EX-10.68








Exhibit 10.68







    NEW
    CLEARWIRE CORPORATION

    



 




    2008
    STOCK COMPENSATION PLAN



 




    ARTICLE I

    



 




    EFFECTIVE
    DATE AND PURPOSE



 



    1.1 Effective Date.  The Board and the
    board of directors of Clearwire Corporation approved the Plan
    effective as of [DATE] (the “Effective Date”), subject
    to the approval of the Plan by a majority of the stockholders of
    Clearwire Corporation within twelve (12) months of the
    adoption of the Plan by the Board in accordance with Code
    Sections 162(m) and 422, and the treasury regulations
    promulgated thereunder. No Awards may be granted hereunder or
    approved by the Board or the Committee until, the consummation
    of the Transaction. If the Transaction is not consummated
    substantially in accordance with the terms of the Transaction
    Agreement (as amended from time to time in accordance with its
    terms) by January 1, 2010, this Plan shall terminate and be
    of no further force or effect.



 



    1.2 Purpose of the Plan.  The Plan is
    intended to further the growth and profitability of the Company
    by increasing incentives and encouraging Share ownership on the
    part of the Employees, Independent Contractors and Members of
    the Board of the Company and its Subsidiaries and Related Companies. The Plan is intended to permit
    the grant of Awards that constitute Incentive Stock Options,
    Non-Qualified Stock Options, Stock Appreciation Rights,
    Restricted Stock, Restricted Stock Units and Other Stock Awards.



 




    ARTICLE II

    



 




    DEFINITIONS



 



    The following words and phrases shall have the following
    meanings unless a different meaning is plainly required by the
    context:



 



    “Affiliate” means any entity, directly or indirectly,
    controlled by, controlling or under common control with the
    Company or any corporation or other entity acquiring, directly
    or indirectly, all or substantially all the assets and business
    of the Company, whether by operation of law or otherwise.



 



    “Award” means, individually or collectively, a grant
    under the Plan of Non-Qualified Stock Options, Incentive Stock
    Options, Stock Appreciation Rights, Restricted Stock, Restricted
    Stock Units or Other Stock Awards.



 



    “Award Agreement” means the written agreement setting
    forth the terms and conditions applicable to an Award.



 



    “Base Price” means the price at which a SAR may be
    exercised with respect to a Share.



 



    “Board” means the Company’s Board of Directors,
    as constituted from time to time.



 



    “Change in Control” means with respect to either the
    Company or the LLC (each, a “Clearwire Person”), any
    of the following events:



 



    (a) the sale of more than a majority of the consolidated
    assets of that Clearwire Person and its Subsidiaries;



 



    (b) any merger, consolidation, share exchange,
    recapitalization, sale, issuance, disposition, transfer of
    capital stock or other transaction, in each case in which any
    Person or group (within the meaning of Section 13(d)(3) or
    14(d)(2) of the Exchange Act) acquires beneficial ownership of
    more than a majority (or, in the case of Sprint Nextel
    Corporation, seventy-five percent) of either:



 



    (i) the then-outstanding shares of that Clearwire
    Person’s common stock or equivalent securities (determined
    on an as-converted basis), or



 



    (ii) the combined voting power of the then-outstanding
    voting securities of that Clearwire Person entitled to vote
    generally in the election of directors; or




    

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    (c) during any period of 24 consecutive months, a majority
    of the members of the Board, solely with respect to the Company, cease to be composed of individuals (A) who were
    members of the Board on the first
    day of such period, (B) whose election or nomination to
    the Board was approved by
    individuals referred to in clause (A) above constituting at
    the time of such election or nomination at least a majority of
    the Board or (C) whose
    election or nomination to that board was approved by individuals referred to in
    clauses (A) and (B) above constituting at the time of
    such election or nomination at least a majority of the Board;
PROVIDED, HOWEVER, a member of the Board who differs from the
individual who was a member of the Board on the first day of the applicable period will be deemed
    to have been a member on the first day of the applicable period
    if such member was nominated or otherwise designated by the same
    Equityholder (as defined in the Equityholders’ Agreement)
    as appointed the original member in accordance with
    Section 2.1 of the Equityholders’ Agreement.



 



    For the sake of clarity, consummation of the Transaction shall
    not constitute a Change in Control.



 



    “Code” means the Internal Revenue Code of 1986, as
    amended. Reference to a specific section of the Code or
    regulation thereunder shall include such section or regulation,
    any valid regulation or other guidance promulgated under such
    section, and any comparable provision of any future legislation
    or regulation amending, supplementing or superseding such
    section or regulation.



 



    “Committee” means the committee of the Board described
    in Article 3.



 



    “Company” means New Clearwire Corporation or any
    successor thereto.



 



    “Division” means any of the operating units or
    divisions of the Company, a Subsidiary or a Related Company that
    is designated as a Division by the Committee.



 



    “Eligible Individual” means any of the following
    individuals who is designated by the Committee as eligible to
    receive Awards subject to the conditions set forth herein:
    (a) any Member of the Board, officer or Employee of the
    Company, a Subsidiary or a Related Company, (b) any
    individual to whom the Company, a Subsidiary or a Related
    Company has extended a formal, written offer of employment, or
    (c) any Independent Contractor.



 



    “Employee” means an employee of the Company, a Related
    Company, a Subsidiary or an Affiliate (each an
    “Employer”) designated by the Committee.



 



    “Equityholders’ Agreement” means the
    Equityholders’ Agreement by and among the Company, Sprint
    Nextel Corporation, Eagle River Holdings, LLC, Intel
    Corporation, Comcast Corporation, Time Warner Cable Inc., Google
    Inc., and BHN Spectrum Investments, LLC, as amended from time to
    time.



 



    “Exchange Act” means the Securities Exchange Act of
    1934, as amended. Reference to a specific section of the
    Exchange Act or regulation thereunder shall include such section
    or regulation, any valid regulation or interpretation
    promulgated under such section, and any comparable provision of
    any future legislation or regulation amending, supplementing or
    superseding such section or regulation.



 



    “Exercise Price” means the price at which a Share
    subject to an Option may be purchased upon the exercise of the
    Option.



 



    “Fair Market Value” on any date means (a) the
    closing price in the primary trading session for a Share on such
    date on the stock exchange, if any, on which Shares are
    primarily traded (or if no Shares were traded on such date, then
    on the most recent previous date on which any Shares were so
    traded), (b) if clause (a) is not applicable, the
    closing price of the Shares on such date on the Nasdaq Stock
    Market at the close of the primary trading session (or if no
    Shares were traded on such date, then on the most recent
    previous date on which any Shares were so traded) or (c) if
    neither clause (a) nor clause (b) is applicable, the
    value of a Share for such date as established by the Committee,
    using any reasonable method of valuation.



 



    “Grant Date” means the date that the Award is granted.




    

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    “Immediate Family” means the Participant’s
    children, stepchildren, grandchildren, parents, stepparents,
    grandparents, spouse, siblings (including half-brothers and
    half-sisters), in-laws, and all such relationships arising
    because of legal adoption.



 



    “Incentive Stock Option” means an Option that is
    designated as an Incentive Stock Option and is intended by the
    Committee to meet the requirements of Section 422 of the
    Code.



 



    “Independent Contractor” means a Person, employed by
    the Company, a Subsidiary or a Related Company for a specific
    task, study or project who is not an Employee, including an
    advisor or consultant who (i) is a natural person and
    (ii) provides bona fide services to the Company, a
    Subsidiary or a Related Company; provided such services are not
    in connection with the offer or sale of securities in a
    capital-raising transaction, and do not directly or indirectly
    promote or maintain a market for the Company’s securities.



 



    “LLC” means Clearwire Communications LLC and any
    successor thereto.



 



    “Member of the Board” means an individual who is a
    member of the Board or of the board of directors of a
    Subsidiary, an Affiliate or a Related Company.



 



    “New Clearwire Share” means a share of the
    Company’s Class A common stock, par value $0.0001 per
    share.



 



    “Non-Qualified Stock Option” means an Option that is
    not an Incentive Stock Option.



 



    “Old Clearwire Share” means a share of Clearwire
    Corporation’s Class A common stock, par value $0.0001
    per share.



 



    “Option” means an option to purchase Shares granted
    pursuant to Article 5.



 



    “Optionee” means a Person to whom an Option has been
    granted under the Plan.



 



    “Other Stock Award” means an Award granted pursuant to
    Article 8 to receive Shares on the terms specified in any
    applicable Award Agreement.




 



    “Participant” means an Eligible Individual with
    respect to whom an Award has been granted and remains
    outstanding.



 



    “Performance Awards” means Performance Units,
    Performance Shares or either or both of them.



 



    “Performance-Based Compensation” means any Option or
    Award that is intended to constitute “performance based
    compensation” within the meaning of
    Section 162(m)(4)(C) of the Code and the regulations
    promulgated thereunder.



 



    “Performance Cycle” means the time period specified by
    the Committee at the time Performance Awards are granted during
    which the performance of the Company, a Subsidiary, a Division
    or a Related Company will be measured.



 



    “Performance Goals” means goals established by the
    Committee as contingencies for Awards to vest
    and/or
    become exercisable or distributable.



 



    “Performance Shares” means Shares issued or
    transferred to a Participant under Section 9.



 



    “Performance Units” means Restricted Stock Units
    subject to Performance Goals under Section 9.



 



    “Performance Period” means the designated period
    during which the Performance Goals must be satisfied with
    respect to the Award to which the Performance Goals relate.




    

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    “Period of Restriction” means the period during which
    Restricted Stock or an RSU is subject to forfeiture
    and/or
    restrictions on transferability.



 



    “Person” means any individual, corporation, limited
    liability company, limited or general partnership, joint
    venture, association, joint-stock company, trust, estate,
    unincorporated organization, government or any agency or
    political subdivisions thereof.



 



    “Plan” means this New Clearwire Corporation 2008 Stock
    Compensation Plan, as set forth in this instrument and as
    hereafter amended from time to time.



 



    “Related Company” means any Person that would be
    considered a single employer with the Company under
    Section 414(b) or (c) of the Code if the language
    “at least 80 percent” as used in connection with
    the application of these provisions were replaced by “at
    least 50 percent”.



 



    “Restricted Stock” means a Stock Award granted
    pursuant to Article 6 under which the Shares are subject to
    forfeiture upon such terms and conditions as specified in the
    relevant Award Agreement.



 



    “Restricted Stock Unit” or “RSU” means a
    Stock Award granted pursuant to Article 6 subject to a
    period or periods of time after which the Participant will
    receive Shares if the conditions contained in such Stock Award
    have been met.



 




    “Service Relationship” means (i) an
    Employee’s employment relationship, (ii) an
    Independent Contractor’s service relationship or
    (iii) a Member of the Board’s service as a member of
    the Board. Unless otherwise provided in an Award Agreement, a
    Participant’s Service Relationship shall not be considered
    to be terminated so long as such Participant has a Service
    Relationship as an Employee, Independent Contractor or Member of
    the Board.



 



    “Share” means an Old Clearwire Share. After
    consummation of the Transaction, “Share” shall mean a
    share of stock of the Company into which Old Clearwire Shares
    were converted in connection with the Transaction, which are
    anticipated to be shares of Class A common stock of the
    Company, par value $0.0001 per share (each, a “New
    Clearwire Share”).



 



    “Stock Appreciation Right” or “SAR” means an
    Award granted pursuant to Article 7, granted alone or in
    tandem with a related Option which is designated by the
    Committee as an SAR.



 



    “Stock Award” means an Award of Restricted Stock or an
    RSU pursuant to Article 6.



 



    “Subsidiary(ies)” means any entity (other than the
    Company) in an unbroken chain of entities, including and
    beginning with the Company, if each of such entities, other than
    the last entity in the unbroken chain, owns, directly or
    indirectly, more than fifty percent (50%) of the voting
    interests in one of the other entities in such chain.



 



    “Ten Percent Holder” means an Employee (together
    with Persons whose stock ownership is attributed to the Employee
    pursuant to Section 424(d) of the Code) who, at the time an
    Option is granted, owns stock representing more than ten percent
    of the voting power of all classes of stock of the Company.



 



    “Transaction” means the transactions contemplated by
    the Transaction Agreement.



 



    “Transaction Agreement” means the Transaction
    Agreement and Plan of Merger, dated as of May 7, 2008 by
    and among Clearwire Corporation, Sprint Nextel Corporation,
    Comcast Corporation, Time Warner Cable Inc., Bright House
    Networks, LLC, Google Inc. and Intel Corporation, as amended
    from time to time.



 




    ARTICLE III

    



 




    ADMINISTRATION



 



    3.1 The Committee.  The Plan shall be
    administered by the Compensation Committee of the Board. Except
    as provided in or pursuant to the Equityholders’ Agreement, if
    the Committee consists of more than one




    

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    (1) member, a quorum shall consist of not fewer than two
    (2) members of the Committee and a majority of a quorum may
    authorize any action. Subject to applicable law and
    Section 3.3 of the Plan, the Committee may delegate its
    authority under the Plan to any other Person or Persons.
    Reference to the Committee shall refer to the Board if the
    Compensation Committee ceases to exist and the Board does not
    appoint a successor Committee.



 



    3.2 Authority and Action of the
    Committee.  It shall be the duty of the Committee
    to administer the Plan in accordance with the Plan’s
    provisions. The Committee shall have all powers and discretion
    necessary or appropriate to administer the Plan and to control
    its operation, including, but not limited to, the power to
    (a) determine which Employees, Independent Contractors and
    Members of the Board shall be eligible to receive Awards, and to
    grant Awards, (b) prescribe the form, amount, timing and
    other terms and conditions of each Award, (c) interpret the
    Plan and the Award Agreements, (d) adopt such procedures as
    it deems necessary or appropriate to permit participation in the
    Plan by eligible Employees, Independent Contractors and Members
    of the Board, (e) adopt such rules as it deems necessary or
    appropriate for the administration, interpretation and
    application of the Plan, (f) interpret, amend or revoke any
    such procedures or rules, (g) correct any technical
    defect(s) or technical omission(s), or reconcile any technical
    inconsistency(ies), in the Plan
    and/or any
    Award Agreement, (h) accelerate the vesting or payment of
    any award, (i) extend the period during which an Option may
    be exercisable, and (j) make all other decisions and
    determinations that may be required pursuant to the Plan
    and/or any
    Award Agreement or as the Committee deems necessary or advisable
    to administer the Plan.



 



    Except as provided in or pursuant to the Equityholders’
    Agreement, the acts of the Committee shall be either
    (i) acts of a majority of the members of the Committee
    present at any meeting at which a quorum is present or
    (ii) acts approved in writing by all of the members of the
    Committee without a meeting. A majority of the Committee shall
    constitute a quorum. The Committee’s determinations under
    the Plan need not be uniform and may be made selectively among
    Participants, whether or not such Participants are similarly
    situated. Each member of the Committee is entitled, in good
    faith, to rely or act upon any report or other information
    furnished to that member by any Employee of the Company or any
    of its Subsidiaries, Affiliates, or Related Companies, the
    Company’s independent certified public accountants or any
    executive compensation consultant or other professional retained
    by the Company to assist in the administration of the Plan.



 



    The Company shall effect the granting of Awards under the Plan,
    in accordance with the determinations made by the Committee, by
    execution of written agreements
    and/or other
    instruments in such form as is approved by the Committee.



 



    3.3 Delegation by the Committee.  The
    Committee, in its sole discretion and on such terms and
    conditions as it may provide, may delegate all or any part of
    its authority and powers under the Plan to one or more Members
    of the Board of the Company
    and/or
    officers of the Company; PROVIDED, HOWEVER, that the Committee
    may not delegate its authority or power with respect to the
    selection for participation in this Plan of an officer or other
    Person subject to Section 16 of the Exchange Act or
    decisions concerning the timing, pricing or amount of an Award
    to such an officer or Person and the Committee may not delegate
    to an Eligible Individual the authority to grant Awards to him
    or herself.



 



    3.4 Decisions Binding.  All
    determinations, decisions and interpretations of the Committee,
    the Board, and any delegate of the Committee pursuant to the
    provisions of the Plan or any Award Agreement shall be final,
    conclusive, and binding on all Persons, and shall be given the
    maximum deference permitted by law.



 




    ARTICLE IV

    



 




    SHARES
    SUBJECT TO THE PLAN



 



    4.1 Number of Shares.  Subject to
    adjustment as provided in Section 10.12, the number of
    Shares available for grants of Awards under the Plan shall be
    80,000,000 Shares. For the sake clarity, immediately after
    consummation of the Transaction, the number of New Clearwire
    Shares available for grants of Awards under the Plan shall not
    exceed 80,000,000 New Clearwire Shares, subject thereafter to
    adjustment as provided in Section 10.12. Shares awarded
    under the Plan may be either authorized but unissued Shares,
    authorized and




    

    5








 






    issued Shares reacquired and held as treasury Shares or a
    combination thereof. Unless prohibited by applicable law or
    exchange rules, Shares issued in assumption of, or in
    substitution for, any outstanding awards of any entity acquired
    in any form of combination by the Company or any Subsidiary or
    Affiliate shall not reduce the Shares available for grants of
    Awards under this Section 4.1. Upon consummation of the
    Transaction, the Old Clearwire Shares reserved hereunder shall
    be converted into New Clearwire Shares, with the number of New
    Clearwire Shares reserved for issuance under the Plan equaling
    the number of New Clearwire Shares into which the number of Old
    Clearwire Shares reserved hereunder would be converted pursuant
    to the Transaction Agreement if they were then outstanding.
    Subject to adjustment in accordance with Section 10.12, in
    no event may more than 20,000,000 Shares be issued upon the
    exercise of an Incentive Stock Option granted under the Plan.
    Subject to adjustment in accordance with Section 10.12, the
    maximum number of Shares that may be subject to Options or Stock
    Appreciation Rights granted to any Eligible Individual in any
    12-month
    period is 4,000,000.



 



    4.2 Lapsed Awards.  To the extent that
    Shares subject to an outstanding Option (except to the extent
    Shares are issued or delivered by the Company in connection with
    the exercise of a tandem SAR) or other Award are not issued or
    delivered by reason of (i) the expiration, cancellation,
    forfeiture or other termination of such Award, (ii) the
    withholding of such Shares in satisfaction of applicable
    federal, state or local taxes or (iii) of the settlement of
    all or a portion of such Award in cash, then such Shares shall
    again be available under this Plan.



 




    ARTICLE V

    



 




    STOCK
    OPTIONS



 



    5.1 Grant of Options.  Subject to the
    provisions of the Plan, Options may be granted to Participants
    at such times, and subject to such terms and conditions, as
    determined by the Committee in its sole discretion. An Award of
    Options may include Incentive Stock Options, Non-Qualified Stock
    Options, or a combination thereof; PROVIDED, HOWEVER, that an
    Incentive Stock Option may only be granted to an Employee of the
    Company or a Subsidiary and no Incentive Stock Option shall be
    granted more than ten years after the earlier of (i) the
    date this Plan is adopted by the Board or (ii) the date
    this Plan is approved by the Clearwire Corporation’s
    stockholders.



 



    5.2 Award Agreement.  Each Option shall be
    evidenced by an Award Agreement that shall specify the Exercise
    Price, the expiration date of the Option, the number of Shares
    to which the Option pertains, any conditions to the exercise of
    all or a portion of the Option, and such other terms and
    conditions as the Committee, in its discretion, shall determine.
    The Award Agreement pertaining to an Option shall designate such
    Option as an Incentive Stock Option or a Non-Qualified Stock
    Option. Notwithstanding any such designation, to the extent that
    the aggregate Fair Market Value (determined as of the Grant
    Date) of Shares with respect to which Options designated as
    Incentive Stock Options are exercisable for the first time by a
    Participant during any calendar year (under this Plan or any
    other plan of the Company, or any parent or subsidiary as
    defined in Section 424 of the Code) exceeds $100,000, such
    Options shall constitute Non-Qualified Stock Options. For
    purposes of the preceding sentence, Incentive Stock Options
    shall be taken into account in the order in which they are
    granted.



 



    5.3 Exercise Price.  Subject to the other
    provisions of this Section, the Exercise Price with respect to
    Shares subject to an Option shall be determined by the Committee
    in its sole discretion; PROVIDED, HOWEVER, that the Exercise
    Price shall be not less than one hundred percent (100%) of the
    Fair Market Value of a Share on the Grant Date; and provided
    further, that the Exercise Price with respect to an Incentive
    Stock Option granted to a Ten Percent Holder shall not be
    less than one hundred ten percent (110%) of the Fair Market
    Value of a Share on the Grant Date.



 



    5.4 Expiration Dates.  Each Option shall
    terminate not later than the expiration date specified in the
    Award Agreement pertaining to such Option; PROVIDED, HOWEVER,
    that the expiration date with respect to an Option shall not be
    later than the tenth anniversary of its Grant Date and the
    expiration date with respect to an Incentive Stock Option
    granted to a Ten Percent Holder shall not be later than the
    fifth anniversary of its Grant Date.




    

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    5.5 Exercisability of Options.  Subject to
    Section 5.4, Options granted under the Plan shall be
    exercisable at such times, and shall be subject to such
    restrictions and conditions, as the Committee shall determine in
    its sole discretion. The exercise of an Option is contingent
    upon payment by the Optionee of the amount sufficient to pay all
    taxes required to be withheld by any governmental agency. Such
    payment may be in any form approved by the Committee.



 



    5.6 Method of Exercise.  Options shall be
    exercised by the Participant’s delivery of a written notice
    of exercise to the Chief Financial Officer of the Company (or
    his or her designee), setting forth the number of Shares with
    respect to which the Option is to be exercised, accompanied by
    full payment of the Exercise Price with respect to each such
    Share and an amount sufficient to pay all taxes required to be
    withheld by any governmental agency. The Exercise Price shall be
    payable to the Company in full in cash or its equivalent. The
    Committee, in its sole discretion, also may permit exercise
    (a) by tendering previously acquired Shares having an
    aggregate Fair Market Value at the time of exercise equal to the
    aggregate Exercise Price of the Shares with respect to which the
    Option is to be exercised, or (b) by any other means which
    the Committee, in its sole discretion, determines to both
    provide legal consideration for the Shares, and to be consistent
    with the purposes of the Plan, including, without limitation,
    through a registered broker-dealer pursuant to such cashless
    exercise procedures which are, from time to time, deemed
    acceptable by the Committee. As soon as practicable after
    receipt of a written notification of exercise and full payment
    for the Shares with respect to which the Option is exercised,
    the Company shall deliver to the Participant Share certificates
    (which may be in book entry form) for such Shares with respect
    to which the Option is exercised.



 



    5.7 Restrictions on Share
    Transferability.  Incentive Stock Options are not
    transferable, except by will or the laws of descent. The
    Committee may impose such additional restrictions on any Shares
    acquired pursuant to the exercise of an Option as it may deem
    advisable, including, but not limited to, restrictions related
    to applicable federal securities laws, the requirements of any
    national securities exchange or system upon which Shares are
    then listed or traded, or any blue sky or state securities laws.



 




    ARTICLE VI

    



 




    STOCK
    AWARDS



 



    6.1 Grant of Stock Awards.  Subject to the
    provisions of the Plan, Stock Awards may be granted to such
    Participants at such times, and subject to such terms and
    conditions, as determined by the Committee in its sole
    discretion.



 



    6.2 Stock Award Agreement.  Each Stock
    Award shall be evidenced by an Award Agreement that shall
    specify the number of Shares granted, the price, if any, to be
    paid for the Shares and the Period of Restriction applicable to
    a Restricted Stock Award or RSU Award and such other terms and
    conditions as the Committee, in its sole discretion, shall
    determine.



 



    6.3 Transferability/Share
    Certificates.  Shares subject to an Award of
    Restricted Stock may not be sold, transferred, pledged,
    assigned, or otherwise alienated or hypothecated during a Period
    of Restriction. During the Period of Restriction, a Restricted
    Stock Award may be registered in the holder’s name or a
    nominee’s name at the discretion of the Company and may
    bear a legend as described in Section 6.4.2. Unless the
    Committee determines otherwise, shares of Restricted Stock shall
    be held by the Company as escrow agent during the applicable
    Period of Restriction, together with stock powers or other
    instruments of assignment (including a power of attorney), each
    endorsed in blank with a guarantee of signature if deemed
    necessary or appropriate by the Company, which would permit
    transfer to the Company of all or a portion of the Shares
    subject to the Restricted Stock Award in the event such Award is
    forfeited in whole or part.



 



    6.4 Other Restrictions.  The Committee, in
    its sole discretion, may impose such other restrictions on
    Shares subject to an Award of Restricted Stock as it may deem
    advisable or appropriate.



 



    6.4.1 General Restrictions.  The Committee
    may set restrictions based upon applicable federal or state
    securities laws, or any other basis determined by the Committee
    in its discretion.




    

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    6.4.2 Legend on Certificates.  The
    Committee, in its sole discretion, may legend the certificates
    representing Restricted Stock during the Period of Restriction
    to give appropriate notice of such restrictions. For example,
    the Committee may determine that some or all certificates
    representing Shares of Restricted Stock shall bear the following
    legend: “The sale or other transfer of the shares of stock
    represented by this certificate, whether voluntary, involuntary,
    or by operation of law, is subject to certain restrictions on
    transfer as set forth in the New Clearwire Corporation 2008
    Stock Compensation Plan (the “Plan”), and in a
    Restricted Stock Agreement (as defined by the Plan). A copy of
    the Plan and such Restricted Stock Agreement may be obtained
    from the Chief Financial Officer of New Clearwire
    Corporation.”



 



    6.5 Removal of Restrictions.  Shares of
    Restricted Stock covered by a Restricted Stock Award made under
    the Plan shall be released from escrow as soon as practicable
    after the termination of the Period of Restriction and, subject
    to the Company’s right to require payment of any taxes, a
    certificate or certificates evidencing ownership of the
    requisite number of Shares shall be delivered to the Participant.



 



    6.6 Voting Rights.  During the Period of
    Restriction, Participants holding Shares of Restricted Stock
    granted hereunder may exercise full voting rights with respect
    to those Shares, unless otherwise provided in the Award
    Agreement.



 



    6.7 Dividends and Other
    Distributions.  During the Period of Restriction,
    Participants holding Shares of Restricted Stock shall be
    entitled to receive all dividends and other distributions paid
    with respect to such Shares unless otherwise provided in the
    Award Agreement. Unless otherwise provided in the Award
    Agreement, any such dividends or distributions shall be
    deposited with the Company and shall be subject to the same
    restrictions on transferability and forfeitability as the Shares
    of Restricted Stock with respect to which they were paid.



 




    ARTICLE VII

    



 




    STOCK
    APPRECIATION RIGHTS



 



    7.1 Grant of SARs.  Subject to the
    provisions of the Plan, SARs may be granted to such Participants
    at such times, and subject to such terms and conditions, as
    shall be determined by the Committee in its sole discretion;
    PROVIDED, HOWEVER, that any tandem SAR (i.e., a SAR granted in
    tandem with an Option) related to an Incentive Stock Option
    shall be granted at the same time that such Incentive Stock
    Option is granted.



 



    7.2 Base Price and Other Terms.  The
    Committee, subject to the provisions of the Plan, shall have
    complete discretion to determine the terms and conditions of
    SARs granted under the Plan. Without limiting the foregoing, the
    Base Price with respect to Shares subject to a tandem SAR shall
    be the same as the Exercise Price with respect to the Shares
    subject to the related Option.



 



    7.3 SAR Agreement.  Each SAR grant shall
    be evidenced by an Award Agreement that shall specify the Base
    Price (which shall not be less than one hundred percent (100%)
    of the Fair Market Value of a Share on the Grant Date), the term
    of the SAR, the conditions of exercise, and such other terms and
    conditions as the Committee, in its sole discretion, shall
    determine.



 



    7.4 Expiration Dates.  Each SAR shall
    terminate no later than the tenth anniversary of its Grant Date;
    PROVIDED, HOWEVER, that the expiration date with respect to a
    tandem SAR shall not be later than the expiration date of the
    related Option.



 



    7.5 Payment of SAR Amount.  Unless
    otherwise specified in the Award Agreement pertaining to a SAR,
    a SAR may be exercised (a) by the Participant’s
    delivery of a written notice of exercise to the Chief Financial
    Officer of the Company (or his or her designee) setting forth
    the number of whole SARs which are being exercised, (b) in
    the case of a tandem SAR, by surrendering to the Company any
    Options which are cancelled by reason of the exercise of such
    SAR, and (c) by executing such documents as the Company may
    reasonably request. Except as otherwise provided in the relevant
    Award Agreement, upon exercise of a SAR, the Participant shall
    be entitled to receive payment from the Company in an amount
    determined by multiplying:




    

    8








 






    (i) the amount by which the Fair Market Value of a Share on
    the date of exercise exceeds the Base Price specified in the
    Award Agreement pertaining to such SAR; by (ii) the number
    of Shares with respect to which the SAR is exercised.



 



    7.6 Payment Upon Exercise of SAR.  Payment
    to a Participant upon the exercise of the SAR shall be made, as
    determined by the Committee in its sole discretion, either
    (a) in cash, (b) in Shares with a Fair Market Value
    equal to the amount of the payment or (c) in a combination
    thereof, as set forth in the applicable Award Agreement.



 




    ARTICLE VIII

    



 




    OTHER
    STOCK AWARDS



 



    8.1 Grant of Other Stock Awards.  Subject
    to the provisions of the Plan, the Committee may develop
    sub-plans or grant other equity-based awards on such terms as it
    may determine, including, but not limited to, Awards designed to
    comply with or take advantage of applicable local laws of
    jurisdictions outside of the United States.



 




    ARTICLE IX

    



 




    PERFORMANCE
    AWARDS



 



    9.1 Performance Goals.  The Committee
    shall have the authority to grant Awards under this Plan that
    are contingent upon the achievement of Performance Goals. Such
    Performance Goals are to be specified in the relevant Award
    Agreement and may be based on such criteria as the Committee may
    determine. Performance Goals may be in respect of the
    performance of the Company, any of its Subsidiaries, Related
    Companies or Affiliates or any combination thereof on either a
    consolidated, business unit or divisional level. Performance
    Goals may be absolute or relative (to prior performance of the
    Company or to the performance of one or more other entities or
    external indices) and may be expressed in terms of a progression
    within a specified range.



 



    9.2 Performance Units.  The Committee, in
    its discretion, may grant Awards of Performance Units to
    Eligible Individuals, the terms and conditions of which shall be
    set forth in an Agreement between the Company and the Eligible
    Individual. Performance Units may be denominated in Shares or a
    specified dollar amount and, contingent upon the attainment of
    specified Performance Goals within the Performance Cycle,
    represent the right to receive payment as provided in
    Section 9.4.3 of (a) in the case of Share-denominated
    Performance Units, the Fair Market Value of a Share on the date
    the Performance Unit was granted, the date the Performance Unit
    became vested or any other date specified by the Committee,
    (b) in the case of dollar-denominated Performance Units,
    the specified dollar amount or (c) a percentage (which may
    be more than 100%) of the amount described in clause (a) or
    (b) depending on the level of Performance Objective
    attainment; PROVIDED, HOWEVER, that, the Committee may at the
    time a Performance Unit is granted specify a maximum amount
    payable in respect of a vested Performance Unit. Each Agreement
    shall specify the number of Performance Units to which it
    relates, the Performance Goals which must be satisfied in order
    for the Performance Units to vest and the Performance Cycle
    within which such Performance Goals must be satisfied.



 



    9.2.1 Vesting and Forfeiture.  Subject to
    Section 9.4.3 and the terms of relevant Award Agreement, a
    Participant shall become vested with respect to the Performance
    Units to the extent that the Performance Goals set forth in the
    Agreement are satisfied for the Performance Cycle.



 



    9.2.2 Payment of Awards.  Subject to
    Section 9.4.3, payment to Participants in respect of vested
    Performance Units shall be made in accordance with the terms of
    the relevant Award Agreement. Such payments may be made entirely in
    Shares valued at their Fair Market Value, entirely in cash, or
    in such combination of Shares and cash as the Committee in its
    discretion shall determine at any time prior to such payment.



 



    9.3 Performance Shares.  The Committee, in
    its discretion, may grant Awards of Performance Shares to
    Eligible Individuals, the terms and conditions of which shall be
    set forth in an Agreement between the




    

    9








 






    Company and the Eligible Individual. Each Agreement may require
    that an appropriate legend be placed on Share certificates.
    Awards of Performance Shares shall be subject to the following
    terms and provisions:



 



    9.3.1 Rights of Participant.  The
    Committee shall provide at the time an Award of Performance
    Shares is made the time or times at which the actual Shares
    represented by such Award shall be issued in the name of the
    Participant; PROVIDED, HOWEVER, that no Performance Shares shall
    be issued until the Participant has executed an Agreement
    evidencing the Award, the appropriate blank stock powers and, in
    the discretion of the Committee, an escrow agreement and any
    other documents which the Committee may require as a condition
    to the issuance of such Performance Shares. If a Participant
    shall fail to execute the Agreement evidencing an Award of
    Performance Shares, the appropriate blank stock powers and, in
    the discretion of the Committee, an escrow agreement and any
    other documents which the Committee may require within the time
    period prescribed by the Committee at the time the Award is
    granted, the Award shall be null and void. At the discretion of
    the Committee, Shares issued in connection with an Award of
    Performance Shares shall be deposited together with the stock
    powers with an escrow agent (which may be the Company)
    designated by the Committee. Except as restricted by the terms
    of the Agreement, upon delivery of the Shares to the escrow
    agent, the Participant shall have, in the discretion of the
    Committee, all of the rights of a stockholder with respect to
    such Shares, including the right to vote the Shares and to
    receive all dividends or other distributions paid or made with
    respect to the Shares.



 



    9.3.2 Non-Transferability.  Until any
    restrictions upon the Performance Shares awarded to a
    Participant shall have lapsed in the manner set forth in
    Section 9.3.3, such Performance Shares shall not be sold,
    transferred or otherwise disposed of and shall not be pledged or
    otherwise hypothecated, nor shall they be delivered to the
    Participant. The Committee may also impose such other
    restrictions and conditions on the Performance Shares, if any,
    as it deems appropriate.



 



    9.3.3 Lapse of Restrictions.  Subject to
    Section 9.4.3, restrictions upon Performance Shares awarded
    hereunder shall lapse and such Performance Shares shall become
    vested at such time or times and on such terms, conditions and
    satisfaction of Performance Goals as the Committee may, in its
    discretion, determine at the time an Award is granted.



 



    9.3.4 Delivery of Shares.  Upon the lapse
    of the restrictions on Performance Shares awarded hereunder, the
    Committee shall cause a stock certificate to be delivered to the
    Participant with respect to such Shares, free of all
    restrictions hereunder.



 



    9.4 Performance Goals.



 



    9.4.1 Establishment.  Performance Goals
    for Performance Awards may be expressed in terms of earnings per
    Share, net income, revenue growth, market share, ratings, rank,
    market valuation, cash flow, cash flow per Share, adjusted
    earnings before interest, taxes and depreciation, Share price,
    pre-tax profits, net earnings, return on equity or assets,
    sales, any combination of the foregoing or, with respect to
    Performance Awards that are not intended to qualify as
    performance-based compensation under Section 162(m) of the
    Code, such other criteria as the Committee may determine.
    Performance Goals
    may be absolute or relative (to prior performance of the Company
    or to the performance of one or more other entities or external
    indices) and may be expressed in terms of a progression within a
    specified range. The foregoing criteria shall have any
    reasonable definitions that the Committee may specify, which may
    include or exclude any or all of the following items:
    extraordinary, unusual or non-recurring items; effects of
    accounting changes; effects of currency fluctuations; effects of
    financing activities (e.g., effect on earnings per share of
    issuing convertible debt securities); expenses for
    restructuring, productivity initiatives or new business
    initiatives; non-operating items; acquisition and merger
    expenses; effects of divestitures
    and/or
    mergers and other items identified by the Committee in its
    discretion. Any such performance criterion or combination of
    such criteria may apply to the award opportunity in its entirety
    or to any designated portion or portions of the award
    opportunity, as the Committee may specify. For any Performance
    Award intended to comply with Section 162(m) of the Code,
    the Performance Goals with respect to a Performance Cycle shall
    be




    

    10








 






    established in writing by the Committee by the earlier of
    (x) the date on which a quarter of the Performance Cycle
    has elapsed or (y) the date which is ninety (90) days
    after the commencement of the Performance Cycle, and in any
    event while the performance relating to the Performance Goals
    remain substantially uncertain.



 



    9.4.2 Effect of Certain Events.  At the
    time of the granting of a Performance Award, or at any time
    thereafter, in either case to the extent permitted under
    Section 162(m) of the Code and the regulations thereunder
    without adversely affecting the treatment of the Performance
    Award as Performance-Based Compensation, the Committee may
    provide for the manner in which performance will be measured
    against the Performance Goals (or may adjust the Performance
    Goals) to reflect the impact of specified corporate
    transactions, accounting or tax law changes and other
    extraordinary or nonrecurring events.



 



    9.4.3 Determination of Performance.  Prior
    to the vesting, payment, settlement or lapsing of any
    restrictions with respect to any Performance Award that is
    intended to constitute Performance-Based Compensation made to a
    Participant who is subject to Section 162(m) of the Code,
    the Committee shall certify in writing that the applicable
    Performance Goals have been satisfied to the extent necessary
    for such Award to qualify as Performance-Based Compensation.



 



    9.5 Non-Transferability.  Until the
    vesting of Performance Units or the lapsing of any restrictions
    on Performance Shares, as the case may be, such Performance
    Units or Performance Shares shall not be sold, transferred or
    otherwise disposed of and shall not be pledged or otherwise
    hypothecated.



 



    9.6 Maximum Number of Performance
    Awards.  Subject to adjustment in accordance with
    Section 10.12, the maximum number of Shares that may be
    subject to Performance Awards granted to any Eligible Individual
    in any
    12-month
    period is 4,000,000. Subject to adjustment in accordance with
    Section 10.12, the maximum amount that can be paid out in
    cash to any Participant in respect of any cash-settled
    Performance Award granted to such Participant in any
    12-month
    period that is not expressed in the form of Share equivalents is
    the Fair Market Value of 4,000,000 Shares as of the date of
    grant.



 




    ARTICLE X

    



 




    MISCELLANEOUS



 



    10.1 No Effect on Employment or
    Service.  Nothing in the Plan shall interfere with
    or limit in any way the right of the Company, any Subsidiary or
    any Related Company to terminate any Participant’s Service
    Relationship at any time, for any reason and with or without
    cause.



 



    10.2 Participation.  No Person shall have
    the right to be selected to receive an Award under this Plan,
    or, having been so selected, to be selected to receive a future
    Award.



 



    10.3 Indemnification.  Each Person who is
    or shall have been a member of the Committee, or of the Board,
    shall be indemnified and held harmless by the Company against
    and from (a) any loss, cost, liability, or expense that may
    be imposed upon or reasonably incurred by him or her in
    connection with or resulting from any claim, action, suit, or
    proceeding to which he or she may be a party or in which he or
    she may be involved by reason of any good faith action taken or
    good faith failure to act under the Plan or any Award Agreement,
    and (b) from any and all amounts paid by him or her in
    settlement thereof, with the Company’s approval, or paid by
    him or her in satisfaction of any judgment in any such claim,
    action, suit, or proceeding against him or her, provided he or
    she shall give the Company an opportunity, at its own expense,
    to handle and defend the same before he or she undertakes to
    handle and defend it on his or her own behalf. The foregoing
    right of indemnification shall not be exclusive of any other
    rights of indemnification to which such Persons may be entitled
    under the Company’s Certificate of Incorporation or
    By-Laws, by contract, as a matter of law, or otherwise, or under
    any power that the Company may have to indemnify them or hold
    them harmless.



 



    10.4 Successors.  All obligations of the
    Company under the Plan, with respect to Awards granted
    hereunder, shall be binding on any successor to the Company,
    whether the existence of such successor is the




    

    11








 






    result of a direct or indirect purchase, merger, consolidation
    or otherwise, of all or substantially all of the business or
    assets of the Company.



 



    10.5 Beneficiary Designations.  Subject to
    the restrictions in Section 10.6 below, a Participant under
    the Plan may name a beneficiary or beneficiaries to whom any
    vested but unpaid Award shall be paid in the event of the
    Participant’s death. For purposes of this Section, a
    beneficiary may include a designated trust having as its primary
    beneficiary a family member of a Participant. Each such
    designation shall revoke all prior designations by the
    Participant and shall be effective only if given in a form and
    manner acceptable to the Committee. In the absence of any such
    designation, any vested benefits remaining unpaid at the
    Participant’s death shall be paid to the Participant’s
    estate and, subject to the terms of the Plan and of the
    applicable Award Agreement, any unexercised vested Award may be
    exercised by the administrator or executor of the
    Participant’s estate.



 



    10.6 Nontransferability of Awards.  No
    Award granted under the Plan may be sold, transferred, pledged,
    assigned, or otherwise alienated or hypothecated, other than by
    will, by the laws of descent and distribution; PROVIDED,
    HOWEVER, that except as provided by in the relevant Award
    Agreement, a Participant may transfer, without consideration, an
    Award other than an Incentive Stock Option to one or more
    members of his or her Immediate Family, to a trust established
    for the exclusive benefit of one or more members of his or her
    Immediate Family, to a partnership in which all the partners are
    members of his or her Immediate Family, or to a limited
    liability company in which all the members are members of his or
    her Immediate Family; provided, further, that any such Immediate
    Family, and any such trust, partnership and limited liability
    company, shall agree to be and shall be bound by the terms of
    the Plan, and by the terms and provisions of the applicable
    Award Agreement and any other agreements covering the
    transferred Awards. All rights with respect to an Award granted
    to a Participant shall be available during his or her lifetime
    only to the Participant and may be exercised only by the
    Participant or the Participant’s legal representative.



 



    10.7 No Rights as Stockholder.  Except to
    the limited extent provided in Sections 6.6 and 6.7, no
    Participant (nor any beneficiary) shall have any of the rights
    or privileges of a stockholder of the Company with respect to
    any Shares issuable pursuant to an Award (or exercise thereof),
    unless and until certificates representing such Shares shall
    have been issued, recorded on the records of the Company or its
    transfer agents or registrars, and delivered to the Participant
    (or beneficiary).



 



    10.8 Withholding Requirements.  Prior to
    the delivery of any Shares or cash pursuant to an Award (or
    exercise thereof), the Company shall have the power and the
    right to deduct or withhold, or require a Participant to remit
    to the Company, an amount sufficient to satisfy any federal,
    state, local and foreign taxes of any kind (including, but not
    limited to, the Participant’s Federal Insurance
    Contributions Act and State Disability Insurance obligations)
    which the Committee, in its sole discretion, deems necessary to
    be withheld or remitted to comply with the Code
    and/or any
    other applicable law, rule or regulation with respect to such
    Award (or exercise thereof).



 



    10.9 Withholding Arrangements.  The
    Committee, in its sole discretion and pursuant to such
    procedures as it may specify from time to time, may permit or
    require a Participant to satisfy all or part of the tax
    withholding obligations in connection with an Award by
    (a) having the Company withhold otherwise deliverable
    Shares, or (b) delivering to the Company already-owned
    Shares having a Fair Market Value equal to the amount required
    to be withheld.



 



    10.10 No Corporate Action
    Restriction.  The existence of the Plan, any Award
    Agreement
    and/or the
    Awards granted hereunder shall not limit, affect or restrict in
    any way the right or power of the Board or the stockholders of
    the Company to make or authorize (a) any adjustment,
    recapitalization, reorganization or other change in the
    Company’s or any Subsidiary’s or Affiliate’s
    capital structure or business, (b) any merger,
    consolidation or change in the ownership of the Company or any
    Subsidiary, Affiliate or Related Company, (c) any issue of
    bonds, debentures, capital, preferred or prior preference stocks
    ahead of or affecting the Company’s or any
    Subsidiary’s, Affiliate’s or Related Company’s
    capital stock or the rights thereof, (d) any dissolution or
    liquidation of the Company or any Subsidiary, Affiliate or
    Related Company (e) any sale or transfer of all or any part
    of the Company’s or any Subsidiary’s, Affiliate’s
    or Related Company’s assets or business, or (f) any
    other corporate act or proceeding by the Company or any
    Subsidiary, Affiliate or Related




    

    12








 






    Company. No Participant, beneficiary or any other Person shall
    have any claim against any Member of the Board or the Committee,
    the Company or any Subsidiary, Affiliate or Related Company, or
    any employees, officers, stockholders or agents of the Company
    or any Subsidiary, Affiliate or Related Company, as a result of
    any such action. Without the consent of holders of a majority of
    the Company’s common stock entitled to vote in the election
    of members of the Board, the Company may not lower the exercise
    price of outstanding Options or SARs, or otherwise re-price
    outstanding Options or SARs.



 



    10.11 Restrictions on Shares.  Each Award
    made hereunder shall be subject to the requirement that if at
    any time the Company determines that the listing, registration
    or qualification of the Shares subject to such Award upon any
    securities exchange or under any law, or the consent or approval
    of any governmental body, or the taking of any other action is
    necessary or desirable as a condition of, or in connection with,
    the exercise or settlement of such Award or the delivery of
    Shares thereunder, such Award shall not be exercised or settled
    and such Shares shall not be delivered unless such listing,
    registration, qualification, consent, approval or other action
    shall have been effected or obtained, free of any conditions not
    acceptable to the Company. The Company may require that
    certificates evidencing Shares delivered pursuant to any Award
    made hereunder bear a legend indicating that the sale, transfer
    or other disposition thereof by the holder is prohibited except
    in compliance with the Securities Act of 1933, as amended, and
    the rules and regulations thereunder.



 



    10.12 Changes in Capital Structure.  In
    the event that any extraordinary dividend or other distribution
    (whether in the form of cash, Shares, other securities, or other
    property), recapitalization, stock split, reverse stock split,
    reorganization, merger, consolidation,
    split-up,
    spin-off, combination, repurchase, change of control or exchange
    of Shares or other securities of the Company, or other corporate
    transaction or event (each a “Corporate Event”)
    affects the Shares, the Board shall, in such manner as it in
    good faith deems equitable, adjust any or all of (i) the
    number of Shares or other securities of the Company (or number
    and kind of other securities or property) with respect to which
    Awards may be granted, (ii) the number of Shares or other
    securities of the Company (or number and kind of other
    securities or property) subject to outstanding Awards, and
    (iii) the Exercise Price or Base Price with respect to any
    Award, or make provision for an immediate cash payment to the
    holder of an outstanding Award in consideration for the
    cancellation of such Award.



 



    If the Company enters into or is or may become involved in any
    Corporate Event or, a Change in Control does or may occur, the
    Board shall, prior to such Corporate Event
    and/or
    Change in Control and effective upon such Corporate Event
    and/or
    Change in Control, take such action as it deems appropriate,
    including, but not limited to, replacing Awards with substitute
    awards in respect of the Shares, other securities or other
    property of the surviving corporation or any affiliate of the
    surviving corporation on such terms and conditions, as to the
    number of shares, pricing and otherwise, which shall
    substantially preserve the value, rights and benefits of any
    affected Awards granted hereunder as of the date of the
    consummation of the Corporate Event or a Change in Control.
    Notwithstanding anything to the contrary in the Plan, if any
    Corporate Event or Change in Control occurs, the Company shall
    have the right, but not the obligation, to cancel each
    Participant’s Awards immediately prior to such Corporate
    Event and/or
    Change in Control and to pay to each affected Participant in
    connection with the cancellation of such Participant’s
    Awards, an amount that the Committee, in its sole discretion, in
    good faith determines to be the equivalent value of such Award
    (e.g., in the case of an Option, the amount of the spread).



 



    Upon receipt by any affected Participant of any such substitute
    awards (or payment) as a result of any such Corporate Event
    and/or
    Change in Control, such Participant’s affected Awards for
    which such substitute awards (or payment) were received shall be
    thereupon cancelled without the need for obtaining the consent
    of any such affected Participant. Any actions or determinations
    of the Committee under this Section 10.12 need not be
    uniform as to all outstanding Awards, nor treat all Participants
    identically.



 



    Notwithstanding any of the foregoing, and for the avoidance of
    doubt, upon consummation of the Transaction, the number and type
    of shares available for grants of Awards under this Plan shall
    be adjusted on the same basis as other Shares generally in
    connection with the Transaction.




    

    13








 







    ARTICLE XI

    



 




    AMENDMENT,
    TERMINATION AND DURATION



 



    11.1 Amendment, Suspension or
    Termination.  The Board, in its sole discretion,
    may amend, suspend or terminate the Plan, or any part thereof,
    at any time and for any reason, subject to any requirement of
    stockholder approval required by applicable law, rule or
    regulation, including, without limitation, Sections 162(m)
    and 422 of the Code and the rules of the Nasdaq Stock Market;
    PROVIDED, HOWEVER, the Board may amend the Plan and any Award
    Agreement, including without limitation retroactive amendments,
    without stockholder approval as necessary to avoid the
    imposition of any taxes under Section 409A of the Code.
    Subject to the preceding sentence, the amendment, suspension or
    termination of the Plan or any Award Agreement shall not,
    without the consent of the Participant, materially adversely
    alter or impair any rights or obligations under any Award
    theretofore granted to such Participant. No Award may be granted
    during any period of suspension or after termination of the Plan.



 



    11.2 Duration of the Plan.  The Plan
    shall, subject to Section 11.1, terminate ten years after
    adoption by the Board, unless earlier terminated by the Board
    and no further Awards shall be granted under the Plan. The
    termination of the Plan shall not affect any Awards granted
    prior to the termination of the Plan.



 




    ARTICLE XII

    



 




    LEGAL
    CONSTRUCTION



 



    12.1 Gender and Number.  Except where
    otherwise indicated by the context, any masculine term used
    herein also shall include the feminine; the plural shall include
    the singular and the singular shall include the plural.



 



    12.2 Severability.  In the event any
    provision of the Plan or of any Award Agreement shall be held
    illegal or invalid for any reason, the illegality or invalidity
    shall not affect the remaining parts of the Plan or the Award
    Agreement, and the Plan
    and/or the
    Award Agreement shall be construed and enforced as if the
    illegal or invalid provision had not been included.



 



    12.3 Requirements of Law.  The granting of
    Awards and the issuance of Shares under the Plan shall be
    subject to all applicable laws, rules and regulations, and to
    such approvals by any governmental agencies or national
    securities exchanges as may be required.



 



    12.4 Governing Law.  The Plan and all
    Award Agreements shall be construed in accordance with and
    governed by the laws of the State of Delaware, but without
    regard to its conflict of law provisions.



 



    12.5 Captions.  Captions are provided
    herein for convenience only, and shall not serve as a basis for
    interpretation or construction of the Plan.



 



    12.6 Incentive Stock Options.  Should any
    Option granted under this Plan be designated an “Incentive
    Stock Option,” but fail, for any reason, to meet the
    requirements of the Code for such a designation, then such
    Option shall be deemed to be a Non-Qualified Stock Option and
    shall be valid as such according to its terms.



 



    *  *  *  *  *  *  *  *




    

    14