Exhibit 10.2


 


AGA MEDICAL
HOLDINGS, INC.

2006 EQUITY INCENTIVE PLAN


 


1.                                      DEFINED
TERMS


 


Exhibit A, which is
incorporated by reference, defines the terms used in the Plan and sets forth
certain operational rules related to those terms. Exhibit B, which is
also incorporated by reference, contains at Section B.5 thereof the
definitions for certain additional terms used in Exhibit B.


 


2.                                      PURPOSE


 


The Plan has been established
to advance the interests of the Company by providing for the grant to
Participants of Stock-based Awards.


 


3.                                      ADMINISTRATION


 


The Administrator has
discretionary authority, subject only to the express provisions of the Plan, to
interpret the Plan; determine eligibility for and grant Awards; determine,
modify or waive the terms and conditions of any Award; prescribe forms, rules and
procedures; and otherwise do all things necessary to carry out the purposes of
the Plan. Determinations of the Administrator made under the Plan will be
conclusive and will bind all parties.


 


4.                                      LIMITS ON
AWARDS UNDER THE PLAN


 


(a)           Number of Shares.  A
maximum of twenty million (20,000,000) shares of Stock may be delivered in
satisfaction of Awards under the Plan. Up to the maximum number of shares
specified in the immediately preceding sentence may be delivered upon the
exercise of ISOs. The number of shares of Stock delivered in satisfaction of
Awards shall, for purposes of the first two sentences of this Section 4(a)(1),
be determined net of shares of Stock (a) withheld by the Company in
payment of the exercise price of the Award or in satisfaction of tax
withholding requirements with respect to the Award, or (b) awarded under
the Plan as Restricted Stock but thereafter forfeited, or (c) made subject
to an Award that is exercised or satisfied, or that terminates or expires,
without the delivery of such shares. To the extent consistent with the
requirements of Section 422, Stock issued under awards of an acquired
company that are converted, replaced or adjusted in connection with the
acquisition shall not reduce the number of shares available for Awards under
the Plan.


 


(b)           Type of
Shares. Stock
delivered by the Company under the Plan may be authorized but unissued Stock or
previously issued Stock acquired by the Company. No fractional shares of Stock
will be delivered under the Plan.


 


5.                                      ELIGIBILITY
AND PARTICIPATION


 


The Administrator will select
Participants from among those key Employees and directors of, and consultants
and advisors to, the Company or its Affiliates who, in the opinion of the 


 

















 


Administrator,
are in a position to make a significant contribution to the success of the
Company and its Affiliates. Eligibility for ISOs is limited to employees of the
Company or of a “parent corporation” or “subsidiary corporation” of the Company
as those terms are defined in Section 424 of the Code.


 


6.                                      RULES
APPLICABLE TO AWARDS


 


(a)                                  All Awards


 


(1)           Award
Provisions.  The
Administrator will determine the terms of all Awards, subject to the
limitations provided herein. By accepting any Award granted hereunder, the Participant
agrees to the terms of the Award and the Plan. Notwithstanding any provision of
this Plan to the contrary, awards of an acquired company that are converted,
replaced or adjusted in connection with the acquisition may contain terms and
conditions that are inconsistent with the terms and conditions specified
herein, as determined by the Administrator; provided,
that each such assumed, converted, replaced or adjusted award shall contain
provisions substantially equivalent to the provisions of Section 6(a)(9) and
Exhibit B hereof unless WCAS shall have expressly consented to the
omission of those provisions or the substitution of other provisions.


 


(2)           Term
of Plan.  No Awards may be
made after April 26, 2016, but previously granted Awards may continue beyond
that date in accordance with their terms.


 


(3)           Transferability.  Neither ISOs nor, except as the Administrator
otherwise expressly provides, other Awards may be transferred other than by
will or by the laws of descent and distribution, and during a Participant’s
lifetime ISOs (and, except as the Administrator otherwise expressly provides,
other non-transferable Stock Options) may be exercised only by the Participant.
Awards permitted by the Administrator to be transferred may be transferred only
to a Permitted Transferee.


 


(4)           Vesting,
Etc. 
The Administrator may determine the time or times at which an Award will
vest or (in the case of a Stock Option or SAR) become exercisable and the terms
on which a Stock Option or SAR will remain exercisable. Without limiting the
foregoing, the Administrator may at any time accelerate the vesting or
exercisability of an Award, regardless of any adverse or potentially adverse
tax consequences resulting from such acceleration. Unless the Administrator
expressly provides otherwise, however, the following rules will apply:
immediately upon the cessation of the Participant’s Employment, each Stock
Option or SAR that is then held by the Participant or by the Participant’s
Permitted Transferees, if any, will cease to be exercisable and will terminate,
and all other Awards that are then held by the Participant or by the
Participant’s Permitted Transferees, if any, to the extent not already vested
will be forfeited, except that:


 


(A)          subject
to (B) and (C) below, all Stock Options and SARs held by the
Participant or the Participant’s Permitted Transferees, if any, immediately
prior to the cessation of the Participant’s Employment, to the extent then
exercisable, will remain exercisable for the lesser of (i) a period of
three months or (ii) the period ending on the latest date on which such
Stock Option or SAR, as the case may be, could have been exercised without
regard to this Section 6(a)(4), and will thereupon terminate;


 


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(B)           all
Stock Options and SARs held by a Participant or the Participant’s Permitted
Transferees, if any, immediately prior to the Participant’s death, to the
extent then exercisable, will remain exercisable for the lesser of (i) the
one year period ending with the first anniversary of the Participant’s death or
(ii) the period ending on the latest date on which such Stock Option or
SAR, as the case may be, could have been exercised without regard to this Section 6(a)(4),
and will thereupon terminate; and


 


(C)           all
Stock Options and SARs held by a Participant or the Participant’s Permitted
Transferees, if any, immediately prior to the cessation of the Participant’s
Employment will immediately terminate upon such cessation if the Administrator
in its sole discretion determines that such cessation of Employment has
resulted for reasons which cast such discredit on the Participant as to justify
immediate termination of the Award.


 


(5)           Taxes.  The Administrator will make such provision
for the withholding of taxes as it deems necessary and may require that the
exercise or vesting of an Award, or the delivery of Stock, cash or other
property under an Award, be conditioned on the payment by the Participant or
another person of all required withholding taxes. The Administrator may, but
need not, hold back shares of Stock from an Award or permit a Participant to
tender previously owned shares of Stock in satisfaction of tax withholding
requirements (but not in excess of the minimum withholding required by law).


 


(6)           Dividend
Equivalents, Etc. 
The Administrator may provide for the payment of amounts in lieu of cash
dividends or other cash distributions with respect to Stock subject to an
Award.


 


(7)           Rights
Limited. 
Nothing in the Plan will be construed as giving any person the right to
continued employment or service with the Company or its Affiliates, or any
rights as a stockholder except as to shares of Stock actually issued under the
Plan. The loss of existing or potential profit in Awards will not constitute an
element of damages in the event of termination of Employment for any reason,
even if the termination is in violation of an obligation of the Company or
Affiliate to the Participant.


 


(8)           Section 409A. Awards
under the Plan are intended either to qualify for an exemption from Section 409A
or to comply with the requirements thereof, and shall be construed accordingly.


 


(9)           Certain
Additional Restrictions. 
In the case of any Award that is made prior to a Qualified Public
Offering (as that term is defined in Section B.5 of Exhibit B hereof)
and that does not involve the immediate delivery of Stock as to which the
Participant is then or contemporaneously therewith becomes a party to the
Stockholders Agreement (as that term is defined in Section B.5 of Exhibit B
hereof), the provisions of Exhibit B shall apply notwithstanding any other
provision of the Plan or the Award to the contrary unless the Administrator,
with the express written consent of WCAS, determines otherwise. No action by
the Administrator in administering or construing the Plan or any Award shall
adversely affect the rights of WCAS under Exhibit B or this Section 6(a)(9) without
the express written consent of WCAS.


 


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(b)                                Stock
Options and SARs


 


(1)           Time
And Manner Of Exercise. 
Unless the Administrator expressly provides otherwise, a Stock Option or
SAR will not be deemed to have been exercised until the Administrator receives
a notice of exercise (in form acceptable to the Administrator) signed by the
appropriate person and accompanied by any payment required under the Award. If
the Award is exercised by any person other than the Participant, the
Administrator may require satisfactory evidence that the person exercising the
Award has the right to do so.


 


(2)           Exercise
Price. 
The exercise price of each Stock Option and the share value above which
appreciation is to be measured in the case of an SAR shall be 100% of the fair
market value of the Stock subject to the Stock Option or SAR, determined as of
the date of grant, or such higher amount as the Administrator may determine in
connection with the grant.


 


(3)           Payment
Of Exercise Price. 
The Administrator may determine the required or permitted forms of
payment under a Stock Option, subject to the following: all payments will be by
cash or check acceptable to the Administrator, or, if so permitted by the
Administrator and if legally permissible, (i) through the delivery of
shares of Stock that have been outstanding for at least six months (unless the
Administrator approves a shorter period) and that have a fair market value
equal to the exercise price, (ii) by delivery to the Company of a
promissory note of the person exercising the Award, payable on such terms as
are specified by the Administrator, (iii) at such time, if any, as the
Stock is publicly traded, through a broker-assisted exercise program acceptable
to the Administrator, (iv) by other means acceptable to the Administrator,
or (v) by any combination of the foregoing permissible forms of payment.
The delivery of shares in payment of the exercise price under clause (i) above
may be accomplished either by actual delivery or by constructive delivery
through attestation of ownership, subject to such rules as the
Administrator may prescribe.


 


(c)          Awards Other
Than Stock Options and SARs


 


Restricted Stock and
Unrestricted Stock, whether delivered outright or under Awards of Stock Units
or other Awards, may be made in exchange for such lawful consideration,
including services, as the Administrator determines.


 


7.                                      EFFECT OF
CERTAIN TRANSACTIONS


 


(a)                                Mergers, etc.  Except as otherwise provided in an Award, the following provisions shall
apply in the event of a Covered Transaction:


 


(1)           Assumption
or Substitution. 
If the Covered Transaction is one in which there is an acquiring or
surviving entity, the Administrator may provide for the assumption of some or
all outstanding Awards or for the grant of new awards in substitution therefor
by the acquiror or survivor or an affiliate of the acquiror or survivor.


 


(2)           Cash-Out
of Awards. 
If the Covered Transaction is one in which holders of Stock will receive
upon consummation a payment (whether cash, non-cash or a combination of the
foregoing), the Administrator may provide for payment (a “cash-out”), with
respect to some or all Awards or portions thereof, equal in the case of each
affected Award or portion thereof to the 


 


4

















 


excess,
if any, of (A) the fair market value of one share of Stock (as determined
by the Administrator in its reasonable discretion) times the number of shares
of Stock subject to the Award or such portion, over (B) the aggregate
exercise price (or, in the case of an SAR, the aggregate base price above which
appreciation is measured), if any, under the Award or such portion, in each
case on such payment terms (which need not be the same as the terms of payment
to holders of Stock) and other terms, and subject to such conditions, as the
Administrator determines.


 


(3)           Acceleration
of Certain Awards. 
If the Covered Transaction (whether or not there is an acquiring or
surviving entity) is one in which there is no assumption, substitution or
cash-out, each Stock Option and SAR will become fully exercisable, and the
delivery of shares of Stock deliverable under each outstanding Award of Stock
Units (including Restricted Stock Units and Performance Awards to the extent
consisting of Stock Units) will be accelerated and such shares will be
delivered, prior to the Covered Transaction, in each case on a basis that gives
the holder of the Award a reasonable opportunity, as determined by the
Administrator, following exercise of the Award or the delivery of the shares,
as the case may be, to participate as a stockholder in the Covered Transaction.


 


(4)           Termination
of Awards Upon Consummation of Covered Transaction.  Each Award (unless assumed pursuant to Section 7(a)(1) above),
other than outstanding shares of Restricted Stock (which shall be treated in
the same manner as other shares of Stock, subject to Section 7(a)(5) below),
will terminate upon consummation of the Covered Transaction.


 


(5)           Additional
Limitations. 
Any share of Stock delivered pursuant to Section 7(a)(2) or Section 7(a)(3) above
with respect to an Award may, in the discretion of the Administrator, contain
such restrictions, if any, as the Administrator deems appropriate to reflect
any performance or other vesting conditions to which the Award was subject. In
the case of Restricted Stock, the Administrator may require that any amounts
delivered, exchanged or otherwise paid in respect of such Stock in connection
with the Covered Transaction be placed in escrow or otherwise made subject to
such restrictions as the Administrator deems appropriate to carry out the
intent of the Plan.


 


(b)                                Changes in
and Distributions With Respect to Stock


 


(1)           Basic
Adjustment Provisions. 
In the event of a stock dividend, stock split or combination of shares
(including a reverse stock split), recapitalization or other change in the
Company’s capital structure, the Administrator will make appropriate
adjustments to the maximum number of shares specified in Section 4(a) that
may be delivered under the Plan and will also make appropriate adjustments to
the number and kind of shares of stock or securities subject to Awards then outstanding
or subsequently granted, any exercise prices relating to Awards and any other
provision of Awards affected by such change.


 


(2)           Certain
Other Adjustments. 
The Administrator may also make adjustments of the type described in Section 7(b)(1) above
to take into account distributions to stockholders other than those provided
for in Section 7(a) and 7(b)(1), or any other event, if the
Administrator determines that adjustments are appropriate to avoid distortion
in the operation of 


 


5

















 


the
Plan and to preserve the value of Awards made hereunder, having due regard for
the qualification of ISOs under Section 422 and the requirements of Section 409A,
where applicable.


 


(3)           Continuing
Application of Plan Terms.  References in the Plan to shares of Stock
will be construed to include any stock or securities resulting from an
adjustment pursuant to this Section 7.


 


8.                                      LEGAL
CONDITIONS ON DELIVERY OF STOCK


 


The Company will not be
obligated to deliver any shares of Stock pursuant to the Plan or to remove any
restriction from shares of Stock previously delivered under the Plan until: (i) the
Company is satisfied that all legal matters in connection with the issuance and
delivery of such shares have been addressed and resolved; (ii) if the
outstanding Stock is at the time of delivery listed on any stock exchange or
national market system, the shares to be delivered have been listed or
authorized to be listed on such exchange or system upon official notice of
issuance; and (iii) all conditions of the Award have been satisfied or
waived. If the sale of Stock has not been registered under the Securities Act
of 1933, as amended, the Company may require, as a condition to exercise of the
Award, such representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act. The Company may require
that certificates evidencing Stock issued under the Plan bear an appropriate
legend reflecting any restriction on transfer applicable to such Stock, and the
Company may hold the certificates pending lapse of the applicable restrictions.


 


9.                                      AMENDMENT
AND TERMINATION


 


The Administrator may at any
time or times amend the Plan or any outstanding Award for any purpose which may
at the time be permitted by law, and may at any time terminate the Plan as to
any future grants of Awards; provided,
that except as otherwise expressly provided in the Plan the Administrator may
not, without the Participant’s consent, alter the terms of an Award so as to
affect adversely the Participant’s rights under the Award, unless the
Administrator expressly reserved the right to do so at the time of the Award; and  further
provided, that the Administrator may not, by amendment or otherwise,
adversely affect the rights of WCAS under Section 6(a)(9) or Exhibit B
hereof without the express written consent of WCAS. Any amendments to the Plan
shall be conditioned upon stockholder approval only to the extent, if any, such
approval is required by law (including the Code), as determined by the
Administrator.


 


10.                               OTHER
COMPENSATION ARRANGEMENTS


 


The existence of the Plan or
the grant of any Award will not in any way affect the Company’s right to award
a person bonuses or other compensation in addition to Awards under the Plan.


 


11.                               MISCELLANEOUS


 


(a)           Waiver of Jury Trial.  By
accepting an Award under the Plan, each Participant waives any right to a trial
by jury in any action, proceeding or counterclaim concerning any rights under
the Plan and any Award, or under any amendment, waiver, consent, instrument,
document or other agreement delivered or which in the future may be delivered
in connection therewith, and 


 


6

















 


agrees that
any such action, proceedings or counterclaim shall be tried before a court and
not before a jury. By accepting an Award under the Plan, each Participant
certifies that no officer, representative, or attorney of the Company has
represented, expressly or otherwise, that the Company would not, in the event
of any action, proceeding or counterclaim, seek to enforce the foregoing
waivers.


 


(b)           Limitation of Liability. 
Notwithstanding anything to the contrary in the Plan, neither the
Company nor the Administrator, nor any person acting on behalf of the Company
or the Administrator, shall be liable to any Participant or to the estate or
beneficiary of any Participant by reason of any acceleration of income, or any
additional tax, asserted by reason of the failure of an Award to satisfy the
requirements of Section 422 or Section 409A or by reason of Section 4999
of the Code; provided, that
nothing in this Section 11(b) shall limit the ability of the
Administrator or the Company to provide by express agreement with a Participant
for a gross-up payment or other payment in connection with any such tax or
additional tax.


 


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EXHIBIT A


 


Definition of Terms


 


The following terms, when used
in the Plan, will have the meanings and be subject to the provisions set forth
below in this Exhibit A. Certain terms used in Exhibit B are
separately defined in Exhibit B.


 


“Administrator”:  The Board, except that the Board may delegate
its authority under the Plan to a committee of the Board, in which case
references herein to the Board shall refer to such committee. The Board may
delegate (i) to one or more of its members such of its duties, powers and
responsibilities as it may determine; (ii) to one or more officers of the
Company the power to grant rights or options to the extent permitted by Section 157(c) of
the Delaware General Corporation Law; (iii) to one or more officers of the
Company the authority to allocate other Awards among such persons (other than
officers of the Company) eligible to receive Awards under the Plan as such
delegated officer or officers determine consistent with such delegation; provided, that with respect to any
delegation described in this clause (iii) the Board (or a properly
delegated member or members of the Board) shall have authorized the issuance of
a specified number of shares of Stock under such Awards and shall have
specified the consideration, if any, to be paid therefor; and (iv) to such
Employees or other persons as it determines such ministerial tasks as it deems
appropriate. In the event of any delegation described in the preceding
sentence, the term “Administrator” shall include the person or persons so
delegated to the extent of such delegation.


 


“Affiliate”:  Any corporation or other entity that stands
in a relationship to the Company that would result in the Company and such
corporation or other entity being treated as part of a single employer under Section 414(b) or
Section 414(c) of the Code, except that in determining eligibility
for the grant of a Stock Option or SAR by reason of service for an Affiliate,
Sections 414(b) and 414(c) of the Code shall be applied by
substituting “at least 50%” for “at least 80%” under Section 1563(a)(1), (2) and
(3) of the Code and Treas. Regs. § 1.414(c)-2; provided, that to the extent permitted under Section 409A,
“at least 20%” shall be used in lieu of “at least 50%”; and further provided, that the lower
ownership threshold described in this definition (50% or 20% as the case may
be) shall apply only if the same definition of affiliation is used consistently
with respect to all compensatory stock options or stock awards (whether under
the Plan or another plan). The Company may at any time by amendment provide
that different ownership thresholds (consistent with Section 409A) apply.


 


“Assumption
Agreement”:  An
agreement in form reasonably satisfactory to the Administrator and to WCAS
whereby a transferee of an Award or shares acquired under an Award agrees to be
bound with respect to such Award or shares by the provisions of Section 6(a)(9) and
Exhibit B of the Plan to the same extent as the Participant to whom such
Award was granted. An Assumption Agreement shall not be effective unless and
until the Administrator has either (i) been furnished with an opinion in
form and substance reasonably satisfactory to the Administrator of counsel
reasonably satisfactory to the Administrator that the transfer is exempt from
or not subject to the provisions of Section 5 of the Securities Act and
complies with or is exempt from all other applicable securities laws, or (ii) with
WCAS’s consent, expressly waived its rights under clause (i).


 


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“Award”:  Any or a combination of the following:


 


(i)                                     SARs.


 


(ii)                                  Stock
Options.


 


(iii)                               Restricted
Stock.


 


(iv)                              Unrestricted
Stock.


 


(v)                                 Stock
Units, including Restricted Stock Units.


 


(vi)                              Performance
Awards.


 


(vii)                           Awards
(other than Awards described in (i) through (vi) above) that are
convertible into or otherwise based on Stock.


 


“Board”:  The Board of Directors of the Company.


 


“Code”:  The U.S. Internal Revenue Code of 1986 as from
time to time amended and in effect, or any successor statute as from time to
time in effect. Any reference to a provision of the Code shall be deemed to
include a reference to any applicable guidance (as determined by the
Administrator) with respect to such provision.


 


“Company”:  AGA Medical Holdings, Inc.


 


“Covered
Transaction”: Any of (i) a consolidation, merger,
or similar transaction or series of related transactions, including a sale or
other disposition of stock, in which the Company is not the surviving
corporation or which results in the acquisition of all or substantially all of
the Company’s then outstanding common stock by a single person or entity or by
a group of persons and/or entities acting in concert, (ii) a sale or
transfer of all or substantially all the Company’s assets, or (iii) a
dissolution or liquidation of the Company. Where a Covered Transaction involves
a tender offer that is reasonably expected to be followed by a merger described
in clause (i) (as determined by the Administrator), the Covered
Transaction shall be deemed to have occurred upon consummation of the tender
offer.


 


“Employee”:  Any person who is employed by the Company or
an Affiliate.


 


“Employment”:  A Participant’s employment or other service
relationship with the Company and its Affiliates. Employment will be deemed to
continue, unless the Administrator expressly provides otherwise, so long as the
Participant is employed by, or otherwise is providing services in a capacity
described in Section 5 to the Company or its Affiliates. If a Participant’s
employment or other service relationship is with an Affiliate and that entity
ceases to be an Affiliate, the Participant’s Employment will be deemed to have
terminated when the entity ceases to be an Affiliate unless the Participant
transfers Employment to the Company or its remaining Affiliates.


 


9














 


“ISO”:  A Stock Option intended to be an “incentive
stock option” within the meaning of Section 422. Each option granted
pursuant to the Plan will be treated as providing by its terms that it is to be
a non-incentive stock option unless, as of the date of grant, it is expressly
designated as an ISO.


 


“Participant”:  A person who is granted an Award under the
Plan.


 


“Performance
Award”: An Award subject to specified criteria, other
than the mere continuation of Employment or the mere passage of time, the satisfaction
of which is a condition for the grant, exercisability, vesting or full
enjoyment of the Award.


 


“Permitted
Transferee”:  In
the case of any Participant, the Participant’s spouse and lineal descendants or
trusts for the benefit of, or corporations, limited liability companies or
partnerships, the stockholders, members or general and/or limited partners of
which include, only such Participant and/or Participant’s parents, spouse or
lineal descendants. A transferee shall not be treated as a Permitted Transferee
unless and until the transferee is or becomes party to an effective Assumption
Agreement.


 


“Plan”:  The AGA Medical Holdings, Inc. 2006
Equity Incentive Plan as from time to time amended and in effect.


 


“Restricted
Stock”:  Stock
subject to forfeiture restrictions requiring that it be redelivered or offered
for sale to the Company if specified conditions are not satisfied.


 


“Restricted
Stock Unit”:  A
Stock Unit that is, or as to which the delivery of Stock or cash in lieu of
Stock is, subject to the satisfaction of specified performance or other vesting
conditions.


 


“SAR”:  A right entitling the holder upon exercise to
receive an amount (payable in cash or shares of Stock of equivalent value, as
specified in the Award except as otherwise determined by the Administrator)
equal to the excess of the fair market value of the shares of Stock subject to
the right over an amount that is not less than the fair market value of such
shares at the date of grant.


 


“Section 409A”:
Section 409A of the Code.


 


“Section 422”: Section 422
of the Code.


 


“Stock”:
Common Stock of the Company, par value $      
per share.


 


“Stock
Option”: An option entitling the holder to acquire
shares of Stock upon payment of the exercise price.


 


“Stock
Unit”: An unfunded and unsecured promise, denominated
in shares of Stock, to deliver Stock or cash measured by the value of Stock in
the future.


 


“Unrestricted
Stock”: Stock not subject to any restrictions under
the terms of the Award.


 


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“WCAS”:  Welsh, Carson, Anderson & Stowe IX,
L.P., a Delaware limited partnership.


 


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EXHIBIT B


 


Certain Restrictions


 


The provisions of this Exhibit B
shall apply to any Holder who is not a party to the Stockholders Agreement
dated as of July 28, 2005 by and among the Company, WCAS, and each of the
other individuals and entities from time to time named on Schedule I to said
Stockholders Agreement. The operative provisions of this Exhibit B are set
forth in Sections B.1 through B.4 below. Defined terms specific to this Exhibit B
are defined at Section B.5 below. Except as provided at Section B.1(c) below,
the provisions of this Exhibit B shall cease to have effect from and after
the consummation of a Qualified Public Offering.


 


B.1.  Restrictions on Transfer of Plan Shares.


 


(a)           Subject to any additional limitations on transfer that may
apply under an Award, a Holder of Plan Shares may at any time Transfer any or
all of the Plan Shares held by such Holder to any one or more Permitted
Transferees (but may not Transfer any Plan Shares, other than with the express
prior written consent of the Administrator and WCAS, other than to a Permitted
Transferee). No Transfer under this Section B.1 shall be permitted if it
would require the Company to register a class of equity securities under Section 12
of the Exchange Act under circumstances where the Company does not then have
securities of any class registered under Section 12 of the Exchange Act.
Each Holder agrees not to effect or attempt to effect any Transfer of Plan
Shares unless the Transfer is made pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and, in either case, in compliance with all applicable state securities laws.


 


(b)           The Company will not cause or permit the Transfer of any
Plan Shares to be made on its books (or on any register of securities
maintained on its behalf) unless the Transfer is permitted by and has been made
in accordance with the terms of this Exhibit B and all applicable federal
and state securities laws. Any attempted Transfer in violation of the terms
hereof shall be null and void ab  initio
and of no effect. Until one hundred eighty (180) days have elapsed following a
Qualified Public Offering or such earlier time as the Administrator may, with
the consent of WCAS, determine, all certificates representing Plan Shares that
are held by any Holder shall bear a legend (in addition to any other legends
required by the Administrator) which shall state the following:


 


“THE SECURITIES EVIDENCED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND NO INTEREST HEREIN MAY BE SOLD, OFFERED, ASSIGNED,
DISTRIBUTED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING ANY SUCH TRANSACTION
OR (B) THE COMPANY RECEIVES AN OPINION IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
STATING THAT SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION AND IN
COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES LAWS OR (C) THE COMPANY
AND ITS COUNSEL ARE OTHERWISE SATISFIED THAT SUCH 


 


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TRANSACTION IS EXEMPT FROM SUCH
REGISTRATION AND IN COMPLIANCE WITH ALL STATE SECURITIES LAWS.”


 


(c)           The provisions of this Section B.1 shall terminate
and be of no further force or effect from and after the 180th day
following the consummation of a Qualified Public Offering.


 


B.2.         Voting Rights. 
At each annual or special stockholders meeting called for the election
of directors, and whenever the stockholders of the Company act by written
consent with respect to the election of directors, each Holder of Plan Shares
shall be deemed to have given such Holder’s vote and consent in respect of such
shares and shall take any and all such additional steps as the Administrator
may require to cause such shares to be voted in a manner consistent with the
requirements of Section 4.01 of the Stockholders Agreement. For purposes
of the immediately preceding sentence, each Holder shall be bound by and may
rely conclusively on the instructions of the Administrator (which shall be
consistent with the Stockholders Agreement) and shall not, by reason of being a
Holder or by reason of this Exhibit B, have any right to review the
Stockholders Agreement.


 


B.3.         Participation in Certain Sales. In any case in which
WCAS initiates a “Third Party Sale” pursuant to Section 6.02 of the
Stockholders Agreement, each Holder shall participate in such sale if so
required by WCAS to the extent and in the manner specified by WCAS and in
connection therewith shall, on the same basis as other stockholders
participating in such transaction, (i) agree to covenants, join in
indemnification undertakings, and make representations and warranties; be (ii) fund
such Holder’s proportionate share of any adjustment in purchase price or escrow
arrangements and its proportionate share of any withdrawals from any such
escrow, including any such withdrawals that are made with respect to claims
arising out of agreements, covenants, representations, warranties or other
provisions relating to the transaction; (iii) be responsible for its
proportionate share of the fees and expenses of the transaction to the extent
not paid or reimbursed by the Company or another Person; and (iv) at the
closing of the transaction, deliver certificates evidencing the Plan Shares
then held by such Holder to be sold or cancelled in connection with such
transaction, duly endorsed for transfer or accompanied by stock powers executed
in blank, against payment of the purchase price therefor by wire transfer to
the account or accounts specified by such Holder. For purposes of this Section B.3,
each Holder shall be bound by and may rely conclusively on the instructions of
the WCAS (which shall be consistent with the Stockholders Agreement) and shall
not, by reason of being a Holder or by reason of this Exhibit B, have any
right to review the Stockholders Agreement.


 


B.4.         WCAS Consent to Certain Amendments; WCAS As Third Party
Beneficiary. Notwithstanding anything else to the contrary contained in
this Plan, none of the provisions of Section 6(a)(9), Section 9 or
this Exhibit B shall be amended, modified, terminated or supplemented
without the prior written approval of WCAS, which is intended to be a
beneficiary of such provisions entitled to enforce such provisions.


 


B.5.         Certain Defined Terms. When used in this Exhibit B,
the following terms not otherwise defined in Exhibit A shall have the
following meanings:


 


“Exchange
Act”: The Securities Exchange Act of 1934, as amended.


 


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“Holder”:
A holder of Plan Shares.


 


“Plan
Share”: Any share of Stock acquired under an Award,
whether held by the Participant or his or her beneficiary or by a transferee.


 


“Qualified
Public Offering”: As defined in the Amended and
Restated Certificate of Incorporation of the Company, as amended from time to
time.


 


“Securities
Act”: The Securities Act of 1933, as amended.


 


“Stockholders
Agreement”: The stockholders agreement referenced in
the first paragraph of this Exhibit B, as the same is from time to time
amended and in effect.


 


“Transfer”:
A transfer, sale, assignment, pledge, hypothecation or other disposition
(including by operation of law), whether directly or indirectly pursuant to the
creation of a derivative security, the grant of an option or other right or the
imposition of a restriction on disposition or voting.


 


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