Exhibit 10.7


 


INFRASOURCE SERVICES, INC.


 


2004 OMNIBUS STOCK INCENTIVE PLAN


 


Section 1. General Purpose of Plan;
Definitions.


 


The name of this plan is the InfraSource
Services, Inc. 2004 Omnibus Stock Incentive Plan (the “Plan”). The Plan
was adopted by the Board (defined below) on April 29, 2004, subject to the
approval of the stockholders of the Company (defined below). The purpose of the
Plan is to enable the Company to attract and retain highly qualified personnel
who will contribute to the Company’s success and to provide incentives to
Participants (defined below) that are linked directly to increases in
stockholder value and will therefore inure to the benefit of all stockholders
of the Company.


 


For purposes of the Plan, the following terms
shall be defined as set forth below:


 


(a)           “Administrator” means the Board, or if and
to the extent the Board does not administer the Plan, the Committee in
accordance with Section 2 below.


 


(b)           “Board” means the Board of Directors of the Company.


 


(c)           “Code” means the Internal Revenue Code of 1986, as amended
from time to time, or any successor thereto.


 


(d)           “Committee” means any committee the Board may appoint to
administer the Plan. To the extent necessary and desirable, the Committee shall
be composed entirely of individuals who meet the qualifications referred to in
Section 162(m) of the Code and Rule 16b-3 under the Exchange Act. If
at any time or to any extent the Board shall not administer the Plan, then the
functions of the Board specified in the Plan shall be exercised by the
Committee.


 


(e)           “Company” means InfraSource Services, Inc., a Delaware
corporation (or any successor corporation).


 


(f)            “Deferred Stock”
means the right to receive Stock at the end of a specified deferral period
granted pursuant to Section 7 below.


 


(g)           “Disability” means with respect to any
Participant, Disability as defined in the Management Agreement between the
Company (or its Subsidiary) and such Participant, or in the absence of any such
Management Agreement defining Disability, the inability of a Participant to
perform substantially his or her duties and responsibilities to the Company or
to any Parent or Subsidiary by reason of a physical or mental disability or
infirmity (i) for a continuous period of six months, or (ii) at such
earlier time as the Participant submits medical evidence satisfactory to the
Administrator that the Participant has a physical or mental disability or
infirmity that will likely prevent the


 

















 


Participant from returning to the performance of the Participant’s work
duties for six months or longer. The date of such Disability shall be the last
day of such six-month period or the day on which the Participant submits such
satisfactory medical evidence, as the case may be.


 


(h)           “Eligible Recipient” means an officer,
director, employee, consultant or advisor of the Company or of any Parent or
Subsidiary.


 


(i)            “Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time.


 


(j)            “Fair Market Value” means, as of any given
date, with respect to any awards granted hereunder, (A) the closing sale
price of a share of Stock on such date on the principal securities exchange on
which the Company’s equity securities are listed or traded, (B) the fair
market value of a share of Stock as determined in accordance with a method
prescribed in the agreement evidencing any award hereunder, or (C) the
fair market value of a share of Stock as otherwise determined by the
Administrator in the good faith exercise of its discretion.


 


(k)           “Incentive Stock Option”
means any Stock Option intended to be designated as an “incentive stock option”
within the meaning of Section 422 of the Code.


 


(l)            “Non-Qualified Stock Option” means any
Stock Option that is not an Incentive Stock Option, including any Stock Option
that provides (as of the time such Stock Option is granted) that it will not be
treated as an Incentive Stock Option.


 


(m)          “Parent” means any corporation (other than
the Company) in an unbroken chain of corporations ending with the Company, if
each of the corporations in the chain (other than the Company) owns stock
possessing 50% or more of the combined voting power of all classes of stock in
one of the other corporations in the chain.


 


(n)           “Participant” means any Eligible Recipient selected by
the Administrator, pursuant to the Administrator’s authority in
Section 2 below, to receive grants of Stock Options, Stock Appreciation
Rights, awards of Restricted Stock, Deferred Stock, or Performance Shares or
any combination of the foregoing.


 


(o)           “Performance Shares” means shares of Stock
that are subject to restrictions based upon the attainment of specified
performance objectives granted pursuant to Section 7 below.


 


(p)           “Registration Statement” means the
registration statement on Form S-1 filed with the Securities and Exchange
Commission for the initial underwritten public offering of the Company’s Stock.


 


(q)           “Restricted Stock” means shares of Stock
subject to certain restrictions granted pursuant to Section 7 below.


 


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(r)            “Stock” means the common stock, par value $0.001 per share,
of the Company.


 


(s)           “Stock Appreciation Right” means the right
pursuant to an award granted under Section 6 below to receive an amount
equal to the excess, if any, of (A) the Fair Market Value, as of the date
such Stock Appreciation Right or portion thereof is surrendered, of the shares
of Stock covered by such right or such portion thereof, over (B) the
aggregate exercise price of such right or such portion thereof.


 


(t)            “Stock Option”
means an option to purchase shares of Stock granted pursuant to Section 5
below.


 


(u)           “Subsidiary” means any corporation (other
than the Company) in an unbroken chain of corporations beginning with the
Company, if each of the corporations (other than the last corporation) in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.


 


Section 2. Administration.


 


The Plan shall be administered in accordance
with the requirements of Section 162(m) of the Code (but only to the
extent necessary and desirable to maintain qualification of awards under the
Plan under Section 162(m) of the Code) and, to the extent applicable,
Rule 16b-3 under the Exchange Act (“Rule 16b-3”), by the Board or, at
the Board’s sole discretion, by the Committee, which shall be appointed by the
Board, and which shall serve at the pleasure of the Board.


 


Pursuant to the terms of the Plan, the
Administrator shall have the power and authority to grant to Eligible
Recipients pursuant to the terms of the Plan: (a) Stock Options,
(b) Stock Appreciation Rights, (c) awards of Restricted Stock,
Deferred Stock or Performance Shares or (d) any combination of the
foregoing. The Administrator shall have the authority:


 


(a)           to
select those Eligible Recipients who shall be Participants;


 


(b)           to
determine whether and to what extent Stock Options, Stock Appreciation Rights,
awards of Restricted Stock, Deferred Stock or Performance Shares or a
combination of any of the foregoing, are to be granted hereunder to
Participants;


 


(c)           to
determine the number of shares of Stock to be covered by each award granted
hereunder;


 


(d)           to
determine the terms and conditions, not inconsistent with the terms of the
Plan, of each award granted hereunder (including, but not limited to,
(x) the restrictions applicable to awards of Restricted Stock or Deferred
Stock and the conditions under which restrictions applicable to such awards of
Restricted Stock or Deferred Stock shall lapse, and (y) the performance
goals and periods applicable to awards of Performance Shares);


 


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(e)           to
determine the terms and conditions, not inconsistent with the terms of the
Plan, which shall govern all written instruments evidencing Stock Options,
Stock Appreciation Rights, awards of Restricted Stock, Deferred Stock or
Performance Shares or any combination of the foregoing granted hereunder; and


 


(f)            to
reduce the option price of any Stock Option to the then current Fair Market
Value if the Fair Market Value of the Stock covered by such Stock Option has
declined since the date such Stock Option was granted.


 


The Administrator shall have the authority,
in its sole discretion, to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall from time to time deem
advisable; to interpret the terms and provisions of the Plan and any award
issued under the Plan (and any agreements relating thereto); and to otherwise
supervise the administration of the Plan.


 


All decisions made by the Administrator
pursuant to the provisions of the Plan shall be final, conclusive and binding
on all persons, including the Company and the Participants.


 


Section 3. Stock Subject to Plan.


 


The total number of shares of Stock reserved
and available for issuance under the Plan shall be 800,000 shares; provided,
however, that commencing on the first day of the Company’s fiscal year
beginning in calendar year 2005, the number of shares reserved and available
for issuance shall be increased annually by an amount equal to the lesser of
(i) 1,000,000 shares or (ii) two percent (2%) of the number of
outstanding shares of Common Stock on the last day of the immediately preceding
fiscal year.  Such shares may consist, in
whole or in part, of authorized and unissued shares or treasury shares.  The aggregate number of shares of Stock as to
which Stock Options, Stock Appreciation Rights, and awards of Restricted Stock,
Deferred Stock and Performance Shares may be granted to any Participant during
any calendar year may not, subject to adjustment as provided in this
Section 3, exceed 800,000 shares of Stock reserved for the purposes of the
Plan.


 


To the extent that (i) a Stock Option
expires or is otherwise terminated without being exercised, or (ii) any
shares of Stock subject to any award of Restricted Stock, Deferred Stock or
Performance Shares granted hereunder are forfeited, such shares of Stock shall
again be available for issuance in connection with future awards granted under
the Plan. If any shares of Stock have been pledged as collateral for
indebtedness incurred by a Participant in connection with the exercise of a
Stock Option and such shares of Stock are returned to the Company in
satisfaction of such indebtedness, such shares of Stock shall again be
available for issuance in connection with future awards granted under the Plan.


 


In the event of any merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure affecting the Stock, an equitable substitution or proportionate
adjustment shall be made in (i) the aggregate number of shares of Stock
reserved for issuance under the Plan and the maximum number of shares of Stock
that may be granted to any Participant in any calendar year, (ii) the
kind, number and option price of shares of Stock subject to outstanding Stock
Options and Stock Appreciation Rights granted under the Plan, and


 


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(iii) the
kind, number and purchase price of shares of Stock subject to outstanding
awards of Restricted Stock, Deferred Stock and Performance Shares granted under
the Plan, in each case as may be determined by the Administrator, in its sole
discretion. Such other substitutions or adjustments shall be made as may be
determined by the Administrator, in its sole discretion. An adjusted option
price shall also be used to determine the amount payable by the Company upon
the exercise of any Stock Appreciation Right related to any Stock Option. In
connection with any event described in this paragraph, the Administrator may
provide, in its sole discretion, for the cancellation of any outstanding awards
and payment in cash or other property therefor.


 


Section 4. Eligibility.


 


Eligible Recipients shall be eligible to be
granted Stock Options, Stock Appreciation Rights, awards of Restricted Stock,
Deferred Stock or Performance Shares or any combination of the foregoing
hereunder. The Participants under the Plan shall be selected from time to time
by the Administrator, in its sole discretion, from among the Eligible
Recipients, and the Administrator shall determine, in its sole discretion, the
number of shares of Stock covered by each such award.


 


Section 5. Stock Options.


 


Stock Options may be granted alone or in
addition to other awards granted under the Plan. Any Stock Option granted under
the Plan shall be in such form as the Administrator may from time to time
approve, and the provisions of Stock Option awards need not be the same with
respect to each Participant. Participants who are granted Stock Options shall
enter into a subscription and/or award agreement with the Company, in such form
as the Administrator shall determine, which agreement shall set forth, among
other things, the option price of the Stock Option, the term of the Stock
Option and provisions regarding exercisability of the Stock Option granted
thereunder.


 


The Stock Options granted under the Plan may
be of two types: (i) Incentive Stock Options and (ii) Non-Qualified
Stock Options.


 


The Administrator shall have the authority to
grant to any officer or employee of the Company or of any Parent or Subsidiary
(including directors who are also officers of the Company) Incentive Stock
Options, Non-Qualified Stock Options, or both types of Stock Options (in each
case with or without Stock Appreciation Rights). Directors who are not also
officers of the Company or of any Parent or Subsidiary, consultants or advisors
to the Company or to any Parent or Subsidiary may only be granted Non-Qualified
Stock Options (with or without Stock Appreciation Rights). To the extent that
any Stock Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Non-Qualified Stock Option. More than one Stock Option
may be granted to the same Participant and be outstanding concurrently
hereunder.


 


Stock Options granted under the Plan shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the
Administrator shall deem desirable:


 


(a)           Option Price.    The option price per
share of Stock purchasable under a Stock Option shall be determined by the
Administrator in its sole discretion at the time of


 


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grant but shall not, (i) in the case of Incentive Stock Options,
be less than 100% of the Fair Market Value of the Stock on such date,
(ii) in the case of Non-Qualified Stock Options intended to qualify as “performance-based
compensation” within the meaning of Section 162(m) of the Code, be less
than 100% of the Fair Market Value of the Stock on such date and (iii) in
any event, be less than the par value (if any) of the Stock. If a Participant
owns or is deemed to own (by reason of the attribution rules applicable under
Section 424(d) of the Code) more than 10% of the combined voting power of
all classes of stock of the Company or of any Parent or Subsidiary and an
Incentive Stock Option is granted to such Participant, the option price of such
Incentive Stock Option (to the extent required at the time of grant by the Code
shall be no less than 110% of the Fair Market Value of the Stock on the date
such Incentive Stock Option is granted.


 


(b)           Option Term.    The
term of each Stock Option shall be fixed by the Administrator, but no Stock
Option shall be exercisable more than ten years after the date such Stock
Option is granted; provided, however,
that if an employee owns or is deemed to own (by reason of the attribution
rules of Section 424(d) of the Code) more than 10% of the combined voting
power of all classes of stock of the Company or of any Parent or Subsidiary and
an Incentive Stock Option is granted to such employee, the term of such
Incentive Stock Option (to the extent required by the Code at the time of
grant) shall be no more than five years from the date of grant.


 


(c)           Exercisability.    Stock
Options shall be exercisable at such time or times and subject to such terms
and conditions as shall be determined by the Administrator at or after the time
of grant. The Administrator may provide at the time of grant, in its sole
discretion, that any Stock Option shall be exercisable only in installments,
and the Administrator may waive such installment exercise provisions at any
time, in whole or in part, based on such factors as the Administrator may
determine, in its sole discretion, including but not limited to in connection
with any “change in control” of the Company (as defined in the agreement
evidencing such Stock Option).


 


(d)           Method of Exercise.    Subject
to paragraph (c) of this Section 5, Stock Options may be exercised in
whole or in part at any time during the option period, by giving written notice
of exercise to the Company specifying the number of shares of Stock to be
purchased, accompanied by payment in full of the purchase price in cash or its
equivalent, as determined by the Administrator. As determined by the
Administrator, in its sole discretion, payment in whole or in part may also be
made (i) by means of any cashless exercise procedure approved by the
Administrator, (ii) in the form of unrestricted Stock already owned by the
Participant which, (x) in the case of unrestricted Stock acquired upon
exercise of an option, have been owned by the Participant for more than six
months on the date of surrender, and (y) has a Fair Market Value on the
date of surrender equal to the aggregate option price of the Stock as to which
such Stock Option shall be exercised and the minimum statutory withholding
taxes with respect thereto, (iii) any other form of consideration approved
by the Administrator and permitted by applicable law or (iv) any
combination of the foregoing. A Participant shall generally have the rights to
dividends and any other rights of a stockholder with respect to the Stock subject
to the Stock Option only after the Participant has given written notice of


 


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exercise, has paid in full for such shares, and, if requested, has
given the representation described in paragraph (b) of Section 10
below.


 


Notwithstanding anything to the contrary
contained herein, a Stock Option may not be exercised for a fraction of a share
of Stock.


 


The Administrator may require the surrender
of all or a portion of any Stock Option granted under the Plan as a condition
precedent to the grant of a new Stock Option. Subject to the provisions of the
Plan, such new Stock Option shall be exercisable at the price, during such
period and on such other terms and conditions as are specified by the
Administrator at the time the new Stock Option is granted. Consistent with the
provisions of Section 162(m), to the extent applicable, upon their
surrender, Stock Options shall be canceled and the shares of Stock previously
subject to such canceled Stock Options shall again be available for future
grants of Stock Options and other awards hereunder.


 


(e)           Non-Transferability of Options.    Except
under the laws of descent and distribution or as otherwise permitted by the
Administrator, the Participant shall not be permitted to sell, transfer, pledge
or assign any Option, and all Options shall be exercisable, during the
Participant’s lifetime, only by the Participant; provided, however, that the
Participant shall be permitted to transfer one or more Non-Qualified Stock
Options to a trust, partnership, limited liability company or corporation (or
other entity approved by the Administrator in its sole discretion) controlled
by the Participant during the Participant’s lifetime for estate planning
purposes.


 


(f)            Termination of Employment or Service.    If
a Participant’s employment with or service as a director, consultant or advisor
to the Company or to any Parent or Subsidiary terminates by reason of his or
her death, Disability or for any other reason, the Stock Option may thereafter
be exercised to the extent provided in the agreement evidencing such Stock
Option, or as otherwise determined by the Administrator.


 


(g)           Annual Limit on
Incentive Stock Options.    To the extent that
the aggregate Fair Market Value (determined as of the date the Incentive Stock
Option is granted) of shares of Stock with respect to which Incentive Stock
Options granted to a Participant under this Plan and all other option plans of the Company or of
any Parent or Subsidiary become exercisable for the first time by the
Participant during any calendar year exceeds $100,000 (as determined in
accordance with Section 422(d) of the Code), the portion of such Incentive
Stock Options in excess of $100,000 shall be treated as Non-Qualified Stock
Options.


 


Section 6. Stock Appreciation Rights.


 


Stock Appreciation Rights may be granted
either alone (“Free Standing Rights”) or in conjunction with all or part of any
Stock Option granted under the Plan (“Related Rights”). In the case of a
Non-Qualified Stock Option, Related Rights may be granted either at or after
the time of the grant of such Stock Option. In the case of an Incentive Stock
Option, Related Rights may be granted only at the time of the grant of the
Incentive Stock Option. The Administrator shall determine the Eligible
Recipients to whom, and the time or times at which, grants of Stock


 


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Appreciation
Rights shall be made; the number of shares of Stock to be awarded, the exercise
price, and all other conditions of Stock Appreciation Rights. The provisions of
Stock Appreciation Rights need not be the same with respect to each
Participant.


 


Stock Appreciation Rights granted under the
Plan shall be subject to the following terms and conditions and shall contain
such additional terms and conditions, not inconsistent with the terms of the
Plan, as the Administrator shall deem desirable:


 


(a)           Awards.    The
prospective recipient of a Stock Appreciation Right shall not have any rights
with respect to such award, unless and until such recipient has executed an
agreement evidencing the award (a “Stock Appreciation Right Agreement”) and
delivered a fully executed copy thereof to the Company, within a period of
sixty days (or such other period as the Administrator may specify) after the
award date. Participants who are granted Stock Appreciation Rights shall have
no rights as stockholders of the Company with respect to the grant or exercise
of such rights.


 


(b)           Exercisability.


 


(i)            Stock
Appreciation Rights that are Free Standing Rights (“Free Standing Stock
Appreciation Rights”) shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the Administrator at or
after grant; provided, however,
that no Free Standing Stock Appreciation Right shall be exercisable during the
first six months of its term, except that this additional limitation shall not
apply in the event of a Participant’s death or Disability prior to the
expiration of such six-month period.


 


(ii)           Stock
Appreciation Rights that are Related Rights (“Related Stock Appreciation Rights”)
shall be exercisable only at such time or times and to the extent that the
Stock Options to which they relate shall be exercisable in accordance with the
provisions of Section 5 above and this Section 6 of the Plan; provided, however, that a Related Stock
Appreciation Right granted in connection with an Incentive Stock Option shall
be exercisable only if and when the Fair Market Value of the Stock subject to
the Incentive Stock Option exceeds the option price of such Stock Option; provided, further, that no Related Stock
Appreciation Right shall be exercisable during the first six months of its
term, except that this additional limitation shall not apply in the event of a
Participant’s death or Disability prior to the expiration of such six-month
period.


 


(c)           Payment Upon Exercise.


 


(i)            Upon
the exercise of a Free Standing Stock Appreciation Right, the Participant shall
be entitled to receive up to, but not more than, an amount in cash or that
number of shares of Stock (or any combination of cash and shares of Stock)
equal in value to the excess of the Fair Market Value of one share of Stock as
of the date of exercise over the price per share specified in the Free Standing
Stock Appreciation Right (which price shall be no less than 100% of the Fair
Market Value of the Stock on the date of grant) multiplied by the number of


 


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shares of Stock in respect of which the Free Standing Stock Appreciation
Right is being exercised, with the Administrator having the right to determine
the form of payment.


 


(ii)           A
Related Right may be exercised by a Participant by surrendering the applicable
portion of the related Stock Option. Upon such exercise and surrender, the
Participant shall be entitled to receive up to, but not more than, an amount in
cash or that number of shares of Stock (or any combination of cash and shares
of Stock) equal in value to the excess of the Fair Market Value of one share of
Stock as of the date of exercise over the option price per share specified in
the related Stock Option multiplied by the number of shares of Stock in respect
of which the Related Stock Appreciation Right is being exercised, with the
Administrator having the right to determine the form of payment. Stock Options
which have been so surrendered, in whole or in part, shall no longer be
exercisable to the extent the Related Rights have been so exercised.


 


(d)           Non-Transferability.


 


(i)            Free
Standing Stock Appreciation Rights shall be transferable only when and to the
extent that a Stock Option would be transferable under Section 5 of the
Plan.


 


(ii)           Related
Stock Appreciation Rights shall be transferable only when and to the extent
that the underlying Stock Option would be transferable under Section 5 of
the Plan.


 


(e)           Termination of Employment or Service.


 


(i)            In
the event of the termination of employment or service of a Participant who has
been granted one or more Free Standing Stock Appreciation Rights, such rights
shall be exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Administrator at or after grant.


 


(ii)           In
the event of the termination of employment or service of a Participant who has
been granted one or more Related Stock Appreciation Rights, such rights shall
be exercisable at such time or times and subject to such terms and conditions
as set forth in the related Stock Options.


 


(f)            Term.


 


(i)            The
term of each Free Standing Stock Appreciation Right shall be fixed by the
Administrator, but no Free Standing Stock Appreciation Right shall be
exercisable more than ten years after the date such right is granted.


 


(ii)           The
term of each Related Stock Appreciation Right shall be the term of the Stock
Option to which it relates, but no Related Stock Appreciation Right shall be
exercisable more than ten years after the date such right is granted.


 


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Section 7. Restricted Stock, Deferred Stock and Performance
Shares.


 


Awards of Restricted Stock, Deferred Stock or
Performance Shares may be issued either alone or in addition to other awards
granted under the Plan. The Administrator shall determine the Eligible
Recipients to whom, and the time or times at which, awards of Restricted Stock,
Deferred Stock or Performance Shares shall be made; the number of shares to be
awarded; the price, if any, to be paid by the Participant for the acquisition
of Restricted Stock, Deferred Stock or Performance Shares; the Restricted
Period (as defined in paragraph (b) of this Section 7) applicable to
awards of Restricted Stock or Deferred Stock; the performance objectives
applicable to awards of Deferred Stock or Performance Shares; and all other
conditions of the awards of Restricted Stock, Deferred Stock and Performance
Shares. Subject to the requirements of Section 162(m) of the Code, as
applicable, the Administrator may also condition the grant of the award of
Restricted Stock, Deferred Stock or Performance Shares upon the exercise of Stock
Options, or upon such other criteria as the Administrator may determine, in its
sole discretion. The provisions of the awards of Restricted Stock, Deferred
Stock or Performance Shares need not be the same with respect to each
Participant.


 


(a)           Awards and Certificates.    The
prospective recipient of awards of Restricted Stock, Deferred Stock or
Performance Shares shall not have any rights with respect to any such award,
unless and until such recipient has executed an agreement evidencing the award
(a “Restricted Stock Award Agreement,” “Deferred Stock Award Agreement” or “Performance
Shares Award Agreement,” as appropriate) and delivered a fully executed copy
thereof to the Company, within a period of sixty days (or such other period as
the Administrator may specify) after the award date. Except as otherwise
provided below in this Section 7(b), (i) each Participant who is
granted an award of Restricted Stock or Performance Shares shall be issued a
stock certificate in respect of such shares of Restricted Stock or Performance
Shares; and (ii) such certificate shall be registered in the name of the
Participant, and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to any such award.


 


The Company may require that the stock
certificates evidencing Restricted Stock or Performance Shares granted
hereunder be held in the custody of the Company until the restrictions thereon
shall have lapsed, and that, as a condition of any award of Restricted Stock or
Performance Shares, the Participant shall have delivered a stock power,
endorsed in blank, relating to the Stock covered by such award.


 


With respect to awards of Deferred Stock, at
the expiration of the Restricted Period, stock certificates in respect of such
shares of Deferred Stock shall be delivered to the Participant, or his legal
representative, in a number equal to the number of shares of Stock covered by
the Deferred Stock award.


 


(b)           Restrictions and Conditions.    The
awards of Restricted Stock, Deferred Stock and Performance
Shares granted pursuant to this Section 7 shall be subject to the
following restrictions and conditions:


 


(i)            Subject
to the provisions of the Plan and the Restricted Stock Award Agreement,
Deferred Stock Award Agreement or Performance Shares


 


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Award Agreement, as appropriate, governing any such award, during such
period as may be set by the Administrator commencing on the date of grant (the “Restricted
Period”), the Participant shall not be permitted to sell, transfer, pledge or
assign shares of Restricted Stock, Deferred Stock or Performance Shares awarded
under the Plan; provided, however,
that the Administrator may, in its sole discretion, provide for the lapse of
such restrictions in installments and may accelerate or waive such restrictions
in whole or in part based on such factors and such circumstances as the
Administrator may determine, in its sole discretion, including, but not limited
to, the attainment of certain performance related goals, the Participant’s
termination of employment or service as a director, consultant or advisor to
the Company or any Parent or Subsidiary, the Participant’s death or Disability
or the occurrence of a “change in control” as defined in the Restricted Stock
Award Agreement, Deferred Stock Award Agreement or Performance Shares Award
Agreement, as appropriate, evidencing such award.


 


(ii)           Except
as provided in paragraph (b)(i) of this Section 7, the
Participant shall generally have the rights of a stockholder of the Company
with respect to Restricted Stock or Performance Shares during the Restricted
Period. The Participant shall generally not have the rights of a stockholder
with respect to Stock subject to awards of Deferred Stock during the Restricted
Period; provided, however, that
dividends declared during the Restricted Period with respect to the number of
shares of Stock covered by Deferred Stock shall be paid to the Participant.
Certificates for shares of unrestricted Stock shall be delivered to the
Participant promptly after, and only after, the Restricted Period shall expire
without forfeiture in respect of such awards of Restricted Stock, Deferred
Stock or Performance Shares except as the Administrator, in its sole
discretion, shall otherwise determine.


 


(iii)          The
rights of Participants granted awards of Restricted Stock, Deferred Stock or
Performance Shares upon termination of employment or service as a director,
consultant or advisor to the Company or to any Parent or Subsidiary terminates
for any reason during the Restricted Period shall be set forth in the
Restricted Stock Award Agreement, Deferred Stock Award Agreement or Performance
Shares Award Agreement, as appropriate, governing such awards.


 


Section 8. Amendment and Termination.


 


The Board may amend, alter or discontinue the
Plan, but no amendment, alteration, or discontinuation shall be made that would
impair the rights of a Participant under any award theretofore granted without
such Participant’s consent, or that, without the approval of the stockholders
(as described below), would:


 


(a)           except
as provided in Section 3 of the Plan, increase the total number of shares
of Stock reserved for issuance under the Plan;


 


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(b)           change
the class of officers, directors, employees, consultants and advisors eligible
to participate in the Plan; or


 


(c)           extend
the maximum option period under paragraph (b) of Section 5 of the
Plan.


 


Notwithstanding the foregoing, stockholder
approval under this Section 8 shall only be required at such time and
under such circumstances as stockholder approval would be required under
Sections 162(m) and 422 of the Code, stock exchange rules or other applicable
law or regulation with respect to any material amendment to an employee benefit
plan of the Company.


 


The Administrator may amend the terms of any
award theretofore granted, prospectively or retroactively, but, subject to
Section 3 of Plan, no such amendment shall impair the rights of any
Participant without his or her consent.


 


Section 9. Unfunded Status of Plan.


 


The Plan is intended to constitute an “unfunded”
plan for incentive compensation. With respect to any payments not yet made to a
Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor of the
Company.


 


Section 10. General Provisions.


 


(a)           Shares
of Stock shall not be issued pursuant to the exercise of any award granted
hereunder unless the exercise of such award and the issuance and delivery of
such shares of Stock pursuant thereto shall comply with all relevant provisions
of law, including, without limitation, the Securities Act of 1933, as amended,
the Exchange Act and the requirements of any stock exchange upon which the
Stock may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.


 


(b)           The
Administrator may require each person acquiring shares of Stock hereunder to
represent to and agree with the Company in writing that such person is
acquiring the shares of Stock without a view to distribution thereof. The
certificates for such shares of Stock may include any legend which the
Administrator deems appropriate to reflect any restrictions on transfer.


 


All certificates for shares of Stock
delivered under the Plan shall be subject to such stop-transfer orders and
other restrictions as the Administrator may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange Commission,
any stock exchange upon which the Stock is then listed, and any applicable
Federal or state securities law, and the Administrator may cause a legend or
legends to be placed on any such certificates to make appropriate reference to
such restrictions.


 


(c)           Nothing
contained in the Plan shall prevent the Board from adopting other or additional
compensation arrangements, subject to stockholder approval, if such approval is
required; and such arrangements may be either generally applicable or


 


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applicable only in specific cases. The adoption of the Plan shall not
confer upon any Eligible Recipient any right to continued employment or service
with the Company or any Parent or Subsidiary, as the case may be, nor shall it
interfere in any way with the right of the Company or any Parent or Subsidiary
to terminate the employment or service of any of its Eligible Recipients at any
time.


 


(d)           Each
Participant shall, no later than the date as of which the value of an award first
becomes includible in the gross income of the Participant for Federal income
tax purposes, pay to the Company, or make arrangements satisfactory to the
Administrator regarding payment of, any Federal, state, or local taxes of any
kind required by law to be withheld with respect to such award. The obligations
of the Company under the Plan shall be conditional on the making of such
payments or arrangements, and the Company shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the Participant.


 


(e)           No
member of the Board or the Administrator, nor any officer or employee of the
Company acting on behalf of the Board or the Administrator, shall be personally
liable for any action, determination, or interpretation taken or made in good
faith with respect to the Plan, and all members of the Board or the
Administrator and each and any officer or employee of the Company acting on
their behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company in respect of any such action, determination or
interpretation.


 


Section 11. Stockholder Approval; Effective Date of Plan.


 


(a)           The
grant of any award hereunder shall be contingent upon stockholder approval of
the Plan being obtained within 12 months before or after the date the
Board adopts the Plan.


 


(b)           Subject
to the approval of the Plan by the stockholders of the Company within twelve
(12) months before or after the date the Plan is adopted by the Board, the
Plan shall be effective as of the date and time on which the Securities and
Exchange Commission declares the Company’s Registration Statement effective
(the “Effective Date”).


 


Section 12. Term of Plan.


 


No Stock Option, Stock Appreciation Right, or
awards of Restricted Stock, Deferred Stock or Performance Shares shall be
granted pursuant to the Plan on or after the tenth anniversary of the Effective
Date, but awards theretofore granted may extend beyond that date.


 


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