Exhibit 10.1


 


BIOSANTE PHARMACEUTICALS,
INC.


AMENDED AND RESTATED 2008
STOCK INCENTIVE PLAN


 


(As Amended on June 11,
2010)


 


1.             Purpose of Plan.


 


The
purpose of the BioSante Pharmaceuticals, Inc. Amended and Restated 2008
Stock Incentive Plan (the “Plan”) is to advance the interests of BioSante
Pharmaceuticals, Inc. (the “Company”) and its stockholders by
enabling the Company and its Subsidiaries to attract and retain qualified
persons to perform services for the Company and its Subsidiaries by providing
an incentive to such individuals through opportunities for equity participation
in the Company, and by rewarding such individuals who contribute to the
achievement of the Company’s economic objectives.


 


2.             Definitions.


 


The
following terms will have the meanings set forth below, unless the context
clearly otherwise requires:


 


2.1           “Board” means the Board of Directors of the
Company.


 


2.2           “Broker Exercise Notice” means a written
notice pursuant to which a Participant, upon exercise of an Option, irrevocably
instructs a broker or dealer to sell a sufficient number of shares or loan a
sufficient amount of money to pay all or a portion of the exercise price of the
Option and/or any related withholding tax obligations and remit such sums to
the Company and directs the Company to deliver stock certificates to be issued
upon such exercise directly to such broker or dealer or their nominee.


 


2.3           “Cause” means “cause” as defined in any
employment or other agreement or policy applicable to the Participant, or if no
such agreement or policy exists, will mean (i) dishonesty, fraud,
misrepresentation, embezzlement or deliberate injury or attempted injury, in
each case related to the Company or any Subsidiary, (ii) any unlawful or
criminal activity of a serious nature, (iii) any intentional and
deliberate breach of a duty or duties that, individually or in the aggregate,
are material in relation to the Participant’s overall duties, or (iv) any
material breach of any employment, service, confidentiality, non-compete or
non-solicitation agreement entered into with the Company or any Subsidiary.


 


2.4           “Change in Control” means an event described
in Section 14.1 of the Plan; provided, however, if under an Incentive
Award that is subject to Section 409A of the Code is triggered by a Change
in Control, the term Change in Control will mean a change in the ownership or
effective control of the Company, or in the ownership of a substantial portion
of the assets of the Company, as such term is defined in Section 409A of
the Code.


 


2.5           “Code” means the Internal Revenue Code of
1986, as amended (including, when the context requires, all regulations,
interpretations and rulings issued thereunder).


 


2.6           “Committee” means the group of individuals
administering the Plan, as provided in Section 3 of the Plan.


 


2.7           “Common Stock” means the common stock of the
Company, par value $0.0001 per share, or the number and kind of shares of stock
or other securities into which such Common Stock may be changed in accordance
with Section 4.3 of the Plan.


 

















 


2.8           “Disability” means the disability of the
Participant such as would entitle the Participant to receive disability income
benefits pursuant to the long-term disability plan of the Company or Subsidiary
then covering the Participant or, if no such plan exists or is applicable to
the Participant, the permanent and total disability of the Participant within
the meaning of Section 22(e)(3) of the Code; provided, however, if
distribution of an Incentive Award subject to Section 409A of the Code is
triggered by an Eligible Recipient’s Disability, such term will mean that the
Eligible Recipient is disabled as defined by Section 409A of the Code and
the regulations and rulings issued thereunder.


 


2.9           “Effective Date” means June 11, 2010 or
such later date as this Plan is approved by the Company’s stockholders.


 


2.10         “Eligible Recipients” means (a) for the
purposes of granting Incentive Stock Options, all employees (including, without
limitation, officers and directors who are also employees) of the Company or
any Subsidiary and (b) for the purposes of granting Non-Statutory Stock
Options and other Incentive Awards, all employees (including, without
limitation, officers and directors who are also employees) of the Company or
any Subsidiary and any non-employee directors, consultants, advisors and
independent contractors of the Company or any Subsidiary


 


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


 


2.12         “Fair Market Value” means, with respect to
the Common Stock, as of any date: (i) the closing sale price of the Common
Stock at the end of the regular trading session, as reported by The NASDAQ
Stock Market, The New York Stock Exchange, The American Stock Exchange or any
national exchange on which the Common Stock is then listed or quoted (or, if no
shares were traded on such date, as of the next preceding date on which there
was such a trade); or (ii) if the Common Stock is not so listed, admitted
to unlisted trading privileges, or reported on any national exchange or, the
closing sale price as of such date at the end of the regular trading session,
as reported by OTC Bulletin Board or the Pink Sheets LLC, or other comparable
service (or, if no shares were traded or quoted on such date, as of the next
preceding date on which there was such a trade or quote); or (iii) if the
Common Stock is not so listed or reported, such price as the Committee
determines in good faith, and consistent with the definition of “fair market
value” under Section 409A of the Code.


 


2.13         “Incentive Award” means an Option, Stock
Appreciation Right, Restricted Stock Award, Stock Unit Award, Performance Award
or Stock Bonus granted to an Eligible Recipient pursuant to the Plan.


 


2.14         “Incentive Stock Option” means a right to
purchase shares of Common Stock granted to an Eligible Recipient pursuant to Section 6
of the Plan that qualifies as an “incentive stock option” within the meaning of
Section 422 of the Code.


 


2.15         “Non-Statutory Stock Option” means a right to
purchase shares of Common Stock granted to an Eligible Recipient pursuant to Section 6
of the Plan that does not qualify as an Incentive Stock Option.


 


2.16         “Option” means an Incentive Stock Option or a
Non-Statutory Stock Option.


 


2.17         “Participant” means an Eligible Recipient who
receives one or more Incentive Awards under the Plan.


 


2.18         “Performance Award” means a right granted to
an Eligible Recipient pursuant to Section 10 of the Plan to receive an
amount of cash, a number of shares of Common Stock, or a combination of 


 


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both, contingent upon achievement of specified performance objectives
during a specified period.  A Performance
Award is also commonly referred to as a “performance unit.”


 


2.19         “Previously Acquired Shares” means shares of
Common Stock that are already owned by the Participant or, with respect to any
Incentive Award, that are to be issued to the Participant upon the grant,
exercise or vesting of such Incentive Award.


 


2.20         “Prior Plan” means the BioSante
Pharmaceuticals, Inc. Amended and Restated 1998 Stock Plan.


 


2.21         “Restricted Stock Award” means an award of
shares of Common Stock granted to an Eligible Recipient pursuant to Section 8
of the Plan that are subject to restrictions on transferability and/or a risk
of forfeiture.


 


2.22         “Retirement” means termination of employment or
service at age 55 or
older and completion of at least ten years of continuous service.


 


2.23         “Securities Act” means the Securities Act of
1933, as amended.


 


2.24         “Stock Appreciation Right” means a right
granted to an Eligible Recipient pursuant to Section 7 of the Plan to
receive a payment from the Company, in the form of shares of Common Stock, cash
or a combination of both, equal to the difference between the Fair Market Value
of one or more shares of Common Stock and a specified exercise price of such
shares.


 


2.25         “Stock Bonus” means an award of shares of
Common Stock granted to an Eligible Recipient pursuant to Section 11 of
the Plan.


 


2.26         “Stock Unit Award” means a right granted to
an Eligible Recipient pursuant to Section 9 of the Plan to receive the
Fair Market Value of one or more shares of Common Stock, payable in cash,
shares of Common Stock, or a combination of both, the payment, issuance,
retention and/or vesting of which is subject to the satisfaction of specified
conditions, which may include achievement of specified performance
objectives.  A Stock Unit Award when
payable in shares of Common Stock is also commonly referred to as a “restricted
stock unit.”


 


2.27         “Subsidiary” means any entity that is directly
or indirectly controlled by the Company or any entity in which the Company has
a significant equity interest, as determined by the Committee, provided the
Company has a “controlling interest” in the Subsidiary as defined in Treas.
Reg. Sec. 1.409A-1(b)(5)(iii)(E)(1).


 


2.28         “Tax Date” means the date any withholding tax
obligation arises under the Code for a Participant with respect to an Incentive
Award.


 


3.             Plan Administration.


 


3.1           The Committee.  The Plan will be administered by the Board or
by a committee of the Board.  So long as
the Company has a class of its equity securities registered under Section 12
of the Exchange Act, any committee administering the Plan will consist solely
of two or more members of the Board who are “non-employee directors” within the
meaning of Rule 16b-3 under the Exchange Act and who are “independent” as
required by the listing standards of The NASDAQ Stock Market (or other
applicable exchange or market on which the Company’s Common Stock may be traded
or quoted).  Such a committee, if established,
will act by majority approval of the members (but may also take action by the 


 


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written consent of all of the members of such committee), and a
majority of the members of such a committee will constitute a quorum.  As used in the Plan, “Committee” will refer
to the Board or to such a committee, if established.  To the extent consistent with applicable
corporate law of the Company’s jurisdiction of incorporation, the Committee may
delegate to any officers of the Company the duties, power and authority of the
Committee under the Plan pursuant to such conditions or limitations as the
Committee may establish; provided, however, that only the Committee may
exercise such duties, power and authority with respect to Eligible Recipients
who are subject to Section 16 of the Exchange Act.  The Committee may exercise its duties, power
and authority under the Plan in its sole and absolute discretion without the
consent of any Participant or other party, unless the Plan specifically
provides otherwise.  Each determination,
interpretation or other action made or taken by the Committee pursuant to the
provisions of the Plan will be final, conclusive and binding for all purposes
and on all persons, and no member of the Committee will be liable for any
action or determination made in good faith with respect to the Plan or any
Incentive Award granted under the Plan.


 


3.2           Authority of the Committee.


 


(a)           In accordance with and
subject to the provisions of the Plan, the Committee will have the authority to
determine all provisions of Incentive Awards as the Committee may deem
necessary or desirable and as consistent with the terms of the Plan, including,
without limitation, the following:  (i) the
Eligible Recipients to be selected as Participants; (ii) the nature and
extent of the Incentive Awards to be made to each Participant (including the
number of shares of Common Stock to be subject to each Incentive Award, any
exercise price, the manner in which Incentive Awards will vest or become
exercisable and whether Incentive Awards will be granted in tandem with other
Incentive Awards) and the form of written agreement, if any, evidencing such
Incentive Award; (iii) the time or times when Incentive Awards will be
granted; (iv) the duration of each Incentive Award; and (v) the
restrictions and other conditions to which the payment or vesting of Incentive
Awards may be subject.  In addition, the
Committee will have the authority under the Plan in its sole discretion to pay
the economic value of any Incentive Award in the form of cash, Common Stock or
any combination of both.


 


(b)           Subject to Section 3.2(d) of
the Plan, the Committee will have the authority under the Plan to amend or
modify the terms of any outstanding Incentive Award in any manner, including,
without limitation, the authority to modify the number of shares or other terms
and conditions of an Incentive Award, extend the term of an Incentive Award,
accelerate the exercisability or vesting or otherwise terminate any
restrictions relating to an Incentive Award, accept the surrender of any
outstanding Incentive Award or, to the extent not previously exercised or
vested, authorize the grant of new Incentive Awards in substitution for
surrendered Incentive Awards; provided, however that the amended or modified
terms are permitted by the Plan as then in effect and that any Participant
adversely affected by such amended or modified terms has consented to such
amendment or modification.


 


(c)           In the event of (i) any
reorganization, merger, consolidation, recapitalization, liquidation,
reclassification, stock dividend, stock split, combination of shares, rights
offering, extraordinary dividend or divestiture (including a spin-off) or any
other similar change in corporate structure or shares; (ii) any purchase,
acquisition, sale, disposition or write-down of a significant amount of assets
or a significant business; (iii) any change in accounting principles or
practices, tax laws or other such laws or provisions affecting reported
results; (iv) any uninsured catastrophic losses or extraordinary
non-recurring items as described in Accounting Principles Board Opinion No. 30
or in management’s discussion and analysis of financial performance appearing
in the Company’s annual report to stockholders for the applicable year; or (v) any
other similar change,


 


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in each case with respect to
the Company or any other entity whose performance is relevant to the grant or
vesting of an Incentive Award, the Committee (or, if the Company is not the
surviving corporation in any such transaction, the board of directors of the
surviving corporation) may, without the consent of any affected Participant,
amend or modify the vesting criteria (including any performance objectives) of
any outstanding Incentive Award that is based in whole or in part on the
financial performance of the Company (or any Subsidiary or division or other
subunit thereof) or such other entity so as equitably to reflect such event,
with the desired result that the criteria for evaluating such financial
performance of the Company or such other entity will be substantially the same
(in the sole discretion of the Committee or the board of directors of the
surviving corporation) following such event as prior to such event; provided,
however, that the amended or modified terms are permitted by the Plan as then
in effect, including the limitations in Section 3.2(a) and 3.2(b).


 


(d)           Notwithstanding any other
provision of this Plan other than Section 4.3, the Committee may not,
without prior approval of the Company’s stockholders, seek to effect any
re-pricing of any previously granted, “underwater” Option or Stock Appreciation
Right by:  (i) amending or modifying
the terms of the Option or Stock Appreciation Right to lower the exercise
price; (ii) canceling the underwater Option or Stock Appreciation Right in
exchange for (A) cash; (B) replacement Options or Stock Appreciation
Rights having a lower exercise price; or (C) other Incentive Awards; or (iii) repurchasing
the underwater Options or Stock Appreciation Rights and granting new Incentive
Awards under this Plan.  For purposes of
this Section 3.2(d), Options and Stock Appreciation Rights will be deemed
to be “underwater” at any time when the Fair Market Value of the Common Stock
is less than the exercise price of the Option or Stock Appreciation Right.


 


(e)           In addition to the authority
of the Committee under Section 3.2(b) of the Plan and notwithstanding
any other provision of the Plan, the Committee may, in its sole discretion,
amend the terms of the Plan or Incentive Awards with respect to Participants
resident outside of the United States or employed by a non-U.S. Subsidiary in
order to comply with local legal requirements, to otherwise protect the Company’s
or Subsidiary’s interests, or to meet objectives of the Plan, and may, where
appropriate, establish one or more sub-plans (including the adoption of any
required rules and regulations) for the purposes of qualifying for preferred
tax treatment under foreign tax laws. 
The Committee shall have no authority, however, to take action pursuant
to this Section 3.2(e) of the Plan: (i) to reserve shares or
grant Incentive Awards in excess of the limitations provided in Section 4.1
of the Plan; (ii) to effect any re-pricing in violation of Section 3.2(d) of
the Plan; (iii) to grant Options or Stock Appreciation Rights having an
exercise price in violation of Section 6.2 or 7.2 of the Plan, as the case
may be; or (iv) for which stockholder approval would then be required
pursuant to Section 422 of the Code or the rules of The NASDAQ Stock
Market (or other applicable exchange or market on which the Company’s Common
Stock may be traded or quoted).


 


4.             Shares Available for Issuance.


 


4.1           Maximum Number of Shares Available; Certain
Restrictions on Awards. 
Subject to adjustment as provided in Section 4.3 of the Plan, the
maximum number of shares of Common Stock that will be available for issuance
under the Plan will be the sum of:


 


(a)           4,000,000;


 


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(b)           the number of shares of
Common Stock subject to Incentive Awards outstanding under the Prior Plan as of
the Effective Date but only to the extent that such outstanding Incentive
Awards are forfeited, expire or otherwise terminate without the issuance of
such shares of Common Stock;


 


(c)           the number of shares issued
or Incentive Awards granted under the Plan in connection with the settlement,
assumption or substitution of outstanding awards or obligations to grant future
awards as a condition of the Company and/or any Subsidiary(ies) acquiring,
merging or consolidating with another entity; and


 


(d)           the number of shares that
are unallocated and available for grant under a stock plan assumed by the Company
or any Subsidiary(ies) in connection with the merger, consolidation, or
acquisition of another entity by the Company and/or any of its Subsidiaries,
based on the applicable exchange ratio and other transaction terms, but only to
the extent that such shares may be utilized by the Company or its Subsidiaries
following the transaction pursuant to the rules and regulations of The
NASDAQ Stock Market (or other applicable exchange or market on which the
Company’s Common Stock may be traded or quoted).


 


The shares available for
issuance under the Plan may, at the election of the Committee, be either
treasury shares or shares authorized but unissued, and, if treasury shares are
used, all references in the Plan to the issuance of shares will, for corporate
law purposes, be deemed to mean the transfer of shares from treasury.


 


Notwithstanding any other
provisions of the Plan to the contrary, (i) no more than 4,000,000 shares of Common Stock may be issued
pursuant to the exercise of Incentive Stock Options granted under the Plan; and
(ii) no more than 1,500,000 shares
of Common Stock may be issued or issuable under the Plan in connection with the
grant of Incentive Awards, other than Options or Stock Appreciation
Rights.  All of the foregoing share
limits are subject, in each case, to adjustment as provided in Section 4.3
of the Plan.  Incentive Stock Options
issued as a result of the Company’s assumption or substitution of like awards
issued by any acquired, merged or consolidated entity pursuant to applicable
provisions of the Code will not count towards the limit in clause (i).


 


4.2           Accounting for Incentive Awards.  Shares of Common Stock that are issued under
the Plan or that are potentially issuable pursuant to outstanding Incentive
Awards will be applied to reduce the maximum number of shares of Common Stock
remaining available for issuance under the Plan.  All shares so subtracted from the amount
available under the Plan with respect to an Incentive Award that lapses, expires,
is forfeited (including issued shares forfeited under a Restricted Stock Award)
or for any reason is terminated unexercised or unvested or is settled or paid
in cash or any form other than shares of Common Stock will automatically again
become available for issuance under the Plan; provided, however, that (i) any
shares which would have been issued upon any exercise of an Option but for the
fact that the exercise price was paid by a “net exercise” pursuant to Section 6.4(b) of
the Plan or the tender or attestation as to ownership of Previously Acquired
Shares pursuant to Section 6.4(a) of the Plan will not again become
available for issuance under the Plan; (ii) the full number of shares of
Common Stock subject to a Stock Appreciation Right granted that are settled by
the issuance of shares of Common Stock will be counted against the shares
authorized for issuance under this Plan, regardless of the number of shares
actually issued upon settlement of such Stock Appreciation Right, and will not
again become available for issuance under the Plan; and (iii) shares
withheld by the Company to pay the exercise price of any Incentive Award or
satisfy any tax withholding obligation will not again become available for
issuance under the Plan. Any shares of Common Stock repurchased by the Company
on the open market using the proceeds from the exercise of an Incentive Award
will not increase the number of shares available for future grant of Incentive
Awards.  Any shares of Common Stock
related to Incentive Awards under this Plan or under 


 


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Prior Plan that terminate by expiration, forfeiture, cancellation or
otherwise without the issuance of shares of Common Stock, or are settled in
cash in lieu of shares, or are exchanged with the Committee’s permission, prior
to the issuance of shares, for Incentive Awards not involving shares, will be
available again for grant under this Plan.


 


4.3           Adjustments to Shares and Incentive Awards.  In the event of any reorganization, merger,
consolidation, recapitalization, liquidation, reclassification, stock dividend,
stock split, combination of shares, rights offering, divestiture or
extraordinary dividend (including a spin-off) or any other similar change in
the corporate structure or shares of the Company, the Committee (or, if the
Company is not the surviving corporation in any such transaction, the board of
directors of the surviving corporation) will make appropriate adjustment (which
determination will be conclusive) as to the number and kind of securities or
other property (including cash) available for issuance or payment under the
Plan and, in order to prevent dilution or enlargement of the rights of
Participants, (a) the number and kind of securities or other property
(including cash) subject to outstanding Incentive Awards, and (b) the
exercise price of outstanding Options and Stock Appreciation Rights.


 


5.             Participation.


 


Participants
in the Plan will be those Eligible Recipients who, in the judgment of the
Committee, have contributed, are contributing or are expected to contribute to
the achievement of economic objectives of the Company or its Subsidiaries.  Eligible Recipients may be granted from time
to time one or more Incentive Awards, singly or in combination or in tandem with
other Incentive Awards, as may be determined by the Committee in its sole
discretion.  Incentive Awards will be
deemed to be granted as of the date specified in the grant resolution of the
Committee, which date will be the date of any related agreement with the
Participant.


 


6.             Options.


 


6.1           Grant.  An Eligible Recipient may be granted one or
more Options under the Plan, and such Options will be subject to such terms and
conditions, consistent with the other provisions of the Plan, as may be
determined by the Committee in its sole discretion.  The Committee may designate whether an Option
is to be considered an Incentive Stock Option or a Non-Statutory Stock
Option.  To the extent that any Incentive
Stock Option (or portion thereof) granted under the Plan ceases for any reason
to qualify as an “incentive stock option” for purposes of Section 422 of
the Code, such Incentive Stock Option (or portion thereof) will continue to be
outstanding for purposes of the Plan but will thereafter be deemed to be a
Non-Statutory Stock Option.  Options may be
granted to an Eligible Recipient for services provided to a Subsidiary only if,
with respect to such Eligible Recipient, the underlying shares of Common Stock
constitute “service recipient stock” within the meaning of Treas. Reg. Section 1.409A-1(b)(5)(iii).


 


6.2           Exercise Price.  The per share price to be paid by a
Participant upon exercise of an Option will be determined by the Committee in
its discretion at the time of the Option grant, provided that such price will
not be less than 100% of the Fair Market Value of one share of Common Stock on
the date of grant (or 110% of the Fair Market Value of one share of Common
Stock on the date of grant of an Incentive Stock Option if, at the time the
Incentive Stock Option is granted, the Participant owns, directly or
indirectly, more than 10% of the total combined voting power of all classes of
stock of the Company or any parent or subsidiary corporation of the
Company).   Notwithstanding the
foregoing, to the extent that Options are granted under the Plan as a result of
the Company’s assumption or substitution of options issued by any acquired,
merged or consolidated entity, the exercise price for such Options shall be the
price determined by the Committee pursuant to the conversion terms applicable
to the transaction.


 


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6.3           Exercisability and Duration.  An Option will become exercisable at such
times and in such installments and upon such terms and conditions as may be
determined by the Committee in its sole discretion at the time of grant
(including without limitation (i) the achievement of one or more specified
performance objectives; and/or that (ii) the Participant remain in the
continuous employ or service of the Company or a Subsidiary for a certain
period); provided, however, that no Option may be exercisable after ten (10) years
from its date of grant (five years from its date of grant in the case of an
Incentive Stock Option if, at the time the Incentive Stock Option is granted,
the Participant owns, directly or indirectly, more than 10% of the total
combined voting power of all classes of stock of the Company or any parent or
subsidiary corporation of the Company).


 


6.4           Payment of Exercise Price.


 


(a)           The total purchase price of
the shares to be purchased upon exercise of an Option will be paid entirely in
cash (including check, bank draft or money order); provided, however, that the
Committee, in its sole discretion and upon terms and conditions established by
the Committee, may allow such payments to be made, in whole or in part, by (i) tender
of a Broker Exercise Notice; (ii) by tender, or attestation as to
ownership, of Previously Acquired Shares that are acceptable to the Committee; (iii) by
a “net exercise” of the Option (as further described in paragraph (b),
below);  or  (iv) by a combination of such methods.


 


(b)           In the case of a “net
exercise” of an Option, the Company will not require a payment of the exercise
price of the Option from the Participant but will reduce the number of shares
of Common Stock issued upon the exercise by the largest number of whole shares
that has a Fair Market Value on the exercise date that does not exceed the
aggregate exercise price for the shares exercised under this method. Shares of
Common Stock will no longer be outstanding under an Option (and will therefore
not thereafter be exercisable) following the exercise of such Option to the
extent of (i) shares used to pay the exercise price of an Option under the
“net exercise,” (ii) shares actually delivered to the Participant as a
result of such exercise and (iii) any shares withheld for purposes of tax
withholding pursuant to Section 13.1 of the Plan.


 


(c)           Previously Acquired Shares
tendered or covered by an attestation as payment of an Option exercise price
will be valued at their Fair Market Value on the exercise date.


 


6.5           Manner of Exercise.  An Option may be exercised by a Participant
in whole or in part from time to time, subject to the conditions contained in
the Plan and in the agreement evidencing such Option, by delivery in person, by
facsimile or electronic transmission or through the mail of written notice of
exercise to the Company at its principal executive office in Lincolnshire,
Illinois and by paying in full the total exercise price for the shares of
Common Stock to be purchased in accordance with Section 6.4 of the Plan.


 


7.             Stock Appreciation Rights.


 


7.1           Grant.  An Eligible Recipient may be granted one or
more Stock Appreciation Rights under the Plan, and such Stock Appreciation
Rights will be subject to such terms and conditions, consistent with the other
provisions of the Plan, as may be determined by the Committee in its sole
discretion.  The Committee will have the
sole discretion to determine the form in which payment of the economic value of
Stock Appreciation Rights will be made to a Participant (i.e., cash, shares of
Common Stock or any combination thereof) or to consent to or disapprove the
election by a Participant of the form of such payment.  Stock Appreciation Rights
may be granted to an Eligible Recipient for services provided


 


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to a Subsidiary only if, with respect to such Eligible Recipient, the
underlying shares of Common Stock constitute “service recipient stock” within
the meaning of Treas. Reg. Section 1.409A-1(b)(5)(iii).


 


7.2           Exercise Price.  The exercise price of a Stock Appreciation
Right will be determined by the Committee, in its discretion, at the date of
grant but may not be less than 100% of the Fair Market Value of one share of
Common Stock on the date of grant. 
Notwithstanding the foregoing, to the extent that Stock Appreciation
Rights are granted under the Plan as a result of the Company’s assumption or
substitution of stock appreciation rights issued by any acquired, merged or
consolidated entity, the exercise price for such Stock Appreciation Rights
shall be the price determined by the Committee pursuant to the conversion terms
applicable to the transaction.


 


7.3           Exercisability and Duration.  A Stock Appreciation Right will become exercisable
at such time and in such installments as may be determined by the Committee in
its sole discretion at the time of grant; provided, however, that no Stock
Appreciation Right may be exercisable after ten (10) years from its date
of grant.  A Stock Appreciation Right
will be exercised by giving notice in the same manner as for Options, as set
forth in Section 6.5 of the Plan.


 


7.4           Grants in Tandem with Options.  Stock Appreciation Rights may be granted
alone or in addition to other Incentive Awards, or in tandem with an Option, at
the time of grant of the Option.  A Stock
Appreciation Right granted in tandem with an Option shall cover the same number
of shares of Common Stock as covered by the Option (or such lesser number as
the Committee may determine), shall be exercisable at such time or times and
only to the extent that the related Option is exercisable, have the same term
as the Option and shall have an exercise price equal to the exercise price for
the Option.  Upon the exercise of a Stock
Appreciation Right granted in tandem with an Option, the Option shall be
canceled automatically to the extent of the number of shares covered by such
exercise; conversely, upon exercise of an Option having a related Stock
Appreciation Right, the Stock Appreciation Right shall be canceled
automatically to the extent of the number of shares covered by the Option
exercise.


 


8.             Restricted Stock Awards.


 


8.1           Grant.  An Eligible Recipient may be granted one or
more Restricted Stock Awards under the Plan, and such Restricted Stock Awards
will be subject to such terms and conditions, consistent with the other
provisions of the Plan, as may be determined by the Committee in its sole
discretion.  The Committee may impose
such restrictions or conditions, not inconsistent with the provisions of the
Plan, to the vesting of such Restricted Stock Awards as it deems appropriate,
including, without limitation, (i) the achievement of one or more
specified performance objectives; and/or that (ii) the Participant remain
in the continuous employ or service of the Company or a Subsidiary for a
certain period.


 


8.2           Rights as a Stockholder; Transferability.  Except as provided in Sections 8.1, 8.3, 8.4
and 15.3 of the Plan, a Participant will have all voting, dividend, liquidation
and other rights with respect to shares of Common Stock issued to the
Participant as a Restricted Stock Award under this Section 8 upon the
Participant becoming the holder of record of such shares as if such Participant
were a holder of record of shares of unrestricted Common Stock.


 


8.3           Dividends and Distributions.  Unless the Committee determines otherwise in
its sole discretion (either in the agreement evidencing the Restricted Stock
Award at the time of grant or at any time after the grant of the Restricted Stock
Award), any dividends or distributions (other than regular quarterly cash
dividends) paid with respect to shares of Common Stock subject to the unvested
portion of a Restricted Stock Award will be subject to the same restrictions as
the shares to which such dividends or


 


9
















 


distributions relate.  The
Committee will determine in its sole discretion whether any interest will be
paid on such dividends or distributions.


 


8.4           Enforcement of Restrictions.  To enforce the restrictions referred to in
this Section 8, the Committee may place a legend on the stock certificates
referring to such restrictions and may require the Participant, until the
restrictions have lapsed, to keep the stock certificates, together with duly
endorsed stock powers, in the custody of the Company or its transfer agent, or
to maintain evidence of stock ownership, together with duly endorsed stock
powers, in a certificateless book-entry stock account with the Company’s
transfer agent.


 


9.             Stock Unit Awards.


 


An Eligible Recipient may be
granted one or more Stock Unit Awards under the Plan, and such
Stock Unit Awards will be subject to such terms and conditions, consistent
with the other provisions of the Plan, as may be determined by the Committee in
its sole discretion.  The Committee may
impose such restrictions or conditions, not inconsistent with the provisions of
the Plan, to the payment, issuance, retention and/or vesting of such
Stock Unit Awards as it deems appropriate, including, without limitation, (i) the
achievement of one or more specified performance objectives; and/or that (ii) the
Participant remain in the continuous employ or service of the Company or a
Subsidiary for a certain period.


 


10.           Performance Awards.


 


An Eligible Recipient may be
granted one or more Performance Awards under the Plan, and such Performance
Awards will be subject to such terms and conditions, if any, consistent with
the other provisions of the Plan, as may be determined by the Committee in its
sole discretion, including, but not limited to, the achievement of one or more
specified performance objectives.


 


11.           Stock Bonuses.


 


An
Eligible Recipient may be granted one or more Stock Bonuses under the Plan, and
such Stock Bonuses will be subject to such terms and conditions, if any,
consistent with the other provisions of the Plan, as may be determined by the
Committee in its sole discretion, including, but not limited to, the achievement of
one or more specified performance objectives.


 


12.           Effect of Termination of Employment or
Other Service.  The following provisions shall apply upon
termination of a Participant’s employment or other service with the Company and
all Subsidiaries, except to the extent that the Committee provides otherwise in
an agreement evidencing an Incentive Award at the time of grant or determines
pursuant to Section 12.3 of the Plan.


 


12.1         Termination Due to Death, Disability or Retirement.  In the event a Participant’s employment or
other service with the Company and all Subsidiaries is terminated by reason of
death, Disability or Retirement:


 


(a)           All outstanding Options and
Stock Appreciation Rights then held by the Participant will, to the extent
exercisable as of such termination, remain exercisable in full for a period of
one year after such termination (but in no event after the expiration date of
any such Option or Stock Appreciation Right). 
Options and Stock Appreciation Rights not exercisable as of such
termination will be forfeited and terminate.


 


(b)           All Restricted Stock Awards
then held by the Participant that have not vested as of such termination will
be terminated and forfeited; and


 


10

















 


(c)           All outstanding but unpaid
Stock Unit Awards, Performance Awards and Stock Bonuses then held by the
Participant will be terminated and forfeited.


 


12.2         Termination for Reasons Other than Death, Disability
or Retirement. Subject to Section 12.4 of the Plan, in the
event a Participant’s employment or other service is terminated with the
Company and all Subsidiaries for any reason other than death, Disability or
Retirement, or a Participant is in the employ or service of a Subsidiary and
the Subsidiary ceases to be a Subsidiary of the Company (unless the Participant
continues in the employ or service of the Company or another Subsidiary):


 


(a)           All outstanding Options and
Stock Appreciation Rights then held by the Participant will, to the extent
exercisable as of such termination, remain exercisable in full for a period of
three months after such termination (but in no event after the expiration date
of any such Option or Stock Appreciation Right).  Options and Stock Appreciation Rights not
exercisable as of such termination will be forfeited and terminate;


 


(b)           All Restricted Stock Awards
then held by the Participant that have not vested as of such termination will
be terminated and forfeited; and


 


(c)           All outstanding but unpaid
Stock Unit Awards, Performance Awards and Stock Bonuses then held by the
Participant will be terminated and forfeited.


 


12.3         Modification of Rights Upon Termination.  Notwithstanding the other provisions of this Section 12,
upon a Participant’s termination of employment or other service with the
Company and all Subsidiaries, the Committee may, in its sole discretion (which
may be exercised at any time on or after the date of grant, including following
such termination), except as provided in clause (ii), below, cause Options or
Stock Appreciation Rights (or any part thereof) then held by such Participant
to terminate, become or continue to become exercisable and/or remain
exercisable following such termination of employment or service, and Restricted
Stock Awards, Stock Unit Awards, Performance Awards or Stock Bonuses then held
by such Participant to terminate, vest or become free of restrictions and
conditions to payment, as the case may be, following such termination of
employment or service, in each case in the manner determined by the Committee;
provided, however, that any such action adversely affecting any outstanding
Incentive Award will not be effective without the consent of the affected
Participant (subject to the right of the Committee to take whatever action it
deems appropriate under Sections 3.2(c), 4.3 and 14 of the Plan).


 


12.4         Effects of Actions Constituting Cause.  Notwithstanding anything in the Plan to the
contrary, in the event that a Participant is determined by the Committee,
acting in its sole discretion, to have committed any action which would
constitute Cause as defined in Section 2.3 of the Plan, irrespective of
whether such action or the Committee’s determination occurs before or after
termination of such Participant’s employment with the Company or any
Subsidiary, all rights of the Participant under the Plan and any agreements
evidencing an Incentive Award then held by the Participant shall terminate and
be forfeited without notice of any kind. 
The Company may defer the exercise of any Option, the vesting of any
Restricted Stock Award or the payment of any Stock Unit Award, Performance
Award or Stock Bonus for a period of up to forty-five (45) days in order for
the Committee to make any determination as to the existence of Cause.


 


12.5         Determination of Termination of Employment or Other
Service.


 


(a)           The change in a Participant’s
status from that of an employee of the Company or any Subsidiary to that of a
non-employee consultant, director or advisor of the Company or any 


 


11

















 


Subsidiary will, for
purposes of the Plan, be deemed to result in a termination of such Participant’s
employment with the Company and its Subsidiaries, unless the Committee
otherwise determines in its sole discretion.


 


(b)           The change in a Participant’s
status from that of a non-employee consultant, director or advisor of the
Company or any Subsidiary to that of an employee of the Company or any Subsidiary
will not, for purposes of the Plan, be deemed to result in a termination of
such Participant’s service as a non-employee consultant, director or advisor
with the Company and its Subsidiaries, and such Participant will thereafter be
deemed to be an employee of the Company or its Subsidiaries until such
Participant’s employment is terminated, in which event such Participant will be
governed by the provisions of this Plan relating to termination of employment
or service (subject to paragraph (a), above).


 


(c)           Unless the Committee
otherwise determines in its sole discretion, a Participant’s employment or
other service will, for purposes of the Plan, be deemed to have terminated on
the date recorded on the personnel or other records of the Company or the Subsidiary
for which the Participant provides employment or other service, as determined
by the Committee in its sole discretion based upon such records.


 


(d)           Notwithstanding the
foregoing, if payment of an Incentive Award that is subject to Section 409A
of the Code is triggered by a termination of a Participant’s employment or
other service, such termination must also constitute a “separation from service”
within the meaning of Section 409A of the Code, and any change in
employment status that constitutes a “separation from service” under Section 409A
of the Code shall be treated as a termination of employment or service, as the
case may be.


 


12.6         Breach of Employment, Consulting, Confidentiality or
Non-Compete Agreements. 
Notwithstanding anything in the Plan to the contrary and in addition to
the rights of the Committee under Section 12.4 of the Plan, in the event
that a Participant materially breaches the terms of any employment, consulting,
confidentiality or non-compete agreement entered into with the Company or any
Subsidiary (including an employment, consulting, confidentiality or non-compete
agreement made in connection with the grant of an Incentive Award), whether
such breach occurs before or after termination of such Participant’s employment
or other service with the Company or any Subsidiary, the Committee in its sole
discretion may require the Participant to surrender shares of Common Stock
received, and to disgorge any profits (however defined by the Committee), made
or realized by the Participant in connection with any Incentive Awards or any
shares issued upon the exercise or vesting of any Incentive Awards.


 


13.           Payment of Withholding Taxes.


 


13.1         General Rules.  The Company is entitled to (a) withhold
and deduct from future wages of the Participant (or from other amounts that may
be due and owing to the Participant from the Company or a Subsidiary), or make
other arrangements for the collection of, all legally required amounts
necessary to satisfy any and all federal, foreign, state and local withholding
and employment-related tax requirements attributable to an Incentive Award,
including, without limitation, the grant, exercise, vesting or settlement of,
or payment of dividends with respect to, an Incentive Award or a disqualifying
disposition of stock received upon exercise of an Incentive Stock Option; (b) withhold
cash paid or payable or shares of Common Stock from the shares issued or
otherwise issuable to the Participant in connection with an Incentive Award; or
(c) require the Participant promptly to remit the amount of such
withholding to the Company before taking any action, including issuing any
shares of Common Stock, with respect to an Incentive Award.  Shares of Common Stock issued or otherwise issuable
to the Participant in connection 


 


12

















 


with an Incentive Award that gives rise to the tax withholding
obligation that are withheld for purposes of satisfying the Participant’s
withholding or employment-related tax obligation, will be valued at their Fair
Market Value on the Tax Date.  No
withholding will be effected under this Plan which exceeds the minimum
statutory withholding requirements.


 


13.2         Special Rules.  The Committee may, in its sole discretion and
upon terms and conditions established by the Committee, permit or require a
Participant to satisfy, in whole or in part, any withholding or
employment-related tax obligation described in Section 13.1 of the Plan by
withholding shares of Common Stock underlying an Incentive Award, by electing
to tender, or by attestation as to ownership of, Previously Acquired Shares, by
delivery of a Broker Exercise Notice or a combination of such methods.  For purposes of satisfying a Participant’s
withholding or employment-related tax obligation, shares of Common Stock
withheld by the Company or Previously Acquired Shares tendered or covered by an
attestation will be valued at their Fair Market Value on the Tax Date.


 


14.           Change in Control.


 


14.1         A “Change in Control” shall be deemed to have
occurred if the event set forth in any one of the following paragraphs shall
have occurred:


 


(a)           the sale, lease, exchange or
other transfer, directly or indirectly, of substantially all of the assets of
the Company (in one transaction or in a series of related transactions) to a
person or entity that is not controlled by the Company;


 


(b)           the approval by the
stockholders of the Company of any plan or proposal for the liquidation or
dissolution of the Company;


 


(c)           any person becomes after the
effective date of the Plan the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of (A) 20% or more, but
not 50% or more, of the combined voting power of the Company’s outstanding
securities ordinarily having the right to vote at elections of directors,
unless the transaction resulting in such ownership has been approved in advance
by the Continuity Directors, or (B) 50% or more of the combined voting
power of the Company’s outstanding securities ordinarily having the right to
vote at elections of directors (regardless of any approval by the Continuity
Directors);


 


(d)           a merger or consolidation to
which the Company is a party if the stockholders of the Company immediately
prior to effective date of such merger or consolidation have “beneficial
ownership” (as defined in Rule 13d-3 under the Exchange Act), immediately
following the effective date of such merger or consolidation, of securities of
the surviving corporation representing (A) more than 50%, but less than
80%, of the combined voting power of the surviving corporation’s then
outstanding securities ordinarily having the right to vote at elections of
directors, unless such merger or consolidation has been approved in advance by
the Continuity Directors (as defined below), or (B) 50% or less of the
combined voting power of the surviving corporation’s then outstanding
securities ordinarily having the right to vote at elections of directors
(regardless of any approval by the Continuity Directors);


 


(e)           the Continuity Directors
cease for any reason to constitute at least a majority of the Board; or


 


(f)            any other change in control
of the Company of a nature that would be required to be reported pursuant to Section 13
or 15(d) of the Exchange Act, whether or not the Company is then subject
to such reporting requirements.


 


13

















 


For
purposes of this Section 14, “Continuity Directors” of the Company
will mean any individuals who are members of the Board on the Effective Date
and any individual who subsequently becomes a member of the Board whose
election, or nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the Continuity Directors (either
by specific vote or by approval of the Company’s proxy statement in which such
individual is named as a nominee for director without objection to such
nomination).


 


14.2         Acceleration of Vesting.  Without limiting the authority of the
Committee under Sections 3.2 and 4.3 of the Plan, if a Change in Control of the
Company occurs, then, unless otherwise provided by the Committee in
its sole discretion either in the agreement evidencing an Incentive Award at
the time of grant or at any time after the grant of an Incentive Award: (a) all
Options and Stock Appreciation Rights will become immediately exercisable in
full and will remain exercisable in accordance with their terms; (b) all
Restricted Stock Awards will become immediately fully vested and
non-forfeitable; and (c) any conditions to the payment of Stock Unit Awards,
Performance Awards and Stock Bonuses will lapse.


 


14.3         Cash Payment.  If a Change in Control of the Company occurs,
then the Committee, if approved by the Committee in its sole discretion either
in an agreement evidencing an Incentive Award at the time of grant or at any
time after the grant of an Incentive Award, and without the consent of any
Participant affected thereby, may determine that: (i) some or all
Participants holding outstanding Options will receive, with respect to some or
all of the shares of Common Stock subject to such Options, as of the effective
date of any such Change in Control of the Company, cash in an amount equal to
the excess of the Fair Market Value of such shares immediately prior to the
effective date of such Change in Control of the Company over the exercise price
per share of such Options (or, in the event that there is no excess, that such
Options will be terminated); and (ii) some or all Participants holding
Performance Awards will receive, with respect to some or all of the shares of
Common Stock subject to such Performance Awards, as of the effective date of
any such Change in Control of the Company, cash in an amount equal the Fair
Market Value of such shares immediately prior to the effective date of such
Change in Control.


 


15.           Rights of Eligible Recipients and
Participants; Transferability.


 


15.1         Employment or Service.  Nothing in the Plan will interfere with or
limit in any way the right of the Company or any Subsidiary to terminate the
employment or service of any Eligible Recipient or Participant at any time, nor
confer upon any Eligible Recipient or Participant any right to continue in the
employ or service of the Company or any Subsidiary.


 


15.2         Rights as a Stockholder; Dividends.  As a holder of Incentive Awards (other than
Restricted Stock Awards), a Participant will have no rights as a stockholder
unless and until such Incentive Awards are exercised for, or paid in the form
of, shares of Common Stock and the Participant becomes the holder of record of
such shares.  Except as otherwise
provided in the Plan or otherwise provided by the Committee, no adjustment will
be made in the amount of cash payable or in the number of shares of Common
Stock issuable under Incentive Awards denominated in or based on the value of shares
of Common Stock as a result of cash dividends or distributions paid to holders
of Common Stock prior to the payment of, or issuance of shares of Common Stock
under, such Incentive Awards.


 


15.3         Restrictions on Transfer.


 


(a)           Except pursuant to testamentary
will or the laws of descent and distribution or as otherwise expressly
permitted by subsections (b) and (c) below, no right or interest of
any Participant in an Incentive Award prior to the exercise (in the case of
Options) or vesting or issuance (in the case of Restricted Stock Awards and
Performance Awards) of such Incentive 


 


14

















 


Award will be assignable or
transferable, or subjected to any lien, during the lifetime of the Participant,
either voluntarily or involuntarily, directly or indirectly, by operation of
law or otherwise.


 


(b)           A Participant will be
entitled to designate a beneficiary to receive an Incentive Award upon such
Participant’s death, and in the event of such Participant’s death, payment of
any amounts due under the Plan will be made to, and exercise of any Options or
Stock Appreciation Rights (to the extent permitted pursuant to Section 12
of the Plan) may be made by, such beneficiary. 
If a deceased Participant has failed to designate a beneficiary, or if a
beneficiary designated by the Participant fails to survive the Participant,
payment of any amounts due under the Plan will be made to, and exercise of any
Options or Stock Appreciation Rights (to the extent permitted pursuant to Section 12
of the Plan) may be made by, the Participant’s legal representatives, heirs and
legatees.  If a deceased Participant has
designated a beneficiary and such beneficiary survives the Participant but dies
before complete payment of all amounts due under the Plan or exercise of all
exercisable Options or Stock Appreciation Rights, then such payments will be
made to, and the exercise of such Options or Stock Appreciation Rights may be
made by, the legal representatives, heirs and legatees of the beneficiary.


 


(c)           Upon a Participant’s
request, the Committee may, in its sole discretion, permit a transfer of all or
a portion of a Non-Statutory Stock Option, other than for value, to such
Participant’s child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, any person
sharing such Participant’s household (other than a tenant or employee), a trust
in which any of the foregoing have more than fifty percent of the beneficial
interests, a foundation in which any of the foregoing (or the Participant)
control the management of assets, and any other entity in which these persons
(or the Participant) own more than fifty percent of the voting interests.  Any permitted transferee will remain subject
to all the terms and conditions applicable to the Participant prior to the
transfer.  A permitted transfer may be
conditioned upon such requirements as the Committee may, in its sole discretion,
determine, including, but not limited to execution and/or delivery of
appropriate acknowledgements, opinion of counsel, or other documents by the
transferee.


 


15.4         Non-Exclusivity of the Plan.  Nothing contained in the Plan is intended to
modify or rescind any previously approved compensation plans or programs of the
Company or create any limitations on the power or authority of the Board to
adopt such additional or other compensation arrangements as the Board may deem
necessary or desirable.


 


16.           Securities Law and Other Restrictions.


 


Notwithstanding
any other provision of the Plan or any agreements entered into pursuant to the
Plan, the Company will not be required to issue any shares of Common Stock
under this Plan, and a Participant may not sell, assign, transfer or otherwise
dispose of shares of Common Stock issued pursuant to Incentive Awards granted
under the Plan, unless (a) there is in effect with respect to such shares
a registration statement under the Securities Act and any applicable securities
laws of a state or foreign jurisdiction or an exemption from such registration
under the Securities Act and applicable state or foreign securities laws, and (b) there
has been obtained any other consent, approval or permit from any other U.S. or
foreign regulatory body which the Committee, in its sole discretion, deems
necessary or advisable.  The Company may
condition such issuance, sale or transfer upon the receipt of any
representations or agreements from the parties involved, and the placement of
any legends on certificates representing shares 


 


15

















 


of
Common Stock, as may be deemed necessary or advisable by the Company in order
to comply with such securities law or other restrictions.


 


17.           Compliance with Section 409A.


 


It is intended that the Plan
and all Incentive Awards hereunder be administered in a manner that will comply
with the requirements of Section 409A of the Code, or the requirements of
an exception to Section 409A of the Code. 
The Committee is authorized to adopt rules or regulations deemed
necessary or appropriate to qualify for an exception from or to comply with the
requirements of Section 409A of the Code (including any transition or
grandfather rules relating thereto). 
Notwithstanding anything in this Section 17 to the contrary, with
respect to any Incentive Award subject to Section 409A of the Code, no
amendment to or payment under such Incentive Award will be made unless and only
to the extent permitted under Section 409A of the Code.


 


18.           Plan Amendment, Modification and
Termination.


 


The
Board may suspend or terminate the Plan or any portion thereof at any
time.  In addition to the authority of
the Committee to amend the Plan under Section 3.2(e) of the Plan, the
Board may amend the Plan from time to time in such respects as the Board may
deem advisable in order that Incentive Awards under the Plan will conform to
any change in applicable laws or regulations or in any other respect the Board
may deem to be in the best interests of the Company; provided, however, that no
such amendments to the Plan will be effective without approval of the Company’s
stockholders if: (i) stockholder approval of the amendment is then
required pursuant to Section 422 of the Code or the rules of The
NASDAQ Stock Market (or other applicable exchange or market on which the
Company’s Common Stock may be traded or quoted); or (ii) such amendment
seeks to increase the number of shares authorized for issuance hereunder (other
than by virtue of an adjustment under Section 4.3 of the Plan) or to
modify Section 3.2(d) of the Plan. 
No termination, suspension or amendment of the Plan may adversely affect
any outstanding Incentive Award without the consent of the affected
Participant; provided, however, that this sentence will not impair the right of
the Committee to take whatever action it deems appropriate under Sections
3.2(c), 4.3 and 14 of the Plan.


 


19.           Effective Date and Duration of the Plan.


 


The
Plan will be effective as of the Effective Date and will terminate at midnight
on the day before the tenth (10th) anniversary of the Effective Date, and may
be terminated prior to such time by Board action.  No Incentive Award will be granted after
termination of the Plan.  Incentive
Awards outstanding upon termination of the Plan may continue to be exercised,
earned or become free of restrictions, according to their terms.


 


20.           Miscellaneous.


 


20.1         Dividend Equivalents.  Any Participant selected by the Committee may
be granted dividend equivalents based on the dividends declared on shares of
Common Stock that are subject to any Incentive Award, to be credited as of
dividend payment dates, during the period between the date the Incentive Award
is granted and the date the Incentive Award is exercised, vests or expires, as
determined by the Committee.  Such
dividend equivalents will be converted to cash or additional shares of Common
Stock by such formula and at such time and subject to such limitations as may
be determined by the Committee. 
Notwithstanding the foregoing, the Committee may not grant dividend
equivalents based on the dividends declared on shares of Common Stock that are
subject to an Option or Stock Appreciation 


 


16

















 


Right and further, no dividend or dividend equivalents will be paid out
with respect to any unvested Incentive Awards, the vesting of which is based on
the achievement of performance objectives.


 


20.2         Fractional Shares.  No fractional shares of Common Stock will be
issued or delivered under the Plan  or any Award. The Committee
will determine whether cash, other Awards or other property will be issued or
paid.


 


20.3         Governing Law.  Except to the extent expressly provided
herein or in connection with other matters of corporate governance and authority
(all of which shall be governed by the laws of the Company’s jurisdiction of
incorporation), the validity, construction, interpretation, administration and
effect of the Plan and any rules, regulations and actions relating to the Plan
will be governed by and construed exclusively in accordance with the laws of
the State of Illinois, notwithstanding the conflicts of laws principles of any
jurisdictions.


 


20.4         Successors and Assigns.  The Plan will be binding upon and inure to
the benefit of the successors and permitted assigns of the Company and the
Participants.


 


20.5         Construction.  Wherever possible, each provision of the Plan
and any agreement evidencing an Incentive Award granted under the Plan will be
interpreted so that it is valid under the applicable law.  If any provision of the Plan or any agreement
evidencing an Incentive Award granted under the Plan is to any extent invalid
under the applicable law, that provision will still be effective to the extent
it remains valid.  The remainder of the
Plan and the Incentive Award agreement also will continue to be valid, and the
entire Plan and Incentive Award agreement will continue to be valid in other
jurisdictions.


 


17