Exhibit 10.1





Exhibit 10.1




PROSPECT GLOBAL RESOURCES INC.

2011 Employee Equity Incentive Plan




Effective Date: October 27, 2011




Any statements regarding tax matters made herein, including any attachments, cannot be relied upon
by any person to avoid tax penalties and are not intended to be used or referred to in any
marketing or promotional materials. To the extent this communication contains a tax statement or
tax advice, Brownstein Hyatt Farber Schreck, LLP does not and will not impose any limitation on
disclosure of the tax treatment or tax structure of any transactions to which the tax statement or
tax advice relates.







 


 









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2 TERM OF THE PLAN
	 	 	5	 
	 
	 	 	 	 
	ARTICLE 3 ADMINISTRATION
	 	 	5	 
	 
	 	 	 	 
	3.1 Administrator
	 	 	5	 
	3.2 Meetings and Actions
	 	 	6	 
	3.3 Powers of Administrator
	 	 	6	 
	3.4 Discretion of Administrator
	 	 	6	 
	3.5 Delegation of Authority
	 	 	7	 
	 
	 	 	 	 
	ARTICLE 4 STOCK SUBJECT TO THE PLAN
	 	 	7	 
	 
	 	 	 	 
	4.1 Plan Limit
	 	 	7	 
	4.2 Unused Stock
	 	 	7	 
	4.3 Retention of Rights
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 5 GRANT OF AWARDS
	 	 	8	 
	 
	 	 	 	 
	5.1 Eligibility for Award
	 	 	8	 
	5.2 Grant of Awards
	 	 	8	 
	5.3 Terms of Awards
	 	 	8	 
	5.4 Limitations Applicable to Section 16 Persons
	 	 	8	 
	5.5 Stand-Alone and Tandem Awards
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 6 VESTING OF AWARDS
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 7 STOCK OPTIONS
	 	 	9	 
	 
	 	 	 	 
	7.1 Option Award Agreement
	 	 	9	 
	7.2 Manner of Exercise
	 	 	10	 
	7.3 Payment of Option Price
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 8 STOCK APPRECIATION RIGHTS
	 	 	11	 
	 
	 	 	 	 
	8.1 Stock Appreciation Rights Award Agreement
	 	 	11	 
	8.2 Manner of Exercise
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 9 RESTRICTED STOCK
	 	 	12	 
	 
	 	 	 	 
	9.1 Restricted Stock Award Agreement
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 10 OTHER AWARDS
	 	 	14	 
	 
	 	 	 	 
	10.1 Bonus Stock Awards
	 	 	14	 
	10.2 Restricted Stock Unit Award
	 	 	14	 
	10.3 Other Awards
	 	 	14	 





 


-i-









 




TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 11 ISSUANCE OF SHARES
	 	 	15	 
	 
	 	 	 	 
	11.1 Stock Certificates
	 	 	15	 
	11.2 Nontransferability
	 	 	15	 
	11.3 Paperless Administration
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 12 TERMINATION OF CONTINUOUS SERVICE
	 	 	16	 
	 
	 	 	 	 
	12.1 Effect of Termination of Continuous Service
	 	 	16	 
	12.2 Effect of Termination of Continuous Service on Stock
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 13 REORGANIZATION, RECAPITALIZATION AND CHANGE IN CONTROL
	 	 	18	 
	 
	 	 	 	 
	13.1 Adjustments to Common Stock
	 	 	18	 
	13.2 Recapitalization
	 	 	18	 
	13.3 Change in Control
	 	 	18	 
	13.4 Other Events
	 	 	19	 
	13.5 No Adjustment for Certain Awards
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 14 AMENDMENT AND TERMINATION
	 	 	19	 
	 
	 	 	 	 
	14.1 Amendment of the Plan
	 	 	19	 
	14.2 Termination of the Plan
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 15 GENERAL PROVISIONS
	 	 	20	 
	 
	 	 	 	 
	15.1 Tax Obligations
	 	 	20	 
	15.2 Section 409A
	 	 	20	 
	15.3 Rule 16b-3
	 	 	20	 
	15.4 Section 162(m)
	 	 	21	 
	15.5 Section 13(k)
	 	 	22	 
	15.6 Beneficiary Designations
	 	 	22	 
	15.7 No Employment Rights
	 	 	22	 
	15.8 Jurisdictions
	 	 	22	 
	15.9 Foreign Currency
	 	 	22	 
	15.10 Other Employee Benefits
	 	 	23	 
	15.11 Confidentiality of Information
	 	 	23	 
	15.12 No Funding
	 	 	23	 
	15.13 Severability
	 	 	23	 
	15.14 Governing Law and Venue
	 	 	23	 
	15.15 Use of Proceeds
	 	 	23	 
	15.16 Appendices
	 	 	23	 
	15.17 Indemnification
	 	 	23	 






 


-ii-









 







PROSPECT GLOBAL RESOURCES INC.

2011 Employee Equity Incentive Plan




INTRODUCTION




Prospect Global Resources Inc., a Nevada corporation (the “Company”), hereby adopts the Prospect
Global Resources Inc. 2011 Employee Equity Incentive Plan (the “Plan”). The purpose of the Plan is
to further the growth and development of the Company by affording an opportunity for stock
ownership to selected Employees of the Company and its Affiliates (all as defined below) who are
responsible for the conduct and management of its business or who are involved in endeavors
significant to its success. The Plan is also intended to assist the Company in attracting new
Employees and retaining existing Employees; to encourage growth of the Company through incentives
that are consistent with the Company’s goals; to provide incentives for individual performance; and
to promote teamwork.



ARTICLE 1

DEFINITIONS




When used in this Plan, the following capitalized terms shall have the meanings set forth below
unless a different meaning is plainly required by the context:




	1.1	 	Administrator means the Board of Directors, any committee or such delegates as shall be
administering the Plan in accordance with Article 3.







	1.2	 	Affiliate means any corporation, partnership, limited liability company or partnership,
association, trust or other organization which, directly or indirectly, controls, is
controlled by, or is under common control with, the Company. For purposes of this definition,
“control” (including, with correlative meanings, the terms “controlled by” and “under common
control with”), as used with respect to any entity or organization, shall mean the possession,
directly or indirectly, of the power to vote more than 50% of the securities having ordinary
voting power for the election of directors of the controlled entity or organization, or to
direct or cause the direction of the management and policies of the controlled entity or
organization, whether through the ownership of voting securities or by contract or otherwise.







	1.3	 	Applicable Laws means the requirements relating to the administration of stock option and
stock award plans under U.S. federal, state and local laws, the rules of any national
securities exchange or automated quotation system on which the Common Stock is listed, quoted,
or traded to the extent provided under the terms of the Company’s agreement with such exchange
or quotation system and, with respect to Awards subject to the laws of any foreign
jurisdiction where Awards are, or will be, granted under the Plan, the laws of such
jurisdiction.







	1.4	 	Award means a grant of Options, SARs, Restricted Stock, Restricted Stock Units, Bonus Stock
or other equity-based grant under the Plan.




 


 









 











	1.5	 	Award Agreement means the agreement between the Company and a Participant pursuant to which a
specific Award is granted to the Participant.







	1.6	 	Board of Directors means the Board of Directors of the Company.








	1.7	 	Bonus Stock means shares of Common Stock granted to a Participant that are subject to the
terms set forth in Section 10.2 and the applicable Award Agreement.







	1.8	 	Cause means “Cause,” as defined in the Participant’s employment agreement, if applicable, or
if the Participant has not entered into an employment agreement with the Company, as
determined in the sole discretion of the Company, a termination on account of any of the
following: (a) repeated refusal to obey written directions of the Board of Directors or a
superior officer (so long as such directions do not involve illegal or immoral acts), (b)
negligence or willful misconduct in the performance of Participant’s duties, as reasonably
directed by the Board of Directors or a superior officer, injurious to the reputation,
business or operations of the Company or an Affiliate; (c) misappropriation of any funds or
assets of the Company or an Affiliate for personal use; (d) repeated acts of substance abuse
that are injurious to the Company or an Affiliate; (e) fraud or dishonesty that is injurious
to the Company or an Affiliate; (f) a breach of any material obligation of Participant in an
employment, non-disclosure or confidentiality, non-compete, non-solicitation or similar
agreement, if applicable, with the Company or an Affiliate; (g) commission of a criminal
offense involving money or other property with respect to the Company, an Affiliate or any
supplier or customer of the Company or an Affiliate (excluding any traffic violations or
similar violations); (h) commission of a criminal offense that constitutes a felony in the
jurisdiction in which the offense is committed; or (i) engaging in any conduct tending to
bring the Company or an Affiliate into public disgrace or disrepute. A Participant who agrees
to resign from his employment or service with the Company in lieu of being terminated for
Cause may be deemed by the Administrator to have been terminated for Cause for purposes of the
Plan.







	1.9	 	Change in Control means, unless such term or an equivalent term is otherwise defined with
respect to an Award by the Participant’s Award Agreement or written contract of employment or
service, (A) by a transaction or series of transactions, any “person” or “group” (within the
meaning of Section 13(d) and 14(d)(2) of the Exchange Act) becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 35% of the
combined voting power of the Company’s then outstanding securities (provided such person or
group was not a beneficial owner of more than 35% of the combined voting power of the
Company’s then outstanding securities as of August 17, 2010); (B) as a result of any merger,
consolidation, combination or sale or issuance of securities of the Company, or as a result of
or in connection with a contested election of directors, the persons who were directors of the
Company as of August 17, 2010 cease to constitute a majority of the Board of Directors; or (C)
by a transaction or series of transactions, the authority of the Board of Directors over any
activities of the Company becomes subject to the consent, agreement or cooperation of a third
party other than shareholders of the Company.







	1.10	 	Code means the Internal Revenue Code of 1986, as amended from time to time.




 


2









 











	1.11	 	Common Stock or Stock means the Company’s common stock, par value $0.001 per share, and any
share or shares of the Company’s capital stock hereafter issued or issuable in substitution
for such shares.







	1.12	 	Continuous Service means that the Participant’s service as an Employee with the Company or an
Affiliate is not interrupted or terminated. The Participant’s Continuous Service shall not be
deemed to have terminated merely because of a change in the capacity in which the Participant
renders service to the Company or an Affiliate or a change in the entity for which the
Participant renders such service, provided that there is no interruption or termination of the
Participant’s Continuous Service. The Administrator, in its sole discretion, may determine
whether Continuous Service shall be considered interrupted in the case of any leave of
absence, including sick leave, military leave or any other personal leave.







	1.13	 	Disability means disability within the meaning of the long-term disability policy maintained
by the Company, or if none, within the meaning of Code Section 22(e)(3), provided that in the
case of Awards other than Incentive Stock Options, the Administrator in its discretion may
determine whether a permanent and total disability exists in accordance with uniform and
non-discriminatory standards adopted by the Administrator from time to time.







	1.14	 	Effective Date means the date the Plan is approved by the Board, subject to approval of the
Plan by the Company’s stockholders.







	1.15	 	Employee means a common law employee of the Company or an Affiliate and any person who has
accepted a binding offer of employment from the Company or an Affiliate (provided that, in the
case of an Incentive Stock Option, such person has commenced employment as a common law
employee), but excludes any individual classified by the Company or an Affiliate as an
independent contractor, consultant or leased employee.






1.16 Exchange Act means the Securities Exchange Act of 1934, as amended from time to time.




	1.17	 	Fair Market Value means, as of any specified date, the value of a share of Common Stock
determined as follows:







	 	(a)	 	Publicly Traded. If the Common Stock is regularly traded on any
established securities market, the Fair Market Value per share of Common Stock shall be
the closing sale price for a share of Common Stock for such date, or if there is no
closing sales price for a share of Common Stock on that date, the closing sales price
for a share of Common Stock on the last preceding date for which such quotation exists,
as reported in The Wall Street Journal or such other source as the Administrator deems
reliable.







	 	(b)	 	Not Publicly Traded. If the Common Stock is not readily tradable on an
established securities market, the Fair Market Value per share of Common Stock
shall be the amount determined by the Administrator, reasonably and in good faith,
in accordance with Applicable Laws.




 


3









 











	1.1	 	Full Value Award means any Award other than (i) an Option, (ii) a SAR or (iii) any other
Award for which the Participant pays the intrinsic value existing as of the date of grant
(whether directly or by forgoing a right to receive a payment from the Company or an
Affiliate).







	1.2	 	Incentive Stock Option means any option granted to an eligible Employee under the Plan, which
the Company intends at the time the option is granted to be an Incentive Stock Option within
the meaning of Code Section 422.







	1.3	 	Nonqualified Stock Option means any option granted to an eligible Employee under the Plan
that is not an Incentive Stock Option.







	1.4	 	Option means and refers collectively to Incentive Stock Options and Nonqualified Stock
Options.







	1.5	 	Participant means any Employee who is granted an Award under the Plan. Participant also
means the personal representative of a Participant and any other person who acquires the right
to exercise or receive payment pursuant to an Award by bequest or inheritance.







	1.6	 	Permitted Transferee means, with respect to a Participant, any “family member” of the
Participant, as defined under the instructions to use of the Form S-8 Registration Statement
under the Securities Act, after taking into account any state, federal, local or foreign tax
and securities laws applicable to transferable Awards.







	1.7	 	Publicly Traded means that the Company or an Affiliate has issued any class of common equity
securities registered under Section 12 of the Exchange Act.







	1.8	 	Restricted Stock means shares of Common Stock granted to a Participant that are subject to
the restrictions set forth in Section 9.1 and the applicable Award Agreement. Restricted
Stock also means any shares of the Company’s capital stock issued as a result of a dividend on
or split of Restricted Stock. Upon termination of the restrictions, such Common Stock or
other capital stock shall no longer be Restricted Stock.







	1.9	 	Restricted Stock Units means restricted share units granted to a Participant that are subject
to the terms set forth in Section 10.2 and the applicable Award Agreement.







	1.10	 	Restriction Period means the period set forth in the applicable Award Agreement that is the
period beginning on the date of grant of the Award and ending on the final vesting date of the
Restricted Stock.







	1.11	 	Rule 16b-3 means Rule 16b-3 promulgated by the Securities and Exchange Commission under the
Exchange Act, together with any successor rule, as in effect from time to time.







	1.12	 	Section 162(m) means Code Section 162(m) and any related Treasury regulations promulgated or
Internal Revenue Service guidance issued thereunder.




 


4









 











	1.13	 	Section 409A means Code Section 409A and any related Treasury regulations promulgated or
Internal Revenue Service guidance issued thereunder, including, without limitation, any such
regulations or other guidance that may be issued after the Effective Date.






1.14 Securities Act shall mean the Securities Act of 1933, as amended.




	1.15	 	Stock Appreciation Right or SAR means a stand-alone stock appreciation right that is subject
to the terms set forth in Section 8.1 and the applicable Award Agreement






ARTICLE 2

TERM OF THE PLAN




The Plan shall be effective as of the Effective Date, provided that the Plan is approved by the
stockholders of the Company on or within 12 months of the Effective Date. The Plan shall continue
in effect for a term of 10 years from the later of the Effective Date or the date any amendment to
add shares to the Plan is approved by stockholders of the Company, unless terminated earlier under
Article 14. In the absence of the approval by stockholders of the Company of an amendment to add
shares to the Plan, no Incentive Stock Option shall be granted more than 10 years from the date the
Plan is approved by the stockholders of the Company.



ARTICLE 3

ADMINISTRATION





	3.1	 	Administrator. The Plan shall be administered by the Board of Directors,
unless and until such time as the Board of Directors delegates the administration of the Plan
to a committee, which shall be appointed by and shall serve at the pleasure of the Board of
Directors. The powers, duties and procedures of any appointed committee shall be governed its
adopted charter, or in the absence of such charter, by this article. Any committee member
shall be deemed to have resigned automatically from the committee upon his termination of
service with the Company. To the extent the Administrator considers it desirable for
transactions relating to a grant of Awards to be eligible to qualify for an exemption under
Rule 16b-3, the Administrator shall consist of a committee of two or more members of the
Board, all of whom qualify as “non-employee directors” within the meaning of Rule 16b-3. To
the extent the Administrator considers it desirable for compensation delivered pursuant to a
grant of Awards to be eligible to qualify for an exemption under Section 162(m), the Plan
shall be administered by a committee of two or more members of the Board, all of whom qualify
as “outside directors” within the meaning of Section 162(m). The Administrator may from time
to time remove members from or add members to any such committee; fill vacancies on the
committee, howsoever caused; and otherwise increase or decrease the number of members of such
committee, in each case as the Administrator deems appropriate to permit transactions in
Common Stock pursuant to the Plan and to satisfy such conditions of Rule 16b-3 or Section
162(m) as then in effect.




 


5









 











	3.2	 	Meetings and Actions. The Administrator shall hold meetings at such times
and places as it may determine in its sole discrimination. A majority of the members of the
Administrator shall constitute a quorum, and the acts of the majority of the members present
at a meeting or a consent in writing signed by all members of the Administrator shall be the
acts of the Administrator and shall be final, binding and conclusive upon all persons,
including the Company, its Affiliates, its stockholders, and all persons having any interest
in Awards that may be or have been granted pursuant to the Plan.







	3.3	 	Powers of Administrator. The Administrator shall have the full and
exclusive right to grant and determine terms and conditions of all Awards granted under the
Plan and to prescribe, amend and rescind rules and regulations for administration of the Plan.
The Administrator may from time to time in its discretion determine which of the eligible
Employees of the Company or its Affiliates should receive Awards, the type of Awards to be
granted, and as applicable, the number of shares subject to the Awards, the grant dates, the
exercise or purchase price for shares subject to the Awards, the vesting conditions and
duration of the Awards and the restrictions applicable to each grant of shares pursuant to the
Awards. In selecting Participants and granting Awards, the Administrator shall take into
consideration the contribution the Participant has made or may make to the success of the
Company or its Affiliates and such other factors as the Administrator shall determine.







	3.4	 	Discretion of Administrator. The determination of the Administrator as to
any disputed question arising under the Plan, including questions of construction and
interpretation, shall be final, binding and conclusive upon all persons, including the
Company, its Affiliates, its stockholders, and all persons having any interest in Awards that
may be or have been granted pursuant to the Plan. Subject to the express provisions of the
Plan, the Administrator is authorized, in its sole discretion, to construe the Plan and the
respective Award Agreements executed hereunder, to prescribe and enforce such rules and
regulations relating to the Plan as it may deem advisable to carry out the intent of the Plan,
and to determine and amend, subject to the provisions of Article 14, the terms, restrictions
and provisions of any outstanding Award in any manner that is not inconsistent with the
provisions of the Plan (including but not limited to cashing out Awards, extending the
exercise or effective periods of Awards, accelerating the vesting of Awards, and converting or
substituting any or all stock options, stock appreciation rights or other stock awards held by
service providers of an entity acquired by the Company) the terms, restrictions and provisions
of each Award, including such terms, restrictions and provisions as shall be requisite in the
judgment of the Administrator to cause designated Awards to qualify for specific tax
treatment, and to make all other determinations necessary or advisable for administering the
Plan. The Administrator may correct any defect or supply any omission or reconcile any
inconsistency in any Award Agreement in the manner and to the extent it shall deem expedient
to carry it into effect. The determinations of the Administrator on any Plan matters shall be
final, conclusive and binding on all parties.




 


6









 











	3.5	 	Delegation of Authority. To the extent permitted by Applicable Laws, the
Administrator may from time to time delegate to a committee of one or more members of the
Board of Directors or one or more officers of the Company the authority to grant or amend
Awards; provided, however, that in no event shall an officer of the Company be delegated the
authority to grant awards to, or amend awards held by, the following
individuals: (a) individuals who are subject to Section 16 of the Exchange Act, (b) Covered
Employees, or (c) officers of the Company to whom authority to grant or amend Awards has
been delegated hereunder; provided further, that any delegation of administrative authority
shall only be permitted to the extent it is permissible under Section 162(m) and other
Applicable Laws. Any delegation hereunder shall be subject to the restrictions and limits
that the Administrator specifies at the time of such delegation, and the Administrator may
at any time rescind the authority so delegated or appoint a new delegatee. At all times,
the delegatee appointed under this section shall serve in such capacity at the pleasure of
the Administrator.






ARTICLE 4

STOCK SUBJECT TO THE PLAN





	4.1	 	Plan Limit.







	 	(a)	 	Aggregate Limit. Subject to the provisions of Article 13, the aggregate number
of shares of Common Stock that may be issued under Awards granted pursuant to the Plan
shall not exceed 5,000,000 shares of Common Stock. Such shares of Common Stock shall be
authorized but unissued shares. Shares of Common Stock shall be deemed to have been
issued under the Plan solely to the extent actually issued and delivered pursuant to an
Award. Shares of Common Stock subject to Awards granted under the Plan that are
cancelled, expire or are forfeited shall be available for re-grant under the Plan. If
a Participant pays the exercise or purchase price of an Award granted under the Plan
through the tender or withholding of shares, or if shares are tendered or withheld to
satisfy any Company withholding obligations, the number of shares so tendered or
withheld shall become available for re-issuance thereafter under the Plan. Subject to
the provisions of Article 13, no more than the aggregate maximum number of shares of
Common Stock approved by the Stockholders from time to time may be issued pursuant to
Incentive Stock Options.







	 	(b)	 	Section 162(m) Limit. During any single calendar year, no Participant shall be
eligible to be granted Awards exceeding 1,000,000 shares of Common Stock.







	4.2	 	Unused Stock. Shares will be deemed to have been issued under the Plan only
(a) to the extent actually issued and delivered pursuant to an Award, or (b) to the extent an
Award is settled in cash. If any outstanding Award under the Plan expires or for any other
reason ceases to be exercisable, is forfeited or repurchased by the Company, in whole or in
part (other than upon exercise of an Award), the shares that were subject to such Award (and
as to which the Award had not been exercised) shall continue to be available under the Plan or
revert to the Plan to again be available for issuance under the Plan. Any shares of Common
Stock tendered or withheld to satisfy the grant or exercise price or tax withholding
obligation pursuant to any Award (other than an Option) shall again be available
for the grant of an Award pursuant to the Plan.




 


7









 











	4.3	 	Retention of Rights. The existence of this Plan and any Award granted
pursuant to the Plan shall not affect the right or power of the Company or its stockholders to
make or
authorize any or all adjustments, recapitalizations, reorganizations, or other change in the
Company’s capital structure or its business, or a merger or consolidation of the Company, or
any issue of bonds, debentures, or preferred or preference stock ranking before or affecting
the Common Stock, or the dissolution of the Company or any sale or transfer of all or any
part of the Company’s assets or business, or any other corporate act or proceeding, whether
similar or not.






ARTICLE 5

GRANT OF AWARDS





	5.1	 	Eligibility for Award. Awards may be granted only to persons who, at the
time of grant, are Employees.







	5.2	 	Grant of Awards. The Administrator may from time to time in its discretion
grant Awards to one or more Employees determined by it to be eligible for participation in the
Plan in accordance with the provisions of this article. No Award shall be enforceable under
the Plan until the Participant provides the Company with a signed Award Agreement in the form
specified by the Administrator with respect to the Award to that Participant.







	5.3	 	Terms of Awards. Each Award will be evidenced by an Award Agreement in such
form and containing such provisions not inconsistent with the provisions of the Plan as the
Administrator from time to time will approve. The terms of any Award need not be identical to
the terms of any other Award to the same or other Participants. An Award may be granted on
more than one occasion to the same person, and, subject to the limitations set forth in the
Plan, such Award may include any type of Award or any combination of Awards under the Plan.
Award Agreements evidencing Awards intended to qualify as Performance-Based Compensation shall
contain such terms and conditions as may be necessary to meet the applicable provisions of
Section 162(m). Award Agreements evidencing Incentive Stock Options shall contain such terms
and conditions as may be necessary to meet the applicable provisions of Code Section 422.







	5.4	 	Limitations Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan, the Plan, and any Award granted or awarded to any individual who is
then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations
set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including
Rule 16b-3 of the Exchange Act and any amendments thereto) that are requirements for the
application of such exemptive rule. To the extent permitted by Applicable Laws, the Plan and
Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform
to such applicable exemptive rule.







	5.5	 	Stand-Alone and Tandem Awards. Awards granted pursuant to the Plan may, in
the sole discretion of the Administrator, be granted either alone, in addition to, or in
tandem with, any other Award granted pursuant to the Plan. Awards granted in addition to or
in tandem with other Awards may be granted either at the same time as or at a different time
from the grant of such other Awards.




 


8









 










ARTICLE 6

VESTING OF AWARDS




An Award shall vest or become exercisable in whole or in part and at such times and upon such
conditions, if any, as determined by the Administrator and set forth in the Award Agreement. The
Administrator in its discretion may provide that an Award will be vested or exercisable upon (a)
the attainment of one or more performance goals or targets established by the Administrator, which
may be based on factors including, but not limited to, the price of a share of Common Stock, the
Company’s earnings per share, the Company’s market share, the Company’s sales, the Company’s
operating margin, the earnings before or after interest, taxes, depreciation, or amortization of
the Company; (b) the Participant’s Continuous Service for a specified period of time; (c) the
occurrence of any event or the satisfaction of any other condition specified by the Administrator
in its sole discretion; or (d) a combination of any of the foregoing. Each Award may, in the
discretion of the Administrator, have different provisions with respect to vesting or exercise of
the Award. At any time after grant of an Award, the Administrator may, in its sole discretion,
accelerate the period or waive the conditions for which an Award vests.



ARTICLE 7

STOCK OPTIONS





	7.1	 	Option Award Agreement.







	 	(a)	 	Option Exercise Price. The Option price (i.e., exercise price) per share of
Common Stock under each Option shall be determined by the Administrator and stated in
the Option Award Agreement. The Option price for any Option that is intended to be an
Incentive Stock Option or to constitute performance-based compensation within the
meaning of Section 162(m) shall not be less than 100% of the Fair Market Value
(determined as of the day the Option is granted) of the shares subject to the Option.
Nonqualified Stock Options may be granted with an Option price of less than 100% of the
Fair Market Value (determined as of the day the Option is granted) of the shares
subject to the Option.







In the case of an Option that is subject to Section 409A (such as a discounted
Nonqualified Stock Option), the timing of the exercise of the Option shall be
limited to one (or the earliest of two or more) of the following events, as
specified in the applicable Option Award Agreement, as determined and interpreted in
accordance with Section 409A: (1) a Change in Control, (2) the Participant’s
separation from service, (3) a specified date, or (4) the taxable year in which the
Option vests. In the event that Participant fails to exercise such an Option within
the prescribed period, the Participant shall forfeit all rights under the Option;
the Option Award Agreement shall terminate and be of no further force or effect; and
the Company shall be released from all obligations under the Option.




The exercise price of an Option may not be repriced.




	 	(b)	 	Duration of Options. Each Option shall be of a duration as specified in the
applicable Award Agreement; provided, however, that the term of any Option
shall be no more than 10 years from the date on which the Option is granted and
shall be subject to early termination as provided herein.




 


9









 











	 	(c)	 	Limitations on Incentive Stock Options.






(i) Employee Status. An Incentive Stock Option may be granted only to an individual
who is an Employee at the time the Option is granted.



(ii) Dollar Limit. To the extent that an Incentive Stock Option (together with all
Incentive Stock Options granted to the Participant under the Plan and all other stock option plans
of the Company and its Affiliate) becomes exercisable for the first time during any calendar year
for shares having a Fair Market Value greater than $100,000 (or such other limit effective under
the Code), the portion of each Incentive Stock Option that exceeds such amount will be treated as a
Nonqualified Stock Option. The rule set forth in the preceding sentence shall be applied by taking
Options and other “incentive stock options” into account in the order in which they were granted
and the Fair Market Value of stock shall be determined as of the time the respective options were
granted.



(iii) 10% Shareholder. No Incentive Stock Option shall be granted to an Employee who,
at the time the Incentive Stock Option is granted, owns stock (as determined in accordance with
Code Section 424(d)) representing more than 10% of the total combined voting power of all classes
of stock of the Company or of any Affiliate, unless the option price of such Incentive Stock Option
is at least 110% of the Fair Market Value (determined as of the day the Incentive Stock Option is
granted) of the stock subject to the Incentive Stock Option, and the Incentive Stock Option by its
terms is not exercisable more than five years from the date it is granted.



(iv) Disqualifying Disposition. A Participant shall give the Company prompt notice of
any disposition of shares of Common Stock acquired by exercise of an Incentive Stock Option which
occurs within (A) two years from the date of granting (including the date the Option is modified,
extended or renewed for purposes of Code Section 424(h)) such Option to such Participant, or (B)
one year after the transfer of such shares to such Participant.




	 	(d)	 	Rights as Stockholder. A Participant shall have no rights as a stockholder of
the Company with respect to any shares of Common Stock covered by an Option until the
date of the issuance of the stock certificate for such shares.







	 	(e)	 	Other Terms and Conditions. The Option Award Agreement may contain such other
provisions, which shall not be inconsistent with the Plan, as the Administrator shall
deem appropriate, including, without limitation, provisions that relate to the
Participant’s ability to exercise an Option in whole or in part to the passage of time
or the achievement of specific goals or the occurrence of certain events, as specified
by the Administrator.







	7.2	 	Manner of Exercise. An Option or portion of an Option may be exercised by
delivery of an irrevocable notice of exercise in such manner as determined by the Company,
stating the number of shares being purchased and the restrictions imposed on the shares so
purchased, if any.




 


10









 











	7.3	 	Payment of Option Price. The right to receive shares of the Common Stock
upon exercise of an Option shall be conditioned upon the delivery by the Participant of
payment for shares and withholding taxes incurred by reason of the exercise and certain
representations, if requested by the Administrator. The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method of payment,
either through the terms of the Option Award Agreement or at the time of exercise of an
Option. Acceptable forms of consideration may include:







(a) cash, check or wire transfer (denominated in U.S. Dollars);




	 	(b)	 	subject to the Company’s discretion to refuse for any reason and at any time to
accept such consideration and subject to any conditions or limitations established by
the Administrator, other shares of Common Stock held by the Participant which have a
Fair Market Value on the date of surrender equal to the aggregate exercise price of the
 shares as to which said Option shall be exercised;







	 	(c)	 	delivery of a notice that the Participant has placed a market sell order with a
broker with respect to shares of Common Stock then issuable upon exercise or vesting of
an Award, and that the broker has been directed to pay a sufficient portion of the net
proceeds of the sale to the Company in satisfaction of the aggregate payments required;
provided, that payment of such proceeds is then made to the Company upon settlement of
such sale;







	 	(d)	 	cashless “net exercise” arrangement pursuant to which the Company will reduce
the number of shares issued upon exercise by the largest whole number of shares having
an aggregate Fair Market Value that does not exceed the aggregate exercise price,
together with required withholding amounts (if any), provided that the Company shall
accept a cash or other payment from the Participant to the extent of any remaining
balance not satisfied by such reduction in the number of whole shares to be issued,







	 	(e)	 	such other consideration and method of payment for the issuance of shares of
Common Stock to the extent permitted by Applicable Laws and acceptable to the
Administrator, or







	 	(f)	 	any combination of the foregoing methods of payment.






ARTICLE 8

STOCK APPRECIATION RIGHTS





	8.1	 	Stock Appreciation Rights Award Agreement.







	 	(a)	 	Grant. A SAR shall entitle a Participant to exercise all or a specified portion
of the SAR and to receive from the Company an amount determined by multiplying the
difference obtained by subtracting the exercise price per share of the SAR from the
Fair Market Value on the date of exercise of the SAR by the number of shares of Common
Stock with respect to which the SAR shall have been exercised, subject to any
limitations the Administrator may impose.




 


11









 











	 	(b)	 	SAR Exercise Price. The exercise (or base) price per share of Common Stock
under each SAR shall be determined by the Administrator and shall not be less than 100%
of the Fair Market Value (determined as the day the SAR is granted) of the Common Stock
subject to the SAR, and shall be stated in the applicable Award Agreement. The
exercise price of the Common Stock under a SAR may not be repriced.







	 	(c)	 	Duration of SARs. Each SAR shall be of a duration as specified in the
applicable Award Agreement; provided, however, that the term of any SAR shall be no
more than 10 years from the date on which the SAR is granted and shall be subject to
early termination as provided herein.







	 	(d)	 	Rights as Stockholder. A Participant shall have no rights as a stockholder of
the Company with respect to any shares of Common Stock covered by a SAR.







	 	(e)	 	Other Terms and Conditions. The SAR Award Agreement may contain such other
provisions, which shall not be inconsistent with the Plan, as the Administrator shall
deem appropriate, including, without limitation, provisions that relate to the
Participant’s ability to exercise a SAR in whole or in part to the passage of time or
the achievement of specific goals or the occurrence of certain events, as specified by
the Administrator.







	 	(f)	 	Form of Payment. A SAR may be paid to the Participant in the form of cash,
whole shares, or a combination thereof, based on the Fair Market Value of the shares
earned under the SAR on the date of payment.







	8.2	 	Manner of Exercise. The SAR or portion of the SAR may be exercised by
delivery of an irrevocable notice of exercise in such manner as determined by the Company,
stating the number of shares as to which the SAR is being exercised.






ARTICLE 9

RESTRICTED STOCK





	9.1	 	Restricted Stock Award Agreement. Shares of Common Stock that are the
subject of a Restricted Stock Award will be subject to restrictions on disposition by the
Participant and an obligation of the Participant to forfeit and surrender the shares to the
Company under certain circumstances.







	 	(a)	 	Issuance of Restricted Stock. The right to receive Restricted Stock shall be
conditioned upon the delivery by the Participant of (i) payment of the purchase price,
if any, in full, by an electronic transfer of funds, such other form as may be
acceptable under the administrative procedures established by the Company, or any other
form of legal consideration that may be acceptable to the Administrator; (ii) payment
in similar form equal to such amount as the Company shall determine to be sufficient to
satisfy any liability it may have for any withholding of income or other taxes under
Applicable Laws incurred by reason of the vesting of the Restricted Stock or the
Participant’s election under Code Section 83(b); (iii) certain investment
representations, if requested by the Administrator; and (iv) a
copy of the executed Award Agreement in the form specified by the Administrator with
respect to the grant of Restricted Stock to that Participant.




 


12









 











	 	(b)	 	Stock Register or Certificates. Shares representing the Restricted Stock shall
be recorded in the stock register of the Company in the name of the Participant to whom
such Restricted Stock shall have been granted. In the event the Company issues
certificates, a stock certificate or certificates representing the Restricted Stock
shall be registered in the name of the Participant to whom such Restricted Stock shall
have been granted, and such certificates shall remain in the custody of the Company.
The Participant shall deposit with the Company stock powers or other instruments of
assignment, each endorsed in blank, so as to permit retransfer to the Company of all or
a portion of the Restricted Stock that shall be forfeited or otherwise not become
vested in accordance with the Plan and the applicable Award Agreement.







	 	(c)	 	Restrictions and Rights. Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. The Participant shall
have the right to vote such Restricted Stock, to receive and retain all regular cash
dividends and such other distributions, as the Board of Directors may, in its
discretion, designate, pay or distribute on such Restricted Stock, and to exercise all
other rights, powers and privileges of a holder of Common Stock with respect to such
Restricted Stock, except as set forth in this section. During the Restriction Period,
the Participant may not sell, transfer, pledge, exchange, hypothecate, or otherwise
dispose of the stock until the restrictions have lapsed, and a breach of the terms and
conditions established by the Administrator pursuant to the Award Agreement will cause
a forfeiture of the Restricted Stock. The Award Agreement may contain such other
provisions, which shall not be inconsistent with the Plan, as the Administrator shall
deem appropriate.







	 	(d)	 	Forfeiture. If the Participant fails to satisfy any applicable restrictions,
terms and conditions set forth in this Plan or in the applicable Award Agreement for
any reason, any Restricted Stock held by such Participant and affected by such
conditions shall be forfeited to the Company in return for such consideration as shall
be specified in the Award Agreement. The Company and its officers are authorized to
reflect such forfeiture of Restricted Stock on the Company’s stock ledger.







	 	(e)	 	Section 83(b) Election. If a Participant makes an election under Code Section
83(b) to be taxed with respect to the Restricted Stock as of the date of transfer of
the Restricted Stock rather than as of the date or dates upon which the Participant
would otherwise be taxable under Code Section 83(a), the Participant shall be required
to deliver a copy of such election to the Company promptly after filing such election
with the Internal Revenue Service.




 


13









 










ARTICLE 10

OTHER AWARDS





	10.1	 	Bonus Stock Awards. Each Bonus Stock Award granted to a Participant will
constitute a transfer of shares of Common Stock other than Restricted Stock on such terms and
conditions as the Administrator shall determine. Bonus Stock Awards will be made in shares of
Common Stock and may be subject to performance criteria or any other specific criteria,
including service to the Company or an Affiliate, determined by the Administrator. The
purchase price, if any, for Common Stock issued in connection with a Bonus Stock Award will be
determined by the Administrator in its sole discretion.







	10.2	 	Restricted Stock Unit Award. Each Restricted Stock Unit Award will be
subject to such terms and conditions as the Administrator shall determine. The number and
terms and conditions of Restricted Stock Units shall be determined by the Administrator. The
Administrator shall specify the date or dates on which the Restricted Stock Units shall become
fully vested and nonforfeitable, and may specify such conditions to vesting as it deems
appropriate, including conditions based on one or more performance criteria or other specific
criteria, including service to the Company or an Affiliate, in each case on a specified date
or dates or over any period or periods, as the Administrator determines. The Administrator
shall specify, or permit the Participant to elect, the conditions and dates upon which the
 shares of Common Stock underlying the Restricted Stock Units which shall be issued, which
dates shall not be earlier than the date as of which the Restricted Stock Units vest and
become nonforfeitable and which conditions and dates shall be subject to compliance with
Section 409A. Restricted Stock Units may be paid in cash, shares of Common Stock, or both, as
determined by the Administrator. On the distribution dates, the Company shall issue to the
Participant one unrestricted, fully transferable share of Common Stock (or the Fair Market
Value of one such Share in cash) for each vested and nonforfeitable Restricted Stock Unit.







	10.3	 	Other Awards. The Administrator may from time to time in its sole
discretion determine which of the eligible Employees of the Company and its Affiliates should
receive grants of other Awards that are valued in whole or in part by reference to, or are
otherwise based upon, Common Stock, including without limitation dividend equivalents, phantom
stock , phantom stock units and performance units. Such Awards may be issued alone or in
conjunction with other Awards under the Plan. In addition, the Administrator may, from time
to time, in its sole discretion and consistent with Applicable Laws that would prohibit the
imposition of the constructive or actual receipt of income, afford a Participant the
opportunity to convert the form of Award currently held by the Participant prior to the time
such Participant would become vested in such Award (e.g., from a Restricted Stock Award to a
restricted stock unit award). The Administrator, in its sole discretion, may include in any
Award any provisions necessary to avoid adverse tax consequences to the Participant under
Section 409A.




 


14









 










ARTICLE 11

ISSUANCE OF SHARES





	11.1	 	Stock Certificates. Notwithstanding anything herein to the contrary, the
Company shall not be required to issue or deliver any certificates evidencing shares of Common
Stock pursuant to the exercise of any Award, unless and until the Board of Directors has
determined, with advice of counsel, that the issuance and delivery of such certificates is in
compliance with all Applicable Laws, regulations of governmental authorities and, if
applicable, the requirements of any exchange on which the shares are listed or traded. The
Company shall not be required to issue or deliver any certificates evidencing shares of Common
Stock prior to satisfaction of any applicable vesting requirement. All stock certificates
delivered pursuant to the Plan are subject to any stop-transfer orders and other restrictions
as the Administrator deems necessary or advisable to comply with federal, state, or foreign
jurisdiction, securities or other under Applicable Laws and rules and regulations and to
reflect vesting restrictions. The Administrator may place legends on any stock certificate to
reference restrictions applicable to the shares. In addition to the terms and conditions
provided herein, the Board of Directors may require that a Participant make such reasonable
covenants, agreements, and representations as the Board of Directors, in its discretion, deems
advisable in order to comply with any such laws, regulations, or requirements. The
Administrator shall have the right to require any Participant to comply with any timing or
other restrictions with respect to the settlement or exercise of any Award, including a
window-period limitation, as may be imposed in the discretion of the Administrator. No
fractional shares of Common Stock shall be issued and the Administrator shall determine, in
its sole discretion, whether cash shall be given in lieu of fractional shares or whether such
fractional shares shall be eliminated by rounding down.







	11.2	 	Nontransferability.







	 	(a)	 	No right or interest of a Participant in any Award may be pledged, encumbered,
or hypothecated to or in favor of any party other than the Company or an Affiliate, or
shall be subject to any lien, obligation, or liability of such Participant to any other
party other than the Company or an Affiliate. Except as otherwise provided by the
Administrator, no Award shall be assigned, transferred, or otherwise disposed of by a
Participant for value other than by will or the laws of descent and distribution or,
subject to the consent of the Administrator, pursuant to a domestic relations order,
unless and until such Award has been exercised, or the shares underlying such Award
have been issued, and all restrictions applicable to such shares have lapsed.







	 	(b)	 	During the lifetime of the Participant and for so long as the Participant is
not incapacitated, only the Participant may exercise an Award (or any portion thereof)
granted to him under the Plan, unless it has been disposed of pursuant to a domestic
relations order. Notice to exercise an Award shall be signed by the Participant or
other person then entitled to exercise the Award or such portion of the Award. In the
event that an Award shall be exercised by any person or persons other than the
Participant, the Administrator may require appropriate




 


15









 











proof of the right of such person or persons to exercise the Award. In addition,
the Administrator may require such representations and documents as the
Administrator, in its sole discretion, deems necessary or advisable to effect
compliance with all applicable provisions of the Securities Act and any other
federal, state or foreign securities laws or regulations, the rules of any
securities exchange on which the Common Stock is traded or any other Applicable
Laws. The Administrator may, in its sole discretion, also take whatever additional
actions it deems appropriate to effect such compliance including, without
limitation, placing legends on share certificates and issuing stop-transfer notices
to agents and registrars. After the death or incapacitation of the Participant, any
exercisable portion of an Award may, prior to the time when such portion becomes
unexercisable under the Plan or the applicable Award Agreement, be exercised by his
personal representative or by any person empowered to do so under the deceased
Participant’s will or under the then Applicable Laws of descent and distribution.




	 	(c)	 	Notwithstanding the foregoing, the Administrator, in its sole discretion, may
determine to permit a Participant to transfer an Award other than an Incentive Stock
Option to any one or more Permitted Transferees, subject to the following terms and
conditions: (i) an Award transferred to a Permitted Transferee shall not be assignable
or transferable by the Permitted Transferee other than by will or the laws of descent
and distribution; (ii) an Award transferred to a Permitted Transferee shall continue to
be subject to all the terms and conditions of the Award as applicable to the original
Participant (other than the ability to further transfer the Award); and (iii) the
Participant and the Permitted Transferee shall execute any and all documents requested
by the Administrator.







	11.3	 	Paperless Administration. Subject to Applicable Laws, the Administrator may
make Awards, provide applicable disclosure and establish procedures for exercise of Awards by
an internet website or interactive voice response system for the paperless administration of
Awards.






ARTICLE 12

TERMINATION OF CONTINUOUS SERVICE





	12.1	 	Effect of Termination of Continuous Service. Except as otherwise provided
in an applicable Award Agreement or employment agreement with a Participant, or as otherwise
provided by the Administrator, any vesting of any Award shall cease upon termination of the
Participant’s Continuous Service, and any Award shall be exercisable only to the extent that
it was exercisable on the date of such termination of Continuous Service. Any Award not
exercisable as of the date of termination, and any Award or portions thereof not exercised
within the period specified herein, shall terminate.







	 	(a)	 	Termination Other than for Cause. Subject to any limitations set forth in the
agreement for an Award, and provided that the notice of exercise is provided as
required by the Plan prior to the expiration of the Award, the Participant shall be
entitled to exercise the Award (i) during the Participant’s Continuous Service, and
(ii) for a period of 90 days after the date of termination of the Participant’s
Continuous Service for reason other than Cause, or such longer period as may be set
forth in the Award Agreement.




 


16









 











	 	(b)	 	Termination by Death. Notwithstanding subsection (a), if a Participant’s
Continuous Service should terminate as a result of the Participant’s death, or if a
Participant should die within a period of 90 days after termination of the
Participant’s Continuous Service under circumstances in which subsection (a) would
permit the exercise of the Award following termination, the personal representatives of
the Participant’s estate or the person or persons who shall have acquired the Award
from the Participant by bequest or inheritance may exercise the Award at any time
within one year after the date of death, but not later than the expiration date of the
Award.







	 	(c)	 	Termination by Disability. Notwithstanding subsection (a), if a Participant’s
Continuous Service should terminate by reason of the Participant’s Disability, the
Participant may exercise the Award at any time within one year after the date of
termination but not later than the expiration date of the Award.







	 	(d)	 	Termination for Cause. Notwithstanding anything herein to the contrary, and
unless otherwise provided by the Award Agreement, if the Participant is terminated for
Cause, all unexercised Awards granted to the Participant shall terminate immediately
upon such termination.







	 	(e)	 	Extension of Award Termination Date. The Administrator, in its sole
discretion, may extend the termination date of an Award granted under the Plan without
regard to the preceding provisions of this section. Exercise of an Incentive Stock
Option beyond the periods provided in subsections (a), (b) and (c) shall evidence the
Participant’s consent to such extension and any resulting recharacterization of the
Option as a Nonqualified Stock Option.







	12.2	 	Effect of Termination of Continuous Service on Stock. Except as otherwise
provided in an applicable Award Agreement or employment agreement with a Participant, or as
otherwise provided by the Administrator, in the event that a Participant terminates Continuous
Service with the Company for any reason, including Disability of the Participant, any unvested
 shares of Common Stock held by such Participant as of the date of such termination of
Continuous Service shall be forfeited to the Company as of the date of termination of
Continuous Service.




 


17









 










ARTICLE 13

REORGANIZATION, RECAPITALIZATION AND CHANGE IN CONTROL





	13.1	 	Adjustments to Common Stock. The shares with respect to which Awards may be
granted are shares of Common Stock as presently constituted; provided, however, that if, and
whenever, prior to the expiration or distribution to the Participant of an Award theretofore
granted, the Company shall effect a subdivision or consolidation of shares of Common Stock or
the payment of a stock dividend on Common Stock without receipt of
consideration by the Company, the number of shares of Common Stock with respect to which
such Award may thereafter be exercised or satisfied, as applicable, (a) in the event of an
increase in the number of outstanding shares, shall be proportionately increased, and the
exercise price per share shall be proportionately reduced, and (b) in the event of a
reduction in the number of outstanding shares, shall be proportionately reduced, and the
exercise price per share shall be proportionately increased. Notwithstanding the foregoing,
any such adjustment made with respect to an Award that is an Incentive Stock Option shall
comply with the requirements of Code Section 424(a), and in no event shall any such
adjustment be made which would render (i) any Incentive Stock Option granted under the Plan
to be other than an “incentive stock option” for purposes of Code Section 422 or (ii) any
award that is intended to be exempt from, or comply with, Section 409A to fail to comply
with Section 409A.







	13.2	 	Recapitalization. If the Company recapitalizes or otherwise changes its
capital structure, thereafter upon any exercise or satisfaction, as applicable, of a
previously granted Award, the Participant shall be entitled to receive (or entitled to
purchase, if applicable) under such Award, in lieu of the number of shares of Common Stock
then covered by such Award, the number and class of shares of stock and securities to which
the Participant would have been entitled pursuant to the terms of the recapitalization if,
immediately prior to such recapitalization, the Participant had been the holder of record of
the number of shares of Common Stock then covered by such Award.







	13.3	 	Change in Control. In the event of a Change in Control, the Administrator
in its sole discretion may:







	 	(a)	 	Substitution of Awards. negotiate a binding agreement whereby the surviving
corporation or acquiring corporation may assume any outstanding Award under the Plan or
may substitute similar stock awards on an equitable basis of appropriate stock of the
Company, or of the surviving corporation or acquiring corporation, which will be
issuable in respect of the Common Stock (including an award to acquire the same
consideration paid to the stockholders in the Change in Control) for those outstanding
under the Plan; provided that with respect to (i) each outstanding Incentive Stock
Option, any such substituted award meets the requirements of Code Section 424(a) and
(ii) each outstanding Award subject to Section 409A, any such substituted award meets
the requirements of Section 409A;







	 	(b)	 	Acceleration of Vesting. accelerate the vesting of outstanding Awards (and, if
applicable, the time during which such Awards may be exercised);




 


18









 











	 	(c)	 	Acceleration of Exercise: in lieu of, or in addition to, accelerating the
vesting of outstanding Awards, the Administrator may, upon written notice to
Participants, provide that all unexercised Awards must be exercised or satisfied upon
the Change in Control or within a specified number of days of the date of such Change
in Control or such Awards will terminate. In response to such notice, a Participant
may make an irrevocable election to exercise the Participant’s Award contingent upon
and effective as of the effective date stated in such notice. Any
Award shall terminate if not exercised upon the time frame stated in the notice.
The Administrator may, in its sole discretion, accelerate the vesting of any
outstanding Award in connection with any proposed or completed Change in Control.







	 	(d)	 	Cash-Out: prior to such a Change in Control, terminate any or all unexercised
Awards (after acceleration of vesting) in exchange for cash or consideration similar to
that received by stockholders of Common Stock of the Company in the Change in Control,
less the exercise price required under any such Awards.







	13.4	 	Other Events. In the event of changes to the outstanding Common Stock by
reason of recapitalization, reorganization, mergers, consolidations, combinations, exchanges
or other relevant changes in capitalization occurring after the date of the grant of any Award
and not otherwise provided for under this article, any outstanding Awards and any Award
Agreements evidencing such Awards shall be subject to adjustment by the Administrator in its
discretion as to the number and exercise price of shares of Common Stock or other
consideration subject to such Award. In the event of any such change to the outstanding
Common Stock, the aggregate number of shares available under the Plan may be appropriately
adjusted by the Administrator, the determination of which shall be conclusive.







	13.5	 	No Adjustment for Certain Awards. Except as hereinabove expressly provided,
the issuance by the Company of shares of stock of any class or securities convertible into
 shares of stock of any class, for cash, property, labor or services, upon direct sale, upon
the exercise of rights or warrants to subscribe therefor or upon conversion of shares or
obligations of the Company convertible into such shares or other securities, and in any case
whether or not for fair market value, shall not affect previously granted Awards, and no
adjustment by reason thereof shall be made with respect to the number of shares of Common
Stock subject to Awards theretofore granted or the exercise price per share, if applicable.






ARTICLE 14

AMENDMENT AND TERMINATION





	14.1	 	Amendment of the Plan. The Board of Directors may at any time and from time
to time alter, amend, suspend or terminate the Plan or any part thereof as it may deem proper,
except that no such action shall diminish or impair the rights under an Award previously
granted without the consent of the affected Participant. Unless the stockholders of the
Company shall have given their approval, the Board of Directors may not amend the Plan to (a)
increase the maximum aggregate number of shares that may be issued under the Plan, (b)
increase the maximum number of shares that may be issued under the Plan through Incentive
Stock Options, (c) change the class of individuals eligible to receive Awards under the Plan,
or (d) make any other change that would require stockholder approval under Applicable Laws.




 


19









 











	14.2	 	Termination of the Plan. The Board of Directors may at any time suspend or
terminate the Plan. No such suspension or termination shall diminish or impair the rights
under an Award previously granted without the consent of the affected Participant, and
termination of the Plan shall not affect the Administrator’s ability to exercise the powers
granted to it hereunder with respect to Awards granted under the Plan prior to the date of
such termination. No Awards may be granted or awarded during any period of suspension or
after termination of the Plan, and in no event may any Award be granted under the Plan after
the tenth anniversary of the Effective Date.






ARTICLE 15

GENERAL PROVISIONS





	15.1	 	Tax Obligations. To the extent provided by the terms of an Award Agreement,
the Participant may satisfy any federal, state local and foreign income or other tax
withholding obligation (including the Participant’s FICA or employment tax obligation) under
Applicable Laws relating to the exercise or acquisition of Common Stock under an Award by
tendering a cash payment or, if permitted by the Administrator, either withholding from any
cash compensation paid to the Participant by the Company or its Affiliate or delivering to the
Company owned and unencumbered shares of Common Stock. The number of shares of Common Stock
which may be withheld or surrendered shall be limited to the number of shares which have a
Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of
such liabilities based on the minimum statutory withholding rates for federal, state, local
and foreign income tax and payroll tax purposes that are applicable to such supplemental
taxable income. Notwithstanding any provision to the contrary, all taxes associated with
participation in the Plan, including any liability imposed under Section 409A, shall be borne
by the Participant.







	15.2	 	Section 409A. To the extent that the Administrator determines that any Award granted
under the Plan is subject to Section 409A, the Award Agreement evidencing such Award shall
incorporate the terms and conditions required by Section 409A. To the extent applicable, the
Plan and Award Agreements shall be interpreted in accordance with Section 409A.
Notwithstanding any provision of the Plan to the contrary, in the event that following the
Effective Date the Administrator determines that any Award may be subject to Section 409A, the
Administrator may adopt such amendments to the Plan and the applicable Award Agreement or
adopt other policies and procedures (including amendments, policies and procedures with
retroactive effect), or take any other actions, that the Administrator determines are
necessary or appropriate to (a) exempt the Award from Section 409A and/or preserve the
intended tax treatment of the benefits provided with respect to the Award, or (b) comply with
the requirements of Section 409A and thereby avoid the application of any penalty taxes under
Section 409A.







	15.3	 	Rule 16b-3. It is intended that, at any time the Company is Publicly
Traded, the Plan and any Award made to a person subject to Section 16 of the Exchange Act
shall meet all of the requirements of Rule 16b-3. If any provision of the Plan or of any such
Award would disqualify the Plan or such Award under, or would otherwise not comply with the
requirements of, Rule 16b-3, such provision or Award shall be construed or deemed to have been
amended as necessary to conform to the requirements of Rule 16b-3.




 


20









 











	15.4	 	Section 162(m).







	 	(a)	 	Performance-Based Compensation. It is intended that, at any time when the
Common Stock is Publicly-Traded, the Plan shall comply fully with and meet all the
requirements of Section 162(m) so that Awards hereunder which are made to Participants
who are “covered employees” (as defined in Section 162(m)) shall constitute
“performance-based” compensation within the meaning of Section 162(m). If an Award is
intended to qualify as “performance-based” compensation within the meaning of Section
162(m), it shall be payable solely on account of attainment of established performance
goals. If any provision of the Plan or an applicable Award Agreement would disqualify
the Plan or Award or would not otherwise permit the Plan or Award to comply with
Section 162(m) as so intended, such provision shall be construed or deemed amended to
conform to the requirements or provisions of Section 162(m).







	 	(b)	 	Performance-Based Requirements. To the extent necessary to comply with the
requirements of Section 162(m)(4)(C), with respect to any Award which is intended to
qualify as performance-based compensation, no later than 90 days following the
commencement of any performance period or any designated fiscal period or period of
service (or such earlier time as may be required under Section 162(m)), the
Administrator shall, in writing, (i) designate one or more eligible individuals, (ii)
select the performance criteria applicable to such performance period, (iii) establish
the performance goals and amounts of such Awards that may be earned for such
performance period, and (iv) specify the relationship between performance criteria and
the performance goals and the amounts of such Awards, as applicable, to be earned by
each covered employee for such performance period.







	 	(c)	 	Performance Criteria. The performance criteria to be utilized under the Plan
for such purposes shall consist of objective tests based on one or more of the
following: achievement of benchmarks such as specified permitting or financings;
earnings or earnings per share; cash flow; customer satisfaction; revenues; financial
return ratios (such as return on equity and/or return on assets); market performance;
stockholder return or value; operating profits; EBITDA; net profits; profit returns and
margins; stock price; credit quality; sales growth; market share; comparisons to peer
companies (on a company-wide or divisional basis); working capital; or individual or
aggregate employee performance.







	 	(d)	 	Certification of Results. Following the completion of each performance period,
the Administrator shall certify in writing whether and the extent to which the
applicable performance goals have been achieved for such performance period. In
determining the amount earned under such Awards, the Administrator shall have the right
to reduce or eliminate (but not to increase) the amount payable at a given level of
performance to take into account additional factors that the Administrator may deem
relevant including the assessment of individual or corporate performance for the
performance period.




 


21









 











	15.5	 	Section 13(k). Notwithstanding any other provision of the Plan to the contrary, no
Participant who is an “executive officer” of the Company within the meaning of Section 13(k)
of the Exchange Act shall be permitted to make payment with respect to any Awards granted
under the Plan, or continue any extension of credit with respect to such payment with a loan
from the Company or a loan arranged by the Company in violation of Section 13(k) of the
Exchange Act.







	15.6	 	Beneficiary Designations. Each Participant may, from time to time, name a
beneficiary or beneficiaries (who may be contingent or successive beneficiaries) for purposes
of receiving any amount which is payable in connection with an Award under the Plan upon or
subsequent to the Participant’s death. Each such beneficiary designation shall serve to
revoke all prior beneficiary designations, be in a form prescribed by the Company and be
effective solely when filed by the Participant in writing with the Company during the
Participant’s lifetime. In the absence of any such written beneficiary designation, for
purposes of the Plan, a Participant’s beneficiary shall be the Participant’s estate.







	15.7	 	No Employment Rights. Nothing contained in this Plan or in any Award
granted under the Plan shall confer upon any Participant any right with respect to the
continuation of such Participant’s Continuous Service by the Company or any Affiliate or
interfere in any way with the right of the Company or any Affiliate, subject to the terms of
any separate employment agreement to the contrary, at any time to terminate such Continuous
Service or to increase or decrease the compensation of the Participant from the rate in
existence at the time of the grant of the Award.







	15.8	 	Jurisdictions. In order to assure the viability of Awards granted to
Participants employed in various jurisdictions, the Administrator shall have the authority to
adopt such modifications, procedures and subplans as may be necessary or desirable to comply
with provisions of the Applicable Laws in which the Company may operate to assure the
viability of the benefits from Awards granted to Participants employed in such countries, to
accommodate differences in local law, tax policy, or custom applicable in the jurisdiction in
which the Participant resides or is employed and to meet the objectives of the Plan.
Moreover, the Administrator may approve such supplements to, or amendments, restatements, or
alternative versions of, the Plan as it may consider necessary or appropriate for such
purposes without thereby affecting the terms of the Plan as in effect for any other purpose;
provided, however, that no such supplements, amendments, restatements, or alternative versions
shall increase the share limitations contained in Article 4. Notwithstanding the foregoing,
the Administrator may not take any actions hereunder, and no Awards shall be granted, that
would violate any Applicable Laws.







	15.9	 	Foreign Currency. A Participant may be required to provide evidence that
any currency used to pay the exercise price of any Award was acquired and taken out of the
jurisdiction in which the Participant resides in accordance with Applicable Laws, including
foreign exchange control laws and regulations. The amount payable will be determined by
conversion from U.S. dollars at the exchange rate as selected by the Administrator on the date
of exercise.




 


22









 











	15.10	 	Other Employee Benefits. Unless so provided by the applicable plan, the
amount of compensation deemed to be received by a Participant as a result of the exercise of
an Award shall not constitute earnings with respect to which any other employee benefits of
the person are determined, including without limitation benefits under any pension, profit
sharing, life insurance, or disability or other salary continuation plan.







	15.11	 	Confidentiality of Information. Except as required by Applicable Laws,
information regarding the grant of Awards under this Plan is confidential information of the
Company and may not be shared with anyone other than the Participant’s immediate family and
personal financial advisor and other person(s) designated by Participant by power of attorney
or assignment.







	15.12	 	No Funding. The Plan shall be unfunded. The Company shall not be required
to establish any special or separate fund or to make any other segregation of funds or assets
to ensure the payment of any Award.







	15.13	 	Severability. If any provision of this Plan is held by any court or
governmental authority to be illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining provisions. Instead, each provision held to be illegal or
invalid shall, if possible, be construed and enforced in a manner that will give effect to the
terms of such provision to the fullest extent possible while remaining legal and valid.







	15.14	 	Governing Law and Venue. This Plan, and all Awards granted under this
Plan, shall be construed and shall take effect in accordance with the laws of the State of
Nevada without regard to conflicts of laws principles.







	15.15	 	Use of Proceeds. Any cash proceeds received by the Company from the sale
of shares of Common Stock under the Plan shall be used for general corporate purposes, but in
no event shall be used to purchase shares in the public market for issuance of Stock or Awards
under the Plan.







	15.16	 	Appendices. The Administrator may approve such supplements, amendments or
appendices to the Plan as it may consider necessary or appropriate for purposes of compliance
with Applicable Laws or otherwise and such supplements, amendments or appendices shall be
considered a part of the Plan; provided, however, that no such supplements shall increase the
share limitations contained in Article 4.







	15.17	 	Indemnification. To the extent allowable pursuant to Applicable Laws, each
member of the Administrator and of the Board of Directors shall be indemnified and held
harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by such member in connection with or resulting from any claim, action,
suit, or proceeding to which the member may be a party or in which the member may be involved
by reason of any action or failure to act pursuant to the Plan and against and from any and
all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding
against him or her; provided he or she gives the Company an opportunity, at its own expense,
to handle and defend the same before he or she undertakes to handle and defend it on his or
her own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to which such
persons may be entitled pursuant to the Company’s Certificate of Incorporation or Bylaws, as
a matter of law, or otherwise, or any power that the Company may have to indemnify them or
hold them harmless.







 


23