**Exhibit 10.1**

 

2005 STOCK INCENTIVE PLAN

 

1. *Purpose*

 

The purpose of this 2005 Stock Incentive Plan (the “Plan”) of Boston Communications Group, Inc., a Delaware corporation (the“Company”), is to advance the interests of the Company’s stockholders by enhancing the Company’s ability to attract, retain and motivate persons who are expected to make important contributions to the Company and by providingsuch persons with equity ownership opportunities and performance-based incentives that are intended to align their interests with those of the Company’s stockholders. Except where the context otherwise requires, the term “Company”shall include any of the Company’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”) andany other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a controlling interest, as determined by the Board of Directors of the Company (the “Board”). 

 

2. *Eligibility*

 

All of the Company’s employees, officers, directors, consultants and advisors are eligible to receive options, stockappreciation rights, restricted stock, restricted stock units and other stock-based awards (each, an “Award”) under the Plan. Each person who receives an Award under the Plan is deemed a “Participant”. 

 

3. *Administration and Delegation*

 

(a) *Administration by Board of Directors*. The Plan will beadministered by the Board. The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may correct any defect, supplyany omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shallbe made in the Board’s sole discretion and shall be final and binding on all persons having or claiming any interest in the Plan or in any Award. No director or person acting pursuant to the authority delegated by the Board shall be liable forany action or determination relating to or under the Plan made in good faith. 

 

(b) *Appointment of Committees*. To the extent permitted by applicable law, the Board may delegate any or all of its powers under the Plan to one or more committees or subcommittees of the Board (a“Committee”). All references in the Plan to the “Board” shall mean the Board or a Committee of the Board to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee. 

 

4. *Stock Available for Awards*

 

(a) *Number of Shares*. Subject to adjustment under Section 9, Awardsmay be made under the Plan for a number of shares of common stock, $.01 par value per share, of the Company (the “Common Stock”) equal to the sum of: 

 

(1) 1,500,000 shares of Common Stock, including (i) any shares of Common Stock that remain available for issuance under the Company’s 1996 StockOption Plan, as amended (the “1996 Plan”), (ii) any shares of Common Stock that remain available for issuance under the Company’s 1998 Stock Option Plan (the “1998 Plan”), (iii) any shares of Common Stock that remainavailable for issuance under the Company’s 2000 Stock Option Plan (the “2000 Plan”), and (iv) any shares of Common Stock that remain available for issuance under the Company’s 2004 Stock Incentive Plan (the “2004 Plan”,and, together with the 1996 Plan, the 1998 Plan and the 2000 Plan, the “Old Plans”), in each case as of the time immediately before termination of the Old Plans; and 

 

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(2) any shares of Common Stock subject to awards under the Old Plans, which awards expire, terminate, orare otherwise surrendered, canceled or forfeited (subject, however, in the case of Incentive Stock Options (as hereinafter defined) to any limitations under the Code); 

 

provided, however, that the maximum number of shares of Common Stock available for issuance of Awards under the 2005 Plan(including any shares becoming available by reason of clause (2)) shall be 3,000,000. 

 

(b) *Share Counting*. 

 

(1) *Options and SARs*. Subject to adjustment under Section 9, an Award of an Option or SAR (each as defined below) shall be counted against the share limit specified in Section 4(a) as one share for each share of Common Stock subjectto the Option or SAR (provided that, for share counting purposes, the combination of an Option in tandem with an SAR shall be treated as a single Award). 

 

(2) *Awards other than Options and SARs*. Subject to adjustment under Section 9, any Award that is settled in Common Stock (other than an Option orSAR) shall be counted against the share limit specified in Section 4(a) as two and four-tenths shares for each share of Common Stock issued upon settlement of such Awards. This factor of two and four-tenths may be changed from time to time by actionof the Compensation Committee of the Board of Directors. 

 

(3)*Cash Awards*. Awards settled in cash shall not count against the share limit specified in Section 4(a). 

 

(c) *Lapses*. If any Award expires or is terminated, surrendered or cancelled without having been fully exercised or is forfeited in whole or in part(including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not being issued, the unused CommonStock covered by such Award shall again be available for the grant of Awards under the Plan. However, in the case of Incentive Stock Options (as hereinafter defined), the foregoing provisions shall be subject to any limitations under the Code.Subject to adjustment under Section 9, any Common Stock that again becomes available for grant pursuant to the preceding sentence shall be added back as one share, except that any Common Stock that again becomes available for grant in connectionwith an Award described in Section 4(b)(2) shall be added back as two and four-tenths shares. This factor of two and four-tenths may be changed from time to time by action of the Compensation Committee of the Board of Directors. 

 

(d) *Sub-limits*. Subject to adjustment under Section 9, the followingsub-limits on the number of shares subject to Awards shall apply: 

 

(1) *Section 162(m) Per-Participant Limit*. The maximum number of shares of Common Stock with respect to which Awards may be granted to any Participant under the Plan shall be 100,000 per calendar year. For purposes of the foregoinglimit, the combination of an Option in tandem with an SAR (as each is hereafter defined) shall be treated as a single Award. The per-Participant limit described in this Section 4(d)(1) shall be construed and applied consistently with Section 162(m)of the Code or any successor provision thereto, and the regulations thereunder (“Section 162(m)”). 

 

(2) *Limit on Awards other than Options and SARs*. The maximum number of shares with respect to which Awards other than Options and SARs may begranted shall be 50,000. 

 

(3) *Limit on Awards toDirectors*. The maximum number of shares with respect to which Awards may be granted to directors who are not employees of the Company at the time of grant shall be 100,000. 

 

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5. *Stock Options*

 

(a) *General*. The Board may grant options to purchase Common Stock (each, an “Option”) and determine the number of shares of Common Stockto be covered by each Option, the exercise price of each Option and the conditions and limitations applicable to the exercise of each Option, including conditions relating to applicable federal or state securities laws, as it considers necessary oradvisable. An Option which is not intended to be an Incentive Stock Option (as hereinafter defined) shall be designated a “Nonstatutory Stock Option”. 

 

(b) *Incentive Stock Options*. An Option that the Board intends to be an “incentive stock option” as defined in Section 422 of the Code(an “Incentive Stock Option”) shall only be granted to employees of Boston Communications Group, Inc., any of Boston Communications Group, Inc.’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f)of the Code, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code, and shall be subject to and shall be construed consistently with the requirements of Section 422 of the Code. The Companyshall have no liability to a Participant, or any other party, if an Option (or any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock Option or for any action taken by the Board pursuant to Section 10(f),including without limitation the conversion of an Incentive Stock Option to a Nonstatutory Stock Option. 

 

(c) *Exercise Price*. The Board shall establish the exercise price of each Option and specify such exercise price in the applicable option agreement;provided, however, that the exercise price shall not be less than 100% of the fair market value of the Common Stock, as determined by the Board, at the time the Option is granted. 

 

(d) *Limitation on Repricing*. Unless such action is approved by the Company’s stockholders: (1) no outstandingOption granted under the Plan may be amended to provide an exercise price per share that is lower than the then-current exercise price per share of such outstanding Option (other than adjustments pursuant to Section 9) and (2) the Board may notcancel any outstanding Option and grant in substitution therefore new Awards under the Plan covering the same or a different number of shares of Common Stock and having an exercise price per share lower than the then-current exercise price per shareof the cancelled Option. 

 

(e) *Duration of Options*. EachOption shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicable option agreement; provided however, that no Option will be granted for a term in excess of 10 years. 

 

(f) *Exercise of Option*. Options may be exercised by delivery to theCompany of a written notice of exercise signed by the proper person or by any other form of notice (including electronic notice) approved by the Board together with payment in full as specified in Section 5(g) for the number of shares for which theOption is exercised. Shares of Common Stock subject to the Option will be delivered by the Company following exercise either as soon as practicable or, subject to such conditions as the Board shall specify, on a deferred basis (with theCompany’s obligation to be evidenced by an instrument providing for future delivery of the deferred shares at the time or times specified by the Board). 

 

(g) *Payment Upon Exercise*. Common Stock purchased upon the exercise of an Option granted under the Plan shall be paid for as follows: 

 

(1) in cash or by check, payable to the order of the Company; 

 

(2) except as the Board may otherwise provide in an option agreement, by(i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price and any required tax withholding or (ii) delivery by the Participant to the Companyof a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price and any required tax withholding; 

 

(3) when the Common Stock is registered under the Securities Exchange Act of1934 (the “Exchange Act”), by delivery of shares of Common Stock owned by the Participant valued at their fair market value as determined by (or in a manner approved by) the Board (“Fair Market Value”), provided (i) such methodof payment is then permitted under applicable law, (ii) such Common Stock, if 

 

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acquired directly from the Company, was owned by the Participant for such minimum period of time, if any,as may be established by the Board in its discretion and (iii) such Common Stock is not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements; 

 

(4) to the extent permitted by applicable law and by the Board, by (i) delivery of a promissory note of the Participant tothe Company on terms determined by the Board, or (ii) payment of such other lawful consideration as the Board may determine; or 

 

(5) by any combination of the above permitted forms of payment. 

 

(h) *Substitute Options*. In connection with a merger or consolidation of an entity with the Company or the acquisition by the Company of propertyor stock of an entity, the Board may grant Options in substitution for any options or other stock or stock-based awards granted by such entity or an affiliate thereof. Substitute Options may be granted on such terms as the Board deems appropriate inthe circumstances, notwithstanding any limitations on Options contained in the other sections of this Section 5 or in Section 2. Substitute Options shall not count against the overall share limit set forth in Section 4(a), except as may be requiredby reason of Section 422 and related provisions of the Code. 

 

6. *StockAppreciation Rights*. 

 

(a) *General*. A StockAppreciation Right, or SAR, is an Award entitling the holder, upon exercise, to receive an amount in Common Stock or cash or a combination thereof (such form to be determined by the Board) determined by reference to appreciation, from and after thedate of grant, in the fair market value of a share of Common Stock. The date as of which such appreciation or other measure is determined shall be the exercise date. 

 

(b) *Grants*. Stock Appreciation Rights may be granted in tandem with, or independently of, Options granted under thePlan. 

 

(1) *Tandem Awards*. When Stock AppreciationRights are expressly granted in tandem with Options, (i) the Stock Appreciation Right will be exercisable only at such time or times, and to the extent, that the related Option is exercisable (except to the extent designated by the Board inconnection with a Reorganization Event) and will be exercisable in accordance with the procedure required for exercise of the related Option; (ii) the Stock Appreciation Right will terminate and no longer be exercisable upon the termination orexercise of the related Option, except to the extent designated by the Board in connection with a Reorganization Event or a Change in Control Event and except that a Stock Appreciation Right granted with respect to less than the full number ofshares covered by an Option will not be reduced until the number of shares as to which the related Option has been exercised or has terminated exceeds the number of shares not covered by the Stock Appreciation Right; (iii) the Option will terminateand no longer be exercisable upon the exercise of the related Stock Appreciation Right; and (iv) the Stock Appreciation Right will be transferable only with the related Option. 

 

Shares reserved for issuance upon grant of SARs, to the extent the number of reserved shares exceeds the number of sharesactually issued upon exercise of the SARs shall not become available for issuance under the Plan. 

 

(2) *Independent SARs*. A Stock Appreciation Right not expressly granted in tandem with an Option will become exercisable at such time or times, andon such conditions, as the Board may specify in the SAR Award. 

 

(c) *Exercise*. Stock Appreciation Rights may be exercised by delivery to the Company of a written notice of exercise signed by the proper person or by any other form of notice (including electronic notice) approved by the Board,together with any other documents required by the Board. 

 

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7. *Restricted Stock; Restricted Stock Units.*

 

(a) *General*. The Board may grant Awards entitling recipients to acquire shares of Common Stock (“RestrictedStock”), subject to the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price (or to require forfeiture of such shares if issued at no cost) from the recipient in the event thatconditions specified by the Board in the applicable Award are not satisfied prior to the end of the applicable restriction period or periods established by the Board for such Award. Instead of granting Awards for Restricted Stock, the Board maygrant Awards entitling the recipient to receive shares of Common Stock to be delivered at the time such shares of Common Stock vest (“Restricted Stock Units”) (Restricted Stock and Restricted Stock Units are each referred to herein as a“Restricted Stock Award”). 

 

(b) *Terms andConditions*. The Board shall determine the terms and conditions of a Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue price, if any. 

 

(c) *Stock Certificates*. Any stock certificates issued in respect of a Restricted Stock Award shall be registered inthe name of the Participant and, unless otherwise determined by the Board, deposited by the Participant, together with a stock power endorsed in blank, with the Company (or its designee). At the expiration of the applicable restriction periods, theCompany (or such designee) shall deliver the certificates no longer subject to such restrictions to the Participant or if the Participant has died, to the beneficiary designated, in a manner determined by the Board, by a Participant to receiveamounts due or exercise rights of the Participant in the event of the Participant’s death (the “Designated Beneficiary”). In the absence of an effective designation by a Participant, “Designated Beneficiary” shall mean theParticipant’s estate. 

 

(d) *Limitations on Vesting.*

 

(1) Restricted Stock Awards that vest based on the passage oftime alone shall be zero percent vested prior to the first anniversary of the date of grant, no more than 33 1/3%vested prior to the second anniversary of the date of grant, and no more than 66 2/3% vested prior to the thirdanniversary of the date of grant. Restricted Stock Awards that vest upon the passage of time and provide for accelerated vesting based on performance shall not vest prior to the first anniversary of the date of grant. 

 

(2) Notwithstanding any other provision of this Plan, the Board may, in itsdiscretion, either at the time a Restricted Stock Award is made or at any time thereafter, waive its right to repurchase shares of Common Stock (or waive the forfeiture thereof) or remove or modify any part or all of the restrictions applicable tothe Restricted Stock Award; provided that the Board may only exercise such rights in extraordinary circumstances which shall include, without limitation, death or disability of the Participant; estate planning needs of the Participant; a merger,consolidation, sale, reorganization, recapitalization, or change in control of the Company; or any other nonrecurring significant event affecting the Company, a Participant or the Plan. 

 

8. *Other Stock-Based Awards.*

 

Other Awards of shares of Common Stock, and other Awards that are valued in whole or in part by reference to, or are otherwise based on, shares of CommonStock or other property, may be granted hereunder to Participants (“Other Stock Unit Awards”), including without limitation Awards entitling recipients to receive shares of Common Stock to be delivered in the future. Such Other Stock UnitAwards shall also be available as a form of payment in the settlement of other Awards granted under the Plan or as payment in lieu of compensation to which a Participant is otherwise entitled. Other Stock Unit Awards may be paid in shares of CommonStock or cash, as the Board shall determine. Subject to the provisions of the Plan, the Board shall determine the conditions of each Other Stock Unit Awards, including any purchase price applicable thereto. 

 

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9. *Adjustments for Changes in Common Stock and Certain Other Events.*

 

(a) *Changes in Capitalization*. In the event of any stock split,reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any distribution to holders of Common Stock other than an ordinary cashdividend, (i) the number and class of securities available under this Plan, (ii) the sub-limits set forth in Section 4(d), (iii) the number and class of securities and exercise price per share of each outstanding Option, (iv) the share- andper-share provisions of each Stock Appreciation Right, (v) the repurchase price per share subject to each outstanding Restricted Stock Award and (vi) the share- and per-share-related provisions of each outstanding Other Stock Unit Award, shall beappropriately adjusted by the Company (or substituted Awards may be made, if applicable) to the extent determined by the Board. 

 

(b) *Reorganization Events.*

 

(1) *Definition*. A “Reorganization Event” shall mean: (a) any merger or consolidation of the Company with or into another entity as aresult of which all of the Common Stock of the Company is converted into or exchanged for the right to receive cash, securities or other property or is cancelled, (b) any exchange of all of the Common Stock of the Company for cash, securities orother property pursuant to a share exchange transaction or (c) any liquidation or dissolution of the Company. 

 

(2) *Consequences of a Reorganization Event on Awards Other than Restricted Stock Awards*. In connection with a Reorganization Event, the Board shalltake any one or more of the following actions as to all or any outstanding Awards on such terms as the Board determines: (i) provide that Awards shall be assumed, or substantially equivalent Awards shall be substituted, by the acquiring orsucceeding corporation (or an affiliate thereof), (ii) upon written notice to a Participant, provide that the Participant’s unexercised Options or other unexercised Awards shall become exercisable in full and will terminate immediately prior tothe consummation of such Reorganization Event unless exercised by the Participant within a specified period following the date of such notice, (iii) provide that outstanding Awards shall become realizable or deliverable, or restrictions applicableto an Award shall lapse, in whole or in part prior to or upon such Reorganization Event, (iv) in the event of a Reorganization Event under the terms of which holders of Common Stock will receive upon consummation thereof a cash payment for eachshare surrendered in the Reorganization Event (the “Acquisition Price”), make or provide for a cash payment to a Participant equal to (A) the Acquisition Price times the number of shares of Common Stock subject to the Participant’sOptions or other Awards (to the extent the exercise price does not exceed the Acquisition Price) minus (B) the aggregate exercise price of all such outstanding Options or other Awards, in exchange for the termination of such Options or other Awards,(v) provide that, in connection with a liquidation or dissolution of the Company, Awards shall convert into the right to receive liquidation proceeds (if applicable, net of the exercise price thereof) and (vi) any combination of the foregoing.

 

For purposes of clause (i) above, an Option shall beconsidered assumed if, following consummation of the Reorganization Event, the Option confers the right to purchase, for each share of Common Stock subject to the Option immediately prior to the consummation of the Reorganization Event, theconsideration (whether cash, securities or other property) received as a result of the Reorganization Event by holders of Common Stock for each share of Common Stock held immediately prior to the consummation of the Reorganization Event (and ifholders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Common Stock); provided, however, that if the consideration received as a result of the Reorganization Eventis not solely common stock of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of Optionsto consist solely of common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in value (as determined by the Board) to the per share consideration received by holders of outstanding shares of Common Stock as aresult of the Reorganization Event. 

 

 

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To the extent all or any portion of an Option becomes exercisable solely as a result of clause (ii)above, the Board may provide that upon exercise of such Option the Participant shall receive shares subject to a right of repurchase by the Company or its successor at the Option exercise price; such repurchase right (x) shall lapse at the same rateas the Option would have become exercisable under its terms and (y) shall not apply to any shares subject to the Option that were exercisable under its terms without regard to clause (ii) above. 

 

(3) *Consequences of a Reorganization Event on Restricted StockAwards*. Upon the occurrence of a Reorganization Event other than a liquidation or dissolution of the Company, the repurchase and other rights of the Company under each outstanding Restricted Stock Award shall inure to the benefit of theCompany’s successor and shall apply to the cash, securities or other property which the Common Stock was converted into or exchanged for pursuant to such Reorganization Event in the same manner and to the same extent as they applied to theCommon Stock subject to such Restricted Stock Award. Upon the occurrence of a Reorganization Event involving the liquidation or dissolution of the Company, except to the extent specifically provided to the contrary in the instrument evidencing anyRestricted Stock Award or any other agreement between a Participant and the Company, all restrictions and conditions on all Restricted Stock Awards then outstanding shall automatically be deemed terminated or satisfied. 

 

10. *General Provisions Applicable to Awards*

 

(a) *Transferability of Awards*. Awards shall not be sold, assigned,transferred, pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution or, other than in the case of an Incentive Stock Option, pursuantto a qualified domestic relations order, and, during the life of the Participant, shall be exercisable only by the Participant; provided, however, that the Board may permit or provide in an Award for the gratuitous transfer of the Award by theParticipant to or for the benefit of any immediate family member, family trust or family partnership established solely for the benefit of the Participant and/or an immediate family member thereof if, with respect to such proposed transferee, theCompany would be eligible to use a Form S-8 for the registration of the sale of the Common Stock subject to such option under the Securities Act of 1933, as amended; provided, further, that the Company shall not be required to recognize any suchtransfer until such time as the Participant and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument in form and substance satisfactory to the Company confirming that such transferee shall bebound by all of the terms and conditions of the Award. References to a Participant, to the extent relevant in the context, shall include references to authorized transferees. 

 

(b) *Documentation*. Each Award shall be evidenced in such form (written, electronic or otherwise) as the Board shalldetermine. Each Award may contain terms and conditions in addition to those set forth in the Plan. 

 

(c) *Board Discretion*. Except as otherwise provided by the Plan, each Award may be made alone or in addition or in relation to any other Award. Theterms of each Award need not be identical, and the Board need not treat Participants uniformly. 

 

(d) *Termination of Status*. The Board shall determine the effect on an Award of the disability, death, retirement, authorized leave of absence orother change in the employment or other status of a Participant and the extent to which, and the period during which, the Participant, or the Participant’s legal representative, conservator, guardian or Designated Beneficiary, may exerciserights under the Award. 

 

(e) *Withholding*. EachParticipant shall pay to the Company, or make provision satisfactory to the Company for payment of, any taxes required by law to be withheld in connection with an Award to such Participant no later than the date of the event creating the taxliability. Except as the Board may otherwise provide in an Award, for so long as the Common Stock is registered under the Exchange Act, Participants may satisfy such tax obligations in whole or in part by delivery of shares of Common Stock,including shares retained from the Award creating the tax obligation, valued at their Fair Market Value; provided, however, except as otherwise provided by the Board, that the total tax withholding where stock is being used to satisfy such taxobligations cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory withholding rates for federal and state tax 

 

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purposes, including payroll taxes, that are applicable to such supplemental taxable income). Shares surrendered tosatisfy tax withholding requirements cannot be subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements. The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kindotherwise due to a Participant. 

 

(f) *Amendment of Award*.Except as otherwise provided in Section 5(d), the Board may amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise orrealization, and converting an Incentive Stock Option to a Nonstatutory Stock Option; provided that the Participant’s consent to such action shall be required unless the Board determines that the action, taking into account any related action,would not materially and adversely affect the Participant. 

 

(g)*Conditions on Delivery of Stock*. The Company will not be obligated to deliver any shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award havebeen met or removed to the satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securitieslaws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirementsof any applicable laws, rules or regulations. 

 

(h)*Acceleration*. Except as otherwise provided in Section 7(d), the Board may at any time provide that any Award shall become immediately exercisable in full or in part, free of some or all restrictions or conditions, or otherwise realizable infull or in part, as the case may be. 

 

(i) *PerformanceConditions.*

 

(1) This Section 10(i) shall be administeredby a Committee approved by the Board, all of the members of which are “outside directors” as defined by Section 162(m) (the “Section 162(m) Committee”). 

 

(2) Notwithstanding any other provision of the Plan, if the Section 162(m) Committee determines, at the time a RestrictedStock Award or Other Stock Unit Award is granted to a Participant, that such Participant is, or may be as of the end of the tax year in which the Company would claim a tax deduction in connection with such Award, a Covered Employee (as defined inSection 162(m)), then the Section 162(m) Committee may provide that this Section 10(i) is applicable to such Award. 

 

(3) If a Restricted Stock Award or Other Stock Unit Award is subject to this Section 10(i), then the lapsing of restrictions thereon and the distributionof cash or Shares pursuant thereto, as applicable, shall be subject to the achievement of one or more objective performance goals established by the Section 162(m) Committee, which shall be based on the relative or absolute attainment of specifiedlevels of one or any combination of the following: (a) earnings per share, (b) return on average equity or average assets with respect to a pre-determined peer group, (c) earnings, (d) earnings growth, (e) revenues, (f) expenses, (g) stock price,(h) market share, (i) return on sales, assets, equity or investment, (j) regulatory compliance, (k) improvement of financial ratings, (l) achievement of balance sheet or income statement objectives, (m) total shareholder return, (n) net operatingprofit after tax, (o) pre-tax or after-tax income or (p) cash flow, and may be absolute in their terms or measured against or in relationship to other companies comparably, similarly or otherwise situated. Such performance goals may be adjusted toexclude any one or more of (i) extraordinary items, (ii) gains or losses on the dispositions of discontinued operations, (iii) the cumulative effects of changes in accounting principles, (iv) the write-down of any asset, and (v) charges forrestructuring and rationalization programs. Such performance goals: (i) may vary by Participant and may be different for different Awards; (ii) may be particular to a Participant or the department, branch, line of business, subsidiary or other unitin which the Participant works and may cover such period as may be specified by the Section 162(m) Committee; and (iii) shall be set by the Section 162(m) Committee within the time period prescribed by, and shall otherwise comply with therequirements of, Section 162(m). 

 

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(4) Notwithstanding any provision of the Plan, with respect to any Restricted Stock Award or Other StockUnit Award that is subject to this Section 10(i), the Section 162(m) Committee may adjust downwards, but not upwards, the cash or number of Shares payable pursuant to such Award, and the Section 162(m) Committee may not waive the achievement of theapplicable performance goals except in the case of the death or disability of the Participant. 

 

(5) The Section 162(m) Committee shall have the power to impose such other restrictions on Awards subject to this Section 10(i) as it may deem necessaryor appropriate to ensure that such Awards satisfy all requirements for “performance-based compensation” within the meaning of Section 162(m)(4)(C) of the Code, or any successor provision thereto. 

 

11. *Miscellaneous*

 

(a) *No Right To Employment or Other Status*. No person shall have any claim or right to be granted an Award, and thegrant of an Award shall not be construed as giving a Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationshipwith a Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award. 

 

(b) *No Rights As Stockholder*. Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights asa stockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming the record holder of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the Common Stock by meansof a stock dividend and the exercise price of and the number of shares subject to such Option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then an optionee who exercises anOption between the record date and the distribution date for such stock dividend shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such Option exercise,notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock dividend. 

 

(c) *Effective Date and Term of Plan*. The Plan shall become effective on the date on which it is adopted by the Board, but no Award may be grantedunless and until the Plan has been approved by the Company’s stockholders. No Awards shall be granted under the Plan after the completion of 10 years from the earlier of (i) the date on which the Plan was adopted by the Board or (ii) the datethe Plan was approved by the Company’s stockholders, but Awards previously granted may extend beyond that date. 

 

(d) *Amendment of Plan*. The Board may amend, suspend or terminate the Plan or any portion thereof at any time; provided that (i) to the extentrequired by Section 162(m), no Award granted to a Participant that is intended to comply with Section 162(m) after the date of such amendment shall become exercisable, realizable or vested, as applicable to such Award, unless and until suchamendment shall have been approved by the Company’s stockholders if required by Section 162(m) (including the vote required under Section 162(m)); (ii) no amendment that would require stockholder approval under the rules of the NASDAQ NationalMarket, Inc. may be made effective unless and until such amendment shall have been approved by the Company’s stockholders, and (iii) if the NASDAQ National Market, Inc. amends its corporate governance rules so that such rules no longer requirestockholder approval of “material revisions” to equity compensation plans, then, from and after the effective date of such amendment to the NASDAQ National Market, Inc. rules, no amendment to the Plan (A) materially increasing the numberof shares authorized under the Plan (other than pursuant to Section (9), (B) expanding the types of Awards that may be granted under the Plan, or (C) materially expanding the class of participants eligible to participate in the Plan shall beeffective unless stockholder approval is obtained. In addition, if at any time the approval of the Company’s stockholders is required as to any other modification or amendment under Section 422 of the Code or any successor provision withrespect to Incentive Stock Options, the Board may not effect such modification or amendment without such approval. 

 

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(e) *Provisions for Foreign Participants*. The Board may modify Awards or Options granted toParticipants who are foreign nationals or employed outside the United States or establish subplans or procedures under the Plan to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax,securities, currency, employee benefit or other matters. 

 

(f)*Compliance With Code Section 409A*. No Award shall provide for deferral of compensation that does not comply with Section 409A of the Code, unless the Board, at the time of grant, specifically provides that the Award is not intended to complywith Section 409A of the Code. 

 

(g) *Governing Law*. Theprovisions of the Plan and all Awards made hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, excluding choice-of-law principles of the law of such state that would require the application of thelaws of a jurisdiction other than such state. 

 

 

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