bpo_10qa1-ex1064.htm


     

    EXHIBIT
10.64

    


    


    WRITTEN
CONSENT OF STOCKHOLDERS

     

    OF

     

    BPO
MANAGEMENT SERVICES, INC.

     

    The
undersigned stockholders of BPO Management Services, Inc. a Delaware corporation
(the “Corporation”), acting pursuant to Section 228 of the General Corporation
Law of the State of Delaware, hereby adopt the following
resolutions:

     

    RATIFICATION OF THE APPROVAL
OF THE BPO
MANAGEMENT SERVICES, INC. 2007 STOCK INCENTIVE PLAN.

    


    RESOLVED, that each of the
undersigned stockholders hereby ratifies and confirms the undersigneds’ previous
consent to the adoption of the BPO MANAGEMENT SERVICES, INC. 2007 STOCK
INCENTIVE PLAN, a copy of which is attached hereto as Exhibit A;

    


    FURTHER, RESOLVED, that the
Board of Directors and the officers of the Corporation are hereby authorized and
directed, on behalf of the Corporation, to execute and deliver or file all such
instruments and other documents, and to do and perform all such other acts and
things, as in their judgment may be necessary or appropriate in order to carry
out the purposes of the foregoing resolution; and

    


    FURTHER, RESOLVED, that this
document may be executed in counterparts and by facsimile, each of which shall
be deemed an original, but all of which taken together shall constitute one and
the same instrument.

    


     

    CONTINUED
ON NEXT PAGE

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    IN
WITNESS WHEREOF, the undersigned have executed this Consent as of the 5th day of
June, 2008.

     

    /s/ Patrick Dolan 

      
        

      

    

    Name:
PATRICK A. DOLAN

    All
shares held of record of Common Stock

    All
shares held of record of Series A Preferred Stock

    All
shares held of record of Series C Preferred Stock

    


    


    


    /s/ James Cortens 

      
        

      

    

    Name:
JAMES CORTENS

    All
shares held of record of Common Stock

    All
shares held of record of Series A Preferred Stock

    All
shares held of record of Series C Preferred Stock

    


    


    


    /s/ Brian Meyer 

      
        

      

    

    Name:
BRIAN MEYER

    All
shares held of record of Common Stock

    All
shares held of record of Series B Preferred Stock

    


    


    


    /s/ Lynne Meyer 

      
        

      

    

    Name:
LYNNE MEYER

    All
shares held of record of Common Stock

    All
shares held of record of Series B Preferred Stock

    


    


    


    /s/ Donald West 

      
        

      

    

    Name:
DONALD WEST

    All
shares held of record of Common Stock

    All
shares held of record of Series B Preferred Stock

    


    


    


    /s/ Sharon West 

      
        

      

    

    Name:
SHARON WEST

    All
shares held of record of Common Stock

    All
shares held of record of Series B Preferred Stock

    


    


    


    WEST LTP
TRUST

    


    


    By:/s/ Richard Taylor


      
        

      

    

    Name:     RICHARD
TAYLOR

    Title:       Trustee

    All
shares held of record of Common Stock

    All
shares held of record of Series B Preferred Stock

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    EXHIBIT
A

     

    BPO
MANAGEMENT SERVICES, INC.

    2007
STOCK INCENTIVE PLAN

     

    RECITALS

     

    WHEREAS,
BPO Management Services, Inc. desires to encourage high levels of performance by
those individuals who are key to the success of the Company, to attract new
individuals who are highly motivated and who will contribute to the success of
the Company and to encourage such individuals to remain as officers and/or
employees of the Company and its subsidiaries by increasing their proprietary
interest in the Company’s growth and success:

     

    NOW,
THEREFORE, the Company hereby adopts this BPO Management Services, Inc 2007
Stock Incentive Plan to read as follows:

     

    ARTICLE
1


     

    PURPOSE
OF THE PLAN

     

    1.1.
Purpose.  The
purpose of the Plan is to assist the Company in attracting and retaining
selected individuals to serve as officers and employees of the Company or any of
its subsidiaries or affiliates who will contribute to the Company’s success and
to achieve long-term objectives which will inure to the benefit of all
stockholders of the Company through the additional incentive inherent in the
ownership of the Company’s common stock.

     

    ARTICLE
2

     

    DEFINITIONS

     

    The following terms shall have the
meanings indicated.

     

    2.1.. “Board” means the board of
directors of the Company.

    


    2.2.  “Cause” means conviction of a
felony involving moral turpitude or the failure to satisfactorily perform
assigned duties after notice to cure has been given.

    


    2.3  “Change of Control” means a
“Change in the Ownership of the Company”, a “Change in Effective Control of the
Company”, or a “Change in the Ownership of a Substantial Portion of the Assets
of the Company”, all as defined below.  To qualify as a “Change of
Control”, the occurrence of the event must be objectively determinable and any
requirement that any other person, such as a plan administrator or board of
directors compensation committee, certify the occurrence of a Change of Control
must be strictly ministerial and not involve any discretionary
authority.

    


    A “Change in the Ownership of the
Company” occurs on the date that any one person, or more than one person
acting as a group acquires ownership of stock of the Company that, together with
stock held by such person or group, constitutes more than 50 percent of the
total fair market value or total voting power of the stock of the
Company.  However, if any one person, or more than one person acting
as a group, is considered to own more than 50 percent of the total fair market
value or total voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons is not considered to cause a
“Change in the Ownership of the Company”.  An increase in the
percentage of stock owned by any one person, or persons acting as a group, as a
result of a transaction in which the Company acquires its stock in exchange for
property will be treated as an acquisition of stock for purposes of this
definition.  This definition applies only when there is a transfer of
stock of the Company (or issuance of stock of the Company) and stock in the
Company remains outstanding after the transaction. Persons will not be
considered to be acting as a group solely because they purchase or own stock of
the same corporation at the same time, or as a result of the same public
offering.  However, persons will be considered to be acting as a group
if they are owners of a corporation that enters into a merger, consolidation,
purchase or acquisition of stock, or similar business transaction with the
Company.  If a person, including an entity, owns stock in both
corporations that enter into a merger, consolidation, purchase or acquisition of
stock, or similar transaction, such stockholder is considered to be acting as a
group with other stockholders in a corporation prior to the transaction giving
rise to the change and not with respect to the ownership interest in the other
corporation.

    


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    A “Change in the Effective Control of
the Company” occurs only on the date that either:

    


    (1) Any one person, or
more than one person acting as a group, acquires (or has acquired during the
12-month period ending on the date of the most recent acquisition by such person
or persons) ownership of stock of the Company possessing 35 percent or more of
the total voting power of the stock of the Company; or

    


    (2) A majority of
members of the Company’s board of directors is replaced during any 12-month
period by directors whose appointment or election is not endorsed by a majority
of the members of the Company’s board of directors prior to the date of the
appointment or election.

    


    Persons
will not be considered to be acting as a group solely because they purchase or
own stock of the same corporation at the same time, or as a result of the same
public offering.  However, persons will be considered to be acting as
a group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction
with the Company.  If a person, including an entity, owns stock in
both corporations that enter into a merger, consolidation, purchase or
acquisition of stock, or similar transaction, such stockholder is considered to
be acting as a group with other stockholders in a corporation only with respect
to the ownership in that corporation prior to the transaction giving rise to the
change and not with respect to the ownership interest in the other
corporation.

    


    A “Change in the Ownership of a
Substantial Portion of the Assets of the Company” occurs on the date that
any one person, or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company that have a total
gross fair market value equal to or more than 40 percent of the total gross fair
market value of all of the assets of the Company immediately prior to such
acquisition or acquisitions.  For this purpose, gross fair market
value means the value of the assets of the Company, or the value of the assets
being disposed of, determined without regard to any liabilities associated with
such assets. Persons will not be considered to be acting as a group solely
because they purchase assets of the same corporation at the same
time.  However, persons will be considered to be acting as a group if
they are owners of a corporation that enters into a merger, consolidation,
purchase or acquisition of assets, or similar business transaction with the
corporation.  If a person, including an entity stockholder, owns stock
in both corporations that enter into a merger, consolidation, purchase or
acquisition of assets, or similar transaction, such stockholder is considered to
be acting as a group with other stockholders in a corporation only to the extent
of the ownership in that corporation prior to the transaction giving rise to the
change and not with respect to the ownership interest in the other
corporation.

    


    
      
         

      

      
        2

        
          

        

      

      
         

      

    

    2.4.  “Closing Price” means on any
particular date (a) the last closing bid price per share of the Company’s common
stock on such date on the OTC Bulletin Board or a registered national stock
exchange on which the Company’s common stock is then listed, (b) if the
Company’s common stock is not quoted or listed then on the OTC Bulletin Board or
any registered national stock exchange, the last closing bid price for a share
of the Company’s Common Stock on the over-the-counter market, as reported by the
OTC Bulletin Board or Pink Sheets, LLC (or similar organization or agency
succeeding to its functions of reporting prices) at the close of business on
such date, (c) if the Company’s common stock is not then reported by the OTC
Bulletin Board or Pink Sheets, LLC (or similar organization or agency succeeding
to its functions of reporting prices), then the average of the “Pink Sheet”
quotes for the applicable trading days preceding such date of determination, or
(d) if the Company’s common stock is not then publicly traded, the fair market
value of a share of the Company’s common stock as determined by the
Board.

    


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

    


    2.6.  “Committee” means
the compensation committee of the Board.

    


    2.7.  “Company” means
BPO Management Services, Inc., a Delaware corporation.

    


    2.8.  “Director” means
a member of the Board.

    


    2.9.  “Disability”
means total and permanent disability within the meaning of Section 22(e)(3) of
the Code, which, as of the date hereof, means being unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of no less than 12
months.

    


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

    


    2.11.  “Grant
Limitation” means the maximum number of Shares with respect to which
Options may be granted to any Participant during any calendar year as set forth
in Section 3.4.

    


    2.12.  “Incentive Stock
Option” means an Option which qualifies as an incentive stock option
under Section 422 of the Code.

    


    2.13.  “Non Employee
Director” means a non-employee director within the meaning of Rule 16b-3
promulgated under the Exchange Act.

    


    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    2.14.  “Nonqualified Stock Option”
means an Option which is not an Incentive Stock Option.

    


    2.15.  “Option” means an
Incentive Stock Option and a Nonqualified Stock Option granted pursuant to
Article 5.

    .

    2.16. “Optionee” means the
recipient of an Option.

    


    2.17.  “Outside
Director” means an outside director within the meaning of Section 162(m)
of the Code.

    


    2.18. “Participant” means a person
who has received an Option or to whom an Option has been
transferred.

    


    2.19.  “Permitted Assignee” means
(i) the spouse, parent, issue, spouse of issue, or issue of spouse, of an
Optionee, (ii) a trust for the benefit of one or more persons described in
clause (i) or for the benefit of an Optionee, as the case may be, or (iii) an
entity in which an Optionee or a person described in clauses (i) or (ii) is a
beneficial owner.

    


    2.20.  “Plan” means this BPO
Management Services, Inc. 2007 Stock Incentive Plan.

    


    2.21.  “Share” means a
share of common stock of the Company.

    


    2.22.  “Share
Limitation” means the aggregate number of Shares authorized for Options
as described in Section 3.1.

    


    2.23.  “Stock Option
Agreement” means a stock option agreement described in Article
5.

    


    2.24. “Tax Election” means a
written election of an Optionee, or a Permitted Assignee, to have Shares
withheld to satisfy withholding taxes as described in Section 6.1.

    


    


    ARTICLE
3


     

    SHARES
SUBJECT TO AWARDS

     

    3.1  Number of
Shares.  Subject to the adjustment provisions of Section 5.10,
the Share Limitation shall be [4,600,000] Shares. No Options to purchase
fractional Shares shall be granted or issued under the Plan.  For
purposes of this Section 3.1, the Shares that shall be counted toward the Share
Limitation shall include all Shares issued or issuable pursuant to Options that
have been or may be exercised.

     

    3.2  Shares Subject to Terminated
Options.  The Shares covered by any unexercised portions of
terminated Options granted under Article 5 and Shares subject to any Options
which are otherwise surrendered by the Participant without receiving any payment
or other benefit with respect thereto may again be subject to new Options under
the Plan.  In the event the purchase price of an Option is paid in
whole or in part through the delivery of Shares, the number of Shares issuable
in connection with the exercise of the Option shall not again be available for
the grant of Options under the Plan.  .

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

    3.3  Character of
Shares.  Shares delivered under the Plan may be authorized and
unissued Shares, treasury Shares acquired by the Company, or both.

     

    3.4  Limitations on Grants to Individual
Participant.  Subject to the adjustment provisions of Section
5.10, the Grant Limitation shall be ________ Shares.  If an Option is
canceled, the Shares with respect to such canceled Option shall continue to be
counted toward the Grant Limitation for the year granted.

     

    ARTICLE
4


     

    ELIGIBILITY
AND ADMINISTRATION

     

    4.1  Options to
Employees.  (a) Participants who are eligible to receive
Options shall consist of such employees of the Company or any of its
subsidiaries or affiliates as the Committee shall select from time to
time.  The Committee’s designation of a Participant in any year shall
not require the Committee  to designate such person to receive Options
in any other year.

     

    (b)           No
Option which is intended to qualify as an Incentive Stock Option may be granted
to any employee who, at the time of such grant, owns, directly or indirectly
(within the meaning of sections 422(b)(6) and 424(d) of the Code), shares
possessing more than ten percent (10%) of the total combined voting power of all
classes of shares of the Company or any of its subsidiaries or affiliates,
unless at the time of such grant, (i) the option price is fixed at not less
than 110% of the Closing Price of the Shares subject to such Option, determined
on the date of the grant, and (ii) the exercise of such Option is
prohibited by its terms after the expiration of five (5) years from the date
such Option is granted. Incentive Stock Options may only be granted to employees
of the Company or its subsidiaries.

     

    4.2  Administration.  (a)
The Plan shall be administered by the Committee. Unless otherwise determined by
the Board, each member of the Committee shall be a Non-Employee Director and an
Outside Director.  In no event shall the Committee consist of fewer
than two Directors.  The Directors may remove from, add members to, or
fill vacancies in the Committee.

     

    (b)           The
Committee is authorized, subject to the provisions of the Plan, to establish
such rules and regulations as it may deem appropriate for the conduct of
meetings and proper administration of the Plan.  All actions of the
Committee shall be taken by majority vote of its members.  The
Committee is also authorized, subject to the provisions of the Plan, to make
provisions in various Options pertaining to a Change of Control of the Company
and to amend or modify existing Options; provided, however, that the
Committee may not, without first obtaining the approval of the stockholders of
the Company, reprice any outstanding Option then exercisable for a price above
the then current market price of the Shares to provide for a lower exercise
price.

     

    (c)           Subject
to the provisions of the Plan, the Committee shall have authority, in its sole
discretion, to interpret the provisions of the Plan and, subject to the
requirements of applicable law, including Rule 16b-3 of the Exchange Act, to
prescribe, amend, and rescind rules and regulations relating to it as it may
deem necessary or advisable.  All decisions made by the Committee
pursuant to the provisions of the Plan shall be final, conclusive and binding on
all persons, including the Company, its stockholders, Directors and employees,
and Plan participants.

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

    ARTICLE
5


     

    OPTIONS

     

    5.1  Grant of
Options.  The Committee shall determine, within the limitations
of the Plan, the employees of the Company and its subsidiaries and affiliates to
whom Options are to be granted under the Plan, the number of Shares that may be
purchased under each such Option and the option price, and shall designate such
Options at the time of the grant as either Incentive Stock Options or
Nonqualified Stock Options. An Option is the right to purchase Shares at a
specified price.

     

    All
Options granted pursuant to this Article 5 shall be authorized by the Committee
and shall be evidenced in writing by Stock Option Agreements  in such
form and containing such terms and conditions as the Committee shall determine
which are not inconsistent with the provisions of the Plan, and, with respect to
any Stock Option Agreement granting Options which are intended to qualify as
Incentive Stock Options, are not inconsistent with Section 422 of the
Code.  Granting of an Option pursuant to the Plan shall impose no
obligation on the Optionee to exercise such option.  Any individual
who is granted an Option pursuant to this Article 5 may hold more than one
Option at the same time and may hold both Incentive Stock Options and
Nonqualified Stock Options at the same time.  To the extent that any
Option does not qualify as an Incentive Stock Option (whether because of its
provisions, the time or manner of its exercise or otherwise) such Option or the
portion thereof which does not so qualify shall constitute a separate
Nonqualified Stock Option.

     

    5.2  Option Price. Subject to
Section 4.1(b), the option price per each Share purchasable under any Option
granted pursuant to this Article 5 shall not be less than 100% of the Closing
Price of such Share on the date of the grant of such Option or, if the bulletin
board or market was closed on the date in question, then the Closing Price on
the next trading day immediately preceding the day in question.

     

    5.3  Option Period;
Vesting.  Subject to Section 4.1(b), the period for which an
Option is exercisable shall not exceed ten (10) years from the date such Option
is granted.  After the Option is granted, the option period may not be
reduced.  Options granted under the Plan shall vest on terms no more
favorable than the vesting provisions generally applicable to recent stock
option awards to key employees of the Company; provided, that in no event shall
two-thirds (2/3) of the Shares covered by Options hereunder vest prior to May
31, 2010.  [Note:  To be the third anniversary of the
Closing Date.]

     

    5.4  Exercise of
Options.  Options granted under the Plan shall be exercised by
the Optionee thereof (or by his or her executors, administrators, guardian or
legal representative, or by a Permitted Assignee, as provided in Sections 5.7
and 5.8 hereof) as to all or part of the Shares covered thereby, by the giving
of written notice of exercise to the Company, specifying the number of Shares to
be purchased, accompanied by payment of the full purchase price for the Shares
being purchased.  Full payment of such purchase price shall be made
within five (5) business days following the date of exercise and shall be made
(i) in cash or by certified check or bank check, (ii) with the consent
of Committee, by tendering previously acquired Shares (valued using the Closing
Price as of the date of tender), or (iii) with the consent of the
Committee, any combination of (i) and (ii).  In connection with a
tender of previously acquired Shares pursuant to clause (ii) above, the
Committee, in its sole discretion, may permit the Optionee to constructively
exchange Shares already owned by the Optionee in lieu of actually tendering such
Shares to the Company, provided that adequate documentation concerning the
ownership of the Shares to be constructively tendered is furnished in form
satisfactory to the Committee.  The notice of exercise, accompanied by
such payment, shall be delivered to the Company at its principal business office
or such other office as the Committee may from time to time direct, and shall be
in such form, containing such further provisions consistent with the provisions
of the Plan, as the Committee may from time to time prescribe.  In no
event may any Option granted hereunder be exercised for a fraction of a
Share.  The Company shall effect the transfer of Shares purchased
pursuant to an Option as soon as practicable, and, within a reasonable time
thereafter, such transfer shall be evidenced on the books of the
Company.  No person exercising an Option shall have any of the rights
of a holder of Shares subject to an Option until certificates for such Shares
shall have been issued following the exercise of such Option.  No
adjustment shall be made for cash dividends or other rights for which the record
date is prior to the date of such issuance.

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

    5.5  Transferability.  No
Option that is intended to qualify as an Incentive Stock Option shall be
assignable or transferable by the Optionee, other than by will or the laws of
descent and distribution, and such Option may be exercised during the life of
the Optionee only by the Optionee or his guardian or legal
representative.  Nonqualified Stock Options are transferable by the
Optionee to any Permitted Assignee; provided, however, that such
Permitted Assignee shall be bound by all of the terms and conditions of the Plan
and shall execute an agreement satisfactory to the Company evidencing such
obligation; provided further, however, that any
transfer by an Optionee to any Permitted Assignee shall be subject to the prior
consent of the Committee; and provided further, however, that such
Optionee shall remain bound by the terms and conditions of the
Plan.  The Company shall cooperate with an Optionee’s Permitted
Assignee and the Company’s transfer agent in effectuating any transfer permitted
pursuant to this Section 5.5.

     

    5.6  Termination of
Employment.  In the event of the termination of employment of
an Optionee for any reason (other than death or Disability as provided below),
any Option(s) held by such Optionee (or its Permitted Assignee) under the Plan
and not previously exercised or expired shall be deemed canceled and terminated
on the day of such termination or separation, unless the Committee decides, in
its sole discretion, to extend the term of the Option for a period not to exceed
three months after the date of such termination or separation, provided, however, that in no
instance may the term of the Option, as so extended, exceed the maximum term set
forth in Section 4.1(b)(ii) or 5.4, above.

     

    5.7  Death.  In the
event an Optionee dies while employed by the Company or any of its subsidiaries
or affiliates, any Option(s) held by such Optionee (or his Permitted Assignee)
and not previously expired or exercised shall, to the extent exercisable on the
date of death, be exercisable by the estate of such Optionee or by any person
who acquired such Option by bequest or inheritance, or by the Permitted Assignee
at any time within one year after the death of the Optionee, unless earlier
terminated pursuant to its terms; provided, however, that if the
term of such Option would expire by its terms within six months after the
Optionee’s death, the term of such Option shall be extended until six months
after the Optionee’s death, provided further, however, that in no
instance may the term of the Option, as so extended, exceed the maximum term set
forth in Section 4.1(b)(ii) or 5.4, above.

     

    5.8  Disability.  In the
event of the termination of employment of an Optionee due to Disability, the
Optionee, or his guardian or legal representative, or a Permitted Assignee shall
have the unqualified right to exercise any Option(s) which have not been
previously exercised or expired and which the Optionee was eligible to exercise
as of the first date of Disability (as determined by the Committee), at any time
within one (1) year after such termination, unless earlier terminated pursuant
to its terms; provided, however, that if the
term of such Option would expire by its terms within six months after such
termination, the term of such Option may be extended until six months after such
termination at the discretion of the Committee; provided further, however, that in no
instance may the term of the Option, as so extended, exceed the maximum term set
forth in Section 4.1(b)(ii) or 5.4, above.

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

    5.9  Amendment and Modification of the
Plan.  The Committee may, from time to time, alter, amend,
suspend or terminate the Plan as it shall deem advisable, subject to any
requirement for stockholder approval imposed by applicable law or any rule of
any stock exchange or quotation system on which Shares are listed or quoted;
provided that such Committee may not amend the Plan, without the approval of the
Company’s stockholders, to increase the number of Shares that may be the subject
of awards under the Plan (except for adjustments pursuant to Section 5.10
hereof).  In addition, no amendments to, or termination of, the Plan
shall in any way impair the rights of an Optionee or a Participant (or a
Permitted Assignee thereof) under any Option previously granted without such
Optionee’s or Participant’s consent.

     

    5.10  Adjustments.  In
the event that the Committee shall determine that any dividend, or other similar
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, or exchange
of Shares or other securities, the issuance of warrants or other rights to
purchase Shares or other securities, or other similar corporate transaction or
event affects the Shares with respect to which Options have been or may be
issued under the Plan, such that an adjustment is determined by the Committee to
be appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as the Committee deems equitable, adjust any or
all of (i) the number and type of Shares that thereafter may be made the
subject of Options, (ii) the number and type of Shares subject to
outstanding Options, and (iii) the grant or exercise price with respect to
any Option, or, if deemed appropriate, make provision for a cash payment to the
holder of any outstanding Option; provided, in each case, that with respect to
Incentive Stock Options, no such adjustment shall be authorized to the extent
that such adjustment would cause such options to violate Section 422(b) of the
Code or any successor provision (unless otherwise agreed by the Committee and
the holder of such Option); and provided further, that the number of Shares
subject to any Option denominated in Shares shall always be a whole
number.  In the event of any reorganization, merger, consolidation,
split-up, spin-off, or other business combination involving the Company, the
Committee or the Board may cause any Option outstanding as of the effective date
of any such transaction to be canceled in consideration of a cash payment or
alternate Option made to the holder of such canceled Option equal in value to
the fair market value of such canceled Option.  The determination of
fair market value shall be made by the Committee or the Board, as the case may
be, in their sole discretion.  With respect to each adjustment
contemplated by this Section 5.10, no such adjustment shall be authorized to the
extent that such adjustment would cause an Option to violate the provisions of
Section 409A of the Code (unless otherwise agreed by the Committee and the
holder of such Option).

     

    ARTICLE
6

     

    MISCELLANEOUS

     

    6.1  Tax
Withholding.  All payments or distributions made pursuant to
the Plan to an Optionee or Participant (or a Permitted Assignee thereof) shall
be net of any applicable federal, state and local withholding taxes arising as a
result of the exercise of an Option or any other event occurring pursuant to the
Plan.  The Company shall have the right to withhold from such Optionee
or Participant (or a Permitted Assignee thereof) such withholding taxes as may
be required by law, or to otherwise require the Optionee or Participant (or a
Permitted Assignee thereof) to pay such withholding taxes.  If the
Optionee or Participant (or a Permitted Assignee thereof) shall fail to make
such tax payments as are required, the Company or its subsidiaries or affiliates
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to such Optionee or Participant or to
take such other action as may be necessary to satisfy such withholding
obligations.  In satisfaction of the requirement to pay withholding
taxes, the Optionee or Participant (or Permitted Assignee) may make a Tax
Election, which may be accepted or rejected in the discretion of the
Committee.

     

    
      
         

      

      
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    6.2  Right of Discharge
Reserved.  Nothing in the Plan nor the grant of an Option
hereunder shall confer upon any employee the right to continue in the employment
or service of the Company or any subsidiary or affiliate of the Company or
affect any right that the Company or any subsidiary or affiliate of the Company
may have to terminate the employment of (or to demote or to exclude from future
Options under the Plan) any such employee at any time for any
reason.  Except as specifically provided by the Committee, the Company
shall not be liable for the loss of existing or potential profit from an Option
granted in the event of termination of an employment even if the termination is
in violation of an obligation of the Company or any subsidiary or affiliate of
the Company to the employee.

     

    6.3  Nature of
Payments.  All Options made pursuant to the Plan are in
consideration of services performed for the Company or any subsidiary or
affiliate of the Company.  Any income or gain realized pursuant to
Options under the Plan constitutes a special incentive payment to the Optionee
or Participant and shall not be taken into account, to the extent permissible
under applicable law, as compensation for purposes of any of the employee
benefit plans of the Company or any subsidiary or affiliate of the Company
except as may be determined by the Committee or by the Directors or directors of
the applicable subsidiary or affiliate of the Company.

     

    6.4  Severability.  If
any provision of the Plan shall be held unlawful or otherwise invalid or
unenforceable in whole or in part, such unlawfulness, invalidity or
unenforceability shall not affect any other provision of the Plan or part
thereof, each of which remain in full force and effect.  If the making
of any payment or the provision of any other benefit required under the Plan
shall be held unlawful or otherwise invalid or unenforceable, such unlawfulness,
invalidity or unenforceability shall not prevent any other payment or benefit
from being made or provided under the Plan, and if the making of any payment in
full or the provision of any other benefit required under the Plan in full would
be unlawful or otherwise invalid or unenforceable, then such unlawfulness,
invalidity or unenforceability shall not prevent such payment or benefit from
being made or provided in part, to the extent that it would not be unlawful,
invalid or unenforceable, and the maximum payment or benefit that would not be
unlawful, invalid or unenforceable shall be made or provided under the
Plan.

     

    6.5  Gender and
Number.  In order to shorten and to improve the
understandability of the Plan document by eliminating the repeated usage of such
phrases as “his or her” and any masculine terminology herein shall also include
the feminine, and the definition of any term herein in the singular shall also
include the plural except when otherwise indicated by the context.

     

    6.6  Governing Law.  The
Plan and all determinations made and actions taken thereunder, shall be governed
by the laws of the State of Delaware, without regard to the principles of
conflicts of law which might otherwise apply.

     

    6.7  Termination of
Plan.  The Plan shall be effective on the date of the approval
of the Plan by the holders of a majority of the shares entitled to vote thereon,
provided such approval is obtained within 12 months after the date of adoption
of the Plan by the Board.  Options may be granted under the Plan at
any time and from time to time on or prior to May __, 2017, on which date the
Plan will expire except as to Options then outstanding under the
Plan.  Such outstanding Options shall remain in effect until they have
been exercised or terminated, or have expired.

     

    6.8  Captions.  The
captions in the Plan are for convenience of reference only, and are not intended
to narrow, limit or affect the substance or interpretation of the provisions
contained herein.

     

    


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