Amended and Restated DaVita, Inc. 2002 Equity Compensation Plan



 Exhibit 10.2 
  
 DaVita Inc. 
  
 2002 Equity Compensation Plan 
 (As
Amended and Restated Effective March 30, 2005) 
  
 1.
Purpose. The purpose of the DaVita Inc. 2002 Equity Compensation Plan (“Plan”) is to promote the interests of DaVita Inc. (“Company”) and its stockholders by enabling the Company to offer an opportunity to
acquire an equity interest in the Company so as to better attract, retain, and reward Employees, directors, and independent contractors and, accordingly, to strengthen the mutuality of interests between those persons and the Company’s
stockholders by providing those persons with a proprietary interest in pursuing the Company’s long-term growth and financial success. Awards under the Plan will be made in the form of the issuance of Options, Restricted Stock, Stock Issuances,
Stock Appreciation Rights, and Other Awards. 
  
 2.
Definitions. For purposes of this Plan, the following terms shall have the meanings set forth below. 
  
 (a) “Board” or “Board of Directors” means the Board of Directors of DaVita Inc. 
  
 (b) “Code” means the Internal Revenue Code of 1986. Reference to
any specific section of the Code shall also be deemed to be a reference to any successor provision. 
  
 (c) “Committee” means the administrative committee of this Plan that is provided for in Section 3 of this Plan. 
  
 (d) “Common Stock” means the common stock of DaVita Inc. or any
security issued in substitution, exchange, or in lieu thereof. 
  
 (e) “Company” means DaVita Inc., a Delaware corporation, or any successor corporation. Except where the context indicates otherwise, the term “Company” shall include its Parent and Subsidiaries, if any. 
  
 (f) “Disabled” means permanent and total disability, as defined in
Code Section 22(e)(3). 
  
 (g) “Effective Date” of this
Plan is April 11, 2002. 
  
 (h) “Employee” means a
worker whose earnings the Company reports on a Form W-2. 
  
 (i)
“Exchange Act” means the Securities Exchange Act of 1934. 
  









 (j) “Fair Market Value” of Common Stock for any day shall be the last reported sale price on
that day regular way, or if no such reported sale takes place on that day, the average of the last reported bid and ask prices on that day regular way, in either case on the principal national securities exchange on which the Common Stock is traded
or listed. 
  

	 	(i)	If the national securities exchange is closed on such date, the “Fair Market Value” shall be determined as of the last preceding day on which the Common Stock was traded
or for which bid and ask prices are available. 

  

	 	(ii)	In the case of an Incentive Stock Option, “Fair Market Value” shall be determined without reference to any restriction other than one that, by its terms, will never lapse.


  
 (k) “Grants” mean awards of Options,
Restricted Stock, Stock Issuances, Stock Appreciation Rights, and Other Awards. 
  
 (l) “Incentive Stock Option” means an option to purchase Common Stock that is intended to be an incentive stock option under Code Section 422. 
  
 (m) “Insider” means a person who is subject to Section 16 of the Exchange Act. 
  
 (n) “Non-Qualified Stock Option” means any option to purchase
Common Stock that is not an Incentive Stock Option. 
  
 (o)
“Option” means an Incentive Stock Option or a Non-Qualified Stock Option. 
  
 (p) “Other Awards” mean equity-based awards that are not Options, Restricted Stock, Stock Appreciation Rights, or Stock Issuances. However, in the event that the Other Award is the functional equivalent of
Restricted Stock or Stock Issuance, (i) the special share-counting rule contained in Section 5(a)(iv) and (ii) the minimum vesting period contained in Section 2(u) shall apply. 
  
 (q) “Parent” means any corporation (other than the Company) in an unbroken chain of corporations ending
with the Company if each of the corporations (other than the Company) owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in the chain, as determined in
accordance with the rules of Code Section 424(e). 
  
 (r)
“Participant” means a person who has received a Grant. 
  
 (s) “Plan” means this DaVita Inc. 2002 Equity Compensation Plan. 
  
 (t) “Predecessor Plans” mean the DaVita Inc. 1994 Equity Compensation Plan, 1995 Equity Compensation Plan, 1997 Equity Compensation Plan, and 1999 Equity Compensation Plan. 
  
 (u) “Restricted Stock” mean the shares of Common Stock that are
issued to a Participant, where the Participant does not immediately possess a vested right to those shares. In 

  









 
the case of a Grant to an Employee, the Participant may not become fully vested in the Restricted Stock in less than three (3) years from the date of the
Grant. Nevertheless, the terms of a Grant may provide for faster vesting in limited situations of retirement, death, disability, change in control, and/or grants to newly-hired Employees. Other than the right to sell or otherwise transfer the shares
and such other restrictions as may be contained in the Grant, the Participant shall be treated as the owner of the Restricted Stock (e.g., for voting purposes) from the date of the issuance of the shares. 
  
 (v) “Rule 16b-3” means Rule 16b-3 promulgated by the Securities and
Exchange Commission. 
  
 (w) “Section 162(m)” means Code
Section 162(m), which imposes a million dollar ($1,000,000) compensation deduction limitation on amounts paid to certain senior executives. 
  
 (x) “Service” means the performance of service, whether as an Employee or as an independent contractor (e.g., as a member of the Board ).

  

	 	(i)	Nevertheless, except to the extent otherwise expressly provided to the contrary in the terms of the Grant, service performed by the Participant shall only be taken into account to
the extent it is performed in the same capacity as on the date of the Grant (that is, as an Employee or as an independent contractor). In making the determination as to whether or not a Grant should provide for the continuation of Service after a
change in status, the Committee shall take into account the relevant possible tax and accounting consequences. 

  

	 	(ii)	The Committee shall prescribe such rules as it may deem necessary or appropriate regarding crediting of periods of Service while a Participant is on a leave of absence.


  
 (y) “Severance” means, with respect to
a Participant, the termination of the Participant’s Service, whether by reason of death, disability, or any other reason. 
  

	 	(i)	For purposes of determining the exercisability of an Incentive Stock Option, a Participant who is on a leave of absence that exceeds ninety (90) days will be considered to have
incurred a Severance on the ninety-first (91st) day of the leave of absence, unless the Participant’s rights to reemployment are guaranteed by statute or contract. 

  

	 	(ii)	A Participant will not be considered to have incurred a Severance because of a transfer between the Company, Subsidiary, or Parent. 

  

	 	(iii)	If a Participant switches from Employee to independent contractor status or vice versa, that will be treated as a Severance, except as otherwise expressly provided to the contrary
in the terms of the Grant. 

  

	 	(iv)	 If a Participant switches from Employee to independent contractor status, that will result in an Option losing its status as an Incentive Stock Option after ninety
(90) 



  










	 	 
days has elapsed since the switch. Thereafter, the Option (if it is exercisable at all) will be treated as a Non-Qualified Stock Option.



  
 (z) “Stock Appreciation Right”
means the right to receive a payment equal to the difference between the Fair Market Value of the Common Stock on the date of its issuance and the date on which the right is exercised. Stock Appreciation Rights may be settled in cash or Common
Stock. 
  
 (aa) “Stock Issuance” means the direct
issuance of fully vested shares to an Employee or an independent contractor (including a director) for compensation previously earned. The shares may be issued immediately or on a deferred basis. 
  
 (bb) “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 fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in the chain, as determined in accordance with the rules of Code Section 424(f). 
  
 (cc) “Substitute Grant” means an award issued to a person who had performed services for an entity that was acquired by the Company in
substitution of a grant previously awarded to that individual or entity by the acquired entity. 
  
 (dd) “Ten Percent Stockholder” means any person who owns (after taking into account the constructive ownership rules of Code Section 424(d))
more than ten percent (10%) of the combined voting power of all classes of stock of DaVita Inc. or of any of its Parents or Subsidiaries. 
  
 3. Administration. 
  
 (a) Except as provided below, this Plan shall be administered by the Compensation Committee of the Board. 
  
 (b) If the income recognized with respect to an Option is intended to be
exempt from Section 162(m), the Committee must be composed exclusively of “Outside Directors,” as that term is defined in Section 162(m). Similarly, if a Grant to an Insider is intended to be an exempt purchase under Section 16 of the
Exchange Act, then either (i) the Committee must be composed exclusively of “Non-Employee Directors,” as that term is defined in Rule 16b-3 or (ii) the grant must be made by the Board of Directors. 
  
 (c) The Committee is authorized to interpret this Plan and to adopt rules and
procedures relating to the administration of this Plan, including those relating to sub-plans established for the purpose of qualifying for preferred tax or other treatment under foreign laws. All actions of the Committee in connection with the
interpretation and administration of this Plan shall be binding upon all parties. No member of the Committee shall incur any liability for any actions taken or inactions done in good faith. 
  
 (d) Subject to the limitations of Sections 9 and 14 of this Plan, the
Committee is expressly authorized to make such modifications to this Plan and to Grants made under this Plan 

  









 
as are necessary to effectuate the intent of this Plan as a result of any changes in the tax, accounting, or securities laws treatment of Participants or of
the Plan. 
  
 (e) The Board of Directors may, by a resolution
adopted by the Board, delegate the power to issue Grants under the Plan, provided such delegation is consistent with applicable law and the requirements of any stock exchange on which the Common Stock is traded. 
 4. Duration of Plan. 
  
 (a) This Plan shall be effective as of the Effective Date. 
  
 (b) The Plan shall terminate on February 8, 2012, which is the tenth anniversary of the date on which the Board of Directors adopted the Plan. The
preceding sentence shall not apply if the Company’s stockholders reapprove the Plan prior to the termination date. The effect of obtaining such reapproval shall be to extend the term of the Plan for another ten (10) years from the date
on which such reapproval shall be obtained. 
  
 5. Number of
Shares. 
  
 (a) The following rules shall govern the size
of Grants under this Plan. 
  

	 	(i)	The base maximum number of shares of Common Stock which may be issued pursuant to this Plan is six million, eight hundred thirty-nine thousand (6,839,000) shares. In addition, two
million four hundred eleven thousand and forty (2,411,040) shares, representing the balance remaining in the Predecessor Plans at the Effective Date were transferred to this Plan. The total number of shares available under the Plan will also be
increased by the shares that subsequently become available under the Predecessor Plans as determined pursuant to this Plan. 

  

	 	(ii)	The maximum number of shares that may be subject to Grants awarded to a single Participant in any consecutive twenty-four (24) month period is two million two hundred fifty thousand
(2,250,000). For this purpose, (A) shares subject to a terminated or expired Option or Stock Appreciation Right, as well as Restricted Stock that has been forfeited shall be considered to remain outstanding and (B) the repricing of an Option or
Stock Appreciation Right shall be treated as the issuance of a new Option or Stock Appreciation Right. 

  

	 	(iii)	The maximum number of shares that may be issued pursuant to Incentive Stock Options during the lifetime of the Plan is seven million five hundred thousand (7,500,000) shares.


  

	 	(iv)	To the extent that a Grant is made in the form of Restricted Stock or Stock Issuance (or an Other Award that is the functional equivalent of Restricted Stock or Stock Issuance), the
remaining share reserve in the Plan shall be reduced by an amount equal to 2.75 times the number of shares subject to that Grant. 

  
 The preceding numbers shall be adjusted as set forth in Section 12 of this Plan. 
  









 (b) Shares shall again become available for use under the Plan upon (i) the expiration or termination
(for any reason) of an Option or Stock Appreciation Right which shall not have been exercised in full, and (ii) the forfeiture of shares of Common Stock subject to a Grant of Restricted Stock. 
  
 (c) The following rules apply for purposes of determining the number of
shares that remain available for issuance under the Plan, regardless of whether the underlying Grant was made under this Plan or a Predecessor Plan. 
  

	 	(i)	In the event a Participant pays part or all of the exercise price of an Option by surrendering shares of Common Stock that the Participant had previously acquired, only the number
of shares issuable to the Participant in excess of the number that was surrendered shall be taken into account for purposes of determining the maximum number of shares that may be issued under the Plan. 

  

	 	(ii)	Shares that are not issued to a Participant, but rather, are used to satisfy the income tax withholding obligations upon (A) the exercise of an Option or Stock Appreciation
Right (that is settled in stock), (B) the vesting of Restricted Stock, or (C) the grant of Stock Issuances are not taken into account for purposes of determining the maximum number of shares that may be issued under the Plan.


  

	 	(iii)	The following rules apply in determining whether there will be any reduction in the maximum number of shares that remain available for issuance under the Plan in the case of the
exercise of a Stock Appreciation Right: 

  

	 	(A)	If the Stock Appreciation Right is settled in cash, none of the shares that were subject to it shall reduce the total number of shares that remain available for issuance; and


  

	 	(B)	If it is settled in stock, only the number of shares actually issued pursuant to the Stock Appreciation Right are taken into account for purposes of determining the maximum number
of shares that remain available for issuance. 

  
 (d) To the extent permitted by applicable law and the rules of any stock exchange or quotation system on which the Company’s stock is traded or listed, the Corporation can replenish the number of shares available under the Plan through
repurchases of its existing shares, provided that the purchases are effected solely by the use of: 
  

	 	(i)	The cash proceeds received by the Company upon the exercise of Options issued under the Plan or a Predecessor Plan; and 

  

	 	(ii)	The actual tax savings achieved by the Company relating to the exercise of Options under the Plan and the Predecessor Plans; 

  
 provided that those exercises occur after the Effective Date. 
  









 (e) Rules similar to the preceding provisions of this Section 5 shall apply with respect to Other Awards.

  
 6. Eligibility. 
  
 (a) Persons eligible to receive Grants under this Plan shall consist of (i)
Employees, (ii) members of the Board of Directors, and (iii) other persons providing Services, other than persons only providing Services in connection with a capital raising transaction. However, Incentive Stock Options may only be awarded
to Employees. 
  
 (b) In the event that the Company acquires
another entity, the Committee may authorize the issuance of Substitute Grants upon such terms and conditions as the Committee shall determine, which may be different from the terms contained in this Plan, taking into account the limitations of Code
Section 424(a) in the case of a Substitute Grant that is intended to be an Incentive Stock Option. 
  
 (c) In the event that the Committee makes a Grant to a person who is not currently an Employee of or an independent contractor to the Company, such Grant
shall not become effective until such individual commences performing Services to the Company and it must satisfy the pricing limitations set forth in Section 7 of this Plan at that time. 
  
 (d) After taking into consideration the tax, securities, and accounting consequences of doing so, the Committee may issue
Non-Qualified Stock Options, Restricted Stock, Stock Issuances, Stock Appreciation Rights, and Other Awards to individuals who are performing Services (whether as Employees or as independent contractors) to entities that are related to or affiliated
with the Company but that do not qualify as Parents or Subsidiaries. The Committee shall prescribe such rules as it deems appropriate regarding the crediting of Service in these circumstances. 
  
 7. Form of Grants. Grants shall be awarded under this
Plan in such amounts, at such times, to such persons, on such terms and in such form as the Committee may approve, which shall not be inconsistent with the provisions of this Plan, but which need not be identical from Grant to Grant. 
  
 (a) The exercise price per share of Common Stock purchasable under an Option
shall be set forth in the Option, and shall not be less than the Fair Market Value of the Common Stock on the date of Grant. However, the exercise price of an Incentive Stock Option issued to a Ten Percent Stockholder shall be no less than one
hundred ten percent (110%) of the Fair Market Value of the Common Stock on the date of the Grant. Similarly, the base price of a Stock Appreciation Right shall not be less than the Fair Market Value of the Common Stock on the date of the Grant.
However, the preceding three sentences shall not apply in the case of Substitute Grants issued under this Plan. Similar pricing rules shall apply in the case of Other Awards. 
  
 (b) A Grant shall be exercisable at such time or times and be subject to such terms and conditions as may be set forth in
its provisions. However, no Grant shall be exercisable prior to the Effective Date. 
  









 (c) Except in the case of Substitute Grants, the aggregate Fair Market Value (determined as of the date
of Grant) of the number of shares of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by a Participant during any calendar year shall not exceed one hundred thousand dollars ($100,000). To the extent that
a Participant’s Options exceed that limit, they will be treated as Non-Qualified Stock Options, with the first Options that were awarded to the Participant to be treated as Incentive Stock Options. 
  
 (d) Except as provided in Section 10 or in the case of Substitute Grants, the
term of a Grant shall not exceed five (5) years from the date of its issuance. 
  
 8. Exercise of Grants. 
  
 (a) Grants that are settled in stock shall only be exercisable for whole numbers of shares. 
  
 (b) Options are exercised by payment of the full amount of the purchase price to the Company as follows: 
  

	 	(i)	The payment shall be in cash or such other form or forms of consideration as the Committee shall deem acceptable, such as the surrender (either actually or constructively by means
of attestation) of outstanding shares of Common Stock owned by the Participant for the minimum period of time necessary to avoid adverse accounting treatment (if applicable). 

  

	 	(ii)	After giving due consideration to the consequences under Rule 16b-3 and under the Code, the Committee may also authorize the exercise of Options by the delivery to the Company (or
its designated agent) of an executed written notice of exercise form together with irrevocable instructions to a broker-dealer to sell or margin a sufficient portion of the shares of Common Stock and to deliver the sale or margin loan proceeds
directly to the Company to pay all or a portion of the exercise price of the Option and/or any tax withholding obligations. 

  
 For purposes of determining the amount of income that is recognized by a Participant pursuant to a “same-day sale” transaction described in Subparagraph (ii)
above, the Fair Market Value of the Common Stock shall be the price at which the Common Stock was sold. 
  
 (c) Stock Appreciation Rights may be exercised by providing notice to the Committee on such terms and conditions as are set forth in the Grant.

  
 (d) Except as otherwise provided in the terms of the Grant,
the Participant may exercise the Grant following his or her Severance only to the extent that the Grant could have been exercised on the date of the Severance, so that no events that occur following Severance will increase the vested portion of the
Grant. 
  
 (e) The Committee may provide for the acceleration of
the vesting of Grants upon a change of control or similar circumstances, under such conditions as may be set forth in the Grants. 
  









 9. Modification of Grants. 
  
 (a) After due consideration to the possible tax, securities, and accounting consequences, the Committee may modify an
existing Grant, including by: 
  

	 	(i)	Accelerating the right to exercise it; or 

  

	 	(ii)	Extending or renewing it. 

  
 (b) In no event will the exercise price of any outstanding Grant be reduced or repriced, including any repricing effected by issuing replacement stock
options for outstanding stock options that have an exercise price greater than the Fair Market Value of the Common Stock, without first obtaining stockholder approval. This same prohibition will apply to Stock Appreciation Rights and Other Awards.

  
 (c) In the event that the Board amends the terms of an Option
so that it no longer qualifies as an Incentive Stock Option, the limitations imposed upon the Option under the Code and the Plan solely by virtue of its (formerly) qualifying as an Incentive Stock Option shall no longer apply, to the extent
specified in the amendment. 
  
 (d) Whether a modification of an
existing Incentive Stock Option will be treated as the issuance of a new Incentive Stock Option will be determined in accordance with the rules of Code Section 424(h). 
  
 (e) Whether a modification of an existing Grant previously awarded to an Insider will be treated as a new Grant for purposes
of Section 16 of the Exchange Act will be determined in accordance with Rule 16b-3. 
  
 10. Termination of Grants. 
  
 (a) Except to the extent provided otherwise in the terms of the Grant, each Grant shall terminate on the earliest of the following dates: 
  

	 	(i)	The date that is one (1) year from the date of the Severance of the Participant, if the Severance occurred because of the Participant’s death or Disability.


  

	 	(ii)	In the case of any Severance other than one described in Subparagraph (i) above, the date that is three (3) months from the date of the Participant’s Severance.


  
 (b) Except in the case of a Severance caused
by death or Disability, in no event shall an Option or Stock Appreciation Right be exercisable more than five (5) years after the date on which it was issued. 
  
 (c) The nonvested portion of the Option or Stock Appreciation Right shall terminate immediately upon Severance, and the
vested portion at the time the balance of the Option or Stock Appreciation Right terminates, as determined pursuant to the above rules. 
  









 (d) The nonvested portion of a Grant of Restricted Stock shall terminate immediately upon Severance.

  
 11. Non-Transferability of Grants. Except
as may be expressly provided in the terms of a specific Grant, (a) during the lifetime of the Participant, Grants are exercisable only by the Participant, and (b) Grants are not assignable or transferable except by will or the laws of descent and
distribution. 
  
 12. Adjustments.

  
 (a) In the event of any change in the capitalization of the
Company affecting its Common Stock (e.g., a stock split, reverse stock split, stock dividend, recapitalization, combination, reclassification, or other similar transaction), the Committee shall make such adjustments as it may deem appropriate
with respect to: 
  

	 	(i)	The number, kind, and exercise price of shares covered by each outstanding Grant; and 

  

	 	(ii)	The maximum number and/or kind of shares that may be awarded under this Plan, including the limitations contained in Section 5(a) of this Plan. 

  
 (b) The Committee may also make such adjustments in the event of a spin-off
or other distribution of Company assets to stockholders (other than normal cash dividends). 
  
 13. Notice of Disqualifying Disposition. A Participant must notify the Company within fifteen (15) days if the Participant disposes
of stock acquired pursuant to the exercise of an Incentive Stock Option issued under the Plan or a Predecessor Plan prior to the expiration of the holding periods required to qualify for long-term capital gains treatment on the disposition.

  
 14. Amendments and Termination. Subject
to the limitations of applicable law and any stock exchange on which the Common Stock is listed or traded, the Board may at any time amend or terminate this Plan. The Plan may not be amended other than by a written document executed by the Company.
Furthermore, no Participant may rely upon any statement (oral or written) that is inconsistent with the terms of the Plan or the Grant. To insure that Options can qualify as Incentive Stock Options, within twelve (12) months after the adoption of
the amendment by the Board of Directors, the stockholders must approve any amendment that changes: 
  
 (a) The class of Employees who are eligible to receive Incentive Stock Options; and/or 
  
 (b) The maximum number of shares of Common Stock that may be issued as Incentive Stock Options under the Plan, except as
adjusted pursuant to Section 12 of this Plan. 
  
 15. Tax
Withholding. 
  
 (a) The Company shall have the right to
take such actions as may be necessary to satisfy its tax withholding obligations relating to the operation of this Plan. 
  









 (b) To the extent authorized by the Committee, Participants may (i) surrender previously acquired shares
of Common Stock or (ii) have shares withheld in satisfaction of the tax withholding obligations. To the extent necessary to avoid adverse accounting treatment, the number of shares that may be withheld for this purpose shall not exceed the
minimum number needed to satisfy the applicable income and employment tax withholding rules. Similarly, the shares surrendered must have been owned by the Participant for the minimum period of time necessary to avoid adverse accounting
treatment (if applicable). 
  
 (c) If Common Stock is used to
satisfy the Company’s tax withholding obligations, the stock shall be valued at its Fair Market Value when the tax withholding is required to be made. 
  
 16. No Additional Rights. 
  
 (a) Neither the adoption of this Plan nor the awarding of any Grant shall: 
  

	 	(i)	Affect or restrict in any way the power of the Company to undertake any corporate action; or 

  

	 	(ii)	Confer upon any Participant the right to continue performing Service for the Company, nor shall it interfere in any way with the right of the Company to terminate the Service of any
Participant at any time, with or without cause, subject to the terms of any applicable employment or consulting agreement between the Participant and the Company. 

  
 (b) No Participant shall have any rights as a stockholder with respect to any shares awarded to the Participant under this
Plan until the date a certificate for such shares has been issued to the Participant. 
  
 17. Securities Law Restrictions. 
  
 (a) No shares of Common Stock shall be issued under this Plan unless the Committee shall be satisfied that the issuance will be in compliance with applicable federal and state securities laws and the requirements of
any stock exchange or other securities market on which the Company’s securities may then be traded. Similarly, a Participant will not be permitted to exercise a Grant if such exercise would violate the Company’s internal policies.

  
 (b) The Committee may require certain investment (or other)
representations and undertakings by the person exercising a Grant if necessary to comply with applicable law. 
  
 (c) Certificates for shares of Common Stock delivered under this Plan may be subject to such restrictions as the Committee may deem advisable. The
Committee may cause a legend to be placed on the certificates to refer to those restrictions. 
  
 (d) The inability of the Company to obtain registration, qualification, or other necessary authorization, or the unavailability of an exemption from any registration or qualification obligation deemed by the
Company’s counsel to be necessary for the lawful issuance and sale of any shares of its Common Stock under this Plan shall: 
  

	 	(i)	Suspend the Company’s obligation to permit the exercise of any Grant or to issue any shares under this Plan; and 

  










	 	(ii)	Relieve the Company of any liability in respect of the nonissuance or sale of the shares as to which the requisite authority or exemption shall not have been obtained.


  
 18. Indemnification. 

 
 (a) To the maximum extent permitted by law, the Company shall indemnify
each member of the Committee and of the Board, as well as any other Employee of the Company with duties under the Plan, against expenses and liabilities (including any amount paid in settlement) reasonably incurred by the individual in connection
with any claims against the individual by reason of the performance of the individual’s duties under this Plan, unless the losses are due to the individual’s gross negligence or lack of good faith. 
  
 (b) The Company will have the right to select counsel and to control the
prosecution or defense of the suit. 
  
 (c) In the event that more
than one person who is entitled to indemnification is subject to the same claim, all such persons shall be represented by a single counsel, unless such counsel advises the Company in writing that he or she cannot represent all such persons under the
applicable rules of professional responsibility. 
  
 (d) The
Company will not be required to indemnify any person for any amount incurred through any settlement unless the Company consents in writing to the settlement. 
  
 19. Governing Law. This Plan and all actions taken pursuant to it shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to its conflicts of laws provisions.