**Exhibit 10.2**

 

**AMENDED AND RESTATEDSERVICEMASTER GLOBAL HOLDINGS, INC.STOCK INCENTIVE PLAN**

 

**Effective November 20, 2007As Amended September 24, 2010**

 

Article IPurpose

 

ServiceMasterGlobal Holdings, Inc. has established this stock incentive plan to fosterand promote its long-term financial success. Capitalized terms have the meaning given in Article XII.

 

Article IIPowers of the Board

 

Section 2.1          Power to Grant Awards.  The Board shall select Employees to receiveAwards.  The Board shall also determinefrom time to time whether Eligible Directors (or classes or categories ofEligible Directors) shall receive Director Share Awards.  The Board shall determine the terms of eachAward, consistent with the Plan.

 

Section 2.2          Administration.  The Board shall be responsible for theadministration of the Plan.  The Boardmay prescribe, amend and rescind rules and regulations relating to theadministration of the Plan, provide for conditions and assurances it deemsnecessary or advisable to protect the interests of the Company and make allother determinations necessary or advisable for the administration andinterpretation of the Plan.  Anyauthority exercised by the Board under the Plan shall be exercised by the Boardin its sole discretion.  Determinations, interpretationsor other actions made or taken by the Board under the Plan shall be final,binding and conclusive for all purposes and upon all persons.

 

Section 2.3          Delegation by the Board.  All of the powers, duties andresponsibilities of the Board specified in this Plan may be exercised andperformed by any duly constituted committee thereof to the extent authorized bythe Board to exercise and perform such powers, duties and responsibilities, andany

 

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determination,interpretation or other action taken by such committee shall have the sameeffect hereunder as if made or taken by the Board.

 

Article IIIShares Subject to Plan

 

Section 3.1          Number.  The maximum number of shares of Common Stockthat may be issued under the Plan or be subject to Awards may not exceed13,845,000 shares.  The shares of CommonStock to be delivered under the Plan may consist, in whole or in part, ofauthorized but unissued Common Stock that are not reserved for any otherpurpose.

 

Section 3.2          Canceled, Terminated or ForfeitedAwards.  If any Award or portionthereof is for any reason forfeited, canceled or otherwise terminated withoutexercise, the Common Stock subject to such Award or portion thereof shall againbe available for grant under the Plan.

 

Section 3.3          Adjustment in Capitalization.  If and to the extent necessary or appropriateto reflect any Common Stock dividend, extraordinary dividend, stock split orshare combination or any recapitalization, merger, consolidation, exchange ofshares, spin-off liquidation or dissolution of the Company or other similartransaction affecting the Common Stock, the Board shall proportionately adjustthe number of shares of Common Stock available for issuance under the Plan andthe number, class, exercise price or other terms of any outstanding Awardand/or make other provisions with respect to the holder or holders of anoutstanding Award.

 

Article IVStock Purchase or Grant

 

Section 4.1          Awards and Administration.  The Board may offer and sell or otherwisegrant Common Stock to Participants at such time or times and subject to suchconditions as it shall determine, the terms of which shall be set forth in aSubscription Agreement.

 

Section 4.2          Minimum Purchase Price.  Unless otherwise determined by the Board, thepurchase price for any Common Stock to be offered and sold pursuant to this Article IVshall not be less than the Fair Market Value on the Grant Date.

 

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Section 4.3          Payment.  Unless otherwise determined by the Board, thepurchase price with respect to any Common Stock offered and sold pursuant tothis Article IV shall be paid in cash or other readily available fundssimultaneously with the closing of the purchase of such Common Stock.

 

Article VTerms of Options

 

Section 5.1          Grant of Options.  The Board may grant Options to Participantsat such time or times as it shall determine. Options granted pursuant to the Plan will not be “incentive stockoptions” as defined in the Code.  EachOption granted to a Participant shall be evidenced by an Option Agreement thatshall specify the number of shares of Common Stock that may be purchasedpursuant to such Option, the exercise price at which shares of Common Stock maybe purchased pursuant to such Option, the duration of such Option (not toexceed the tenth anniversary of the Grant Date), and such other terms as theBoard shall determine.

 

Section 5.2          Exercise Price.  The exercise price per share of Common Stockto be purchased upon exercise of an Option shall not be less than the Fair MarketValue on the Grant Date.

 

Section 5.3          Vesting and Exercise of Options.  Options shall become vested or exercisable inaccordance with the vesting schedule or upon the attainment of such performancecriteria as shall be specified by the Board on or before the Grant Date.  The Board may accelerate the vesting orexercisability of any Option, all Options or any class of Options at any timeand from time to time.

 

Section 5.4          Payment.  The Board shall establish proceduresgoverning the exercise of Options, which procedures shall generally requirethat prior written notice of exercise be given and that the exercise price(together with any required withholding taxes or other similar taxes, chargesor fees) be paid in full in cash, cash equivalents or other readily availablefunds at the time of exercise. Notwithstanding the foregoing, on such terms as the Board may establishfrom time to time following a Public Offering (i) the Board maypermit a Participant to tender any Common Stock such Participant has owned forat least six months and one day for all or a portion of the applicable exerciseprice or minimum required withholding taxes, and (ii) the Board mayauthorize the Company to establish a broker-assisted exercise program.  In connection with any Option exercise, theCompany may require the Participant to furnish or execute such other documents

 

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as it shall reasonably deem necessary to (a) evidencesuch exercise, (b) determine whether registration is then requiredunder the U.S. federal securities laws or similar non-U.S. laws, or (c) complywith or satisfy the requirements of the U.S. federal securities laws,applicable state or non-U.S. securities laws or any other law.  As a condition to the exercise of any Optionbefore a Public Offering, a Participant shall enter into a SubscriptionAgreement.

 

Article VITermination of Employment

 

Section 6.1          Expiration of Options FollowingTermination of Employment.  Unlessotherwise determined by the Board on or before the Grant Date, if a Participant’semployment with the Company terminates, such Participant’s Options shall betreated as follows:

 

(a)           any unvested Options shall terminate effective as of suchtermination of employment (determined without regard to any statutory or deemedor express contractual notice period); provided that if the Employee’semployment with the Company is terminated in a Special Termination (i.e., byreason of the Employee’s death or Disability), any unvested Options held by theEmployee that by their terms would vest solely based on continued employmentshall immediately vest as of the effective date of such Special Termination;

 

(b)           except in the case of a termination for Cause, vestedOptions shall remain exercisable through the earliest of (i) thenormal expiration date, (ii) the three-month anniversary of theeffective date of the Participant’s termination of employment (determinedwithout regard to any statutory or deemed or express contractual noticeperiod), (iii) the one-year anniversary in the case of a SpecialTermination or a retirement at normal retirement age or later), and (iv) anycancellation pursuant to Section 7.1; and

 

(c)           in the case of a termination for Cause, any and allOptions held by such Participant (whether or not then vested or exercisable)shall terminate immediately upon such termination of employment.

 

Section 6.2          Certain Rights upon Termination ofEmployment Prior to a Public Offering. Each Subscription Agreement shall provide that the Company and one ormore of the Investors shall have successive rights prior to a Public

 

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Offering to purchase all or any portion of aParticipant’s Common Stock upon any termination of employment (determinedwithout regard to any statutory or deemed or express contractual noticeperiod), at such time and at a purchase price per share equal to the FairMarket Value as of the date specified in the Subscription Agreement (or, if theParticipant’s employment termination qualifies as a termination for Cause, fora purchase price per share equal to the lesser of (i) the FairMarket Value as of the date specified in the Subscription Agreement and (ii) suchParticipant’s per share purchase price). The Board may provide in a Subscription Agreement that following aParticipant’s Special Termination, retirement at or after normal retirement ageor termination of employment by the Company without Cause in each case prior toa Public Offering, such Participant may require the Company to repurchase all(but not less than all) of such Participant’s Common Stock (but excluding anyshares acquired on exercise of an Option), at such time and at a purchase priceper share equal to the Fair Market Value as of the date specified in the SubscriptionAgreement, subject to the Company having the ability to do so under the termsof its financing agreements.

 

Article VIIChange in Control

 

Section 7.1          Accelerated Vesting and Payment.  Except as otherwise provided in this Article VII,and unless otherwise provided in the Award Agreement, upon a Change in Control,(a) each Award that by its terms would otherwise vest based solelyon continued employment shall vest in full in connection with such Change inControl and each other Award shall, to the extent it has not or will not by itsterms vest before or in connection with such Change in Control, be canceled,and (b) the holder of any vested Award (including any Award thatvests in connection with such Change in Control) shall be entitled to receive,in complete satisfaction of such Award, a payment in cash or readily marketablesecurities in an amount or with a value equal to the number of shares of CommonStock covered by such vested Award times the excess, if any, of the Change inControl Price over any applicable exercise price or reference price, if any,for such Award.

 

Section 7.2          Alternative Award.  No cancellation, acceleration or otherpayment shall occur with respect to any Award or class or type of Award if theBoard reasonably determines in good faith, prior to the occurrence of a Changein Control, that such Award shall be honored or assumed, or new rightssubstituted therefor following the Change in Control (such honored, assumed orsubstituted award, an “Alternative Award”); provided that anyAlternative Award must:

 

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(a)           give the Participant who held such Award rights andentitlements substantially equivalent to or better than the rights and termsapplicable under such Award, including, but not limited to, an identical orbetter exercise and vesting schedule, identical or better timing and methods ofpayment and, if the Alternative Award or the securities underlying it are notpublicly-traded, identical or better rights following a termination ofemployment to require the Company or the acquiror in such Change in Control torepurchase the Alternative Award or securities underlying such AlternativeAward; and

 

(b)           have terms such that if, within two years following aChange in Control, a Participant’s employment is involuntarily orconstructively terminated (other than for Cause), such Alternative Award shallimmediately vest in full and such Participant shall receive a cash paymentequal to the excess (if any) of the fair market value of the stock subject tothe Alternative Award on the date of surrender over the price that suchParticipant would be required to pay to exercise such Alternative Award orshall have an immediate right to exercise such Alternative Award and receiveshares that are then publicly traded.

 

Section 7.3          Limitation of Benefits.  If, whether as a result of acceleratedvesting, the grant of an Alternative Award or otherwise, a Participant wouldreceive any payment, deemed payment or other benefit as a result of theoperation of Section 7.1 or Section 7.2 that, together with any otherpayment, deemed payment or other benefit a Participant may receive under anyother plan, program, policy or arrangement, would constitute an “excessparachute payment” under section 280G of the Code, then, notwithstandinganything in this Plan to the contrary, the payments, deemed payments or otherbenefits such Participant would otherwise receive under Section 7.1 or Section 7.2shall be reduced to the extent necessary to eliminate any such excess parachutepayment and such Participant shall have no further rights or claims withrespect thereto.  If the precedingsentence would result in a reduction of the payments, deemed payments or otherbenefits a Participant would otherwise receive in more than an immaterialamount, the Company will use its commercially reasonable best efforts to seekthe approval of the Company’s shareholders in the manner provided for insection 280G(b)(5) of the Code and the regulations thereunder with respectto such reduced payments or other benefits (if the Company is eligible to doso), so that such payments would not be treated as “parachute payments” forthese purposes (and therefore would cease to be subject to reduction pursuantto this Section 7.3), and, if seeking such approval, the Company shallsubmit all Participants for whom such approval is sought as a single slate tothe shareholders and not individually. This Section 7.3 shall cease to apply if the stock of the Companyor any direct or indirect parent

 

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or subsidiary of the Company becomes readilytradable on an established securities market or otherwise within the meaning of26 CFR 1.280G-1, Q/A-6.

 

Article VIIIDeferred Share Units and Restricted Stock Units

 

Section 8.1          Deferred Share Units.  The Board may provide for the grant ofDeferred Share Units to Participants at such time or times and subject to suchconditions as it shall determine.  Noshares of Common Stock will be issued at the time an award of Deferred ShareUnits is made and the Company shall not be required to set aside a fund for thepayment of any such award.

 

Section 8.2            Restricted Stock Units. TheBoard may provide for the grant of Restricted Stock Units to Participants atsuch time or times and subject to such conditions as it shall determine, butwhich shall (unless the Board determines otherwise) be subject to vesting basedon continued service, satisfaction of performance conditions or other vestingconditions determined by the Board. No shares of Common Stock will be issued atthe time an award of Restricted Stock Units is made and the Company shall notbe required to set aside a fund for the payment of any such award.

 

Article IXDirector Share Awards

 

DirectorShare Awards may have such terms as the Board shall determine from time totime, and may be granted as part of the retainer or other fees payable to anEligible Director or as part of an arrangement that permits the deferral ofpayment of such fees, on a mandatory or elective basis, into the right toreceive Common Stock and distributions thereon in the future (or a cash paymentmeasured by reference to the value thereof).

 

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Article XAuthority to Vary Terms or Establish Local Jurisdiction Plans

 

TheBoard may vary the terms of Awards to be granted under the Plan, or establishsub-plans under this Plan to authorize the grant of awards that have additionalor different terms or features from those otherwise provided for in the Plan, ifand to the extent the Board determines necessary or appropriate to permit thegrant of awards that are best suited to further the purposes of the Plan and tocomply with applicable securities laws in a particular jurisdiction or provideterms appropriately suited for Employees in such jurisdiction in light of thetax laws of such jurisdiction while being as consistent as otherwise possiblewith the terms of Awards under the Plan; provided that this Article Xshall not be deemed to authorize any increase in the number of Common Stockavailable for issuance under the Plan set forth in Section 3.1.

 

Article XIAmendment, Modification, and Termination of the Plan

 

TheBoard may terminate or suspend the Plan at any time, and may amend or modifythe Plan from time to time.  Noamendment, modification, termination or suspension of the Plan shall in anymanner adversely affect any Award theretofore granted under the Plan withoutthe consent of the Participant holding such Award or the consent of a majorityof Participants holding similar Awards (such majority to be determined based onthe number of shares covered by such Awards). Shareholder approval of any such amendment, modification, termination orsuspension shall be obtained to the extent mandated by applicable law, or ifotherwise deemed appropriate by the Board.

 

Article XIIDefinitions

 

Section 12.1       Definitions.  Whenever used herein, the following termsshall have the respective meanings set forth below:

 

“Affiliate” means, with respect to any Person, any other Persondirectly or indirectly controlling, controlled by or under common control

 

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withsuch first Person; provided that a director, member of management orother Employee of the Company or any of its Subsidiaries shall not be deemed tobe an Affiliate of the Investors.  Forthese purposes, “control” (including the terms “controlled by” and “undercommon control with”) means the possession, directly or indirectly, of thepower to direct or cause the direction of the management policies of a Personby reason of ownership of voting securities, by contract or otherwise.

 

“Alternative Award” has the meaning given in Section 7.2.

 

“Award” means an Option, a Deferred Share Unit, a RestrictedStock Unit, a Director Share Award or an offer and sale or grant of CommonStock pursuant to Article IV, in each case granted pursuant to the termsof the Plan.

 

“Award Agreement” means a Subscription Agreement, an OptionAgreement or any other agreement evidencing an Award.

 

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

 

“Cause” means, unless otherwise provided inthe Award Agreement, any of the following: (i) the Participant’s commission of a crime involving fraud,theft, false statements or other similar acts or commission of any crime thatis a felony (or a comparable classification in a jurisdiction that does not usethese terms); (ii) the Participant’s willful and material orgrossly negligent failure to perform his or her material employment-relatedduties for the Company and its Subsidiaries; (iii) the Participant’smaterial violation of any material Company policy as in effect from time totime; (iv) the Participant’s engaging in any willful act or makingany public statement that impairs, impugns, denigrates, disparages ornegatively reflects upon the name, reputation or business interests of theCompany or its Subsidiaries; (v) the Participant’s material breachof any Award Agreement, employment agreement, or noncompetition, nondisclosureor nonsolicitation agreement to which the Participant is a party or by whichthe Participant is bound or (vi) the Participant’s engaging in anywrongful conduct injurious or detrimental to the Company or its any of itsSubsidiaries. The determination as to whether “Cause” has occurred shall bemade by the Board, which shall have the authority to waive the

 

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consequencesunder the Plan of the existence or occurrence of any of the events, acts oromissions constituting “Cause.”  Atermination for Cause shall be deemed to include a determination following aParticipant’s termination of employment for any reason if the circumstancesexisting prior to such termination would have entitled the Company or one ofits Subsidiaries to have terminated such Participant’s employment for Cause.

 

“CD&R Investors” means, collectively, (i) Clayton,Dubilier & Rice Fund VII, L.P., (ii) Clayton, Dubilier &Rice Fund VII (Co-Investment), L.P., (iii) CDR SVM Co-InvestorL.P., (iv) CD&R Parallel Fund VII, L.P., and (v) CDRSVM Co-Investor No. 2 L.P.

 

“Change in Control” means the first to occur of the followingevents after the Effective Date:

 

(i)  the acquisition by any person, entity or “group”(as defined in Section 13(d) of the Securities Exchange Act of 1934,as amended) of beneficial ownership of 50% or more of the combined voting powerof the Company’s then outstanding voting securities, other than any suchacquisition by the Company, any of its Subsidiaries, any employee benefit planof the Company or any of its Subsidiaries, or by the Investors, or anyAffiliates of any of the foregoing;

 

(ii)  the merger, consolidation or othersimilar transaction involving the Company, as a result of which persons whowere stockholders of the Company immediately prior to such merger,consolidation, or other similar transaction do not, immediately thereafter,own, directly or indirectly, more than 50% of the combined voting powerentitled to vote generally in the election of directors of the merged orconsolidated company;

 

(iii)  within any 24-month period, the personswho were directors of the Company at the beginning of 

 

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suchperiod (the “Incumbent Directors”) shall cease to constitute at least amajority of the Board, provided that any director elected or nominatedfor election  to the Board by anyInvestor or a majority of the Incumbent Directors then still in office shall bedeemed to be an Incumbent Director for purposes of this clause (iii); or

 

(iv)  the sale, transfer or other dispositionof all or substantially all of the assets of the Company to one or more personsor entities that are not, immediately prior to such sale, transfer or otherdisposition, Affiliates of the Company.

 

Notwithstandingthe foregoing, a Public Offering shall not constitute a Change in Control.

 

“Change in Control Price” means the price per share of CommonStock offered in conjunction with any transaction resulting in a Change inControl.  If any part of the offeredprice is payable other than in cash, the Change in Control price shall bedetermined in good faith by the Board as constituted immediately prior to theChange in Control.

 

“Code” means the United States Internal Revenue Code of 1986, asamended, and any successor thereto.

 

“Common Stock” means the common stock, par value U.S. $.01 pershare, of the Company.

 

“Company” means ServiceMaster Global Holdings, Inc., aDelaware corporation, and any successor thereto, and, for purposes ofdetermining the status of a Participant’s employment with the “Company” shallinclude the Company’s Subsidiaries.

 

“Deferred Share Unit” means the right granted pursuant to thePlan to receive a share of Common Stock and distributions thereon in thefuture.

 

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“Director Share Award” means an award pursuant to Article IXto an Eligible Director of Common Stock, an Option or similar Award, a right toreceive Common Stock or a payment measured by reference thereto anddistributions thereon.

 

“Disability” means, unless otherwise provided in an AwardAgreement, a Participant’s long-term disability within the meaning of thelong-term disability insurance plan or program of the Company or any Subsidiarythen covering the Participant, or in the absence of such a plan or program, asdetermined by the Board.  The Board’sreasoned and good faith judgment of Disability shall be final and shall bebased on such competent medical evidence as shall be presented to it by theParticipant or by any physician or group of physicians or other competentmedical expert employed by the Participant or the Company to advise the Board.

 

“Effective Date” has the meaning given in Section 13.10.

 

“Eligible Director” means a member of the Board other than anemployee or officer of the Company or any of its Subsidiaries.

 

“Employee” means any executive, officer or other employee of theCompany or any Subsidiary.

 

“Fair Market Value” means, as of any date of determination priorto a Public Offering, the per share fair market value on such date of a shareof Common Stock as determined in good faith by the Board.  In making a determination of Fair MarketValue, the Board shall give due consideration to such factors as it deemsappropriate, including, but not limited to, the earnings and other financialand operating information of the Company in recent periods, the potential valueof the Company as a whole, the future prospects of the Company and theindustries in which it competes, the history and management of the Company, thegeneral condition of the securities markets, the fair market value ofsecurities of companies engaged in businesses similar to those of the Company,and any recent valuation of the Common Stock that shall have been performed byan independent valuation firm (although nothing herein shall obligate the Boardto obtain any such independent valuation). The determination of Fair MarketValue will not give effect to any restrictions on transfer of the Common Stockor

 

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takeinto account any control premium, but shall be determined taking into accountthe fact that such shares would represent a minority interest in the Companyand are illiquid.  Following a PublicOffering, “Fair Market Value” shall mean, as of any date of determination, themid-point between the high and the low trading prices for such date per shareof Common Stock as reported on the principal stock exchange on which the sharesof Common Stock are then listed.

 

“Grant Date” means, with respect to any Award, the date as ofwhich such Award is granted pursuant to the Plan.

 

“Investor” means any of (i) BAS Capital FundingCorporation, BACSVM-A, L.P. and Bank of America Capital Investors V, L.P., (ii) CitigroupCapital Partners II 2007 Citigroup Investment, L.P., Citigroup Capital PartnersII Employee Master Fund, L.P., Citigroup Capital Partners II Onshore, L.P.,Citigroup Capital Partners II Cayman Holdings, L.P. and CPE Co-Investment(ServiceMaster) LLC, (iii) the CD&R Investors, (iv) J.P.Morgan Ventures Corporation, (vi) any Affiliate of any of theforegoing that acquires shares of Common Stock, and (vii) anysuccessor in interest to any thereof.

 

“Option” means the right granted pursuant to the Plan topurchase one share of Common Stock.

 

“Option Agreement” means an agreement between the Company and aParticipant embodying the terms of any Options granted pursuant to the Plan andin the form approved by the Board from time to time for such purpose.

 

“Participant” means any Employee or Eligible Director who isgranted an Award.

 

“Person” means any natural person, firm, partnership, limitedliability company, association, corporation, company, trust, business trust,governmental authority or other entity.

 

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“Plan” means this ServiceMaster Global Holdings, Inc. StockIncentive Plan.

 

“Public Offering” means the first day as of which (i) salesof Common Stock are made to the public in the United States pursuant to anunderwritten public offering of the Common Stock, (ii) Common Stockis otherwise listed for trading on a nationally recognized securities exchange,or (iii) the Board has determined that shares of the Common Stockotherwise have become publicly-traded for this purpose.

 

“Restricted Stock Unit” means the right granted pursuant to thePlan to receive a share of Common Stock and distributions thereon in thefuture, subject to the satisfaction of vesting or other conditions relatedthereto.

 

“Special Termination” means a termination by reason of theParticipant’s death or Disability.

 

“Subscription Agreement” means a stock subscription agreementbetween the Company and a Participant embodying the terms of any stock purchasemade pursuant to the Plan and in the form approved by the Board from time totime for such purpose.

 

“Subsidiary” means any corporation, limited liability company orother entity, a majority of whose outstanding voting securities is owned,directly or indirectly, by the Company.

 

Section 12.2       Gender and Number.  Except when otherwise indicated by thecontext, words in the masculine gender used in the Plan shall include thefeminine gender, the singular shall include the plural, and the plural shallinclude the singular.

 

Article XIIIMiscellaneous Provisions

 

Section 13.1       Nontransferability of Awards.  Except as otherwise provided herein or as theBoard may permit on such terms as it shall determine, no Awards

 

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granted under the Plan may be sold, transferred,pledged, assigned, hedged, encumbered or otherwise alienated or hypothecated,other than by will or by the laws of descent and distribution.  All rights with respect to Awards granted toa Participant under the Plan shall be exercisable during the Participant’slifetime by such Participant only (or, in the event of the Participant’sDisability, such Participant’s legal representative).  Following a Participant’s death, all rightswith respect to Awards that were outstanding at the time of such Participant’sdeath and have not terminated shall be exercised by his designated beneficiaryor by his estate in the absence of a designated beneficiary.

 

Section 13.2       Tax Withholding.  The Company or the Subsidiary employing aParticipant shall have the power to withhold up to the minimum statutoryrequirement, or to require such Participant to remit to the Company or suchSubsidiary, an amount sufficient to satisfy all U.S. federal, state, local andany non-U.S. withholding tax or other governmental tax, charge or feerequirements in respect of any Award granted under the Plan.

 

Section 13.3       Beneficiary Designation.  Pursuant to such rules and procedures asthe Board may from time to time establish, a Participant may name a beneficiaryor beneficiaries (who may be named contingently or successively) by whom anyright under the Plan is to be exercised in case of such Participant’sdeath.  Each designation will revoke allprior designations by the same Participant, shall be in a form reasonablyprescribed by the Board, and will be effective only when filed by theParticipant in writing with the Board during his lifetime.

 

Section 13.4       No Guarantee of Employment orParticipation.  Nothing in the Planor in any agreement granted hereunder shall interfere with or limit in any waythe right of the Company or any Subsidiary to terminate any Participant’semployment or retention at any time, or confer upon any Participant any rightto continue in the employ or retention of the Company or any Subsidiary.  No Employee or Eligible Director shall have aright to be selected as a Participant or, having been so selected, to receiveany Awards.

 

Section 13.5       No Limitation on Compensation; NoImpact on Benefits.  Nothing in thePlan shall be construed to limit the right of the Company or any Subsidiary toestablish other plans or to pay compensation to its Employees or EligibleDirectors, in cash or property, in a manner that is not expressly authorizedunder the Plan.  Except as may otherwisebe specifically and unequivocally stated under any employee benefit plan,policy or program, no amount payable in respect of any Award shall be treatedas compensation for purposes of calculating a Participant’s rights under anysuch plan, policy or program.  Theselection of an

 

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Employee as a Participant shall neither entitle suchEmployee to, nor disqualify such Employee from, participation in any otheraward or incentive plan.

 

Section 13.6       No Voting Rights.  Except as otherwise required by law, noParticipant holding any Awards granted under the Plan shall have any right inrespect of such Awards to vote on any matter submitted to the Company’sstockholders until such time as the shares of Common Stock underlying suchAwards have been issued, and then, subject to the voting restrictions containedin the Subscription Agreement.

 

Section 13.7       Requirements of Law.  The granting of Awards and the issuance ofshares of Common Stock pursuant to the Plan shall be subject to all applicablelaws, rules and regulations, and to such approvals by any governmentalagencies or national securities exchanges as may be required.  No Awards shall be granted under the Plan,and no Common Stock shall be issued under the Plan, if such grant or issuancewould result in a violation of applicable law, including U.S. federalsecurities laws and any applicable state or non-U.S. securities laws.

 

Section 13.8       Freedom of Action.  Nothing in the Plan or any Award Agreementevidencing an Award shall be construed as limiting or preventing the Company orany Subsidiary from taking any action that it deems appropriate or in its bestinterest (as determined in its sole and absolute discretion) and no Participant(or person claiming by or through a Participant) shall have any right relatingto the diminishment in the value of any Award as a result of any such action.

 

Section 13.9       Unfunded Plan; Plan Not Subject toERISA.  The Plan is an unfunded planand Participants shall have the status of unsecured creditors of theCompany.  The Plan is not intended to besubject to the Employee Retirement Income and Security Act of 1974, as amended.

 

Section 13.10     Term of Plan.  The Plan shall be effective as of November 20,2007, (the “Effective Date”) and shall continue in effect, unless soonerterminated pursuant to Article XI, until the tenth anniversary of suchdate.  The provisions of the Plan shallcontinue thereafter to govern all outstanding Awards.

 

Section 13.11     Governing Law.  The Plan, and all agreements hereunder, shallbe governed by and construed in accordance with the law of the State ofDelaware regardless of the application of rules of conflict of law thatwould apply the laws of any other jurisdiction.

 

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