ex10_23.htm


    
      

    

     

    EXHIBIT
      10.22

    


    TOWER
      FINANCIAL CORPORATION

    


    2006
      EQUITY INCENTIVE PLAN

    


    
      	
               

            	
              1.

            	
              Purpose
                of the Plan and Available
                Awards.

            


    

    


    1.1           Purpose.  The
      purpose of this Tower Financial Corporation 2006 Equity Incentive Plan (“Plan”),
      effective upon approval by the Company’s Stockholders (the “Effective Date”), as
      contemplated by Section 1.2, is to create incentives designed to motivate
      Participants to put forth maximum effort toward the success and growth of the
      Company and to attract and retain qualified persons who by their position,
      ability and diligence are able to make important contributions to the Company’s
      success.  Toward these objectives, the Plan provides for awards of
      equity based incentives through the grant of Options, Restricted Stock Awards,
      Unrestricted Stock Awards, Stock Appreciation Rights and Performance Awards
      to
      Eligible Employees and the grant of Nonstatutory Stock Options,
      Restricted Stock Awards, Stock Appreciation Rights and Performance Awards to
      Eligible Directors, all subject to the conditions described in the
      Plan.

    


    1.2           Establishment.  The
      Effective Date of the Plan is the later to occur of January 1, 2006, or the
      date on which the holders of a majority of the outstanding shares of the
      Company’s common stock present, or represented, and entitled to vote at a
      meeting called for such purpose, approve the Plan, which approval must occur
      within twelve months after January 1, 2006.  No Awards under the
      Plan may be granted prior to the date of stockholder approval.

    


    1.3           Prior
      Plans.  No options remain available for grant under the
      Company’s 1998 and 2001 Stock Option and Incentive Plans (the “Prior Plans”) and
      no further options will be authorized or issued under the Prior
      Plans.  The Prior Plans will continue in effect, however, until all
      matters relating to the exercise of existing options and the administration
      of
      the Prior Plans have been settled.

    


    
      	
               

            	
              2.

            	
              Definitions.

            


    

    


    2.1           “409A
      Award” means an Award that is considered “nonqualified deferred compensation”
within the meaning of Section 409A of the Code and Section 8 of this
      Plan.

    


    2.2           “Administrator”
      means the Board or the Committee appointed by the Board in accordance with
      Section 3.5.

    


    2.3           “Affiliate”
      means any parent corporation or subsidiary corporation of the Company, whether
      now or hereafter existing, as those terms are defined in Sections 424(e) and
      (f), respectively, of the Code.

    


    2.4           “Award”
      means any right granted under the Plan, including an Incentive Stock Option,
      a
      Nonstatutory Stock Option, a Restricted Stock Award, an Unrestricted Stock
      Award, a Performance Award, a Stock Appreciation Right and a 409A
      Award.

    


    2.5           “Award
      Agreement” means a written agreement between the Company and a holder of an
      Award, evidencing the terms and conditions of an individual Award grant. Each
      Award Agreement shall be subject to the terms and conditions of the
      Plan.

    


    2.6           “Beneficial
      Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
      the Exchange Act.

    


    
      	
               

            	
              2.7

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

            


    

    


    
      	
               

            	
              2.8

            	
              “Business
                Combination” has the meaning set forth in
                Section 2.11(e).

            


    

    


    
      	
               

            	
              2.9

            	
              “Cashless
                Exercise” has the meaning set forth in
                Section 6.3.

            


    

    


    2.10           “Cause”
      means if the Participant is a party to an employment or service agreement with
      the Company or its Affiliates and such agreement provides for a definition
      of
      Cause, the definition therein contained, or, if no such agreement exists, it
      shall mean (a) the commission of, or plea of guilty or no contest to, a felony
      or a crime involving moral turpitude or the commission of any other act
      involving willful malfeasance or material fiduciary breach with respect to
      the
      Company or an Affiliate, (b) conduct tending to bring the Company into
      substantial public disgrace, or disrepute, or (c) gross negligence or willful
      misconduct with respect to the Company or an Affiliate. The Administrator,
      in
      its absolute discretion, shall determine the effect of all matters and questions
      relating to whether a Participant has been discharged for Cause.

    


    
      	
               

            	
              2.11

            	
              “Change
                in Control” shall mean:

            


    

    


    (a)           The
      direct or indirect sale, transfer, conveyance or other disposition (other than
      by way of merger or consolidation), in one or a series of related transactions,
      of all or substantially all of the properties or assets of the Company to any
      “person” (as that term is used in Section 13(d)(3) of the Exchange
      Act);

    


    
      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

    

     

    (b)           The
      Incumbent Directors cease for any reason to constitute at least a majority
      of
      the Board;

    


    (c)           The
      adoption of a plan relating to the liquidation or dissolution of the Company;
      or

    


    (d)           Any
      “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the
      Exchange Act) becomes the Beneficial Owner, directly or indirectly, of
      securities of the Company representing more than 50% of the combined voting
      power of the Company’s then outstanding securities eligible to vote for the
      election of the Board (the “Company Voting Securities”); or

    


    (e)           The
      consummation of a merger, consolidation, statutory share exchange or similar
      form of corporate transaction involving the Company or any of its Subsidiaries
      that requires the approval of the Company’s stockholders, whether for such
      transaction or the issuance of securities in the transaction (a “Business
      Combination”), unless immediately following such Business Combination: (1) 50%
      or more of the total voting power of (i) the Surviving Corporation, or (ii)
      if
      applicable, the ultimate Parent Corporation that directly or indirectly has
      beneficial ownership of 100% of the voting securities eligible to elect
      directors of the Surviving Corporation, is represented by Company Voting
      Securities that were outstanding immediately prior to such Business Combination
      (or, if applicable, is represented by shares into which such Company Voting
      Securities were converted pursuant to such Business Combination), and such
      voting power among the holders thereof is in substantially the same proportion
      as the voting power of such Company Voting Securities among the holders thereof
      immediately prior to the Business Combination, (2) no person (other than any
      employee benefit plan (or related trust) sponsored or maintained by the
      Surviving Corporation or the Parent Corporation), is or becomes the beneficial
      owner, directly or indirectly, of more than 50% of the total voting power of
      the
      outstanding voting securities eligible to elect directors of the Parent
      Corporation (or, if there is no Parent Corporation, the Surviving Corporation)
      and (3) at least a majority of the members of the board of directors of the
      Parent Corporation (or if there is no Parent Corporation, the Surviving
      Corporation) following the consummation of the Business Combination were
      Incumbent Directors at the time of the Board’s approval of the execution of the
      initial agreement providing for such Business Combination (any Business
      Combination which satisfies all of the criteria specified in (1), (2) and (3)
      above shall be deemed to be a “Non-Qualifying Transaction”).

    


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

    


    2.13          “Committee”
      means a committee of one or more members of the Board appointed by the Board
      to
      administer the Plan in accordance with Section 3.5.

    


    2.14          “Common
      Stock” means the common stock of the Company.

    


    2.15          “Company”
      means Tower Financial Corporation, an Indiana corporation.

    


    2.16          “Company
      Voting Securities” has the meaning set forth in
      Section 2.11(d).

    


    2.17          “Continuous
      Service” means that the Participant’s service with the Company or an Affiliate,
      whether as an Eligible Employee or an Eligible Director is not interrupted
      or
      terminated. The Administrator or its delegate, in its sole discretion, may
      determine whether Continuous Service shall be considered interrupted in the
      case
      of any approved leave of absence.

    


    2.18          “Covered
      Employee” means the chief executive officer and the four (4) other highest
      compensated officers of the Company for whom total compensation is required
      to
      be reported to stockholders under the Exchange Act, as determined for purposes
      of Section 162(m) of the Code.

    


    2.19          “Date
      of Grant” means the date on which the Administrator adopts a resolution, or
      takes other appropriate action, expressly granting an Award to a Participant
      that specifies the key terms and conditions of the Award and from which the
      Participant begins to benefit from or be adversely affected by subsequent
      changes in the Fair Market Value of the Company Common Stock or, if a different
      date is set forth in such resolution, or determined by the Administrator, as
      the
      Date of Grant, then such date as is set forth in such resolution.

    


    2.20          “Director”
      means a member of the Board of Directors of the Company.

    


    2.21          “Disability”
      means that the Optionholder is unable to engage in any substantial gainful
      activity by reason of any medically determinable physical or mental impairment;
      provided, however, for purposes of determining the term of an Incentive Stock
      Option pursuant to Section 6.4 hereof, the term Disability shall have the
      meaning ascribed to it under Code Section 22(e)(3). The determination of
      whether an individual has a Disability shall be determined under procedures
      established by the Administrator. Except in situations where the Administrator
      is determining Disability for purposes of the term of an Incentive Stock Option
      pursuant to Section 6.4 hereof within the meaning of Code
      Section 22(e)(3), the Administrator may rely on any determination that a
      Participant is disabled for purposes of benefits under any long-term disability
      plan maintained by the Company or any Affiliate in which a Participant
      participates.

    


    
      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

    

    


    2.22          “Eligible
      Director” means any member of the Board who is not an Eligible
      Employee.

    


    2.23          “Eligible
      Employee” means any person employed by the Company or an Affiliate, as approved
      by the Committee.

    


    2.24          “Exchange
      Act” means the Securities Exchange Act of 1934, as amended.

    


    2.25          “Fair
      Market Value” means, as of any date, the value of the Common Stock determined in
      good faith by the Administrator. The “Fair Market Value” of any share of Common
      Stock of the Company at any date shall be (a) if the Common Stock is traded
      on
      the Nasdaq National Market or is listed on any established stock exchange or
      exchanges, the last reported sale price per share on such date on the Nasdaq
      National Market or the principal exchange on which it is traded, or if no sale
      was made on such date on such principal exchange, at the closing reported bid
      price on such date on such exchange, or (b) if the Common Stock is not then
      listed on an exchange or quoted on Nasdaq, an amount determined in good faith
      by
      the Administrator.

    


    2.26          “Free
      Standing Rights” has the meaning set forth in Section 7.5(a).

    


    2.27          “Incentive
      Stock Option” means an Option intended to qualify as an incentive stock option
      within the meaning of Section 422 of the Code and the regulations promulgated
      thereunder.

    


    2.28          “Incumbent
      Directors” means individuals who, on the Effective Date, constitute the Board,
      provided that any individual becoming a Director subsequent to the Effective
      Date whose election or nomination for election to the Board was approved by
      a
      vote of at least two-thirds of the Incumbent Directors then on the Board (either
      by a specific vote or by approval of the proxy statement of the Company in
      which
      such person is named as a nominee for Director without objection to such
      nomination) shall be an Incumbent Director.

    


    2.29          “Net
      Exercise” the meaning set forth in Section 6.3.

    


    2.30          “Non-Employee
      Director” means a Director who is a “non-employee director” within the meaning
      of Rule 16b-3.

    


    2.31          “Nonstatutory
      Stock Option” means an Option not intended to qualify as an Incentive Stock
      Option.

    


    2.32          “Non-Qualifying
      Transaction” has the meaning set forth in Section 2.11(e).

    


    2.33          “Officer”
      means a person who is an officer of the Company within the meaning of Section
      16
      of the Exchange Act and the rules and regulations promulgated
      thereunder.

    


    2.34          “Option”
      means an Incentive Stock Option or a Nonstatutory Stock Option granted pursuant
      to the Plan.

    


    2.35          “Option
      Agreement” means a written agreement between the Company and an Optionholder
      evidencing the terms and conditions of an individual Option grant. Each Option
      Agreement shall be subject to the terms and conditions of the Plan and need
      not
      be identical.

    


    2.36          “Optionholder”
      means a person to whom an Option is granted pursuant to the Plan or, if
      applicable, such other person who holds an outstanding Option.

    


    2.37          “Outside
      Director” means a Director who is an “outside director” within the meaning of
      Section 162(m) of the Code and Treasury Regulations
§ 1.162-27(e)(3).

    


    2.38          “Participant”
      means a person to whom an Award is granted pursuant to the Plan or, if
      applicable, such other person who holds an outstanding Award, and includes
      an
      Eligible employee or an Eligible Director.

    


    2.39          “Performance
      Award” means Awards granted pursuant to Section 7.3.

    


    2.40          “Plan”
      means this Tower Financial Corporation 2006 Equity Incentive Plan.

    


    2.41          “Prior
      Outstanding Options” means an option or other award that was granted under the
      Prior Plans and continued to be outstanding as of the Effective Date. The number
      of Prior Outstanding Options as of the Effective Date of this Plan is 352,296
      shares.

    


    2.42          “Prior
      Plans” means the Tower Financial Corporation 1998 and 2001 Stock Option and
      Incentive Plans.

    


    2.43          “Related
      Rights” has the meaning set forth in Section 7.5(a).

    


    2.44          “Restricted
      Period” has the meaning set forth in Section 7.1.

    


    2.45          “Restricted
      Stock Award” means any Award granted pursuant to Section 7.1.

    


    
      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

    

    


    2.46          “Right
      of Repurchase” means the Company’s option to repurchase Common Stock acquired
      under the Plan upon the Participant’s termination of Continuous Service pursuant
      to Section 7.4.

    


    2.47          “Rule
      16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to
      Rule 16b-3, as in effect from time to time.

    


    2.48          “SAR
      Amount” has the meaning set forth in Section 7.5(h).

    


    2.49          “SAR
      Exercise Price” has the meaning set forth in Section 7.5(b).

    


    2.50          “SEC”
      means the Securities and Exchange Commission.

    


    2.51          “Securities
      Act” means the Securities Act of 1933, as amended.

    


    2.52          “Stock
      Appreciation Right” means the right pursuant to an award granted under Section
      7.5 to receive an amount equal to the excess, if any, of (A) the Fair Market
      Value, as of the date such Stock Appreciation Right or portion thereof is
      surrendered, of the shares of stock covered by such right or such portion
      thereof, over (B) the aggregate SAR Exercise Price of such right or such portion
      thereof.

    


    2.53          “Surviving
      Entity” means the Company if immediately following any merger, consolidation or
      similar transaction, the holders of outstanding voting securities or securities
      or rights convertible into voting securities of the Company immediately prior
      to
      the merger or consolidation own equity securities possessing more than 50%
      of
      the voting power of the entity existing following the merger, consolidation
      or
      similar transaction. In all other cases, the other entity to the transaction
      and
      not the Company shall be the Surviving Entity.

    


    2.54          “Ten
      Percent Stockholder” means a person who owns (or is deemed to own pursuant to
      Section 424(d) of the Code) stock possessing more than ten percent (10%) of
      the
      total combined voting power of all classes of stock of the Company or of any
      of
      its Affiliates.

    


    2.55          “Unrestricted
      Stock” means any Award of Common Stock granted pursuant to Section 7.2 that is
      not subject to restrictions on transfer or a risk of forfeiture.

    


    2.56          “Unrestricted
      Stock Award” means any Award granted pursuant to Section 7.2.

     

    
      
        	
                 

              	
                3.

              	
                Administration.

              


      

    

    


    3.1           Administration
      by Board.  The Plan shall be administered by the Board unless
      and until the Board delegates administration to a Committee, as provided in
      Section 3.5 (the group that administers the Plan is referred to as the
“Administrator”).

    


    3.2           Powers
      of Administrator.  The Administrator shall have the power and
      authority to select and grant Awards to Participants, pursuant to the terms
      of
      the Plan.

    


    3.3           Specific
      Powers.  In particular, the Administrator shall have the
      authority: (a) to construe and interpret the Plan and apply its provisions;
      (b)
      to promulgate, amend and rescind rules and regulations relating to the
      administration of the Plan; (c) to authorize any person to execute, on behalf
      of
      the Company, any instrument required to carry out the purposes of the Plan;
      (d)
      to delegate its authority to one or more Officers of the Company with respect
      to
      awards that do not involve Covered Employees or “insiders” within the meaning of
      Section 16 of the Exchange Act; (e) to determine when Awards are to be granted
      under the Plan; (f) from time to time to select, subject to the limitations
      set
      forth in this Plan, those Participants to whom Awards shall be granted; (g)
      to
      determine the number of shares of Common Stock to be made subject to each Award;
      (h) to determine whether each Option is to be an Incentive Stock Option or
      a
      Nonstatutory Stock Option; (i) to prescribe the terms and conditions of each
      Award, including, without limitation, the purchase price or exercise price
      and
      medium of payment, vesting provisions and Right of Repurchase provisions, and
      to
      specify the provisions of the Award Agreement relating to such grant or sale;
      (j) to amend any outstanding Awards, including for the purpose of modifying
      the
      time or manner of vesting, the term of any Award, the purchase price or exercise
      price, as the case may be, subject to applicable legal restrictions; provided,
      however, that the Administrator may not, without the approval of the
      stockholders of the Company, (A) reprice or otherwise reduce the exercise price
      of unexercised Options, or (B) cancel previously granted Options and issue
      new
      Options to the same Optionholder at a lower exercise price. In addition, if
      any
      such amendment impairs a Participant’s rights or increases a Participant’s
      obligations under his or her Award, such amendment shall also be subject to
      the
      Participant’s consent (provided, however, a cancellation of an Award where the
      Participant receives a payment equal in value to the Fair Market Value of the
      vested Award or, in the case of vested Options, the difference between the
      Fair
      Market Value of the Common Stock underlying the Options and the exercise price,
      shall not constitute an impairment of the Participant’s rights that requires
      consent); (k) to determine the duration and purpose of leaves of absences which
      may be granted to a Participant without constituting termination of their
      Continuous Service for purposes of the Plan, which periods shall be no shorter
      than the periods generally applicable to Employees under the Company’s
      employment policies; (l) to make decisions with respect to outstanding Options
      that may become necessary upon a Change in Control or an event that triggers
      anti-dilution adjustments; and (m) to exercise discretion to make any and all
      other determinations which it determines to be necessary or advisable for
      administration of the Plan.

    


    
      
        
          
          

        

        
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    3.4           Decisions
      Final.  All decisions made by the Administrator pursuant to
      the provisions of the Plan shall be final and binding on the Company and the
      Participants, unless such decisions are determined by a court having
      jurisdiction to be arbitrary and capricious.

    


    3.5           The
      Committee.

    


    (a)           General.  The
      Board may delegate administration of the Plan to a Committee or Committees
      of
      two (2) or more members of the Board, including the Compensation Committee,
      and
      the term “Committee” shall apply to any person or persons to whom such authority
      has been delegated. If administration is delegated to a Committee, the Committee
      shall have, in connection with the administration of the Plan, the powers
      theretofore possessed by the Board. The Board may abolish the Committee at
      any
      time and revest in the Board the administration of the Plan. The members of
      the
      Committee shall be appointed by and to serve at the pleasure of the Board.
      From
      time to time, the Board may increase or decrease the size of the Committee,
      add
      additional members to, remove members (with or without Cause) from, appoint
      new
      members in substitution therefor, and fill vacancies, however caused, in the
      Committee. The Committee shall act pursuant to a vote of the majority of its
      members or, in the case of a committee comprised of only two members, the
      unanimous consent of its members, whether present or not, or by the written
      consent of the majority of its members and minutes shall be kept of all of
      its
      meetings and copies thereof shall be provided to the Board. Subject to the
      limitations prescribed by the Plan and the Board, the Committee may establish
      and follow such rules and regulations for the conduct of its business as it
      may
      determine to be advisable.

    


    (b)           Committee
      Composition.  The Committee shall consist solely of two
      or more Non-Employee Directors who are also Outside Directors. Within the scope
      of such authority, the Administrator may (i) delegate to a committee of two
      or
      more members of the Board who are not Outside Directors the authority to grant
      Awards to eligible persons who are either (A) not then Covered Employees and
      are
      not expected to be Covered Employees at the time of recognition of income
      resulting from such Award or (B) not persons with respect to whom the Company
      wishes to comply with Section 162(m) of the Code or (ii) delegate to a committee
      of two or more members of the Board who are not Non-Employee Directors the
      authority to grant Stock Awards to eligible persons who are not then subject
      to
      Section 16 of the Exchange Act. In addition, the Administrator may delegate
      its
      authority within specified parameters to one or more Officers of the Company
      with respect to awards that do not involve Covered Employees or “insiders”
within the meaning of Section 16 of the Exchange Act;

    


    3.6           Indemnification.  In
      addition to such other rights of indemnification as they may have as Directors
      or members of the Committee, and to the extent allowed by applicable law, the
      Administrator and each of the Administrator’s consultants shall be indemnified
      by the Company against the reasonable expenses, including attorney’s fees,
      actually incurred in connection with any action, suit or proceeding or in
      connection with any appeal therein, to which the Administrator or any of its
      consultants may be party by reason of any action taken or failure to act under
      or in connection with the Plan or any Option granted under the Plan, and against
      all amounts paid by the Administrator or any of its consultants in settlement
      thereof ( provided, however, that the settlement has been approved by the
      Company, which approval shall not be unreasonably withheld) or paid by the
      Administrator or any of its consultants in satisfaction of a judgment in any
      such action, suit or proceeding, except in relation to matters as to which
      it
      shall be adjudged in such action, suit or proceeding that such Administrator
      or
      any of its consultants did not act in good faith and in a manner which such
      person reasonably believed to be in the best interests of the Company, and
      in
      the case of a criminal proceeding, had no reason to believe that the conduct
      complained of was unlawful; provided, however, that within 60 days after
      institution of any such action, suit or proceeding, such Administrator or any
      of
      its consultants shall, in writing, offer the Company the opportunity at its
      own
      expense to handle and defend such action, suit or proceeding.

    


    
      	
               

            	
              4.

            	
              Eligibility.

            


    

    


    
      	
               

            	
              4.1

            	
              Eligibility
                for Specific Awards.  Awards under the Plan may be
                granted to any Participant  who is designated by the
                Administrator to receive an Award.

            


    

    


    
      	
               

            	
              4.2

            	
              4.2

            	
              Ten
                Percent Stockholders.  A Ten Percent Stockholder shall
                not be granted an Incentive Stock Option unless the exercise price
                of such
                Option is at least 110% of the Fair Market Value of the Common Stock
                at
                the Date of Grant and the Option is not exercisable after the expiration
                of five years from the Date of
                Grant.

            


    

    


    5.            
      Shares Subject to Awards.  The stock available for
      grant of Options and other Awards under the Plan shall be shares of the
      Company’s authorized but unissued, or reacquired, Common Stock. The aggregate
      number of shares which may be issued pursuant to exercise of Awards granted
      under the Plan, including Incentive Stock Options, is one hundred fifty thousand
      (150,000) shares of Common Stock, subject to adjustment as provided in Section
      6.13. Awards for fractional shares of Common Stock may not be issued under
      the
      terms of the Plan.

    


    
      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

    

    


    5.1           Section
      162(m) Limitation.  The maximum number of shares with respect
      to which Awards may be granted to any Employee in any one calendar year shall
      be
      50,000 shares.

    


    5.2           Reversion
      of Shares to Share Reserve.  If any Award shall for any
      reason expire or otherwise terminate, in whole or in part, without having been
      exercised in full or being fully vested, the shares of Common Stock not acquired
      under such Award shall revert to and again become available for issuance under
      the Plan. If shares of Common Stock issued under the Plan are reacquired by
      the
      Company pursuant to the terms of any forfeiture provision, including the Right
      of Repurchase of unvested Common Stock under Section 7.4, except for shares
      acquired pursuant to a Net Exercise transaction, such shares shall again be
      available for purposes of the Plan.

    


    6.           
       Terms and Conditions of Options.  Options
      granted under the Plan shall be evidenced by Option Agreements (which need
      not
      be identical) in such form and containing such provisions which are consistent
      with the Plan as the Administrator shall from time to time approve. Each
      agreement shall specify whether the Option granted thereby is an Incentive
      Stock
      Option or a Nonstatutory Stock Option. Options granted to an Eligible
      Director may only be Nonstatutory Stock Options. Such agreements may
      incorporate all or any of the terms hereof by reference and shall comply with
      and be subject to the following terms and conditions:

    


    6.1           Number
      of Shares Subject to Option.  Each Option Agreement shall
      specify the number of shares subject to the Option.

    


    6.2           Option
      Price.  The purchase price for the shares subject to any
      Option shall not be less than 100% of the Fair Market Value of the shares of
      Common Stock of the Company on the date the Option is granted.

    


    6.3           Medium
      and Time of Payment.  The purchase price of Common Stock
      acquired pursuant to an Option shall be paid, to the extent permitted by
      applicable statutes and regulations, either (a) in cash or by certified or
      bank
      check at the time the Option is exercised or (b) in the discretion of the
      Administrator and upon such terms as the Administrator shall approve, the
      exercise price may be paid: (i) by delivery to the Company of other Common
      Stock, duly endorsed for transfer to the Company, with a Fair Market Value
      on
      the date of delivery equal to the exercise price (or portion thereof) due for
      the number of shares being acquired, (ii) by the withholding of whole shares
      of
      Common Stock which would otherwise be delivered, having an aggregate Fair Market
      Value on the date of delivery equal to the exercise price (“Net Exercise”),
      (iii) during any period for which the Common Stock is publicly traded, in cash
      by a broker-dealer acceptable to the Company to whom the optionee has submitted
      an irrevocable notice of exercise (a “Cashless Exercise”); (iv) by a combination
      of any of such methods, or (v) in such other manner as the Administrator, in
      its
      discretion, either at the time of grant or thereafter, may
      provide.  The Administrator may also, in its discretion, require as a
      condition of exercise that the optionee pay to the Company federal, state or
      local withholding or employment tax required by law, which payment may be made
      by any of the foregoing methods.

    


    Unless
      otherwise specifically provided in the Option, the purchase price of Common
      Stock acquired pursuant to an Option that is paid by delivery to the Company
      of
      other Common Stock acquired, directly or indirectly from the Company, shall
      be
      paid only by shares of the Common Stock of the Company that have been held
      for
      more than six months (or such longer or shorter period of time required to
      avoid
      a charge to earnings for financial accounting purposes). Notwithstanding the
      foregoing, during any period for which the Common Stock is publicly traded,
      a
      Cashless Exercise or a Net Exercise or other transaction by a Director or
      executive officer that involves or may involve a direct or indirect extension
      of
      credit or arrangement of an extension of credit by the Company, or an Affiliate
      in violation of section 402(a) of the Sarbanes-Oxley Act (codified as Section
      13(k) of the Exchange Act) shall be prohibited with respect to any Award under
      this Plan. Unless otherwise provided in the terms of an Option Agreement,
      payment of the exercise price by a Participant who is an officer, director
      or
      other “insider” subject to Section 16(b) of the Exchange Act through a Net
      Exercise transaction is subject to pre-approval by the Administrator, in its
      sole discretion, which pre-approval shall be documented in a manner that
      complies with the specificity requirements of Rule 16b-3, including the name
      of
      the Participant involved in the transaction, the nature of the transaction,
      the
      number of shares to be acquired or disposed of by the Participant and the
      material terms of the Options involved in the transaction.

    


    6.4           Term
      of Option.  No Option granted to an Eligible Employee or an
      Eligible Director shall be exercisable after the expiration of the earliest
      of
      (a) six years after the date the Option is granted, (b) ninety days after the
      date the Optionholder’s Continuous Service with the Company and its Affiliates
      terminates if such termination is for any reason other than Disability, death,
      or Cause, (c) the date the Optionholder’s Continuous Service with the Company
      and its Affiliates terminates if such termination is for Cause, as determined
      by
      the Board or by the Committee in its sole discretion, or (d) one year after
      the
      date the Optionholder’s Continuous Service with the Company and its Affiliates
      terminates if such termination is a result of death or Disability, or death
      results within not more than ninety days of the date on which the Optionholder’s
      Continuous Service terminates; provided, however, that the Option Agreement
      for
      any Option may provide for shorter periods in each of the foregoing
      instances.

    


    
      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

    

    


    6.5           Exercise
      of Option.  No Option shall be exercisable during the
      lifetime of an Optionholder by any person other than the Optionholder. The
      Administrator shall have the power to set the time or times within which each
      Option shall be exercisable and to accelerate the time or times of
      exercise.

    


    To
      the
      extent that an Optionholder has the right to exercise an Option and purchase
      shares pursuant thereto, the Option may be exercised from time to time by
      written notice to the Company, stating the number of shares being purchased
      and
      accompanied by payment in full, in any ways permitted hereunder, of the purchase
      price for such shares.

    


    6.6           No
      Transfer of Option.  No Option shall be transferable by an
      Optionholder otherwise than by will or the laws of descent and distribution.
      Notwithstanding the foregoing, the Optionholder may, by delivering written
      notice to the Company, in a form satisfactory to the Company, designate a third
      party who, in the event of the death of the Optionholder, shall thereafter
      be
      entitled to exercise the Option.

    


    6.7           Limit
      on Incentive Stock Options.  To the extent that the aggregate
      Fair Market Value (determined at the time the Option is granted) of the stock
      with respect to which Incentive Stock Options are exercisable for the first
      time
      by an Optionholder during any calendar year (under all Incentive Stock Option
      plans of the Company and its subsidiaries) exceeds $100,000, the Options or
      portions thereof which exceed such limit (according to the order in which they
      were granted) shall be treated as Nonstatutory Stock Options.

    


    6.8           Restriction
      on Issuance of Shares.  The issuance of Options and shares
      shall be subject to compliance with all of the applicable requirements of law
      with respect to the issuance and sale of securities.

    


    6.9           Investment
      Representation.  Any Optionholder may be required, as a
      condition of issuance of shares covered by his or her Option, to represent
      that
      the shares to be acquired pursuant to exercise of the Option will be acquired
      for investment and without a view to distribution thereof, and in such case,
      the
      Company may place a legend on the certificate evidencing the shares reflecting
      the fact that they were acquired for investment and cannot be sold or
      transferred unless registered under the Securities Act of 1933, as amended,
      or
      unless counsel for the Company is satisfied that the circumstances of the
      proposed transfer do not require such registration.

    


    6.10          Rights
      as a Stockholder or Employee.  An Optionholder or transferee
      of an Option shall have no rights as a stockholder of the Company with respect
      to any shares covered by any Option until the date of issuance of a share
      certificate for such shares, or the shares have been duly transferred
      electronically. No adjustment shall be made for dividends (ordinary or
      extraordinary, whether cash, securities, or other property), distributions
      or
      other rights for which the record date is prior to the date such share
      certificate is issued or electronic transfer recorded, except as provided in
      Section 6.13. Nothing in the Plan or in any Option Agreement shall confer upon
      any Employee any right to continue in the employ of the Company or any of its
      Affiliates or interfere in any way with any right of the Company or any
      Affiliate to terminate the Optionholder’s Continuous Service at any
      time.

    


    6.11          No
      Fractional Shares.  In no event shall the Company be required
      to issue fractional shares upon the exercise of an Option.

    


    6.12          Exercisability
      in the Event of Death.  In the event of the death of the
      Optionholder while he or she is an Eligible Employee or an Eligible Director
      of
      the Company or any of its Affiliates or within not more than ninety days of
      the
      date on which he or she ceased to be an Eligible Employee or an Eligible
      Director, any Option or unexercised portion thereof granted to the Optionholder,
      to the extent exercisable by him or her on the date of death, may be exercised
      by the Optionholder’s designated beneficiary, personal representatives, heirs,
      or legatees, subject to the provisions of Section 6.4 hereof.

    


    6.13          Recapitalization
      or Reorganization of Company.  Except as otherwise provided
      herein, appropriate and proportionate adjustments shall be made in the number
      and class of shares subject to the Plan and to the Option rights granted under
      the Plan, and the exercise price of such Option rights, in the event of a stock
      dividend (but only on Common Stock), stock split, reverse stock split,
      recapitalization, reorganization, merger, consolidation, separation, or like
      change in the capital structure of the Company.

    


    6.14          Additional
      Requirements Under Section 409A.  Each Option Agreement shall
      include or be deemed to include a provision whereby, notwithstanding any
      provision of the Plan or the Option Agreement to the contrary, the Option shall
      satisfy the additional conditions applicable to nonqualified deferred
      compensation under Section 409A of the Code, in accordance with Section 8
      hereof, in the event any Option under this Plan is granted with an exercise
      price less than Fair Market Value of the Common Stock subject to the Option
      on
      the date the Option is granted (regardless of whether or not such exercise
      price
      is intentionally or unintentionally priced at less than Fair Market Value,
      or is
      materially modified at a time when the Fair Market Value exceeds the exercise
      price), or is otherwise determined to constitute “nonqualified deferred
      compensation” within the meaning of Section 409A of the Code.

    


    6.15          Other
      Provisions.  Each Option may contain such other terms,
      provisions, and conditions not inconsistent with the Plan as may be determined
      by the Administrator. Notwithstanding the foregoing, the Company shall have
      no
      liability to any Participant or any other person if an Option designated as
      an
      Incentive Stock Option fails to qualify as such at any time or if an Option
      is
      determined to constitute “nonqualified deferred compensation” within the meaning
      of Section 409A of the Code and the terms of such Option do not satisfy the
      additional conditions applicable to nonqualified deferred compensation under
      Section 409A of the Code and Section 8 of the Plan.

    


    
      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

    

    


    
      	
               

            	
              7.

            	
              Provisions
                of Awards Other Than
                Options.

            


    

    


    7.1           Restricted
      Stock Awards.  The Administrator may from time to time award
      (or sell at a purchase price determined by the Administrator) restricted Common
      Stock under the Plan to eligible Participants. Restricted Stock Awards may
      not
      be sold, assigned, transferred or otherwise disposed of, pledged or hypothecated
      as collateral for a loan or as security for the performance of any obligation
      or
      for any other purpose for such period (the “Restricted Period”) as the
      Administrator shall determine. Each Restricted Stock Award shall be in such
      form
      and shall contain such terms, conditions and Restricted Periods, whether time
      based, performance based or both, as the Administrator shall deem appropriate,
      including the treatment of dividends or dividend equivalents, as the case may
      be. The Administrator in its discretion may provide for an acceleration of
      the
      end of the Restricted Period in the terms of any Restricted Stock Award, at
      any
      time, including in the event a Change in Control occurs. The terms and
      conditions of the restricted stock purchase agreements may change from time
      to
      time, and the terms and conditions of separate Restricted Stock Awards need
      not
      be identical, but each Restricted Stock Award shall include (through
      incorporation of provisions hereof by reference in the Award Agreement or
      otherwise) the substance of each of the following provisions:

    


    (a)           Purchase
      Price.  The purchase price of
      Restricted Stock Awards shall be determined by the Administrator, and may be
      stated as cash, property or prior services.

    


    (b)           Consideration.  The
      consideration for Common Stock acquired pursuant to the Restricted Stock Award,
      if sold and not simply awarded, shall be paid either: (i) in cash at the time
      of
      purchase; or (ii) in any other form of legal consideration that may be
      acceptable to the Administrator in its discretion including, without limitation,
      a full recourse secured promissory note, property or prior services that the
      Administrator determines have a value at least equal to the Fair Market Value
      of
      such Common Stock.

    


    (c)           Vesting.  Shares
      of Common Stock acquired under the Restricted Stock Award may, but need not
      be
      subject to a Restricted Period that specifies a Right of Repurchase in favor
      of
      the Company in accordance with a vesting schedule to be determined by the
      Administrator, or forfeiture in the event the consideration was in the form
      of
      prior services.

    


    (d)           Termination
      of Participant’s Continuous
      Service.  Unless otherwise provided in
      a Restricted Stock Award or in an employment agreement the terms of which have
      been approved by the Administrator, in the event a Participant’s Continuous
      Service terminates for any reason, the Company may exercise its Right of
      Repurchase or otherwise reacquire, or the Participant shall forfeit the unvested
      portion of a Restricted Stock Award acquired in consideration of prior or future
      services, and any or all of the shares of Common Stock held by the Participant
      which have not vested as of the date of termination under the terms of the
      Restricted Stock Award shall be forfeited and the Participant shall have no
      rights with respect to the Award.

    


    (e)           Transferability.  Rights
      to acquire shares of Common Stock under the Restricted Stock Award shall be
      transferable by the Participant only upon such terms and conditions as are
      set
      forth in the Award Agreement, as the Administrator shall determine in its
      discretion, so long as Common Stock awarded under the Restricted Stock Award
      remains subject to the terms of the Award Agreement.

    


    (f)           Concurrent
      Tax Payment.  The Administrator, in its
      sole discretion, may also (but shall not be required to) provide for payment
      of
      a concurrent cash award in an amount equal, in whole or in part, to the
      estimated after tax amount required to satisfy applicable federal, state or
      local tax withholding obligations arising from the receipt and deemed vesting
      of
      restricted stock for which an election under Section 83(b) of the Code may
      be
      required.

    


    (g)           Lapse
      of Restrictions.  Upon the expiration
      or termination of the Restricted Period and the satisfaction of any other
      conditions prescribed by the Administrator, the restrictions applicable to
      the
      Restricted Stock Award shall lapse and a stock certificate for the number of
      shares of Common Stock with respect to which the restrictions have lapsed shall
      be delivered, free of any restrictions except those that may be imposed by
      law,
      the terms of the Plan or the terms of a Restricted Stock Award, to the
      Participant or the Participant’s beneficiary or estate, as the case may be,
      unless such Restricted Stock Award is subject to a deferral condition that
      complies with the 409A Award requirements that may be allowed or required by
      the
      Administrator in its sole discretion. The Company shall not be required to
      deliver any fractional share of Common Stock but will pay, in lieu thereof,
      the
      Fair Market Value of such fractional share in cash to the Participant or the
      Participant’s beneficiary or estate, as the case may be. Unless otherwise
      subject to a deferral condition that complies with the 409A Award requirements,
      the Common Stock certificate shall be issued and delivered and the Participant
      shall be entitled to the beneficial ownership rights of such Common Stock not
      later than (i) the date that is 2-1/2 months after the end of the Participant’s
      or the Company’s taxable year for which the Restricted Period ends and the
      Participant has a legally binding right to such amounts, whichever is later,
      or
      (ii) such earlier date as may be necessary to avoid application of Code Section
      409A to such Award.

    


    
      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

    

     

    7.2           Unrestricted
      Stock Awards.  The Administrator may, in its sole discretion,
      award (or sell at a purchase price determined by the Administrator) an
      Unrestricted Stock Award to any Participant, pursuant to which such individual
      may receive shares of Common Stock free of any vesting restriction
      (“Unrestricted Stock”) under the Plan. Unrestricted Stock Awards may be granted
      or sold as described in the preceding sentence in respect of past services
      or
      other valid consideration, or in lieu of any cash compensation due to such
      individual.

    


    
      	
               

            	
              7.3

            	
              Performance
                Awards.

            


    

    


    (a)           Nature
      of Performance Awards.  A Performance
      Award is an Award entitling the recipient to acquire cash, actual shares of
      Common Stock or hypothetical Common Stock units having a value equal to the
      Fair
      Market Value of an identical number of shares of Common Stock upon the
      attainment of specified performance goals. The Administrator may make
      Performance Awards independent of or in connection with the granting of any
      other Award under the Plan. Performance Awards may be granted under the Plan
      to
      any Participant. The Administrator in its sole discretion shall determine
      whether and to whom Performance Awards shall be made, the performance goals
      applicable under each Award, the periods during which performance is to be
      measured, and all other limitations and conditions applicable to the awarded
      cash or shares.

    


    Performance
      goals shall be based on a pre-established objective formula or standard,
      measured over one or more performance periods, that specifies the manner of
      determining the amount of cash or the number of shares under the Performance
      Award that will be granted or will vest if the performance goal is attained.
      Performance goals will be determined by the Administrator prior to the time
      25%
      of the service period has elapsed and may be based on one or more business
      criteria that apply to a Participant, a business unit or the Company and its
      Affiliates. Such business criteria may include, by way of example and without
      limitation, revenue, earnings before interest, taxes, depreciation and
      amortization (“EBITDA”), operating, pre-tax or after-tax income (Company-wide or
      by operating units or division), earnings per share, return on equity, return
      on
      assets, return on capital, economic value added, share price performance,
      improvements in the Company’s attainment of expense levels, and implementing or
      completion of critical projects or improvement in cash-flow (before or after
      tax). The level or levels of performance specified with respect to a performance
      goal may be established in absolute terms, as objectives relative to performance
      in prior periods, as an objective compared to the performance of one or more
      comparable companies or an index covering multiple companies, or otherwise
      as
      the Administrator may determine.

    


    Performance
      goals shall be objective and shall otherwise meet the requirements of Section
      162(m) of the Code. Performance goals may differ for Performance Awards granted
      to any one Participant or to different Participants. A Performance Award to
      a
      Participant who is a Covered Employee shall (unless the Administrator determines
      otherwise) provide that in the event of the Participant’s termination of
      Continuous Service prior to the end of the performance period for any reason,
      such Award will be payable only (i) if the applicable performance objectives
      are
      achieved and (ii) to the extent, if any, as the Administrator shall
      determine.

    


    (b)           Restrictions
      on Transfer.  Performance Awards and
      all rights with respect to such Performance Awards may not be sold, assigned,
      transferred, pledged or otherwise encumbered.

    


    (c)           Rights
      as a Stockholder.  A Participant
      receiving a Performance Award shall have the rights of a stockholder only as
      to
      shares actually received by the Participant under the Plan and not with respect
      to shares subject to the Award but not actually received by the Participant.
      A
      Participant shall be entitled to receive a stock certificate evidencing the
      acquisition of shares of Common Stock under a Performance Award only upon
      satisfaction of all conditions specified in the written instrument evidencing
      the Performance Award (or in a performance plan adopted by the Administrator).
      The Common Stock certificate shall be issued and delivered and the Participant
      shall be entitled to the beneficial ownership rights of such Common Stock not
      later than (i) the date that is 2-1/2 months after the end of the Participant’s
      or the Company’s taxable year for which the Administrator certifies that the
      Performance Award conditions have been satisfied and the Participant has a
      legally binding right to such amounts, whichever is later, or (ii) such other
      date as may be necessary to avoid application of Section 409A to such
      Awards.

    


    (d)           Termination.  Except
      as may otherwise be provided by the Administrator at any time, a Participant’s
      rights in all Performance Awards shall automatically terminate upon the
      Participant’s termination of Continuous Service (or business relationship) with
      the Company and its Affiliates for any reason.

    


    
      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

    

    


    (e)           Acceleration,
      Waiver, Etc.  At any time prior to the
      Participant’s termination of Continuous Service (or other business relationship)
      by the Company and its Affiliates, the Administrator may in its sole discretion
      accelerate, waive or, subject to Section 8, amend any or all of the goals,
      restrictions or conditions imposed under any Performance Award. The
      Administrator in its discretion may provide for an acceleration of vesting
      in
      the terms of any Performance Award at any time, including in the event a Change
      in Control occurs.

    


    (f)           Certification.  Following
      the completion of each performance period, the Administrator shall certify
      in
      writing, in accordance with the requirements of Section 162(m) of the Code,
      whether the performance objectives and other material terms of a Performance
      Award have been achieved or met. Unless the Administrator determines otherwise,
      Performance Awards shall not be settled until the Administrator has made the
      certification specified under this Section 7.3(f).

    


    7.4           Right
      of Repurchase.  Each Award Agreement may provide that,
      following a termination of the Participant’s Continuous Service, the Company may
      repurchase the Participant’s unvested Common Stock acquired under the Plan as
      provided in this Section 7.4 (the “Right of Repurchase”). The Right of
      Repurchase shall be exercisable with respect to unvested stock at a price equal
      to the lesser of the purchase price at which such Common Stock was acquired
      under the Plan or the Fair Market Value of such Common Stock. The Award
      Agreement may specify the period of time following a termination of the
      Participant’s Continuous Service during which the Right of Repurchase may be
      exercised, provided that such exercise may in any event be extended to a date
      that is at least 60 days after the six months anniversary of the date the stock
      was acquired from the Company.

    


    
      	
               

            	
              7.5

            	
              Stock
                Appreciation Rights.

            


    

    


    (a)           General.  Stock
      Appreciation Rights may be granted either alone (“Free Standing Rights”) or,
      provided the requirements of Section 7.5(b) are satisfied, in tandem with all
      or
      part of any Option granted under the Plan (“Related Rights”). In the case of a
      Nonstatutory Stock Option, Related Rights may be granted either at or after
      the
      time of the grant of such Option. In the case of an Incentive Stock Option,
      Related Rights may be granted only at the time of the grant of the Incentive
      Stock Option.

    


    (b)           Grant
      Requirements.  A Stock Appreciation
      Right may only be granted if the Stock Appreciation Right: (i) does not provide
      for the deferral of compensation within the meaning of Section 409A of the
      Code;
      or (ii) satisfies the requirements of Section 7.5(f) and Section 8 hereof.
      A
      Stock Appreciation Right does not provide for a deferral of compensation if:
      (A)
      the value of the Common Stock the excess over which the right provides for
      payment upon exercise (the “SAR Exercise Price”) may never be less than the Fair
      Market Value of the underlying Common Stock on the date the right is granted,
      (B) the compensation payable under the Stock Appreciation Right can never be
      greater than the difference between the SAR Exercise Price and the Fair Market
      Value of the Common Stock on the date the Stock Appreciation Right is exercised,
      (C) the number of shares of Common Stock subject to the Stock Appreciation
      Right
      is fixed on the date of grant of the Stock Appreciation Right, and (D) the
      right
      does not include any feature for the deferral of compensation other than the
      deferral of recognition of income until the exercise of the right.

    


    (c)           Exercise
      and Payment.  Upon exercise thereof,
      the holder of a Stock Appreciation Right shall be entitled to receive from
      the
      Company, an amount equal to the product of (i) the excess of the Fair Market
      Value, on the date of such written request, of one share of Common Stock over
      the SAR Exercise Price per share specified in such Stock Appreciation Right
      or
      its related Option, multiplied by (ii) the number of shares for which such
      Stock
      Appreciation Right shall be exercised. Payment with respect to the exercise
      of a
      Stock Appreciation Right that satisfies the requirements of Section 7.5(b)(i)
      shall be paid on the date of exercise and made in shares of Common Stock (with
      or without restrictions as to substantial risk of forfeiture and
      transferability, as determined by the Administrator in its sole discretion),
      valued at Fair Market Value on the date of exercise. Payment with respect to
      the
      exercise of a Stock Appreciation Right that does not satisfy the requirements
      of
      Section 7.5(b)(i) shall be paid at the time specified in the Award in accordance
      with the provisions of Section 7.5(f) and Section 8. Payment may be made in
      the
      form of shares of Common Stock (with or without restrictions as to substantial
      risk of forfeiture and transferability, as determined by the Administrator
      in
      its sole discretion), cash or a combination thereof, as determined by the
      Administrator.

    


    
      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

    

    


    (d)           Exercise
      Price.  The exercise price of a Free
      Standing Stock Appreciation Right shall be determined by the Administrator,
      but
      shall not be less than 100% of the Fair Market Value of one share of Common
      Stock on the Date of Grant of such Stock Appreciation Right. A Related Right
      granted simultaneously with or subsequent to the grant of an Option and in
      conjunction therewith or in the alternative thereto shall have the same exercise
      price as the related Option, shall be transferable only upon the same terms
      and
      conditions as the related Option, and shall be exercisable only to the same
      extent as the related Option; provided, however, that a Stock Appreciation
      Right, by its terms, shall be exercisable only when the Fair Market Value per
      share of Common Stock subject to the Stock Appreciation Right and related Option
      exceeds the exercise price per share thereof and no Stock Appreciation Rights
      may be granted in tandem with an Option unless the Administrator determines
      that
      the requirements of Section 7.5(b)(i) are satisfied.

    


    (e)           Reduction
      in the Underlying Option Shares.  Upon
      any exercise of a Stock Appreciation Right, the number of shares of Common
      Stock
      for which any related Option shall be exercisable shall be reduced by the number
      of shares for which the Stock Appreciation Right shall have been exercised.
      The
      number of shares of Common Stock for which a Stock Appreciation Right shall
      be
      exercisable shall be reduced upon any exercise of any related Option by the
      number of shares of Common Stock for which such Option shall have been
      exercised.

    


    (f)           Additional
      Requirements under Section 409A.  A
      Stock Appreciation Right that is not intended to or fails to satisfy the
      requirements of Section 7.5(b)(i) shall satisfy the requirements of this Section
      7.5 (f) and the additional conditions applicable to nonqualified deferred
      compensation under Section 409A of the Code, in accordance with Section 8
      hereof. The requirements herein shall apply in the event any Stock Appreciation
      Right under this Plan is granted with an SAR Exercise Price less than Fair
      Market Value of the Common Stock underlying the Award on the date the Stock
      Appreciation Right is granted (regardless of whether or not such SAR Exercise
      Price is intentionally or unintentionally priced at less than Fair Market Value,
      or is materially modified at a time when the Fair Market Value exceeds the
      SAR
      Exercise Price), provides that it is settled in cash, or is otherwise determined
      to constitute “nonqualified deferred compensation” within the meaning of Section
      409A of the Code. Any such Stock Appreciation Right may provide that it is
      exercisable at any time permitted under the governing written instrument, but
      such exercise shall be limited to fixing the measurement of the amount, if
      any,
      by which the Fair Market Value of a share of Common Stock on the date of
      exercise exceeds the SAR Exercise Price (the “SAR Amount”). However, once the
      Stock Appreciation Right is exercised, the SAR Amount may only be paid on the
      fixed time, payment schedule or other event specified in the governing written
      instrument or in Section 8.1 hereof.

    


    8.            
      Additional Conditions Applicable to Nonqualified Deferred Compensation Under
      Section 409A of the Code.

    


    In
      the
      event any Award under this Plan is granted with an exercise price less than
      Fair
      Market Value of the Common Stock subject to the Award on the Date of Grant
      (regardless of whether or not such exercise price is intentionally or
      unintentionally priced at less than Fair Market Value, or such Award is
      materially modified and deemed a new Award at a time when the Fair Market Value
      exceeds the exercise price), or is otherwise determined to constitute a 409A
      Award, the following additional conditions shall apply and shall supersede
      any
      contrary provisions of this Plan or the terms of any 409A Award
      agreement.

    


    8.1           Exercise
      and Distribution.  No 409A Award shall be exercisable or
      distributable earlier than upon one of the following:

    


    (a)           Specified
      Time.  A specified time or a fixed
      schedule set forth in the written instrument evidencing the 409A Award, but
      not
      later than after the expiration of 10 years from the Date of Grant. If the
      written grant instrument does not specify a fixed time or schedule, such time
      shall be the date that is the fifth anniversary of the Date of
      Grant.

    


    (b)           Separation
      from Service.  Separation from service
      (within the meaning of Section 409A of the Code) by the 409A Award recipient;
      provided, however, if the 409A Award recipient is a “key employee” (as defined
      in Section 416(i) of the Code without regard to paragraph (5) thereof) and
      any
      of the Company’s stock is publicly traded on an established securities market or
      otherwise, exercise or distribution under this Section 8.1(b) may not be made
      before the date which is six months after the date of separation from
      service.

    


    (c)           Death.  The
      date of death of the 409A Award recipient.

    


    (d)           Disability.  The
      date the 409A Award recipient becomes disabled (within the meaning of Section
      8.4(b) hereof).

    


    (e)           Unforeseeable
      Emergency.  The occurrence of an
      unforeseeable emergency (within the meaning of Section 8.4(b) hereof), but
      only
      if the net value (after payment of the exercise price) of the number of shares
      of Common Stock that become issuable does not exceed the amounts necessary
      to
      satisfy such emergency plus amounts necessary to pay taxes reasonably
      anticipated as a result of the exercise, after taking into account the extent
      to
      which the emergency is or may be relieved through reimbursement or compensation
      by insurance or otherwise or by liquidation of the Participant’s other assets
      (to the extent such liquidation would not itself cause severe financial
      hardship).

    


    
      
        
          
          

        

        
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    (f)           Change
      in Control Event.  The occurrence of a
      Change in Control Event (within the meaning of Section 8.4(a) hereof), including
      the Company’s discretionary exercise of the right to accelerate vesting of such
      Award upon a Change in Control Event or to terminate the Plan or any 409A Award
      granted hereunder within 12 months of the Change in Control Event.

    


    8.2           Term.  Notwithstanding
      anything to the contrary in this Plan or the terms of any 409A Award agreement,
      the term of any 409A Award shall expire and such Award shall no longer be
      exercisable on the date that is the later of: (a) 2-1/2 months after the end
      of
      the Company’s taxable year in which the 409A Award first becomes exercisable or
      distributable pursuant to Section 8 hereof and is not subject to a substantial
      risk of forfeiture; or (b) 2-1/2 months after the end of the 409A Award
      recipient’s taxable year in which the 409A Award first becomes exercisable or
      distributable pursuant to Section 8 hereof and is not subject to a substantial
      risk of forfeiture, but not later than the earlier of (i) the expiration of
      10
      years from the date the 409A Award was granted, or (ii) the term specified
      in
      the 409A Award agreement.

    


    8.3           No
      Acceleration.  A 409A Award may not be accelerated or
      exercised prior to the time specified in Section 8 hereof, except in the case
      of
      one of the following events:

    


    (a)           Domestic
      Relations Order.  The 409A Award may
      permit the acceleration of the exercise or distribution time or schedule to
      an
      individual other than the Participant as may be necessary to comply with the
      terms of a domestic relations order (as defined in Section 414(p)(1)(B) of
      the
      Code).

    


    (b)           Conflicts
      of Interest.  The 409A Award may permit
      the acceleration of the exercise or distribution time or schedule as may be
      necessary to comply with the terms of a certificate of divestiture (as defined
      in Section 1043(b)(2) of the Code).

    


    (c)           Change
      in Control Event.  The Administrator
      may exercise the discretionary right to accelerate the vesting of such 409A
      Award upon a Change in Control Event or to terminate the Plan or any 409A Award
      granted thereunder within 12 months of the Change in Control Event and cancel
      the 409A Award for compensation. In addition, the Administrator may exercise
      the
      discretionary right to accelerate the vesting of such 409A Award provided that
      such acceleration does not change the time or schedule of payment of such Award
      and otherwise satisfies the requirements of this Section 8 and the requirements
      of Section 409A of the Code.

    


    8.4           Definitions.  Solely
      for purposes of this Section 8 and not for other purposes of the Plan, the
      following terms shall be defined as set forth below:

    


    (a)           “Change
      in Control Event” means the occurrence of a change in the ownership of the
      Company, a change in effective control of the Company, or a change in the
      ownership of a substantial portion of the assets of the Company (as defined
      in
      Proposed Regulations § 1.409A-3(g)(5) and any subsequent guidance interpreting
      Code Section 409A).

    


    (b)           “Disabled”
      means a Participant (i) is unable to engage in any substantial gainful activity
      by reason of any medically determinable physical or mental impairment which
      can
      be expected to result in death or can be expected to last for a continuous
      period of not less than 12 months, or (ii) is, by reason of any medically
      determinable physical or mental impairment which can be expected to result
      in
      death or can be expected to last for a continuous period of not less than 12
      months, receiving income replacement benefits for a period of not less than
      three months under an accident and health plan covering Employees.

    


    (c)           “Unforeseeable
      Emergency” means a severe financial hardship to the Participant resulting from
      an illness or accident of the Participant, the Participant’s spouse, or a
      dependent (as defined in Section 152(a) of the Code) of the Participant, loss
      of
      the Participant’s property due to casualty, or similar extraordinary and
      unforeseeable circumstances arising as a result of events beyond the control
      of
      the Participant.

    


    9.            
      Termination or Amendment of Plan.  The Board may at
      any time terminate or amend the Plan; provided that, without approval of the
      stockholders of the Company, there shall be, except by operation of the
      equitable adjustment provisions of Section 6.13, no increase in the total number
      of shares covered by the Plan, no change in the class of persons eligible to
      receive Awards granted under the Plan or other material modification of the
      requirements as to eligibility for participation in the Plan, no material
      increase in the benefits accruing to participants under the Plan, and no
      extension of the latest date upon which Awards may be granted; and provided
      further that, without the consent of the Participant, no amendment may adversely
      affect any then outstanding Award or any unexercised portion
      thereof.

    


    10.           General
      Provisions.

    


    10.1          Other
      Compensation Arrangements.  Nothing contained in this Plan
      shall prevent the Board from adopting other or additional compensation
      arrangements, subject to stockholder approval if such approval is required;
      and
      such arrangements may be either generally applicable or applicable only in
      specific cases.

    


    
      
        
          
          

        

        
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    10.2          Recapitalizations.  Each
      Option Agreement and Award Agreement shall contain provisions required to
      reflect the equitable adjustment provisions of Section 6.13 in the event of
      a
      corporate capital transaction.

    


    10.3          Disqualifying
      Dispositions.  Any Participant who shall make a “disposition”
(as defined in Section 424 of the Code) of all or any portion of shares
      of
      Common Stock acquired upon exercise of an Incentive Stock Option within two
      (2)
      years from the Date of Grant of such Incentive Stock Option or within one (1)
      year after the issuance of the shares of Common Stock acquired upon exercise
      of
      such Incentive Stock Option shall be required to immediately advise the Company
      in writing as to the occurrence of the sale and the price realized upon the
      sale
      of such shares of Common Stock.

    


    10.4          Withholding
      Obligations.  To the extent provided by the terms of an Award
      Agreement and subject to the discretion of the Administrator, the Participant
      may satisfy any federal, state or local tax withholding obligation relating
      to
      the exercise or acquisition of Common Stock under an Award by any of the
      following means (in addition to the Company’s right to withhold from any
      compensation paid to the Participant by the Company) or by a combination of
      such
      means: (a) tendering a cash payment; (b) authorizing the Company to withhold
      shares of Common Stock from the shares of Common Stock otherwise issuable to
      the
      Participant as a result of the exercise or acquisition of Common Stock under
      the
      Award, provided, however, that no shares of Common Stock are withheld with
      a
      value exceeding the minimum amount of tax required to be withheld by law or
      (c)
      delivering to the Company previously owned and unencumbered shares of Common
      Stock of the Company. Unless otherwise provided in the terms of an Option
      Agreement, payment of the tax withholding by a Participant who is an officer,
      director or other “insider” subject to Section 16(b) of the Exchange Act by
      delivering previously owned and unencumbered shares of Common Stock of the
      Company or in the form of share withholding is subject to pre-approval by the
      Administrator, in its sole discretion. Any such pre-approval shall be documented
      in a manner that complies with the specificity requirements of Rule 16b-3,
      including the name of the Participant involved in the transaction, the nature
      of
      the transaction, the number of shares to be acquired or disposed of by the
      Participant and the material terms of the Options involved in the
      transaction.

    


    11.           Termination
      or Suspension of the Plan.  The Plan shall terminate
      automatically on the day before the 10th anniversary of the Effective Date.
      No
      Award shall be granted pursuant to the Plan after such date, but Awards
      theretofore granted may extend beyond that date. The Board may suspend or
      terminate the Plan at any earlier date. No Awards may be granted under the
      Plan
      while the Plan is suspended or after it is terminated.

    


    12.           Choice
      of Law.  The law of the State of Indiana shall govern all
      questions concerning the construction, validity and interpretation of this
      Plan,
      without regard to such state’s conflict of law rules.

     

     

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