a2018equityandincentia7f






                MERCANTIL BANK HOLDING CORPORATION                                                       2018 EQUITY AND INCENTIVE COMPENSATION PLAN         1.    Purpose.  The purpose of this Plan is to attract and retain non-employee Directors,  officers and other employees of the Company and its Subsidiaries, and certain consultants to the  Company and its Subsidiaries, and to provide to such persons incentives and rewards for service  and/or performance.         2.    Definitions.  As used in this Plan:               (a)   “Appreciation Right” means a right granted pursuant to Section 5 of this  Plan.               (b)   “Base Price” means the price to be used as the basis for determining the  Spread upon the exercise of an Appreciation Right.               (c)   “Board” means the Board of Directors of the Company.               (d)   “Cash  Incentive  Award”  means  a  cash  award  granted  pursuant  to  Section 8 of this Plan.               (e)   “Cause” shall have the meaning as set forth in the applicable Evidence of  Award.               (f)   “Change in Control” has the meaning set forth in Section 12 of this Plan.               (g)   “Code” means the Internal Revenue Code of 1986, as amended from time  to time.               (h)   “Committee”  means  the  Compensation Committee of  the  Board  (or  its  successor(s)), or any other committee of the Board designated by the Board to administer this  Plan pursuant to Section 10 of this Plan, and to the extent of any delegation by the Committee to  a subcommittee pursuant to Section 10 of this Plan, such subcommittee.               (i)   “Common Stock” means the Class A common stock, par value $0.10 per  share, of the Company or any security into which such common stock may be changed by reason  of any transaction or event of the type referred to in Section 11 of this Plan.               (j)   “Company”  means  Mercantil  Bank  Holding  Corporation,  a  Florida  corporation, and its successors.               (k)   “Date of Grant” means the date provided for by the Committee on which a  grant  of  Option  Rights,  Appreciation  Rights,  Performance  Shares,  Performance  Units,  Cash  Incentive Awards, or other awards contemplated by Section 9 of this Plan, or a grant or sale of  Restricted Stock, Restricted Stock Units, or other awards contemplated by Section 9 of this Plan,  will become effective (which date will not be earlier than the date on which the Committee takes  action with respect thereto).    NAI- 1506730676v21    





 






            (l)   “Director” means a member of the Board.               (m)   “Disability” shall have the meaning as set forth in the applicable Evidence  of Award.               (n)   “Effective Date” means the date this Plan is approved by the Stockholders.               (o)   “Evidence of Award” means an agreement, certificate, resolution or other  type or form of writing or other evidence approved by the Committee that sets forth the terms  and  conditions  of  the  awards  granted  under  this  Plan.   An Evidence  of  Award  may  be  in  an  electronic medium, may be limited to notation on the books and records of the Company and,  unless otherwise determined by the Committee, need not  be signed by a representative of the  Company or a Participant.               (p)   “Exchange Act” means the Securities Exchange Act of 1934, as amended,  and  the  rules  and  regulations  thereunder,  as  such  law,  rules  and  regulations  may  be  amended  from time to time.               (q)   “Incentive  Stock  Option”  means  an  Option  Right  that  is  intended  to  qualify as an “incentive stock option” under Section 422 of the Code or any successor provision.               (r)   “Management  Objectives”  means  the  measurable  performance  objective  or  objectives  established  pursuant  to  this  Plan  for  Participants  who  have  received  grants  of  Performance Shares, Performance Units or Cash  Incentive Awards or, when so determined by  the  Committee,  Option  Rights,  Appreciation  Rights,  Restricted  Stock,  Restricted  Stock  Units,  dividend equivalents or other awards pursuant to this Plan.  If the Committee determines that a  change in the business, operations, corporate structure or capital structure of the Company, or the  manner  in  which  it  conducts  its  business,  or  other  events  or  circumstances  render  the  Management  Objectives  unsuitable,  the  Committee  may  in  its  discretion modify  such  Management  Objectives  or  the  acceptable  levels  of  achievement,  in  whole  or  in  part,  as  the  Committee deems appropriate and equitable.               (s)   “Market  Value  per  Share”  means,  as  of  any  particular  date,  the  closing  price of a share of Common Stock as reported for that date on the NASDAQ Stock Market or, if  the shares of Common Stock are not then listed on the NASDAQ Stock Market, on any other  national securities exchange on which the shares of Common Stock are listed, or if there are no  sales on such date, on the next preceding trading day during which a sale occurred; provided,  however, as to any award with a Date of Grant of the Pricing Date, “Market Value per Share”  will be equal to the per share price at which the shares of Common Stock are initially offered to  the public in connection with the initial public offering of the Company registered on Form S-1  (or any successor form  under the Securities Act of 1933, as  amended).   If there is  no regular  public trading market for the shares of Common Stock, then the Market Value per Share shall be  the  fair  market  value  as  determined  in  good  faith  by  the  Committee.   The  Committee  is  authorized to adopt another fair market value pricing method provided such method is stated in  the applicable Evidence of Award and is in compliance with the fair market value pricing rules  set forth in Section 409A of the Code.    NAI-1506730676v2                      2                                         





 






            (t)   “Optionee”  means  the  optionee  named  in  an  Evidence  of  Award  evidencing an outstanding Option Right.               (u)   “Option Price” means the purchase price payable on exercise of an Option  Right.               (v)   “Option Right” means the right to purchase shares of Common Stock upon  exercise of an award granted pursuant to Section 4 of this Plan.               (w)   “Participant” means a person who is selected by the Committee to receive  benefits  under this  Plan and who is  at  the time (i) a non-employee Director, (ii) an officer or  other  employee  of  the  Company  or  any  Subsidiary,  including  a  person  who  has  agreed  to  commence  serving  in  such  capacity  within  90  days  of  the  Date  of  Grant,  or  (iii)  a  person,  including a  consultant,  who  provides  services  to  the  Company  or  any  Subsidiary  that  are  equivalent to those typically provided by an employee (provided that such person satisfies the  Form S-8 definition of an “employee”).               (x)   “Performance  Period”  means,  in  respect  of  a Cash  Incentive  Award,  Performance Share or Performance Unit, a period of time established pursuant to Section 8 of  this  Plan  within  which  the  Management  Objectives  relating  to  such  Cash  Incentive  Award,  Performance Share or Performance Unit are to be achieved.               (y)   “Performance  Share”  means  a  bookkeeping  entry  that  records  the  equivalent of one share of Common Stock awarded pursuant to Section 8 of this Plan.               (z)   “Performance  Unit”  means  a  bookkeeping  entry  awarded  pursuant  to  Section 8 of this Plan that records a unit equivalent to $1.00 or such other value as is determined  by the Committee.               (aa)  “Plan” means this Mercantil Bank Holding Corporation 2018 Equity and  Incentive Compensation Plan, as amended or amended and restated from time to time.               (bb)  “Pricing Date” means the date of the underwriting agreement between the  Company and the underwriters managing the initial public offering of the shares of Common  Stock pursuant to which the shares of Common Stock are priced for the initial public offering.               (cc)  “Restricted  Stock”  means  shares  of  Common  Stock  granted  or  sold  pursuant to Section 6 of this Plan as to which neither the substantial risk of forfeiture nor the  prohibition on transfers has expired.               (dd)  “Restricted Stock Units” means an award made pursuant to Section 7 of  this Plan of the right to receive shares of Common Stock, cash or a combination thereof at the  end of the applicable Restriction Period.               (ee)  “Restriction  Period”  means  the  period  of  time  during  which  Restricted  Stock Units are subject to restrictions, as provided in Section 7 of this Plan.    NAI-1506730676v2                      3                                         





 






            (ff)  “Spread”  means  the  excess  of  the  Market  Value  per  Share  on  the  date  when an Appreciation  Right  is  exercised over the Base Price provided  for with  respect  to  the  Appreciation Right.               (gg)  “Stockholder” means an individual or entity that owns one or more shares  of Common Stock.               (hh)  “Subsidiary” means a corporation, company or other entity (i) more than  50% of whose outstanding shares or securities (representing the right to vote for the election of  directors  or  other  managing  authority)  are,  or  (ii)  which  does  not  have  outstanding  shares  or  securities  (as  may  be  the  case  in  a  partnership,  joint  venture,  limited  liability  company,  unincorporated  association  or  other  similar  entity),  but  more  than  50%  of  whose  ownership  interest  representing  the  right  generally  to  make  decisions  for  such  other  entity  is,  now  or  hereafter, owned or controlled, directly or indirectly, by the Company; provided, however, that  for purposes of determining whether any person may be a Participant for purposes of any grant  of Incentive Stock Options, “Subsidiary” means any corporation in which the Company at the  time owns or controls, directly or indirectly, more than 50% of the total combined Voting Power  represented by all classes of stock issued by such corporation.               (ii)  “Voting  Power”  means,  at  any  time,  the  combined  voting  power  of  the  then-outstanding securities entitled to vote generally in the election of Directors in the case of the  Company or members of the board of directors or similar body in the case of another entity.         3.    Shares Available Under this Plan.               (a)   Maximum Shares Available Under this Plan.                       (i)   Subject to adjustment as provided in Section  11 of this Plan and                          the share counting rules set forth in Section 3(b) of this Plan, the                          number of shares of Common Stock available under this Plan for                          awards of (A) Option Rights or Appreciation Rights, (B) Restricted                          Stock,  (C)  Restricted  Stock  Units,  (D)  Performance  Shares  or                          Performance Units, (E) awards contemplated by Section 9 of this                          Plan, or (F) dividend equivalents paid with respect to awards made                          under this Plan will not exceed in the aggregate 3,333,333 shares1                          of Common Stock.  Such shares may be shares of original issuance                          or treasury shares or a combination of the foregoing.                     (ii)  The aggregate number of shares of Common Stock available under                          Section  3(a)(i) of  this  Plan  will  be  reduced  by  one  share  of                          Common Stock for every one share of Common Stock subject to                          an award granted under this Plan.                                                            1     Note: This number reflects the 1-for-3 reverse stock split of the Company’s issued and outstanding  shares of its Class A common stock, which took place on October 23, 2018.     NAI-1506730676v2                      4                                         





 






            (b)   Share Counting Rules.                       (i)   Except as provided in Section 22 of this Plan, if any award granted                          under this Plan is cancelled or forfeited, expires, is settled for cash                          (in whole or in part), or is unearned (in whole or in part), the shares                          of Common Stock subject to such award will, to the extent of such                          cancellation,  forfeiture,  expiration,  cash  settlement,  or  unearned                          amount, again be available under Section 3(a)(i) above.                     (ii)  If, after the Effective Date, any shares of Common Stock subject to                          an award granted under the Predecessor Plans are forfeited, or an                          award granted under the Predecessor Plans is cancelled or forfeited,                          expires, is settled for cash (in whole or in part), or is unearned (in                          whole  or  in  part),  the  shares  of  Common  Stock  subject  to  such                          award will, to the extent of such cancellation, forfeiture, expiration,                          cash settlement, or unearned amount, be available for awards under                          this Plan.                     (iii) Notwithstanding  anything  to  the  contrary  contained  in  this  Plan:                           (A) shares of Common Stock withheld by the Company, tendered                          or  otherwise  used  in  payment  of  the  Option  Price  of  an  Option                          Right  will  not  be  added  (or  added  back,  as  applicable)  to  the                          aggregate  number  of  shares  of  Common  Stock  available  under                          Section 3(a)(i) of this Plan; (B) shares of Common Stock subject                          to an Appreciation Right that are not actually issued in connection                          with  the  settlement  of  such  Appreciation  Right  on  the  exercise                          thereof will not be added back to the aggregate number of shares of                          Common  Stock  available  under Section  3(a)(i) of  this  Plan;  (C)                          shares of Common Stock reacquired by the Company on the open                          market  or  otherwise  using  cash  proceeds  from  the  exercise  of                          Option Rights will not be added (or added back, as applicable) to                          the aggregate number of shares of Common Stock available under                          Section  3(a)(i) of  this  Plan;  and  (D)  shares  of  Common  Stock                          withheld by the Company, tendered or otherwise used to satisfy tax                          withholding  will  be  added  (or  added  back,  as  applicable)  to  the                          aggregate  number  of  shares  of  Common  Stock  available  under                          Section 3(a)(i) of this Plan.                     (iv)  If, under this Plan, a Participant has elected to give up the right to                          receive  compensation  in  exchange  for  shares  of  Common  Stock                          based on fair market value, such shares of Common Stock will not                          count against the aggregate limit under Section 3(a)(i) of this Plan.               (c)   Limit  on  Incentive  Stock  Options.   Notwithstanding  anything  to  the  contrary  contained  in  this Section 3 or  elsewhere  in  this  Plan,  and  subject  to  adjustment  as  provided in Section 11 of this Plan, the aggregate number of shares of Common Stock actually    NAI-1506730676v2                      5                                         





 






issued  or  transferred  by  the  Company  upon  the  exercise  of  Incentive  Stock  Options  will  not  exceed 3,333,333 shares2 of Common Stock.               (d)   Non-Employee Director Compensation Limit.  Notwithstanding anything  to the contrary contained in this Section 3 or elsewhere in this Plan, and subject to adjustment as  provided in Section 11 of this Plan, in no event will any non-employee Director in any calendar  year be granted compensation (including meeting and retainer fees and equity grants) for such  service having an aggregate maximum value (measured at the Date of Grant as applicable, and  calculating  the  value  of  any  awards  based  on  the  grant  date  fair  value  for  financial  reporting  purposes) in excess of $600,000.         4.    Option Rights.  The Committee may, from time to time and upon such terms and  conditions as it may determine, authorize the granting to Participants of Option Rights.  Each  such  grant  may  utilize  any  or  all  of  the  authorizations,  and  will  be  subject  to  all  of  the  requirements, contained in the following provisions:               (a)   Each grant will specify the number of shares of Common Stock to which it  pertains subject to the limitations set forth in Section 3 of this Plan.               (b)   Each  grant  will  specify  an  Option  Price  per  share  of  Common  Stock,  which Option Price (except with respect to awards under Section 22 of this Plan) may not be less  than the Market Value per Share on the Date of Grant.               (c)   Each  grant  will  specify  whether  the  Option  Price  will  be  payable  (i) in  cash, by check acceptable to the Company or by wire transfer of immediately available funds, (ii)  by the actual or constructive transfer to the Company of shares of Common Stock owned by the  Optionee having a value at the time of exercise equal to the total Option Price, (iii) subject to any  conditions or limitations established by the Committee, by the withholding of shares of Common  Stock  otherwise  issuable  upon  exercise  of  an  Option  Right  pursuant  to  a  “net  exercise”  arrangement (it being understood that, solely for purposes of determining the number of treasury  shares  held  by the Company, the shares of Common  Stock so  withheld  will not  be treated  as  issued and acquired by the Company upon such exercise), (iv) by a combination of such methods  of payment, or (v) by such other methods as may be approved by the Committee.               (d)   To  the  extent  permitted  by  law,  any  grant  may  provide  for  deferred  payment  of  the  Option  Price  from  the  proceeds  of  sale  through  a  bank  or  broker  on  a  date  satisfactory  to  the  Company  of  some  or  all  of  the  shares  of  Common Stock  to  which  such  exercise relates.               (e)   Successive grants may be made to the same Participant whether or not any  Option Rights previously granted to such Participant remain unexercised.               (f)   Each grant will specify the period or periods of continuous service by the  Optionee with the Company or any Subsidiary, if any, that is necessary before any Option Rights                                                           2     Note: This number reflects the 1-for-3 reverse stock split of the Company’s issued and outstanding  shares of its Class A common stock, which took place on October 23, 2018.     NAI-1506730676v2                      6                                         





 






or installments thereof will become exercisable.  Option Rights may provide for continued  vesting or the earlier exercise of such Option Rights, including in the event of the retirement,  death or disability of a Participant or in the event of a Change in Control.               (g)   Any  grant  of  Option  Rights  may  specify  Management  Objectives  that  must be achieved as a condition to the exercise of such rights.               (h)   Option  Rights  granted  under  this  Plan  may  be  (i)  options,  including  Incentive Stock Options, that are intended to qualify under particular provisions of the Code, (ii)  options  that  are  not  intended  to  so  qualify,  or  (iii)  combinations  of  the  foregoing.   Incentive  Stock Options may only be granted to Participants who meet the definition of “employees” under  Section 3401(c) of the Code.               (i)   No Option Right will be exercisable more than 10 years from the Date of  Grant.  The Committee may provide in any Evidence of Award for the automatic exercise of an  Option Right upon such terms and conditions as established by the Committee.               (j)   Option Rights granted under this Plan may not provide for any dividends  or dividend equivalents thereon.               (k)   Each grant of Option Rights will be evidenced by an Evidence of Award.   Each Evidence of Award will be subject to this Plan and will contain such terms and provisions,  consistent with this Plan, as the Committee may approve.         5.    Appreciation Rights.               (a)   The  Committee  may,  from  time  to  time  and  upon  such  terms  and  conditions as it may determine, authorize the granting to any Participant of Appreciation Rights.   An  Appreciation  Right  will  be  the  right  of  the  Participant  to  receive  from  the  Company  an  amount determined by the Committee, which will be expressed as  a percentage of the Spread  (not exceeding 100%) at the time of exercise.               (b)   Each  grant  of  Appreciation  Rights  may  utilize  any  or  all  of  the  authorizations,  and  will  be  subject  to  all  of  the  requirements,  contained  in  the  following  provisions:                     (i)   Each grant may specify that the amount payable on exercise of an                          Appreciation Right will be paid by the Company in cash, shares of                          Common Stock or any combination thereof.                     (ii)  Any grant may specify that the amount payable on exercise of an                          Appreciation  Right  may not  exceed  a maximum  specified by the                          Committee on the Date of Grant.                     (iii) Any  grant  may  specify  waiting  periods  before  exercise  and                          permissible exercise dates or periods.    NAI-1506730676v2                      7                                         





 






                  (iv)  Each grant will specify the period or periods of continuous service                          by the Participant with the Company or any Subsidiary, if any, that                          is necessary before the Appreciation Rights or installments thereof                          will  become  exercisable.   Appreciation  Rights  may  provide  for                          continued  vesting  or  the  earlier  exercise  of  such  Appreciation                          Rights, including in the event of the retirement, death or disability                          of a Participant or in the event of a Change in Control.                     (v)   Any  grant  of  Appreciation  Rights  may  specify  Management                          Objectives that must be achieved as a condition of the exercise of                          such Appreciation Rights.                     (vi)  Appreciation  Rights  granted under this  Plan may  not  provide  for                          any dividends or dividend equivalents thereon.                     (vii) Successive grants of Appreciation Rights may be made to the same                          Participant  regardless  of  whether  any  Appreciation  Rights                          previously granted to the Participant remain unexercised.                     (viii) Each  grant  of  Appreciation  Rights  will  be  evidenced  by  an                          Evidence of Award.  Each Evidence of Award will be subject to                          this  Plan  and  will  contain  such  terms  and  provisions,  consistent                          with this Plan, as the Committee may approve.               (c)   Also, regarding Appreciation Rights:                     (i)   Each  grant  will  specify  in  respect  of  each  Appreciation  Right  a                          Base Price, which (except with respect to awards under Section 22                          of this Plan) may not be less than the Market Value per Share on                          the Date of Grant; and                     (ii)  No Appreciation  Right  granted under this  Plan may be exercised                          more than 10 years from the Date of Grant.  The Committee may                          provide in any Evidence of Award for the automatic exercise of an                          Appreciation Right upon such terms and conditions as established                          by the Committee.         6.    Restricted Stock.  The Committee may, from time to time and upon such terms  and conditions as it may determine, authorize the grant or sale of Restricted Stock to Participants.   Each such grant or sale may utilize any or all of the authorizations, and will be subject to all of  the requirements, contained in the following provisions:               (a)   Each  such  grant  or  sale  will  constitute  an  immediate  transfer  of  the  ownership of shares of Common Stock to the Participant in consideration of the performance of  services, entitling such Participant to voting, dividend and other ownership rights, but subject to  the substantial risk of forfeiture and restrictions on transfer hereinafter described.    NAI-1506730676v2                      8                                         





 






            (b)   Each such grant or sale may be made without additional consideration or  in consideration of a payment by such Participant that is less than the Market Value per Share on  the Date of Grant.               (c)   Each such grant or sale will provide that the Restricted Stock covered by  such grant or sale will be subject to a “substantial risk of forfeiture” within the meaning of  Section 83 of the Code for a period to be determined by the Committee on the Date of Grant or  until achievement of Management Objectives referred to in Section 6(e) of this Plan.                 (d)   Each  such  grant  or  sale  will  provide  that  during  or  after  the  period  for  which such substantial risk of forfeiture is to continue, the transferability of the Restricted Stock  will be prohibited or restricted in the manner and to the extent prescribed by the Committee on  the  Date  of  Grant  (which  restrictions  may  include  rights  of  repurchase  or  first  refusal  of  the  Company  or  provisions  subjecting  the  Restricted  Stock  to  a  continuing  substantial  risk  of  forfeiture while held by any transferee).               (e)   Any grant of Restricted Stock may specify Management Objectives that, if  achieved, will result in termination or early termination of the restrictions applicable to such  Restricted Stock.               (f)   Notwithstanding anything to the contrary contained in this Plan, Restricted  Stock  may  provide  for  continued  vesting  or  the  earlier  termination  of  restrictions  on  such  Restricted Stock, including in the event of the retirement, death or disability of a Participant or in  the event of a Change in Control.               (g)   Any  such  grant  or  sale  of  Restricted  Stock  will  require  that  any  and  all  dividends  or  other  distributions  paid  thereon  during  the  period  of  such  restrictions  be  automatically deferred and/or reinvested in additional Restricted Stock, which will be subject to  the same restrictions as the underlying award.  For the avoidance of doubt, any such dividends or  other  distributions  on  Restricted  Stock  will  be  deferred  until,  and  paid  contingent  upon,  the  vesting of such Restricted Stock.               (h)   Each grant or sale of Restricted Stock will be evidenced by an Evidence of  Award.  Each Evidence of Award will be subject to this Plan and will contain such terms and  provisions, consistent with this Plan, as the Committee may approve.  Unless otherwise directed  by the Committee, (i) all certificates representing Restricted Stock will be held in custody by the  Company until all restrictions thereon will have lapsed, together with a stock power or powers  executed by the Participant in whose name such certificates are registered, endorsed in blank and  covering such shares or (ii) all Restricted Stock will be held at the Company’s transfer agent in  book entry form with appropriate restrictions relating to the transfer of such Restricted Stock.         7.    Restricted Stock Units.  The Committee may, from time to time and upon such  terms and conditions as it may determine, authorize the granting or sale of Restricted Stock Units  to Participants.  Each such grant or sale may utilize any or all of the authorizations, and will be  subject to all of the requirements, contained in the following provisions:               (a)   Each such grant or sale will constitute the agreement by the Company to  deliver  shares  of  Common  Stock  or  cash,  or  a  combination  thereof,  to  the  Participant  in  the    NAI-1506730676v2                      9                                         





 






future  in  consideration  of  the  performance  of  services,  but  subject  to  the  fulfillment  of  such  conditions  (which  may  include  the  achievement  of  Management  Objectives)  during  the  Restriction Period as the Committee may specify.                 (b)   Each such grant or sale may be made without additional consideration or  in consideration of a payment by such Participant that is less than the Market Value per Share on  the Date of Grant.               (c)   Notwithstanding anything to the contrary contained in this Plan, Restricted  Stock Units may provide for continued vesting or the earlier lapse or other modification of the  Restriction Period, including in the event of the retirement, death or disability of a Participant or  in the event of a Change in Control.               (d)   During the Restriction Period, the Participant will have no right to transfer  any rights under his or her award and will have no rights of ownership in the shares of Common  Stock deliverable upon payment of the Restricted Stock Units and will have no right to vote them,  but  the  Committee  may,  at  or  after  the  Date  of  Grant,  authorize  the  payment  of  dividend  equivalents on such Restricted Stock Units on a deferred and contingent basis, either in cash or  in  additional  shares  of  Common  Stock; provided, however,  that  dividend  equivalents  or  other  distributions  on  shares  of Common  Stock underlying  Restricted  Stock  Units  will  be  deferred  until and paid contingent upon the vesting of such Restricted Stock Units.                 (e)   Each  grant  or  sale  of  Restricted  Stock  Units  will  specify  the  time  and  manner of payment of the Restricted Stock Units that have been earned.  Each grant or sale will  specify that the amount payable with respect thereto will be paid by the Company in shares of  Common Stock or cash, or a combination thereof.               (f)   Each  grant  or  sale  of  Restricted  Stock  Units  will  be  evidenced  by  an  Evidence of Award.  Each Evidence of Award will be subject to this Plan and will contain such  terms and provisions, consistent with this Plan, as the Committee may approve.         8.    Cash  Incentive  Awards,  Performance  Shares  and  Performance  Units.  The  Committee  may,  from  time  to  time  and  upon  such  terms  and  conditions  as  it  may  determine,  authorize the granting of Cash  Incentive Awards, Performance Shares and Performance Units.   Each  such  grant  may  utilize  any  or  all  of  the  authorizations,  and  will  be  subject  to  all  of  the  requirements, contained in the following provisions:               (a)   Each grant will specify the number or amount of Performance Shares or  Performance  Units,  or  amount  payable  with  respect  to  a  Cash  Incentive  Award,  to  which  it  pertains,  which  number  or  amount  may  be  subject  to  adjustment  to  reflect  changes  in  compensation or other factors.               (b)   The  Performance  Period  with  respect  to  each  Cash  Incentive  Award  or  grant  of  Performance  Shares  or  Performance  Units  will  be  such  period  of  time  as  will  be  determined by the Committee.  Cash  Incentive  Awards, Performance Shares  and Performance  Units  may  be  subject  to  continued  vesting  or  the  earlier  lapse  or  other  modification  of  the  applicable performance period, including in the event of the retirement, death or disability of a  Participant or in the event of a Change in Control.    NAI-1506730676v2                      10                                        





 






            (c)   Each  grant  of  a  Cash  Incentive  Award,  Performance  Shares  or  Performance  Units  will  specify  Management  Objectives  which,  if  achieved,  will  result  in  payment or early payment of the award, and each grant may specify in respect of such specified  Management Objectives a minimum acceptable level or levels of achievement and may set forth  a formula for determining the number of Performance Shares or Performance Units, or amount  payable with respect to a Cash Incentive Award, that will be earned if performance is at or above  the minimum or threshold level or levels, or is at or above the target level or levels, but falls  short of maximum achievement of the specified Management Objectives.               (d)   Each  grant  will  specify  the  time  and  manner  of  payment  of  a  Cash  Incentive Award, Performance Shares or Performance Units that have been earned.  Any grant  may specify that the amount payable with respect thereto may be paid by the Company in cash,  in shares of Common Stock, in Restricted Stock or Restricted Stock Units or in any combination  thereof.               (e)   Any grant of a Cash Incentive Award, Performance Shares or Performance  Units may specify that the amount payable or the number of shares of Common Stock, Restricted  Stock  or  Restricted  Stock  Units  payable  with  respect  thereto  may  not  exceed  a  maximum  specified by the Committee on the Date of Grant.                 (f)   The  Committee  may,  on  the  Date  of  Grant  of  Performance  Shares  or  Performance Units, provide for the payment of dividend equivalents to the holder thereof either  in cash or in additional shares of Common Stock, subject in all cases to deferral and payment on  a contingent basis based on the Participant’s earning of the Performance Shares or Performance  Units, as applicable, with respect to which such dividend equivalents are paid.               (g)   Each  grant  of  a  Cash  Incentive  Award,  Performance  Shares  or  Performance Units will be evidenced by an Evidence of Award.  Each Evidence of Award will  be subject to this Plan and will contain such terms and provisions, consistent with this Plan, as  the Committee may approve.         9.    Other Awards.               (a)   Subject to applicable law and the applicable limits set forth in Section 3 of  this Plan, the Committee may authorize the grant to any Participant of shares of Common Stock  or  such  other  awards  that  may be  denominated  or  payable  in,  valued  in  whole  or  in  part  by  reference to, or otherwise based on, or related to, shares of Common Stock or factors that may  influence  the  value  of  such  shares,  including,  without  limitation,  convertible  or  exchangeable  debt securities, other rights convertible or exchangeable into shares of Common Stock, purchase  rights  for  shares  of  Common  Stock,  awards  with  value  and  payment  contingent  upon  performance of the Company or specified Subsidiaries, affiliates or other business units thereof  or any other factors designated by the Committee, and awards valued by reference to the book  value  of  the  shares  of  Common  Stock  or  the  value  of  securities  of,  or  the  performance  of  specified Subsidiaries or affiliates or other business units of the Company.  The Committee will  determine the terms and conditions of such awards.  Shares of Common Stock delivered pursuant  to an award in the nature of a purchase right granted under this Section 9 will be purchased for  such consideration, paid for at such time, by such methods, and in such forms, including, without    NAI-1506730676v2                      11                                        





 






limitation,  shares  of  Common  Stock,  other  awards,  notes  or  other  property,  as  the  Committee  determines.               (b)   Cash awards, as an element of or supplement to any other award granted  under this Plan, may also be granted pursuant to this Section 9.               (c)   The Committee may authorize the grant of shares of Common Stock as a  bonus, or may authorize the grant of other awards in lieu of obligations of the Company or a  Subsidiary  to  pay  cash  or  deliver  other  property  under  this  Plan  or  under  other  plans  or  compensatory arrangements, subject to such terms as will be determined by the Committee in a  manner that complies with Section 409A of the Code.               (d)   The Committee may, at or after the Date of Grant, authorize the payment  of dividends or dividend equivalents on awards granted under this Section 9 on a deferred and  contingent  basis, either in cash  or in  additional shares  of Common Stock; provided, however,  that dividend equivalents or other distributions on shares of Common Stock underlying awards  granted under this Section 9 will be deferred until and paid contingent upon the earning of such  awards.               (e)   Notwithstanding  anything  to  the  contrary  contained  in  this  Plan,  awards  under  this Section  9 may  provide  for  the  earning  or  vesting  of,  or  earlier  elimination  of  restrictions applicable to, such award, including in the event of the retirement, death or disability  of a Participant or in the event of a Change in Control.         10.   Administration of this Plan.               (a)   This  Plan will be administered by the Committee.  The Committee may  from  time  to  time  delegate  all  or  any  part  of  its  authority  under  this  Plan  to  a  subcommittee  thereof.  To the extent of any such delegation, references in this Plan to the Committee will be  deemed to be references to such subcommittee.               (b)   The interpretation and construction by the Committee of any provision of  this  Plan  or  of  any  Evidence  of  Award  (or  related  documents)  and  any  determination  by  the  Committee  pursuant  to  any  provision  of  this  Plan  or  of  any  such  agreement,  notification  or  document will be final and conclusive.  No member of the Committee shall be liable for any such  action or determination made in good faith.  In addition, the Committee is authorized to take any  action it determines in its sole discretion to be appropriate subject only to the express limitations  contained in this Plan, and no authorization in any Plan section or other provision of this Plan is  intended or may be deemed to constitute a limitation on the authority of the Committee.               (c)   To  the  extent  permitted  by  law,  the  Committee  may  delegate  to  one  or  more  of  its  members,  to  one  or  more  officers  of  the  Company,  or  to  one  or more  agents  or  advisors, such administrative duties or powers as it may deem advisable, and the Committee, the  subcommittee, or any person to whom duties or powers have been delegated as aforesaid, may  employ one or more persons to render advice with respect to any responsibility the Committee,  the subcommittee or such person may have under this Plan.  The Committee may, by resolution,  authorize one or more officers of the Company to do one or both of the following on the same  basis as the Committee:  (i) designate employees to be recipients of awards under this Plan; and    NAI-1506730676v2                      12                                        





 






(ii) determine the size of any such awards; provided, however, that (A) the Committee will not  delegate such responsibilities to any such officer for awards granted to an employee who is an  officer, Director, or more than 10% “beneficial owner” (as such term is defined in Rule 13d-3  promulgated  under  the  Exchange  Act)  of  any  class  of  the  Company’s  equity  securities  that  is  registered  pursuant  to  Section  12  of  the  Exchange  Act,  as  determined by  the  Committee  in  accordance  with  Section  16  of  the  Exchange  Act;  (B) the  resolution  providing  for  such  authorization shall set  forth the total  number of shares  of Common Stock such officer(s) may  grant; and (C) the officer(s) will report periodically to the Committee regarding the nature and  scope of the awards granted pursuant to the authority delegated.         11.   Adjustments.  The Committee shall make or provide for such adjustments in the  number  of  and  kind  of  shares  of  Common  Stock  covered  by  outstanding  Option  Rights,  Appreciation  Rights,  Restricted  Stock,  Restricted  Stock  Units,  Performance  Shares  and  Performance Units granted hereunder and, if applicable, in the number of and kind of shares of  Common Stock covered by other awards granted pursuant to Section 9 of this Plan, in the Option  Price  and  Base  Price  provided  in  outstanding  Option  Rights  and  Appreciation  Rights,  respectively, in Cash Incentive Awards, and in other award terms, as the Committee, in its sole  discretion,  exercised  in  good  faith,  determines  is  equitably  required  to  prevent  dilution  or  enlargement of the rights of Participants that otherwise would result from (a) any stock dividend,  extraordinary cash dividend, stock split, combination of shares, recapitalization or other change  in the capital structure of the Company, (b) any merger, consolidation, spin-off, split-off, spin- out,  split-up,  reorganization,  partial  or  complete  liquidation  or  other  distribution  of  assets,  issuance  of  rights  or  warrants  to  purchase  securities,  or  (c) any  other  corporate  transaction  or  event  having  an  effect  similar  to  any  of  the  foregoing.   Moreover,  in  the  event  of  any  such  transaction or event or in the event of a Change in Control, the Committee may (i) accelerate the  vesting for any outstanding award under this Plan in a manner that complies with Section 409A  of the Code or (ii) provide in substitution for any or all outstanding awards under this Plan such  alternative  consideration  (including  cash),  if  any,  as  it,  in  good  faith,  may  determine  to  be  equitable  in the  circumstances  and  shall require  in  connection  therewith  the  surrender  of  all  awards so replaced in a manner that complies with Section 409A of the Code.  In addition, for  each  Option  Right  or  Appreciation  Right  with  an  Option  Price  or  Base  Price,  respectively,  greater than the consideration offered in connection with any such transaction or event or Change  in Control, the Committee may in its discretion elect to cancel such Option Right or Appreciation  Right without any payment to the person holding such Option Right or Appreciation Right.  The  Committee shall also make or provide for such adjustments in the number of shares of Common  Stock specified in Section  3 of this  Plan as  the Committee in  its  sole discretion, exercised in  good faith, determines is appropriate to reflect any transaction or event described in this Section  11; provided, however, that (A) any such adjustment to the number specified in Section 3(c) of  this Plan will be made only if and to the extent that such adjustment would not cause any Option  Right intended to qualify as an Incentive Stock Option to fail to so qualify and (B) in making  such adjustments, the Committee shall take into account following such transaction or event, that  the number of shares of Common Stock specified in Section  3 of this  Plan, as  adjusted, as  a  percentage of then outstanding shares of Company voting common stock, shall bear a reasonable  relationship to the number of shares of Common Stock specified in Section 3 of this Plan as a  percentage  of  the  outstanding  shares  of  Company  voting  common  stock  outstanding  on  the  Effective Date.    NAI-1506730676v2                      13                                        





 






      12.   Change in Control.  For purposes of this Plan, a “Change in Control” shall be  defined in the applicable Evidence of Award.           13.   Detrimental Activity and Recapture Provisions.  Any Evidence of Award may  reference a clawback policy of the Company or provide for the cancellation or forfeiture of an  award or the forfeiture and repayment to the Company of any gain related to an award, or other  provisions  intended  to  have  a  similar  effect,  upon  such  terms  and  conditions  as  may  be  determined by the Committee from time to time, if a Participant, either (a) during employment or  other service with the Company or a Subsidiary, or (b) within a specified period after termination  of  such  employment  or  service,  engages  in  any  detrimental  activity,  as  described  in  the  applicable Evidence of Award or such clawback policy.  In addition, notwithstanding anything in  this Plan to the contrary, any Evidence of Award or such clawback policy may also provide for  the cancellation or forfeiture of an award or the forfeiture and repayment to the Company of any  shares  of  Common  Stock  issued  under  and/or  any  other  benefit  related  to  an  award,  or  other  provisions intended to have a similar effect, upon such terms and conditions as may be required  by  the  Committee  or  under  Section  10D  of  the  Exchange  Act  and  any  applicable  rules  or  regulations promulgated by the Securities and Exchange Commission or any national securities  exchange or national securities association on which the shares of Common Stock may be traded.         14.   Non-U.S.  Participants.  In  order  to  facilitate  the  making  of  any  grant  or  combination of  grants  under this  Plan, the Committee may  provide for  such special  terms  for  awards to Participants who are foreign nationals or who are employed by the Company or any  Subsidiary outside of the United States of America or who provide services to the Company or  any  Subsidiary  under  an  agreement  with  a  foreign  nation  or  agency,  as  the  Committee  may  consider necessary or appropriate to accommodate differences in local law, tax policy or custom.   Moreover,  the  Committee  may  approve  such  supplements  to  or  amendments,  restatements  or  alternative versions of this Plan (including sub-plans) as it may consider necessary or appropriate  for  such  purposes,  without  thereby  affecting  the  terms  of  this  Plan  as  in  effect  for  any  other  purpose,  and  the  secretary  or  other  appropriate  officer  of  the  Company  may  certify  any  such  document  as  having  been  approved  and  adopted  in  the  same  manner  as this  Plan.   No  such  special terms, supplements, amendments or restatements, however, will include any provisions  that are inconsistent with the terms of this Plan as then in effect unless this Plan could have been  amended to eliminate such inconsistency without further approval by the Stockholders.         15.   Transferability.               (a)   Except  as  otherwise  determined  by  the  Committee,  no  Option  Right,  Appreciation  Right,  Restricted  Stock,  Restricted  Stock  Unit,  Performance  Share,  Performance  Unit,  Cash  Incentive  Award,  award  contemplated  by Section  9 of  this  Plan  or  dividend  equivalents  paid  with  respect  to  awards  made  under  this  Plan  will  be  transferable  by  the  Participant  except  by  will  or  the  laws  of  descent  and  distribution.   In  no  event  will  any  such  award granted under this Plan be transferred for value.  Except as otherwise determined by the  Committee, Option Rights and Appreciation Rights will be exercisable during the Participant’s  lifetime only by him or her or, in the event of the Participant’s legal incapacity to do so, by his or  her  guardian or legal  representative  acting on behalf of the Participant in a fiduciary capacity  under state law or court supervision.    NAI-1506730676v2                      14                                        





 






            (b)   The Committee may specify on the Date of Grant that part or all of the  shares  of  Common  Stock  that  are  (i)  to  be  issued  or  transferred  by  the  Company  upon  the  exercise of Option Rights or Appreciation Rights, upon the termination of the Restriction Period  applicable to Restricted Stock Units or upon payment under any grant of Performance Shares or  Performance Units or (ii) no longer subject to the substantial risk of forfeiture and restrictions on  transfer referred to in Section 6 of this Plan, will be subject to further restrictions on transfer.         16.   Withholding  Taxes.  To  the  extent  that  the  Company  is  required  to  withhold  federal, state, local or foreign taxes or other amounts in connection with any payment made or  benefit  realized  by  a  Participant  or  other  person  under  this  Plan,  it  will  be  a  condition  to  the  receipt of such payment or the realization of such benefit that such taxes or other amounts be  withheld from such payment or benefit or paid by such Participant or other person, as determined  or provided for by the Committee.  With respect to such benefits that are to be received in the  form of shares of Common Stock, the Committee will cause the applicable Evidence of Award to  specify  the  manner  or  manners  in  which  the  withholding  or  payment  of  such  taxes  or  other  amounts will be effected by or on behalf of such Participant or other person, which manner or  manners  may  include,  as  provided  for  by  the  Committee,  withholding  from  the  shares  of  Common Stock required to be delivered to the Participant a number of shares of Common Stock  having a value equal to the amount required to be withheld.  Any shares of Common Stock used  for purposes of such withholding or payment will be valued based on the fair market value of  such shares on the date on which the benefit or payment is to be included in the Participant’s  income.   In  no  event  will  the  fair  market  value  of  any  shares  of  Common  Stock  withheld  or  otherwise used pursuant to this Section 16 exceed the minimum amount required to be withheld,  unless  (i) an  additional  amount  can  be  withheld  and  not  result  in  adverse  accounting  consequences,  (ii) such  additional  withholding  amount  is  authorized  by  the  Committee,  and  (iii) the  total  amount  withheld  does  not  exceed  the  Participant’s  estimated  tax  obligations  attributable to the applicable transaction.  Participants will also make such arrangements as the  Company may require for the payment of any withholding tax or other obligation that may arise  in  connection  with  the  disposition  of  shares  of  Common  Stock  acquired  upon  the  exercise  of  Option Rights.         17.   Compliance with Section 409A of the Code.                 (a)   To the extent applicable, it is intended that this Plan and any grants made  hereunder comply with the provisions of Section 409A of the Code, so that the income inclusion  provisions of Section 409A(a)(1) of the Code do not apply to the Participants.  This Plan and any  grants  made  hereunder  will  be  administered  in  a  manner  consistent  with  this  intent.   Any  reference in this Plan to Section 409A of the Code will also include any regulations or any other  formal  guidance  promulgated  with  respect  to  such  section  by  the  U.S. Department  of  the  Treasury or the Internal Revenue Service.                (b)   Neither a Participant nor any of a Participant’s creditors or beneficiaries  will have the right to subject any deferred compensation (within the meaning of Section 409A of  the  Code)  payable  under  this  Plan  and  grants  hereunder  to  any  anticipation,  alienation,  sale,  transfer,  assignment,  pledge,  encumbrance,  attachment  or  garnishment.   Except  as  permitted  under  Section 409A  of  the  Code,  any  deferred  compensation  (within  the  meaning  of  Section 409A of the Code) payable to a Participant or for a Participant’s benefit under this Plan    NAI-1506730676v2                      15                                        





 






and grants hereunder may not be reduced by, or offset against, any amount owed by a Participant  to the Company or any of its Subsidiaries.                (c)   If,  at  the  time  of  a  Participant’s  separation  from service  (within  the  meaning of Section 409A of the Code), (i) the Participant will be a specified employee (within  the meaning of Section 409A of the Code and using the identification methodology selected by  the Company from time to time) and (ii) the Company makes a good faith determination that an  amount  payable  hereunder  constitutes  deferred  compensation  (within  the  meaning  of  Section 409A of the Code) the payment of which is required to be delayed pursuant to the six- month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under  Section 409A  of  the  Code,  then  the  Company  will  not  pay  such  amount  on  the  otherwise  scheduled payment date but will instead pay it, without interest, on the fifth business day of the  seventh month after such separation from service.                (d)   Solely  with  respect  to  any  award  that  constitutes  nonqualified  deferred  compensation subject to Section 409A of the Code and that is payable on account of a Change in  Control (including any installments or stream of payments that are accelerated on account of a  Change in Control), a Change in Control shall occur only if such event also constitutes a “change  in  the  ownership,”  “change  in  effective  control,”  and/or  a  “change  in  the  ownership  of  a  substantial  portion  of  assets”  of  the  Company  as  those  terms  are  defined  under  Treasury  Regulation  §1.409A-3(i)(5),  but  only  to  the  extent  necessary to  establish  a  time  and  form  of  payment that complies with Section 409A of the Code, without altering the definition of Change  in Control for any purpose in respect of such award.               (e)   Notwithstanding  any  provision  of  this  Plan  and  grants  hereunder  to  the  contrary, in light of the uncertainty with respect to the proper application of Section 409A of the  Code, the Company reserves the right to make amendments to this Plan and grants hereunder as  the Company deems necessary or desirable to avoid the imposition of taxes or penalties under  Section 409A of the Code.  In any case, a Participant will be solely responsible and liable for the  satisfaction of all taxes and penalties that may be imposed on a Participant or for a Participant’s  account  in  connection  with  this  Plan  and  grants  hereunder  (including  any  taxes  and  penalties  under Section 409A of the Code), and neither the Company nor any of its affiliates will have any  obligation to indemnify or otherwise hold a Participant harmless from any or all of such taxes or  penalties.         18.   Amendments.               (a)   The  Board  may  at  any  time  and  from  time  to  time  amend  this  Plan  in  whole  or  in  part; provided, however, that  if  an  amendment  to  this  Plan,  for  purposes  of  applicable stock exchange rules and except as permitted under Section 11 of this Plan, (i) would  materially  increase  the  benefits  accruing  to  Participants  under  this  Plan,  (ii)  would  materially  increase  the  number  of  securities  which  may  be  issued  under  this  Plan, (iii)  would  materially  modify the requirements for participation in this Plan, or (iv) must otherwise be approved by the  Stockholders in order to comply with applicable law or the rules of the NASDAQ Stock Market,  or, if the shares of Common Stock are not traded on the NASDAQ Stock Market, the principal  national securities exchange upon which the shares of Common Stock are traded or quoted, all as    NAI-1506730676v2                      16                                        





 






determined by the Board, then, such amendment will be subject to Stockholder approval and will  not be effective unless and until such approval has been obtained.               (b)   Except  in  connection  with  a  corporate  transaction  or  event  described  in  Section 11 of  this  Plan  or  in  connection  with  a  Change  in  Control,  the  terms  of  outstanding  awards may not be amended to reduce the Option Price of outstanding Option Rights or the Base  Price of outstanding Appreciation Rights, or cancel outstanding “underwater” Option Rights or  Appreciation Rights in exchange for cash, other awards or Option Rights or Appreciation Rights  with an Option Price or Base Price, as applicable, that is less than the Option Price of the original  Option  Rights  or  Base  Price  of  the  original  Appreciation  Rights,  as  applicable,  without  Stockholder approval.  This Section 18(b) is intended to prohibit the repricing of “underwater”  Option  Rights  and  Appreciation  Rights  and  will  not  be  construed  to  prohibit  the  adjustments  provided  for  in Section  11 of  this  Plan.   Notwithstanding  any  provision  of  this  Plan  to the  contrary, this Section 18(b) may not be amended without approval by the Stockholders.               (c)   If permitted by Section 409A of the Code, but subject to the paragraph that  follows,  including  in  the  case  of  termination  of  employment  or  service,  or  in  the  case  of  unforeseeable emergency or other circumstances or in the event of a Change in Control, to the  extent a Participant holds an Option Right or Appreciation Right not immediately exercisable in  full, or any Restricted Stock as to which the substantial risk of forfeiture or the prohibition or  restriction on transfer has not lapsed, or any Restricted Stock Units as to which the Restriction  Period  has  not  been  completed,  or  any  Cash  Incentive  Awards,  Performance  Shares  or  Performance  Units  which  have  not  been  fully  earned,  or  any  dividend  equivalents  or  other  awards  made  pursuant  to Section  9 of  this  Plan  subject  to  any  vesting  schedule  or  transfer  restriction,  or  who  holds  shares  of  Common  Stock  subject  to  any  transfer  restriction  imposed  pursuant  to Section  15(b) of this  Plan, the Committee may, in  its  sole discretion, provide  for  continued vesting or accelerate the time at which such Option Right, Appreciation Right or other  award may be exercised or the time at which such substantial risk of forfeiture or prohibition or  restriction on transfer will lapse or the time when such Restriction Period will end or the time at  which such Cash Incentive Awards, Performance Shares or Performance Units will be deemed to  have been fully earned or the time when such transfer restriction will terminate or may waive any  other limitation or requirement under any such award.               (d)   Subject to Section 18(b) of this Plan, the Committee may amend the terms  of  any  award  theretofore  granted  under  this  Plan  prospectively  or  retroactively.   Except  for  adjustments made pursuant to Section 11 of this Plan, no such amendment will impair the rights  of any Participant without his or her consent.  The Board may, in its discretion, terminate this  Plan  at  any  time.   Termination  of  this  Plan  will  not  affect  the  rights  of  Participants  or  their  successors  under  any  awards  outstanding  hereunder  and  not  exercised  in  full  on  the  date  of  termination.         19.   Governing  Law.  This  Plan  and  all  grants  and  awards  and  actions  taken  hereunder will be governed by and construed in accordance with the internal substantive laws of  the State of Florida.         20.   Effective Date/Termination.  This Plan will be effective as of the Effective Date.   No grants will be made on or after the Effective Date under the Predecessor Plans, provided that    NAI-1506730676v2                      17                                        





 






outstanding awards granted under the Predecessor Plans will continue unaffected following the  Effective Date.  No grant will be made under this Plan on or after the tenth anniversary of the  Effective Date, but all grants made prior to such date will continue in effect thereafter subject to  the terms thereof and of this Plan.  For clarification purposes, the terms and conditions of this  Plan shall not apply to or otherwise impact previously granted and outstanding awards under the  Predecessor Plans, as applicable.         21.   Miscellaneous Provisions.               (a)   The  Company  will  not  be  required  to  issue  any  fractional  shares  of  Common  Stock  pursuant  to  this  Plan.   The  Committee  may  provide  for  the  elimination  of  fractions or for the settlement of fractions in cash.               (b)   This  Plan will not  confer upon any Participant any right  with  respect  to  continuance  of  employment  or  other  service  with  the  Company  or  any  Subsidiary,  nor  will  it  interfere  in  any  way  with  any  right  the  Company  or  any  Subsidiary  would  otherwise  have  to  terminate such Participant’s employment or other service at any time.               (c)   Except  with  respect  to Section  21(e) of this  Plan, to  the extent that any  provision  of  this  Plan  would  prevent  any  Option  Right  that  was  intended  to  qualify  as  an  Incentive Stock Option from qualifying as such, that provision will be null and void with respect  to such Option Right.  Such provision, however, will remain in effect for other Option Rights  and there will be no further effect on any provision of this Plan.               (d)   No award under this Plan may be exercised by the holder thereof if such  exercise, and the receipt of cash or stock thereunder, would be, in the opinion of counsel selected  by  the  Company,  contrary  to  law  or  the  regulations  of  any  duly  constituted  authority  having  jurisdiction over this Plan.               (e)   Absence on leave approved by a duly constituted officer of the Company  or  any  of  its  Subsidiaries  will  not  be  considered  interruption  or  termination  of  service  of  any  employee for any purposes of this Plan or awards granted hereunder.               (f)   No Participant will have any rights as a Stockholder with respect to any  shares of Common Stock subject to awards granted to him or her under this Plan prior to the date  as of which he or she is actually recorded as the holder of such shares of Common Stock upon  the stock records of the Company.               (g)   The Committee may condition the grant of any award or combination of  awards authorized under this Plan on the surrender or deferral by the Participant of his or her  right  to  receive  a  cash  bonus  or  other  compensation  otherwise  payable  by  the  Company  or  a  Subsidiary to the Participant.               (h)   Except  with  respect  to  Option  Rights  and  Appreciation  Rights,  the  Committee may permit  Participants to elect to defer the issuance of shares of Common Stock  under this Plan pursuant to such rules, procedures or programs as it may establish for purposes of  this Plan and which are intended to comply with the requirements of Section 409A of the Code.     NAI-1506730676v2                      18                                        





 






The Committee also may provide that deferred issuances and settlements include the crediting of  dividend equivalents or interest on the deferral amounts.               (i)   If any provision of this Plan is or becomes invalid or unenforceable in any  jurisdiction, or would disqualify this Plan or any award under any law deemed applicable by the  Committee, such provision will be construed or deemed amended or limited in scope to conform  to applicable laws or, in the discretion of the Committee, it will be stricken and the remainder of  this  Plan  will  remain  in  full  force  and  effect.   Notwithstanding  anything  in  this  Plan  or  an  Evidence of Award to the contrary, nothing in this Plan or in an Evidence of Award prevents a  Participant from providing, without prior notice to the Company, information to governmental  authorities  regarding  possible  legal  violations  or  otherwise  testifying  or  participating  in  any  investigation or proceeding by any governmental authorities regarding possible legal violations,  and for purpose of clarity a Participant is not prohibited from providing information voluntarily  to the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act.               (j)   An  award  granted  under  this  Plan  may  include  a  provision  whereby  the  Company may elect to repurchase all or any part of the shares of Common Stock acquired by a  Participant.  The terms of any repurchase option shall be specified in the Evidence of Award.                 (k)   An award granted under this Plan may also include a provision whereby  the  Company  may  elect  to  exercise  a  right  of  first  refusal  following  receipt  of  notice  from  a  Participant of the intent to transfer all or any part of the shares of Common Stock received under  an award.  Except  as  expressly provided in  this paragraph or in  the Evidence of Award, such  right of first refusal shall otherwise comply with any applicable provisions of the bylaws of the  Company.  The Board reserves the right to assign the Company’s right of first refusal.                (l)   Unless otherwise determined by the Board, during any period in which the  Company does not have a class of its securities registered under Section 12 of the Exchange Act  and is not required to file reports under Section 15(d) of the Exchange Act, this Plan is intended  to be a written compensatory benefit plan within the meaning of Rule 701 promulgated under the  Securities Act of 1933, as amended, although grants may be made pursuant to this Plan that do  not qualify for exemption under Rule 701.  An award will not be effective unless such award is  in compliance with all applicable federal and state securities laws, rules and regulations of any  governmental body, and the requirements of any stock exchange or automated quotation system  upon which the shares of Common Stock may then be listed or quoted, as they are in effect on  the  date  of  grant  of  the  award  and  also  on  the  date  of  exercise  or  other  issuance.   Notwithstanding any other provision in this Plan, the Company will have no obligation to issue  or  deliver  certificates  for  shares  of  Common  Stock  under  this  Plan  prior  to  (i)  obtaining  any  approvals from governmental agencies that the Company determines are necessary or advisable,  and/or (ii) compliance with any exemption, completion of any registration or other qualification  of  such  shares  of  Common  Stock  under  any  foreign,  state  or  federal  law  or  ruling  of  any  governmental body that the Company determines to be necessary or advisable.  The inability of  the  Company  to  obtain  from  any  regulatory  body  having  jurisdiction  the  authority,  if  any,  deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any  shares hereunder shall relieve the Company of any liability in respect of the failure to issue or  sell such shares as to which such requisite authority shall not have been obtained.  The Company  will  be  under  no  obligation  to  register  the  shares  of  Common  Stock  with  the  Securities  and    NAI-1506730676v2                      19                                        





 






Exchange Commission or to effect compliance with the exemption, registration, qualification or  listing requirements of any state securities laws, stock exchange or automated quotation system,  and the Company will have no liability for any inability or failure to do so.         22.   Stock-Based  Awards  in  Substitution  for  Awards  Granted  by  Another  Company.  Notwithstanding anything in this Plan to the contrary:               (a)   Awards may be granted under this Plan in substitution for or in conversion  of, or in  connection with  an assumption of, stock options,  stock appreciation rights,  restricted  stock, restricted stock units or other stock or stock-based awards held by awardees of an entity  engaging in a corporate acquisition or merger transaction with the Company or any Subsidiary.   Any  conversion,  substitution  or  assumption  will  be  effective  as  of  the  close  of  the  merger  or  acquisition,  and,  to  the  extent  applicable,  will  be  conducted  in  a  manner  that  complies  with  Section 409A of the Code.  The awards so granted may reflect the original terms of the awards  being assumed or substituted or converted for and need not comply with other specific terms of  this Plan, and may account for shares of Common Stock substituted for the securities covered by  the  original  awards  and  the  number  of  shares  subject  to  the  original  awards,  as  well  as  any  exercise or purchase prices applicable to the original awards, adjusted to account for differences  in stock prices in connection with the transaction.               (b)   In the event that a company acquired by the Company or any Subsidiary  or with which the Company or any Subsidiary merges has shares available under a pre-existing  plan previously approved by stockholders and not adopted in contemplation of such acquisition  or merger, the shares available for grant pursuant to the terms of such plan (as adjusted, to the  extent appropriate, to reflect such acquisition or merger) may be used for awards made after such  acquisition  or  merger  under  this  Plan; provided, however,  that  awards  using  such  available  shares may not be made after the date awards or grants could have been made under the terms of  the pre-existing plan absent the acquisition or merger, and may only be made to individuals who  were not employees or directors of the Company or any Subsidiary prior to such acquisition or  merger.               (c)   Any shares of Common Stock that are issued or transferred by, or that are  subject  to  any  awards  that  are  granted  by,  or  become  obligations  of,  the  Company  under  Sections 22(a) or 22(b) of this Plan will not reduce the shares of Common Stock available for  issuance or transfer under this Plan or otherwise count against the limits contained in Section 3  of this Plan.  In addition, no shares of Common Stock subject to an award that is granted by, or  becomes an obligation of, the Company under Sections 22(a) or 22(b) of this Plan will be added  to the aggregate limit contained in Section 3(a)(i) of this Plan.         23.   Lock-Up  Agreement.   It  shall  be  a condition  to  a  Participant’s  receipt  of  any  award under this Plan that: (a) the Participant agree (and the Participant will be deemed by his or  her acceptance of such award to have agreed) that, in the event of the Company’s initial public  offering of shares of Common Stock or any subsequent offering of securities of the Company (an  “Offering”),  if  requested  by  the  Company,  the  Board  and/or  any  underwriters  managing  the  Offering, the Participant will not, and the Participant will enter into a lock-up agreement in the  form prepared by the Company and/or the underwriters pursuant to which the Participant will not,  (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any    NAI-1506730676v2                      20                                        





 






option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or  dispose of, directly or indirectly, any shares of Common Stock or any securities of the Company  convertible into or exercisable or exchangeable for shares of Common Stock (and excluding any  shares  of Common Stock subsequently purchased by the Participant on the open market  or in  such offering), or (ii) enter into any swap or other arrangement that transfers to another, in whole  or in part, any of the economic consequences of ownership of such shares of Common Stock,  whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of  shares of Common Stock or other securities, in cash or otherwise, without the prior consent of  the  Company  or  the  underwriter,  provided  that such  lock-up  time  period  will  not  exceed  180  days from the effective date of such initial public offering, or, in the case of subsequent offerings  of  securities,  90  days  from  the  effective  date  of  such  subsequent  offering  and  any  extension  required by rules and regulations applicable to the underwriters; and (b) the Participant will agree  (and the Participant will be deemed by his or her acceptance of such award to have agreed), in  the event of an Offering, to waive any registration rights he or she may have with respect to any  Offering of shares of Common Stock, whether  pursuant  to  any stockholders  agreement  of the  Company or otherwise.                   NAI-1506730676v2                      21