancellation of an Award; (iii) the
cancellation of Stock Options and/or Stock Appreciation Rights
without payment therefor if the Fair Market Value of a Share on the
date of the Change in Control does not exceed the exercise price
per Share of the applicable Awards; and/or (iv) make provisions for
the assumption or conversion of Awards, or the issuance of
substitute Awards that, in either case, substantially preserve the
value, rights and benefits of any affected Awards.

 

22.
Amendment, Modification
and Termination.

 

a. In
General. The Board may at any time and from time to time,
alter, amend, suspend or terminate the Plan in whole or in part;
provided, however, that no alteration or amendment that requires
stockholder approval in order for the Plan to comply with any rule
promulgated by the SEC or any securities exchange on which Shares
are listed or any other Applicable Laws shall be effective unless
such amendment shall be approved by the requisite vote of
stockholders of the Company entitled to vote thereon within the
time period required under such applicable listing standard or
rule.

 

b. Adjustments to Outstanding
Awards. The Committee may in its sole discretion at any time
(i) provide that all or a portion of a Participant’s Stock
Options, Stock Appreciation Rights, and other Awards in the nature
of rights that may be exercised shall become fully or partially
exercisable; (ii) provide that all or a part of the time-based
vesting restrictions on all or a portion of the outstanding Awards
shall lapse, and/or that any Performance Objectives or other
performance-based criteria with respect to any Awards shall be
deemed to be wholly or partially satisfied; or (iii) waive any
other limitation or requirement under any such Award, in each case,
as of such date as the Committee may, in its sole discretion,
declare. Unless otherwise determined by the Committee, any such
adjustment that is made with respect to an Award that is intended
to qualify for the Performance-Based Exception shall be made at
such times and in such manner as will not cause such Awards to fail
to qualify under the Performance-Based Exception. Additionally, the
Committee shall not make any adjustment pursuant to this Section
22(b) that would cause an Award that is otherwise exempt from
Section 409A of the Code to become subject to Section 409A of the
Code, or that would cause an Award that is subject to Section 409A
of the Code to fail to satisfy the requirements of Section 409A of
the Code.

 


 




 

15








 






 

c. Prohibition on Repricing.
Except for adjustments made pursuant to Sections 16 or 21, the
Board or the Committee will not, without the further approval of
the stockholders of the Company, authorize the amendment of any
outstanding Stock Option or Stock Appreciation Right to reduce the
exercise price. No Stock Option or Stock Appreciation Right will be
cancelled and replaced with an Award having a lower exercise price,
or for another Award, or for cash without further approval of the
stockholders of the Company, except as provided in Sections 16 or
21. Furthermore, no Stock Option or Stock Appreciation Right will
provide for the payment, at the time of exercise, of a cash bonus
or grant or sale of another Award without further approval of the
stockholders of the Company. This Section 22(c) is intended to
prohibit the repricing of “underwater” Stock Options or
Stock Appreciation Rights without stockholder approval and will not
be construed to prohibit the adjustments provided for in Sections
16 or 21.

 

d. Effect on Outstanding Awards.
Notwithstanding any other provision of the Plan to the contrary
(other than Sections 16, 20, 21, 22(b) and 24(d)), no termination,
amendment, suspension, or modification of the Plan or an Award
Agreement shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of
the Participant holding such Award. Notwithstanding the preceding
sentence, any ISO granted under the Plan may be modified by the
Committee to disqualify such Stock Option from treatment as an
“incentive stock option” under Section 422 of the
Code.

 

23. Applicable
Laws. The obligations
of the Company with respect to Awards under the Plan shall be
subject to all Applicable Laws and such approvals by any
governmental agencies as the Committee determines may be required.
The Plan and each Award Agreement shall be governed by the laws of
the State of Delaware, excluding any conflicts or choice of law
rule or principle that might otherwise refer construction or
interpretation of the Plan to the substantive law of another
jurisdiction.

 

24.
Miscellaneous.

 

a. Deferral
of Awards. Except with respect to Stock Options and Stock
Appreciation Rights, the Committee may permit Participants to elect
to defer the issuance or delivery of Shares or the settlement of
Awards in cash under the Plan pursuant to such rules, procedures or
programs as it may establish for purposes of the Plan. The
Committee also may provide that deferred issuances and settlements
include the payment or crediting of dividend equivalents or
interest on the deferral amounts. All elections and deferrals
permitted under this provision shall comply with Section 409A of
the Code, including setting forth the time and manner of the
election (including a compliant time and form of payment), the date
on which the election is irrevocable, and whether the election can
be changed until the date it is irrevocable.

 

b. No Right of Continued
Employment. The Plan shall not confer upon any Participant
any right with respect to continuance of employment or other
service with the Company or any Subsidiary, nor shall it interfere
in any way with any right the Company or any Subsidiary would
otherwise have to terminate such Participant’s employment or
other service at any time. No Employee, Consultant or Director
shall have the right to be selected to receive an Award under the
Plan, or, having been so selected, to be selected to receive future
Awards.

 


 




 

16








 






 

c. Unfunded, Unsecured Plan.
Neither a Participant nor any other person shall, by reason of
participation in the Plan, acquire any right or title to any
assets, funds or property of the Company or any Subsidiary,
including without limitation, any specific funds, assets or other
property which the Company or any Subsidiary may set aside in
anticipation of any liability under the Plan. A Participant shall
have only a contractual right to an Award or the 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.

 

d. Severability. If any provision
of the Plan is or becomes invalid, illegal or unenforceable in any
jurisdiction, or would disqualify the Plan or any Award under any
law deemed applicable by the Committee, such provision shall be
construed or deemed amended or limited in scope to conform to
Applicable Laws or, in the discretion of the Committee, it shall be
stricken and the remainder of the Plan shall remain in full force
and effect.

 

e. Acceptance of Plan. By
accepting any benefit under the Plan, each Participant and each
person claiming under or through any such Participant shall be
conclusively deemed to have indicated their acceptance and
ratification of, and consent to, all of the terms and conditions of
the Plan and any action taken under the Plan by the Committee, the
Board or the Company, in any case in accordance with the terms and
conditions of the Plan.

 

f. Successors. All obligations of
the Company under the Plan and with respect to Awards shall be
binding on any successor to the Company, whether the existence of
such successor is the result of a direct or indirect purchase,
merger, consolidation, or other event, or a sale or disposition of
all or substantially all of the business and/or assets of the
Company and references to the “Company” herein and in
any Award Agreements shall be deemed to refer to such
successors.

 


 




 

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