Exhibit 10.13




 




AMENDED AND RESTATED




 




CONSONUS TECHNOLOGIES, INC.




 




2007 INCENTIVE COMPENSATION PLAN




 




(as amended and Restated
as of November 30th, 2007)




 

















 




AMENDED AND RESTATED




 




CONSONUS TECHNOLOGIES, INC.




 




2007 INCENTIVE COMPENSATION PLAN




 




	
  1.

  	
   

  	
  Purpose

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Administration

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Shares Subject to Plan

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Eligibility; Per-Person Award Limitations

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Specific Terms of Awards

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Certain Provisions Applicable to Awards

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Code Section 162(m) Provisions

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Change in Control

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  General Provisions

  	
   

  	
  18

  





 


i

















 




AMENDED AND
RESTATED




 




CONSONUS
TECHNOLOGIES, INC.




 




2007 INCENTIVE
COMPENSATION PLAN




 




1.             Purpose. The purpose of this CONSONUS TECHNOLOGIES, INC.
2007 INCENTIVE COMPENSATION PLAN (the “Plan”) is to assist CONSONUS
TECHNOLOGIES, INC., a Delaware corporation (the “Company”) and its Related
Entities (as hereinafter defined) in attracting, motivating, retaining and
rewarding high-quality executives and other employees, officers, directors,
consultants and other persons who provide services to the Company or its
Related Entities by enabling such persons to acquire or increase a proprietary
interest in the Company in order to strengthen the mutuality of interests
between such persons and the Company’s shareholders, and providing such persons
with performance incentives to expend their maximum efforts in the creation of
shareholder value.




 




2.             Definitions. For purposes of the Plan, the following
terms shall be defined as set forth below, in addition to such terms defined in
Section 1 hereof.




 




(a)           “Award”
means any Option, Stock Appreciation Right, Restricted Stock Award, Deferred
Stock Award, Share granted as a bonus or in lieu of another Award, Dividend
Equivalent, Other Stock-Based Award or Performance Award, together with any
other right or interest, granted to a Participant under the Plan.




 




(b)           “Award
Agreement” means any written agreement, contract or other instrument
or document evidencing any Award granted by the Committee hereunder.




 




(c)           “Beneficiary”
means the person, persons, trust or trusts that have been designated by a
Participant in his or her most recent written beneficiary designation filed
with the Committee to receive the benefits specified under the Plan upon such
Participant’s death or to which Awards or other rights are transferred if and
to the extent permitted under Section 10(b) hereof. If, upon a
Participant’s death, there is no designated Beneficiary or surviving designated
Beneficiary, then the term Beneficiary means the person, persons, trust or
trusts entitled by will or the laws of descent and distribution to receive such
benefits.




 




(d)           “Beneficial
Owner” shall have the meaning ascribed to such term in
Rule 13d-3 under the Exchange Act and any successor to such Rule.




 




(e)           “Board”
means the Company’s Board of Directors.




 




(f)            “Cause” shall, with respect to any
Participant, have the meaning specified in the Award Agreement. In the absence
of any definition in the Award Agreement, “Cause” shall have the equivalent
meaning or the same meaning as “cause” or “for cause” set forth in any
employment, consulting, or other agreement for the performance of services
between the Participant




 

















 




and the Company or a
Related Entity or, in the absence of any such agreement or any such definition
in such agreement, such term shall mean (i) the failure by the Participant
to perform, in a reasonable manner, his or her duties as assigned by the
Company or a Related Entity, (ii) any violation or breach by the
Participant of his or her employment, consulting or other similar agreement
with the Company or a Related Entity, if any, (iii) any violation or
breach by the Participant of any non-competition, non-solicitation,
non-disclosure and/or other similar agreement with the Company or a Related
Entity, (iv) any act by the Participant of dishonesty or bad faith with
respect to the Company or a Related Entity, (v) use of alcohol, drugs or
other similar substances in a manner that adversely affects the Participant’s
work performance, or (vi) the commission by the Participant of any act,
misdemeanor, or crime reflecting unfavorably upon the Participant or the
Company or any Related Entity. The good faith determination by the Committee of
whether the Participant’s Continuous Service was terminated by the Company for
“Cause” shall be final and binding for all purposes hereunder.




 




(g)           “Change
in Control” means a Change in Control as defined in
Section 9(b) of the Plan.




 




(h)           “Code”
means the Internal Revenue Code of 1986, as amended from time to time,
including regulations thereunder and successor provisions and regulations
thereto.




 




(i)            “Committee”
means a committee designated by the Board to administer the Plan; provided,
however, that if the Board fails to designate a committee or if there are no
longer any members on the committee so designated by the Board, then the Board
shall serve as the Committee. In the event that the Company becomes a Publicly
Held Corporation (as hereinafter defined), then the Committee shall consist of
at least two directors, and each member of the Committee shall be (i) a
“non-employee director” within the meaning of 
Rule 16b-3 (or any successor rule) under the Exchange Act, unless
administration of the Plan by “non-employee directors” is not then required in
order for exemptions under Rule 16b-3 to apply to transactions under the
Plan, (ii) an “outside director” within the meaning of Section 162(m)
of the Code, and (iii) ”Independent.”




 




(j)            “Consultant”
means any person (other than an Employee or a Director, solely with respect to
rendering services in such person’s capacity as a director) who is engaged by
the Company or any Related Entity to render consulting or advisory services to
the Company or such Related Entity.




 




(k)           “Continuous
Service” means the uninterrupted provision of services to the
Company or any Related Entity in any capacity of Employee, Director, Consultant
or other service provider. Continuous Service shall not be considered to be interrupted
in the case of (i) any approved leave of absence, (ii) transfers
among the Company, any Related Entities, or any successor entities, in any
capacity of Employee, Director, Consultant or other service provider, or
(iii) any change in status as long as the individual remains in the
service of the Company or a Related Entity in any capacity of Employee,
Director, Consultant or other service provider (except as otherwise provided in
the Award Agreement). An approved leave of absence shall include sick leave,
military leave, or any other authorized personal leave.




 


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(l)            “Deferred
Stock” means a right to receive Shares, including Restricted
Stock, cash measured based upon the value of Shares or a combination thereof,
at the end of a specified deferral period.




 




(m)          “Deferred
Stock Award” means an Award of Deferred Stock granted to a
Participant under Section 6(e) hereof.




 




(n)           “Director”
means a member of the Board or the board of directors of any Related Entity.




 




(o)           “Disability”
means a permanent and total disability (within the meaning of
Section 22(e) of the Code), as determined by a medical doctor satisfactory
to the Committee.




 




(p)           “Dividend
Equivalent” means a right, granted to a Participant under Section 6(g)
hereof, to receive cash, Shares, other Awards or other property equal in value
to dividends paid with respect to a specified number of Shares, or other
periodic payments.




 




(q)           “Effective
Date” means the effective date of the Plan, which shall be
January 2, 2007.




 




(r)            “Eligible
Person” means each officer, Director, Employee, Consultant and
other person who provides services to the Company or any Related Entity. The
foregoing notwithstanding, only employees of the Company, or any parent
corporation or subsidiary corporation of the Company (as those terms are
defined in Sections 424(e) and (f) of the Code, respectively), shall be
Eligible Persons for purposes of receiving any Incentive Stock Options. An
Employee on leave of absence may be considered as still in the employ of the
Company or a Related Entity for purposes of eligibility for participation in
the Plan.




 




(s)           “Employee”
means any person, including an officer or Director, who is an employee of the
Company or any Related Entity. The payment of a director’s fee by the Company
or a Related Entity shall not be sufficient to constitute “employment” by the
Company.




 




(t)            “Exchange
Act” means the Securities Exchange Act of 1934, as amended from
time to time, including rules thereunder and successor provisions and rules
thereto.




 




(u)           “Fair
Market Value” means the fair market value of Shares, Awards or
other property as determined by the Committee, or under procedures established
by the Committee. Unless otherwise determined by the Committee, the Fair Market
Value of a Share as of any given date after which the Company is a Publicly
Held Corporation shall be the closing sale price per Share reported on a
consolidated basis for stock listed on the principal stock exchange or market
on which Shares are traded on the date immediately preceding the date as of
which such value is being determined or, if there is no sale on that date, then
on the last previous day on which a sale was reported.




 


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(v)           “Good
Reason” shall, with respect to any Participant, have the meaning
specified in the Award Agreement. In the absence of any definition in the Award
Agreement, “Good Reason” shall have the equivalent meaning or the same meaning
as “good reason” or “for good reason” set forth in any employment, consulting
or other agreement for the performance of services between the Participant and
the Company or a Related Entity or, in the absence of any such agreement or any
such definition in such agreement, such term shall mean (i) the assignment
to the Participant of any duties inconsistent in any material respect with the
Participant’s duties or responsibilities as assigned by the Company or a
Related Entity, or any other action by the Company or a Related Entity which
results in a material diminution in such duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company or a Related Entity promptly
after receipt of notice thereof given by the Participant; (ii) any
material failure by the Company or a Related Entity to comply with its
obligations to the Participant as agreed upon, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company or a Related Entity promptly after receipt of notice
thereof given by the Participant; or (iii) the Company’s or Related
Entity’s requiring the Participant to be based at any office or location
outside of fifty miles from the location of employment or service as of the
date of Award, except for travel reasonably required in the performance of the
Participant’s responsibilities.




 




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




 




(x)            “Independent,”
when referring to either the Board or members of the Committee, shall have the
same meaning as used in the rules of the national securities exchange on which
any securities of the Company are listed for trading, and if not listed for
trading, by the rules of the Nasdaq Stock Market.




 




(y)           “Incumbent
Board” means the Incumbent Board as defined in
Section 9(b)(ii) of the Plan.




 




(z)            “Option”
means a right granted to a Participant under Section 6(b) hereof, to
purchase Shares or other Awards at a specified price during specified time
periods.




 




(aa)         “Optionee”
means a person to whom an Option is granted under this Plan or any person who
succeeds to the rights of such person under this Plan.




 




(bb)         “Other
Stock-Based Awards” means Awards granted to a Participant under
Section 6(i) hereof.




 




(cc)         “Participant”
means a person who has been granted an Award under the Plan which remains
outstanding, including a person who is no longer an Eligible Person.




 




(dd)         “Performance
Award” shall mean any Award of Performance Shares or Performance
Units granted pursuant to Section 6(h).




 


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(ee)         “Performance
Period” means that period established by the Committee at the
time any Performance Award is granted or at any time thereafter during which
any performance goals specified by the Committee with respect to such Award are
to be measured.




 




(ff)           “Performance
Share” means any grant pursuant to Section 6(h) of a unit
valued by reference to a designated number of Shares, which value may be paid
to the Participant by delivery of such property as the Committee shall
determine, including cash, Shares, other property, or any combination thereof,
upon achievement of such performance goals during the Performance Period as the
Committee shall establish at the time of such grant or thereafter.




 




(gg)         “Performance
Unit” means any grant pursuant to Section 6(h) of a unit
valued by reference to a designated amount of property (including cash) other
than Shares, which value may be paid to the Participant by delivery of such
property as the Committee shall determine, including cash, Shares, other
property, or any combination thereof, upon achievement of such performance
goals during the Performance Period as the Committee shall establish at the
time of such grant or thereafter.




 




(hh)         “Person”
shall have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act and used in Sections 13(d) and 14(d) thereof, and shall
include a “group” as defined in Section 13(d) thereof.




 




(ii)           “Publicly
Held Corporation” shall mean a publicly held corporation as that
term is used under Section 162(m)(2) of the Code.




 




(jj)           “Related
Entity” means any Subsidiary, and any business, corporation,
partnership, limited liability company or other entity designated by the Board,
in which the Company  or a Subsidiary
holds a  substantial ownership interest,
directly or indirectly.




 




(kk)         “Restricted
Stock” means any Share issued with the restriction that the
holder may not sell, transfer, pledge or assign such Share and with such risks
of forfeiture and other restrictions as the Committee, in its sole discretion,
may impose (including any restriction on the right to vote such Share and the
right to receive any dividends), which restrictions may lapse separately or in
combination at such time or times, in installments or otherwise, as the
Committee may deem appropriate.




 




(ll)           “Restricted
Stock Award” means an Award granted to a Participant under
Section 6(d) hereof.




 




(mm)       “Rule 16b-3”
means Rule 16b-3, as from time to time in effect and applicable to the
Plan and Participants, promulgated by the Securities and Exchange Commission
under Section 16 of the Exchange Act.




 




(nn)         “Shares”
means the shares of common stock of the Company, par value $0.000001 per share,
and such other securities as may be substituted (or resubstituted) for Shares
pursuant to Section 10(c) hereof.




 


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(oo)         “Stock
Appreciation Right” means a right granted to a Participant under
Section 6(c) hereof.




 




(pp)         “Subsidiary”
means any corporation or other entity in which the Company has a direct or
indirect ownership interest of 50% or more of the total combined voting power
of the then outstanding securities or interests of such corporation or other
entity entitled to vote generally in the election of directors or in which the
Company has the right to receive 50% or more of the distribution of profits or
50% or more of the assets on liquidation or dissolution.




 




(qq)         “Substitute
Awards” means Awards granted or Shares issued by the Company in
assumption of, or in substitution or exchange for, Awards previously granted,
or the right or obligation to make future Awards, by a company acquired by the
Company or any Related Entity or with which the Company or any Related Entity
combines.




 




3.             Administration.




 




(a)           Authority
of the Committee. The Plan shall be administered by the
Committee, provided, however, that except as otherwise expressly provided in
this Plan, the Board may exercise any power or authority granted to the
Committee under this Plan and in that case, references herein shall be deemed
to include references to the Board. The Committee shall have full and final
authority, subject to and consistent with the provisions of the Plan, to select
Eligible Persons to become Participants, grant Awards, determine the type,
number and other terms and conditions of, and all other matters relating to,
Awards, prescribe Award Agreements (which need not be identical for each
Participant) and rules and regulations for the administration of the Plan,
construe and interpret the Plan and Award Agreements and correct defects,
supply omissions or reconcile inconsistencies therein, and to make all other
decisions and determinations as the Committee may deem necessary or advisable
for the administration of the Plan. In exercising any discretion granted to the
Committee under the Plan or pursuant to any Award, the Committee shall not be
required to follow past practices, act in a manner consistent with past
practices, or treat any Eligible Person or Participant in a manner consistent
with the treatment of other Eligible Persons or Participants.




 




(b)           Manner
of Exercise of Committee Authority. In the event that the
Company becomes a Publicly Held Corporation, the Committee, and not the Board,
shall exercise sole and exclusive discretion on any matter relating to a
Participant then subject to Section 16 of the Exchange Act with respect to
the Company to the extent necessary in order that transactions by such
Participant shall be exempt under Rule 16b-3 under the Exchange Act. Any
action of the Committee shall be final, conclusive and binding on all persons,
including the Company, its Related Entities, Participants, Beneficiaries,
transferees under Section 10(b) hereof or other persons claiming rights
from or through a Participant, and shareholders. The express grant of any
specific power to the Committee, and the taking of any action by the Committee,
shall not be construed as limiting any power or authority of the Committee. The
Committee may delegate to officers or managers of the Company or any Related
Entity, or committees thereof, the authority, subject to such terms as the
Committee shall determine, to perform such functions, including administrative
functions as the




 


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Committee may determine
to the extent that such delegation will not result in the loss of an exemption
under Rule 16b-3(d)(1) for Awards granted to Participants subject to
Section 16 of the Exchange Act in respect of the Company and will not
cause Awards intended to qualify as “performance-based compensation” under Code
Section 162(m) to fail to so qualify. The Committee may appoint agents to
assist it in administering the Plan.




 




(c)           Limitation
of Liability. The Committee and the Board, and each member
thereof, shall be entitled to, in good faith, rely or act upon any report or
other information furnished to him or her by any officer or Employee, the
Company’s independent auditors, Consultants or any other agents assisting in
the administration of the Plan. Members of the Committee and the Board, and any
officer or Employee acting at the direction or on behalf of the Committee or
the Board, shall not be personally liable for any action or determination taken
or made in good faith with respect to the Plan, and shall, to the extent
permitted by law, be fully indemnified and protected by the Company with
respect to any such action or determination.




 




4.             Shares Subject to Plan.




 




(a)           Limitation
on Overall Number of Shares Available for Delivery Under Plan.
Subject to adjustment as provided in Section 10(c) hereof, the total
number of Shares reserved and available for delivery under the Plan shall be
700,000. Any Shares delivered under the Plan may consist, in whole or in part,
of authorized and unissued shares or treasury shares.




 




(b)           Automatic
Share Reserve Increase. The number of Shares available for
issuance under the Plan shall be increased on the first day of the calendar year of the
Company (“Fiscal year”) following any Fiscal Year in which the number of
Shares available for issuance under the Plan falls below 150,000 Shares, subject to the
adjustment provisions of Section 10(c) herein, and shall be increased in an
amount necessary to have 150,000 Shares, subject to the adjustment provisions
of Section 10(c) herein, available for issuance in such Fiscal Year, or
(ii) such number of Shares determined by the Board.




 




(c)           Application
of Limitation to Grants of Award. No Award may be granted if the
number of Shares to be delivered in connection with such an Award or, in the
case of an Award relating to Shares but settled only in cash (such as cash-only
Stock Appreciation Rights), the number of Shares to which such Award relates,
exceeds the number of Shares remaining available for delivery under the Plan,
minus the number of Shares deliverable in settlement of or relating to then
outstanding Awards. The Committee may adopt reasonable counting procedures to
ensure appropriate counting, avoid double counting (as, for example, in the
case of tandem or substitute awards) and make adjustments if the number of
Shares actually delivered differs from the number of Shares previously counted
in connection with an Award.




 


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(d)           Availability
of Shares Not Delivered under Awards and Adjustments to Limits.




 




(i)            If any Shares subject
to an Award are forfeited, expire or otherwise terminate without issuance of
such Shares, or any Award is settled for cash or otherwise does not result in
the issuance of all or a portion of the Shares subject to such Award, the
Shares shall, to the extent of such forfeiture, expiration, termination, cash
settlement or non-issuance, again be available for Awards under the Plan,
subject to Section 4(c)(v) below.




 




(ii)           In the event that any
Option or other Award granted hereunder is exercised through the tendering of
Shares (either actually or by attestation) or by the withholding of Shares by the
Company, or withholding tax liabilities arising from such option or other award
are satisfied by the tendering of Shares (either actually or by attestation) or
by the withholding of Shares by the Company, then only the number of Shares
issued net of the Shares tendered or withheld shall be counted for purposes of
determining the maximum number of Shares available for grant under the Plan.




 




(iii)          Substitute Awards shall
not reduce the Shares authorized for grant under the Plan or authorized for
grant to a Participant in any period. Additionally, in the event that a company
acquired by the Company or any Related Entity or with which the Company or any
Related Entity combines has shares available under a pre-existing plan approved
by shareholders and not adopted in contemplation of such acquisition or
combination, the shares available for delivery pursuant to the terms of such
pre-existing plan (as adjusted, to the extent appropriate, using the exchange
ratio or other adjustment or valuation ratio or formula used in such
acquisition or combination to determine the consideration payable to the
holders of common stock of the entities party to such acquisition or
combination) may be used for Awards under the Plan and shall not reduce the
Shares authorized for delivery under the Plan.




 




(iv)          Any Shares that again
become available for delivery pursuant to this Section 4(c) shall be added
back as one (1) Share.




 




(v)           Notwithstanding
anything in this Section 4(c) to the contrary but subject to adjustment as
provided in Section 10(c) hereof, the maximum aggregate number of Shares
that may be issued under the Plan as a result of the exercise of the Incentive
Stock Options shall be 550,000 shares.




 




5.             Eligibility; Per-Person Award Limitations. Awards may be
granted under the Plan only to Eligible Persons. Subject to adjustment as
provided in Section 10(c), in any fiscal year of the Company during any
part of which the Plan is in effect, no Participant may be granted
(i) Options or Stock Appreciation Rights with respect to more than 220,000
Shares or (ii) Restricted Stock, Deferred Stock, Performance Shares and/or
Other Stock-Based Awards with respect to more than 220,000 Shares. In addition,
the maximum dollar value payable to any one Participant with respect to Performance
Units is (x) $1,000,000 with respect to any 12 month Performance Period
(pro-rated for any Performance Period that is less than 12 months based upon
the ratio of the number of days in




 


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the Performance Period as
compared to 365), and (y) with respect to any Performance Period that is
more than 12 months, $2,000,000.




 




6.             Specific Terms of Awards.




 




(a)           General.
Awards may be granted on the terms and conditions set forth in this
Section 6. In addition, the Committee may impose on any Award or the
exercise thereof, at the date of grant or thereafter (subject to
Section 10(e)), such additional terms and conditions, not inconsistent
with the provisions of the Plan, as the Committee shall determine, including
terms requiring forfeiture of Awards in the event of termination of the
Participant’s Continuous Service and terms permitting a Participant to make
elections relating to his or her Award. The Committee shall retain full power
and discretion to accelerate, waive or modify, at any time, any term or
condition of an Award that is not mandatory under the Plan. Except in cases in
which the Committee is authorized to require other forms of consideration under
the Plan, or to the extent other forms of consideration must be paid to satisfy
the requirements of Delaware law, no consideration other than services may be
required for the grant (as opposed to the exercise) of any Award.




 




(b)           Options.
The Committee is authorized to grant Options to any Eligible Person on the following
terms and conditions:




 




(i)            Exercise
Price. Other than in connection with Substitute Awards, the
exercise price per Share purchasable under an Option shall be determined by the
Committee, provided that such exercise price shall not, in the case of Incentive
Stock Options, be less than 100% of the Fair Market Value of a Share on the
date of grant of the Option and shall not, in any event, be less than the par
value of a Share on the date of grant of the Option. If an Employee owns or is
deemed to own (by reason of the attribution rules applicable under
Section 424(d) of the Code) more than 10% of the combined voting power of
all classes of stock of the Company (or any parent corporation or subsidiary
corporation of the Company, as those terms are defined in Sections 424(e)
and (f) of the Code, respectively) and an Incentive Stock Option is granted to
such employee, the exercise price of such Incentive Stock Option (to the extent
required by the Code at the time of grant) shall be no less than 110% of the Fair
Market Value a Share on the date such Incentive Stock Option is granted.




 




(ii)           Time
and Method of Exercise. The Committee shall determine the time
or times at which or the circumstances under which an Option may be exercised
in whole or in part (including based on achievement of performance goals and/or
future service requirements), the time or times at which Options shall cease to
be or become exercisable following termination of Continuous Service or upon
other conditions, the methods by which the exercise price may be paid or deemed
to be paid (including in the discretion of the Committee a cashless exercise
procedure), the form of such payment, including, without limitation, cash,
Shares (including without limitation the withholding of Shares otherwise
deliverable pursuant to the Award), other Awards or awards granted under other
plans of the Company or a Related Entity, or other property (including notes or
other contractual obligations of Participants to make payment on a deferred
basis provided that such deferred payments are not in violation of the
Sarbanes-Oxley Act of 2002, or any rule or regulation




 


9

















 




adopted thereunder or any
other applicable law), and the methods by or forms in which Shares will be
delivered or deemed to be delivered to Participants.




 




(iii)          Incentive
Stock Options. The terms of any Incentive Stock Option granted
under the Plan shall comply in all respects with the provisions of
Section 422 of the Code. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to Incentive Stock Options
(including any Stock Appreciation Right issued in tandem therewith) shall be
interpreted, amended or altered, nor shall any discretion or authority granted
under the Plan be exercised, so as to disqualify either the Plan or any
Incentive Stock Option under Section 422 of the Code, unless the
Participant has first requested, or consents to, the change that will result in
such disqualification. Thus, if and to the extent required to comply with
Section 422 of the Code, Options granted as Incentive Stock Options shall
be subject to the following special terms and conditions:




 




(A)          The Option shall not be
exercisable more than ten years after the date such Incentive Stock Option is
granted; provided, however, that if a Participant owns or is deemed to own (by
reason of the attribution rules of Section 424(d) of the Code) more than
10% of the combined voting power of all classes of stock of the Company (or any
parent corporation or subsidiary corporation of the Company, as those terms are
defined in Sections 424(e) and (f) of the Code, respectively) and the
Incentive Stock Option is granted to such Participant, the term of the
Incentive Stock Option shall be (to the extent required by the Code at the time
of the grant) for no more than five years from the date of grant; and




 




(B)           The aggregate Fair
Market Value (determined as of the date the Incentive Stock Option is granted)
of the Shares with respect to which Incentive Stock Options granted under the
Plan and all other option plans of the Company (and any parent corporation or
subsidiary corporation of the Company, as those terms are defined in
Sections 424(e) and (f) of the Code, respectively) that become exercisable
for the first time by the Participant during any calendar year shall not (to
the extent required by the Code at the time of the grant) exceed $100,000.




 




(c)           Stock
Appreciation Rights. The Committee may grant Stock Appreciation
Rights to any Eligible Person in conjunction with all or part of any Option
granted under the Plan or at any subsequent time during the term of such Option
(a “Tandem Stock Appreciation Right”), or without regard to any Option (a
“Freestanding Stock Appreciation Right”), in each case upon such terms and
conditions as the Committee may establish in its sole discretion, not
inconsistent with the provisions of the Plan, including the following:




 




(i)            Right
to Payment. A Stock Appreciation Right shall confer on the
Participant to whom it is granted a right to receive, upon exercise thereof,
the excess of (A) the Fair Market Value of one Share on the date of
exercise over (B) the grant price of the Stock Appreciation Right as
determined by the Committee. The grant price of a Stock Appreciation Right  shall not be less than the Fair Market Value
of a Share on the date of grant, in the case of a Freestanding Stock
Appreciation Right, or less than the associated Option exercise price, in the
case of a Tandem Stock Appreciation Right.




 


10

















 




(ii)           Other
Terms. The Committee shall determine at the date of grant or
thereafter, the time or times at which and the circumstances under which a
Stock Appreciation Right may be exercised in whole or in part (including based
on achievement of performance goals and/or future service requirements), the
time or times at which Stock Appreciation Rights shall cease to be or become
exercisable following termination of Continuous Service or upon other
conditions, the method of exercise, method of settlement, form of consideration
payable in settlement, method by or forms in which Shares will be delivered or
deemed to be delivered to Participants, whether or not a Stock Appreciation
Right shall be in tandem or in combination with any other Award, and any other
terms and conditions of any Stock Appreciation Right.




 




(iii)          Tandem
Stock Appreciation Rights. Any Stock Appreciation Right that is
designated by the Committee as a Tandem Stock Appreciation Right may be granted
at the same time as the related Option is granted or, for Options that are not
Incentive Stock Options, at any time thereafter before exercise or expiration
of such Option. Any Tandem Stock Appreciation Right related to an Option may be
exercised only when the related Option would be exercisable and the Fair Market
Value of the Shares subject to the related Option exceeds the exercise price at
which Shares can be acquired pursuant to the Option. In addition, if a Tandem
Stock Appreciation Right exists with respect to less than the full number of
Shares covered by a related Option, then an exercise or termination of such
Option shall not reduce the number of Shares to which the Tandem Stock
Appreciation Right applies until the number of Shares then exercisable under
such Option equals the number of Shares to which the Tandem Stock Appreciation
Right applies. Any Option related to a Tandem Stock Appreciation Right shall no
longer be exercisable to the extent the Tandem Stock Appreciation Right has
been exercised, and any Tandem Stock Appreciation Right shall be forfeited to
the extent the related Option has been exercised.




 




(d)           Restricted
Stock Awards. The Committee is authorized to grant Restricted
Stock Awards to any Eligible Person on the following terms and conditions:




 




(i)            Grant
and Restrictions. Restricted Stock Awards shall be subject to
such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, or as otherwise provided in
this Plan, covering a period of time specified by the Committee (the
“Restriction Period”). The terms of any Restricted Stock Award granted under
the Plan shall be set forth in a written Award Agreement which shall contain
provisions determined by the Committee and not inconsistent with the Plan. The restrictions
may lapse separately or in combination at such times, under such circumstances
(including based on achievement of performance goals and/or future service
requirements), in such installments or otherwise, as the Committee may
determine at the date of grant or thereafter. Except to the extent restricted
under the terms of the Plan and any Award Agreement relating to a Restricted
Stock Award, a Participant granted Restricted Stock shall have all of the
rights of a shareholder, including the right to vote the Restricted Stock and
the right to receive dividends thereon (subject to any mandatory reinvestment
or other requirement imposed by the Committee). During the Restriction Period,
subject  to Section 10(b) below, the
Restricted Stock may not be sold, transferred, pledged, hypothecated, margined
or otherwise encumbered by the Participant.




 


11

















 




(ii)           Forfeiture.
Except as otherwise determined by the Committee, upon termination of a
Participant’s Continuous Service during the applicable Restriction Period, the
Participant’s Restricted Stock that is at that time subject to a risk of
forfeiture that has not lapsed or otherwise been satisfied shall be forfeited
and reacquired by the Company; provided that the Committee may provide, by rule
or regulation or in any Award Agreement, or may determine in any individual
case, that forfeiture conditions relating to Restricted Stock Awards shall be
waived in whole or in part in the event of terminations resulting from specified
causes.




 




(iii)          Certificates
for Stock. Restricted Stock granted under the Plan may be
evidenced in such manner as the Committee shall determine. If certificates
representing Restricted Stock are registered in the name of the Participant,
the Committee may require that such certificates bear an appropriate legend
referring to the terms, conditions and restrictions applicable to such
Restricted Stock, that the Company retain physical possession of the
certificates, and that the Participant deliver a stock power to the Company,
endorsed in blank, relating to the Restricted Stock.




 




(iv)          Dividends
and Splits. As a condition to the grant of a Restricted Stock
Award, the Committee may require or permit a Participant to elect that any cash
dividends paid on a Share of Restricted Stock be automatically reinvested in
additional Shares of Restricted Stock or applied to the purchase of additional
Awards under the Plan. Unless otherwise determined by the Committee, Shares
distributed in connection with a stock split or stock dividend, and other
property distributed as a dividend, shall be subject to restrictions and a risk
of forfeiture to the same extent as the Restricted Stock with respect to which
such Shares or other property have been distributed.




 




(e)           Deferred
Stock Award. The Committee is authorized to grant Deferred Stock
Awards to any Eligible Person on the following terms and conditions:




 




(i)            Award
and Restrictions. Satisfaction of a Deferred Stock Award shall
occur upon expiration of the deferral period specified for such Deferred Stock
Award by the Committee (or, if permitted by the Committee, as elected by the
Participant). In addition, a Deferred Stock Award shall be subject to such
restrictions (which may include a risk of forfeiture) as the Committee may
impose, if any, which restrictions may lapse at the expiration of the deferral
period or at earlier specified times (including based on achievement of
performance goals and/or future service requirements), separately or in
combination, in installments or otherwise, as the Committee may determine. A
Deferred Stock Award may be satisfied by delivery of Shares, cash equal to the
Fair Market Value of the specified number of Shares covered by the Deferred
Stock, or a combination thereof, as determined by the Committee at the date of
grant or thereafter. Prior to satisfaction of a Deferred Stock Award, a
Deferred Stock Award carries no voting or dividend or other rights associated
with Share ownership.




 




(ii)           Forfeiture.
Except as otherwise determined by the Committee, upon termination of a
Participant’s Continuous Service during the applicable deferral period or
portion thereof to which forfeiture conditions apply (as provided in the Award
Agreement evidencing the Deferred Stock Award), the Participant’s Deferred
Stock Award that is at that time subject to a risk




 


12

















 




of forfeiture that
has not lapsed or otherwise been satisfied shall be forfeited; provided that
the Committee may provide, by rule or regulation or in any Award Agreement, or
may determine in any individual case, that forfeiture conditions relating to a
Deferred Stock Award shall be waived in whole or in part in the event of
terminations resulting from specified causes, and the Committee may in other
cases waive in whole or in part the forfeiture of any Deferred Stock Award.




 




(iii)          Dividend
Equivalents. Unless otherwise determined by the Committee at
date of grant, any Dividend Equivalents that are granted with respect to any
Deferred Stock Award shall be either (A) paid with respect to such
Deferred Stock Award at the dividend payment date in cash or in Shares of
unrestricted stock having a Fair Market Value equal to the amount of such
dividends, or (B) deferred with respect to such Deferred Stock Award and
the amount or value thereof automatically deemed reinvested in additional
Deferred Stock, other Awards or other investment vehicles, as the Committee
shall determine or permit the Participant to elect.




 




(f)            Bonus
Stock and Awards in Lieu of Obligations. The Committee is
authorized to grant Shares to any Eligible Persons as a bonus, or to grant
Shares or other Awards in lieu of obligations to pay cash or deliver other
property under the Plan or under other plans or compensatory arrangements,
provided that, in the case of Eligible Persons subject to Section 16 of
the Exchange Act, the amount of such grants remains within the discretion of
the Committee to the extent necessary to ensure that acquisitions of Shares or
other Awards are exempt from liability under Section 16(b) of the Exchange
Act. Shares or Awards granted hereunder shall be subject to such other terms as
shall be determined by the Committee.




 




(g)           Dividend
Equivalents. The Committee is authorized to grant Dividend
Equivalents to any Eligible Person entitling the Eligible Person to receive
cash, Shares, other Awards, or other property equal in value to the dividends
paid with respect to a specified number of Shares, or other periodic payments.
Dividend Equivalents may be Awarded on a free-standing basis or in connection
with another Award. The Committee may provide that Dividend Equivalents shall
be paid or distributed when accrued or shall be deemed to have been reinvested
in additional Shares, Awards, or other investment vehicles, and subject to such
restrictions on transferability and risks of forfeiture, as the Committee may
specify.




 




(h)           Performance
Awards. The Committee is authorized to grant Performance Awards
to any Eligible Person payable in cash, Shares, or other Awards, on terms and conditions
established by the Committee, subject to the provisions of Section 8 if
and to the extent that the Committee shall, in its sole discretion, determine
that an Award shall be subject to those provisions. The performance criteria to
be achieved during any Performance Period and the length of the Performance
Period shall be determined by the Committee upon the grant of each Performance
Award; provided, however, that a Performance Period shall not be shorter than
twelve (12) months nor longer than five (5) years. Except as provided in
Section 9 or as may be provided in an Award Agreement, Performance Awards
will be distributed only after the end of the relevant Performance Period. The
performance goals to be achieved for each Performance Period shall be
conclusively determined by the Committee and may be based upon the criteria set
forth in Section 8(b), or in the




 


13

















 




case of an Award
that the Committee determines shall not be subject to Section 8 hereof, any
other criteria that the Committee, in its sole discretion, shall determine
should be used for that purpose. The amount of the Award to be distributed
shall be conclusively determined by the Committee. Performance Awards may be
paid in a lump sum or in installments following the close of the Performance
Period or, in accordance with procedures established by the Committee, on a
deferred basis.




 




(i)            Other
Stock-Based Awards. The Committee is authorized, subject to
limitations under applicable law, to grant to any Eligible Person such other
Awards that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Shares, as deemed by the
Committee to be consistent with the purposes of the Plan. Other Stock-Based
Awards may be granted to Participants either alone or in addition to other
Awards granted under the Plan, and such Other Stock-Based Awards shall also be
available as a form of payment in the settlement of other Awards granted under
the Plan. The Committee shall determine the terms and conditions of such
Awards. Shares delivered pursuant to an Award in the nature of a purchase right
granted under this Section 6(i) shall be purchased for such consideration,
(including without limitation loans from the Company or a Related Entity
provided that such loans are not in violation of the Sarbanes Oxley Act of
2002, or any rule or regulation adopted thereunder or any other applicable law)
paid for at such times, by such methods, and in such forms, including, without
limitation, cash, Shares, other Awards or other property, as the Committee
shall determine.




 




7.             Certain Provisions Applicable to Awards.




 




(a)           Stand-Alone,
Additional, Tandem, and Substitute Awards. Awards granted under
the Plan may, in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution or exchange for, any other
Award or any award granted under another plan of the Company, any Related
Entity, or any business entity to be acquired by the Company or a Related
Entity, or any other right of a Participant to receive payment from the Company
or any Related Entity. Such additional, tandem, and substitute or exchange
Awards may be granted at any time. If an Award is granted in substitution or
exchange for another Award or award, the Committee shall require the surrender
of such other Award or award in consideration for the grant of the new Award.
In addition, Awards may be granted in lieu of cash compensation, including in
lieu of cash amounts payable under other plans of the Company or any Related
Entity, in which the value of Stock subject to the Award is equivalent in value
to the cash compensation (for example, Deferred Stock or Restricted Stock), or
in which the exercise price, grant price or purchase price of the Award in the
nature of a right that may be exercised is equal to the Fair Market Value of
the underlying Stock minus the value of the cash compensation surrendered (for
example, Options or Stock Appreciation Right granted with an exercise price or
grant price “discounted” by the amount of the cash compensation surrendered).




 




(b)           Term
of Awards. The term of each Award shall be for such period as
may be determined by the Committee; provided that in no event shall the term of
any Option or Stock Appreciation Right exceed a period of ten years (or in the
case of an Incentive Stock Option such shorter term as may be required under
Section 422 of the Code).




 


14

















 




(c)           Form
and Timing of Payment Under Awards; Deferrals. Subject to the
terms of the Plan and any applicable Award Agreement, payments to be made by
the Company or a Related Entity upon the exercise of an Option or other Award
or settlement of an Award may be made in such forms as the Committee shall
determine, including, without limitation, cash, Shares, other Awards or other
property, and may be made in a single payment or transfer, in installments, or
on a deferred basis. Any installment or deferral provided for in the preceding
sentence shall, however, be subject to the Company’s compliance with the
provisions of the Sarbanes-Oxley Act of 2002, the rules and regulations adopted
by the Securities and Exchange Commission thereunder, and all applicable rules
of the national securities exchange on which the Company’s securities are
listed for trading and, if not listed for trading on either the Nasdaq Stock
Market or a national securities exchange, then the rules of the Nasdaq Stock
Market. The settlement of any Award may be accelerated, and cash paid in lieu
of Shares in connection with such settlement, in the discretion of the
Committee or upon occurrence of one or more specified events (in addition to a
Change in Control). Installment or deferred payments may be required by the
Committee (subject to Section 10(e) of the Plan, including the consent
provisions thereof in the case of any deferral of an outstanding Award not
provided for in the original Award Agreement) or permitted at the election of
the Participant on terms and conditions established by the Committee. Payments
may include, without limitation, provisions for the payment or crediting of a
reasonable interest rate on installment or deferred payments or the grant or
crediting of Dividend Equivalents or other amounts in respect of installment or
deferred payments denominated in Shares.




 




(d)           Exemptions
from Section 16(b) Liability. If  the Company becomes a Publicly Held
Corporation, it is the intent of the Company that the grant of any Awards to or
other transaction by a Participant who is subject to Section 16 of the
Exchange Act shall be exempt from Section 16 pursuant to an applicable
exemption (except for transactions acknowledged in writing to be non-exempt by
such Participant). Accordingly, if any provision of this Plan or any Award
Agreement does not comply with the requirements of Rule 16b-3 then
applicable to any such transaction, such provision shall be construed or deemed
amended to the extent necessary to conform to the applicable requirements of
Rule 16b-3 so that such Participant shall avoid liability under
Section 16(b).




 




(e)           Code
Section 409A. If and to the extent that the Committee
believes that any Awards may constitute a “nonqualified deferred compensation
plan” under Section 409A of the Code, the terms and conditions set forth
in the Award Agreement for that Award shall be drafted in a manner that is
intended to comply with, and those provisions (and /or the provisions of the
Plan applicable thereto) shall be interpreted in a manner consistent with, the
applicable requirements of Section 409A of the Code, and the Committee, in
its sole discretion and without the consent of any Participant, may amend any
Award Agreement (and the provisions of the Plan applicable thereto) if and to
the extent that the Committee determines necessary or appropriate to comply
with the applicable requirements of Section 409A of the Code.




 


15

















 




8.             Code Section 162(m) Provisions.




 




(a)           Covered
Employees. If the Company becomes a Publicly Held Corporation,
and following the “reliance period” from the public shareholder approval
requirements provided under U.S. Treasury Regulation 1.162-27(f), the
Committee, in its discretion, may determine at the time an Award is granted to
an Eligible Person who is, or is likely to be, as of the end of the tax year in
which the Company would claim a tax deduction in connection with such Award, a
covered employee as defined in Section 162(m)(3) (a “Covered Employee”), that
the provisions of this Section 8 shall be applicable to any such Award
that is granted with an exercise price or base price less than the fair market
value of the Shares on the date of grant.




 




(b)           Performance
Criteria. If an Award is subject to this Section 8, then
the lapsing of restrictions thereon and the distribution of cash, Shares or
other property pursuant thereto, as applicable, shall be contingent upon
achievement of one or more objective performance goals. Performance goals shall
be objective and shall otherwise meet the requirements of Section 162(m)
of the Code and regulations thereunder including the requirement that the level
or levels of performance targeted by the Committee result in the achievement of
performance goals being “substantially uncertain.”  One or more of the following business
criteria for the Company, on a consolidated basis, and/or for Related Entities,
or for business or geographical units of the Company and/or a Related Entity
(except with respect to the total shareholder return and earnings per share
criteria), shall be used by the Committee in establishing performance goals for
such Awards: (1) earnings per share; (2) revenues or margins;
(3) cash flow; (4) operating margin; (5) return on net assets,
investment, capital, or equity; (6) economic value added; (7) direct
contribution; (8) net income; pretax earnings; earnings before interest
and taxes; earnings before interest, taxes, depreciation and amortization;
earnings after interest expense and before extraordinary or special items;
operating income; income before interest income or expense, unusual items and
income taxes, local, state or federal and excluding budgeted and actual bonuses
which might be paid under any ongoing bonus plans of the Company;
(9) working capital; (10) management of fixed costs or variable costs;
(11) identification or consummation of investment opportunities or
completion of specified projects in accordance with corporate business plans,
including strategic mergers, acquisitions or divestitures; (12) total
shareholder return; (13) debt reduction; (14) market share;
(15) entry into new markets, either geographically or by business unit;
(16) customer retention and satisfaction; (17) strategic plan
development and implementation, including turnaround plans; (18) and/or the
Fair Market Value of a Share. Any of the above goals may be determined on an
absolute or relative basis or as compared to the performance of a published or
special index deemed applicable by the Committee including, but not limited to,
the Standard & Poor’s 500 Stock Index or a group of companies that are
comparable to the Company. The Committee shall exclude the impact of an event
or occurrence which the Committee determines should appropriately be excluded,
including without limitation (i) restructurings, discontinued operations,
extraordinary items, and other unusual or non-recurring charges, (ii) an
event either not directly related to the operations of the Company or not
within the reasonable control of the Company’s management, or (iii) a
change in accounting standards required by generally accepted accounting
principles.




 


16

















 




(c)           Performance
Period; Timing For Establishing Performance Goals. Achievement
of performance goals in respect of Performance Awards shall be measured over a
Performance Period no shorter than twelve (12) months and no longer than five
(5) years, as specified by the Committee. Performance goals shall be
established not later than 90 days after the beginning of any Performance
Period applicable to such Performance Awards, or at such other date as may be
required or permitted for “performance-based compensation” under Code
Section 162(m).




 




(d)           Adjustments.
The Committee may, in its discretion, reduce the amount of a settlement
otherwise to be made in connection with Awards subject to this Section 8,
but may not exercise discretion to increase any such amount payable to a
Covered Employee in respect of an Award subject to this Section 8. The
Committee shall specify the circumstances in which such Awards shall be paid or
forfeited in the event of termination of Continuous Service by the Participant
prior to the end of a Performance Period or settlement of Awards.




 




(e)           Committee
Certification. No Participant shall receive any payment under
the Plan that is subject to this Section 8 unless the Committee has
certified, by resolution or other appropriate action in writing, that the
performance criteria and any other material terms previously established by the
Committee or set forth in the Plan, have been satisfied to the extent necessary
to qualify as “performance based compensation” under Code Section 162(m).




 




9.             Change in Control.




 




(a)           Effect
of “Change in Control.”  In the event of a Change in Control, each
outstanding Award will be treated as the Committee determines, including,
without limitation, that each Award be assumed or an equivalent option or right
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. The Committee will not be required to treat all Awards
similarly in the transaction.:




 




(b)           Definition
of “Change in Control.” 
Unless otherwise specified in an Award Agreement, a “Change in Control”
shall mean the occurrence of any of the following:




 




(i)            The acquisition by any
Person of Beneficial Ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than fifty percent (50%) of either
(A) the then outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (B) the combined voting power of
the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting
Securities) (the foregoing Beneficial Ownership hereinafter being referred to
as a “Controlling Interest”); provided, however, that for purposes of this
Section 9(b), the following acquisitions shall not constitute or result in
a Change of Control: (v) any acquisition directly from the Company;
(w) any acquisition by the Company; (x) any acquisition by any Person
that as of the Effective Date owns Beneficial Ownership of a Controlling
Interest; (y) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Subsidiary; or
(z) any acquisition by any corporation pursuant to a transaction which
complies with clauses (A), (B) and (C) of subsection (iii) below; or




 


17

















 




(ii)           During any period of
two (2) consecutive years (not including any period prior to the Effective
Date) individuals who constitute the Board on the Effective Date (the
“Incumbent Board”) cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to the Effective Date whose election, or nomination for election by
the Company’s shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board; or




 




(iii)          Consummation of a
reorganization, merger, statutory share exchange or consolidation or similar
corporate transaction involving the Company or any of its Subsidiaries, a sale
or other disposition of all or substantially all of the assets of the Company,
or the acquisition of assets or stock of another entity by the Company or any
of its Subsidiaries (each a “Business Combination”), in each case, unless,
following such Business Combination, (A) all or substantially all of the
individuals and entities who were the Beneficial Owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than fifty percent (50%) of the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns
the Company or all or substantially all of the Company’s assets either directly
or through one or more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (B) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination or any Person that as of the Effective Date owns Beneficial
Ownership of a Controlling Interest) beneficially owns, directly or indirectly,
fifty percent (50%) or more of the then outstanding shares of common stock of
the corporation resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business Combination and
(C) at least a majority of the members of the Board of Directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business Combination; or




 




(iv)          Approval by the
shareholders of the Company of a complete liquidation or dissolution of the
Company.




 




10.          General Provisions.




 




(a)           Compliance
With Legal and Other Requirements. The Company may, to the
extent deemed necessary or advisable by the Committee, postpone the issuance or
delivery of Shares or payment of other benefits under any Award until
completion of such registration or qualification




 


18

















 




of such Shares or
other required action under any federal or state law, rule or regulation,
listing or other required action with respect to any stock exchange or
automated quotation system upon which the Shares or other Company securities
are listed or quoted, or compliance with any other obligation of the Company,
as the Committee, may consider appropriate, and may require any Participant to
make such representations, furnish such information and comply with or be
subject to such other conditions as it may consider appropriate in connection
with the issuance or delivery of Shares or payment of other benefits in
compliance with applicable laws, rules, and regulations, listing requirements,
or other obligations.




 




(b)           Limits
on Transferability; Beneficiaries. No Award or other right or
interest granted under the Plan shall be pledged, hypothecated or otherwise
encumbered or subject to any lien, obligation or liability of such Participant
to any party, or assigned or transferred by such Participant otherwise than by
will or the laws of descent and distribution or to a Beneficiary upon the death
of a Participant, and such Awards or rights that may be exercisable shall be
exercised during the lifetime of the Participant only by the Participant or his
or her guardian or legal representative, except that Awards and other rights
(other than Incentive Stock Options and Stock Appreciation Rights in tandem
therewith) may be transferred to one or more Beneficiaries or other transferees
during the lifetime of the Participant, and may be exercised by such
transferees in accordance with the terms of such Award, but only if and to the
extent such transfers are permitted by the Committee pursuant to the express
terms of an Award Agreement (subject to any terms and conditions which the
Committee may impose thereon). A Beneficiary, transferee, or other person
claiming any rights under the Plan from or through any Participant shall be
subject to all terms and conditions of the Plan and any Award Agreement
applicable to such Participant, except as otherwise determined by the
Committee, and to any additional terms and conditions deemed necessary or
appropriate by the Committee.




 




(c)           Adjustments.




 




(i)            Adjustments
to Awards. In the event that any extraordinary dividend or other
distribution (whether in the form of cash, Shares, or other property),
recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange, liquidation,
dissolution or other similar corporate transaction or event affects the Shares
and/or such other securities of the Company or any other issuer such that a
substitution, exchange, or adjustment is determined by the Committee to be
appropriate, then the Committee shall, in such manner as it may deem equitable,
substitute, exchange or adjust any or all of (A) the number and kind of
Shares which may be delivered in connection with Awards granted thereafter,
(B) the number and kind of Shares by which annual per-person Award
limitations are measured under Section 5 hereof, (C) the number and
kind of Shares subject to or deliverable in respect of outstanding Awards,
(D) the exercise price, grant price or purchase price relating to any
Award and/or make provision for payment of cash or other property in respect of
any outstanding Award, (E) the automatic share reserve increase provided
under Section 4(b) hereof, and (F) any other aspect of any Award that the
Committee determines to be appropriate.




 


19

















 




(ii)           Adjustments
in Case of Certain Corporate Transactions. In the event of any
merger, consolidation or other reorganization in which the Company does not
survive, or in the event of any Change in Control, any outstanding Awards may
be dealt with in accordance with any of the following approaches, as determined
by the agreement effectuating the transaction or, if and to the extent not so
determined, as determined by the Committee: (a) the continuation of the
outstanding Awards by the Company, if the Company is a surviving corporation,
(b) the assumption or substitution for, as those terms are defined in
Section 9(b)(iv) hereof, the outstanding Awards by the surviving
corporation or its parent or subsidiary, (c) full exercisability or
vesting and accelerated expiration of the outstanding Awards, or
(d) settlement of the value of the outstanding Awards in cash or cash
equivalents or other property followed by cancellation of such Awards (which
value, in the case of Options or Stock Appreciation Rights, shall be measured
by the amount, if any, by which the Fair Market Value of a Share exceeds the
exercise or grant price of the Option or Stock Appreciation Right as of the
effective date of the transaction). The Committee shall give written notice of
any proposed transaction referred to in this Section 10(c)(ii) a
reasonable period of time prior to the closing date for such transaction (which
notice may be given either before or after the approval of such transaction),
in order that Participants may have a reasonable period of time prior to the
closing date of such transaction within which to exercise any Awards that are
then exercisable (including any Awards that may become exercisable upon the
closing date of such transaction). A Participant may condition his exercise of
any Awards upon the consummation of the transaction.




 




(iii)          Other
Adjustments. The Committee (and the Board if and only to the
extent such authority is not required to be exercised by the Committee to
comply with Section 162(m) of the Code) is authorized to make adjustments
in the terms and conditions of, and the criteria included in, Awards (including
Performance Awards, or performance goals relating thereto) in recognition of
unusual or nonrecurring events (including, without limitation, acquisitions and
dispositions of businesses and assets) affecting the Company, any Related
Entity or any business unit, or the financial statements of the Company or any
Related Entity, or in response to changes in applicable laws, regulations,
accounting principles, tax rates and regulations or business conditions or in
view of the Committee’s assessment of the business strategy of the Company, any
Related Entity or business unit thereof, performance of comparable
organizations, economic and business conditions, personal performance of a
Participant, and any other circumstances deemed relevant.




 




(d)           Taxes.
The Company and any Related Entity are authorized to withhold from any Award
granted, any payment relating to an Award under the Plan, including from a
distribution of Shares, or any payroll or other payment to a Participant,
amounts of withholding and other taxes due or potentially payable in connection
with any transaction involving an Award, and to take such other action as the
Committee may deem advisable to enable the Company or any Related Entity and
Participants to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Award. This authority shall include
authority to withhold or receive Shares or other property and to make cash payments
in respect thereof in satisfaction of a Participant’s tax obligations, either
on a mandatory or elective basis in the discretion of the Committee.




 




(e)           Changes
to the Plan and Awards. The Board may amend, alter, suspend,
discontinue or terminate the Plan, or the Committee’s authority to grant Awards
under the Plan,




 


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without the consent of
shareholders or Participants, except that any amendment or alteration to the
Plan shall be subject to the approval of the Company’s shareholders not later
than the annual meeting next following such Board action if such shareholder
approval is required by any federal or state law or regulation (including,
without limitation, Rule 16b-3 or Code Section 162(m)) or the rules
of any stock exchange or automated quotation system on which the Shares may
then be listed or quoted, and the Board may otherwise, in its discretion,
determine to submit other such changes to the Plan to shareholders for
approval; provided that, without the consent of an affected Participant, no
such Board action may materially and adversely affect the rights of such
Participant under any previously granted and outstanding Award. The Committee
may waive any conditions or rights under, or amend, alter, suspend, discontinue
or terminate any Award theretofore granted and any Award Agreement relating
thereto, except as otherwise provided in the Plan; provided that, without the
consent of an affected Participant, no such Committee or the Board action may materially
and adversely affect the rights of such Participant under such Award.
Notwithstanding anything to the contrary, the Committee shall not be authorized
to amend any outstanding Option and/or Stock Appreciation Right to reduce the
exercise price or grant price without the prior approval of the shareholders of
the Company.




 




(f)            Limitation
on Rights Conferred Under Plan. Neither the Plan nor any action
taken hereunder or under any Award shall be construed as (i) giving any
Eligible Person or Participant the right to continue as an Eligible Person or
Participant or in the employ or service of the Company or a Related Entity;
(ii) interfering in any way with the right of the Company or a Related
Entity to terminate any Eligible Person’s or Participant’s Continuous Service
at any time, (iii) giving an Eligible Person or Participant any claim to
be granted any Award under the Plan or to be treated uniformly with other
Participants and Employees, or (iv) conferring on a Participant any of the
rights of a shareholder of the Company including, without limitation, any right
to receive dividends or distributions, any right to vote or act by written
consent, any right to attend meetings of shareholders or any right to receive
any information concerning the Company’s business, financial condition, results
of operation or prospects, unless and until such time as the Participant is
duly issued Shares on the stock books of the Company in accordance with the
terms of an Award. None of the Company, its officers or its directors shall
have any fiduciary obligation to the Participant with respect to any Shares
awarded pursuant to this Plan unless and until the Participant is duly issued
Shares on the stock books of the Company in accordance with the terms of an
Award. Neither the Company nor any of the Company’s officers, directors,
representatives or agents are granting any rights under the Plan to the
Participant whatsoever, oral or written, express or implied, other than those
rights expressly set forth in this Plan or the Award Agreement.




 




(g)           Unfunded
Status of Awards; Creation of Trusts. The Plan is intended to
constitute an “unfunded” plan for incentive and deferred compensation. With
respect to any payments not yet made to a Participant or obligation to deliver
Shares pursuant to an Award, nothing contained in the Plan or any Award shall
give any such Participant any rights that are greater than those of a general
creditor of the Company; provided that the Committee may authorize the creation
of trusts and deposit therein cash, Shares, other Awards or other property, or
make other arrangements to meet the Company’s obligations under the Plan. Such
trusts or other arrangements shall be consistent with the “unfunded” status of
the Plan unless the Committee otherwise




 


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determines with
the consent of each affected Participant. The trustee of such trusts may be
authorized to dispose of trust assets and reinvest the proceeds in alternative
investments, subject to such terms and conditions as the Committee may specify
and in accordance with applicable law.




 




(h)           Nonexclusivity
of the Plan. Neither the adoption of the Plan by the Board nor
its submission to the shareholders of the Company for approval shall be
construed as creating any limitations on the power of the Board or a committee
thereof to adopt such other incentive arrangements as it may deem desirable
including incentive arrangements and awards which do not qualify under
Section 162(m) of the Code.




 




(i)            Payments
in the Event of Forfeitures; Fractional Shares. Unless otherwise
determined by the Committee, in the event of a forfeiture of an Award with
respect to which a Participant paid cash or other consideration, the
Participant shall be repaid the amount of such cash or other consideration. No
fractional Shares shall be issued or delivered pursuant to the Plan or any
Award. The Committee shall determine whether cash, other Awards or other
property shall be issued or paid in lieu of such fractional shares or whether
such fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.




 




(j)            Governing
Law. The validity, construction and effect of the Plan, any
rules and regulations under the Plan, and any Award Agreement shall be
determined in accordance with the laws of the State of Delaware without giving
effect to principles of conflict of laws, and applicable federal law.




 




(k)           Non-U.S.
Laws. The Committee shall have the authority to adopt such
modifications, procedures, and subplans as may be necessary or desirable to
comply with provisions of the laws of foreign countries in which the Company or
its Subsidiaries may operate to assure the viability of the benefits from
Awards granted to Participants performing services in such countries and to
meet the objectives of the Plan.




 




(l)            Plan
Effective Date and Shareholder Approval; Termination of Plan.
The Plan shall become effective on the Effective Date, subject to subsequent
approval, within 12 months of its adoption by the Board, by shareholders of the
Company eligible to vote in the election of directors, by a vote sufficient to
meet the requirements of Code Sections 162(m) (if applicable) and 422,
Rule 16b-3 under the Exchange Act (if applicable), applicable  requirements under the rules of any stock
exchange or automated quotation system on which the Shares may be listed or
quoted, and other laws, regulations, and obligations of the Company applicable
to the Plan. Awards may be granted subject to shareholder approval, but may not
be exercised or otherwise settled in the event the shareholder approval is not
obtained. The Plan shall terminate at the earliest of (a) such time as no
Shares remain available for issuance under the Plan, (b) termination of
this Plan by the Board, or (c) the tenth anniversary of the Effective
Date. Awards outstanding upon expiration of the Plan shall remain in effect
until they have been exercised or terminated, or have expired.




 


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