exv10w23



 






Exhibit 10.23




SMART MOVE, INC.




2006 EQUITY INCENTIVE PLAN




Adopted by the Board of Directors on February 9, 2006




 









 








SMART MOVE, INC.

2006 EQUITY INCENTIVE PLAN




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	1.
	 	Purpose and Objectives	 	 	2	 
	 
	 	 	 	 	 	 
	2.
	 	Definitions	 	 	2	 
	 
	 	 	 	 	 	 
	3.
	 	Administration	 	 	4	 
	 
	 	 	 	 	 	 
	4.
	 	Grants	 	 	4	 
	 
	 	 	 	 	 	 
	5.
	 	Shares Subject to the Plan	 	 	4	 
	 
	 	 	 	 	 	 
	6.
	 	Eligibility for Participation	 	 	5	 
	 
	 	 	 	 	 	 
	7.
	 	Options	 	 	5	 
	 
	 	 	 	 	 	 
	8.
	 	Stock Units	 	 	7	 
	 
	 	 	 	 	 	 
	9.
	 	Stock Awards	 	 	8	 
	 
	 	 	 	 	 	 
	10.
	 	Stock Appreciation Rights and Other Stock-Based Awards	 	 	8	 
	 
	 	 	 	 	 	 
	11.
	 	Qualified Performance-Based Compensation	 	 	9	 
	 
	 	 	 	 	 	 
	12.
	 	Deferrals	 	 	10	 
	 
	 	 	 	 	 	 
	13.
	 	Withholding of Taxes	 	 	10	 
	 
	 	 	 	 	 	 
	14.
	 	Transferability of Grants	 	 	10	 
	 
	 	 	 	 	 	 
	15.
	 	Consequences of a Change of Control	 	 	11	 
	 
	 	 	 	 	 	 
	16.
	 	Requirements for Issuance of Shares	 	 	11	 
	 
	 	 	 	 	 	 
	17.
	 	Amendment and Termination of the Plan	 	 	11	 
	 
	 	 	 	 	 	 
	18.
	 	Miscellaneous	 	 	12	 






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SMART MOVE, INC.




2006 EQUITY INCENTIVE PLAN




1. Purpose and Objectives




     The Smart Move, Inc. 2006 Equity Incentive Plan (the “Plan”) is designed to align the
interests of (i) designated employees of Smart Move, Inc. (the “Company”) and its subsidiaries,
(ii) non-employee members of the board of directors of the Company, and (iii) consultants and key
advisors of the Company and its subsidiaries with the interests of the Company’s stockholders and
to provide incentives for such persons to exert maximum efforts for the success of the Company. By
extending the opportunity to receive grants of stock options, stock units, stock awards, stock
appreciation rights and other stock-based awards, the Company believes that the Plan will encourage
the participants to contribute materially to the growth of the Company, thereby benefiting the
Company’s shareholders, and will align the economic interests of the participants with those of the
shareholders. The Plan may furthermore be expected to benefit the Company and its stockholders by
making it possible for the Company to attract and retain the best available talent. The Plan shall
be effective as of February 9, 2006, subject to approval by the shareholders of the Company.



2. Definitions




     Whenever used in this Plan, the following terms will have the respective meanings set forth
below:



     (a) “Board” means the Company’s Board of Directors.



     (b) “Cause” means, except to the extent otherwise specified by the Committee, a finding by the
Committee of a Participant’s incompetence in the performance of duties, disloyalty, dishonesty,
theft, embezzlement, or unauthorized disclosure of customer lists, product lines, processes or
trade secrets of the Employer, individually or as an employee, partner, associate, officer or
director of any organization.



     (c) “Change of Control” shall be deemed to have occurred if:




     (i) Any “person” (as such term is used in sections 13(d) and 14(d) of the Exchange Act)
becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than 50% of the voting power of
the then outstanding securities of the Company; provided that a Change of Control shall not
be deemed to occur as a result of a transaction in which the Company becomes a subsidiary of
another corporation and in which the shareholders of the Company, immediately prior to the
transaction, will beneficially own, immediately after the transaction, shares entitling such
shareholders to more than 50% of all votes to which all shareholders of the parent
corporation would be entitled in the election of directors;




     (ii) The consummation of (i) a merger or consolidation of the Company with another
corporation where the shareholders of the Company, immediately prior to the merger or
consolidation, will not beneficially own, immediately after the merger or consolidation,
shares entitling such shareholders to more than 50% of all votes to which all shareholders
of the surviving corporation would be entitled in the election of directors, (ii) a sale or
other disposition of all or substantially all of the assets of the Company, or (iii) a
liquidation or dissolution of the Company; or



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



     (e) “Committee” means the Compensation Committee of the Board or another committee appointed
by the Board to administer the Plan. Grants that are intended to be “qualified performance-based
compensation” under section 162(m) of the Code shall be made by a committee that consists of two or
more persons appointed by the Board, all of whom shall be “outside directors” as defined under
section 162(m) of the Code and related Treasury regulations.



     (f) “Company” means Smart Move, Inc. and any successor corporation.



 









 





     (g) “Company Stock” means the common stock of the Company.



     (h) “Consultant” means a consultant or advisor who performs services for the Employer and who
renders bona fide services to the Employer, if the services are not in connection with the offer
and sale of securities in a capital-raising transaction and the Consultant does not directly or
indirectly promote or maintain a market for the Employer’s securities.



     (i) “Disability” means a Participant’s becoming disabled within the meaning of section
22(e)(3) of the Code, within the meaning of the Employer’s long-term disability plan applicable to
the Participant, or as otherwise determined by the Committee.



     (j) “Effective Date” of the Plan means February ___, 2006, subject to approval of the Plan by
the shareholders of the Company.



     (k) “Employee” means an employee of the Employer (including an officer or director who is also
an employee).



     (l) “Employer” means the Company and its subsidiaries.



     (m) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     (n) “Exercise Price” means the per share price at which shares of Company Stock may be
purchased under an Option, as designated by the Committee.



     (o) “Fair Market Value” of Company Stock means, unless the Committee determines otherwise with
respect to a particular Grant, (i) if the principal trading market for the Company Stock is the
American Stock Exchange or another national securities exchange, the “closing transaction” price at
which shares of Company Stock are traded on such securities exchange on the relevant date or (if
there were no trades on that date) the latest preceding date upon which a sale was reported, (ii)
if the Company Stock is not principally traded on a national securities exchange, but is quoted on
The Nasdaq Stock Market, Inc. National Market System (“NMS”) or Small-Cap Market (“Small-Cap”), the
NASD OTC Bulletin Board (“OTCBB”) or the Pink Sheets, the last reported “closing transaction” price
of Company Stock on the relevant date, as reported by the NMS, Small-Cap, OTCBB or Pink Sheets, or,
if not so reported, as reported in a customary financial reporting service, as the Committee
determines, or (iii) if the Company Stock is not publicly traded or, if publicly traded, is not
subject to reported closing transaction prices as set forth above, the Fair Market Value per share
shall be as determined by the Committee. Notwithstanding the foregoing, for federal, state and
local income tax purposes, the Fair Market Value may be determined by the Committee in accordance
with uniform and non-discriminatory standards adopted by it from time to time.



     (p) “Grant” means an Option, Stock Unit, Stock Award, SAR or Other Stock-Based Award granted
under the Plan.



     (q) “Grant Agreement” means the written instrument that sets forth the terms and conditions of
a Grant, including all amendments thereto.



     (r) “Incentive Stock Option” means an Option that is intended to meet the requirements of an
incentive stock option under section 422 of the Code.



     (s) “Non-Employee Director” means a member of the Board who is not an employee of the
Employer.



     (t) “Nonqualified Stock Option” means an Option that is not intended to be taxed as an
incentive stock option under section 422 of the Code.



     (u) “Option” means an option to purchase shares of Company Stock, as described in Section 7.



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     (v) “Other Stock-Based Award” means any Grant based on, measured by or payable in Company
Stock (other than a Grant described in Sections 7, 8 or 9 of the Plan), as described in Section 10.



     (w) “Participant” means an Employee, Consultant or Non-Employee Director designated by the
Committee to participate in the Plan.



     (x) “Plan” means this Smart Move, Inc. 2006 Equity Incentive Plan, as in effect from time to
time.



     (y) “SAR” means a stock appreciation right as described in Section 10.



     (z) “Stock Award” means an award of Company Stock as described in Section 9.



     (aa) “Stock Unit” means an award of a phantom unit representing a share of Company Stock, as
described in Section 8.



3. Administration




     (a) Committee. The Plan shall be administered and interpreted by the Committee. Ministerial
functions may be performed by an administrative committee comprised of Company employees appointed
by the Committee.



     (b) Committee Authority. The Committee shall have the sole authority to (i) determine the
Participants to whom Grants shall be made under the Plan, (ii) determine the type, size and terms
and conditions of the Grants to be made to each such Participant, (iii) determine the time when the
grants will be made and the duration of any applicable exercise or restriction period, including
the criteria for exercisability and the acceleration of exercisability, (iv) amend the terms and
conditions of any previously issued Grant, subject to the provisions of Section 17 below, and (v)
deal with any other matters arising under the Plan.



     (c) Committee Determinations. The Committee shall have full power and express discretionary
authority to administer and interpret the Plan, to make factual determinations and to adopt or
amend such rules, regulations, agreements and instruments for implementing the Plan and for the
conduct of its business as it deems necessary or advisable, in its sole discretion. The Committee’s
interpretations of the Plan and all determinations made by the Committee pursuant to the powers
vested in it hereunder shall be conclusive and binding on all persons having any interest in the
Plan or in any awards granted hereunder. All powers of the Committee shall be executed in its sole
discretion, in the best interest of the Company, not as a fiduciary, and in keeping with the
objectives of the Plan and need not be uniform as to similarly situated Participants.



4. Grants




     (a) Grants under the Plan may consist of Options as described in Section 7, Stock Units as
described in Section 8, Stock Awards as described in Section 9, and SARs or Other Stock-Based
Awards as described in Section 10. All Grants shall be subject to such terms and conditions as the
Committee deems appropriate and as are specified in writing by the Committee to the Participant in
the Grant Agreement.



     (b) All Grants shall be made conditional upon the Participant’s acknowledgement, in writing or
by acceptance of the Grant, that all decisions and determinations of the Committee shall be final
and binding on the Participant, his or her beneficiaries and any other person having or claiming an
interest under such Grant. Grants under a particular Section of the Plan need not be uniform as
among the Participants.



5. Shares Subject to the Plan




     (a) Shares Authorized. The aggregate number of shares of Company Stock that may be issued
under the Plan is 700,000 shares, subject to adjustment as described in subsection (e) below.



     (b) Limit on Stock Awards, Stock Units, SARs and Other Stock-Based Awards. Within the
aggregate limit described in subsection (a), the maximum number of shares of Company Stock that may
be issued under the Plan



4









 







pursuant to Stock Awards, Stock Units, SARs and Other Stock-Based Awards during the term of
the Plan is 20,000 shares, subject to adjustment as described in subsection (e) below.



     (c) Source of Shares; Share Counting. Shares issued under the Plan may be authorized but
unissued shares of Company Stock or reacquired shares of Company Stock, including shares purchased
by the Company on the open market for purposes of the Plan. If and to the extent Options and SARs
granted under the Plan terminate, expire, or are canceled, forfeited, exchanged or surrendered
without having been exercised, and if and to the extent that any Stock Awards, Stock Units or Other
Stock-Based Awards are forfeited or terminated, or otherwise are not paid in full, the shares
reserved for such Grants shall again be available for purposes of the Plan.



     (d) Individual Limits. All Grants under the Plan shall be expressed in shares of Company
Stock. The maximum number of shares of Company Stock with respect to which all Grants may be made
under the Plan to any individual during any calendar year shall be 500,000 shares, subject to
adjustment as described in subsection (e) below. The individual limits of this subsection (d) shall
apply without regard to whether the Grants are to be paid in Company Stock or cash. All cash
payments shall equal the Fair Market Value of the shares of Company Stock to which the cash
payments relate.



     (e) Adjustments. If there is any change in the number or kind of shares of Company Stock
outstanding (i) by reason of a stock dividend, spinoff, recapitalization, stock split, or
combination or exchange of shares, (ii) by reason of a merger, reorganization or consolidation,
(iii) by reason of a reclassification or change in par value, or (iv) by reason of any other
extraordinary or unusual event affecting the outstanding Company Stock as a class without the
Company’s receipt of consideration, or if the value of outstanding shares of Company Stock is
substantially reduced as a result of a spinoff or the Company’s payment of an extraordinary
dividend or distribution, the maximum number of shares of Company Stock available for issuance
under the Plan, the maximum number of shares of Company Stock for which any individual may receive
Grants in any year, the number of shares covered by outstanding Grants, the kind of shares issued
and to be issued under the Plan, and the price per share or the applicable market value of such
Grants may be appropriately adjusted by the Committee to reflect any increase or decrease in the
number of, or change in the kind or value of, issued shares of Company Stock to preclude, to the
extent practicable, the enlargement or dilution of rights and benefits under such Grants; provided,
however, that any fractional shares resulting from such adjustment shall be eliminated. Any
adjustments determined by the Committee shall be final, binding and conclusive. To the extent that
any Grant is subject to section 409A of the Code, or becomes subject to section 409A of the Code as
a result of any adjustment made hereunder, such adjustment shall be made in compliance with section
409A of the Code.



6. Eligibility for Participation




     (a) Eligible Persons. All Employees, Consultants and Non-Employee Directors shall be eligible
to participate in the Plan.



     (b) Selection of Participants. The Committee shall select the Employees, Consultants and
Non-Employee Directors to receive Grants and shall determine the number of shares of Company Stock
subject to each Grant.



7. Options




     (a) General Requirements. The Committee may grant Options to an Employee, Consultant or
Non-Employee Director upon such terms and conditions as the Committee deems appropriate under this
Section 7. The Committee shall determine the number of shares of Company Stock that will be subject
to each Grant of Options to Employees, Consultants and Non-Employee Directors.



     (b) Type of Option, Price and Term





     (i) The Committee may grant Incentive Stock Options or Nonqualified Stock Options or
any combination of the two, all in accordance with the terms and conditions set forth
herein. Incentive Stock Options may be granted only to Employees of the Company or its
parents or subsidiaries, as defined in section 424 of the Code. Nonqualified Stock Options
may be granted to Employees, Consultants or Non-Employee Directors.



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     (ii) The Exercise Price of Company Stock subject to an Option shall be determined by
the Committee; provided, however, that the Exercise Price for an Option (including Incentive
Stock Options or Nonqualified Stock Options) will be equal to, or greater than, the Fair
Market Value of a share of Company Stock on the date the Option is granted and further
provided that an Incentive Stock Option may not be granted to an Employee who, at the time
of grant, owns stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary, as defined in section 424 of
the Code, unless the Exercise Price per share is not less than 110% of the Fair Market Value
of the Company Stock on the date of grant




     (iii) The Committee shall determine the term of each Option, which shall not exceed ten
years from the date of grant. However, an Incentive Stock Option that is granted to an
Employee who, at the time of grant, owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any parent or subsidiary, as
defined in section 424 of the Code, may not have a term that exceeds five years from the
date of grant.



     (c) Exercisability of Options.




     (i) Options shall become exercisable in accordance with such terms and conditions as
may be determined by the Committee and specified in the Grant Agreement. The Committee may
accelerate the exercisability of any or all outstanding Options at any time for any reason.




     (ii) The Committee may provide in a Grant Agreement that the Participant may elect to
exercise part or all of an Option before it otherwise has become exercisable. Any shares so
purchased shall be restricted shares and shall be subject to a repurchase right in favor of
the Company during a specified restriction period, with the repurchase price equal to the
lesser of (A) the Exercise Price or (B) the Fair Market Value of such shares at the time of
repurchase, or such other restrictions as the Committee deems appropriate. Notwithstanding
the foregoing, to the extent that an Option would otherwise be exempt from section 409A of
the Code, the Committee may only include such a provision in a Grant Agreement for such an
Option if the inclusion of such a provision will not cause that Option to become subject to
section 409A of the Code.




     (iii) Options granted to persons who are non-exempt employees under the Fair Labor
Standards Act of 1938, as amended, may not be exercisable for at least six months after the
date of grant (except that such Options may become exercisable, as determined by the
Committee, upon the Participant’s death, Disability or retirement, or upon a Change of
Control or other circumstances permitted by applicable regulations).



     (d) Termination of Employment or Service. Upon termination of employment or the services of a
Participant, an Option may only be exercised as follows:




     (i) In the event that a Participant ceases to be employed by, or provide service to,
the Employer for any reason other than Disability, death, or termination for Cause, any
Option which is otherwise exercisable by the Participant shall terminate unless exercised
within three months after the date on which the Participant ceases to be employed by, or
provide service to, the Employer (or within such other period of time as may be specified by
the Committee), but in any event no later than the date of expiration of the Option term.
Except as otherwise provided by the Committee, any of the Participant’s Options that are not
otherwise exercisable as of the date on which the Participant ceases to be employed by, or
provide service to, the Employer shall terminate as of such date.




     (ii) In the event the Participant ceases to be employed by, or provide service to, the
Employer on account of a termination for Cause by the Employer, any Option held by the
Participant shall terminate as of the date the Participant ceases to be employed by, or
provide service to, the Employer. In addition, notwithstanding any other provisions of this
Section 7, if the Committee determines that the Participant has engaged in conduct that
constitutes Cause at any time while the Participant is employed by, or providing service to,
the Employer or after the Participant’s termination of employment or service, any Option
held by the Participant shall immediately terminate and the Participant shall automatically
forfeit all shares underlying



6









 







any exercised portion of an Option for which the Company has not yet delivered the
share certificates, upon refund by the Company of the Exercise Price paid by the Participant
for such shares. Upon any exercise of an Option, the Company may withhold delivery of share
certificates pending resolution of an inquiry that could lead to a finding resulting in a
forfeiture.




     (iii) In the event the Participant ceases to be employed by, or provide service to, the
Employer on account of the Participant’s Disability, any Option which is otherwise
exercisable by the Participant shall terminate unless exercised within one year after the
date on which the Participant ceases to be employed by, or provide service to, the Employer
(or within such other period of time as may be specified by the Committee), but in any event
no later than the date of expiration of the Option term. Except as otherwise provided by the
Committee, any of the Participant’s Options which are not otherwise exercisable as of the
date on which the Participant ceases to be employed by, or provide service to, the Employer
shall terminate as of such date.




     (iv) If the Participant dies while employed by, or providing service to, the Employer
or while an Option remains outstanding under Section 7(d)(i) or 7(d)(iii) above (or within
such other period of time as may be specified by the Committee), any Option that is
otherwise exercisable by the Participant shall terminate unless exercised within one year
after the date on which the Participant ceases to be employed by, or provide service to, the
Employer (or within such other period of time as may be specified by the Committee), but in
any event no later than the date of expiration of the Option term. Except as otherwise
provided by the Committee, any of the Participant’s Options that are not otherwise
exercisable as of the date on which the Participant ceases to be employed by, or provide
service to, the Employer shall terminate as of such date.



     (e) Exercise of Options. A Participant may exercise an Option that has become exercisable, in
whole or in part, by delivering a notice of exercise to the Company. The Participant shall pay the
Exercise Price for the Option (i) in cash, (ii) if permitted by the Committee, by delivering shares
of Company Stock owned by the Participant and having a Fair Market Value on the date of exercise
equal to the Exercise Price or by attestation to ownership of shares of Company Stock having an
aggregate Fair Market Value on the date of exercise equal to the Exercise Price, (iii) by payment
through a broker in accordance with procedures permitted by Regulation T of the Federal Reserve
Board, or (iv) by such other method as the Committee may approve. Shares of Company Stock used to
exercise an Option shall have been held by the Participant for the requisite period of time to
avoid adverse accounting consequences to the Company with respect to the Option. Payment for the
shares pursuant to the Option, and any required withholding taxes, must be received by the time
specified by the Committee depending on the type of payment being made, but in all cases prior to
the issuance of the Company Stock.



     (f) Limits on Incentive Stock Options. Each Incentive Stock Option shall provide that, if the
aggregate Fair Market Value of the stock on the date of the grant with respect to which Incentive
Stock Options are exercisable for the first time by a Participant during any calendar year, under
the Plan or any other stock option plan of the Company or a parent or subsidiary, as defined in
section 424 of the Code, exceeds $100,000, then the Option, as to the excess, shall be treated as a
Nonqualified Stock Option. An Incentive Stock Option shall not be granted to any person who is not
an Employee of the Company or a parent or subsidiary, as defined in section 424 of the Code.



8. Stock Units




     (a) General Requirements. The Committee may grant Stock Units to an Employee, Consultant or
Non-Employee Director, upon such terms and conditions as the Committee deems appropriate under this
Section 8. Each Stock Unit shall represent the right of the Participant to receive a share of
Company Stock or an amount based on the value of a share of Company Stock. All Stock Units shall be
credited to bookkeeping accounts on the Company’s records for purposes of the Plan.



     (b) Terms of Stock Units. The Committee may grant Stock Units that are payable on terms and
conditions determined by the Committee, which may include payment based on achievement of
performance goals. Stock Units may be paid at the end of a specified vesting or performance period,
or payment may be deferred to a date authorized by the Committee. The Committee shall determine the
number of Stock Units to be granted and the requirements applicable to such Stock Units.



     (c) Payment With Respect to Stock Units. Payment with respect to Stock Units shall be made in
cash, in



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Company Stock, or in a combination of the two, as determined by the Committee. The Grant
Agreement shall specify the maximum number of shares that can be issued under the Stock Units.



     (d) Requirement of Employment or Service. The Committee shall determine in the Grant
Agreement under what circumstances a Participant may retain Stock Units after termination of the
Participant’s employment or service, and the circumstances under which Stock Units may be
forfeited.



9. Stock Awards




     (a) General Requirements. The Committee may issue shares of Company Stock to an Employee,
Consultant or Non-Employee Director under a Stock Award, upon such terms and conditions as the
Committee deems appropriate under this Section 9. Shares of Company Stock issued pursuant to Stock
Awards may be issued for cash consideration or for no cash consideration, and subject to
restrictions or no restrictions, as determined by the Committee. The Committee may establish
conditions under which restrictions on Stock Awards shall lapse over a period of time or according
to such other criteria as the Committee deems appropriate, including restrictions based upon the
achievement of specific performance goals. The Committee shall determine the number of shares of
Company Stock to be issued pursuant to a Stock Award.



     (b) Requirement of Employment or Service. The Committee shall determine in the Grant
Agreement under what circumstances a Participant may retain Stock Awards after termination of the
Participant’s employment or service, and the circumstances under which Stock Awards may be
forfeited.



     (c) Restrictions on Transfer. While Stock Awards are subject to restrictions, a Participant
may not sell, assign, transfer, pledge or otherwise dispose of the shares of a Stock Award except
upon death as described in Section 14(a). Each certificate for a share of a Stock Award shall
contain a legend giving appropriate notice of the restrictions in the Grant. The Participant shall
be entitled to have the legend removed when all restrictions on such shares have lapsed. The
Company may retain possession of any certificates for Stock Awards until all restrictions on such
shares have lapsed.



     (d) Right to Vote and to Receive Dividends. The Committee shall determine to what extent, and
under what conditions, the Participant shall have the right to vote shares of Stock Awards and to
receive any dividends or other distributions paid on such shares during the restriction period.



10. Stock Appreciation Rights and Other Stock-Based Awards




     (a) The Committee may grant SARs to an Employee, Non-Employee Director or Consultant
separately or in tandem with an Option. The following provisions are applicable to SARs:




     (i) Base Amount. The Committee shall establish the base amount of the SAR at the time
the SAR is granted. The base amount of each SAR shall be equal to the per share Exercise
Price of the related Option or, if there is no related Option, an amount that is at least
equal to the Fair Market Value of a share of Company Stock as of the date of Grant of the
SAR.




     (ii) Tandem SARs. The Committee may grant tandem SARs either at the time the Option is
granted or at any time thereafter while the Option remains outstanding; provided, however,
that, in the case of an Incentive Stock Option, SARs may be granted only at the date of the
grant of the Incentive Stock Option. In the case of tandem SARs, the number of SARs granted
to a Participant that shall be exercisable during a specified period shall not exceed the
number of shares of Company Stock that the Participant may purchase upon the exercise of the
related Option during such period. Upon the exercise of an Option, the SARs relating to the
Company Stock covered by such Option shall terminate. Upon the exercise of SARs, the related
Option shall terminate to the extent of an equal number of shares of Company Stock.




     (iii) Exercisability. An SAR shall be exercisable during the period specified by the
Committee in the Grant Agreement and shall be subject to such vesting and other restrictions
as may be specified in the Grant Agreement. The Committee may grant SARs that are subject to
achievement of performance goals or other conditions. The Committee may accelerate the exercisability of any or all
outstanding SARs at any time




8










 







for any reason. SARs may only be exercised while the
Participant is employed by, or providing service to, the Employer or during the applicable
period after termination of employment or service as described in Section 7(d). A tandem SAR
shall be exercisable only during the period when the Option to which it is related is also
exercisable.




     (iv) Grants to Non-Exempt Employees. SARs granted to persons who are non-exempt
employees under the Fair Labor Standards Act of 1938, as amended, may not be exercisable for
at least six months after the date of grant (except that such SARs may become exercisable,
as determined by the Committee, upon the Participant’s death, Disability or retirement, or
upon a Change of Control or other circumstances permitted by applicable regulations).




     (v) Value of SARs. When a Participant exercises SARs, the Participant shall receive in
settlement of such SARs an amount equal to the value of the stock appreciation for the
number of SARs exercised. The stock appreciation for an SAR is the amount by which the Fair
Market Value of the underlying Company Stock on the date of exercise of the SAR exceeds the
base amount of the SAR as described in subsection (i).




     (vi) Form of Payment. The Committee shall determine whether the stock appreciation for
an SAR shall be paid in the form of shares of Company Stock, cash or a combination of the
two. For purposes of calculating the number of shares of Company Stock to be received,
            shares of Company Stock shall be valued at their Fair Market Value on the date of exercise
of the SAR. If shares of Company Stock are to be received upon exercise of an SAR, cash
shall be delivered in lieu of any fractional share.



     (b) Other Stock-Based Awards. The Committee may grant other awards not specified in Sections
7, 8 or 9 above that are based on or measured by Company Stock to Employees, Consultants and
Non-Employee Directors, on such terms and conditions as the Committee deems appropriate. Other
Stock-Based Awards may be granted subject to achievement of performance goals or other conditions
and may be payable in Company Stock or cash, or in a combination of the two, as determined by the
Committee in the Grant Agreement.



11. Qualified Performance-Based Compensation




     (a) Designation as Qualified Performance-Based Compensation. The Committee may determine that
Stock Units, Stock Awards, SARs or Other Stock-Based Awards granted to an Employee shall be
considered “qualified performance-based compensation” under section 162(m) of the Code, in which
case the provisions of this Section 11 shall apply to such Grants. The Committee may also grant
Options under which the exercisability of the Options is subject to achievement of performance
goals as described in this Section 11 or otherwise.



     (b) Performance Goals. When Grants are made under this Section 11, the Committee shall
establish in writing (i) the objective performance goals that must be met, (ii) the period during
which performance will be measured, (iii) the maximum amounts that may be paid if the performance
goals are met, and (iv) any other conditions that the Committee deems appropriate and consistent
with the requirements of section 162(m) of the Code for “qualified performance-based compensation.”
The performance goals shall satisfy the requirements for “qualified performance-based
compensation,” including the requirement that the achievement of the goals be substantially
uncertain at the time they are established and that the performance goals be established in such a
way that a third party with knowledge of the relevant facts could determine whether and to what
extent the performance goals have been met. The Committee shall not have discretion to increase the
amount of compensation that is payable, but may reduce the amount of compensation that is payable,
pursuant to Grants identified by the Committee as “qualified performance-based compensation.”



     (c) Criteria Used for Objective Performance Goals. The Committee shall use objectively
determinable performance goals based on one or more of the following criteria: stock price,
earnings per share, price-earnings multiples, gross profit, net earnings, operating earnings,
revenue, revenue growth, number of days sales outstanding in accounts receivable, number of days of
cost of sales in inventory, productivity, margin, EBITDA (earnings before interest, taxes,
depreciation and amortization), net capital employed, return on assets, shareholder return, return
on
equity, return on capital employed, growth in assets, unit volume, sales, cash flow, market
share, relative performance to a comparison group designated by the Committee, debt reduction,
market capitalization or strategic business criteria



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consisting of one or more objectives based on
meeting specified R&D programs, new product releases, revenue goals, market penetration goals,
customer growth, geographic business expansion goals, cost targets, quality improvements, cycle
time reductions, manufacturing improvements and/or efficiencies, human resource programs, customer
programs, goals relating to acquisitions or divestitures or goals relating to FDA or other
regulatory approvals. The performance goals may relate to one or more business units or the
performance of the Company as a whole, or any combination of the foregoing. Performance goals need
not be uniform as among Participants. Performance goals may be set on a pre tax or after tax basis,
may be defined by absolute or relative measures, and may be valued on a growth or fixed basis.




     (d) Timing of Establishment of Goals. The Committee shall establish the performance goals in
writing either before the beginning of the performance period or during a period ending no later
than the earlier of (i) 90 days after the beginning of the performance period or (ii) the date on
which 25% of the performance period has been completed, or such other date as may be required or
permitted under applicable regulations under section 162(m) of the Code.



     (e) Certification of Results. The Committee shall certify the performance results for the
performance period specified in the Grant Agreement after the performance period ends. The
Committee shall determine the amount, if any, to be paid pursuant to each Grant based on the
achievement of the performance goals and the satisfaction of all other terms of the Grant
Agreement.



     (f) Death, Disability or Other Circumstances. The Committee may provide in the Grant
Agreement that Grants under this Section 11 shall be payable, in whole or in part, in the event of
the Participant’s death or Disability, a Change of Control or under other circumstances consistent
with the Treasury regulations and rulings under section 162(m) of the Code.



12. Deferrals




     The Committee may permit or require a Participant to defer receipt of the payment of cash or
the delivery of shares that would otherwise be due to the Participant in connection with any Grant.
The Committee shall establish rules and procedures for any such deferrals, consistent with
applicable requirements of section 409A of the Code.



13. Withholding of Taxes




     (a) Required Withholding. All Grants under the Plan shall be subject to applicable federal
(including FICA), state and local tax withholding requirements. The Company may require that the
Participant or other person receiving or exercising Grants pay to the Company the amount of any
federal, state or local taxes that the Company is required to withhold with respect to such Grants,
or the Company may deduct from other wages paid by the Company the amount of any withholding taxes
due with respect to such Grants.



     (b) Election to Withhold Shares. If the Committee so permits, a Participant may elect to
satisfy the Company’s tax withholding obligation with respect to Grants paid in Company Stock by
having shares withheld, at the time such Grants become taxable, up to an amount that does not
exceed the minimum applicable withholding tax rate for federal (including FICA), state and local
tax liabilities. The election must be in a form and manner prescribed by the Committee.



14. Transferability of Grants




     (a) Restrictions on Transfer. Except as described in subsection (b) below, only the
Participant may exercise rights under a Grant during the Participant’s lifetime, and a Participant
may not transfer those rights except by will or by the laws of descent and distribution. When a
Participant dies, the personal representative or other person entitled to succeed to the rights of
the Participant may exercise such rights. Any such successor must furnish proof satisfactory to the
Company of his or her right to receive the Grant under the Participant’s will or under the
applicable laws of descent and distribution.



     (b) Transfer of Nonqualified Stock Options to or for Family Members. Notwithstanding the
foregoing,
the Committee may provide, in a Grant Agreement, that a Participant may transfer Nonqualified
Stock Options to family members, or one or more trusts or other entities for the benefit of or
owned by family members, consistent with



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the applicable securities laws, according to such terms as
the Committee may determine; provided that the Participant receives no consideration for the
transfer of an Option and the transferred Option shall continue to be subject to the same terms and
conditions as were applicable to the Option immediately before the transfer.




15. Consequences of a Change of Control




     In the event of a Change of Control, the Committee may take any one or more of the following
actions with respect to any or all outstanding Grants, without the consent of any Participant: (i)
the Committee may determine that outstanding Options and SARs shall be fully exercisable, and
restrictions on outstanding Stock Awards and Stock Units shall lapse, as of the date of the Change
of Control or at such other time or subject to specific conditions as the Committee determines,
(ii) the Committee may require that Participants surrender their outstanding Options and SARs in
exchange for one or more payments by the Company, in cash or Company Stock as determined by the
Committee, in an amount equal to the amount by which the then Fair Market Value of the shares of
Company Stock subject to the Participant’s unexercised Options and SARs exceeds the Exercise Price,
if any, and on such terms as the Committee determines, (iii) after giving Participants an
opportunity to exercise their outstanding Options and SARs, the Committee may terminate any or all
unexercised Options and SARs at such time as the Committee deems appropriate, (iv) with respect to
Participants holding Stock Units or Other Stock-Based Awards, the Committee may determine that such
Participants shall receive one or more payments in settlement of such Stock Units or Other
Stock-Based Awards, in such amount and form and on such terms as may be determined by the
Committee, or (v) the Committee may determine that Grants that remain outstanding after the Change
of Control shall be converted to similar grants of the surviving corporation (or a parent or
subsidiary of the surviving corporation). Such acceleration, surrender, termination, settlement or
assumption shall take place as of the date of the Change of Control or such other date as the
Committee may specify. Notwithstanding the foregoing, to the extent required to comply with
section 409A of the Code, a Grant Agreement will include a definition of “Change of Control” that
complies with and falls within the definition of “change in control event” set forth in section
409A of the Code and any Internal Revenue Service regulations or other guidance issued thereunder.



16. Requirements for Issuance of Shares




     No Company Stock shall be issued in connection with any Grant hereunder unless and until all
legal requirements applicable to the issuance of such Company Stock have been complied with to the
satisfaction of the Committee. The Committee shall have the right to condition any Grant made to
any Participant hereunder on such Participant’s undertaking in writing to comply with such
restrictions on his or her subsequent disposition of such shares of Company Stock as the Committee
shall deem necessary or advisable, and certificates representing such shares may be legended to
reflect any such restrictions. Certificates representing shares of Company Stock issued under the
Plan will be subject to such stop-transfer orders and other restrictions as may be required by
applicable laws, regulations and interpretations, including any requirement that a legend be placed
thereon. No Participant shall have any right as a shareholder with respect to Company Stock covered
by a Grant until shares have been issued to the Participant.



17. Amendment and Termination of the Plan




     (a) Amendment. The Board may amend or terminate the Plan at any time; provided, however, that
the Board shall not amend the Plan without approval of the shareholders of the Company if such
approval is required in order to comply with the Code or applicable laws, or to comply with
applicable stock exchange requirements. No amendment or termination of this Plan shall, without the
consent of the Participant, materially impair any rights or obligations under any Grant previously
made to the Participant under the Plan, unless such right has been reserved in the Plan or the
Grant Agreement, or except as provided in Section 18(b) below. Notwithstanding anything in the Plan
to the contrary, the Board may amend the Plan in such manner as it deems appropriate in the event
of a change in applicable law or regulations.



     (b) Shareholder Approval for “Qualified Performance-Based Compensation.” If Grants are made
under Section 11 above, the Plan must be reapproved by the Company’s shareholders no later than the
first shareholders meeting that occurs in the fifth year following the year in which the
shareholders previously approved the provisions of
Section 11, if additional Grants are to be made under Section 11 and if required by section
162(m) of the Code or the regulations thereunder.



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     (c) Termination of Plan. The Plan shall terminate on the day immediately preceding the tenth
anniversary of its Effective Date, unless the Plan is terminated earlier by the Board or is
extended by the Board with the approval of the shareholders. The termination of the Plan shall not
impair the power and authority of the Committee with respect to an outstanding Grant.



18. Miscellaneous




     (a) Grants in Connection with Corporate Transactions and Otherwise. Nothing contained in this
Plan shall be construed to (i) limit the right of the Committee to make Grants under this Plan in
connection with the acquisition, by purchase, lease, merger, consolidation or otherwise, of the
business or assets of any corporation, firm or association, including Grants to employees thereof
who become Employees, or for other proper corporate purposes, or (ii) limit the right of the
Company to grant stock options or make other stock-based awards outside of this Plan. Without
limiting the foregoing, the Committee may make a Grant to an employee of another corporation who
becomes an Employee by reason of a corporate merger, consolidation, acquisition of stock or
property, reorganization or liquidation involving the Company in substitution for a grant made by
such corporation. The terms and conditions of the Grants may vary from the terms and conditions
required by the Plan and from those of the substituted stock incentives, as determined by the
Committee



     (b) Compliance with Law. The Plan, the exercise of Options and the obligations of the Company
to issue or transfer shares of Company Stock under Grants shall be subject to all applicable laws
and to approvals by any governmental or regulatory agency as may be required. With respect to
persons subject to section 16 of the Exchange Act, it is the intent of the Company that the Plan
and all transactions under the Plan comply with all applicable provisions of Rule 16b-3 or its
successors under the Exchange Act. In addition, it is the intent of the Company that Incentive
Stock Options comply with the applicable provisions of section 422 of the Code, that Grants of
“qualified performance-based compensation” comply with the applicable provisions of section 162(m)
of the Code and that, to the extent applicable, Grants comply with the requirements of section 409A
of the Code. To the extent that any legal requirement of section 16 of the Exchange Act or section
422, 162(m) or 409A of the Code as set forth in the Plan ceases to be required under section 16 of
the Exchange Act or section 422, 162(m) or 409A of the Code, that Plan provision shall cease to
apply. The Committee may revoke any Grant if it is contrary to law or modify a Grant to bring it
into compliance with any valid and mandatory government regulation. The Committee may also adopt
rules regarding the withholding of taxes on payments to Participants. The Committee may, in its
sole discretion, agree to limit its authority under this Section.



     (c) Enforceability. The Plan shall be binding upon and enforceable against the Company and
its successors and assigns.



     (d) Funding of the Plan; Limitation on Rights. This Plan shall be unfunded. The Company shall
not be required to establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Grants under this Plan. Nothing contained in the Plan and no
action taken pursuant hereto shall create or be construed to create a fiduciary relationship
between the Company and any Participant or any other person. No Participant or any other person
shall under any circumstances acquire any property interest in any specific assets of the Company.
To the extent that any person acquires a right to receive payment from the Company hereunder, such
right shall be no greater than the right of any unsecured general creditor of the Company.



     (e) Rights of Participants. Nothing in this Plan shall entitle any Employee, Non-Employee
Director or other person to any claim or right to receive a Grant under this Plan. Neither this
Plan nor any action taken hereunder shall be construed as giving any individual any rights to be
retained by or in the employment or service of the Employer.



     (f) No Fractional Shares. No fractional shares of Company Stock shall be issued or delivered
pursuant to the Plan or any Grant. The Committee shall determine whether cash, other awards or
other property shall be issued or paid in lieu of such fractional shares or whether such fractional
shares or any rights thereto shall be forfeited or otherwise eliminated.



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     (g) Employees Subject to Taxation Outside the United States. With respect to Participants who
are subject to taxation in countries other than the United States, the Committee may make Grants on
such terms and conditions as the Committee deems appropriate to comply with the laws of the
applicable countries, and the Committee may create such procedures, addenda and subplans and make
such modifications as may be necessary or advisable to comply with such laws.



     (h) Governing Law. The validity, construction, interpretation and effect of the Plan and
Grant Agreements issued under the Plan shall be governed and construed by and determined in
accordance with the laws of the State of Delaware, without giving effect to the conflict of laws
provisions thereof.




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