Unassociated Document


    
      Exhibit 10.8

       

       

      CORMEDIX
INC.

      


      Amended and Restated 2006
Stock Incentive Plan

      


      1.           Purpose.  This
Amended and Restated 2006 Stock Incentive Plan (the “Plan”) has been adopted by the
Board of Directors (the “Board”) of CorMedix Inc. (the
“Company”), and is
effective, subject to the approval of the Company’s stockholders.  The
Plan constitutes an amendment, restatement and continuation of the 2006 Stock
Incentive Plan, as it existed prior to this restatement.

      


      The
purpose of the Plan is to promote the long-term success of the Company by
attracting, motivating and retaining directors, officers, employees, advisors
and consultants of, and others providing services to, the Company and its
affiliates through the use of competitive long-term incentives which are tied to
stockholder value.  The Plan seeks to balance the interest of Plan
participants and stockholders by providing incentives in the form of stock
options, restricted stock, performance awards, and stock appreciation rights, as
well as other stock-based awards relating to the Company’s common stock, $0.001
par value (“Common
Stock”), to be granted under the Plan and consistent with the terms of
the Plan (“Awards”).

      


      2.           Administration.

      


      2.1.           The
Plan shall be administered by the Compensation Committee (the “Committee”) of the
Board.  The Committee shall consist of not less than two directors of
the Company who shall be appointed from time to time by the
Board.  Each member of the Committee shall be a “non-employee
director” within the meaning of Rule 16b-3 of the Exchange Act of 1934, as
amended (together with the rules and regulations promulgated thereunder, the
“Exchange Act”), and an
“outside director” as defined in Section 162(m) of the Internal Revenue Code of
1986, as amended (the “Code”).  The
Committee shall have complete authority to determine all provisions of all
Awards, to interpret the Plan, and to make any other determination which it
believes necessary and advisable for the proper administration of the
Plan.  The Committee’s decisions on matters relating to the Plan shall
be final and conclusive on the Company and the Participants.  No
member of the Committee will be liable for any action or determination made in
good faith with respect to the Plan or any Awards granted under the
Plan.  The Committee will also have the authority under the Plan to
amend or modify the terms of any outstanding Awards in any manner; provided,
however, that the amended or modified terms are permitted by the Plan as then in
effect and that any recipient of an Award adversely affected by such amended or
modified terms has consented to such amendment or modification.  No
amendment or modification to an Award, however, whether pursuant to this Section
2 or any other provisions of the Plan, will be deemed to be a re-grant of such
Award for purposes of the Plan.  If at any time there is no Committee,
then for purposes of the Plan the term “Committee” shall mean the
Board.

       

      
        
           


        

        
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      2.2.           Subject
to any applicable requirements of Code Section 409A, to the extent that an Award
would otherwise be subject to Code Section 409A, the Committee may permit or
require a recipient of an Award to defer such individual’s receipt of the
payment of cash or the delivery of Common Stock that would otherwise be due to
such individual by virtue of the exercise of, payment of, or lapse or waiver of
restrictions respecting, any Award.  If any such payment deferral is
required or permitted, the Committee shall, in its sole discretion, establish
rules and procedures for such payment deferrals.  The maximum term for
any Award shall not exceed ten years from the date of the grant of such Award,
provided, however, in the case of an Incentive Stock Option granted to a
Participant who, at the time such Incentive Stock Option is granted, owns
(within the meaning of Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the Company or of any affiliate
thereof, no such Incentive Stock Option shall be exercisable more than five
years after the date such incentive stock option is granted.

      


      3.           Eligible
Participants.  Employees of the Company or its subsidiaries
(including officers and other employees of the Company or its subsidiaries),
directors, consultants, advisors or other independent contractors who provide
services to the Company or its subsidiaries (including members of the Company’s
scientific advisory board) (“Participants”) shall become
eligible to receive Awards under the Plan when designated by the Committee,
provided, however, that Awards of Incentive Stock Options may only be awarded to
employees of the Company or its subsidiaries.  Participants may be
designated individually or by groups or categories (for example, by pay grade)
as the Committee deems appropriate.  Participation by officers of the
Company or its subsidiaries and any performance objectives relating to such
officers must be approved by the Committee.  Participation by others
and any performance objectives relating to others may be approved by groups or
categories (for example, by pay grade) and authority to designate Participants
who are not officers and to set or modify such targets may be delegated to the
Company’s executive management.

      


      4.           Types of
Awards.  Awards under the Plan may be granted in any one or a
combination of the following forms:  (a) Incentive Stock Options and
Non-Qualified Stock Options (Section 6); (b) restricted stock (Section 7); (c)
performance awards (Section 8); and (d) other awards (Section
8).   Incentive Stock Options may only be granted to employees of
the Company.  The terms of an Award may be evidenced by an agreement
entered into by and between the Company and a Participant at the time the Award
is granted (which may include an employment agreement or consulting agreement by
and between the Company and the Participant) (the “Award
Agreement”).  In the event of any inconsistency between the
terms of the Award Agreement and the Plan, the terms of the Plan shall
govern.  In the event of any inconsistency between the terms of any
employment agreement and any other Award Agreement, the terms of the employment
agreement shall govern.

      


      5.           Shares Subject to the
Plan.

      


      5.1.           Number of
Shares.  Subject to adjustment as provided in Section 10.5, the
number of shares of Common Stock which may be issued under the Plan shall not
exceed 2,300,000 shares of Common Stock.  Of such aggregate number of
shares of Common Stock that may be issued under the Plan, the maximum number of
shares that may be issued as Incentive Stock Options under Section 422 of the
Code is 2,300,000.  Any shares of Common Stock available for issuance
as Incentive Stock Options may be alternatively issued as other types of Awards
under the Plan.  Shares of Common Stock that are issued under the Plan
or that are subject to outstanding Awards will be applied to reduce the maximum
number of shares of Common Stock remaining available for issuance under the
Plan.  No Participant may be granted Awards under the Plan with
respect to more than 300,000 shares of Common Stock in any year, except that
this restriction shall not apply to options granted upon the completion of the
Company’s initial public offering of its securities.


      
        
           


        

        
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      5.2.           Cancellation.  Except
as otherwise required by Section 162(m) of the Code, in the event that a stock
option granted hereunder expires or is terminated or canceled unexercised or
unvested as to any shares of Common Stock, such shares may again be issued under
the Plan either pursuant to stock options or otherwise.  In the event
that shares of Common Stock are issued as restricted stock or as part of another
Award and thereafter are forfeited or reacquired by the Company pursuant to
rights reserved upon issuance thereof, such forfeited and reacquired shares may
again be issued under the Plan, either as restricted stock or
otherwise.

      


      6.           Stock
Options.  The Committee shall determine for each option the
number of shares of Common Stock for which the option is granted, whether the
option is to be treated as an Incentive Stock Option or as a Non-Qualified Stock
Option and all other terms and conditions of the option not inconsistent with
the Plan.  Options granted pursuant to the Plan shall comply with and
be subject to the following terms and conditions:

      


      6.1.           Option
Price.  The exercise price for each option shall be established
in the sole discretion of the Committee, provided it shall not be less than the
Fair Market Value of a share of Common Stock on the date of grant, and provided further, that
the exercise price per share of an Incentive Stock Option granted to a
Participant who, at the time of the grant, owns stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company,
within the meaning of Section 422(b)(6) of the Code (a “Ten Percent Owner”),
shall be not less than 110% of the Fair Market Value of a share of Common Stock
on the date the option is granted.  Notwithstanding the foregoing, an
option may be granted by the Committee in its discretion with an exercise price
lower than the minimum exercise price set forth above if such option is granted
pursuant to an assumption or substitution for another option in a manner
qualifying with the provisions of Section 424(a) and 409A of the Code to the
extent applicable.  Nothing hereinabove shall require that any such
assumption or modification will result in the option having the same
characteristics, attributes or tax treatment as the option for which it is
substituted.

      


      6.2.           Exercise Period of
Options.  The Committee shall have the power to set the time or
times within which each option shall be exercisable, or the event or events upon
the occurrence of which all or a portion of each option shall be exercisable,
and the term of each option; provided, however, that (a) no Incentive Stock
Option shall be exercisable after the expiration of ten years after the date
such Incentive Stock Option is granted, and (b) no Incentive Stock Option
granted to a Ten Percent Owner shall be exercisable after the expiration of five
years after the date such Incentive Stock Option is granted.  Unless
otherwise specifically provided in an Award Agreement, an option shall terminate
and cease to be exercisable no later than ninety (90) days after the date on
which the Participant’s employment with or service to the Company or a
subsidiary terminates.

      


      
        
           


        

        
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      6.3.           Payment of Option
Price.  Payment of the exercise price for the number of shares
being purchased pursuant to any option shall be made in any manner permitted by
the Committee, including, but not limited to: (a) payment in cash, (b) by check
or cash equivalent, (c) with the consent of the Committee, by delivery or
attestation of ownership of a number of shares of Common Stock that have been
owned by the Participant for at least six months (or such other period as
necessary to prevent an accounting charge) with a Fair Market Value equal to the
exercise price, (d) with the consent of the Committee, by delivery of a stock
power and instructions to a broker to sell a sufficient number of shares of
Common Stock subject to the option to pay such exercise price, (e) such other
consideration as the Committee determines is consistent with the Plan and
applicable law, or (f) with the consent of the Committee, any combination of the
foregoing methods.  Any shares of Common Stock used to exercise
options (including shares withheld upon the exercise of an option to pay the
exercise price of the option) shall be valued at their Fair Market Value. If the Committee, in its
discretion, permits the consideration to be paid through a broker-dealer sale
and remittance procedure, the Committee may require the Participant (a) to
provide irrevocable written instructions to a designated brokerage firm to
effect the immediate sale of a sufficient number of the purchased shares to pay
the Company, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate option exercise price payable for the
purchased shares and/or all applicable Federal and State income and employment
taxes required to be withheld by the Company in connection with such purchase,
(b) to provide written directives to the Company to deliver the certificates for
the purchased shares directly to such brokerage firm in order to complete the
sale transaction, and (c) to provide irrevocable instructions to the brokerage
firm to remit such sale proceeds to the Company.

      


      6.4.           $100,000
Limitation.  The aggregate Fair Market Value, determined as of
the date on which an Incentive Stock Option is granted, of the shares of Common
Stock with respect to which Incentive Stock Options are first exercisable during
any calendar year (under the Plan or under any other plan of the Company) by any
Participant shall not exceed $100,000 or such other limitation imposed under
Section 422 of the Code.  If such limitation would be exceeded with
respect to a Participant for a calendar year, the Incentive Stock Option shall
be deemed a Non-Qualified Stock Option to the extent of such
excess.

      


      7.           Restricted
Stock.

      


      7.1.           Awards of Restricted
Stock.  Restricted shares of Common Stock may be granted under
the Plan in such form and on such terms and conditions as the Committee may from
time to time approve, including, without limitation, restrictions on the sale,
assignment, transfer or other disposition or encumbrance of such shares of
Common Stock during the Restricted Period (as defined below) and the requirement
that the Participant forfeit such shares back to the Company without any
consideration paid by the Company therefor upon failure to satisfy within the
Restricted Period the requirements set forth in the Award
Agreement.  Restricted stock may be granted alone or in addition to
other Awards under the Plan.  The grant of any restricted stock by the
Company shall be evidenced by an Award Agreement.

       

      
        
           


        

        
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      7.2.           Restricted
Period.  The Committee shall establish the “Restricted Period” with
respect to each award of restricted stock.  The Committee may, in its
sole discretion, at the time an award of restricted stock is made, prescribe
conditions for the lapse or termination of all or a portion of the restrictions
upon the satisfaction prior to the expiration of the Restricted Period of the
requirements set forth in the Award Agreement.  The Committee also
may, in its sole discretion, shorten or terminate the Restricted Period or waive
any conditions for the lapse or termination of restrictions with respect to all
or any portion of the restricted stock.

      


      Except as
otherwise provided in an Award Agreement, a Participant shall cease vesting in
all or any portion of a restricted stock award as of the date his employment
with or service to the Company or a subsidiary terminates, for whatever reason,
and any shares of restricted stock that are not vested as of such date shall be
forfeited; provided the Committee may, in its discretion, provide that a
Participant whose employment with or service to the Company terminates for any
reason (including as a result of death or disability) and/or following a Change
in Control, may vest in all or any portion of his restricted stock
award.  Any restricted stock award not so vested shall be
forfeited.

      


      7.4.           Rights of Holders of
Restricted Stock.  Except as otherwise provided in the Award
Agreement or except as otherwise provided in the Plan, the Participant shall be
the owner of the restricted stock and shall have all the rights of a
stockholder, including the right to receive dividends paid on such restricted
stock and the right to vote such restricted stock.

      


      7.5.           Delivery of Restricted
Stock.  Restricted stock awarded to a Participant under the
Plan may be held under the Participant’s name in a book entry account maintained
by the Company or, if not so held, stock certificates for restricted stock
awarded pursuant to the Plan may be registered in the name of the Participant
and issued and deposited, together with a stock power endorsed in blank, with
the Company or an agent appointed by the Company and shall bear an appropriate
legend restricting the transferability thereof.  Subject to Section
10.4 below, a Participant shall be entitled to delivery of stock certificates
only when he or she becomes vested in accordance with the terms of his or her
restricted stock award.

      


      8.           Performance Awards and Other
Awards.

       

      8.1.           Performance
Awards.  The Committee is authorized, in its sole discretion,
to grant performance awards to Participants on the following terms and
conditions:

       

      (a)           Awards and
Conditions.  A performance award shall confer upon the
Participant rights, valued as determined by the Committee, and payable to, or
exercisable by, the Participant to whom the performance award is granted, in
whole or in part, as determined by the Committee, conditioned upon the
achievement of performance criteria determined by the
Committee.  Performance goals established by the Committee shall be
based on objectively determinable performance goals selected by the Committee
that apply to an individual or group of individuals, or the Company as a whole,
over such a performance period as the Committee may designate.  The
performance goals shall be based on one or more of the following criteria:
EBITDA, stock price, earnings per share, net earnings, operating or other
earnings, profits, revenues, net cash flow, financial return ratios, return on
assets, stockholder return, return on equity, growth in assets, market share or
strategic business criteria consisting of one or more objectives based on
meeting specified revenue goals, market penetration goals, geographic business
expansion goals or goals relating to acquisitions or strategic
partnerships.  “EBITDA” means earnings before
interest, taxes, depreciation and amortization.  A performance goal
need not be based on an increase or positive result.

       

      
        
           


        

        
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      (b)           Other
Terms.  A performance award shall be denominated in shares of
Common Stock and may be payable in cash, shares of Common Stock, other Awards,
or any combination thereof, and shall have such other terms as shall be
determined by the Committee.

       

      (c)           Performance-Based
Awards.  Performance awards, as well as restricted stock with
performance-based vesting provisions, and certain other Awards subject to
performance criteria, are intended to be “qualified performance-based
compensation” within the meaning of Section 162(m) of the Code and shall be paid
solely on account of the attainment of one or more pre-established, objective
performance goals within the meaning of Section 162(m) and the regulations
thereunder.

       

      The
payout of any such Award to a Participant may be reduced, but not increased,
based on the degree of attainment of performance criteria, or otherwise at the
discretion of the Committee, as may be provided in the Award
Agreement.

       

      8.2.           Stock Appreciation
Rights.  The Committee is authorized, in its sole discretion,
to grant stock appreciation rights to Participants on the following terms and
conditions:

       

      (a)           Right to
Payment.  A stock appreciation right shall confer on the
Participant to whom it is granted a right to receive payment in cash or shares
of Common Stock (at the discretion of the Committee), upon exercise of a stock
appreciation right, an amount equal to the excess of (i) the Fair Market Value
of one share of Common Stock on the date of exercise (or, if the Committee shall
so determine in the case of any such right, other than one related to an
Incentive Stock Option, the Fair Market Value of one share of Common Stock at
any time during a specified period before or after the date of exercise or a
Change in Control) over (ii) the grant price of the stock appreciation right as
determined by the Committee as of the date of grant of the stock appreciation
right.

       

      (b)           Other
Terms.  The Committee shall determine the time or times at
which a stock appreciation right may be exercised in whole or in part, the
method of exercise, method of settlement, form of consideration payable in
settlement, method by which shares (if any) will be delivered or deemed to be
delivered to Participants, and any other terms and conditions of any stock
appreciation right.  Such stock appreciation right shall be evidenced
by an Award Agreement in such form as the Committee shall from time to time
approve.

       

      
        
           


        

        
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      8.3.           Bonus and Other Stock-Based
Awards.  The Committee is authorized, in its sole discretion,
to grant to Participants such other Awards that are denominated or payable in,
valued in whole or in part by reference to, or otherwise based on or related to,
shares of Common Stock, as deemed by the Committee to be consistent with the
purposes of the Plan, including without limitation, shares of Common Stock
awarded purely as a “bonus” and not subject to any restrictions or conditions,
convertible or exchangeable debt securities, other rights convertible or
exchangeable into shares of Common Stock, purchase rights, and Awards valued by
reference to the value of shares of Common Stock or the value of securities of
or the performance of the Company.  The Committee shall determine the
terms and conditions of such Awards, which may include performance
criteria.  Shares delivered pursuant to an Award in the nature of a
purchase right granted under this Section 8.3 shall be purchased for such
consideration, paid for at such times, by such methods, and in such forms,
including, without limitation, cash, shares of Common Stock, other Awards, or
other property, as the Committee shall determine.

       

      9.           Change in
Control.

      


      9.1.           Definition.  For
purposes of this Section 9, a “Change in Control” means,
except as otherwise provided in any Award Agreement of a
Participant:

      


      (a)           the
merger or consolidation of the Company into
another entity unless the stockholders of the Company immediately prior to such
merger or consolidation own, directly or indirectly, more than 50% of the total
combined voting power of the surviving entity’s outstanding securities
immediately after such merger or consolidation;

      


      (b)           the
sale, transfer or other disposition of all or substantially all of the assets of
the Company other
than to a person that directly or indirectly controls, is controlled by or is
under common control with the Company prior to such disposition;

      


      (c)           the
liquidation or dissolution of the Company other than in connection
with the merger or consolidation of the Company with and into another entity if
stockholders of the Company immediately prior to such merger or consolidation
own, directly or indirectly, more than 50% of the total combined voting power of
the surviving entity’s outstanding securities immediately after such merger or
consolidation;

      


      (d)           the
acquisition, directly or indirectly, by any person or related group of persons
(other than the Company, a person that directly or indirectly controls or is
controlled by or is under common control with the Company) of the beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than 50% of the total combined voting power of the Company’s
outstanding securities; or


      
        
           


        

        
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      (e)           a
change in the composition of the Board over a period of 12 consecutive months or
less such that a majority of the members of the Board cease, by reason of
one or more contested elections of Board membership, to be comprised of
individuals who have been nominated for election as Board members by a majority
of the Board members immediately preceding such election.

      


      9.2.           Effect of Change in Control
Transactions.  Upon the occurrence of a Change in Control,
except to the extent otherwise provided in a particular Participant’s Award
Agreement, all Awards shall become fully vested and, with respect to any Award
that is an option or stock appreciation right, exercisable in
full.  Each Participant will be afforded an opportunity to exercise
his or her options or stock appreciation rights immediately prior to the
occurrence of the Change in Control (and conditioned upon the consummation of
the Change in Control) so he or she can participate in the transaction if he or
she desires.

       

      10.           General.

      


      10.1.        Effective
Date.  The Plan will become effective upon its approval by the
Board, except that the Plan will automatically terminate if it is not approved
by the Company’s stockholders within one year of its approval by the
Board.

      


      10.2.        Term.  No
Awards may be granted under the Plan after the tenth anniversary of the date the
Plan is approved by the stockholders of the Company.

      


      10.3.        Non-transferability of
Awards.  Except, in the event of the Participant’s death, by
will or the laws of descent and distribution to the limited extent provided in
the Plan or the Award Agreement, unless approved by the Committee, no stock
option, restricted stock, performance award or other Award may be transferred,
pledged or assigned by the holder thereof, either voluntarily or involuntarily,
directly or indirectly, by operation of law or otherwise, and the Company shall
not be required to recognize any attempted assignment of such rights by any
Participant.  During a Participant’s lifetime, an Award may be
exercised only by him or her or by his or her guardian or legal
representative.

       

      
        
           


        

        
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      10.4.        Additional
Conditions.  Notwithstanding anything in the Plan to the
contrary: (a) the Company may, if it shall determine it necessary or desirable
for any reason, at the time of award of any Award or the issuance of any shares
of Common Stock pursuant to any Award, require the recipient of the Award, as a
condition to the receipt thereof or to the receipt of shares of Common Stock
issued pursuant thereto, to deliver to the Company a written representation of
present intention to acquire the Award or the shares of Common Stock issued
pursuant thereto for his or her own account for investment and not for
distribution; and (b) if at any time the Company further determines, in its sole
discretion, that the listing, registration or qualification (or any updating of
any such document) of any Award or the shares of Common Stock issuable pursuant
thereto is necessary on any securities exchange or under any federal or state
securities or blue sky law, or that the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in connection
with the award of any Award, the issuance of shares of Common Stock pursuant
thereto, or the removal of any restrictions imposed on such shares, such Award
shall not be awarded or such shares of Common Stock shall not be issued or such
restrictions shall not be removed, as the case may be, in whole or in part,
unless such listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the
Company.  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 the Plan, and a Participant may not
sell, assign, transfer or otherwise dispose of shares of Common Stock issued
pursuant to any Awards granted under the Plan, unless (a) there is in
effect with respect to such shares a registration statement under the Securities
Act of 1933, as amended (the “Securities Act”), and any
applicable state or foreign securities laws 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 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 of Common Stock, as may be deemed necessary or advisable by
the Company in order to comply with such securities law or other
restrictions.  The Committee may restrict the rights of Participants
to the extent necessary to comply with Section 16(b) of the Exchange Act, the
Code or any other applicable law or regulation. The grant of an Award pursuant
to the Plan shall not limit in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure or to merge, exchange or consolidate or to dissolve,
liquidate, sell or transfer all or any part of its business or
assets.

      


      10.5.        Adjustment.  In
the event of any merger, consolidation or reorganization of the Company with any
other corporation or corporations, there shall be substituted for each of the
shares of Common Stock then subject to the Plan, including shares subject to
restrictions, options, or achievement of performance objectives, the number and
kind of shares of stock or other securities to which the holders of the shares
of Common Stock will be entitled pursuant to the transaction.  In the
event of any recapitalization, reclassification, stock dividend, stock split,
combination of shares or other similar change in the corporate structure of the
Company or capitalization of the Company, the exercise price of an outstanding
Award and the number of shares of Common Stock then subject to the Plan, and the
maximum number of shares with respect to which Awards may be granted in any
year, including shares subject to restrictions, options or achievements of
performance shares, shall be adjusted in proportion to the change in outstanding
shares of Common Stock in order to prevent dilution or enlargement of the rights
of the Participants.  Notwithstanding the foregoing, the number of
shares of Common Stock which may be issued under the Plan shall not be adjusted
as a result of the reverse stock split of the Common Stock effected on February
24, 2010.  In the event of any such adjustments, the purchase price of
any option, the performance objectives of any Award, and the shares of Common
Stock issuable pursuant to any Award shall be adjusted as and to the extent
appropriate, in the discretion of the Committee, to provide Participants with
the same relative rights before and after such adjustment.  The
adjustments described above will be made in a manner consistent with Section
162(m) and Section 409A of the Code.


      
        
           


        

        
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      10.6.        Incentive Plans and
Agreements.  The terms of each Award shall be stated in a plan
or Award Agreement approved by the Committee.  The Committee may also
determine to enter into agreements with holders of options to reclassify or
convert certain outstanding options, within the terms of the Plan, as Incentive
Stock Options or as Non-Qualified Stock Options.

      


      10.7.        Withholding.

      


      (a)           The
Company shall have the right to (i) withhold and deduct from any payments made
under the Plan or 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 of
the Company), or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any and all foreign, federal, state and
local withholding and employment-related tax requirements attributable to an
Award, or (ii) 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 Award.  At any time when a
Participant is required to pay to the Company an amount required to be withheld
under applicable income tax laws in connection with a distribution of Common
Stock or upon exercise of an option, the Participant, with the prior consent of
the Committee, may satisfy this obligation in whole or in part by electing to
have the Company withhold from the distribution shares of Common Stock having a
value up to the minimum amount required to be withheld.  The value of
the shares to be withheld shall be based on the Fair Market Value of the Common
Stock on the date that the amount of tax to be withheld shall be
determined.

      


      (b)           If
the option granted to a Participant hereunder is an Incentive Stock Option, and
if the Participant sells or otherwise disposes of any of the shares of Common
Stock acquired pursuant to the Incentive Stock Option on or before the later of
(i) the date two years after the date of grant, or (ii) the date one year after
the date of exercise, the Participant shall immediately notify the Company in
writing of such disposition.

      


      10.8.        No Continued Employment,
Engagement or Right to Corporate Assets.  No Participant under
the Plan shall have any right, because of his or her participation in the Plan,
to continue in the employ of the Company for any period of time or to any right
to continue his or her present or any other rate of
compensation.  Nothing contained in the Plan shall be construed as
giving an employee, consultant, such persons’ beneficiaries or any other person
any equity or interests of any kind in the assets of the Company or creating a
trust of any kind or a fiduciary relationship of any kind between the Company
and any such person.

      


      10.9.        Amendment of the
Plan.  The Board may amend, suspend or discontinue the Plan at
any time; provided, however, that no amendments to the Plan will be effective
without approval of the stockholders of the Company if stockholder approval of
the amendment is then required pursuant to Section 422 or Section 162(m) of the
Code, the regulations promulgated thereunder or the rules of any securities
exchange or similar regulatory body.  Except as provided in Section
10.17, no termination, suspension or amendment of the Plan may adversely affect
any outstanding Award without the consent of the affected Participant or his or
her beneficiary; provided, however, that this sentence will not impair the right
of the Committee to take whatever action it deems appropriate under the
Plan.


      
        
           


        

        
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      10.10.      Definition of Fair Market
Value. For purposes of the Plan, the “Fair Market Value” of a share
of Common Stock at a specified date means, so long as the Common Stock is traded
on a nationally recognized securities exchange or automated dealer quotation
system, the closing price of the Common Stock on that day.  If the
Common Stock is not traded on such an exchange or system and is traded solely on
the over-the-counter market, the Fair Market Value shall be the average of the
closing bid and asked prices for that day.  If the Common Stock is not
publically traded, then Fair Market Value shall mean the value assigned to a
share for a given day by the Committee in good faith in the exercise of its
reasonable discretion and in a manner consistent with Code Section
409A.

      


      10.11.      Breach of Confidentiality,
Assignment of Inventions, or Non-Compete Agreements. Notwithstanding
anything in the Plan to the contrary, in the event that a Participant materially
breaches the terms of any confidentiality, assignment of inventions, or
non-compete agreement entered into with the Company or any subsidiary of the
Company, whether such breach occurs before or after termination of such
Participant’s employment with or service to the Company or any subsidiary, the
Committee in its sole discretion may immediately terminate all rights of the
Participant under the Plan and any agreements evidencing an Award then held by
the Participant, whether or not vested, without notice of any kind. To the
extent that any Participant has been paid in cash, the Company may seek to
recover such payment.

      


      10.12.      Governing
Law.  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 New York, notwithstanding the conflicts of laws
principles of any jurisdictions.

      


      10.13.      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.

      


      10.14.      Lock-up
Agreement.  Each recipient of securities hereunder agrees, in
connection with the first registration with the United States Securities and
Exchange Commission under the Securities Act of 1933, as amended, of the public
sale of any of the Company’s securities, not to sell, make any short sale of,
loan, grant any option for the purchase of or otherwise dispose of any
securities of the Company (other than those included in the registration)
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed 180 days) from the effective
date of such registration as the Company or the underwriters, as the case may
be, shall specify.  Each such recipient agrees that the Company may
instruct its transfer agent to place stop-transfer notations in its records to
enforce this Section 10.14.  Each such recipient agrees to execute a
form of agreement reflecting the foregoing restrictions as requested by the
underwriters managing such offering.


      
        
           


        

        
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      10.15.      Nature of
Payments.  Awards shall be special incentive payments to the
Participants and shall not be taken into account in computing the amount of
salary or compensation of a Participant for purposes of determining any pension,
retirement, death or other benefit under (a) any pension, retirement,
profit-sharing, bonus, insurance or other employee benefit plan of the Company
or any subsidiary or (b) any agreement between the Company or any subsidiary and
a Participant, except as such plan or agreement shall otherwise expressly
provide.

      


      10.16.      Non-Uniform
Determinations.  The Committee’s determinations under the Plan
need not be uniform and may be made by the Committee selectively among persons
who receive, or are eligible to receive, Awards, whether or not such persons are
similarly situated.  Without limiting the generality of the foregoing,
the Committee shall be entitled to enter into non-uniform and selective Award
agreements as to (a) the identity of the Participants, (b) the terms and
provisions of Awards and (c) the treatment of terminations of employment or
service.

      


      10.17.      Rule
409A.  It is the intention of the Board that the Plan comply
strictly with the provisions of Code Section 409A to the extent feasible and the
Committee shall exercise its discretion in granting Awards hereunder (and the
terms of such Award grants), accordingly.  The Plan and any grant of
an Award hereunder may be amended from time to time without the consent of the
participant as may be necessary or appropriate to comply with the Code Section
409A.

      


      10.18.      Reservation of
Shares.  The Company, during the term of the Plan, will at all
times reserve and keep available such number of shares of Common Stock as shall
be sufficient to satisfy the requirements of the Plan.


      
        
           


        

        
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