TMO 10-K 2006 Exhibit 10.5


    Exhibit
      10.5

     

     

    THERMO
      FISHER SCIENTIFIC INC.

    


    EQUITY
      INCENTIVE PLAN

    


    As
      amended and restated on November 9, 2006

    
 

     1.    Purpose

     

    The
      purpose of this Equity Incentive Plan (the "Plan") is to secure for Thermo
      Fisher Scientific Inc. (the "Company") and its Stockholders the benefits arising
      from capital stock ownership by employees and directors of, and consultants
      to,
      the Company and its subsidiaries or other persons who are expected to make
      significant contributions to the future growth and success of the Company and
      its subsidiaries. The Plan is intended to accomplish these goals by enabling
      the
      Company to offer such persons equity-based interests, equity-based incentives
      or
      performance-based stock incentives in the Company, or any combination thereof
      ("Awards").

     

    2.    Administration

     

    The
      Plan will be administered by the Board of Directors of the Company (the
      "Board").  The Board shall have full power to interpret and administer the
      Plan, to prescribe, amend and rescind rules and regulations relating to the
      Plan
      and Awards, and full authority to select the persons to whom Awards will be
      granted ("Participants"), determine the type and amount of Awards to be granted
      to Participants (including any combination of Awards), determine the terms
      and
      conditions of Awards granted under the Plan (including terms and conditions
      relating to events of merger, consolidation, dissolution and liquidation, change
      of control, vesting, forfeiture, restrictions, dividends and interest, if any,
      on deferred amounts), waive compliance by a participant with any obligation
      to
      be performed by him or her under an Award, waive any term or condition of an
      Award, cancel an existing Award in whole or in part with the consent of a
      Participant, grant replacement Awards, accelerate the vesting or lapse of any
      restrictions of any Award, correct any defect, supply any omission or reconcile
      any inconsistency in the Plan or in any Award and adopt the form of instruments
      evidencing Awards under the Plan and change such forms from time to time. 
Any interpretation by the Board of the terms and provisions of the Plan or
      any
      Award thereunder and the administration thereof, and all action taken by the
      Board, shall be final, binding and conclusive on all parties and any person
      claiming under or through any party.  No Director shall be liable for any
      action or determination made in good faith.  The Board may, to the full
      extent permitted by law, delegate any or all of its responsibilities under
      the
      Plan to a committee (the "Committee") appointed by the Board and consisting
      of
      members of the Board.  All references in the Plan to the “Board” shall mean
      the Board or a Committee of the Board to the extent that the Board’s powers or
      authority under the Plan have been delegated to such Committee.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

      3.    Effective
        Date

       

    

    The
      Plan shall be effective as of the date first approved by the Board of Directors,
      subject to the approval of the Plan by the Corporation's
      Stockholders.  Grants of Awards under the Plan made prior to such
      approval shall be effective when made (unless otherwise specified by the Board
      at the time of grant), but shall be conditioned on and subject to such approval
      of the Plan.

     

    4.    Shares
      Subject to
      the Plan

     

    Subject
      to adjustment as provided in Section 10.6, the total number of shares of common
      stock of the Company, par value $1.00 per share (“Common Stock”), reserved and
      available for distribution under the Plan shall be 15,575,000 shares.  Such
      shares may consist, in whole or in part, of authorized and unissued shares
      or
      treasury shares. 

    


    If
      any Award of shares of Common Stock requiring exercise by the Participant for
      delivery of such shares expires or terminates without having been exercised
      in
      full, is forfeited or is otherwise terminated without a payment being made
      to
      the Participant in the form of Common Stock, or if any shares of Common Stock
      subject to restrictions are repurchased by the Company pursuant to the terms
      of
      any Award or are otherwise reacquired by the Company to satisfy obligations
      arising by virtue of any Award, such shares shall be available for distribution
      in connection with future Awards under the Plan.

     

     5.   Eligibility

     

    Employees
      and Directors of, and consultants to, the Company and its subsidiaries, or
      other
      persons who are expected to make significant contributions to the future growth
      and success of the Company and its subsidiaries shall be eligible to receive
      Awards under the Plan.  The Board, or other appropriate committee or person
      to the extent permitted pursuant to the last sentence of Section 2, shall from
      time to time select from among such eligible persons those who will receive
      Awards under the Plan. 

    
       

      6.    Types
        of
        Awards

       

    

    The
      Board may offer Awards under the Plan in any form of equity-based interest,
      equity-based incentive or performance-based stock incentive in Common Stock
      of
      the Company or any combination thereof.  The type, terms and conditions and
      restrictions of an Award shall be determined by the Board at the time such
      Award
      is made to a Participant; provided however that the maximum number of shares
      permitted to be granted under any Award or combination of Awards to any
      Participant during any one calendar year may not exceed 1,500,000 shares of
      Common Stock. 

    


    An
      Award shall be made at the time specified by the Board and shall be subject
      to
      such conditions or restrictions as may be imposed by the Board and shall conform
      to the general rules applicable under the Plan as well as any special rules
      then
      applicable under federal tax laws or regulations or the federal securities
      laws
      relating to the type of Award granted.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    Without
      limiting the foregoing, Awards may take the following forms and shall be subject
      to the following rules and conditions:


    
      
        
           

               
            6.1   
Options

        

      

    

     

    
      An
        option is an Award that entitles the holder on exercise thereof to purchase
        Common Stock at a specified exercise price.  Options granted under the Plan
        may be either incentive stock options ("incentive stock options") that meet
        the
        requirements of Section 422 of the Internal Revenue Code of 1986, as amended
        (the "Code"), or options that are not intended to meet the requirements of
        Section 422 ("non-statutory options").

       

      6.1.1  Option
        Price.
        The price at which Common Stock may be purchased upon exercise of an option
        shall be determined by the Board, provided
        however,
        the exercise price shall not be less than 85% of the fair market value per
        share
        of Common Stock as of the date of grant. The Board shall not have the authority
        to reprice outstanding stock options granted to directors or executive officers
        of the Company, except to the extent permitted under Section 10.6 of the
        Plan in
        connection with adjustments in the event of certain transactions.


    

    


    6.1.2  Option
      Grants.
      The granting of an option shall take place at the time specified by the Board.
      Options shall be evidenced by option agreements. Such agreements shall conform
      to the requirements of the Plan, and may contain such other provisions
      (including but not limited to vesting and forfeiture provisions, acceleration,
      change of control, protection in the event of merger, consolidations,
      dissolutions and liquidations) as the Board shall deem advisable. Option
      agreements shall expressly state whether an option grant is intended to qualify
      as an incentive stock option or non-statutory option.

    


    6.1.3  Option
      Period.
      An option will become exercisable at such time or times (which may be
      immediately or in such installments as the Board shall determine) and on such
      terms and conditions as the Board shall specify. The option agreements shall
      specify the terms and conditions applicable in the event of an option holder's
      termination of employment during the option's term.

    


    Any
      exercise of an option must be in accordance with the instructions described
      in
“The Guide for Employees of Thermo Fisher Scientific Inc. Stock Option Plans,”
as may be amended from time to time (the “Guide”).

    


    6.1.4  Payment
      of Exercise Price.
      Stock purchased on exercise of an option shall be paid for in accordance with
      the instructions described in the Guide.

    


    6.1.5  Buyout
      Provision.
      The Board may at any time offer to buy out for a payment in cash, shares of
      Common Stock, deferred stock or restricted stock, an option previously granted,
      based on such terms and conditions as the Board shall establish and communicate
      to the option holder at the time that such offer is made.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    6.1.6  Special
      Rules for Incentive Stock Options.
      Each provision of the Plan and each option agreement evidencing an incentive
      stock option shall be construed so that each incentive stock option shall be
      an
      incentive stock option as defined in Section 422 of the Code or any statutory
      provision that may replace such Section, and any provisions thereof that cannot
      be so construed shall be disregarded. Instruments evidencing incentive stock
      options shall contain such provisions as are required under applicable
      provisions of the Code. Incentive stock options may be granted only to employees
      of the Company and its subsidiaries. The exercise price of an incentive stock
      option shall not be less than 100% (110% in the case of an incentive stock
      option granted to a more than ten percent stockholder of the Company) of the
      fair market value of the Common Stock on the date of grant, as determined by
      the
      Board. An incentive stock option may not be granted after the tenth anniversary
      of the date on which the Plan was adopted by the Board and the latest date
      on
      which an incentive stock option may be exercised shall be the tenth anniversary
      (fifth anniversary, in the case of any incentive stock option granted to a
      more
      than ten percent stockholder of the Company) of the date of grant, as determined
      by the Board.

    
       

      
        6.2     Restricted
          and Unrestricted Stock

         

      

    

    An
      Award of restricted stock entitles the recipient thereof to acquire shares
      of
      Common Stock upon payment of the purchase price subject to restrictions
      specified in the instrument evidencing the Award.

    


    6.2.1  Restricted
      Stock Awards.
      Awards of restricted stock shall be evidenced by restricted stock agreements.
      Such agreements shall conform to the requirements of the Plan, and may contain
      such other provisions (including restriction and forfeiture provisions, change
      of control, protection in the event of mergers, consolidations, dissolutions
      and
      liquidations) as the Board shall deem advisable.

    


    6.2.2  Restrictions.
      Until the restrictions specified in a restricted stock agreement shall lapse,
      restricted stock may not be sold, assigned, transferred, pledged or otherwise
      encumbered or disposed of, and upon certain conditions specified in the
      restricted stock agreement, must be resold to the Company for the price, if
      any,
      specified in such agreement. The restrictions shall lapse at such time or times,
      and on such conditions, as the Board may specify. The Board may at any time
      accelerate the time at which the restrictions on all or any part of the shares
      shall lapse.

    


    6.2.3  Rights
      as a Stockholder.
      A
      Participant who acquires shares of restricted stock will have all of the rights
      of a stockholder of the Company with respect to such shares except as otherwise
      limited pursuant to the Participant’s restricted stock agreement. Unless the
      Board otherwise determines, certificates evidencing shares of restricted stock
      will remain in the possession of the Company until such shares are free of
      all
      restrictions under the Plan.

    


    6.2.4  Purchase
      Price.
      The purchase price of shares of restricted stock shall be determined by the
      Board, in its sole discretion.

    


    6.2.5  Other
      Awards Settled With Restricted Stock.
      The Board may provide that any or all the Common Stock delivered pursuant to
      an
      Award will be restricted stock.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
 

    6.2.6  Unrestricted
      Stock.
      The Board may, in its sole discretion, sell to any Participant shares of Common
      Stock free of restrictions under the Plan for a price determined by the Board,
      but which may not be less than the par value per share of the Common
      Stock.

    
     
      6.3     Deferred
      Stock

     

    6.3.1  Deferred
      Stock Award.
      A
      deferred stock Award entitles the recipient to receive shares of deferred stock,
      which is Common Stock to be delivered in the future.  Delivery of the
      Common Stock will take place at such time or times, and on such conditions,
      as
      the Board may specify.  The Board may at any time accelerate the time at
      which delivery of all or any part of the Common Stock will take
      place.

    


    6.3.2  Other
      Awards Settled with Deferred Stock.
      The Board may, at the time any Award described in this Section 6 is granted,
      provide that, at the time Common Stock would otherwise be delivered pursuant
      to
      the Award, the Participant will instead receive an instrument evidencing the
      right to future delivery of deferred stock.

    
      


      6.4    Performance
        Awards

       

    

    6.4.1  Performance
      Awards.
      A performance Award entitles the recipient to receive, without payment, an
      amount, in cash or Common Stock or a combination thereof (such form to be
      determined by the Board), following the attainment of performance goals. 
Performance goals may be related to personal performance, corporate performance,
      departmental performance or any other category of performance deemed by the
      Board to be important to the success of the Company. The Board will determine
      the performance goals, the period or periods during which performance is to
      be
      measured and all other terms and conditions applicable to the
      Award.

    


    6.4.2  Other
      Awards Subject to Performance Conditions.
      The Board may, at the time any Award described in this Section 6 is granted,
      impose the condition (in addition to any conditions specified or authorized
      in
      this Section 6 of the Plan) that performance goals be met prior to the
      Participant's realization of any payment or benefit under the
      Award.

     

    
      7.    Purchase
        Price and Payment

    

    


    Except
      as otherwise provided in the Plan, the purchase price of Common Stock to be
      acquired pursuant to an Award shall be the price determined by the Board,
      provided that such price shall not be less than the par value of the Common
      Stock.  Except as otherwise provided in the Plan, the Board may determine
      the method of payment of the exercise price or purchase price of an Award
      granted under the Plan and the form of payment. The Board may determine that
      all
      or any part of the purchase price of Common Stock pursuant to an Award has
      been
      satisfied by past services rendered by the Participant. The Board may agree
      at
      any time, upon request of the Participant, to defer the date on which any
      payment under an Award will be made.

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    8.    Intentionally
      Omitted

    


    9.    Change
      in Control

    


    9.1     Impact
      of Event

    


    9.1.1  Awards
      Granted before November 9, 2006.
      In the event of a “Change in Control” as defined in Section 9.2, the following
      provisions shall apply, unless the agreement evidencing the Award otherwise
      provides (by specific explicit reference to Section 9.2 below). If a Change
      in
      Control occurs while any Awards are outstanding, then, effective upon the Change
      in Control, (i) each outstanding stock option or other stock-based Award awarded
      under the Plan that was not previously exercisable and vested shall become
      immediately exercisable in full and will no longer be subject to a right of
      repurchase by the Company, (ii) each outstanding restricted stock award or
      other
      stock-based Award subject to restrictions and to the extent not fully vested,
      shall be deemed to be fully vested, free of restrictions and no longer subject
      to a right of repurchase by the Company, and (iii) deferral limitations and
      conditions that relate solely to the passage of time, continued employment
      or
      affiliation will be waived and removed as to deferred stock Awards and
      performance Awards; performance of other conditions (other than conditions
      relating solely to the passage of time, continued employment or affiliation)
      will continue to apply unless otherwise provided in the agreement evidencing
      the
      Award or in any other agreement between the Participant and the Company or
      unless otherwise agreed by the Board.

    


    9.1.2  Awards
      Granted on or after November 9, 2006. 

    


    (a)     Unless
      otherwise determined by the Board at the time of the grant or evidenced in
      an
      applicable instrument evidencing an Award or employment or other agreement,
      in
      the event that a Participant’s employment or service is terminated by the
      Company or any subsidiary without Cause or by the Participant for Good Reason,
      in each case within eighteen (18) months following a Change in
      Control:

    


    (i)     any
      Award carrying a right to exercise that was not previously vested and
      exercisable shall become fully vested and exercisable and all outstanding Awards
      shall remain exercisable for one (1) year following such date of termination
      of
      employment or service but in no event beyond the original term of the Award
      and
      shall thereafter terminate; and

    


    (ii)     the
      restrictions, deferral limitations, payment conditions, and forfeiture
      conditions applicable to any Award other than an Award described in (i) shall
      lapse and such Awards shall be deemed fully vested, and any performance
      conditions imposed with respect to Awards shall be deemed to be achieved at
      the
      higher of (x) the target level for the applicable performance period or (y)
      the
      level of achievement of such performance conditions for the most recently
      concluded performance period.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    (b)     Notwithstanding
      subparagraph (a) of this Section 9.1.2, upon a Change in Control, the Board
      shall have the discretion to:

    


    (i)     accelerate
      the vesting or payment of any Award effective immediately upon the occurrence
      of
      a Change in Control; or

    


    (ii)     convert
      the
      vesting of performance-based Awards to a time-based vesting schedule as deemed
      appropriate by the Board;

    


    in
      each case only to the extent that such action would not cause any Award to
      result in deferred compensation that is subject to the additional twenty percent
      (20%) tax under Section 409A of the Code.

    


    9.2     Definitions

    


    9.2.1  “Change
      in Control”
      means an event or occurrence set forth in any one or more of subsections (a)
      through (d) below (including an event or occurrence that constitutes a Change
      in
      Control under one of such subsections but is specifically exempted from another
      such subsection):

    


    (a)     the
      acquisition by an individual, entity or group (within the meaning of Section
      13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership
      of any capital stock of Thermo Fisher Scientific Inc. (“Thermo Fisher”) if,
      after such acquisition, such Person beneficially owns (within the meaning of
      Rule 13d-3 promulgated under the Exchange Act) 40% or more of either (i) the
      then-outstanding shares of common stock of Thermo Fisher (the “Outstanding TMO
      Common Stock”) or (ii) the combined voting power of the then-outstanding
      securities of Thermo Fisher entitled to vote generally in the election of
      directors (the “Outstanding TMO Voting Securities”); provided,
      however,
      that for purposes of this subsection (a), the following acquisitions shall
      not
      constitute a Change in Control: (i) any acquisition by Thermo Fisher, (ii)
      any
      acquisition by any employee benefit plan (or related trust) sponsored or
      maintained by Thermo Fisher or any corporation controlled by Thermo Fisher,
      or
      (iii) any acquisition by any corporation pursuant to a transaction which
      complies with clauses (i) and (ii) of subsection (c) of this definition;
      or

    


    (b)     such
      time as the Continuing Directors (as defined below) do not constitute a majority
      of the Board of Directors of Thermo Fisher (the “Thermo Board”) (or, if
      applicable, the Board of Directors of a successor corporation to Thermo Fisher),
      where the term “Continuing Director” means at any date a member of the Thermo
      Board (i) who was a member of the Thermo Board as of July 1, 1999 or (ii) who
      was nominated or elected subsequent to such date by at least a majority of
      the
      directors who were Continuing Directors at the time of such nomination or
      election or whose election to the Thermo Board was recommended or endorsed
      by at
      least a majority of the directors who were Continuing Directors at the time
      of
      such nomination or election; provided,
      however,
      that there shall be excluded from this clause (ii) any individual whose initial
      assumption of office occurred as a result of an actual or threatened election
      contest with respect to the election or removal of directors or other actual
      or
      threatened solicitation of proxies or consents, by or on behalf of a person
      other than the Thermo Board; or

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    


    (c)     the
      consummation of a merger, consolidation, reorganization, recapitalization or
      statutory share exchange involving Thermo Fisher or a sale or other disposition
      of all or substantially all of the assets of Thermo Fisher in one or a series
      of
      transactions (a “Business Combination”), unless, immediately following such
      Business Combination, each of the following two conditions is satisfied: (i)
      all
      or substantially all of the individuals and entities who were the beneficial
      owners of the Outstanding TMO Common Stock and Outstanding TMO Voting Securities
      immediately prior to such Business Combination beneficially own, directly or
      indirectly, more than 60% of the then-outstanding shares of common stock and
      the
      combined voting power of the then-outstanding securities entitled to vote
      generally in the election of directors, respectively, of the resulting or
      acquiring corporation in such Business Combination (which shall include, without
      limitation, a corporation which as a result of such transaction owns Thermo
      Fisher or substantially all of Thermo Fisher’s assets either directly or through
      one or more subsidiaries) (such resulting or acquiring corporation is referred
      to herein as the “Acquiring Corporation”) in substantially the same proportions
      as their ownership, immediately prior to such Business Combination, of the
      Outstanding TMO Common Stock and Outstanding TMO Voting Securities,
      respectively; and (ii) no Person (excluding the Acquiring Corporation or any
      employee benefit plan (or related trust) maintained or sponsored by Thermo
      Fisher or by the Acquiring Corporation) beneficially owns, directly or
      indirectly, 40% or more of the then outstanding shares of common stock of the
      Acquiring Corporation, or of the combined voting power of the then-outstanding
      securities of such corporation entitled to vote generally in the election of
      directors; or 

    


    (d)     approval
      by the stockholders of Thermo Fisher of a complete liquidation or dissolution
      of
      Thermo Fisher.

    


    9.2.2  “Cause”
      shall have the meaning set forth in the Participant’s employment or other
      agreement with the Company or any subsidiary, provided that if the Participant
      is not a party to any such employment or other agreement or such employment
      or
      other agreement does not contain a definition of Cause, then Cause shall
      mean:

    


    (a)     the
      willful and continued failure of the Participant to perform substantially the
      Participant’s duties with the Company or any subsidiary (other than any such
      failure resulting from incapacity due to physical or mental illness), after
      a
      written demand for substantial performance is delivered to the Participant
      by
      the employing Company or subsidiary that specifically identifies the alleged
      manner in which the Participant has not substantially performed the
      Participant’s duties; or

    


    (b)     the
      willful engaging by the Participant in illegal conduct or gross misconduct
      that
      is materially and demonstrably injurious to the Company or any
      subsidiary.

    


    For
      purposes of this definition, no act or failure to act, on the part of the
      Participant shall be considered “willful” unless it is done, or omitted to be
      done, by the Participant in bad faith or without reasonable belief that the
      Participant’s action or omission was in the best interests of the Company or any
      subsidiary.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    9.2.3  “Good
      Reason”
      shall have the meaning set forth in the Participant’s employment or other
      agreement with the Company or any subsidiary, provided that if the Participant
      is not a party to any such employment or other agreement or such employment
      or
      other agreement does not contain a definition of Good Reason, then Good Reason
      shall mean, the occurrence, on or after a Change in Control and without the
      affected Participant’s written consent, of: 

    


    (a)     the
      assignment to the Participant of duties in the aggregate that are inconsistent
      with the Participant’s level of responsibility immediately prior to the Change
      in Control (including without limitation, in the case of a Participant who
      was,
      immediately prior to the Change in Control, an executive officer of the Company,
      such employee ceasing to be an executive officer of the Company);

    


    (b)     a
      reduction by the employer in the Participant’s annual base salary, annual
      incentive compensation opportunity, or long term incentive compensation
      opportunity (including an adverse change in the performance criteria or a
      decrease in the target amount of annual or long term incentive compensation)
      from that in effect immediately prior to the Change in Control; or 

    


    (c)     the
      relocation of the Participant’s principal place of employment to a location more
      than fifty (50) miles from the Participant’s principal place of employment
      immediately prior to the Change in Control, provided, however, such relocation
      also requires a material change in the Participant’s commute.

    


    
      	
              10.

            	
              General
                Provisions

            


    

     

    10.1   Documentation
      of Awards

    


    Awards
      will be evidenced by written instruments, which may differ among Participants,
      prescribed by the Board from time to time. Such instruments may be in the form
      of agreements to be executed by both the Participant and the Company or
      certificates, letters or similar instruments which need not be executed by
      the
      participant but acceptance of which will evidence agreement to the terms
      thereof. Such instruments shall conform to the requirements of the Plan and
      may
      contain such other provisions (including provisions relating to events of
      merger, consolidation, dissolution and liquidations, change of control and
      restrictions affecting either the agreement or the Common Stock issued
      thereunder), as the Board deems advisable.

     

    10.2   Rights
      as a Stockholder

    


    Except
      as specifically provided by the Plan or the instrument evidencing the Award,
      the
      receipt of an Award will not give a Participant rights as a stockholder of
      the
      Company with respect to any shares covered by an Award until the date of issue
      of a stock certificate to the participant for such shares.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    10.3   Conditions
      on Delivery of Stock

    


    The
      Company will not be obligated to deliver any shares of Common Stock pursuant
      to
      the Plan or to remove any restriction from shares previously delivered under
      the
      Plan (a) until all conditions of the Award have been satisfied or removed,
      (b)
      until, in the opinion of the Company's counsel, all applicable federal and
      state
      laws and regulations have been complied with, (c) if the outstanding Common
      Stock is at the time listed on any stock exchange, until the shares have been
      listed or authorized to be listed on such exchange upon official notice of
      issuance, and (d) until all other legal matters in connection with the issuance
      and delivery of such shares have been approved by the Company's counsel. If
      the
      sale of Common Stock has not been registered under the Securities Act of 1933,
      as amended, the Company may require, as a condition to exercise of the Award,
      such representations or agreements as counsel for the Company may consider
      appropriate to avoid violation of such act and may require that the certificates
      evidencing such Common Stock bear an appropriate legend restricting
      transfer.

    


    If
      an Award is exercised by the participant's legal representative, the Company
      will be under no obligation to deliver Common Stock pursuant to such exercise
      until the Company is satisfied as to the authority of such
      representative.

    


    10.4   Tax
      Withholding

    


    The
      Company will withhold from any cash payment made pursuant to an Award an amount
      sufficient to satisfy all federal, state and local withholding tax requirements
      (the "withholding requirements").

    


    In
      the case of an Award pursuant to which Common Stock may be delivered, the Board
      will have the right to require that the participant or other appropriate person
      remit to the Company an amount sufficient to satisfy the withholding
      requirements, or make other arrangements satisfactory to the Board with regard
      to such requirements, prior to the delivery of any Common Stock. If and to
      the
      extent that such withholding is required, the Board may permit the participant
      or such other person to elect at such time and in such manner as the Board
      provides to have the Company hold back from the shares to be delivered, or
      to
      deliver to the Company, Common Stock having a value calculated to satisfy the
      withholding requirement.

    


    10.5   Transferability
      of Awards

    


    Except
      as may be authorized by the Board, in its sole discretion, no Award (other
      than
      an Award in the form of an outright transfer of cash or Common Stock not subject
      to any restrictions) may be transferred other than by will or the laws of
      descent and distribution, and during a Participant's lifetime an Award requiring
      exercise may be exercised only by him or her (or in the event of incapacity,
      the
      person or persons properly appointed to act on his or her behalf). The Board
      may, in its discretion, determine the extent to which Awards granted to a
      Participant shall be transferable, and such provisions permitting or
      acknowledging transfer shall be set forth in the written agreement evidencing
      the Award executed and delivered by or on behalf of the Company and the
      Participant.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    10.6   Adjustments
      in the Event of Certain Transactions 

    


    (a)     In
      the event of a stock
      dividend, stock split or combination of shares, or other distribution with
      respect to holders of Common Stock other than normal cash dividends, the Board
      will make (i) equitable adjustments to the maximum number of shares that may
      be
      delivered under the Plan under Section 4 above, and (ii) equitable adjustments
      to the number and kind of shares of stock or securities subject to Awards then
      outstanding or subsequently granted, any exercise prices relating to Awards
      and
      any other provisions of Awards affected by such change.

     

    (b)     In
      the event of any
      recapitalization, merger or consolidation involving the Company, any transaction
      in which the Company becomes a subsidiary of another entity, any sale or other
      disposition of all or a substantial portion of the assets of the Company or
      any
      similar transaction, as determined by the Board, the Board in its discretion
      may
      make adjustments to outstanding Awards, including, without limitation: (i)
      accelerate the exercisability of the Option, or (ii) adjust the terms of the
      Option (whether or not in a manner that complies with the requirements of
      Section 424(a) of the Internal Revenue Code of 1986, as amended (the “Code”)),
      or (iii) if there is a survivor or acquiror entity, provide for the assumption
      of the Option by such survivor or acquiror or an affiliate thereof or for the
      grant of one or more replacement options by such survivor or acquiror or an
      affiliate thereof, in each case on such terms (which may, but need not, comply
      with the requirements of Section 424(a) of the Code) as the Board may determine,
      or (iv) terminate the Option (provided, that if the Board terminates the Option,
      it shall, in connection therewith, either (A) accelerate the exercisability
      of
      the Option prior to such termination, or (B) provide for a payment to the holder
      of the Option of cash or other property or a combination of cash or other
      property in an amount reasonably determined by the Board to approximate the
      value of the Option assuming an exercise immediately prior to the transaction,
      or (C) if there is a survivor or acquiror entity, provide for the grant of
      one
      or more replacement options pursuant to clause (iii) above), or (v) provide
      for
      none of, or any combination of, the foregoing. 

    


    (c)     No
      fraction of a share or
      fractional shares shall be purchasable or deliverable pursuant to this Section
      10.6.

    


    10.7   Employment
      Rights

    


    Neither
      the adoption of the Plan nor the grant of Awards will confer upon any person
      any
      right to continued employment with the Company or any subsidiary or interfere
      in
      any way with the right of the Company or subsidiary to terminate any employment
      relationship at any time or to increase or decrease the compensation of such
      person. Except as specifically provided by the Board in any particular case,
      the
      loss of existing or potential profit in Awards granted under the Plan will
      not
      constitute an element of damages in the event of termination of an employment
      relationship even if the termination is in violation of an obligation of the
      Company to the employee.

    


    Whether
      an authorized leave of absence, or absence in military or government service,
      shall constitute termination of employment shall be determined by the Board
      at
      the time. For purposes of this Plan, transfer of employment between the Company
      and its subsidiaries shall not be deemed termination of employment.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    10.8   Other
      Employee Benefits

    


    The
      value of an Award granted to a Participant who is an employee, and the amount
      of
      any compensation deemed to be received by an employee as a result of any
      exercise or purchase of Common Stock pursuant to an Award or sale of shares
      received under the Plan, will not constitute "earnings" or "compensation" with
      respect to which any other employee benefits of such employee are determined,
      including without limitation benefits under any pension, stock ownership, stock
      purchase, life insurance, medical, health, disability or salary continuation
      plan.

     

    10.9   Legal
      Holidays

    


    If
      any day on or before which action under the Plan must be taken falls on a
      Saturday, Sunday or legal holiday, such action may be taken on the next
      succeeding day not a Saturday, Sunday or legal holiday.

    


    10.10    Foreign
      Nationals

    


    Without
      amending the Plan, Awards may be granted to persons who are foreign nationals
      or
      employed outside the United States or both, on such terms and conditions
      different from those specified in the Plan, as may, in the judgment of the
      Board, be necessary or desirable to further the purpose of the
      Plan.

    


    11.   Termination
      and Amendment

    


    The
      Plan shall remain in full force and effect until terminated by the Board.
      Subject to the last sentence of this Section 11, the Board may at any time
      or
      times amend the Plan or any outstanding Award for any purpose that may at the
      time be permitted by law, or may at any time terminate the Plan as to any
      further grants of Awards. No amendment of the Plan or any agreement evidencing
      Awards under the Plan may adversely affect the rights of any participant under
      any Award previously granted without such participant's consent.